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?
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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