The tension between an individual’s right to own, use, exclude others from using and disposing of property, and society’s ability to limit these rights, is as old as society itself. same. Its roots are literally biblical.

The right to property is considered fundamental in a free society and is enshrined in the Bill of Rights, which states that there shall be “no deprivation of property without due process”. But like many extended rights, none are absolute. You may own property, but the government may limit its disposition, tax it, condemn it, and restrict its use in various ways. What exactly is ‘deprivation of property’ and to what extent can ‘due process’ justify deprivation?

Long before zoning laws, property rights were governed by inheritance laws, which have evolved over centuries. Inheritance laws vary from country to country and state to state. These differences reflect the cultural, political, economic, and social contexts in which they arise, but the common thread is that whatever variation there is in Western laws of succession, they have their basis in biblical times.

Succession issues appear early in Genesis in both the Old and New Testaments. In Genesis XXV, Esau, Isaac’s eldest son, returns from a day of hunting. He is hungry and sees his younger brother Jacob cooking porridge. Esau asks for some of the porridge and Jacob offers a bowl in exchange for Esau’s birthright, which Esau by nature had to be the eldest son. Although honored in violation more than observance by the three patriarchs – Abraham, Isaac and Jacob – it is the first mention in any Western law or literature of the concept of a property right, which passes by inheritance, to a person by virtue of status or rank in a family, rather than by trade, purchase or conquest. The “birthright”, although not defined in Genesis itself, is the right to inherit property, which involves the responsibility of being the head of a clan or a tribe.

Later, as Isaac appears to be dying, he asks Esau to go out and hunt some game to make a stew with. Isaac’s wife, Rebecca, mother of Esau and Jacob, concocts a scheme that can only be called a classic fraud. Under the encouragement and complicity of his mother, Jacob kills a sheep to obtain meat for a stew, disguises himself as Esau by donning an elaborate disguise and, assuming Esau’s voice, brings the stew to his father and asks for the “blessing” of Esau. Jacob says “I am Esau the firstborn”, a clear and unambiguous lie, fraudulently – and successfully – intended to induce his father to give him the blessing that was Esau’s. This “blessing” clearly had significant economic benefit as well as power.

Jacob gets the blessing. When Esau returns with the venison, he discovers the deception and is livid – he threatens to kill Jacob but agrees to wait for Isaac to die, out of respect for his father. Esau also asks for Isaac’s blessing, but is told that there can only be one “blessing”, i.e. the estate and the rights, powers and responsibilities that flow from it cannot be divided.

The treatment of Esau and Jacob is the first explicit biblical exposition of the rules of inheritance – all to the eldest son – and the evasion of those rules by hard negotiation and outright fraud. This history shows, with relevance for the understanding of the evolution of inheritance laws, that the “right of primogeniture” had obligations commensurate with its rights. Religious laws are much more about obligations and responsibilities than rights. Historically, society was structured by family, clan, and tribe, not by country, state, and nation. The head of the family or clan, traditionally the eldest male, not only had the power as a leader, but also the responsibility for the safety and well-being of his community.

The story of Jacob and Esau in Genesis is that Esau had the right, as the firstborn, to both the birthright and the blessing. No source of authority is given for this birthright in the text of Genesis – it is simply explained as “the tradition” that the firstborn becomes the head of the family. See Genesis XXV Commentary 31, 1950 Soncino Press Edition of the Pentateuch and Haftorahs, edited by Rabbi Hertz (“Soncino”). The text of Genesis itself offers little evidence of this “tradition.” Isaac himself becomes the successor of his father Abraham, although he is not Abraham’s firstborn. Isaac’s succession was secured when his mother, Sarah, convinced Abraham, with G‑d’s approval but not at his request, to banish Isaac’s older brother, Ishmael. History points to a much more pragmatic system of succession.

Parental patronage, especially by a strong matriarch, and its consequences have been recurring themes in religious and secular literature since Genesis. But that in itself may not be a sufficient explanation for the ascension of Isaac over Ishmael or Jacob over Esau. The family, clan and tribe were the basic units around which society was organized and they were essential to internal and external security – an organizing principle for the group and the provision of at least a minimum of subsistence and protection against strangers. Primogeniture may have been a presumption to determine such leadership, but it was a rebuttable presumption. When Abraham accepted that Isaac was better qualified to lead his people, he banished Ishmael. A generation later, Isaac does something similar.

Although it seems that Isaac was tricked by Jacob’s betrayal and charade, there is evidence that he knew he was being played. He says “the voice is the voice of Jacob but the hands are the hands of Esau”. Once the scheme is exposed and Esau pleads for Isaac to undo his actions, Isaac refuses to do so, claiming that Jacob’s blessing is both singular and irreversible. Although Isaac loved Esau as his favorite child, his favoritism did not extend to rescinding his blessing to Jacob even after the fraudulent manner in which it had been obtained became apparent. The text gives no support for this principle of singularity and irreversibility of the blessing, but one could reason (1) there can only be one head or chief at a time, and (2) the designations, even if erroneous, once made must be accepted as final, otherwise the door would be open to endless challenges and consequent instability. Thus, the “tradition” may in fact have been that the prescription of primogeniture can and should be ignored if it appears that the eldest is unqualified to assume the responsibilities that come with the right to be firstborn.

This rather enigmatic sketch of the first biblical rights of succession – attributed more to tradition than to the Word of Gd – was followed by more direct precepts. In the desert after the Exodus from Egypt, Zelophehad died, leaving daughters but no sons. The current rule would have left his estate to more distant male heirs, excluding his daughters. The basis of this male succession, as explained in the Soncino commentary to Numbers XXVII, is that “property in land was not to be alienated from the family or tribe to which it belonged. However, in the absence of an heir male to an estate, its legal possession by an heiress could, upon her marriage, cause such alienation.” This is perhaps the first explicit indication that the family or tribe, i.e. society, has an interest in property even if it is “owned” by an individual.

The daughters of Zelophehad appealed to Moses for their father’s goods; Moses took the matter before the Lord who told Moses to pass their father’s property to the daughters. In addition, the Lord has established a hierarchy of succession: sons first and if there are no sons, then daughters, if there are no daughters, then brothers, there are no brothers, then uncles, and if there are no uncles, then the next of kin. This law of judgment, though from the Lord, was less than a commandment or a law; it is called “a fixed and authoritative custom”, implying that it may change over time. See the commentary in Soncino at numbers XXVII 11.

The changeover time was quite short. Members of the tribe of Zelophehad protested the inheritance of his daughters because if they married out of the tribe, the inherited property “will be taken out of the inheritance of our fathers and added to the inheritance of the tribe. to which they will belong”. Moses recognizes this and, after presumably again consulting the Lord, announces a modified rule: “Let them marry whom they think best; they will marry only with the family of the tribe of their father. the children of Israel move from tribe to tribe…”

The process described in Numbers is a useful backdrop for considering how religious and secular laws may change over time. The principles by which the inheritance rights of the daughters of Zelophehad were resolved have consequences beyond inheritance rights. This implies that although the legal title to property may belong to an individual, the property somehow “belonged” to the family or tribe of which the owner was a member, even though these “rights” were not clearly defined.

Why is this an interesting subject of speculation? Perhaps it reflected nothing more than ownership meant power – a factor even today – or a tension between public and private property rights with more subtle aspects. The principle of a tribal interest in property, however secondary, has profound implications that resonate in many ways today. The biblical commandments involving a communal interest in property constitute a significant limitation on unfettered private property rights and manifest themselves today in disputes over the rights of government to regulate the use of property and to condemn private property to public purposes, however broadly or narrowly defined.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


What's Yours Is Yours (Or Is It?): The Genesis of Property Rights in Genesis - Wills/Intestate/Estate Planning


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