Thou shalt not
uncover the nakedness of thy brother's wife: it is thy brother's nakedness.
(Lev 18:16)
Commenting on this verse and its relationship to Deut 25 and levirate
marriage, Jacob Milgrom wrote:
Does this verse oppose
levirate marriage (Deut 25:5-9), an institution attested in Israel and the
ancient Near East (e.g., Gen 38; Ruth 4; Matt 22:23-33; M[iddle]A[ssyrian]L[aws]
A § § 30-33; H[ittite]L[aws] § 193)? Both opinions have been registered:
1. This verse is not
in contradiction with Deut 25, since it implies that the brother is alive
(Snaith 1967; Noth 1977). However, its parallel verse (20:21) used the verb lāqaḥ ‘marry’. Therefore, she must be single,
either widowed or divorced. Besides, if she were married, the offense would be
adultery, covered by v. 20. A stronger argument is that Lev 18 is the rule and
Deut 25, the exception (Sipre Deut.
289:7; b. Qid. 75b-76a; Driver and
White 1894-98; Wenham 1979). Nonetheless, it is hard to believe that Deut 25
would bother to mention this law unless the norm were that it is prohibited
(Schwartz, personal communication).
2. The two verses are
in contradiction. H would not allow levirate marriage, since once your brother
is married, his wife is a “blood relative” (hence the repetition, “it is your
brother’s nakedness”) and his death is irrelevant. Tellingly, Philo (Laws 3.27 N) omits this law from his discussion
of incest rules, perhaps because he could not reconcile it with Deut 25. (Jacob Milgrom, Leviticus 17-22 [AB 3A; New York:
Doubleday, 2000], 1545)
Here is Philo from the source referenced above:
Again. He does not
permit the same man to marry two sisters, neither at the same time nor at
different periods, even if he have put away the one whom he previously married;
for while she is living, whether she be cohabiting with him or whether she be
put away, or if she be living as a widow, or if she be married to another man,
still he did not consider it holy for her sister to enter upon the portion of
her who had been unfortunate; by this injunction teaching sisters not to
violate the requirements of justice towards their relations, nor to make a
stepping stone of the disasters of one so united to themselves by blood, nor to
acquiesce in or to pride themselves in receiving attentions from those who have
shown themselves enemies to their relations, or to reciprocate any kind offices
received from them.
