29 Jun

What does it mean to undertake a widely successful campaign that leads simultaneously to social change and the fulfillment of personal aspirations? Does the winning team earn a place of adoration in the narrative of its affinity group?  Will the recipe for success merit notoriety and be coined with popular terminology?

These questions have broad application to a host of sweeping laws and decisions in our shared history - The New Deal, The Civil Rights Act, Miranda v Arizona, and HIPAA, to name a few that transpired in the 20th century.  Each of these examples have powerful stories and bold personalities attached to them, some of which are widely disclosed and known; for example, The New Deal is synonymous with President Franklin D. Roosevelt.
And then there are those victories that are no less important, but have evaded the idealization of a person or group.

Tucked away in this week’s Torah Portion of Pinchas, which is famous for the zealotry of its namesake and the extensive litany of of sacrificial offerings, is a great story in which God is moved to alter the Scriptural laws of inheritance in response to the endeavor of five women who pursue justice.  While they received an encore mention in the concluding chapter of the Book of Numbers, the names of Mahlah, Noa, Hoglah, Milcah and Tirzah do not land in the curricula of Hebrew Schools nor are we familiar with them other than for the notoriety of later daughters of the Jewish people who were given their respective names.  In order to do justice to their campaign of justice, let us paint a bit of context.

As the Book of Numbers draws to a close and the Israelites are on the verge of entering the Promised Land, Moses explains how the land of Israel would be allocated to the various tribes.  Out of concern for the retention of land holdings within each family he proceeds to cover the rites of inheritance, which would be manifested through the succession of the fathers by their sons. If there were no male descendants, then according to the rules, that person’s land would go to his brothers of the deceased - even if there were surviving daughters. The daughters of Zelophehad, who had no brother, recognize the shortfall of the new legislation and approach Moses and the leaders, and submit an appeal for a share in the land, presenting the argument: “Let not our father’s name be lost to his clan just because he had no son! Give us a holding among our father’s kinsmen!” (Numbers 27:4)

A bit stymied by this encounter, Moses referred their case to God, who answered: “The plea of Zelophehad’s daughters is just: you should give them a hereditary holding among their father’s kinsmen; transfer their father’s share to them.  Further, speak to the Israelite people as follows: ‘If a man dies without leaving a son, you shall transfer his property to his daughter …” (ibid 27:7-8)

We might ask why God was so responsive in this episode; knowing that he would deny Moses on his own appeal to enable him to enter the Land after having been stripped of that privilege in the aftermath of his behavior when striking the rock a few chapters earlier.

What is it that registers with the Divine Judge that enables this amendment?

Many will reply that it is simply the rendering of justice:  a gap in the law was disclosed and God simply corrected the rules to read as they should have gone from the outset.  While I am all for that contention, I would argue that God’s decision had as much to do with the form of the appeal as it did with the content.My lead support is Rabbenu Bachya, who cites the Talmud in his recognition of the attitude and discretion of B’not Zelphechad:  Our sages in Baba Batra 119 state that although ordinarily this halachah should have been recorded as “written” by Moses, the fact that the daughters of Tzelafchad were careful to preserve the dignity of all the people possibly concerned with this legislation is presented as if it had been “written” by them.

Rabbi Matthew Berkowitz (2020) adds color to their choice of decorum:  “Far from coming with justified rage and aggression (as Korah and his cohort do – vayakumu lifnei Moshe, “They rose up before Moses”)—the Torah’s language is nuanced: vatikravnah and vata’amodna—they “come close” and “stand confidently” before leaders of Israel. Once before these elders, they rationally explain their case—first by defusing any residual tension related to the uprising of Korah (they state clearly that their father was not involved) and second, by stating their cause in a compelling and just way... They know well that courage and kavod (respect) are critical elements that will lead them a step closer toward perpetuating the memory of their father.”

Interestingly, notes Rabbi Berkowitz,  this is one of four cases in the Torah when the Torah’s instructions prove insufficient—even for the greatest prophet of Israel—to render a decision. Though Moshe does not explicitly acknowledge that he doesn’t know the answer, his actions clearly confirm this. Moshe brings the case before God and hopes the matter will be resolved through counsel with the Divine. Far from worrying about how others would perceive this gap in his knowledge, Moshe embraces the occasion. It is an et ratzon, auspicious moment, for him that demonstrates admirable leadership.  Moreover, this is a profound moment of healing for Moshe, in the wake of his disappointing demotion by God.  He begins to understand that others will have a share and a legacy in the evolution of Biblical Law (not to mention the vast corpus of Rabbinic Law that will succeed it).  Moses, as the leader of the Children of Israel, could have simply restated the laws of inheritance—reinforcing the absolute law of Torah rather than acknowledging a gap in his own knowledge.   Instead of doubling down, Moses and God ante up!

The most powerful punctuation mark on this story is when  God states clearly that the plea of the daughters “is just” and requires an addendum to the law of inheritance promulgated in the initial draft. Yet, far from being limited only to Zelophehad and his daughters, this expanded law will now apply to all of Israel. Granted, sons will still be considered the natural heirs, but if the deceased does not have sons, from this moment on, the daughters will become the heirs—empowered to perpetuate the name of the deceased for generations to come.  

In conclusion, the combined terminology of Moses’ and Gods’ instincts underscores the principle that legislative reform is equivalent to justice.  Laws, in other words, were made to be amended when sufficiently compelling arguments can be made about their flaws.  While their notereity is limited in our popular retelling of Biblical history, and their adoration is only manifest when someone takes the task of illuminating their story, B’not Zelophehad had an enormous lesson to teach us about alternative paths to power and persuasion.

Works Cited:

"The Courage to Not Know" - Rabbi Matthew Berkowtiz (JTS Torah Online, 10 July, 2020)

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