Hebrew In Israel | Daughters Inheriting – Learn Torah

Hebrew In Israel | Daughters Inheriting – Learn Torah

Yoel Halevi No Comments

At the end of the book of Bamidbar we read the following:

וַתִּהְיֶינָה מַחְלָה תִרְצָה, וְחָגְלָה וּמִלְכָּה וְנֹעָה–בְּנוֹת צְלָפְחָד:  לִבְנֵי דֹדֵיהֶן, לְנָשִׁים.   מִמִּשְׁפְּחֹת בְּנֵי-מְנַשֶּׁה בֶן-יוֹסֵף, הָיוּ לְנָשִׁים; וַתְּהִי, נַחֲלָתָן, עַל-מַטֵּה, מִשְׁפַּחַת אֲבִיהֶן

“Machlah, Tirtzah, Hoglah, Milkah and No‘ah all got married to sons of their father’s brothers. They were married into the families of the descendants of M’nasheh the son of Yosef, and their inheritance remained in the tribe of their father’s family”

Bamidbar (Numbers) 36:11-12

The above text is describing the final account of the legal problem presented before Moshe.  The original dilemma was “can women inherit when there are no sons?”, a dilemma resolved by a yes.  However, the resolution of the original problem brought forth a different question on the subject of property mobility, or in other words- the problem that land can be moved from one tribe to another by marriage on the Jubilee year.  If a woman would inherit land and married into another tribe or family, the father tribe/family of the wife can lose land.  Land was the most important item one can own, and this would weaken the abilities and rights of the original tribe by them losing a source of income.

Women Inheriting

It was not unusual for women in the ancient near east (ANE) to inherit from their fathers.  There are several documents from the ANE where women received inheritance from their father, and there are no limitations on what can be given.  Under normal circumstances, land was given to the sons, while daughters would belong to the husband’s family.  Land was especially kept in the family if it were a royal grant from the king, and was given to commemorate the good deeds of the father.  Maintaining the name of the father on the land was also a form of keeping the rights on the land.  Hence, in cases like this, the land had to stay in the hands of the sons or male family members due to its royal gift status.

However, when no sons were born, and no men were adopted to marry the daughter, the daughters would substitute for the sons.  Several examples can be found in Nuzi (north Iraq 15-14 centuries BC) where daughters inherited if there were no sons, or men were adopted to replace the lack of a son.  A case can be found in the city of Lagesh where a man called Gudea can give his inheritance to his daughter if he has no sons, a situation which is exactly like the one described in the Torah.  The importance of making sure there is an inheritor stems from a legal matter connected to how some people would have received land.  To our case the granting of land by a king to a loyal subject is probably the closest case.  When a loyal subject is given land, there is an attached rule that the land can never be taken out of the hands of the family.  If there are no sons to inherited the land, then the land is in limbo due to the above rule.  In some cases some men would adopt a man to carry on their name (tupi maruti), but in others, if there is a daughter, the land can be passed on to them.

The case at hand in the Torah is not to different than the above.  The land was given as a type of gift from YHWH (The King) to his servant for being loyal (Avraham or Tzlophchad).  The marriage of the daughters to family members is also not too different from the practice of adopting a person into the family.  However, due to the fact that adoption would have potentially introduced a foreign person into the family, it was better to leave the family as is.  Hence, we are not only dealing with personal power of the family, but also with royal grant rights.

Historical Evidence

As can be seen in the Torah, the issue was resolved by giving the land to the daughters who then married inside the family.  This action maintained the rights of the daughters and the tribe.  Besides this information, archeology gives us more insight on the subject.  In a grouping of tax letters from the northern kingdom dating to the mid 8th century BCE, we find the names of two daughters who were used as district or city names for the lands belonging to the tribes.

The first letter bears the name of Choglah stating:

בשת ה15 מחגל[ה

לחנן. ב[ער]א

יונתן מיצ[ת

In the 15th year from Choglah. To Chanan Ba’ara from Yatzit.

The second letter names No’ah and states:

בשת 15 לגמר מנעה

עבדיו לאריו

In the 15th year to Gomer from No’a Ovadyo to Uriyo.

The above documents demonstrate that the names of the daughters were preserved as regional/property names which indicate a protection and preservation of rights by the families of the daughters and their land.  Though sons were probably born to the daughters, the names of the original inheritors of the land were preserved.  This act of naming the land after the daughters shows how important it was to keep the rights of families, even hundreds of years after the passing of the original owners.

Legal flexibility

A different question which rises from the entire story is the question of legal flexibility in Torah.  Due to the common practice today in some groups, one might try and find in the above resolution a foundation to argue that Torah can be changed due to the circumstances.  Though casuistic laws (case laws) have to have a certain flexibility due to the fact that cases differ from one another, more than often the above idea is abused beyond the rationale of ancient laws.

It is accepted in the study of ANE laws, that many laws were common laws and were adapted based on specific law cases; however, unhinged liberty in interpretation of law cannot be clearly proven, and such ideas were probably foreign to many in the ancient world due to the respect of tradition.

Another issue with law codes in the ANE is the authority of such codes.  It has been argued by Malul that law codes were by most an attempt by the kings to present themselves as righteous before the gods, and that they themselves did not expect anyone to follow the laws.  Kings had an obligation to present reforms to prove that they are deserving of the position, and might have not really cared what was written, as long as they could present something.  However, Malul has also argued that the majority of the laws were actually common laws used by the courts, and that the kings only collected them from what was known.  Law by this rule was based on tradition and common sense with a balance of the common practices.

After stating the above, the question rises about the Torah.  Does the Torah show any form of flexibility, or are things to be followed by the letter?  I would argue that case-law was probably decided based on the core rules of the Torah, and adjusted based on the case itself.  In the case of the daughters of Tzlophchad it is evident that law “as written” was still kept, and the flexibility was limited.  Though Moshe receives a new ruling, it is still limited to YHWH’s word, and is placed under limitations of another law.  Hence interpretation “not to the written law”, “spirit of the law” or any other generalisation are not actually represented in the law case at hand.

Conclusion

Though one might find innovation in the case of the daughters of Tzlophcahd, the level of innovation is actually not unusual, or even big.  Case laws in the ANE are full of non-ideal situations, and laws always try to adapt to the situation.  The laws do not try to reinvent new social constructs, and still maintain the base traditional social and legal structure.  The case at hand at the end is resolved by maintaining the base rule of family ownership of land, and the principle of male preference in inheritance.  However, the name of the father’s daughters is maintained on the property due to the father’s rights, not the daughters’.

Bibliography:

אחיטוב שמואל, אסופת כתובות עבריות, ירושלם 1992, עמ׳ 193-191

בן-ברק צפרירה, עולם המקרא ספר במדבר, תל-אביב 1997, עמ׳ 168-166

מלול מאיר, ״ואלה המשפטים אשר תשים לפניהם״ קובצי הדינים ואוספים משפטיים אחרים מן המזרח הקדום, חיפה 2007, עמ׳ 21-19

Maidman. M P, Nuzi Textt and Their Uses as Historical Evidence, Atlanta 2010, pp.146-219

 

 

 

Originally Published: 7 August 2016

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