We recently read in Parshas Ki Seitzei that if a man has two wives, one loved and the other hated, and both give birth to sons, if the son of the hated wife is born first, he cannot transfer the birthright to the son of the beloved wife. Yet in the parshiyot of the coming weeks, as we begin the annual cycle of Torah readings with Sefer Bereishis, all three of our Patriarchs did exactly that: Avraham elevated Yitzchak over Yishmael, Yitzchak blessed Yaakov over Eisav, and Yaakov skipped over his ten sons by Leah and the handmaids Bilhah and Zilpah to elevate Yosef instead of Reuven.
Granted, there were extenuating circumstances in each case, connected with the respective Matriarchs. Avraham sent away Yishmael and his mother Hagar at the behest of Sarah, who observed Yishmael taunting passersby and recognized that he was growing up to be wicked, and G-d directed Avraham to do as she wanted. Yaakov had Eisav sell him the birthright, ostensibly in exchange for a pottage of lentils, and when Yitzhak was blind in his old age, Rivka deceived him into giving Yaakov the blessing he wanted to give to Eisav. Finally, after Rachel’s death, Reuven moved his father’s bed to his mother Leah’s tent rather than Rachel’s maid Bilhah’s (this is the PG-rated version). Yaakov refrained from rebuking him until he was on his deathbed. But his reaction was to transfer the double portion associated with the birthright to Yosef, which he did by elevating Yosef’s two sons, Menashe and Ephraim, to the same level as Reuven and Shimon.
Furthermore, the respective situations weren’t precisely the same as the commandment. “Unloved” would be a better descriptor here than “hated.” Avraham didn’t hate Hagar; some commentators say he married her again after Sarah’s passing, under her new name of Keturah. Yitzchak sired twins, so he couldn’t have both loved and hated Rivka. And Yaakov respected Leah for her character; he just didn’t love her as he loved Rachel. How, though, can we explain these transfers?
The simplest explanation, taught by Chabad, is that the commandments relayed by Moshe in Devarim weren’t yet in effect in the time of Patriarchs, centuries before the Revelation at Mount Sinai. This explanation has difficulties, however, since other sources tell us that the Patriarchs voluntarily obeyed the mitzvos even though they hadn’t been given formally, albeit with exceptions: Yaakov married two sisters, which was forbidden by a negative commandment. That exception was allowed because the relevant commandment applied only in Eretz Yisrael, which explains why Rachel died after the family crossed the border. So, we’re left with trying to reconcile the Patriarchs’ behavior with the commandments they were supposedly obeying voluntarily, since all the transfers of birthrights occurred within the Land of Israel.
First, concerning Yishmael and Yitzchak, since Hagar remained a servant to Avraham and Sarah, she had the status of a secondary wife, and an insolent one at that, thereby lacking the standing to claim the birthright for her son. This view is reinforced by a verse in Parshas Ki Teitzei (Devarim 24:18), which reads, in part, as translated by Rabbi Jack Abramowitz in his edition of Targum Onkelos: “A man from the sons of Israel shall not take a servant woman for a wife.” The actual transfer of the birthright is initiated by Sarah, who says to Avraham, “The son of that slave woman shall not inherit with my son, with Isaac” (Bereishis 21:10). The Artscroll Chumash adds in a footnote that G-d would not have granted her request if she had been solely motivated by the division of property; rather she thought to protect Yitzchak from the evil influence of Yishmael.
To see how wicked Yishmael was, we refer to the previous verse (21:9): “Sarah saw the son of Hagar the Egyptian…mocking [m’tzochek, also translated as making sport]. In the footnote to that verse, the Chumash notes that Scripture uses this word to refer to the three cardinal sins of idolatry, adultery, and murder. Rashi then asserts that Yishmael had become so thoroughly corrupt and evil that he had to be sent away, and G-d concurs, saying to Avraham: “Whatever Sarah tells you, heed her voice, since through Yitzchak offspring will be considered yours” (Ber. 21:12).
Furthermore, there is a later Ishmaelite challenge to the birthright, brought down in Sanhedrin 91a (as translated on Sefaria.org):
[T]he descendants of Ishmael and the descendants of Keturah came to judgment with the Jewish people before Alexander of Macedon. They said to the Jewish people before Alexander: The land of Canaan is both ours and yours, as it is written: “And these are the generations of Ishmael, son of Abraham, whom Hagar the Egyptian, Sarah’s maidservant, bore unto Abraham” (Genesis 25:12), and it is written: “And these are the generations of Isaac, son of Abraham” (Genesis 25:19). Therefore, the land should be divided between Abraham’s heirs…
Geviha ben Pesisa said to the descendants of Ishmael: From where are you citing proof that the land of Canaan belongs to both you and the Jewish people? They said to him: From the Torah. Geviha ben Pesisa said to them: I too will cite proof to you only from the Torah, as it is stated: “And Abraham gave all that he had to Isaac. But to the sons of the concubines that Abraham had, Abraham gave gifts, and he sent them away from his son, while he yet lived, eastward, to the east country (Genesis 25:5-6).
In other words, by giving the sons of the concubines gifts, Avraham fulfilled the letter of the law and was free to give most of the inheritance to his chosen son, Yitzchak.
Second, Eisav and Yaakov were born almost simultaneously, with Yaakov grasping Eisav’s heel (“ekev”), which can imply that he “supplants” Eisav. Thus, we can argue that Yaakov was destined to replace Eisav as having the right of the firstborn, and thus that Rivka’s deceiving Yitzchak, which brought about that result, had Divine sanction.
Moreover, Rashi, as elaborated by Rav Alex Israel at etzion.org, asserts that there were actually two birthrights – the material (a double portion of assets) and the spiritual (kingship and priesthood). Regarding the priesthood, Eisav not only didn’t want the responsibility of offering sacrifices and performing rituals, he was afraid of the potential death penalty for improperly performing the priestly service. Rav Israel also asserts that the bowl of pottage that Yaakov gave Eisav was not payment for the birthright – he used real money for that – but a reminder to Eisav of the tenuous nature of his life as a hunter. Indeed, Eisav felt that he was likely to die young, so he saw selling his birthright for cash as prudent.
Finally, regarding the transfer of the right of the firstborn from Reuven to Yosef, the Stone Chumash in a footnote, citing R’ David Feinstein, states that Reuven’s moving his father’s bed from the tent of Rachel’s handmaid Bilhah to his mother Leah’s tent constituted adultery in the sense of interfering with his father’s marital life, and thereby provided Yaakov with justification for transferring the birthright. To support this view, the 16th-century Italian commentator Ovadiah Sforno wrote, “A man may not remove the birthright from his son because he dislikes one and loves another. But if he does so because the firstborn is wicked, then it is a worthy act to do so, as the Sages said [regarding a father who disinherits his sons in favor of others] ‘If [the son] does not live in a befitting manner, then [the father who disinherits him] will be remembered for the good’ (m. Baba Batra 8:5). And it would appear that this is what Jacob did…”
Alternatively, Rav Yehuda Rock, writing at torah.etzion.org, asserts that Yaakov had the right to reassign the bechora (right of the firstborn) because “Rashi explains homiletically that the connection lies in the fact that in G-d’s blessing to Yaakov, he is told, ‘I shall make of you a community of peoples’; from the seeming redundancy (‘kehal amim’), Yaakov deduced that after this blessing was given to him, another two tribes [amim, plural, which designates a minimum of two] were destined to be added: One was Binyamin, and Yaakov now sees to the addition of the twelfth tribe by dividing Yosef into two tribes. A similar explanation is offered by Ibn Ezra in the name of R. Saadya Gaon.” Moreover, Rashbam holds that since G-d gave Avraham the Land of Canaan as an eternal possession, its status passed from Avraham to Yitzchak to Yaakov, giving him the right to pass on the inheritance as he chose.
Another ingenious proof I saw in a comment on an online forum posits that since Reuven was conceived at a time when Yaakov was deceived by his father-in-law Lavan into believing he was marrying Rachel, not Leah, he expected that firstborn privileges would go to Rachel’s firstborn (Yosef).
Although Reuven was disqualified from all three birthrights, only the double portion moved to Yosef, who is not identified as the firstborn in the family genealogy according to the Book of Chronicles. The other two birthright privileges went to Reuven’s full brothers, the sons of Leah: kingship to Yehuda (Judah), and priesthood to Levi.
Writing at torah.etzion.org, Rabbanit Sharon Rimon goes through a lengthy exposition as to why malchus (kingship) went to Yehuda. She contrasts Yehuda’s leadership in saving Yosef when the brothers sought to kill him with Reuven’s ineffectual attempt at rescue. (We might add that when Tamar confronted Yehuda with the tokens he had left with her after their roadside tryst, he publicly embarrassed himself by admitting that he had fathered Tamar’s twins, thereby saving her from being burned at the stake at the expense of being publicly shamed, which exhibited the leadership quality of accepting responsibility for his actions.)
As for Levi, the birthright priesthood responsibility first devolved to all male firstborns, but when they participated in the sin of the Golden Calf, it was then moved to the Levites, who had refrained from sinning. I found an anonymous online commentary which stated that once Reuven lost the birthright, Hashem determined where it should go, with neither final recipient being direct or immediate.
So now we know that birthright and birth order are not synonymous. As an interesting postscript, while the classical birthright is no longer in force, the concept has shown up in two different arenas: “birthright citizenship” in politics, and “Birthright Israel,” a charity that pays for young Jews to travel to Israel to reconnect with their heritage, a worthy endeavor indeed.