Does the Birthright Law Apply to Reuben? What about Ishmael?

For a general overview of ANE legal materials, see Isaac Mendelsohn, “On the Preferential Status of the Eldest Son,” BASOR 156 (1959): 38-40. The practice can be seen at Nuzi (HSS 5 7, HSS 5 60, HSS 5 67), Mari (G. Boyer, Archives royales de Mari VIII: Textes juridiques et administratifs, 1957 no. 1), Nippur (Beno Landsberger, Materialien zum Sumerischen Lexikon: die Serie ana ittišu  vol I, vi, 1-8), Larsa (L. Matouš, “Le contracts de partage de Larsa . . . ,” Archiv orientálni SVII, Pt. 2 [1949], 142-73), Alalakh (Wiseman, The Alalakh Tablets, 1953 no. 92), and in the Middle Assyrian Laws B 1.

Jeffrey Tigay, The JPS Torah Commentary: Deuteronomy(Philadelphia: Jewish Publication Society, 1996), 196.

This term appears in Zechariah 13:8 as an idiom for two-thirds. Martin Noth applies this meaning to all places the term appears in the Bible; Martin Noth, Die Ursprünge des alten Israel im Lichte neuer Quellen(Köln: Westdeutscher Verlag, 1961), 19–20. However, as Davies and Pressler argue, the term in Deut 17:21 probably means double portion. See, Carolyn Pressler, The View of Women Found in the Deuteronomic Family Laws (BZAW 216; Berlin: Walter de Gruyter, 1993), 15 n. 18; Eryl Davies, “The Meaning of pî šәnaîm in Deuteronomy XXI 17,” VT 36.6 (1986): 341–347. This is in keeping with the meaning of the phrase in 2 Kings 2:9, where Elisha gets a double portion (pî šәnaîm) of Elijah’s spirit, in which context “two thirds” would make little sense.

For a discussion, see Frederick Greenspahn, When Brothers Dwell Together: The Preeminence of the Younger Sibling in the Hebrew Bible(New York: Oxford University Press, 1994), 16–19.

The term is more specific than polygamy, which just means “multiple marriages” and could, in theory refer either to polygyny (many wives) or polyandry (many husbands).

The word שנוּאה (śәnûʾāh) literally means “hated” but likely carries the connotation of “spurned, disliked, rejected, unloved,” rather than “hated” in this context. Speiser draws attention to Genesis 25:27 and the Akkadianzāru(m) “which has the additional nuance of ‘renounce’,” (Ephraim A. Speiser, Genesis, Anchor Bible Commentary 1 [Garden City, NY: Doubleday, 1964], 230).

I thank the TABS editors for helping me find these traditional commentaries to round out the piece.

The term here is unusual, and some commentators have suggested it refers to Joseph receiving the city of Shechem.

See, for example, the source division in Zev Farber, “Jacob’s Multiple Death Scenes,” TheTorah.com (2015), in which he attributes the adoption scene to P and the extra portion one to E.

ואני – באותה הארץ, נתתי לך – חלק אחד יותר על אחיך, שמנשה ואפרים כראובן ושמעון יהיו לי לקחת שני חלקים בארץ,

And I, in that land, am giving you an extra portion beyond that of your brothers, since Manasseh and Ephraim will be like Reuben and Simeon for me, taking two portions of the land.

In addition to these two contexts, it is used only once more, in Ps 78:51.

See, e.g., Calum M. Carmichael, The Laws of Deuteronomy (Ithaca: Cornell University Press, 1974); ibid., Law and Narrative in the Bible: The Evidence of the Deuteronomic Laws and the Decalogue (Ithaca: Cornell University Press, 1985); ibid., The Origins of Biblical Law: The Decalogues and the Book of the Covenant (Ithaca: Cornell University Press, 1992);ibid., Illuminating Leviticus: A Study of Its Laws and Institutions in the Light of Biblical Narratives (Baltimore: Johns Hopkins Press, 2006). With respect to Deuteronomy, Carmichael notes that its laws often rework the earlier laws found in the Book of the Covenant (Exod 20:19–23:33) “in an eclectic fashion”; Calum M. Carmichael, Women, Law, and the Genesis Traditions (Edinburgh: Edinburgh University Press, 1979), 4.

Carmichael, Law and Narrative in the Bible, 142–145.

Calum Carmichael, “The Origin of the Scapegoat Ritual,” Vetus Testamentum 50.2 (2000): 169.

See, e.g., Bernard Levinson, “Calum M. Carmichael’s Approach to the Laws of Deuteronomy,” HTR 83.3 (1990): 227-257; Jeffrey Stackert, “Review of Calum Carmichael, Illuminating Leviticus,” Journal of Religion88 (2008): 96-98; William Gilders, “Review of Calum Carmichael, Illuminating Leviticus,”  JHS 8 (2010).

Source critical scholars have suggested that the Hagar stories are also doublets, with Genesis 16 from J and Genesis 21 E, which would explain, among many other things, the difference in terminology regarding Hagar.

Naomi Steinberg, Kinship and Marriage in Genesis: A Household Economics Perspective (Minneapolis: Fortress Press, 1993), 35–86.

When Hagar becomes pregnant, she becomes haughty, and in turn Sarah feels threatened by Hagar becoming her equal. The highest status for a woman was to be the mother of the husband’s heir, and Hagar is on her way to achieving this position. (Steinberg, Kinship and Marriage, 78.) Sarah’s fears about her own status and that of her son are thus easily understandable. Even so, some scholars point to the Laws of Hammurabi(LH §146) as a possible rationale for Sarah’s reaction to Hagar’s putting on airs:

If a man takes a wife and she gives this man a maidservant as wife and she bears him children, and then this maid assumes equality with the wife: because she has borne him children her master shall not sell her for money, but he may keep her as a slave, reckoning her among the maidservants.

See, inter alia, Philip Drey, “The Role of Hagar in Genesis 16,” Andrews University Seminary Studies 40.2 (2002): 179-195 [191]; Victor Matthews and Don Benjamin, Old Testament Parallels: Laws and Stories from the Ancient Near East (New York: Paulist Press, 2006), 105; Tikva Frymer Kensky, Reading the Women of the Bible (New York: Schocken Books, 2002), 227–228. However, other than the fact that the maidservant becomes a wife, the law has little connection to our story. First, the law is about a completely different issue; it protects a maidservant who bore the master children from being sold as a common slave. The Hagar story never discusses the possibility of selling her at all, though it does touch on throwing her out. Second, the wife in LH §146 is a nadītu, a specific class of women dedicated as priestesses. Such women could marry, but as part of their position they were not allowed to have children (CAD N, 63–64). To ensure her husband had an heir, the nadītu could give her maidservant to the husband as a surrogate mother. Sarah was not a nadītu-priestess. She is a barren woman who wants a surrogate son. Whereas a nadītu acts in her husband’s interest, it seems Sarah was acting in her own self-interest because she had no one to pass her dowry onto (Drey, “The Role of Hagar in Genesis 16”). Finally, Hagar was with child when she put on airs, not the mother of a child. With an infant mortality rate of close to fifty percent, there was no assurance that Hagar’s pregnancy would result in a viable heir. Given all these differences, I do not think the comparison with the Hammurabi Law here is all that generative.

Steinberg, Kinship and Marriage, 78.

The term גָּרֵשׁ can be understood as “divorce.” See Lev 21:7, 14 and Ezek 44.:22.

Here the point is that Sarah does not acknowledge Hagar as a wife, she wants her to be a slave. This is the strongest connection the scholars who invoke LH §146 make, since it states, “he may keep her as a slave, reckoning her among the maidservants.” But in the biblical text, Hagar has obtained the status of wife (isha), not maidservant; she cannot be demoted, whereas in LH, the woman is not promoted to a wife (aššatum) but starts as a slave-woman (amtam) and ends as a slave-woman (amtam). The Akkadian word is cognate to the Hebrew amah, used in Gen 21. Here it may be worth noting that documentary scholars, who separate the J story in Genesis 16 from the E story in Genesis 21, could argue that in E, Hagar is just a maidservant, and thus her son would not inherit legally, unless Abraham decides to increase his status. LH §170 rules that if a man verbally acknowledged his children by a maidservant, these children would share the inheritance with the children of the primary wife. It is possible that Israelite society had a similar practice. If so, perhaps in the original version of the E story, this is what Sarah was worried about.

Robert Alter, Genesis (New York: Norton 1996), 98.

 Midrash Tanchuma suggests Ishmael brought home idols to worship and play with (Shemot 1:2), but this is certainly not the simple meaning of the text.

Radak and Seforno both have Ishmael dishonoring Abraham. Seforno, for his part, continues his negative interpretation of the mother-son pair stating Ishmael was uttering wicked gossip that Sarah became pregnant, not by Abraham, but by Avimelech. Radak’s comment has Ishmael making fun of Isaac for having such an old father.

See Joseph Fleischman, (“The Expulsion of Ishmael,” Bar Ilan University’s Parashat HaShavuah’s Study Center (1999).

For a different analysis of this text, see Rachel Adelman, “The Expulsion of Ishmael: Who Is Being Tried?” TheTorah.com (2016).

Those who are unsatisfied with divine fiat here and wish to find legal precedent for this action have pointed to Lipit-Ishtar §25, which law says that if a man’s slave bears him children, but he granted the slave and her children freedom, then the children shall not divide the estate with the children of the man’s wife. But this doesn’t really work since, according to the story, Hagar is Sarah’s slave but Abraham’s wife.

Alexander here seems to be referencing the rabbinic principle that if a father gives everything to one child and nothing to any other children, the deathbed gift is void, i.e., he does not count as a legator. The use of the Latin term legator (from lēgāre meaning “to bequeath”) is unusual; see Albeck’s commentary ad loc. for discussion.

If Carmichael is correct that laws use earlier narratives as inspiration for their hypotheticals, then Deuteronomy 21:15–17 should certainly look to this narrative where the firstborn Ishmael, the son of a less favored wife, got the short end of the stick. Yet, if this is correct, it actually poses a problem for Carmichael, since in his theory of how the Deuteronomic collection is organized, the question of whether the Rachel-Leah narrative or the Sarah-Hagar narrative poses “the first occurrence of a problem in the nation’s history” is important in determining the order of the laws in the collection.

For examples of how Deuteronomy supports the family structure and protects weaker members of the family and society, see Pressler, The View of Women, 102–05, 113–115.