Parshat Ki Tetzei is teeming with mitzvot, many of which are concerned with family and relationships. One such mitzvah deals with prioritizing inheritance:
If a man has two wives, one beloved, and another hated, and they have borne him children, both the beloved and the hated; and if the firstborn son is hers who was hated, then it shall be, when he bequeaths his possessions to his sons, he may not favor the son of the beloved [wife] before the son of the hated [wife] who is indeed the firstborn. (Devarim 21:15-16)
The verse that immediately follows seems somewhat uncharacteristic, as it provides a rationale for this commandment:
But he shall acknowledge the son of the hated as the firstborn, by giving him a double portion of all that he has, for he is the beginning of his strength; the right of the firstborn is his. (Devarim 21:17)
A situation of more than one spouse is far from ideal;(1) when a man actually hates one of his wives, the situation is far more problematic.(2) Yet the Torah does not idealize or whitewash; it deals with situations which could arise,(3) and legislates accordingly.
The law itself dictates that a man who has two wives cannot show favor to the younger son birthed by the loved wife; he must give the double portion, which is the right of the first born, to the oldest, i.e., the son of the scorned, hated wife. It is not hard to imagine such a situation arising in a world where polygamy was permissible. The Torah legislates proper conduct, presumably to help avoid unnecessary disputes.
In fact, the Torah itself recounts one such scenario; Yaakov displaced his first born son, Reuven, the son of his wife Leah, in favor of Yosef, the son of his beloved Rachel. Placed in this context, we are left with an uneasy sense of dissonance between the behavior of one of our patriarchs, one of our spiritual heroes, and the ethical and legal bar set by the Torah. To be sure, Yaakov lived long before the laws set down in Devarim were binding; nonetheless, whenever patriarchal conduct deviates from Divine doctrine, the deed deserves closer attention.(4)
There are many among our sages who say that the patriarchs observed all the laws of the Torah before they were given at Sinai.(5) This assertion is complicated by other aspects of Yaakov's life, most notably the fact that he married two sisters. There are other scholars who suggest various solutions to the quandary presented by Yaakov's life story.(6)
We may say that the validity of Yaakov's marriage to Leah can be called into question; after all, both times Yaakov wed, he thought it was to Rachel. If there was ever a case of mekakh ta'ut (false pretenses which invalidate an agreement) it would be this marriage, when the bride was switched for an imposter.(7) This circumstance may be sufficient basis for excluding Yaakov's case from this general principle of Torah law, though it should be noted that despite Yaakov's protests against Lavan's unethical behavior, he does not dissolve the marriage. He stays with Leah for the duration, and together they raise a large family.(8) If we assume that there was ultimately a relationship of husband and wife between Yaakov and Leah, Leah's status as a "hated" wife is not at all clear cut, despite the Torah's testimony:
And when God saw that Leah was hated, he opened her womb; but Rachel was barren... And she conceived again, and bore a son; and said, 'Because God has heard that I was hated, he has therefore given me this son also; and she called his name Shimon. (Bereishit 29:31-33)
Two different verses speak of Leah as "hated"; one is from God's perspective, as it were, and the other from Leah's perspective. There is one perspective missing: Yaakov's perspective. The text never does say that Yaakov hated her; although Leah may have felt that this was so, the text seems to say that Yaakov loved her - but not as much as he loved Rachel, and hence her feelings of being hated.(9)
And he went in also to Rachel, and he loved also Rachel, more than Leah, and served with him yet seven other years. (Bereishit 29:30)
Other careful readers of the text have come to the conclusion that Leah was not hated by Yaakov;(10) perhaps she was hated by others,(11) perhaps she even hated herself for her deceit.(12) In any case, the rejection of Reuven may have had nothing to do with Yaakov's feelings for Leah: Reuven may have given Yaakov ample reason to favor his other sons, as is evidenced by Yaakov's scathing attack:
Reuven, you are my firstborn, my strength and the beginning of my manhood, first in rank and first in power. Unstable as water, you shall no longer be first; because you moved your father's beds, committing a profane act; he moved my bed! (Bereishit 49:3-4)
On his deathbed, Yaakov refers to an incident that had taken place years earlier - an incident that, if taken literally, casts a serious shadow on Reuven's personality:(13)
And it came to pass, when Yisrael lived in that land, that Reuven went and lay with Bilhah his father's concubine; and Yisrael heard it. Now the sons of Yaakov were twelve. (Bereishit 35:22)
The Baalei Hatosfot and the Seforno both take the approach that Reuven, who had defiled his father's bed, proved unworthy to follow in his father's footsteps and be his eventual successor. We may then say that Yaakov did pass over the son of the hated wife in favor of the son of the favored wife. Rather, Yaakov denied the birthright and all it implies from the son who was unstable, a son who had failed, whose behavior was outrageous.(14)
The Seforno brings evidence for this approach from a verse in Divrei Hayamim:(15)
Now the sons of Reuven the firstborn of Yisrael - for he was the firstborn; but, since he defiled his father's bed, his birthright was given to the sons of Yosef the son of Yisrael, so that the genealogy is not to be considered after the birthright. (Divrei Hayamim I, 5:1)
The cause of Reuven's rejection as first born was his own behavior,(16) not hatred, real or imagined, directed toward Leah.
There is, however, another way to understand the relationship between Yaakov, Leah and Reuven and the law of the displaced first born. As we noted at the outset, the Torah uncharacteristically provides a reason for this law:
...for he is the beginning of his manhood; the right of the firstborn is his. (Devarim 21:17)
This phraseology is strikingly similar to the phrase used by Yaakov when referring to Reuven:
Reuven, you are my firstborn, my strength and the beginning of my manhood ... (Bereishit 49:3)
It sounds as if the Torah is using this phraseology precisely because it is related to Yaakov and Reuven. In fact, the midrash understands this as more than a fortuitous turn of phrase: Yaakov's family is the prototypical example of the situation described by the Torah in this prohibition:
Another opinion: 'And He saw that Leah was hated.' This is what the Torah said, "If a man has two wives" [Devarim 21:15]: this refers to Yaakov, as it is written, 'And Yaakov was an ish tam' [Bereishit 25:27]; 'two wives' [Devarim 21:15] refers to Leah and Rachel; 'one beloved' refers to Rachel, as it says 'and he loved also Rachel' [Bereishit 29:30]; 'and one hated' [Devarim 21:15] refers to Leah, as it is written 'And God saw that Leah was hated' [Bereishit 29:31]; 'and they both bore him children, the beloved and the hated' [Devarim 21:15]; both bore him children, and whatever Leah had, Rachel had: Leah's descendents were kings, and so were Rachel's; Leah's descendents were prophets and Rachel's descendents were prophets, Leah's descendents were judges and Rachel's descendents were judges, thus it is written, 'and they bore him children.' [Devarim 21:15] 'Then it shall be that on the day he bequeaths to his sons' [Devarim 21:16]: At the time he prepared to take leave of this world, 'Yaakov called to his sons' [Bereishit 49:1]. 'He may not favor the son of the beloved [wife]' [Devarim 21:17], Yosef. Why? Because he must favor the son of the hated [wife] [Devarim 21:17]. This is Reuven, as it says, 'Reuven, you are my first born' [Bereishit 49:3], even though he scorned him by saying, 'Unstable as water, you shall no longer be first.' [Bereishit 49:4] (Midrash Tanchuma, Buber Edition, Vayetzei 13)
In other circumstances, the midrash does not hesitate to criticize the behavior of the patriarchs - especially Yaakov's parenting skills and the favoritism shown to Yosef (which may be the flip side of this same coin, the rejection of Reuven):
"...and he made him a coat of many colors (ketonet passim)." Resh Lakish said in the name of R. Eleazar b. Azariah: A man must not make a distinction among his children, for on account of the coat of many colors which our ancestor Yaakov made for Joseph, "they hated him" (Midrash Rabbah Bereishit 84:8)
The jealousy caused by the favoritism shown to Yosef had reverberations throughout Jewish history. Perhaps the parallel language used in Yaakov's deathbed message and in the law of inheritance in Parshat Ki Tetzei is the Torah's way of pointing to the relationship between this halacha and the narrative in Bereishit: Yaakov's family life was the impetus for the creation of this law, just as Yaakov's wrestling with an anonymous stranger and his resultant injury is related to the law of gid hanashe.(17) The rejection of the son of the "hated" wife thus becomes a Torah law for all time, for all families, and the imprint of Yaakov, Reuven and Leah lies just below the surface.
1. See Echoes of Eden, Parshat Noach: Naama.http://arikahn.blogspot.com/2009/10/parshat-noach-5770.html
2. See http://arikahn.blogspot.com/2010/02/parshat-mishpatim-5770-soul-matters.html
3. The rabbis see this case of two wives as an outgrowth of the case of a captive wife which is discussed in the preceding verses. The 'captive wife' is a relationship that the rabbis allow, although begrudgingly, in what appears to be a concession to the evil inclination. See Rashi, Devarim 21:11, based on Talmud Bavli Kiddushin 21b.
4. I have raised this question elsewhere; see, for example, Echoes of Eden, Parshat Vayechi, http://arikahn.blogspot.com/2009/12/parshat-vaychi-5770-father-and-son.html . However, the main focus of that essay was the elevation of Yosef, not the displacement of Reuven or the behavior of Yaakov.
5. For more on this idea, see Echoes of Eden, Lekh Lekha, orhttp://arikahn.blogspot.com/2008/10/lech-lcha-5769.html
6. See the comments of the Ohr Hachaim, Bereishit 49.
7. See Rav Pinchas Halevi Horowitz, Panim Yafot on the Torah, Bereishit 29:33.
8. There is an opinion found in the midrash that Yaakov was going to divorce Leah for her deception, and it was only because of the pregnancy and subsequent children that he was dissuaded from doing so. See Midrash Rabba Bereishit 71:2."R. Judah b. R. Simon and R. Hanan said in the name of R. Shmuel b. R. Yitzchak: When the Patriarch Yaakov saw how Leah deceived him by pretending to be her sister, he determined to divorce her. But as soon as the Holy One, blessed be He, visited her with children he exclaimed, ' Shall I divorce the mother of these children!' Eventually he gave thanks for her, as it says, 'And Yisrael bowed down [in thanksgiving] for the bed's head.' (Bereishit 47: 31): who was the head of our father Yaakov's bed? Surely Leah.
9. God "heard" how she felt, which does not necessarily reflect her status in absolute terms, though any woman who feels that her husband loves someone else more may very well have feelings of rejection, and feel hatred. In certain relationships, being second is as good as being last. See Siftei Kohen, Bamidbar 25:6.
10. See Pardes Yosef, Bereishit 29:31. Among the suggestions he puts forward is that Leah made herself unattractive and "hated" to avoid any possible "attention" on the part of Esav.
11. See Bereishit Rabbah 71:2. "All hated [i.e. abused] her: sea-travelers abused her, land-travelers abused her, and even the women behind the beams abused her, saying: 'This Leah leads a double life: she pretends to be righteous, yet is not so, for if she were righteous, would she have deceived her sister!'"
12. See Rav Simcha Bunim miPeshischa, Arugot haBosem Parshat Toldot, who states that Leah loathed herself for having deceived her sister, and was convinced she was hated in heaven as well.
13. While there is an opinion in the Talmud (Talmud Bavli Shabbat 55b) that this should not be taken literally, other rabbinic sources and commentaries often do understand Reuven's behavior in a literal sense - namely that he bedded his father's concubine. For more on this episode, see my essay on Reuven: http://www.rabbiarikahn.com/index.php?option=com_content&view=article&id=69:reuven&catid=41:vayishlach&Itemid=56
14. See Baalei Hatosfot and Seforno on Devarim 21:16.
15. See the comments of the Mezudat David, ad loc.
16. See Talmud Bavli Baba Batra 123a, where Yaakov's behavior is justified by reason of Reuven's transgression. "R. Helbo enquired of R. Shmuel b. Nahmani: What [reason] did Yaakov see for taking away the birthright from Reuven and giving it to Yosef? - What did he see? [Surely] it is written, Forasmuch as he defiled his father's bed! But, [this is the question]: What [reason] did he see for giving it to Yosef?
17. The Rambam, in his Commentary on Mishna Hullin 7:6, insists that all Torah law emanates from Sinai, and the prohibition of gid hanashe stems not from the wound suffered by Yaakov, but because God so commanded us at Sinai. On the other hand, the Torah itself (Bereishit 32:33) relates the prohibition of gid hanashe to the narrative and the wound suffered by Yaakov.