Running Commentary on parashat Ki Teitzei, part ii

See part one here. Ki Teitzei continues with the ability, or lack thereof, of the father to change the inheritance of favored or disfavored sons. This section reads (Devarim 21-15-17):

טו  כִּי-תִהְיֶיןָ לְאִישׁ שְׁתֵּי נָשִׁים, הָאַחַת אֲהוּבָה וְהָאַחַת שְׂנוּאָה, וְיָלְדוּ-לוֹ בָנִים, הָאֲהוּבָה וְהַשְּׂנוּאָה; וְהָיָה הַבֵּן הַבְּכֹר, לַשְּׂנִיאָה.	15 If a man have two wives, the one beloved, and the other hated, and they have borne him children, both the beloved and the hated; and if the first-born son be hers that was hated;
טז  וְהָיָה, בְּיוֹם הַנְחִילוֹ אֶת-בָּנָיו, אֵת אֲשֶׁר-יִהְיֶה, לוֹ--לֹא יוּכַל, לְבַכֵּר אֶת-בֶּן-הָאֲהוּבָה, עַל-פְּנֵי בֶן-הַשְּׂנוּאָה, הַבְּכֹר.	16 then it shall be, in the day that he causeth his sons to inherit that which he hath, that he may not make the son of the beloved the first-born before the son of the hated, who is the first-born;
יז  כִּי אֶת-הַבְּכֹר בֶּן-הַשְּׂנוּאָה יַכִּיר, לָתֶת לוֹ פִּי שְׁנַיִם, בְּכֹל אֲשֶׁר-יִמָּצֵא, לוֹ:  כִּי-הוּא רֵאשִׁית אֹנוֹ, לוֹ מִשְׁפַּט הַבְּכֹרָה.  {ס}	17 but he shall acknowledge the first-born, the son of the hated, by giving him a double portion of all that he hath; for he is the first-fruits of his strength, the right of the first-born is his. {S}

The main thrust of this section are contained in the words לֹא יוּכַל. He is not able to effect such a change, on a mere whim or preference, because the laws imposed by society take precedence, such that לוֹ מִשְׁפַּט הַבְּכֹרָה, emphasis on mishpat.

כִּי-תִהְיֶיןָ לְאִישׁ שְׁתֵּי נָשִׁים -- Note that this is not a recommendation. It is ki tihiyeha, if there would be, not that there should be. And the purpose is the set up for deciding the situation. Perhaps even sequential marriage, instead of simultaneous marriage would fit the bill. Yet the Torah does not outlaw multiple wives.

הָאַחַת אֲהוּבָה וְהָאַחַת שְׂנוּאָה -- Not literally hated. These are what Ibn Caspi calls ממאמר המצרף. Comparatively, he loves one more than the other.

The preference is the preference of the mothers, not of the sons, but it carries over to the sons. Think Rachel and Leah. [Perhaps indeed שְׂנוּאָה by Leah is ממאמר המצרף.] Which means that this is not the result of poor conduct by the son.

The Code of Hammurabi has the following:

52  If a man present field, garden or house to his favorite son and write for him a sealed deed, when the brothers divide the property after their father’s death, the favorite son shall take the present which his father gave him and the rest shall be divided equally among all the brothers.  165

53  If a man set his face to disinherit his son and say to the judges, “I will disinherit my son”, the judges shall inquire into his antecedents and if the son have not committed a crime sufficiently grave to cut him off from being recognized as a son, the father may not disinherit him.  168

Thus, he is allowed to allocate to a favored son over and above the general rules of inheritance. And entire disinheritance is not allowed at the father's whim. It must come before judges.

The law under discussion seems to fall somewhere along the spectrum, since the question is one of disinheriting the non-favored son of his extra portion, and not as a result of his personal conduct. Which is why the father is not able.

Did Yaakov not favor Yosef over Reuven, and indeed give Yosef the double-portion, namely true tribes and a Shechem Echad over his brothers? In answer, see Vaychi:
3. Reuben, you are my firstborn, my strength and the first of my might. [You should have been] superior in rank and superior in power.ג. רְאוּבֵן בְּכֹרִי אַתָּה כֹּחִי וְרֵאשִׁית אוֹנִי יֶתֶר שְׂאֵת וְיֶתֶר עָז:4. [You have] the restlessness of water; [therefore,] you shall not have superiority, for you ascended upon your father's couch; then you profaned [Him Who] ascended upon my bed.ד. פַּחַז כַּמַּיִם אַל תּוֹתַר כִּי עָלִיתָ מִשְׁכְּבֵי אָבִיךָ אָז חִלַּלְתָּ יְצוּעִי עָלָה:

More explicitly, meaning not as cryptic, see Divrei Hayamim I, 5:1-2:

א  וּבְנֵי רְאוּבֵן בְּכוֹר-יִשְׂרָאֵל, כִּי הוּא הַבְּכוֹר--וּבְחַלְּלוֹ יְצוּעֵי אָבִיו, נִתְּנָה בְּכֹרָתוֹ לִבְנֵי יוֹסֵף בֶּן-יִשְׂרָאֵל; וְלֹא לְהִתְיַחֵשׂ, לַבְּכֹרָה.	1 And the sons of Reuben the first-born of Israel--for he was the first-born; but, forasmuch as he defiled his father's couch, his birthright was given unto the sons of Joseph the son of Israel, yet not so that he was to be reckoned in the genealogy as first-born.
ב  כִּי יְהוּדָה גָּבַר בְּאֶחָיו, וּלְנָגִיד מִמֶּנּוּ; וְהַבְּכֹרָה, לְיוֹסֵף.  {ס}	2 For Judah prevailed above his brethren, and of him came he that is the prince; but the birthright was Joseph's-- {S}

This

To cite myself:

See the Code of Hammurabi, law 158. People translate it in more and less expansive ways. Here are two renderings of it:

158. If a free man has sexual relations with his father's first wife, who is the mother of sons, after the death of his father, that man shall lose his paternal inheritance.

158. If any one be surprised after his father with his chief wife, who has borne children, he shall be driven out of his father's house.

As I understand it, "surprised" means caught in the act, in flagrante delicto, such that there is no room for doubt. "After his father" is all that is said, but it is understood to mean after his father's death. (Otherwise, wouldn't this merit the death penalty?) Note that this is thechief wife, rather than a second wife, a concubine, or a sexual slave. And even there, it is the chief wife who has borne children, such that she retains this status of mother of his father's children after the father's death.

Obviously, this is not 100% parallel to Reuven and Bilhah, but there are remarkable similarities, such that one could envision a local law code covering his case. Reuven was not caught with Bilhah in the act. Rather, וַיִּשְׁמַע יִשְׂרָאֵל, Yisrael heard of it. That should potentially make the penalty less. Yet it was during his father's lifetime, which should make the penalty greater. Yet, this was not with a chief-wife who had borne offspring -- it was a concubine, or a slave given by Rachel to Yaakov for the purpose of procreating. That she is a pilegesh might well lessen the offense, in this pre-Mosaic law.

The end result is that Reuven loses aspects of his inheritance, or if you will, thebechora status of his inheritance over that of his other brothers. A fitting punishment, given local laws.

We thus see that Yaakov Avinu held by the dina d'malchusa.

לָתֶת לוֹ פִּי שְׁנַיִם, בְּכֹל אֲשֶׁר-יִמָּצֵא, לוֹ -- there is some tumult over what this might mean. Thus,

 The Mari and Nuzi texts (though not formal law codes in the sense of the others) describe situations where the firstborn son receives double the share of an adopted son. Finally, the mid first millennium NeoBabylonian laws stipulate that the sons of a first wife share 2/3 of the estate between them, while the sons of a second wife share only 1/3, half as much.

I see no reason not to say like Ibn Ezra, that he counts as if he were two sons.

The royal archives at Mari were found, with a nice parallel:

Dozens of legal tablets were also found, mostly contracts concerning transactions and loans of silver or grain (ARM, 8), revealing that the palace served as a sort of exchange. Of exceptional interest is an adoption contract which ensured the "primogeniture" of the "eldest" (i.e., first adopted) son, stipulating that he receive a double portion of the inheritance; this is in full accord with biblical law (cf. Deut. 21:15–17).

כִּי-הוּא רֵאשִׁית אֹנוֹ-- meaning first of his strength. See Reuven's blessing for the comparison. An interesting use of the idiom here.