Tzelofchad’s Daughters and Open Orthodoxy

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R. Ysoscher Katz, in an attempted rebuttal to Rav Hershel Schachter’s responsum on girls wearing tefillin, offered a number of arguments. In the past, we examined his claim that Rashi held the bar low for issuing halakhic rulings (link). Here I would like to discuss his statement that Tzelofchad’s daughters successfully requested equal inheritance rights, thereby contradicting Rav Schachter’s claim that this was a Sadducee, and therefore inappropriate, endeavor.

In the English translation of R. Katz’s letter, he writes (link):

With apologies to Kevod HaRav, the Sadducees were not the first to complain about discrimination against women in issues of inheritance; they were preceded by hundreds of years by the daughters of Zelaphchad who complained (Num 27:4) “Why should the name of our father be lost among his family because he had no son? Give us a possession among the brothers of our father.” And in the language of the Sifre “Their eyes saw that which Moses’ eyes did not see” (that is that there are times when women can see something that even someone as great as Moses, who spoke with the Shechina “mouth to mouth,” did not see.) And God consented to their words unequivocally: “Correctly have the daughters of Zelaphchad spoken.” God listened to their claim (“God conceded the truth!” Avot D’Rebbe Natan Ch. 37) and changed the laws of inheritance to make them more egalitarian (relatively, as should be understood)

Surprisingly, R. Katz claims that Tzelofchad’s daughters argued against “discrimination against women in issues of inheritance.” I say surprisingly because, as we shall see, the words he subsequently quotes contradict this claim. However, he is not the first to read this passage as a response to discrimination against women.

In his famous Reform commentary, Gunther Plaut writes (p. 1199):

The projected allotment of the land causes the five daughters of Zelophehad to plead equal treatment for themselves and raises the question of inheritance by women.

As Plaut reads the text, Tzelofchad’s daughters wanted equal, or at least more equal, rights for themselves in inheritance. Similarly, Reform rabbi Yoel H. Kahn writes (link):

It is a story of women appealing for equal justice and, within the cultural norms of their world, receiving satisfaction–at the explicit instruction of God!

The difficulty with this reading is that the text has the women complaining about their father’s rights, not their own. As R. Katz quotes, the daughters ask (Num. 27:4): “Why should the name of our father be lost among his family because he had no son?” Their entire request was that their father’s name be continued, in this case through them due to lack of any sons. They did not complain about discrimination against women but discrimination against a man with only daughters.

From a literary perspective, the emphasis in the entire passage is on male inheritance. Robert Alter, in his The Five Books of Moses (p. 866), points this out:

The case of inheriting daughters puts a certain strain on the patriarchal system, but its patriarchal character remains firmly in place, as the reiteration of “fathers” and “sons” makes clear, and thus a limitation on the choice of husband (to which noninheriting daughters would not be subject) is imposed on these young women in order to preserve the integrity of the tribal configuration with its patriarchal definition.

This is not a case of women achieving inheritance rights but an exceptional case that allows the father’s rights to continue through his daughter’s sons. [1]Jacob Milgrom, The JPS Torah Commentary, Num. 27:8 intro, writes: “The daughter does not really inherit; she transfers the inheritance from father to grandson and thereby keeps the ancestral … Continue reading

Perhaps the most direct treatment of this subject from a rabbinic perspective was written by R. Elchanan Samet, first published online in Hebrew (link) and abridged in English (link), and then in a final form in his Iyunim Be-Farashos Ha-Shavu’a (first series, Jerusalem, 2002, vol. 2, pp. 248-261). He attempts to address the feminist aspects of this passage from an unbiased perspective, or at least as unbiased as anyone can be. His conclusions are ably summarized by R. Hayyim Angel, in the latter’s A Synagogue Companion (p. 160):

The daughters of Zelophehad were not motivated by their own rights, nor was equality of inheritance rights for women what lay at the root of their demands. In fact, their argument is deeply rooted in a patriarchal social structure.

Nonetheless, at the root of their argument, and in its acceptance by God, lies a basic principle connected to the inherent equality of the sexes. The daughters of Zelophehad point out an injustice, that because of the laws of inheritance whereby only males inherit, their father’s name will be eliminated from within his family. They argue that the principle of preserving a man’s name should take precedence over the laws of inheritance.

On a basic human level, a man who has children, whether male or female understand that he has in fact achieved continuity. This continuity is a fact stronger than any social order that gives precedence to one sex or another.

In other words, while there is a level of some feminist theory–of equality of men and women–in this passage, it is not on the level that R. Katz claims. Tzelofchad’s daughters do not “complain about discrimination against women in issues of inheritance.”

Certainly, the Sages were concerned with the welfare of women in regards to inheritance. However, their response was not to legislate equality. In Talmudic times, when the patriarchal family structure of the Bible was no longer strong enough to protect orphaned daughters financially, the Sages required the inheriting sons to provide maintenance for their sisters. And if the funds were insufficient, the daughters’ claims had priority — the sons had to provide for their sisters and, if need be, collect charity to support themselves (Kesubos 108b).

Centuries later, when this proved insufficient, a new method was devised to ensure the financial security of orphaned daughters. Fathers were given the option to create a debt to their daughters so that they would inherit a portion of the estate (this is called a shtar chatzi zakhar and is discussed extensively by later authorities). Rather than legislating equality, sameness, the sages throughout the generations sought to protect the female heirs even at the expense of the men. Men and women are all created in God’s image but that does not mean that their roles must be exactly the same.

(Reposted from May ’14)

 

Endnotes

Endnotes
1Jacob Milgrom, The JPS Torah Commentary, Num. 27:8 intro, writes: “The daughter does not really inherit; she transfers the inheritance from father to grandson and thereby keeps the ancestral land in the father’s line.”

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

7 comments

  1. The link to Samet in Hebrew doesn’t seem to work.

  2. The points in this post, and in R. Samet’s analysis, are well-taken. The daughters of Tzelofchad are certainly not asking to be treated as sons are, and they frame their petition in a way that parallels the logic of yibum, as delineated in Devarim 25:6– both are about preserving the name of a man who died without sons.

    At the same time, there seems to be ample support in the text for someone who would like to argue that the Torah is suggesting how future generations might shift practice in a way that is less patriarchal. The most general reason to consider this possibility is that the story of the daughters of Tzelofchad is essentially extraneous– the Torah could have just told us the law without the story. So the question is why include it at all if not to teach us something about aspects of the law we might not otherwise appreciate? (By way of analogy, in his recent Mosaic piece called “Diving and Divinity,” R. Joshua Berman suggests that the Torah relates to us how difficult life is in a polygamous family so as to suggest that while this kind of marriage is OK, it is not preferred)

    And when we look at the story from this vantage point, the Torah’s choices about how to tell the story are noteworthy:

    The manner in which they present their petition is quite dramatic and does seem to allude to a bid for greater recognition. In particular, the language of “״ותקרבנה…ותעמודנה strongly evokes the process by which the Leviim were consecrated for service. See bemidbar 3:6
    הַקְרֵב, אֶת-מַטֵּה לֵוִי, וְהַעֲמַדְתָּ אֹתוֹ. And note that while the petitioners of pesach sheni (a clearly parallel story linked by the same language of למה נגרע in bemidbar 9:7 and למה יגרע in bemidbar 27:7) also involves the sequence of קירוב (approaching) and עמידה (standing), the latter is initiated by Moshe whereas the daughters of Tzelofechad initiate it here, and they do it in front of the entire leadership.
    A second point is that this story comes on the heels of another story where a woman– Kozbi– is regarded as having led a campaign against Israel. Perhaps the Torah means to draw a contrast, and note how both events take place in front of the Ohel Moed.
    Finally, and most meaningfully in my opinion, is the following: While their purpose may have been to preserve their father’s name, their actions had the effect of preserving their own names as well as their father’s. (And note that neither the petitioners in the pesach sheni story nor the daughters’ cousins who petition in Bemidbar 36 are mentioned by name). In this respect, there are strong parallels with the stories concerning yibum– I.e., Tamar-yehudah and Ruth-Boaz. In these cases too, bold initiative is taken to preserve the name of men who die without sons. And this is consistent with the stated purpose of the statute. But the subtext of these stories suggests a distinct, if complementary rationale that is rooted in the attempt to preserve the dignity of women who would otherwise be bereft. Note in particular whose names are actually preserved as a result of these stories? Not those of Machlon or Er/Onan but those of the women (whose sons, incidentally, are not named for the dead man as Devarim 25 prescribes).

    What does this all add up to? At the very least, it seems that the Torah is quite sympathetic with the idea that women too deserve to have their names preserved, even if this is not called for in the laws of inheritance it instituted.

  3. This is fine as far as pshat is concerned, but as Orthodox jews the midrash is at least as important. Sifre 134, its retelling of the events, presents the daughter’s claims as being explicitly about a equal treatment for men and women.

  4. Rav Samet, on p. 257, quotes the Sifrei with the Netziv’s commentary as support for his approach. Orthodox Jews like commentaries also.

  5. I would add that in Bamidbar rabbah as well, at stake in the daughter’s argument is whether or not daughters are considered people in halakha. again, R. Samet doesnt need my haskama, all I am saying is that “feminist” readings of bnos tzlofchad are certainly within our interpretive tradition.

  6. Moshe: What is the specific cite in Bamidbar Rabbah?

    Otherwise, I would say that the sharp line you are drawing between pshat and drash is questionable. It can often be shown (in their highly complementary work, R. Menachem Leibtag and R. David Fohrman provide excellent examples) that drash is very much rooted in pshat, just that chaz’al didn’t explicitly work it out. I think the textual patterns I was noting (which I’m sure have been noted by others; I hardly did a comprehensive review of the literature) are very much in line with the drash in the sifrei. I would also note that developing chiddushim based on pshat is also very much within our tradition. See Rashbam for the most notable medeival example and Hirsch and the Neziv for more recent examples. These folks are quite Orthodox and quite respectful of midrash. They just don’t think that it exhausts the ‘panim’ in the Torah and is not intended to.

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