Post: The Abarbanel raises several good points in his objection to considering the yibbum practiced by Yehudah and Tamar, and by Boaz and Rus, as true yibbum. See his questions in this post, his answer about Yehuda and Tamar in this post, and his answer about Boaz and Rus in this post. With this assumed background, I can now present my own thoughts on the matter.
1) Firstly, Abarbanel seems to adopt the midrashic idea that Yehuda was the innovator of yibbum, pre-mattan Torah. I don't know that he was really the innovator. After all, in Vayeshev, he says to Onan, after the death of Er:
|ח וַיֹּאמֶר יְהוּדָה לְאוֹנָן, בֹּא אֶל-אֵשֶׁת אָחִיךָ וְיַבֵּם אֹתָהּ; וְהָקֵם זֶרַע, לְאָחִיךָ.||8 And Judah said unto Onan: 'Go in unto thy brother's wife, and perform the duty of a husband's brother unto her, and raise up seed to thy brother.'|
This is a verb, yabbem, and I would rather assume that at the time Yehuda employed it, it already had meaning. Yes, the root is used to mean sibling-in-law (see in sefer Rus, for instance: וַתֹּאמֶר, הִנֵּה שָׁבָה יְבִמְתֵּךְ, אֶל-עַמָּהּ, וְאֶל-אֱלֹהֶיהָ; שׁוּבִי, אַחֲרֵי יְבִמְתֵּךְ). Even so, this indicates to me the chance that this was already a cultural institution, before Yehuda came on the scene.
And it exists in the Hittite laws. Thus, in Hittite Law #193, in Roth, LCMAM, 236:
If a man has a wife, and the man dies, his brother shall take his widow as wife. (If the brother dies,) his father shall take her. When afterwards his father dies, his (i.e., the father's) brother shall take the woman whom he had.This seems to be yibbum, and indeed, quite similar to the case in parashat Vayeshev.
2) Secondly, Abarbanel came to the conclusion that what happened between Yehuda and Tamar was not real yibbum, was not Yehuda's intent, etcetera. Maybe so. But it seems to me to be a safe supposition that yibbum to the father, after the death of the son, was something known in the cultural context.
Why? The Hittite law, above.
And that, therefore, when Yehuda slept with Tamar, the typical Israelite reader would understand that this was a yibbum, where after the death of the second son, the father was selected instead of the son, even if both were viable alternatives. That Yehuda did not continue to live with her, though he presumably supported her, is indicative of his lack of interest of Tamar. Yet he did succeed in establishing zera for Er, or Onan.
3) If so, does that establish the rules of yibbum even post-mattan Torah? As the Abarbanel asks, how does this differ from circumcision?
To my mind, the answer is that circumcision was directly commanded by Hashem to Avraham, and so can serve as a model for the later Torah law. Meanwhile, this yibbum was a secular cultural law, albeit one later endorsed by the Torah. They had kinyan back then, in Mesopotamia, and the avos presumably utilized the appropriate kinyanim which were in effect at that time. That does not mean that our kinyan needs to be the same. In the past, I've discussed other laws and actions, such as the sending away of Hagar, as found in the Code of Hammurabi. See here.
So yibbum as practiced by Onan, Yehuda and Tamar does not need to be binding ledoros, even if we call it 'yibbum'. The Torah can modify and restrict existing practices in interesting and reformative ways.
That does not mean that it did. Perhaps yes, and perhaps no. On to Boaz and Ruth!
4) In terms of Boaz and Rus, I agree that וְזֹאת לְפָנִים בְּיִשְׂרָאֵל עַל-הַגְּאֻלָּה וְעַל-הַתְּמוּרָה, לְקַיֵּם כָּל-דָּבָר, שָׁלַף אִישׁ נַעֲלוֹ, וְנָתַן לְרֵעֵהוּ; וְזֹאת הַתְּעוּדָה, בְּיִשְׂרָאֵל does not refer to chalitza. I don't think the text could be clearer. And indeed, the Targum and the Yaavetz explain it to be a glove, rather than a shoe.
However, it does seem possible that the customary yibbum, or perhaps even the Torah-law of yibbum, was still at play. Rus was married to Machlon or Kilyon. But neither the other brother nor the father could perform halachic yibbum, for they died as well.
However, sometimes the Torah is not explicit about the details of its laws, and they are known via Oral law or via close derivation of pesukim. For instance, thought the pasuk at the end of Ki Teitzei says ארבעים יכנו לא יסיף, 40 lashes and that one should not add, we then say to detract and have a maximum of 39. And though we are told in Ki Teitzei that an Ammonite and Moabite may not marry into the Israelites, this is taken (at a later stage) as just the men, and not the women. When the pasuk in Ki Teitzei states וְלֹא-יִלְבַּשׁ גֶּבֶר שִׂמְלַת אִשָּׁה, we can take this to extend to things used for beautification, such as looking in a mirror. These are close derivations into the wording, but the point is, some things may be inferred, by wording, or by comparison and transfer to other laws.
It could be understood that when the pasuk states:
the word אַחִים does not mean a literal brother, but rather a close relative. After all, Abarbanel pointed out how in sefer Rus, Avimelech was described as a 'brother' to Boaz and Ploni Almoni, even though he was not a literal brother. And indeed, throughout parashat Ki Teitzei, the word אח appears, in the sense of relative. For instance, לֹא-תְתַעֵב אֲדֹמִי, כִּי אָחִיךָ הוּא. Or in the sense of co-religionist, as in לֹא-תַשִּׁיךְ לְאָחִיךָ, נֶשֶׁךְ כֶּסֶף נֶשֶׁךְ אֹכֶל: נֶשֶׁךְ, כָּל-דָּבָר אֲשֶׁר יִשָּׁךְ. It is a 'relative' term, perhaps one can say. Compared with someone else, a person may be an אח. And so, a יבם may be such a close relative who will perform the levirate marriage.
Alternatively, אחים might be literal brothers in the laws in Ki Teitzei, but the Torah simply chose the closest relative and first to this geulah / nachalah. And implied and understood was that where there was no brother to fulfill this role, the next closest relative would step in. What would be the line of succession? This might be obvious, and transferred from the laws of goel for nachalah of land. Indeed, we see in sefer Rus that the same goel was selected to do both.
Yes, Ki Teitzei also has the laws of chalitzah, which can be taken as a boolean choice of the yibbum or chalitzah at the very first stage. But, we can find a place in the grander scheme for chalitzah. Either that this is only where the first line of goel exists and refuses. Or, that the closest goel can act to unilaterally refuse, in which case he is condemned and spat upon, or else he can pass it on to a more distant goel, in which case he is not condemned, for he has not totally abandoned his brother's widow. Or, this is a stand-in for all relatives, where no one wishes to be the goel, and the mechanism where she can marry an ish zar.
The precise details do not matter, unless we were concerned in establishing it as the halacha and definitive peshat. My concern is, rather, to demonstrate that such a peshat may be formed.
5) Therefore, we can suggest that this was the halachic understanding of yibbum in the time of Boaz. There was no brother of the deceased, but there still was a zika for one of the relatives. Ruth was a Moabite, and so could have avoided all of this trouble. But, due to a sense of obligation or loyalty, she cleaved to her mother-in-law.
Early in the narrative we already see hints of actual yibbum. Naomi says in the first perek, as she returns, bereft of her husband and sons, from Sdei Moav:
According to halacha as we understand it today, any subsequent brother born to Naomi would not be eligible to perform yibbum or chalitza. They did not coexist in the world with the deceased. And they would be mere maternal brothers, for which yibbum does not apply. Yet, it 'smells' like a suggestion of yibbum.
Later, in the third perek, on the threshing floor:
He praises her for going after her near kinsman for marriage. He continues by saying that there is a nearer kinsman than he. It seems like, at the least, it is deemed exemplary to find the closest kinsman to marry her. This 'smells' of yibbum, whether customary or legal.
Finally, in the last perek, Ploni comes forward to redeem the field, and is told that whoever redeems the field will also marry (acquire) Rus, the wife of the deceased. This is a function of closeness for geulah.
And then, there is the drawing off of the naal and giving to one's fellow. This is not chalitzah. Certainly not. The pasuk takes pains to tell us that this was the custom for confirming all things in Israel: וְזֹאת לְפָנִים בְּיִשְׂרָאֵל עַל-הַגְּאֻלָּה וְעַל-הַתְּמוּרָה, לְקַיֵּם כָּל-דָּבָר, שָׁלַף אִישׁ נַעֲלוֹ, וְנָתַן לְרֵעֵהוּ; וְזֹאת הַתְּעוּדָה, בְּיִשְׂרָאֵל. If it were simply chalitzah, then the pasuk would specify that it was chalitzah! And there was no spitting on Rus' part.
It does seem plausible that the closeness in form between the שָׁלַף אִישׁ נַעֲלוֹ and the chalitzah described in parashat Ki Teitzei was recognized by the Biblical author. This detail, while absolutely true, might still have safely been omitted. It was included because of its surface similarity to chalitzah, coupled with its function in this particular case to allow Ploni Almoni to avoid this familial obligation, just like a chalutz. But it is not chalitza, and we need not try to force the narrative into the law or the law into the narrative.
The assumption of Boaz and company would be that these obligations could be transferred and fulfilled. The assumption would be that the path of priority to be goel would be identical for both land acquisition and performing yibbum. And so, he first had to resort to this strategem to allow him to obtain both Rus and the field. And it succeeded.
6) This does not mean that we must now decide the halacha of yibbum and chalitzah to be in accordance with the narratives by Yehudah and Tamar. The halachah is in the hands of Chazal to interpret and lay out. And a later (actual) Bet Din can override an earlier one. In terms of Yehudah, that is before mattan Torah and so the custom or law from that time is non-binding. In terms of Boaz, just because he interpreted the pesukim in one way does not mean that Chazal must interpret it in the same manner.
Indeed, I could bolster this with a midrash. When Ploni Almoni refuses to marry Rus, he says לֹא אוּכַל לִגְאָל- לִי--פֶּן-אַשְׁחִית, אֶת-נַחֲלָתִי, ''I cannot redeem it for myself, lest I mar mine own inheritance'. In what way would he mar his own inheritance. The answer is that the Biblical injunction of marrying an Ammonite and Moabite was taken, until this point, to refer to both males and females from those nations. Boaz convened a Bet Din and declared (and darshened) this pasuk in another way, such that Moabite and Ammonite women were permitted. Another midrash explains that for a while, people thought that even in war, one could not violate Shabbos. The Hasidim didn't fight on Shabbos, and were slaughtered. And then Chazal darshened appropriate pesukim and came to the conclusion that one could violate one Shabbos to live and keep Shabbos many other times.
And indeed, I've discussed how Yechezkel may have acted as talmid chacham rather than prophet, and understood the laws of whom a kohen hedyot may marry in a different way than we (and Chazal) understand it. Biblical books composed in those earlier eras may, then, exhibit this different halacha. But this is not necessarily binding, and we (and specifically Chazal) might well understand the pesukim in different ways. As the pasuk in Shofetim declares, וּבָאתָ, אֶל-הַכֹּהֲנִים הַלְוִיִּם, וְאֶל-הַשֹּׁפֵט, אֲשֶׁר יִהְיֶה בַּיָּמִים הָהֵם; וְדָרַשְׁתָּ וְהִגִּידוּ לְךָ, אֵת דְּבַר הַמִּשְׁפָּט.
Thus, at the end of the day, maybe we can say that what Yehuda and Tamar did, and what Boaz and Rus did, was yibbum.