Jonathan S. Milgram Mishnah Baba Batra 8:5 – The Transformation of the Firstborn Son from Family Leader to Family Member 1 1 Introduction Mishnah Baba Batra 8:5 states that biblical law requires a father to bequeath two inheritance portions to his firstborn son. 2 That same mishnah also instructs how to get around the biblical requirement. The legal flexibility pro- posed enables one to gift to the firstborn a single share or to another son the double portion. This legal conception may be paralleled in ancient near east- ern and (some strata of) Biblical law. In a separate article, I discuss this mish- nah in light of its potential ancient legal parallels. 3 In this essay, I investigate the effects of social context on the law. Based on both textual and archeologi- cal data, below I discuss the structure of the household in Biblical Israel as opposed to in tannaitic Palestine. The former was an extended family house- hold which required a family leader or administrator; the latter was a nuclear family household which did not. The flexibility in ancient near eastern and (some) Biblical law reflects the importance that accompanied the firstborn’s leadership position within the family in those social contexts. At times, a son other than the biological firstborn was appointed to lead the family and pre- serve the estate upon the father’s death. The flexibility in m. Baba Batra 8:5, however, came to be for the opposite reason. The absence of a defined role for the firstborn within the household in the social context of tannaitic Pales- tine enabled the emergence of legal flexibility. 4 We begin with an examination of the mishnaic text. 1 To ב כ ו ר ת י– ב ת י ב ת נ פ ש י, Maayan Noemi ת ח י, on the occasion of her bat mitzvah. I thank Aaron Koller for assisting with editorial matters and Uzi Leibner for suggesting the inclusion of the illustration that accompanies this article. 2 Each other son receives a single portion. See the text of the mishnah below in the body of the article. 3 Jonathan S. Milgram, “Prolegomenon to a New Study of Rabbinic Inheritance Law on the Fiftieth Anniversary of Reuven Yaron’s Gifts in Contemplation of Death”, Jewish Law Associa- tion Studies 23 (2012), 181–192. 4 While it cannot be argued that tannaitic law necessarily represents rabbinic legislation for the masses, in this article I maintain that, nevertheless, tannaitic law reflects elements of the social context in which it was created. This is the assumption of recent scholarship, for exam- ple, Adiel Schremer, Male and Female He Created Them: Jewish Marriage in Late Second Tem- Brought to you by | provisional account Authenticated | laura.trellopoulos@degruyter.com Download Date | 7/8/14 7:21 PM