Sunday, July 13, 2008

The Daugters of Zelophehad, Evolving Halacha, and the Common Law

This week's parsha (Pinchas) contains one of the most fascinating legal stories in the Torah. This story sets up an evolving common law approach to halacha.

There are not very many legal stories in the Torah. There are stories and there are laws, but not many stories about laws. After the grand epics in Genesis and Exodus and the lofty and technical holiness rituals in Leviticus, we turn in Numbers to ordinary life problems. Or, as Arnold Eisen argued in Taking Hold of Torah, we have entered the world of politics: wars with hostile neighboring countries, civil insurrection, gossip, the succession of rulers, and the details of civil administration.

And the laws of land inheritance in Israel. By way of background, each of the 12 tribes would own a specific region of the land, and all of the families in that tribe would own some portion of the land. The land would remain in the tribe and family. In fact, if the land were sold, it would revert back to the family in the Jubilee year every fifty years. (Lev. 25:13, 23-24.) Since one's tribe is determined patrilineally, only males can inherit land. Thus, a father's land holdings would be passed down to his son or sons. A daughter would presumably marry and join the family of her husband, and their sons would inherent the land from their father. In short, the law set up a fairly conservative and static system that would preserve family land holdings through male inheritance.

This was the state of the law until the daughters of Zelophehad showed up. (Num. 27:1-11.) Zelophehad was a member of the tribe of Manasseh, and he died with five daughters but no sons. Under the rules then in place, his daughters would be left with no inheritance. The daughters argued to Moses and everyone else that they should be allowed to inherent his share. "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." (Num 27:4.)

Moses checked with God, and God said that the daughters were right. "The plea of Zelophehad's daughter is just." (Num. 27:5.) From now on, the rule is that if a man dies without sons but with daughters, the property should be transferred to his daughters. (If he dies without any children, there is a more complex hierarchy of inheritance.)

Importantly, this was not merely an elaboration or clarification of the existing law but an entirely new rule. Before this "case" was brought, the daughters would have received nothing and Zelophehad's other relatives would have inherited land. Now the daughters inherent and the other relatives receive nothing. And the basis for this change in the law, according to God, is simply justice. "The plea of Zelophehad's Daughter's is just." (Num. 27:5.)

This story shows the evolution of the law. The children of Israel started with one set of legal rules, but they proved to be unjust in a particular situation. God then modified the rules to comport with justice, producing a second set of rules.

If this story does not show that halacha evolves, there's more. Eight chapters later, in the last chapter of Numbers, new people show up with a new problem with this law. And it changes again. (Num. 36:1-12.)

The family heads of Zelophehad's clan show up with a complaint. If the daughters of Zelophehad marry someone from another tribe, their sons will inherit not only their father's land holding (from the other tribe), but also the land holdings of Zelophehad (from Manasseh). So someone from another tribe will end up owning land smack dab in the middle of Manasseh. The total amount of land that the people of Manasseh own will be permanently reduced.

Moses agreed with this argument and "commanded the children of Israel according to the word of the Lord, saying 'The pleas of the the tribe of the sons of Joseph is just.'" Moses then set forth a new rule: daughters may inherit under the old rule only if they marry members of their own tribe. If they marry members of a different tribe, they may not inherit. (The end of the story is that the Daughters of Zelophehad ended up marrying their uncles or cousins, and everyone lived happily ever after.)

So by this time, the law has now gone through three stages of development: the original law (only sons inherit), the modified law (daughters can inherit if there are no sons), and the modified modified law (only if they marry someone from their tribe).

Several points are worth noting here.

First, the Torah could have given us just the final rule without showing any of its intermediate forms of development. The fact that we see the evolution of the law suggests that the evolution itself is important, not just the final law.

Second, Moses used the identical language (and the Hebrew is identical: keyn) to describe the plea of the Manasseh tribe here that God used to describe the plea of the daughters of Zelophehad. Their plea is "just". (Some translations use "right".)

Third, the text does not say that Moses checked with God before stating the new rule. Instead, Moses himself spoke to the Children of Israel "al pi Adonai": according to the work of God.

Fourth, Moses changed the very law that God himself had changed.

What do we make of this? It seems to me that God, responding to the daughters of Zelophehad, set forth a methodology for determining when laws should change: if a party successfully argues that a particular law is unjust or not right, the law should change on that ground and that ground alone. God himself changed the law when confronted with this problem. Once God established this methodology, Moses was free to employ it himself in response to the other members of the tribe of Manasseh, and in doing so he spoke "al pi Adonai." And there is no hierarchy of laws here: Moses changed the same law that God himself had changed.

This may seem like a radical notion of law. But in fact, it is exactly how Anglo-American common law works. Judges initially promulgate a set of rules, one case at a time. But over time, new situations arise that do not merely require the application of existing laws to new situations, but actually require the legal rules themselves to change in response to these new situations. But this is not a license for judges to change the law because of personal preferences or to ignore the law altogether. Under stare decisis, there is a strong presumption for leaving settled law alone. It takes a strong showing of injustice to change the common law. But when a party can make such a showing, the common law changes.

The story of the daughters of Zelophehad seems to set up a similar evolving common law system of halacha, not a static system.

blog comments powered by Disqus