On our daf, we observe the great respect held for the concept of inheritance, particularly in regard to the firstborn. While generally, a person may stipulate whatever he pleases concerning his property, the restrictions are stricter regarding the firstborn’s inheritance. This is evident in the sugyos of the previous and upcoming dappim. For example, a father has the special power to identify his firstborn, waiving ordinary evidentiary requirements. Additionally, on daf 133b, the Gemara states: “One who wrote a document granting his property to others as a gift and left his sons with nothing—what he did is done, i.e., it takes effect; but the Sages are displeased with him.” The Ramban (Hasagos HaRamban on Sefer HaMitzvos, Negative Commandments 12) even maintains that it is a Biblical prohibition to usurp the inheritance rights of the firstborn.

This raises a troubling question. According to our tradition, aside from Yaakov asserting the firstborn rights over Esav—which we discussed in yesterday’s blog post, Psychology of the Daf, Bava Basra 126—Yaakov also took the rights of the firstborn from Reuven and gave them to Yosef. We learn this from the verse (Bereishis 48:22): “And now, I assign to you one portion more than to your brothers, which I wrested from the Amorites with my sword and bow,” as discussed in Bava Basra 123a. This action becomes even more disturbing when we consider the plain reading of the verses in Devarim 21:15-17, which describe the rights of the firstborn:

“If a man has two wives, one loved and the other unloved, and both the loved and the unloved have borne him sons, but the firstborn is the son of the unloved one—  

when he wills his property to his sons, he may not treat the son of the loved one as the firstborn in disregard of the son of the unloved, who is older.  

Instead, he must acknowledge the firstborn, the son of the unloved one, by giving him a double portion of all he possesses; since he is the first fruit of his vigor, the birthright is his due.”

Yaakov’s situation mirrors this exactly. His two wives are depicted as the "loved one", Rachel (Bereishis 29:30), and the "hated one", Leah (Bereishis 29:31), and yet Yaakov favored Yosef, the son of the loved wife, over Reuven, the son of the unloved wife!

The resolution to this apparent contradiction lies in an idea regarding how the Patriarchs fulfilled the essence of the Torah intuitively, even before it was formally given and binding. While the halacha may have been different at that time, they acted in accordance with a deeper understanding of the Torah’s spiritual essence. We know from tradition that the Torah has multiple aspects—70 or 48, and 49 (Sefer HaChinuch 95, Eiruvin 13b, and Ritva, respectively)—each reflecting a potential outcome or rationale. The practical halacha that we follow today may differ, but an alternate legal reasoning existed in Yaakov’s time. 

In the case of Yaakov giving Yosef preference over Reuven, aside from Reuven’s punishment for interfering with his father’s bedroom affairs, Yaakov may have relied on a technical halachic pretext. The Gemara (Bava Basra 123a), which discusses Reuven’s punishment, also notes that Yosef had some claim to the status of the firstborn, as Yaakov was initially supposed to marry Rachel instead of Leah.

This concept of an alternate halachic reality helps us understand this episode. Whenever there exists the potential for an alternate reality, an alternate halacha can also manifest. We find this idea of alternate realities in various places in rabbinic literature. For example, Rashi (Bereishis 1:1) discusses how the world was initially meant to operate through middas hadin (strict justice without divine mercy). The Gemara (Pesachim 54a) debates the date the world was to be created, and whether humans would be male and female or hermaphroditic (Kesuvos 8a). Even more astonishing is the idea that Hashem built and destroyed multiple worlds before arriving at our final iteration (Koheles Rabbah 3:11). In this context, Yaakov could claim that Yosef was the rightful firstborn, supported by Reuven’s misdeed and an alternate halachic dimension.

Once we uncover this idea, we may also resolve the question from yesterday’s blog post, Psychology of the Daf, Bava Basra 126. How could Yaakov’s argument, that he was conceived first, be valid? Since Esav was undeserving, and one could argue that the rights of the firstborn are determined by conception rather than the moment of birth, Yaakov was claiming his rightful place. These ideas are also supported by the Chasam Sofer Al HaTorah (Shemos 69).

(Note to non-nerds: Don’t read past this point, as you may find it boring.) Given the Jewish predilection for alternate realities, it’s no wonder that many of the greatest science fiction writers had a Jewish education. Notably, Isaac Asimov, Robert Silverberg, Harlan Ellison, and Gene Roddenberry, and Shimon Bar-David aka Shimon Wincelman (the last three having written numerous Star Trek screenplays, and Shimon who was somewhat observant) incorporated Jewish midrashic and moralistic ideas into their works. Themes of immortality, messianic future, the balance between logic and emotions, and the struggle between good and evil are common in their stories.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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