Rabbi Zvi Aviner


Jacob or Esau, who is the Firstborn?



Last class we noticed that the Fifth Commandment of Adam, JUSTICE and CIVIL ORDER, is the only positive one among the Six.  It tells us not only to avoid INJUSTICE, but also commanding us few things:

  1. To set up a just system of laws regarding Civil Order
  2. Build court houses
  3. Elect learned and just people to the office of judges
  4. Issue a truthful judgment


The stories about Jacob revolve around the last point: find the truth and issue a truthful, unbiassed verdicts.


Since number five is a positive Commandment, it endows  us with HaShem’s holiness,  as it is said “And you’ve sanctified us through  His Commandments.”  In the eyes of the Torah, to become holy means to fulfil G-d’s positive Commandments.


Hence to be holy in the Torah’s eyes, you don’t seclude yourself away from society but rather, do the opposite – get seriously involved in achieving Civil Order, and makes sure the courts would issue truthful unbiassed judgments.

No other religion elevates justice to that level!


Why is it so? Why does the Torah place so much emphasis on JUSTICE and CIVIL ORDR?






The answer is: for by implementing a truthful justice, by seeking the truth and act accordingly, Man emulate ELKM, the Attribute of JUSTICE.  No other activity can claim that.  Yes, ELKM creates, and we too can create – like an I Phone and a Quantum Computer.  But there is a vast difference – While we only re-arrange a given material, ELKM created something from nothing. Only by seeking and implementing a truthful justice, Man can claim that he emulates ELKM.



How would a human judge issue a truthful verdict?

Especially when each of the litigants has a legitimate base for its case?


For that, the court encourages each side to presents its truth completely as it could, even helped by a lawyer.

The lawyer would not be shy to magnify the stance of his side, but also smear the other side as badly as it could. Each side would also be prompted by the presence of supporters in the courtroom, such as family members and friends.



After hearing the case, including witnesses and experts, the court would arrive at the most truthful verdict it could.  Ii means, the court would have to chose one side over the other.  The result  we often see is that the losing side would keep its stance and grudge against the winning side, and even appeal to a higher court.  Even after the appeal, the losing side would keep its grudge and even speaks against the judges, accusing them to favor the winning side.

Thus, the court would achieve a truthful verdict, but with the price of peace.

The prophet says:




To avoid that scenario, the court would often tell the litigants to settle their case OUTSIDE THE COURT. The litigants would seclude themselves with their lawyers in a room outside the courtroom, without the presence of any supporter.  In that room, without the fans watching, each side would tend to listen to the other side’s points, acknowledge them and then hopefully arrive at a settlement that each side supports.  The advantage of being alone is that each side can put aside its ego and accept the other side’s points.

When they finally appear back before the court, all that the court would do is to sign over their decision, without ever hearing their points and without deciding with whom the truth is.  The truth is overlooked for the sake of peace.  Surely none of the litigant would see iit necessary to appeal to a higher court, and none would carry a grundge agsinst the court.



Let’s  go back to the case of Jacob and Esau.








For that, the court would first gather and assemble the facts as   possible. The court would invite witnesses and experts to shed light on the facts.


Then the judge would follow a set of laws, regulations and customs as a guidance.  All that, would finally culminate with the court’s truthful verdict.


For ELKM, that part of JUSTICE poses no problem.  But when a human judge claims to do ELKM’s work, it may be far from the truth.


As if to show how fragile the human court is, the Torah starts the section of Genesis dedicated to JUSTICE by presenting a case that would blow our minds. As if she is saying: Would you, Man, solve that issue of JUSTICE?


That is a case of the twin brothers, Jacob and Esau, who both sought the firstborn status in their family.  Apparently, this is not a religious issue at all but rather a Civil Right issue, for the firstborn son gets twice as much in the family heritage compared to all other siblings. The firstborn son also serves as the priest of the family, in this case, qualified to receive the Blessing of Abraham.


So the Torah places for us the facts, then expects us to issue our verdicts: who among the twin is more qualified?








The Parents



So here are the facts.  In order to give us the entire picture, the Torah with the parents.


These are the offspring of Isaac the son of Abraham

Abraham begot Isaac. 

And Isaac was forty years old when he took Rebecca

he daughter of Betuel the Arramite from Padan Aram

the sister of Laban the aramite as a wife. 




The twin’s father Isaac was an innocent, holy person yet quite passive.  His merit lies in the fact that he had been bounded by Abraham as an offering. He is a Righteous the Son of a Righteous.


The twin’s mother– Rebecca – is known to us already from earlier chapters where she is presented as a resourceful, very generous girl.  The verse counts her home  to show that although she  was born into an wicked family – her father Betuel molest virgins, and her brother Laban was a master of cheating.  She was a rose among the thorns, as the Rabbis say.  She was a Righteous the daughter of a Wicked.



When she was found baren, both her and her husband kept praying – he for her, she for him.  To whom would you think G-d would listen?  To her, you would assume. But the verse says G-d listened to him. Does that tell about a fault in Her?



Her pregnancy, the Torah says, was unusually painful so she

Thought to abort.  Here the


Here you see the impact of her father’s home where she must had seen many abortions performed.

 She then consulted Shem, who told her not to abort since she had a twin who struggle even in her womb.  Each of them would become a nation, and the “senior would serve the junior.”.


That prophetic phrase was said in such a vague way that you can’t tell whether the Senior would serve the junior or would be served by the junior, leaving Rebecca perplexed.


   It   inside their mother’s womb.  They moved around so much that one couldn’t tell with of them was formed first and which one second.  At one point Jacob was ready to exit first, then Esau came forwards ready to exit first. 





Now we move to the scene of the Labor – Esau’s head came out first, yet his heel was held by Jacob as if in a protest.   In fact, they came out as one block, something rare that complicate the issue. The Torah says that”he” named Esau as the firstborn, not telling who “he” was – his father? The midwife in charge?



To complicate the case even farther, the Midrash says that the twins had different characters even at the Uterus. As if Esau wished to exit wjhen his mother passed by an idolatry place, whereas Jacob  fought his way out when she passed by Shem’s academy.


The twins grew up, receiving the same training and parental love yet after the age of 13 their difference began to show up.   Esau grew to become a successful man of the fields, involved in mundane earthly life, whereas Jacob was an innocent man,    sitting at the tents.  The verse doeos not say what tents. Ibn Ezra

Says women tents.  As it turns out – Rebecca loved Jacob, while Isaac loved Esau.


Moreover, Esau pretended to observe the Commandments, while in his heart he despised them all.  The Midrash says that he violated  all the Commandments, hiding the facts from his parents.   Jacob in contrast is depicted as a righteous person who observed the commandments and whose heart and lips were the same.


To build the case, the Torah described two incidents.  In one, Esau came home hungry and found Jacob brewing a lentils red soup.  He then agreed to sell Jacob his firstborn right for the soup, henceforth his name was changed to EDOMITE, the Red. The Torah says explicitly that he eat, he drank, stood up and went his way without protesting, since he despised the firstborn status.


The next famous event was when the aged, blind Isaac wished to give Abraham’s Blessing to Esau, whom he recognized as the firstborn son.  He asked Esau to go out catch a good hunt and prepare for him a feast that he, Isaac, loved so much.  When  Rebeca, who loved Jacob, heard about iit she enticed Jacob to disguise himself with Esau’s dressing and bring his father the good food that Rebecca would prepare. Jacob refuses first, yet Rebecca says “Your curse is on my own head,” meaning she would accept on her any guilt.  She was sure that Jacob is the one who deserves the Blessing.


Jacob steals Esau blessing, but as a result he had to flee for his life. For the next 14 years,  it was Esau who  took care of his elderly parents.  Such a good care, that Rabbi Gamliel says that he wished that he could give his own parents such as good care as Esau gave to his parents. Esau never gave up his claim to the firstborn status.



When you, the reader, hear the stories as a judge, whom would you chose as the Firstborn?


Suppose Esau and Jacob bring hteir advocates, Lawyers..







Esau’s lawyer would argue:


  1. Esau’s head came out first, and according to the custom he is the firstborn.
  2. Esau was cheated by Jacob.  Jacob took unfair advantage on him when he was hungry. Esau later regretted the entire episode.
  3. Jacob cheated his righteous, old and blind father, something unforgivable. He is unqualified to be the priest of the family.
  4. Esau was treated unfairly by his mother, who have confessed of loving Jacob over Esau.
  5. Rebecca herself is of questionable character. Had not she entertained the idea of ABORTION which is prohibited in the Rainbow Covenant of Noah?
  6. Esau is more qualified to lead because he is a man of the field, a man who knows reality, who can associate with people of all faiths and lead them.
  7. Esau is a good man. He not only took care of his elderly parents, but also took wives according to Rebecca’s preference.



Jacob’s lawyer would argue:

  1. The twins came out as one piece.  Jacob therefore have a legitimate claim for the firstborn status, no less than Esau.
  2. Esau cheated his parent while growing up.
  3. Esau despised the firstborn status, when he agreed to sell his status to Jacob for a lentils soup
  4. Esau does not observe the Commandment and therefore not qualified to get Abraham’s Blessing.
  5. Rebecca preferred Jacob over Esau for she knew the truth, that Esau has been cheating, that he is not qualified
  6. When Isaac told Esau that he had blessed Jacob, he said: “And he shall be blessed indeed.” Isaac too finally recognized Jacob over Esau



You as a judge can’t tell right now who prevails.

Each of the lawyers would bring witnesses and experts to support their claim.  The litigants kept their posture – Esau told his family how bad Jacob was.  He probably exaggerated and told lies about Jacob.   From his descendants came Amalek and Haman, who wished to destroy Israel. The Rabbis ecven assocuited him – the Edomirte – with Herod and Rome.









Moroever, the supporters of ewach side prompted their position by adding stories and legends about the twins.


The  Middrah ttell how wicked was Esau and how innovent and righteous was Jacob.



EACh twin rushing forwards to exit –

They were different from the uterus – so was Esau destined to be the wicked one? Re we born to be either rightous or wisked>? IS THAT FAIR?

Rambam says no.

Esau’s supporters would say – chrch in Florida



So if Justice is seeking the truth, it turns out that each litigant has his own truth that he wqould stick to it  no matter what the judge would say.  The judge himself can be biased.


Jacob is seeking his truth to come out. He calims to have the absolute truth.


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