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Aug 4, 2010

Weiner: Virgin Law

Excerpt from: H.M. Weiner, Studies in Biblical Law, (London, 1904), p.24 fwd

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Law of Seduction - H.M. Weiner


Law of Seduction

Dr. Driver makes a point on the law of seduction [Deut. 37, 38], but as he refers to Professor W. Robertson Smith as his authority, and the latter treats it most fully, it will be best to quote the earlier writer, merely observing that he refers to the Exodus source as S.

"Again, in Exodus 22:16-17, he who seduces a virgin is obliged to buy her of her father as his wife, or if the father refuse he is to pay the same dowry as if he had married her a virgin. We have here an example ... of a state of society well known to students of antiquity. The father has a pecuniary interest in his daughter's virginity, because he expects to receive a dowry or rather purchase price (mohar — exactly equivalent to the Homeric εδνα) from the suitor in exchange for her hand. The seduction frustrates this hope (comp. Odyssey viii. 318), and the seducer must therefore make good the injury to the father as well as to the damsel.

In accordance with this point of view, the law of S stands at the close of a list of cases of pecuniary compensations for injury to property, and not among the laws as to personal injury. In Deut. 22:28 we find a parallel law — not among laws of property, but among laws as to purity.

The case contemplated is not that of seduction, but of violence to a maiden. It is still provided that the offender shall marry the damsel and pay a sum to the father ; but the expression "mohar of virgins" has disappeared, and the compensation is fixed at fifty shekels.

Apparently the custom of paying a dowry to the father in every case of marriage is no longer known, and therefore, though the fine is retained, it cannot, as in S, be estimated by usual practice as to the dowry of virgins, but requires to be fixed bylaw. When this important change in marriage customs took place we cannot say with precision.

In the time of Saul the payment of 'a mohar was still usual (1st Sam. 18:25); but the book of Kings has a technical word for dowry given by the father to his daughter (shilluchim, 1st Kings 9:16, literally "dismissal gift"), which implies a reversal of the old custom. In the post-Biblical Jewish law the dowry was settled on the wife, as well as the paraphernalia which she brought from her father's house."

- W. Robertson Smith. Additional answer to the Libel, 56-57 .

A pretty theory, but one which rests entirely on the hypothesis that in no country can the custom of giving dowry co-exist with the custom of paying the father for his daughter. It is therefore a complete answer to point out that in Babylonia these two customs did so co-exist:
(Kohler and Peiser, Aus dem Babylonischen Rechtsleben, I. pp. 7, 8).

It should, moreover, be noticed that both the passages in the historical books relate to very exceptional cases.

In the first citation, a subject desires to marry the daughter of his sovereign ; while in the book of Kings, it is the king of Egypt who captures and burns Gezer, slays the Canaanites that dwelt in the city, and gives it for a portion unto his daughter, Solomon's wife.

Modern Example:

We may wonder whether such a use of historical material would be tolerated in any other field of inquiry. What would be said of a group of historians who should, for instance, point to the fact that, when Katharine of Portugal brought Bombay and Tangier as a portion on her marriage with Charles II., the English language had an apt term to express this, and should solemnly argue that the English law and custom of Dower must therefore have died out before 1660, and that the English marriage customs had undergone an important change?

As to the differences between the laws of Deuteronomy and Exodus, the explanation cannot be better given than in Professor Smith's own words:

"The case contemplated is not that of seduction, but of violence to a maiden."

In law, different premises habitually lead to different conclusions.

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