The tension between an individual’s right to own, use, exclude others from use, and dispose of property, and society’s ability to limit those rights, is as old as society itself. Its roots are literally biblical.
The right to own property is considered fundamental in a free society and is enshrined in the Bill of Rights, which provides that there shall be “no deprivation of property without due process of law.” But like many sweeping rights, none are absolute. You may own property, but the government can restrict its disposition, tax it, condemn it and restrict its use in a variety of ways. What exactly is “deprivation of property” and to what extent can “due process of law” justify a deprivation?
Long before zoning laws, property rights were framed by laws of succession, which have evolved over centuries. Succession laws vary from country to country and state to state. Those differences reflect the cultural, political, economic and social contexts in which they arise, but the common thread is that, no matter how Western succession laws vary, they find their basis in biblical times.
Succession issues appear early on in Genesis in both the Old and New Testaments. In Genesis XXV, Esau, the older son of Isaac, 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 had by nature of being the eldest son. Though honored in the breach more than the observance by the three patriarchs—Abraham, Isaac and Jacob—this is the first mention in any Western law or literature of the concept of a right to property, which passes by inheritance, to a person by virtue of status or rank in a family, rather than by trade, purchase or conquest. “Birthright”, although not defined in Genesis itself, is the right to inherit property, which brings with it the responsibility to be the leader of a clan or tribe.
Later, as Isaac appears to be dying, he asks Esau to go out and hunt for venison with which to make a stew. Isaac’s wife, Rebecca, the mother of both Esau and Jacob, concocts a scheme which can only be labeled a classic fraud. At his mother’s encouragement and complicity, Jacob kills a sheep to get 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 Esau’s “blessing.” Jacob says “I am Esau the first born,” a clear and unambiguous falsehood fraudulently—and successfully—intended to induce his father to give him the blessing which 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 finds out about the deception and is livid—he threatens to kill Jacob but agrees to wait until Isaac dies, out of respect for his father. Esau asks for Isaac’s blessing as well, but is told that there can be only one “blessing,” i.e., the estate and the attendant rights, powers and responsibilities cannot be divided.
The treatment of Esau and Jacob is the first explicit biblical exposition of rules of inheritance—all to the eldest son—and evasion of such rules by harsh bargaining and outright fraud. This story shows, with relevance to an understanding of the evolution of succession laws, that “birthright” had obligations commensurate with its rights. Religious laws are much more a matter of obligations and responsibilities than entitlements. Historically, society was structured by family, clan and tribe, not country, state and nation. The head of the family or clan, traditionally the eldest male, not only had power as the chieftain but also the responsibility for the security and welfare of his community.
The story of Jacob and Esau in Genesis is that Esau had the right, as first born, to both the birthright and the blessing. No source of authority is given for this right of primogeniture in the text of Genesis—it is simply explained as “the tradition” that the firstborn became head of the family. See commentary to Genesis XXV 31, 1950 Soncino Press Edition of the Pentateuch and Haftorahs, edited Rabbi Hertz (“Soncino”). The text of Genesis itself offers scant evidence of this “tradition.” Isaac himself becomes his father Abraham’s successor, notwithstanding that he is not Abraham’s first born. Isaac’s succession was assured when his mother, Sarah, convinced Abraham, with G-d’s approval though not at his instance, to banish Isaac’s older brother Ishmael. History indicates a much more pragmatic system of succession.
Parental favoritism, particularly by a strong matriarch, and its consequences have been recurring themes in religious and secular literature since Genesis. But that itself may not be a sufficient explanation for the ascension of Isaac over Ishmael or Jacob over Esau. Family, clan and tribe were the basic units around which society was organized and they were essential to both internal and external security—an organizing principle for the group and the provision of at least minimal subsistence and protection from outsiders. Primogeniture may have been a presumption in determining 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.
While it appears that Isaac was fooled by Jacob’s treachery and masquerade, there is evidence that he knew he was being played. He says that “the voice is the voice of Jacob but the hands are the hands of Esau.” After the scheme is exposed, and Esau pleads for Isaac to reverse his actions, Isaac refuses to do so, saying that the blessing to Jacob is both singular and irreversible. Though Isaac loved Esau as his favored child, his favoritism did not extend to rescinding his blessing to Jacob even after the fraudulent way it was obtained became apparent. The text offers no support for this principle of singularity and irreversibility of the blessing, but it might be reasoned (1) there can be only one chieftain or leader at a time, and (2) designations, even if erroneous, once made must be accepted as final or else the door would be open to endless challenges and resulting instability. Thus, the “tradition” may in fact have been that the prescription of primogeniture can and should be disregarded if it appears that the eldest male is not qualified to assume the responsibilities that went with the rights of being first born.
This rather cryptic outline of early biblical succession rights—attributed more to tradition than to the Word of G-d—was followed by more direct dictates. In the wilderness after the exodus from Egypt, Zelophehad died, leaving daughters but no sons. The prevailing rule would have left his assets to remoter male heirs, to the exclusion of his daughters. The basis for this male succession, as explained in the Soncino commentary to Numbers XXVII, is that “Landed property was not to be alienated from the family or tribe to which it belonged. However, in the absence of a male heir to an estate, its legal possession by a female heir might, on the latter’s marriage, cause such alienation.” This may be the first explicit indication that the family or tribe, i.e., society, has an interest in property even if “owned” by an individual.
Zelophehad’s daughters appealed to Moses for their father’s assets; Moses brought the matter to the Lord who told Moses to cause their father’s assets to pass to the daughters. In addition, the Lord set forth a hierarchy of succession—sons first and if no sons then daughters, if no daughters then brothers, if no brothers then uncles, and if no uncles then the next closest kin. This Statute of Judgment, though coming from the Lord, was less than a commandment or law; it is referred to as “a fixed and authoritative custom,” implying that it can change over time. See Commentary in Soncino to Numbers XXVII 11.
The time it took to change was quite short. Members of Zelophehad’s tribe protested his daughters’ inheritance because if they married out of the tribe the inherited property “will be taken away from the inheritance of our fathers and will be added to the inheritance of the tribe whereunto they shall belong.” Moses recognizes this and, after presumably again consulting with the Lord, announced a modified rule: “Let them be married to whom they think best; only into the family of the tribe of their father shall they be married. So shall no inheritance of the children of Israel remove from tribe to tribe …”
The process described in Numbers is useful background in considering how both religious and secular laws may evolve over time. The principles by which Zelophehad’s daughters’ inheritance rights were resolved has consequences beyond inheritance rights. It implies that though legal title to assets may vest in an individual, the property in some way “belonged” to the family or tribe of which the owner was a member, even if those “rights” were not clearly defined.
Why is this an interesting subject for speculation? Perhaps it reflected nothing more than that property meant power—a factor still today—or a tension between public and private property rights with more subtle aspects. The principle of a tribal interest in property, however secondary, raises profound implications which resound today in many ways. The biblical commandments implying a community interest in property are a significant limitation on unfettered private property rights and play out today in disputes over government rights to regulate property use and to condemn private property for public purposes, however broadly or narrowly defined.
David I. Faust is a partner in the New York City office of Gallet Dreyer & Berkey. His practice focuses on representing individuals, and public and private corporations on all aspects of commercial, corporate, real estate, trusts, estates, and tax law.
