Casuistry

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Casuistry (/ˈkæʒuːɨstri/), or case-based reasoning, is a method in applied ethics and jurisprudence, often characterised as a critique of principle- or rule-based reasoning.[1] The word "casuistry" is derived from the Latin casus (meaning "case").
Casuistry is reasoning used to resolve moral problems by extracting or extending theoretical rules from particular instances and applying these rules to new instances. The term is also commonly used as a pejorative to criticize the use of clever but unsound reasoning (alleging implicitly the inconsistent—or outright specious—misapplication of rule to instance), especially in relation to moral questions (see sophistry).
The agreed meaning of "casuistry" is in flux. The term can be used either to describe a presumably acceptable form of reasoning or a form of reasoning that is inherently unsound and deceptive. Most or all philosophical dictionaries list the neutral sense as the first or only definition.[2][3][4] On the other hand, the Oxford English Dictionary states that the word "[o]ften (and perhaps originally) applied to a quibbling or evasive way of dealing with difficult cases of duty." Its textual references, except for certain technical usages, are consistently pejorative ("Casuistry‥destroys by Distinctions and Exceptions, all Morality, and effaces the essential Difference between Right and Wrong").[5] Most online dictionaries list a pejorative meaning as the primary definition before a neutral one,[6][7][8] though Merriam-Webster lists the neutral one first.[9] In journalistic usage, the pejorative use is ubiquitous[10][11][12][13] and examples of the neutral usage are not found.[14]

Examples[edit]

While a principle-based approach might claim that lying is always morally wrong, the casuist would argue that, depending upon the details of the case, lying might or might not be illegal or unethical. The casuist might conclude that a person is wrong to lie in legal testimony under oath, but might argue that lying actually is the best moral choice if the lie saves a life. (Thomas Sanchez and others thus theorized a doctrine of mental reservation, which developed into its own branch of casuistry.) For the casuist, the circumstances of a case are essential for evaluating the proper response.
Typically, casuistic reasoning begins with a clear-cut paradigmatic case. In legal reasoning, for example, this might be a precedent case, such as premeditated murder. From it, the casuist would ask how closely the given case currently under consideration matches the paradigmatic case. Cases like the paradigmatic case ought to be treated likewise; cases unlike the paradigm ought to be treated differently. Thus, a man is properly charged with premeditated murder if the circumstances surrounding his case closely resemble the exemplar premeditated murder case. The less a given case is like the paradigm, the weaker the justification is for treating that case like the paradigmatic case.

Meanings[edit]

Casuistry is a method of case reasoning especially useful in treating cases that involve moral dilemmas. It is also a branch of applied ethics. Casuistry is the basis of case law in common law, and the standard form of reasoning applied in common law.

Morality[edit]

Casuistry takes a relentlessly practical approach to morality. Rather than using theories as starting points, casuistry begins with an examination of cases. By drawing parallels between paradigms, or so-called "pure cases", and the case at hand, a casuist tries to determine a moral response appropriate to a particular case.
Casuistry has been described as "theory modest" (Arras, see below). One of the strengths of casuistry is that it does not begin with, nor does it overemphasize, theoretical issues. It does not require practitioners to agree about ethical theories or evaluations before making policy. Instead, they can agree that certain paradigms should be treated in certain ways, and then agree on the similarities, the so-called warrants between a paradigm and the case at hand.
Since most people, and most cultures, substantially agree about most pure ethical situations, casuistry often creates ethical arguments that can persuade people of different ethnic, religious and philosophical beliefs to treat particular cases in the same ways. For this reason, casuistry is widely considered to be the basis for the English common law and its derivatives.
Casuistry is prone to abuses wherever the analogies between cases are false.

History[edit]

Casuistry dates from Aristotle (384–322 BC), yet the zenith of casuistry was from 1550 to 1650, when the Society of Jesus used case-based reasoning, particularly in administering the Sacrament of Penance (or "confession").[15] The term casuistry quickly became pejorative with Blaise Pascal's attack on the misuse of casuistry. In Provincial Letters (1656–7)[16] he scolded the Jesuits for using casuistic reasoning in confession to placate wealthy Church donors, while punishing poor penitents. Pascal charged that aristocratic penitents could confess their sins one day, re-commit the sin the next day, generously donate the following day, then return to re-confess their sins and only receive the lightest punishment; Pascal's criticisms darkened casuistry's reputation.
It was not until publication of The Abuse of Casuistry: A History of Moral Reasoning (1988), by Albert Jonsen and Stephen Toulmin,[17] that a revival of casuistry occurred. They argue that the abuse of casuistry is the problem, not casuistry per se (itself an example of casuistic reasoning). Properly used, casuistry is powerful reasoning. Jonsen and Toulmin offer casuistry in dissolving the contradictory tenets of moral absolutism and the common secular moral relativism: "the form of reasoning constitutive of classical casuistry is rhetorical reasoning".[18] Moreover, the ethical philosophies of Utilitarianism(especially preference utilitarianism) and Pragmatism commonly are identified as greatly employing casuistic reasoning.

Early modern times[edit]

The casuistic method was popular among Catholic thinkers in the early modern period, and not only among the Jesuits, as it is commonly thought. Famous casuistic authors include Antonio Escobar y Mendoza, whose Summula casuum conscientiae (1627) enjoyed a great success, Thomas Sanchez,Vincenzo Filliucci (Jesuit and penitentiary at St Peter's), Antonino Diana, Paul Laymann (Theologia Moralis, 1625), John Azor (Institutiones Morales, 1600), Etienne Bauny, Louis Cellot, Valerius Reginaldus, Hermann Busembaum (d. 1668), etc. One of the main theses of casuists was the necessity to adapt the rigorous morals of the Early Fathers of Christianity to modern morals, which led in some extreme cases to justify what Innocent XI later called "laxist moral" (i.e. justification of usury, homicide, regicide, lying through "mental reservation", adultery and loss of virginity before marriage, etc.—all due cases registered by Pascal in the Provincial Letters).
The progress of casuistry was interrupted toward the middle of the 17th century by the controversy which arose concerning the doctrine of probabilism, which stipulated that one could choose to follow a "probable opinion", that is, supported by a theologian or another, even if it contradicted a more probable opinion or a quotation from one of the Fathers of the Church.[19] The controversy divided Catholic theologians into two camps, Rigorists and Laxists.
Casuistry was much mistrusted by early Protestant theologians, because it justified many of the abuses that they sought to reform. It was famously attacked by the Catholic and Jansenist philosopher Pascal, during the formulary controversy against the Jesuits, in his Provincial Letters as the use ofrhetorics to justify moral laxity, which became identified by the public with Jesuitism; hence the everyday use of the term to mean complex and sophistic reasoning to justify moral laxity.[20] By the mid-18th century, "casuistry" had become a synonym for moral laxity.[citation needed]
In 1679 Pope Innocent XI publicly condemned sixty-five of the more radical propositions (stricti mentalis), taken chiefly from the writings of Escobar,Suarez and other casuists as propositiones laxorum moralistarum and forbade anyone to teach them under penalty of excommunication.[21] Despite this papal condemnation, both Catholicism and Protestantism permit the use of ambiguous and equivocal statements in specific circumstances.[22]
Alphonsus Maria de Liguori (d. 1787), founder of the Congregation of the Most Holy Redeemer, then brought some attention back to casuistry by publishing again Hermann Busembaum's Medulla Theologiae Moralis; the last edition published in 1785 and receiving the approbation of the Holy See in 1803.[citation needed] Busembaum's Medulla had been burnt in Toulouse in 1757 because of its justification of regicide, deemed particularly scandalous after Damiens' assassination attempt against Louis XV.[citation needed]

Modern times[edit]

G. E. Moore dealt with casuistry in chapter 1.4 of his Principia Ethica, in which he claims that "the defects of casuistry are not defects of principle; no objection can be taken to its aim and object. It has failed only because it is far too difficult a subject to be treated adequately in our present state of knowledge". Furthermore, he asserted that "casuistry is the goal of ethical investigation. It cannot be safely attempted at the beginning of our studies, but only at the end".[23]
Since the 1960s, applied ethics has revived the ideas of casuistry in applying ethical reasoning to particular cases in law, bioethics, and business ethics, so the reputation of casuistry is somewhat rehabilitated.
Jesuit Pope Francis has criticised "the practice of setting general laws on the basis of exceptional cases" as casuistry. [24]

See also[edit]

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FIRSTBORN

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FIRSTBORN

In the Bible

Primogeniture is a persistent and widespread institution whose legal, social, and religious features were reflected in the norms of ancient Israelite society. Biblical legislation gave the firstborn male a special status with respect to inheritance rights and certain cultic regulations, The latter, a part of a complex of cultic requirements, also applied to the first issue of the herds and the flocks, which, in the popular consciousness, were considered particularly desirable as sacrifices. Abel pleased God by offering Him firstlings of his flock (Gen. 4:4). The requirements of the cultic codes were based on the notion that the God of Israel had a claim on the first offspring of man and beast, which were to be devoted to Him in some manner. This notion also governed the prescriptions regarding the offering of the first fruits (see *First Fruits).
In biblical Hebrew usage the term bekhor, "firstborn [male]," and its derivatives, are somewhat ambiguous. The characterization of the human bekhor as reshit on, "the first fruit of vigor" (Gen. 49:3; Deut. 21:17; cf. Ps. 78:51; 105:36), stresses the relation to the father and adumbrates the first-born's status of principal heir and successor of his father as head of the family. At the same time, the specification that the bekhor be "the first issue of the womb" (peter reḥem; Ex. 13:2, 12, 15, etc.; cf. Num. 8:16), which reflects the religious significance of the first products of the procreative process in human and animal life, stresses the biological link to the mother. Whereas it was usually possible to ascertain the paternity of human beings, this clearly did not hold true of animals, and there was never any attempt to base animal cultic regulations on considerations of specific paternity.
Two rather distinct conceptions can be made out: a socio-legal one, which assigned exceptional status to the first male in the paternal line; and a cultic one which assigned special status to the first male issue of the maternal line. The socio-legal conception was preserved in legislation governing inheritance. In cultic legislation, thebekhor of the legal tradition was required – in order for the cultic regulations to apply – to be also the first issue of his mother's womb.
According to Deuteronomy 21:15–17, a father was obliged to acknowledge his firstborn son as his principal heir, and to grant him a double portion of his estate as inheritance. (Pishenayim means "two-thirds" [see Zech. 13:8], but the intention of the text is that the firstborn shall get whatever fraction a double portion may come to; in the case posited in the text, where there are only two sons, it is two-thirds, but where there are three sons, it is one-half, and so on; cf. the correct inference drawn in BB123a from I Chron. 5:1ff., which expressly terms Joseph's status as "firstborn" – Joseph received twice the portion of any of his brothers [Gen. 48:5, 22; ef. Rashbam toBB 123a].) This obligation was to apply irrespective of the status of the son's mother in a polygamous family. This inheritance right is termed mishpat ha-bekhorah, "the rule of the birthright" (Deut. 21:17), and the legal process by which the first-born son was so designated is expressed by the verb yakkir "he shall acknowledge." Undoubtedly the acknowledgment involved certain formal, legal acts which are not indicated in biblical literature. In a different context, God acknowledged Israel as his firstborn (Ex. 4:22; ef. Jer. 31:8). A son, addressing his father, might also refer to his own status as firstborn son (Gen. 27:19, 32).
It is evident from the composition of biblical genealogies that the status of bekhor was a pervasive feature of Israelite life. In many such lists there is a formula which specifies the status of the first-listed son. For example, Numbers 1:20: "The sons of Reuben, the firstborn of Israel, were…" (cf. e.g., Gen. 35:23; 36:15; Ex. 6:14, and frequently in the genealogies of I Chron.). Even in genealogies which do not specifically indicate the status of the first son listed, it is clear that he is the firstborn. There are suggestions in the Bible that primogeniture carried certain duties and privileges in addition to the estate rights (see Gen. 27; 48:13; Judg. 8:20; I Chron. 26:10, etc.). The second in line was termed ha-mishneh (I Sam. 17:13; II Sam. 3:3; I Chron. 5:12).
The status of the firstborn in royal succession is not clearly defined. The Israelite kings were often polygamous, and the relative status of several royal wives figured in determining a succession, making the Deuteronomic law cited above appear more like an ideal than a reality so far as the king was concerned. A king might, for a variety of reasons, also be disposed to officially reject one of his sons, Accordingly, there were instances where the first in the royal line of succession did not, in fact, succeed his father. It is not known whether the firstborn in families of the high priests had a special status. From the exception noted in I Chronicles 26:10 it is inferable that the firstborn of a levitical clan was normally placed in charge of his brothers. There is some evidence that the first-born daughter (bekhirah) was customarily married off before her younger sisters (Gen. 29:16ff.; I Sam. 18:17ff.).
In the Genesis narrative one sees how primogeniture was disregarded in the clan of Abraham. The son most suited to carry on the line of Abraham – with its attendant responsibility for transmitting the clan's unique religious belief – was acknowledged as the head of the family even if it meant passing by the firstborn; indeed even if it entailed banishing him from the household (Isaac was preferred to Ishmael, ch. 21: Jacob to Esau, ch. 27).
The terminology employed in Genesis, when compared to that of Deuteronomy 21:17, is problematic, and allowance for a degree of inconsistency in technical usage must be made. In Genesis, Jacob contends with Esau over two matters: first, the bekhorah, which Jacob secured from Esau, who despised it, in exchange for a cooked meal (Gen. 25:29–34); and second, the berakhah ("blessing") which Jacob secured by deceiving his elderly father into thinking that he was blessing Esau (Gen. 27). Of the two terms, the berakhah counted for more, probably because pronouncing the blessing was considered to be the act formally acknowledging the firstborn as the principal heir. Berakhah connotes both the blessing which is to be pronounced and the effects of the blessing, i.e., the wealth transmitted as inheritance. In Deuteronomy 21:17 the term bekhorah refers specifically to the estate rights.
Owing to his favored status, the firstborn was considered the most desirable sacrifice to a deity where human sacrifice was practiced. On the verge of a defeat, Mesha, king of Moab, sacrificed his eldest son and acknowledged successor (II Kings 3:27). In a prophetic passage, the sacrifice of the first-born is singled out as that offering which might be supposed the most efficacious for expiation (Micah 6:7). The importance of the bekhor is dramatized in the saga of the ten plagues God inflicted upon the Egyptians, the last of which struck down their firstborn (e.g., Ex. 11:5; 12:12). This serves as the etiology of the legal-cultic requirement that the male firstborn of man and beast in Israel were to be devoted to God. The Lord acquired title to Israel's firstborn, human and animal, by having spared them when he struck the firstborn of the Egyptians (Num. 3:13).
The priestly tradition goes on to explain that the Levites, as a group, were devoted to cultic service in substitution for all the firstborn Israelites (Num. 3:12). This would seem to be the historicization of a situation that in fact obtained independently of the particular events surrounding the Exodus. The laws governing the redemption of the firstborn (Ex. 13:15; 34:19, Deut, 15:19) presumably derived from a cultic matrix. At one time firstborn sons were actually devoted to cultic service as temple slaves, Nazirites, and the like; subsequently other arrangements were made for supplying cultic personnel while the erstwhile sanctity of the firstborn was lifted through redemption (cf. Lev. 27:1–8, and see below). This underlies the priestly traditions of the history of the levites and their selection for cultic service.
In the case of animals, male firstlings unfit for sacrificial use because they bore *blemishes or were of types considered impure could be redeemed by paying the assessed value of the animal, plus one-fifth (Lev, 27:26–27; cf. verses 9–13; Ex. 34:20; Deut. 15:19). The restriction of the requirement to male firstlings may reflect on economic consideration: very few males were needed for breeding purposes. This consideration may also figure in the predominance of male animals as sacrificial victims generally. Devoting firstlings to the cultic establishment served as a means of providing it with revenue (Num, 18:15–18; compare Deut. 15:19–23).
[Baruch A. Levine]

Redemption of the Firstborn

Rabbinic sources discuss at length methods of exchange and redemption (Mishnah, Bekhorot and Temurah). Neither kohanim nor levites need redeem their firstborn (Bek. 2:1). However, the firstborn son of a marriage between a kohen and a woman forbidden to him (e.g., a divorcee) does not have priestly rank and must be redeemed (Sh. Ar., YD 305:19), although the father may, in this case, keep the redemption money himself (R. Asher to Bek. 47b). In all cases the criterion is primogeniture from the mother's womb. A child is not regarded as a firstborn if his mother previously miscarried a fetus more than 40 days old (Sh. Ar., YD 305:23). Ordinary Jews whose wives are the daughters of kohanim or levites need not redeem their firstborn, but the son of a kohen's daughter and a non-Jew must be redeemed because his mother has forfeited her status. The firstborn son of a levite's daughter born under the same circumstances does not need to be redeemed (Bek. 47a). If there is a doubt regarding the primogeniture of a child, the child need not be redeemed (Sh. Ar., YD 305:22–25). The duty of redeeming the firstborn falls in the first instance upon the father. If he neglects to do so or if the child is an orphan, the son redeems himself when he reaches maturity (Kid. 29a). At one time a small medallion bearing the inscription ben bekhor was hung around the neck of such a child (Isserles to Sh. Ar., YD 305:15). It later became customary, however, for either the rabbinical court (bet din) or one of the child's male relatives to redeem him.
The Bible fixes the redemption fee at five silver shekels (Num. 18:16), and the father may choose any kohen to perform the ceremony by paying him this sum (in medieval times two Reichsthaler, today five U.S. dollars). It must be given in coins, but not money equivalents, such as securities, shares, etc. (Sh. Ar., YD 305:4). Special "redemption coins" are now minted in Israel for this purpose by the Bank of Israel and distributed by the Israel Government Coins and Medals Corporation. The kohen may return the money to the child's father (as did some rabbis in talmudic times, Bek. 51b), although the practice is condoned only when the father is very poor (Sh. Ar., TD, 305:8). On the other hand, the choice of a poor kohen (so as simultaneously to fulfill the mitzvah of charity) is approved.
The redemption ceremony (pidyon ha-ben) is held in the presence of the kohen and invited guests, and takes place on the 31st day after the birth. This is due to the fact that the child is not considered as fully viable until he survives the first 30 days of his life. Even if circumcision has not yet been performed (e.g., for health reasons), there should be no delay. Only if the 31st day is a Sabbath or festival is the ceremony postponed to the following weekday (ibid., 305:11). During the ceremony, the father presents his son, often on a specially embellished tray, to the kohen who asks him, in an ancient Aramaic formula, whether he wishes to redeem the child or to leave him to the kohen. In some sources the formula is given in Hebrew. The father, in reply, expresses the desire to keep his son, hands the redemption money to the kohen, and recites one benediction for the fulfillment of the commandment of redemption, and another of thanksgiving (She-Heḥeyanu). The kohen, three times pronouncing "your son is redeemed," returns the child to the father, This dialogue is purely symbolic. A declaration by the father that he prefers the money to the child would have no legal validity. Finally, the kohen recites a benediction over a cup of wine, pronounces the priestly blessing on the child, and joins the invited guests at a festive banquet (ibid. 305:10 and Isserles ad loc.).
According to halakhah the biblical laws commanding the sacrifice of firstborn "clean" animals and the redemption of firstborn he-asses (Ex. 13:2,12–15; 34:19–20) should also be observed today. However, because of the suspension of the sacrificial system after the destruction of the Temple, the first-born clean animals have to be given to a kohen after they have attained the age of 30 days (for sheep or goats) or 50 days (forlarge cattle). He keeps them, without deriving any benefit from them, either until they die a natural death – when the carcass may be used – or until they suffer a blemish which would have made them unfit as a sacrifice – when they may be eaten or used for any other purpose (Tur and Sh. Ar., YD 313:20). It is, however, forbidden to inflict a blemish deliberately (Sh. Ar., YD 313. 1). A firstborn he-ass should be redeemed from the kohen by giving him a sheep or its equivalent value in money (Tur and Sh. Ar., YD 321).

Fast of the Firstborn

Fast of the Firstborn (Heb. תַּעֲנִית בְּכוֹרִים, ta'anit bekhorim), fast observed by primogenital males on the 14th of Nisan i.e., the day before *Passover. This traditional custom seems to stem from the desire to express gratitude for the saving of the firstborn Israelites during the tenth plague in Egypt (Ex. 13:1ff.). According to talmudic sources (Soferim, ed. by M. Higger (1937), 21:1) the custom was already observed in mishnaic times. Another source mentions that R. Judah ha-Nasi fasted on this day; his fasting, however, is explained by some as a wish to stimulate his appetite for the maẓẓah (unleavened bread) at the seder meal (TJ, Pes. 10:1,37b and compareSoferim, loc. cit.). The fast became an accepted traditional custom obliging all males whether firstborn to their father or only to their mother, and in some opinions even firstborn women, to fast (Sh. Ar., OḤ 470:1). If a child is too young to fast (under the age of 13), his father fasts instead of him; if the father is firstborn, the child's mother fasts in lieu of the child (Isserles to OḤ 470:2). Should the first day of Passover be on a Sabbath, the fast is observed on the preceding Thursday; according to amore lenient ruling, it is suspended (ibid.). However, since one is permitted to break this fast in order to partake of a se'udat mitzvah (a meal accompanying a religious celebration, such as a circumcision) it was laid down that the celebration of the hadran constituted such a meal. The custom thus evolved to finish the study of a Talmud tractate on the morning before Passover, at which occasion a festive banquet is arranged in the synagogue, at which firstborns participate, and they need not therefore fast. Through this device, the Fast of the Firstborn is practically in desuetude (see *Fasting and Fast days).

Legal Aspects Concerning the Firstborn

DEFINITION OF PRIMOGENITURE

The sole difference in the status of the firstborn son as compared with that of his brothers is his right to a greater share in their father's inheritance. This status is known as bekhor le-naḥalah (firstborn or primogeniture as to inheritance) and derives from the verse "he must acknowledge the firstborn the son of the unloved one, and allot to him a double portion of all he possesses; since he is the first fruit of his vigor, the birthright is his due" (Deut. 21:15–17). The firstborn in this context is the first son born to the father, even if not so to the mother, since it is written, "the first fruits of his vigor" (Bek. 8:1 and see commentators). Even if such a son is born of a prohibited union, e.g., the son of a priest and a divorced woman, or a mamzer born as first son to his father – he is included, on the strength of the words "he must acknowledge the firstborn, the son of the unloved one" (Deut., loc. cit.), the term a "loved" or an "unloved" wife being interpreted as relating only to the question whether the wife's marriage was "loved" or "unloved," i.e., permitted or prohibited (Yev. 23a and see Rashi and Posekim ad loc.). The prerogative of the firstborn never extends to a daughter, not even in a case where she has a right of inheritance (Sif. Deut. 215; see *Inheritance). A son born to a proselyte to Judaism, who had sons before he became a proselyte, does not enjoy the prerogative of a bekhor le-naḥalah, since he is not "the first fruits of his vigor" (Yev. 62a; Bek. 47a; Posekim ad loc.); on the other hand, if an Israelite had a son by a non-Jewish woman and thereafter has a son by a Jewish woman, the latter son does enjoy the prerogative, since the former is called her, and not his, son (Maim. Yad, Naḥalot 2:12). A first son who is born after his father's death, viz., if the mother gives birth to twins, is not considered a bekhor le-naḥalah since it is written "he must acknowledge" (Deut. 21:17) and the father is no longer alive to do so (BB 142b; Rashbam and Posekim ad loc.).

PROOF OF PRIMOGENITURE

In determining the fact of primogeniture reliance is placed upon the statements of three persons – the midwife, the mother, and the father. That the midwife is relied upon immediately after the son's birth (where twins are born) is derived from Genesis 38:28 (see TJ, Kid. 4:2,65d); the mother is relied on during the first seven days after childbirth, since the father has not yet succeeded in "accepting" or recognizing the child, as he does not pass out of his mother's hands until the circumcision; thereafter the father's determination is accepted at all times, since he "must acknowledge his son" – i.e., recognize the child as his firstborn son personally and before others. The father's determination is relied upon even if he thereby assails the status of his other sons, as may happen if he acknowledges as his firstborn the youngest of several sons borne by his wife after they married each other – thus characterizing the other sons as mamzerim (Yev. 47a; Kid. 74a and Posekim ad Lec.; see also Mamzer). However, the father is not believed in this last-mentioned case if the disqualified son already has children of his own, as the disqualification would also affect their status – for which purpose the law does not authorize reliance on his words (Yev. 47a and Posekim; Ozar ha-Posekim, EH, 1 (1955), 192, sec. 4:137).

4TH BIRTHRIGHT PREROGATIVE

The firstborn is entitled to a "double portion," that is, he takes twice the portion due to each of his brothers from their father's inheritance. Thus if the father has left a firstborn and two other sons, the former takes one-half and the latter one-quarter each of the estate (BB 122b–123a and Posekim). The prerogative does not extend to the mother's estate (BB 111b, 122b and Codes).
The firstborn takes a double portion only of the present and not of the contingent assets, i.e., only of the assets in the father's possession at the time of his death and not such as were due to come into his possession thereafter. Thus, if the father predeceased any of his own legators, the father's share in their estate passes through him to his own heirs, the firstborn taking only the share of an ordinary heir. This rule embraces debt still owing to the father at his death, even if under deed or bond, since the debt is considered an asset still to fall due and not yet in possession. If, however, the loan was secured by a pledge, or mortgage, the firstborn takes a double portion since in Jewish law the creditor acquires a right over the pledged property (Git. 37a) and a loan thus secured is therefore considered as an asset in possession (see generally Bek. 51b–52a; BB 125b; commentators and Posekim ad loc.). For the same reasons the firstborn does not take a double portion of improvements or increments from which the father's estate has benefited after his death, except with regard to natural increments – as for instance in the case of a sapling which has become full-grown (ibid.).

OBSERVANCE OF PREROGATIVE-PEREMPTORY ON THE FATHER

The above-mentioned underlying biblical injunction precludes the father from depriving the firstborn of his particular right of inheritance. Consequently, any form of testamentary disposition (see *Wills) by a father purporting to bequeath to the firstborn less than his prescribed double portion of the inheritance is null and void. This rule only applies, however, where the father has clearly adopted the language of a testator, since a father cannot change the laws of inheritance as such (Maim., Yad, Naḥalot 6:1). Consequently, if the father has expressed himself in terms of making a gift, his disposition will stand (although "the spirit of the sages takes no delight therein," BB 133b and see Posekim), since he may freely dispose of his assets by way of gift. Since the exercise of the birthright involves a corresponding greater liability for the debts of the estate, the firstborn may escape such additional liability by way of renouncing his prerogative before the division of the estate (BB 124a; Sh. Ar., ḤM278:10).

STATE OF ISRAEL LAW

The Law of Inheritance 5725 – 1965 of the State of Israel does not include any prerogative of the firstborn.
[Ben-Zion (Benno) Schereschewsky]

BIBLIOGRAPHY:

A.S. Hartom, in: EM, 2 (1954), 123–6 (incl. bibl.); I. Mendelsohn, in: BASOR, 156 (1959), 38–40; Redemption of the Firstborn: Eisenstein, Dinim, 43–4, 333–4; H. Schauss, The Lifetime of a Jew (1950), 18, 29, 48–50; N. Gottlieb, A Jewish Child Is Born (1960); Fast:, Das mosaisch-talmudische Erbrecht (1890), 12–14, nos. 16–20; R. Kirsch, Der Erstgeborene nach mosaisch-talmudischem Recht, 1 (1901); Gulak, Yesodei, 3 (1922), 10, 74–76, 78, 84f., 102, 131; Herzog, Instit, 1 (1936), 50; ET, 1 (19513), 4f.; 3 (1951), 276–83; 11 (1965), 37–39; B.-Z. Schereschewsky, Dinei Mishpahah (19672), 353–8. ADD BIBLIOGRAPHY: Elon, Ha-Mishpat ha-Ivri (1988), I,110, 112, 279, 770, III, 1413; Idem., Jewish Law (1994), I, 124, 126, 329, II, 948, IV, 1683.

Briffault's Law:

8:37 PM | BY ZeroDivide EDIT
Briffault is known for what is called Briffault's Law:

The female, not the male, determines all the conditions of the animal family. Where the female can derive no benefit from association with the male, no such association takes place. — Robert Briffault,The Mothers, Vol. I, p. 191

Commentary on works[edit]

In 1930, H. L. Mencken wrote the following in his Treatise on the Gods:

Primitive society, like many savage societies of our own time, was probably strictly matriarchal. The mother was the head of the family. ...What masculine authority there was resided in the mother's brother. He was the man of the family, and to him the children yielded respect and obedience. Their father, at best, was simply a pleasant friend who fed them and played with them; at worst, he was an indecent loafer who sponged on the mother. They belonged, not to his family, but to their mother's. As they grew up they joined their uncle's group of hunters, not their father's. This matriarchal organization of the primitive tribe, though it finds obvious evidential support in the habits of higher animals, has been questioned by many anthropologists, but of late one of them, Briffault, demonstrated its high probability in three immense volumes [The Mothers: A Study of the Origins of Sentiments and Institutions]. It is hard to escape the cogency of his arguments, for they are based upon an almost overwhelming accumulation of facts. They not only show that, in what we may plausibly assume about the institutions of early man and in what we know positively about the institutions of savages today, the concepts inseparable from a matriarchate color every custom and every idea: they show also that those primeval concepts still condition our own ways of thinking and doing things, so that "the societal characters of the human mind" all seem to go back "to the functions of the female and not to those of the male." Thus it appears that man, in his remote infancy, was by no means the lord of creation that he has since become."[9
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