Deuteronomy 21:15-17

Of the right of the Firstborn

If a man have two sons by different wives, one loved and one hated, and his firstborn is the son of the latter, he must not give the firstborn's double portion to the son of the favourite. Not in the direct address nor with any of D's characteristic phrases; possibly therefore a previous law adopted by D, but hardly an ancient one, as it vetoes what was at least the occasional practice in early Israel. Like others it opens by putting a definite case (if there be a man, etc., cp. Deuteronomy 21:18; Deuteronomy 21:22, Deuteronomy 22:2; Deuteronomy 22:6; Deuteronomy 22:13, etc.), it covers this alone, and hence is incomplete. We do not learn, e.g., whether the double portionincluded the family lands (Stade, Gesch. i. 392, and Buhl, Soc. Verhältn. d. Isr.55 n. 2, think not) nor anything as to the children of concubines (cp. E, Genesis 21:10 f.).

That in early Israel the firstborn had special rights, arising probably from the sacredness attached to all firstbirths (see Exodus 13:12), is proved by the term bekorah, birthright(J, Genesis 25:34) as well as by its metaphorical application to Israel (J, Exodus 4:22, cp. Jeremiah 31:9). That the firstborn's portion was a double oneis implied the spiritual use of the phrase, in 2 Kings 2:9 (cp. Zechariah 13:8), Yet these rights were subject to the patria potestasand a firstborn might be disinherited by his father in favour of a younger son, either as in Reuben's case because of misconduct, or as in the succession to David through the influence of a favourite wife (Genesis 49:2 ff., cp. 1 Chronicles 5:1; 1 Kings 1:2; cp. the power of a father's blessing even when obtained by fraud, Genesis 27, or of a grandfather's, Genesis 48). The former case is dealt with more rigorously by the next law of D, the latter is absolutely forbidden in this law. Together the two laws illustrate D's mingled severity and equity. For later legislation on inheritance see P, Numbers 27:1-10; Num. 27:36.

On the rights of inheritance in Assyria and Babylonia see Johns, op. cit.ch. 16. He refers to instances of the division of property among brothers with reservations in favour of other members of the family, and certain powers of allotment by the eldest son, and quotes (p. 42) very early laws by which parents might disinherit their sons. This is also sanctioned, but only upon repeated misconduct, by Ḫammurabi, §§ 168 f., which legalise a father's gifts to a favourite son over and above his equal share with his brothers in his father's estate (§ 165), and equal rights to the children of a bondmaid with those of a wife if the father have acknowledged them as his sons (§ 170). See also §§ 28, 38 f. and a late law (Johns, p. 71) assigning one-third of a man's estate to the children of a second marriage. On the Arab laws of inheritance see W. R. Smith, Kinshipetc., 53 etc.