Inheriting Justice

The daughters of Zelophehad are called forth from the Jewish cannon to speak to gender justice in the Torah text. In the Pinchas portion, their first names appear in the text, a rarity for minor women characters. A few of their names have become popular baby girl names for feminist-leaning tradition women—namely "Noa."

It is tempting to take every instance of women speaking in the Torah and claim that speech for gender justice; after all, women rarely speak. Modern commentators opine the supposed gender justice embodied by this narrative. However, in the case of the daughters of Zelophehad, their speech serves as a vehicle for the emergence of a law that supports the patriarchy in its most crucial moment—the reestablishing of itself in the next generation through the passing of land to the sons.

Zelophehad has no son, only five daughters. After Zelophehad's death, his five daughters, raise the following question: "Why should the name of our father be omitted from among his family, because he has no sons? Give us possession [of Israel] among our father's brothers" (Numbers 27: 4-5). Moses has no answer for them and takes their question to God.

God responds: "The daughters of Zelophehad speak properly" (Numbers 27:8).

Subsequently, the inheritance laws are established for the entire community: First sons, and if there are no sons, then daughters can inherit. Midrash places this law in the context of the Jewish legal cannon. According to Midrash, the daughters raised their question at an opportune moment—Moses was teaching the laws of Levirate Marriage. Levirate Marriage is intended to occur,when a husband dies before children are born to the marriage. The husband's brother, and if there is no brother, the next of kin, is required to marry the widow. The first child born of this new marriage is credited to the dead husband and inherits the dead husband's property.

The daughters of Zelophehad were actually saying the following; if we cannot inherit our father's land, then it was our father's right, when he left no male heirs, to have his widow marry in a Levirate marriage. However, the law of Levirate marriage only applies to the situation when there are no children of the marriage, which implies that daughters count as heirs when there are no sons (Yalkut Shimoni, Pinchas 27).

The daughters are affirming their father's right as a patriarch to an heir and not their right as women to inherit. Through the voice of the daughters of Zelophehad, legal cohesiveness is achieved, which protects the male lineage. In a woman's voice, the patriarchy is reaffirmed. The Talmud, in further expounding this law, places a limit on the marriage of women who inherit their father's land. The women must marry a man from their tribe, so that the land can pass to their husbands, and then to their sons, born of the tribe. (Babylonian Talmud, Bava Batra 119b). The daughters of Zelophehad had no words with which to task for an equal portion for all daughters; instead, they spoke up for their father's patriarchal right to heirs.

The evolving tradition has given our daughters not only the words to demand an equal share but also a way of getting that share by circumventing the original Torah law. A father cannot give his daughter an inheritance outright because wills are not recognized in Jewish law. The following practice, popularized in the middle ages, works around this. This practice is attested to in foundational works of Jewish Law such as the Rema's gloss on the Shulkhan Aruch (1520-1672). The father prepares a promissory note or in Halachic terminology a Shtar Chotzi Zochor naming his daughter as a creditor of a sum of money larger than the inheritance of the son. In the promissory note, two conditions are stated: the daughter can only collect at the time of the father's death and she will accept half of the son's inheritance in satisfaction of the debt owed by the father. If the son refuses to give half of his share, the daughter has the right to legally pursue the entire share as a creditor of the estate. In this way, it is not the father, but her brother who gives half of his inheritance to the sister.

The law brought into the cannon by the narrative of the daughters of Zelophehad is surpassed. I find gender justice in the legal ingenuity that permeates our evolving tradition and allows us to both honor and escape our origin, by both recognizing the ancient law and circumventing it in one momentous breath.