[ ]Brotherssolved, that is, levirate marriage or halitza can occur without any addi-
tional disruption to the brothers, when the brothers confer and choose
the brother willing or able to fulfill the levirate obligation.
The Mishnah, while describing such possibilities, also imagines
cases in which brothers seem to avoid their responsibilities or attempt
to cast them on each other. The Mishnah considers a situation in which
“[the oldest brother wants to] wait for a younger brother to grow up], or
[a younger brother wants to wait] for the oldest brother to return from
abroad, or for a deaf-mute or mentally incapacitated [brother to re-
c ov er].”^34 Here the brothers who are on hand do not want to fulfill the
levirate obligation, but are prepared to leave the widow in limbo. The
rule in the Mishnah, which allows an outside authority, presumably a
court, to force a brother to act, hints at a situation in which the brothers
cannot come to an agreement or where all the brothers see levirate as a
burden.
While the Bavli frames all of its questions in relation to its audience,
asking what the preference of the rabbis is regarding levirate marriage
versus halitza, the question can legitimately be directed at the brothers:
What might be the preferred strategy of the surviving brothers regard-
ing their widowed sister-in-law? Is the precedence assigned to the oldest
brother an attempt to ensure that the widow’s status is resolved, or is it
an attempt to guarantee an orderly resolution to a potentially explosive
situation within the deceased’s family?
The problem here, the potential for disharmony among the surviv-
ing brothers, stems from a rabbinic interpretation of levirate law. In
most societies, children born from a levirate union are assigned to their
mother’s deceased husband. Those children, rather than the levir, in-
her it t he deceased’s proper t y. In such a sit uat ion, prov id i ng of fspr i ng for
a childless man ensured that his property would be inherited not by his
brothers but by the children one of them fathered on his brother’s behalf
with his brother’s widow.
At first glance, this appears to have been the case in ancient Israel as
well. Onan’s unwillingness to impregnate his sister-in-law Tamar is at-
tributed to his understanding that “the seed would not count as his.”^35
Deuteronomy : states that “the first son” [born to the widow and the
levir] shall be accounted to the dead brother.” In Ruth :, Boaz’s speech
to Elimelech’s unnamed kinsman and the latter’s refusal to marry Ruth