Tragedy of the firstborn: Legal, social challenges of being the oldest

All of us who are familiar with the Passover story know that the key to the liberation of the Jewish people from slavery was the final plague – the slaying of the firstborn son. This, the final and most devastating plague, was a pivotal moment in the narrative leading to the exodus.

The killing of the firstborn son is seen as the ultimate curse and the final judgment, showing how the firstborn son, despite his honored status, can also be the most vulnerable in times of crisis. The firstborn’s elevated position doesn’t shield him from destruction when greater forces are at play.

Because of the prominent legal and societal positions of the firstborn sons in Egypt, this plague was a direct challenge to Egypt’s gods and Pharaoh’s authority. The tenth plague struck at the heart of Egypt’s identity and economy, since the firstborn sons were seen as the natural leaders and central to the continuity of family and society.

It is fascinating to note that until this pivotal event, the powers in Egypt were unmoved and had no intention of letting the Jews go. Like many others through the centuries who would give up their own interests to pursue the persecution of the Jews, Pharaoh hardened his heart, and despite the horrific disasters visited upon his own people, nothing seemed to move him. Like latter-day enemies of the Jews, he could care less about the suffering of his own citizens.

The firstborn in many cultures and many legal systems are elevated and prominent; this has been true throughout the millennia.

Esau selling his birthright to Jacob, by Matthias Stom, 1640s (credit: PUBLIC DOMAIN)

Until recently, there were major legal benefits that came with the status – and the strains – of being the first. So much so that the birthright of the firstborn was considered valuable enough for it to be traded. Hence, we see the story of Esau selling his birthright and transferring his status as a firstborn to Jacob.

But can a birthright really be sold?

Certainly in inheritance issues – according to Israeli law – it is clear that a presumptive heir is allowed to renounce all his rights and thus grant those rights to another member of the family.

In Israel, for example, it is very common for family members to renounce their rights and to allow an older member of the family – usually the surviving parent – to inherit. The renunciation process – the self-disinheritance of one of the legitimate heirs – is considered weighty enough for it to require a judicial process. The renouncer has to formally inform the court of his renunciation. From that point on, he is considered as if he never inherited at all.

Why would the status of the firstborn be so coveted?

Because with this elevated status comes power, glory, and wealth. For millennia, legal systems all over the world preferred the firstborn in terms of inheritance, titles, and estates. Jewish law and other legal systems mandate for example that the firstborn has a right to inherit double that of the other heirs.

So how can we talk about the “tragedy of the firstborn”? Where is the tragedy?

Because there are also dangers and disadvantages to being the firstborn. Quite apart from the legal advantages, there are inherent burdens.

To paraphrase Shakespeare’s words in King Lear, “He who is firstborn is always the one most burdened by expectation. The world believes that he is the example, but what of his own desires?”

To show that the human character – much as it changes over the years – sill remains the same, just look at the words written about the firstborn nearly 2,000 years before Shakespeare. Homer, in his Odyssey, says: “The eldest son is both a leader and a servant, for his shoulders bear the weight of not just his own life, but the entire future of his race and family.”

Throughout history, in the many conflicts and bloody wars waged around succession, the firstborn is both the heir and the sacrifice, caught between a privileged position and the risk of becoming the ultimate victim.

Many of these conflicts came about because of the laws surrounding primogeniture. This is the legal right of the eldest child to inherit the entire estate of one or both parents.

There were often good legal and economic reasons for primogeniture. The effect of British primogeniture was to keep estates undivided wherever possible.

But in the modern legal system, the opposing rules are now in effect – certainly in the West. These are called partible inheritance rules. They make up our own familiar legal system, in which property is apportioned among all heirs.

Where primogeniture still reigns, this has attracted a growing amount of criticism. Mainly because most primogeniture systems discriminate against women. This is also known as agnatic primogeniture, which is a system that excludes any female from inheritance of a monarch’s principal possessions, including the throne. A good example is the kingdom of Saudi Arabia.

The modern view has not overturned all the rules of primogeniture, even down to our modern-day legal systems. This can be seen in what is popularly called The Downton Abbey Law. This was a British bill (actually called The Equality (Titles) Bill) that was intended to reform hereditary peerage inheritance law and was tabled in 2013, aimed at still giving preference to the eldest child, but no matter if that child was male of female.

For those of us who may admit that they enjoyed the the British television drama will remember that the Earl of Grantham’s eldest daughter could not inherit her father’s estate as entrusted unless all of the adult beneficiaries amended the trust (a legal position established in the 1841). Astonishingly, or perhaps not so astonishingly, the proposed reform was shot down by the British House of Lords!

But in real life, what difference does it make, this purely accidental order of birth? It is just a biological event, is it not?

Psychologist Kevin Leman, who has written several books on the subject, thinks not. He point out that firstborns are natural leaders. Many business leaders and half of US presidents were firstborns.

For decades, Leman’s theories and research were fiercely attacked (probably by scholars who were not firstborn).

But new studies reveal that a person’s position in the order of birth may affect intelligence and personality.

In 2007, Norwegian epidemiologists Petter Kristensen and Tor Bjerkedal published work showing a small but reliable negative correlation between IQ and birth order.

In some of the world’s cultures, birth order is so important that each child within the family is named according to the order in which the child was born. For example, in the Aboriginal Australian Barngarla language, there are nine male birth order names and nine female birth order names.

The firstborn in Judaism, the bechor, is accorded a special position. Firstborn sons undergo a ceremony called pidyon haben (“redemption of the son”) when they are 30 days old. A firstborn son is supposed to fast on the eve of Passover in thanks for being passed over during the plague of the slaying of the firstborn sons.

Jewish-Austrian psychiatrist Alfred Adler, a contemporary of Sigmund Freud and Carl Jung, was one of the first theorists to suggest that birth order can have an indelible impact on an individual’s life.

But leaving the psychologists’ debate aside, in many ways the tragedy of the firstborn lies in the fact that he/she has fallen from the high position held by the eldest child throughout the centuries and yet remains with the emotional and societal burdens. His/her position has been demoted without any compensations for the downside, as most modern systems of law do not recognize any rights for the firstborn. Even Jewish law favoring the bechor is respected more in the breach than in the observance.

So the tragedy for the firstborn is that he is left with the anomalous status that puts on him sometimes vast societal and psychological expectations; but from a legal point of view, he has been demoted to being not even a first among equals but just another humble equal among equals.■

Haim and Sam Katz are senior partners in a law firm based in Tel Aviv and Jerusalem. Their new book in English, The Complete Guide to Wills and Inheritance in Israel, is published by Israel Law Publications. Specializing in inheritance disputes and family law, they serve on the Israel Bar Association National Committee for Inheritance Law. office@drkatzlaw.com