One of the primary lessons of sefer Breisheet is that birth order matters little. Yitzchak, Yaakov and Yosef were all younger brothers, in Yosef’s case tenfold. Similarly, in the pre-covenantal period it was Hevel, the younger brother of Cain, whose sacrifice was accepted by G-d; and it is Shem, a younger son of Noach (see Rashi, Breisheet 10:21), who is ancestor to Abraham. And Lavan reflects the ancient norm when he states that we “don’t do that in our place, to place the younger before the older one.”
Indicative of the revolutionary notion of not automatically favouring one’s eldest is the great difficulty our patriarchs had with this concept. While not quite explicit in the text, it does seem rather clear that Abraham assumed that it would be Yishmael who would be the one to carry on his mission. Hence, for example, his unwillingness to send Yishmael away until ordered to do so by G-d Himself. Similarly, Rashi’s comment (Breisheet 22:1) on “Take your son, your special one, the one you love, Yitzchak”—that had G-d not mentioned Yitzchak specifically, Abraham may have taken Yishmael to the altar—demonstrates the natural love of a father to a firstborn.
Yitzchak’s favouritism towards Eisav is well known; and as far as Yaakov was concerned, Yosef was his eldest, being the first born of his beloved wife Rachel. It is only Yosef who recognizes that birth order is of little, if any, significance as he places Ephraim to the right, i.e., the stronger side of Yaakov. This is one reason that Jewish parents bless their children every Friday night that they should be like Ephraim and Menashe.
The fact that Abraham was (apparently) the eldest son of Terach can be seen as a necessary component of his success at drawing people closer to G-d. Being the eldest would make it easier for him to earn the respect of others, even to meet others. G-d’s reference to Israel as “My firstborn child” (Shemot 4:22) reflects both the importance placed upon the firstborn in the ancient world, and almost paradoxically, its irrelevance, as Israel was far from G-d’s oldest nation. Noach had already been the precursor of 70 others. Bechor is to be understood to mean not “eldest,” but “chosen.”
Yet there is one area where the Torah does place great emphasis on being the eldest.
“If a man has two wives, the one beloved, and the other hated, and they have borne him children, both the beloved and the hated; and if the firstborn son be hers that was hated, then it shall be, in the day that he cause his sons to inherit that which he has, that he may not make the son of the beloved the firstborn before the son of the hated, who is the firstborn; but he shall acknowledge the firstborn, the son of the hated, by giving him a double portion of all that he has” (Devarim 21:15-17).
The Torah is rather explicit that when it comes to inheritance, being the eldest makes a big difference, regardless of one’s affection towards the child.
This is not the only place the Torah uses the expression ahuva and senua, the beloved and the hated, regarding one’s wife. Sefer Devarim is in effect commenting on sefer Breisheet, where Rachel is referred to as the beloved wife and Leah is referred to as senua, the “hated” wife, not once but twice. The Torah is hinting (or perhaps saying clearly) that while allowed, polygamy is not a good idea. Yet at the same time, the Torah establishes the automatic right of a firstborn – whether he is beloved or not – to receive a double portion.
For us moderns, the notion that one child should get a double portion is at best anachronistic, and more likely, a way to cause family discord through what today would be called a discriminatory practice. Coupled with the fact that a daughter would inherit only if she has no brothers,[1] these laws are at odds with the worldview of the vast majority of Jews, including observant ones. By the Middle Ages, our Sages had already devised legal technicalities to allow one to distribute an estate equally to both sons and daughters. Yet what may seem out of sync with social norms today was the norm in the ancient world, and is the basis of the eighth chapter of Bava Batra that elaborates, in great detail, on the Torah’s system of inheritance.
What I find sociologically fascinating is the fact that there is little, if any, controversy regarding the use of legal loopholes[2] to fundamentally change the laws of inheritance, thereby making it more palatable to moderns. Whether this is because this happened hundreds of years ago and any debate is long over, or because it was great rabbinic authorities who suggested such changes, or perhaps, because there are long-standing traditions allowing changes of the monetary laws of the Torah—or some combination of these and other reasons—I can’t definitely say. The contrast to the heter mechira, using legal technicalities to obviate the need to keep the laws of shmitta, or attempts to expand the role of women in ritual[3] is striking.
[1] Yet at the same time, before any monies could be distributed from the estate, funds needed to support any daughters were to be put into escrow. These funds would provide support until such time as the daughters married, at which point the husband would be responsible for his wives’ financial wellbeing. This type of approach, whereby the men “controlled” the money, was common amongst all sectors of society until fairly recently. In a case where there are no men then, as we learn from the daughters of Tzelofchad, the daughters would inherit.
[2] Basically, this involved creating debts to intended beneficiaries that would have to be paid before any inheritance could be given. While the mechanics and goals are different, this is conceptually similar to many techniques used today in secular law to help avoid paying huge taxes upon a person’s death. Nonetheless, many recommend that a token amount of the inheritance should be divided according the laws of Torah.
[3] While there is a difference between legal technicalities and defining roles where much is related to halachic or more philosophical issues, both do involve “changing” the traditional norms. In any event, halacha is fundamentally an expression of Jewish religious thought.