We should talk about the Daughters of Tzelophehad more.
This is one of the most important narratives in the Torah, and it doesn’t get a lot of attention. The basic story is this: God has recently given the laws of land inheritance, in preparation for entering into the Land of Israel. And the standard rule is that when the head of the household dies, the land will be divided among the sons in the family.
Now a modern ear can probably already hear the problem with this formula. It’s so obvious: What about daughters??
But in those days, it took a family with only daughters to realize that the law, as written, would cause them to lose their land completely once the patriarch died. And that is exactly the case that the Daughters of Tzelophehad – Makhla, Noa, Hogla, Milka, and Tirtza – bring before Moses:
Why should the name of our father be lost from family because he had no son? Give us a holding among our father’s brothers! (Numbers 27:4)
לָמָּה יִגָּרַע שֵׁם אָבִינוּ מִתּוֹךְ מִשְׁפַּחְתּוֹ, כִּי אֵין לוֹ בֵּן; תְּנָה לָּנוּ אֲחֻזָּה, בְּתוֹךְ אֲחֵי אָבִינוּ.
And Moses, the great leader and the supreme judge of the Children of Israel… has no idea what to say to them. He seems stumped by the question. So he brings their case before God. And God’s response is one of the most surprising and critical lines in the whole Torah:
The Daughters of Tzelophehad speak correctly. You shall surely give them a holding among the brothers of their father, and you shall cause the inheritance of their father to pass over to them. (v. 7)
כֵּן, בְּנוֹת צְלָפְחָד דֹּבְרֹת נָתֹן תִּתֵּן לָהֶם אֲחֻזַּת נַחֲלָה, בְּתוֹךְ אֲחֵי אֲבִיהֶם; וְהַעֲבַרְתָּ אֶת נַחֲלַת אֲבִיהֶן, לָהֶן.
That’s it. They’re right. And just like that – the law has been changed! There was a clear rule, given by God. It was contested, on the basis of a fairness principle. And then God Almighty, the Lawgiver, the ultimate and absolute source of truth and justice, simply affirms the merit of the claim and rewrites the law.
Now this is astounding, for all kinds of reasons. First of all, this case is often held up as a testament to a kind of proto-feminist streak in the Bible. It is certainly striking how prominently the story highlights women advocating for their rights. Of course, the rights gained do not constitute full equality (remember that in a family with sons, the men still inherit), and would hardly satisfy a contemporary feminist. As an ancient beginning, however, it is not bad; and the explicit claim for women, by women, is unusual in the Torah’s narrative.
But the implications of this case go far beyond the realm of women’s rights, and ultimately begin to raise provocative questions about the nature of Biblical Law itself.
Jewish tradition often operates on the assumption that the Law of the Torah is perfect and unchanging. If God commands something, it becomes inscribed in reality with the permanence of a physical force – like gravity. There is room for all kinds of theological speculation in Judaism, but the laws of the Torah – these are fixed!
Then we come upon many stories in the Talmud that suggest that the rabbis had the unique license to challenge or reinterpret Biblical Law, and these moves appear quite radical. The rabbinic method of legal interpretation seemed to some almost like a new religion – and it was often challenged it as such. Entire books – many of them – have been written attempting to understand the nature and extent of rabbinic legislation.
But the idea that in the Torah itself there is an explicit case of legal amendment – this seems almost paradoxical. It is as if God hears the Daughters of Tzelophehad challenging the legitimacy of a Divine edict, and responds: “Oh. Good point. I hadn’t thought of that. Ok, yeah, let’s just change it.”
What?! What kind of God is this? What kind of Law is this?
But perhaps most importantly, what kind of women were these? Who were the Daughters of Tzelophehad, and how did they manage to bring a claim of injustice all the way to the top – to the very Arbiter of justice – and win their case instantly?
The Talmud answers this question directly, though somewhat cryptically, with three words:
The Daughters of Tzelophehad were wise, seeking, and righteous. (Bava Batra 119b)
.בנות צלופחד חכמניות הן, דרשניות הן, צדקניות הן
Wise, seeking, and righteous. Well, that’s lovely. And we might assume these are just three nice things to say about these nice ladies. But in fact, the Talmud goes on to take great pains to prove each one of these attributes to be true of the Daughters, through a careful reading of verses.
Why do we need such exacting proofs for what seem to be just general personality traits? Perhaps because instead of mere personal qualities, these adjectives can be seen as describing three possible approaches to the question of what it was the Daughters of Tzelophehad managed to do to overturn the law. And if we view the descriptives this way, as three theories of law, we find that each approach has further echoes in rabbinic tradition. Let’s take a look.
The Daughters of Tzelophehad were just smarter than anyone else. They understood things that others had missed – even Moses. In this version of the story, God isn’t actually changing the law; God is revealing the true law to the people who were wise enough to intuit it.
This characterization of the event is best articulated by the rabbis in the Sifrei, a running commentary on the book of Numbers, as follows:
“The Daughters of Tzelophehad speak correctly…” Their claim is correct [said God], for this is exactly what was written before Me on high.
ויאמר ה‘ אל משה כן בנות צלפחד דוברות. יפה תבעו בנות צלפחד, שכך כתובה פרשה לפני במרום.
And Rashi adds to this:
Their eyes saw what Moses’ did not.
ראתה עינן מה שלא ראתה עינו של משה
Even though Moses heard it directly from the mouth of God, he must have misunderstood. And the Daughters of Tzelophehad were essentially saying to him, “Are you sure you got that right? Maybe you want to check again?” So he did. And it turned out, they were right. Case closed.
This category is tricky, because it requires some re-translation. “Seeking” is the literal meaning, but the word in Hebrew, “darshan,” has the very clear connotation of a particular learning style – midrash – which suggests a “seeking” of meaning in the text by way of a creative re-reading of the words.
So the Daughters of Tzelophehad were not just smart enough to get the “true” meaning of the law; they were also bold enough to suggest a new truth, a new understanding of the law, informed by their own ethical sensibilities, but cleverly read into the original words.
This suggestion is particularly radical, because it implies that they challenged God directly, and somehow God relented. And this is – shockingly – precisely how the Midrash Tanchuma puts it:
“The Daughters of Tzelophehad speak correctly…” For the Holy Blessed One admitted to the truth of their words.”
כן בנות צלפחד דוברות, שהודה הקב“ה לדיבורן.
God “admitted” they were right! This means that God was not revealing the original intent of the law, but conceding to their claim against it. The Daughters of Tzelophehad won.
This is actually the dominant approach. These women were just saints, and that’s why God changed the law for them. They merited it through their personal righteousness. Here’s how another passage in the Talmud puts it:
The Daughters of Tzelophehad merited that the law be written through them…This is to teach you that punishment is brought about through the sinful, and reward is brought about through the righteous. (Sanhedrin 8b)
זכו בנות צלפחד ונכתב על ידן… ללמדך שמגלגלין חובה ע“י חייב וזכות על ידי זכאי
Now, it’s wonderful that these women were so righteous. But this approach seems to put the whole interchange less in the realm of legal argument, and present the change in the law instead as a “gift” to these women – based not on the nature of their claim, but on the content of their character.
Doesn’t that answer, however, take away the whole force of the story? This has nothing to do with feminism, or with legal change, or with anything out of the ordinary. This is just another story of God doing good for the righteous.
But then, we cannot forget our original point of amazement: the fact that God changed a law that had already been given. God may bestow reward and punishment in all kinds of ways, but we do not expect that to come in the form of rewriting the Torah.
So perhaps this last approach offers certain a kind of legal theory after all. Perhaps the point is that when people bring claims of injustice, part of the process of evaluating their case is to consider the righteousness of the people standing before us. If truly good people are outraged, doesn’t their goodness itself testify to the truth of their outrage?
This notion would not carry weight in every legal system. But in the Court of God, Law must be more than abstract, unchanging principles of order; it must take into account the human subject which is also the creation of God.
We live in a time when laws are changing. And many in the religious camp are rushing to maintain firmly that Divine Law can never change. Some offer sympathy for those who may suffer within it, who seem to be good people, righteous people. But, they say, what can we do? Our hands are tied. A law is a law if the Torah says it is. We can express our compassion, but we cannot undo what God has done.
Apparently, however, God can – and does – undo what God has done. But God does not do so unilaterally. God waits for us to make the case.
God is waiting for us to be wise. God is waiting for us to seek justice. God is waiting for the righteous to come forth, and receive their reward.
Where are the Daughters of Tzelophehad when we need them?