Biblical sources reflect the transition from absolute to limited patria potestas, which took place in Hebrew society.1 The Canaanite custom of human sacrifice was from the beginning condemned, although the stories of Isaac and of Jephthah's daughter reflect similar ideas within Israel. Reuben's offer in Genesis 42:37 to have his two sons killed should he not return Benjamin to Jacob, even if not meant to be taken seriously, pointed to the father's right to pledge his child as surety for the fulfillment of an obligation. The exceptional events in Sodom (Genesis 19:8) and Gibeah (Judges 19:24) and the express prohibition against prostituting one's daughter in Leviticus 19:292 also illustrate the extent of the patriarchal power. The father's right of punishment was later transferred to the local courts.3
The idea that an unborn child belonged legally to its father, who was also the claimant in cases of miscarriage (Exodus 21:22),4 reflected the Hebrew notion of patriarchy. There was no thought of the violation of any right of the mother. Since a man's children were considered part of his property, he could originally be punished by their being harmed;5 even in later practice they could be taken in distress.6
While the father's power during the patriarchal age extended to sons and daughters alike, the former seem to have been emancipated at an early date, perhaps even before the settlement. The parents, it is true, still very often chose a wife for their son, although sometimes the son himself contracted the marriage (Genesis 26:34; 27:46; Judges 14:2, 7). On the other hand, the daughter was in most cases married off by her father, except, perhaps, where she married for the second time, or when circumstances differed because of rape or seduction (Genesis 34:12; Exodus 22:16); the father was also entitled to sell his daughter into servitude (Exodus 21:7).7
One of the results of this parental power was the father's right to receive the compensation payable in the case of the rape or seduction of his daughter (Exodus 22:16; Deuteronomy 22:19). He was also entitled to her bride-price. Morally he was bound to use these payments for the benefit of his daughter, and he would probably take her wishes into account before proceeding with the marriage (Genesis 24:57).
Both the polygynous structure of the Hebrew family and the rule of the levirate reduced the problems of childless marriages.8 There was, in consequence, less need than in other ancient Eastern societies for the creation of an artificial parent-child relationship. Nevertheless, various references in the Bible point to the fact that adoption was known in Israel even though not treated in the law.9
The adoption of Moses (Exodus 2:10) and of Genubat (1 Kings 11:20), it is true, took place in Egypt and could not be cited as examples of a native custom.10 On the other hand, the idea of divine adoption, at least of the king, probably existed from the time of the monarchy (2 Samuel 7:14; Psalm 2:7).11 Such a metaphor reflects a custom known to the listener; the formula mentioned in the latter source is indeed similar to that of Babylonian law. Another reference to adoption, though less direct, is shown in the neighbors' attitude toward the birth of Ruth's son, when they called him Naomi's child (Ruth 4:16–17). The clearest case is that of Esther "taken as a daughter" by her cousin (Esther 2:7).
An adoption mortis causa, whereby the rules of succession were altered, was effected by the declaration made by Jacob regarding Ephraim and Manasseh (Genesis 48:5).12 The necessity for such a fiction will shortly be considered. The relations of Abraham toward Hagar and of Jacob toward Bilhah and Zilpah (Genesis 16:2–15; 30:3–13) seem to be based on Babylonian law,13 and the wife's relation toward the children borne by the slave is similar to adoption. However, the childless wife may have considered herself a godmother to them rather than an adoptive mother.
Finally, a deed of adoption had been found among the Aramaic papyri.14 Though the purpose of this transaction is not quite clear, the adoption seems to have been part of the liberation of a slave.
1. Compare Ephraim Neufeld, Ancient Hebrew Marriage Laws (London: Longmans, 1944), 250ff.; David R. Mace, Hebrew Marriage (London: Epworth, 1953), 216ff.; Meir Weiss and Abraham Freimann, "Patriarchs" (in Hebrew), in Encyclopaedia Miqra'it (Jerusalem: Bialik, 1950), 1:14–18.
2. Compare Raphael Patai, Family, Love and the Bible (London: Macgibbon and Kee, 1960), 114ff.
3. See pp. 25–27.
4. Compare Codex Hammurabi 209–14; Middle Assyrian Laws A21, 50–53; Ephraim Neufeld, The Hittite Laws (London: Luzac, 1951), 17–18.
5. See pp. 68–69; compare David Daube, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947), 160ff.; Ze'ev W. Falk, "Collective Responsibility in the Bible and the Aggada" (in Hebrew), Tarbiz 31 (1961): 16.
6. See p. 95; Ze'ev W. Falk, "Zum jüdischen Bürgschaftsrecht," Revue Internationale des Droits de l'Antiquité 10 (1963): 43. Compare Codex Hammurabi 117; Middle Assyrian Laws A48.
7. Compare Nuzi deeds in Isaac Mendelsohn, Slavery in the Ancient Near East (New York: Oxford University Press, 1949), 10–11. The special status of the daughter as distinguished from the son is also shown in the rule concerning her vows, see Numbers 30:4–6, although the sexes are not always distinguished, see Exodus 21:31–32.
8. Cyrus H. Gordon, "Biblical Customs and the Nuzu Tablets," Biblical Archaeologist 3 (1940): 1ff. Abraham Freimann, "Adoption" (in Hebrew), in Encyclopaedia Miqra'it, 1:431–33; compare Martin David, "Adoptie in het oude Israel," Med. Kon. Ned. Akad. V. Wetench. Let 18 (1955): 85–103; Roland de Vaux, Ancient Israel: Its Life and Institutions, trans. John McHugh (London: Darton, 1961), 85–87.
9. On adoption in the ancient East, compare Codex Hammurabi 185–93; Middle Assyrian Laws A28 and many adoption deeds from Nuzi, Babylonia, Assyria, and Ugarit.
10. Compare Erwin Seidl, Ägyptische Rechtsgeschichte der Saiten-und Perserzeit (Glückstadt: Augustin, 1968), 67.
11. De Vaux, Ancient Israel, 171.
12. For a similar case in Ugarit, see Isaac Mendelsohn, "On the Preferential Status of the Eldest Son," Bulletin of the American Schools of Oriental Research 156 (1959): 39ff.; compare Malamat, "Mari and the Bible," Journal of the American Oriental Society 82 (1962): 148.
13. Codex Lipit Ishtar 27; Codex Hammurabi 145–46, 170–71; Gordon, "Biblical Customs and the Nuzu Tablets," 3; Godfrey R. Driver and John C. Miles, The Babylonian Laws (Oxford: Clarendon, 1952–55), 1:333; Adrianus van Selms, Marriage and Family Life in Ugaritic Literature (London: Luzac, 1954), 72; Patai, Family, Love and the Bible, 70. For the reputed adoption of Jacob by Laban, see Moshe Greenberg, "Another Look at Rachel's Theft of the Teraphim," Journal of Biblical Literature 81 (1962): 239ff.
14. Emil G. Kraeling, The Brooklyn Museum Aramaic Papyri (New Haven: Yale University Press, 1953), 8; Reuven Yaron, Introduction to the Law of the Aramaic Papyri (Oxford: Clarendon, 1961), 40; Ze'ev W. Falk, "Manumission by Sale," Journal of Semitic Studies 3 (1958), 127; compare Codex Hammurabi 190.