Firstborns, female inheritance and the desirability of halachic loopholes

With my office space sometimes playing host to a visiting “halachic-inheritance” lawyer, I have sometimes been asked to step in to bear witness to the proceedings. These usually involve older individuals or couples apportioning their fortune among their children, and occasionally choosing to cut one of them out of the inheritance. Almost always, there will be a clause which circumvents the biblical law, written near the beginning of yesterday’s Torah reading, which grants a firstborn male a double portion of the inheritance.

While this practice appears both common and beneficial, what are we to think, from a religious perspective, of a biblical law which is treated, for all practical intents and purposes, as a nuisance which needs to be avoided?

A whole two chapters of Judaism Reclaimed are dedicated to contrasting inexplicable chukkim – divine decrees which are usually unique to Judaism – and apparently widespread “mefursam” moral-based laws which lie at the heart of any civilised society. An important consequence of how a law is categorised, I attempt to show, is the likely rabbinic approach to construing and constraining its details.

When dealing with moral mitzvot such as prohibitions against murder and theft, the Talmud typically emphasises the importance of loyalty to the spirit of the law and is highly critical of proposed loopholes and fictions. In its treatment of inexplicable decrees, by contrast, such schemes are not only tolerated but actively encouraged.

One Mishna, for example, demands “How can the law of the firstborn [animals] be evaded?”. Another opens with the teaching that “People may act with cunning with regard to the Second Tithe”). After examining many examples, it emerges that the harder it is to fathom the reason for a law, the less one can object that a proposed loophole is in breach of its spirit – whatever that spirit may be.

One particularly interesting discussion relates to laws which might once have been regarded as “mefursam” or “mishpat” but are no longer widely regarded to belong to this category. Judaism Reclaimed debates whether the halachic categorisation of biblical sins such as homosexuality might now be recategorised as an inexplicable chok rather than the mefursam moral law that once considered it to be. There could be significant implications as to the propriety of any halachic loopholes and attitudes towards homosexual relationships within Jewish communities.

It occurred to me yesterday that the law of the firstborn may also fit this pattern. In the ancient world, the firstborn male fulfilled an important role in running the household and bore far greater familial responsibility than his siblings did. In such a reality, granting him a double portion of inheritance might be regarded as morally justifiable and correct.

As societies changed and the firstborn lost his outsized responsibility, the biblical law of course remained applicable. But could it now be seen as a chok rather than mishpat? To represent a more symbolic idea rather than embodying a practical moral principles? If that is true then we can understand why circumventing it in practice is not regarded as objectionable – unlike, for example, the severe Talmudic criticism of those who use loopholes to circumvent their charitable obligations to the poor.

Such loopholes might even have some Talmudic precedence. While daughters do not inherit alongside their brothers under biblical law, it is clear from Talmudic passages in Ketubot that daughters received a dowry from the estate in accordance with what it is assessed that the father would have granted them (or 1/10th of his possessions according to some opinions). The Gemara on Ketubot 52b explicitly regards this as a rabbinic amendment of the biblical law which grants inheritance to sons ahead of daughters.

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How can a rabbinic ruling be binding in a post-Sanhedrin era?

Yesterday’s Torah reading contained a passage of fundamental importance to the notion of rabbinic law: that of the Rebellious Elder. We read of how, when a difficult legal question of any kind arises, it is to be sent to the judges present at the Mikdash whose ruling is then considered strictly binding.

Relatively few of the rabbinic laws, interpretations and decrees which are observed today, however, can be knowingly traced back to a Court seated in its Chambers of Hewn Stone – its Mikdash headquarters. Most of our Halachot reach us through the Mishnah and Talmud which were compiled by gatherings of sages long after the Sanhedrin had departed from its scripturally envisaged location.

So what exactly are the required qualifications of a Court or gathering in order to make its rulings halachically binding? This is a question that both Judaism Reclaimed and Talmud Reclaimed grapple with.

While it may seem obvious to us today that rulings of the sages can bind us even when the Sanhedrin has been exiled – or even ceased to function – this is not entirely evident from the Torah’s text and may once have been a matter of dispute. In the famed episode of the oven of Achnai, Rabbi Eliezer refused to accept the majority ruling of his colleagues, instead calling successfully for miraculous confirmation of his lone opinion. Commenting on Rabbi Eliezer’s position Ramban states remarkably that, had such an episode transpired at a time when the Sanhedrin was seated in its Chamber of Hewn Stone, Rabbi Eliezer himself could have been tried as a Rebellious Elder! Was Rabbi Eliezer essentially challenging the notion that a Sanhedrin in exile could issue authoritative rulings?

The settled position of Jewish tradition has granted Sanhedrins such authority even when they are not located in their scripturally-ordained Mikdash chambers. Presumably, their location is understood to represent an ideal rather than a mandatory condition. Such a suggestion might draw support from the group of 70 sages established by Moshe in the desert (and which likely presided also in the years immediately following entry into the Land) which lacked any formal chambers. It also seems likely that the Sanhedrin of the Hasmoneans – sometimes based outside Jerusalem – and perhaps the Men of the Great Assembly issued binding rulings from alternative locations.

As well as the Court’s location being forgone as a critical requirement, we see that its priestly character was also viewed as an ideal which could be set aside rather than a strict requirement. While the Torah states (Devarim 17:9):

“And you shall come to the Levitic kohanim and to the judge who will be in those days, and you shall inquire, and they will tell you the words of judgment.”

Rambam confirms the rabbinic position (Hil. Sanhedrin 2:2) that while it is a mitzvah for there to be Priests and Levites present on the Court, “but if appropriate ones are not found, it is permissible for all the judges to be Israelites”.

By the time we arrive at the Mishnah and Talmud, the criteria for binding and authoritative rulings are again applied more loosely. The Court of Rabbi Yehuda HaNasi was not a formal Sanhedrin. Yet it was unanimously deemed authoritative in that it included all of the nation’s greatest sages, who voted on and established laws which were considered to be binding.

What might be the basis for this?

According to Rabbi Yosef Karo in his Kessef Mishneh commentary, this binding status arises from some kind of collective acceptance of the laws legislated by the Mishnah. A process which was apparently repeated at the sealing of the Talmudic era thereby imbuing its conclusions with binding authority. But how was such an acceptance reached and on what basis could it be supported in the Torah and transmitted tradition.

Rav Elchanan Wasserman and Rabbi Jose Faur opt for an alternative suggestion – one which seems to have basis in the Epistle of Sherira Gaon. According to Rav Elchanan, the fundamental feature of a Sanhedrin which lends it legal importance is that embodies “National Rabbinic Authority”. Such a status can be achieved through a formal Sanhedrin body, whose rulings are binding. But this is not the only way. If a gathering of sages is unanimously approved by all of Israel, this can also grant it Sanhedrin-type status.

Such wide approval appears to have been achieved by Rabbi Yehuda HaNasi’s Yeshiva which voted the Mishnah into Jewish law. Similarly, writes Rav Sherirah Gaon, the rulings of the Sura yeshiva of Ravina and Rav Ashi assumed binding authority due to the fact that all other Babylonian academies subordinated themselves to it. As the Gemara itself notes, “there was not found Torah and greatness in one place” from the time of Rabbi Yehuda HaNasi until Rav Ashi. Therefore what preceded Rav Ashi “undone” but what Rav Ashi ruled upon would remain permanent.

The unclear factor in all of this is the status of the Yerushalmi and the acquiescence of the community in the Land of Israel. While it is known that the Jews in Israel were suffering severe persecution which led many of them to immigrate to Bavel (including many notable sages) – were there any remaining Yeshivot? Did these Yeshivot, assuming they existed, also accept the authority of Ravina and Rav Ashi? We certainly know of disputes between Bavli and Yerushalmi Geonim centuries later: do these reflect a gulf which can be traced all the way back to the sealing of the Talmud or was it prompted by a community of returning Israelites who sought to resurrect the old Yerushalmi practices and rulings?

And what of the status of the Yerushalmi? We don’t hear of any claim that it gained unanimous acceptance. There was a Sanhedrin (albeit not very active) still functioning in the Land of Israel at the time – perhaps that Sanhedrin is what granted the Yerushalmi its authority. Assuming, that is, that the Yerushalmi bears authoritative status.

The position of the Rambam and Rif is that the Yerushalmi does indeed possess binding authority via one of these mechanisms, but that it was superseded by the “Court” of the Bavli. Therefore, when the Bavli rules explicitly against the Yerushalmi its law is followed. But in areas where the Bavli is either silent or deemed to be insufficiently clear, the ruling of the Yerushalmi remains binding and authoritative.

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