It seems fitting that the origins of the Jewish people should be founded on societal rule-breaking. Consider the prophecy given to Rivka at the beginning of our parashah:
וַיֹּ֨אמֶר ה׳ לָ֗הּ שְׁנֵ֤י גוֹיִם֙ בְּבִטְנֵ֔ךְ וּשְׁנֵ֣י לְאֻמִּ֔ים מִמֵּעַ֖יִךְ יִפָּרֵ֑דוּ וּלְאֹם֙ מִלְאֹ֣ם יֶֽאֱמָ֔ץ וְרַ֖ב יַֽעֲבֹ֥ד צָעִֽיר:
Two nations are in your womb, and two peoples shall diverge from your belly. One nation will struggle against the other; and the elder shall serve the younger
This prophecy indicates a clear break with tradition. The Torah itself enshrines this tradition: the firstborn inherits all. He is the inheritor of the family wealth, history, and traditions. He is also the “family priest,” who offers sacrifice on behalf of his family.
And yet, the institution of the priesthood as a replacement of the firstborn-as-priest is already a pointer in the direction of disinheriting the firstborn. Further, there are hints throughout the Torah that the inheritance of the firstborn has exceptions. Abel’s sacrifice is accepted; Cain’s is not, even though Abel is the younger of the two — a subtle hint that he is more worthy to “inherit” the family’s contract with God than his older brother.
This is even more blatant in God’s command to Avraham that Yitzhak be his heir, against Avraham’s will. Upon his being told that Sarah would bear a son for him, Avraham says, “If only Yishmael will live before You (ie. assume the right of the firstborn)”. Left to his own devices, Avraham would have been content to respect the societal norms; Yishmael would inherit both the family wealth and the family mission.
One could argue that this break with “the way things are done” is yet another divine test of the patriarch’s willingness to go against the grain of his time. But the very fact that God explicitly commands a break with tradition reinforces the tradition. After all, there’s no need for a command to do what one is expected to do anyway.
An ambiguous prophecy
In the case of Yaakov and Esau, there is no divine command. Their mother, Rivka, consults an oracle, which, in the way of oracles, can be read in either of two ways: “the elder will serve the younger,” or, “the elder, the younger will serve.” The actual choice of who should inherit lies with her. Perhaps she observed something as the boys grew up that told her which way to read the prophecy. Or perhaps she took her cue from the story of Yitzhak and Yishmael. Whatever the reason, she concluded that Yaakov was the chosen one, against all tradition and custom.
Evidently, Rivka never revealed her thinking to Yitzhak. Is this because he was already so obviously besotted with the elder son, so unlike himself? Or is it simply that the tradition was so unshakeable—so set in stone—that any mention of changing the order would have been rejected out of hand?
In any case, the direction of development is clear, while Avraham was commanded to choose the younger over the elder—despite social conventions—Rivka makes the choice on her own, based only on a divine hint (not command). This trend will continue in the next generation; in the case of Ya’akov’s choice of Yoseph, and of Yoseph’s own younger son, even the divine hint is absent; it is purely a human choice.
When halakhah and aggadah clash
While the Torah explicitly cautions against putting the younger before the elder in terms of inheritance, time and time again, the aggadic portions of the Torah provide a lesson to the contrary: Yitzhak before Yishmael, Yaakov before Esau, Rahel before Leah, Yoseph before all his elder brothers, and Ephraim before Menashe. What is the meaning of this odd discord between law and example? What is the Torah trying to tell us?
Perhaps one lesson is this: Yes, there is a rule of how we are to do things. Yes, our interactions are meant to fit a certain framework, and in the absence of pressing need, that framework is not to be lightly set aside. But sometimes a situation arises that simply doesn’t fit the framework. The eldest son is not the most suited to inherit. The most promising child is the younger. Or is female. In that case, the aggadot give us a hint: Do as I do, not as I say! You have My permission to go out of bounds, so long as you acknowledge the line as you step across it. So long as you understand that this is an exception and not the rule.
The limits of exceptional cases
Exceptions may be made for the sake of the outliers, or in exceptional times. But such exceptions must not be seen as paradigmatic. It is the more mainstream behaviors which reinforce a particular life-affirming and life-generating culture. This is clear in the Torah’s prohibition of setting the younger before the elder; clearly, favoritism is not conducive to peace and would be disruptive of society if it were to become the norm. Thus, any exception to the rule of firstborn inheritance must be done quietly, and with full acknowledgment that a line has been crossed. It is not to be considered a precedent or something to be emulated.
The need to reinforce societal stability is clear in the law of mamzerut as well. This law is there for a reason—it is a natural outgrowth of the notion that paternity matters. And yet, what if something happens that does not violate the rule in spirit, but does violate it in practice? What do we do with the exceptions? Here again, perhaps the aggadata can guide us to a solution.
But sometimes it is God that who breaks the rules. Take the command to “erase the memory of Amalek.” Clearly we are not meant to model our behavior on the command to kill an entire nation. After all, we are also told how we are to wage war. Even in an era when genocidal war was the norm, certain rules were to be adhered to, including the unprecedented law in the Torah against the rape of captives taken in war. If we are to learn anything from the command to destroy Amalek, it is that drastic situations may require drastic measures, but that this is the exception which proves the rule—a one-time thing, not to be taken as the basis for future behavior, let alone as a basis for morality.
While the exceptions may require sui generis solutions, it is the norm that must inform our future behavior. Using the language of evolution: there are mutations that set the pattern for the future (i.e., those which have viable offspring), but the vast majority either have no long-term impact or are actually detrimental to the survival of the species. In the end, while the exceptions may pave the way for change, it is our normative behavior that determines what we will become.