Modifying the Law is Affirming It

Rabbi Moshe Pitchon

The fundamental rule of patriarchal society, as found in the Hebrew Scriptures, is that sons alone have the right to inheritance.

Yet five women—Mahlah, Noah, Hoglah, Milcah, and Tirzah—come forth to challenge the law that prevents them from inheriting land and preserving their father’s memory.

We read in the Book of Bamidbar, chapter 27, verses 1 to 7.

The daughters of Zelophehad... came forward. They stood before Moses, Elazar the priest, the chieftains, and the whole assembly at the entrance to the Tent of Meeting, and they said, "Our father died in the wilderness... and he has left no sons. 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!

The American playwright David Mamet wrote about this:

“Inherent in their plea is the understanding that codified law exists only as an attempt to provide justice and mercy; that, as a human construct, it must be imperfect. Moses realized that he was unable, in conscience, to perform as ordered, and he brought his problem to God.”

And the Lord said to Moses, "The plea of Zelophehahd's daughters is just: you should give them a hereditary holding among their father's kinsmen; transfer their father's share to them."

University of California, San Diego, professor Shai Cherry comments:

“How to respond to the unprecedented? It’s so much easier to rely on the well-worn rules of the game, whatever they may be. It’s dangerous to open up the rulebook to revision. Where will it stop? The easiest thing for Moses to have done, the path of least resistance, would have been to rely on precedent: daughters don’t inherit. That’s the law. But the law was created to promote justice and mercy, and, inevitably, there will arise situations in which the application of the law would result in a miscarriage of justice and a denial of mercy. It takes a visionary to know when the existing laws are elastic enough to cover novel situations and when new legislation must be drafted to accommodate the spirit of the law. Moses understood the injustice of the law as it pertained to the daughters of Zelophehad.”

And, he concludes:

“Women’s subordinate legal status is counterbalanced by a commitment to justice and equity. The story of the daughters of Zelophehad demonstrates the Torah’s flexibility concerning unprecedented cases that might result in an injustice were the law not amended.”

The book of Devarim (Deuteronomy) opens by describing how Moses gathered the Israelites on the plains of Moab after conquering the Jordan’s east bank.

Standing near Mount Nebo, Moses recounted the events of the past to the new cohort of Israelites approaching the Promised Land.

This generation was quite different from the one that had left Egypt. They had no firsthand experience with the Exodus or the desert tribulations.

Moses’s account of the previous events centers on the missed opportunities and the repercussions of fear and disobedience.

Not surprisingly, this section of the Torah is read before Tisha B’Av, the annual commemoration of a multitude of calamities in Jewish history, most notably the destruction of Solomon’s Temple by the Neo-Babylonian Empire and the Second Temple by the Roman Empire in Jerusalem.

The causes of the destruction of the Temples—traditionally linked to baseless hatred and the people’s internal corruption—parallel the spiritual mistakes that Moses warned about in Devarim (literally, “remarks”).

The message of Moses here is clear. Building a stable and hopeful future requires facing communal failings and honestly recounting Israel’s past. The whole book of Devarim is dedicated to setting the groundwork for this human project.

Devarim is profoundly worried that social inequality and idolatry are undermining societal unity, so it revises the previous rules in Shemot (Exodus) to provide more rights to the poor and women.

Probably no other book of the Torah would be more relevant, addressing the Jewish people’s present current situation and speaking to a generation that had not witnessed the Holocaust, the creation of the State of Israel, and the consistent rejection of those who cannot see history other than as a zero-sum dynamic and cannot turn failures into the kind of meaning on which the future is built.