The Legal Case When Women Amended the Torah
In the Torah portion Pinechas (Numbers 25:10-30:1), we read about the second census of the families of Israel. Unlike the census in Numbers 1, wherein the old generation that came out of Egypt was counted, here in Numbers 26 the census recorded the new generation that was about to enter the Land of Kena’an. In the record of this census we are given to know that there was a certain man named Tselophechad who had left no sons, but five daughters. No less than three chapters in the Book of Numbers (26, 27, and 36) are dedicated to these women where they are mentioned by names. Why that special attention by Mosheh? In order to prepare the readers for the legal amendment in the Torah that was legislated in their names, to which this fact gave rise. We will explain this in the following vein.
After the sin of the ten spies, 38 years had passed, and now the new generation of Israel led by Mosheh and Eleazar the High Priest that was born in the desert came to the threshold of the Promised Land. There the Supernal commanded Mosheh to take a census of all the congregation of Israel from twenty years old and above, by their fathers’ houses, everyone who was able to go the army of Israel (Numbers 26:2). The total number of all registered in the census of all Israel was 601,730 (Numbers 16:51).
Immediately after the census, the Supernal spoke to Mosheh saying: “To these shall the Land be divided as an inheritance, according to the number of names”, wherein “to these” means those who remained alive in the desert and those who had survived the plague that struck the nation as a consequence of their immorality with the Moabite women. He also legislated that “To the large one you give a larger inheritance, and to the small one you give a smaller inheritance. Each shall be given its inheritance according to their registered ones”. The land was to be divided by lot between the larger and the smaller (Numbers 26:53-56).
At the conclusion of the census, we learn something that is relevant even today: Those who are able and willing to serve in the army of Israel and fight for the land are worthy of inheriting the Land. To these [fighters] shall the Land be divided. The land was to be divided first according to the number of their names (601,730) and then according to their fathers’ houses. For comparison, those who were counted 38 years earlier in Numbers 1 were 603,550; Mosheh brought to the Land less people that he took out Egypt. We explained this difference in the book “The Reckoning of Time”.
It is the opinion of the Rabbis that all tribes received equal amounts of land regardless of how numerous they were. And then there was an internal division of the land within each tribal territory. Families that had many children received larger plots than families who had only few children. Kalev and Yehoshua did not receive their portion of the land through lots but by a direct command from the Supernal, as it says, “They gave Hevron to Kalev as Mosheh had spoken” (Judges 1:20), and it further says, “According to the word of the Lord, they gave him (Yehoshua) the city he had requested” (Joshua 19:50). As we explained in the forementioned book, it took seven years to conquer the land and then seven years to divide the land under the leadership of Yehoshua.
In the second census the families of the tribe of Menashsheh, the son of Yoseph, were counted, and their number was found to be 52,700 (Numbers 26:34). Soon after the census had been completed and the law of the inheritance was given, the five daughters of Tselophechad of the tribe of Menashsheh, Mahlah, Noah, Hoglah, Milcah, and Tirzah, came to Mosheh with their concern, as we keep on reading in Chapter 27.
Then drew near the daughters of Tselophechad, the son of Hepher, the son of Gilead, the son of Machir, the son of Menashsheh, of the families of Menashsheh the son of Yoseph; and these are the names of his daughters: Mahlah, Noah, and Hoglah, and Milcah, and Tirzah. (Num 27:1)
The five sisters approached Mosheh, Eleazar the High Priest, and the elders (v.2), when they realized that only the males had been counted for the purpose of dividing the land, but not them and their diseased father Tselophechad. And the women said to Mosheh and Eleazar the High Priest,
Our father died in the wilderness, and he was not among the company of them that gathered themselves together against the Eternal in the company of Korach, but he died in his own sin; and he had no sons. (Num 27:3)
The present author would like the reader to appreciate the true meaning of their words in verse 3. Two things should be noted here in the women’s claim. They said explicitly that their father was not among the rebels in the uprising of Korach against Mosheh, but he had died as the result of his own sin. From this statement we may derive the following. Read between the lines their explicit assertion means that he was not twenty years of age when the spies rejected the Land, so that he could have been included in the Israelites who had to die in the desert and did not take part in the conquest on the land. Neither of these facts is in question.
Insight: Who was Tselophechad? Tselophechad was the grandson of Gilead of the tribe of Menashsheh. Gilead’s allotted portion was in the land east of the Yarden. Hence we should have expected Zelophechad’s daughters to inherit their portion in the land east of the river. However, when the time for the actual distribution of the land came in the time of Yehoshua (see Joshua 17:3-6), they received their portion on west side of the Yarden River. According to Sifrei Bamidbar 134:1, Bava Batra 118b, Tselophechad was entitled to two portions: (1) the portion of their father who was one of those who came out of Egypt, and (2) his portion that he should have had together with his brothers in the portion of his father Hefer, who also was one of those who left Egypt. We now return to the text.
And then Mosheh brought their case before the Supernal One (Numbers 27:5). At first glance at the plain reading of the text in verse 5 (“Mosheh then brought their case before the Eternal”), it is easy but premature to assume, as most commentaries have done it, that Mosheh did not know how to judge their case, for he had no enough knowledge to the matter. We disagree with such a simplistic interpretation, for nothing like this is even suggested in this short statement of verse 5. The verse simply recorded the fact that Mosheh brought the daughters’ case before a higher court, and no reasons are given to say that he did not know how to handle the case.
Now, while some commentaries suggest that by bringing the case before the Lord, Mosheh showed weakness and lack of knowledge of the Torah, as we find in Sanhedrin 8a: “The law on this subject escaped him”, others explain it otherwise.
With that said, more careful reading of the whole episode begs for the following questions that need to be raised before the studious reader. And the questions to be asked here are: What did Tselophechad’s daughters see that Mosheh did not? And had they had a finer perception of what was just in the law of inheritance than Mosheh had? And how could Mosheh, who was the lawgiver and therefore more knowledgeable than any other in Israel, have failed to know this simple interpretation of the laws on the Torah? And the last but not the least, did the Omniscient One not know that there was man in Israel who died and who left behind no sons? And why did He not include in the Torah a clause that would have covered such cases, for we would have expected the Torah to write about it?
The whole subject in presenting this legal case is extremely puzzling for a thinker, when we look only at what has been revealed to us in the narration. All of this places the thinker in perplexity and demands explanation. To a deeper understanding of what the daughters of Tselophechad did we now turn. Let us again review the legal claim of the five women.
Certainly, Eleazar, and the elders of the entire congregation could not be expected to know an answer which even Mosheh himself did not know. But it is safe to assume that the whole assembly of people was there to ensure that they would all hear their leader’s reply on an issue as sensitive as the right of inheritance of women hoping that Mosheh would not rule unfairly.
When the daughters of Tselophechad made their case before Mosheh, they also said [purposely] that their father did not join in the Korach’s rebellion [“against you, Mosheh”]. Furthermore, the women did not mention it, but Mosheh knew it that their father was not twenty years of age at the time of the spies, and therefore he was not judged with them to die in the desert, for the daughters said: “but he died in his own sin”. They thus wanted to convince Mosheh that they harbored no enmity against him seeing that it was public knowledge that their father had not participated in the rebellion of Korach. And then they added, “he had no sons”, i.e. they said, “we are his inheritors”, so that they should certainly receive a possession of their father’s inheritance. In other words, they contended that just because their father did not have sons he did not deserve to lose his portion of the Land of Israel, to which his daughters now made their case before the entire assembly.
With these things considered, Mosheh brought their case before YHVH, (1) either because he did not have clear instructions pertaining to this type of legal case, (2) or he was fully aware that the daughters of Tselophechad were entitled to a share in the land. Mosheh might have also realized that if he had taken their case to solve, he would not have been impartial, and Tselophechad’s loyalty to him would have blinded him, since his daughters put this fact forward for his consideration. Instead of exposing himself to feelings, Mosheh was very cautious not to be subjective in his judgement, and he brought the case before the Omniscient One to judge justly. And the Omniscient took the case and said …
The daughters of Tselophechad speak what is right. You should certainly give them a possession of inheritance among their father’s brothers, and cause the inheritance of their father to pass to them. (Num 27:7)
The Righteous One expressed appreciation of the logic demonstrated by the daughters of Tselophechad when they had presented their case before Mosheh and elders. It was really the inheritance of their father, as He said, “You should certainly give them a possession of inheritance”. And then from this private case, He legislated what seems to be the last command in the Torah to the children of Israel, saying,
When a man dies and has no son, then you shall cause his inheritance to pass to his daughter. And if he has no daughter, then you shall give his inheritance to his brothers. And if he has no brothers, then you shall give his inheritance to his father’s brothers. And if his father has no brothers, then you shall give his inheritance to the nearest relative in his clan, and he shall possess it. (Num 27:8-11)
The specific case given in response to the request of the sisters is now formulated as a general principle that became an integral part of the Torah. With this new clause of the law of inheritance, the right of ownership of the five sisters was preserved, as long as they married within their own tribe so that the tribe of Menashsheh would not lose land to other tribe. Thus, in the honor of the five daughters this additional clause became a universal law for all Israel: the inheritance of the Israelites will not be transferred from tribe to tribe, for each person from the Israelites will remain attached to the inheritance of his fathers’ tribe. The only exception to this was that the descendants of Kalev and Yehoshua were given land from the inheritances that was meant for the other spies’ children, as the verse states: “But Yehoshua, son of Nun, and Kalev, son of Yephunneh, lived of those men that went to spy out the land” (Numbers 14:38). For the importance of this new clause of the law of inheritance, a whole new chapter (Numbers 36) testifies when the tribe of Menashsheh raised again this issue before Mosheh.
And as the Eternal commanded Mosheh, so did the five sisters Mahlah, Tirzah, Hoglah, Milcah, and Noah. They were married within the tribe of Menashsheh, the son of Yoseph, and their inheritance remained in the tribe of the family of their father (Numbers 36:10-12). The Sages stated however that this decree applied only during the first generation that took possession of the land. But once the actual distribution of the land had been completed (14 years after they entered the land), such a daughter, who is the only inheritor of her father, is free to marry any male from any other tribe of Israel.
This whole story suggests that in the entire period of 38 years in the desert only one family in Israel did not give sons. The five daughters of Tselophechad evidently had a passionate love for the Land of Israel. Being direct descendants of Yoseph, they loved the land they had never seen, as Yoseph loved it so much that he had his brothers take an oath that they would take his bones with them when the time to live the foreign land would come. Yoseph wanted his bones to be buried in the land he was born in, yet how much love these five women had for the land they had never seen, when they requested a portion of it. In their honor, the Legislator included a new clause in the law of inheritance. But did the Legislator omit this clause when He gave the law? What indeed happened?
The Omniscient One saw how zealously the daughters of Tselophechad defended their father’s name and how they sought justice to fill in the “void” in the law of inheritance, while harboring no enmity against Mosheh. The daughters of Tselophechad believed that they did not deserve to lose their portion of the Land of Israel. He also saw that Mosheh was not willing to judge their case partially but instead sought aid from heaven for fair handling. When all these “missing” pieces of the picture had fallen into place, the Legislator completed the law with the clause that women were should inherit a land from their father, as it was meant to be in the beginning. And then He said to His servant, “you shall go up into the mountain of Avarim and shall behold the Land [but you shall not enter it]”.
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