Yeshivat Har Etzion
Inheritance of the Land by Individual and Tribe (36:1-12)
By Rav Elchanan Samet
a. "Legal Narrative"
Sefer Bemidbar concludes with a narrative twelve verses long (36:1-12), the last of a group of biblical narratives that may be called "legal stories" - stories recounting an event that gives rise to a law. The crux of such stories is the law, while the description of the event is meant to teach us about the circumstances surrounding its institution.
Some obviously legal stories other than our present one include those of the blasphemer (Vayikra 24:10-23), the man who gathered sticks on Shabbat (Bemidbar 15:32-26), the ritually impure people who wished to offer the Pesach sacrifice (Bemidbar 9:6-14), and the daughters of Tzelofchad (ibid. 27:1-11). Aside from these, the Torah also narrates stories where the events possess great value in their own right, but where the mitzvot arising from those events and included within the stories are so important that they, too, may be included in the definition of "legal-type stories."
In general, a "legal story" includes four components that appear in a fixed order:
- description of the event concerning which some doubt arises;
- Moshe's instruction, by God's word, as to how to act in this particular situation;
- the application of this instruction in all similar cases;
- description of the fulfillment of this instruction in the particular case at hand.
The fourth component closes the cycle of the story by bringing us back to the event with which it began.
The legal story before us (Bemidbar 36:1-12) includes all four of these stages, in their proper order. Let us review them briefly:
- Verses 1-4: The heads of the family of Gilad ben Makhir ben Menashe approach Moshe and the princes with a claim regarding the inheritance of the land. In the previous story - regarding the daughters of Tzelofchad - the law was set down that these women, daughters of their fellow tribesman who had died in the desert, would inherit their father's portion upon entering the land. But if one of them would then marry a husband from another tribe, her portion would pass to her husband and sons - who belonged to that different tribe. The portion of these women would thereby be detracted from the inheritance of the tribe of Menashe and added to the inheritance of other tribes. This redistribution of the inheritance of the land among the tribes would be irreversible, even in the Jubilee year, for the Jubilee returns fields that were sold to their previous owners, but has no effect on the laws of inheritance.
- Verses 5-7: God agrees with their claim - "The tribe of the sons of Yosef has spoken truly." Therefore, He adds a proviso to the preceding law of inheritance concerning the daughters of Tzelofchad. Although "they shall be wives to whoever is good in their eyes," there is a limitation: "But they shall be wives only to families of the tribe of their father." In this way, "a portion of Bnei Yisrael will not pass from one tribe (Menashe) to another."
- Verses 8-9: In these verses we find the general application of the law stipulated in relation to the daughters of Tzelofchad. This generalization creates a repetition of verses 6-7 - a repetition that is characteristic of a "legal story."
The law of the specific case:
The law: (6) "This is the thing that God commanded concerning THE DAUGHTERS OF TZELOFCHAD, saying…
But they shall marry into families of the tribe of their father.
Its purpose: (7) "That a portion of Bnei Yisrael shall not pass from one tribe to another; rather, Bnei Yisrael shall remain, each with the portion of the tribe of his fathers."
The general law:
The law: "AND ANY DAUGHTER who inherits a portion among the tribes of Bnei Yisrael shall marry into one of the families of the tribe of her father…"
Its purpose: (9) "In order that a portion not pass from one tribe to another; rather, the tribes of Bnei Yisrael shall remain, each with his portion."
- Verses 10-12: Verse 10 looks like the conclusion of the story, with the words "As God commanded Moshe - so the daughters of Tzelofchad did." But this is followed by verses 11-12, which provide more detail. The five daughters are mentioned by name, and we are told that they married cousins, from the tribe of Menashe, thereby fulfilling the purpose of this act as decreed by God's command: "That their portion remain with the tribe of the family of their father."
b. "This custom was not observed except in that generation"
Despite the character of our story as a clearly legal one, generalizing the law of the daughters of Tzelofchad to include "any daughter who inherits a portion" - a generalization that would appear to apply to all generations - our Sages interpret this law in such a way as to narrow drastically the time of its application. We learn in the last mishna of Massekhet Ta'anit:
"Rabban Shimon ben Gamliel taught: There were no happier days for Israel than the fifteenth of Av and Yom Kippur, when the daughters of Jerusalem would go out wearing borrowed white garments… and the daughters of Jerusalem would go out and dance in the vineyards, and what would they say? ‘Young man, lift up your eyes and see whom you choose for yourself'…."
The Talmud (30b) poses the following question:
"This is understandable concerning Yom Kippur - for this is a day of atonement and forgiveness, the day when the second set of Tablets were given. But what is [special about] the fifteenth of Av? Rav Yehuda said in the name of Shemuel: It was the day when tribes were permitted to intermarry [i.e., on this day license was found for intertribal marriages - even for daughters who inherited portions]. How did they deduce this? [From the words,] 'THIS IS THE THING that God commanded to the daughters of Tzelofchad…' - THIS THING WILL BE PRACTICED ONLY IN THIS GENERATION."
From the Talmud here it is clear that the mitzva of "every daughter who inherits a portion… shall marry someone from the family of her father's tribe" was a burden to Israel, to the extent that the day when it was decided that intertribal marriage would be permitted (based on a textual hint from which it was deduced that this mitzva was meant only for that particular generation) became a festival.
"We should define precisely," asks Maharsha (Chiddushei Aggadot, Bava Batra 121a), "what they were happy about." He answers:
"We must say: … The daughters of Israel were surely joyful when their marital limitation was removed … For a man who had an inheritance was able to marry a woman from any tribe, while a woman [who inherited land] had no right to marry a man from another tribe [but only from her own tribe]… and for this reason the women were joyful when they were permitted [to marry a man of any tribe]…."
This explanation certainly fits in with the character of the fifteenth of Av as described in the Mishna: "The daughters of Jerusalem would go out and dance in the vineyards," each seeking a husband among the Israelite men who would gather there. But the mishna tells us that "there were no happier days FOR ISRAEL than the fifteenth of Av…." According to Maharsha's explanation, the joy of this day affected only a small percentage of the women of Israel, namely, those who had no brothers and therefore inherited their father's land. The license instituted on that day gave them equal opportunity to choose their spouses from among the tribes of Israel, like any other woman who did not inherit land, and like any Israelite man. This is certainly not sufficient reason to turn the anniversary of this innovation into such a joyous festival for all of Israel!
From the formulation of Rav Yehuda's words in the name of Shemuel we discern that the reason for making this day a festival was indeed a broad and national one: "the day when tribes were permitted to intermarry." The limitation placed upon marriages between daughters of Israel who were inheriting and men who were not of their tribe, although directlaffecting only a smminority of the women, represented a symbolic social barrier between the tribes. The removal of this partial barrier contributed towards a sense of the unity of the nation as a whole. It would seem that in Shemuel's view, the tribes were permitted to intermarry in the period following the conquest of the land and its settlement, during the period of the judges. At this time, the threat of tribal division and animosity within Israel was more of a problem than any external threat, and therefore the ABSOLUTE license for tribal intermarriage was of great symbolic significance for those generations.
Does this desire to remove the barriers between the tribes and to permit them to intermarry not contradict the intention of our parasha - specifically to maintain the distinctness of each tribe and its inheritance in the land, such that a portion of land would not end up being transferred from one tribe to another? The answer is that there is no contradiction between these two aims. The Torah's intention concerns the LAND and its division, while the view presented by the Sages pertains to the NATION and the social relations within it.
It is true that the Torah's commandment that the land be divided between the tribes and that the integrity of the inheritance of each tribe be maintained does imply that the social life of the nation living according to the Torah will be a tribal life. The tribe is the larger social unit in which the Israelite lived during the many generations of the biblical period that preceded the establishment of the Davidic dynasty, and even for many more generations following its establishment. But it was specifically the ability to marry a woman from a different tribe, who would then leave her father's house and move to the portion of her husband and his tribe, that allowed the patriarchal tribal framework to be preserved while creating family ties and bonds of love between all the different tribes. The preservation of the tribal inheritance - "for the tribes of Bnei Yisrael will each remain with its inheritance" - guarded the tribal framework within the geographical area designated for each tribe, while the inter-tribal marriages united the tribes of Israel into a single nation, with family relations binding the various tribes to each other without harming the separate tribal framework.
In our parasha we encounter a point where these two ideals collide: inter-tribal marriage of inheriting daughters, such as the daughters of Tzelofchad, will damage the geographical borders stipulated by the Torah for each tribe. Which value carries more weight? The mitzva in our parasha displays a preference for the geographical distinction between tribes over the possibility of allowing a completely free choice of marriage partners. Thus we conclude that, in our parasha, the balance between the two ideals is disturbed, with tribal distinction prevailing over the unity of the tribes.
It was this that disturbed the early Sages. When they found a way to infer that the mitzva in our parasha applied only to the generation that conquered the land and settled it, they declared a festival. This festival was characterized by encouragement of the Israelite youth to marry with no thought of tribal limitations, as hinted at the end of Sefer Shoftim.
What is the logic of the Sages' interpretation, limiting this law of the Torah solely to the generation in which it was given? The Ramban explains, on verse 7:
"In the opinion of our Sages, that 'this mitzva will apply only in this generation'… the Torah commands that if someone were to die from that day until the land was divided between the tribes, and his daughter inherited him, then she should not marry into another tribe, in order that her husband [from another tribe] would not come at the time of dividing the land with a view to receiving a portion from another tribe. More strictness was observed at the time of the division, in order that the tribes' inheritances would not become mixed up, BUT THEREAFTER THE INHERITANCES WERE ALREADY DETERMINED AND THERE WAS NO NEED TO MAINTAIN THEM WITH SUCH STRICTNESS. But since the time when the division would take place was not yet known [i.e., the time until which there was still a reason for the law to apply], the Torah commanded the entire generation [to follow this rule]."
The logic, then, is quite simple. It appears that the claim by the heads of the households of the tribe of Menashe would become pertinent only at the time of the division of the land, after its conquest, a few years hence. If the daughters of Tzelofchad would in the meantime marry husbands from other tribes, the INITIAL apportionment of the inheritance of Menashe would be irreparably harmed, with the definition of the "municipal" borders of that tribe being irreversibly diminished. If this phenomenon of inheriting daughters marrying out of their own tribes became widespread throughout the tribes, the planned division of the land would become completely mixed up. It is precisely this situation that the Torah seeks to prevent in our parasha.
But following the division of the land, with each tribe having received its allotted portion, the map of the tribal borders was established, and it is listed in great detail in Sefer Yehoshua, chapters 18-19. From this point onwards there was no longer any fear of an inheritance passing from one tribe to another. Even if in later generations an inheriting daughter would marry a husband from a different tribe, and her sons - who would be considered members of her husband's tribe - would inherit their mother's portion, these sons would be considered owners of private property within the boundaries of a different tribe, and so it would remain permanently. In other words, once the tribal borders were established in the initial division of the land, individual ownership would no longer supplant a tribe's sovereignty over the areas of its inheritance.
c. A single story
Our story is clearly based upon and related to the legal story in parashat Pinchas - the story of the daughters of Tzelofchad (27:1-11). This juxtaposition is, first of all, a simple thematic one: the law instituted in that parasha - the inheritance by a daughter when there are no sons - is what creates the basis for the claim by the heads of the households of Menashe. But the commentators point out that there are also several linguistic links between these two legal stories, and these are easily discovered.
My perception of a biblical narrative and its structure - usually divided into two halves of equal length, with a parallel between them, sometimes chiastic and sometimes direct - leads to a more daring proposal. Perhaps these two stories are really a single narrative, with its first half in parashat Pinchas and the second half at the end of the Sefer.
The interrelation of these two legal events makes them into a single narrative. This is discernible in every possible dimension: in the legal issue addressed in both - the inheritance by a daughter and its implications, in the names of the personalities mentioned, in the vocabulary, in the leading word that is interwoven in both, in the literary genre - the "legal story," in the similar length and similar structure. My conclusion is therefore that we have before us two halves of a single narrative. Anyone doubting this conclusion need only glance at the comparison below, highlighting the parallel between the two parts of this single story:
(27:1-11) Inheritance of the Daughters of Tzelofchad
I (1) "And the daughters of Tzelofchad ben Chefer
BEN GILAD BEN MAKHIR BEN MENASHE, OF THE FAMILIES OF MENASHE, SON OF YOSEF, DREW NEAR…
(2) And they stood BEFORE MOSHE and before Elazar the kohen AND BEFORE THE PRINCES and all the congregation
II (4) Why shall the name of OUR FATHER be DETRACTED…
III (5) And Moshe brought their case before God…
(6) The daughters of Tzelofchad SPEAK TRULY…
IV (8) And you shall speak to BNEI YISRAEL saying…
And you shall transfer his inheritance to his daughter."
(36:1-12) Marriage of the Daughters of Tzelofchad
I (1) "And the heads of the households of the families the CHILDREN OF GILAD BEN MAKHIR BEN MENAOF THE FAMILIES OF THE CHILDREN OF YOSEF DREW NEAR…
And they spoke BEFORE MOSHE AND BEFORE THE PRINCES, heads of the households of Bnei Yisrael
(2) AND THEY SAID…
II (3) And their portion WILL BE DETRACTED from the inheritance OF OUR FATHERS…
III (5) And Moshe commanded Bnei Yisrael according to God…
The tribe of the children of Yosef SPEAK TRULY…
IV (8) And any daughter who inherits a portion from the tribes of BNEI YISRAEL shall marry into one of the families of the tribe of her father…"
There is an order of events here that repeats itself in both halves, and the repetition is discernible at times in the use of the same words:
- A group of people from the same family of the tribe of Menashe approaches Moshe and the princes.
- They present a claim concerning some "detraction" that the present situation will cause them.
- God approves the justice of their claim - "They speak truly" - and instructs that certain steps be taken with a view to removing the reason for their claim.
- Generalization of the law instituted in a certain instance as a fixed law for all of Israel.
In the second half there is an additional section that has no parallel in the first half: a description of the fulfillment of God's command by the daughters of Tzelofchad, who married their cousins (verses 10-12). We are told the names of these five women, and the story thereby concludes with what introduced the first half: the list of the same names that appear in 27:1 (although in a different order - see Rashi and Ibn Ezra).
The solution introduced in the first half of the story (part III above) is what becomes the problem in the second half (part II).
The solution in the first half:
(27:7) "You shall surely give them a portion of inheritance among the brothers of their father, and you shall transfer the inheritance of their father to them."
The problem in the second half:
(36:2) "And my lord was commanded by God to give the inheritance of Tzelofchad our brother to his daughters."
The solution in the second half (sections III-IV above) does not cancel the solution in the first half, but rather attaches a condition, a limitation, that will cancel the problem presented by the heads of the families of Gilad.
The leading word that is interwoven in both parts of the story is, obviously, "nachala" (inheritance), and it is for this reason that Chazal universally refer to the story of the daughters of Tzelofchad as the "parashat nachalot" (the portion dealing with inheritances). In the first half, this word appears with a certain degree of variety. In their claim the women use a different word - (5) "Give us a PORTION (achuza)," and only in God's response do we find a transition between the two synonymous terms: (7) "You shall surely give them a PORTION OF INHERITANCE." Thereafter, the word "nachala" appears alone another five times in God's words to Moshe.
In the second half of the story, in chapter 36, the word "nachala" appears (alone) ten times in the claim of the heads of the households, and another seven times in God's instruction further on and in the description of its fulfillment by the daughters of Tzelofchad.
As mentioned, there are several other words and personal names that are common to both parts of the story.
d. A "split story"
What we therefore have before us is a "split story." I discussed this phenomenon and the reasons for it at length in my shiur on parashat Chayei Sarah, listing three examples of split stories in the books of Nevi'im and Ketuvim, each split for a different reason. I also expanded there on the fact that the story of Sarah's burial is a split story, with a complementary section located at the end of the parasha, in the description of Avraham's burial in Me'arat Ha-Makhpela alongside Sarah (25:7-10). By joining this section to the beginning of the story, we reveal the structure of the story as a whole. The number of appearances of the leading words each total fourteen, and the theme of the story as a whole is completed.
In this week's parasha, too, we are able to perceive the structure of the story as one composed of two halves, of similar length, WITH A DIRECT PARALLEL BETWEEN THEM, by viewing it as a single story whose halves are separated from one another. This structure also relates to the theme of the story as a whole.
There appears to be some tension - perhaps even conflict - between the two halves of the story. The solution to the problem of the daughters of Tzelofchad in the first half turns into the problem in the second half, and the heads of the households who raise their claim are counter-figures to the women. Is a structure in which the two halves have a direct parallel suited to the tension between them? A structure in which we find clear linguistic parallels between the corresponding parts would seem to create a SIMILARITY between the various claims raised in each half and between the characters who raise them. However, what we have, in fact, is tension and conflict between these claimants and their claims. We shall return to this issue below.
What is the reason for the splitting of our story into two parts, and for their separation from one another? The reason for some split stories is the time gap between the two parts. The inclusion of such a story within a book describing a continuity of events arranged in chronological order requires that the parts of the story be separated from one another, with each inserted in the proper place according to the point in that continuum when it took place.
It would seem that in our case, too, a certain time gap exists between the two parts of the story. This is hinted at in the fact that the personalities who sit with Moshe to hear the claim is not identical in both halves. In the second half, for some reason Elazar the kohen is missing, and there are also other differences as well. These differences may possibly arise from the changed circumstances of the time.
Even if this is so, the time gap is not great: all the events described at the end of Sefer Bemidbar take place within just a few months. However, we must still ask two questions:
- what gives rise to this time gap? Why did the heads of the tribe of Menashe not approach Moshe immediately with their claim?
- Why does this relatively small time gap require that the two parts of the story be separated from one another? Would the arrangement of the story as a single unit have spoiled the order of events at the end of Sefer Bemidbar?
The answer to these questions involves an understanding of the context in which each of the parts of the story takes place. Why do the daughters of Tzelofchad choose this specific moment to present their claim before Moshe? The answer to this is important for our understanding of the claim itself. They appeal to Moshe at the conclusion of the census (described in chapter 26) because this census serves as the catalyst for their claim.
The census carried out in the fortieth year is meant to prepare the division of the land among all the MEN counted, as stated at its conclusion:
(26:52-53) "And God spoke to Moshe, saying: To these shall the land be divided as an inheritance, by the number of names."
The daughters of Tzelofchad, whose father died in the desert, are obviously not among those counted "from twenty years and upwards… all those who went out to fight in Israel" (26:2). This means that the right of their father, who was among those who left Egypt and was therefore entitled to an inheritance in the land, would not be realized. This causes them to claim:
(27:4) "Why shall the name of our father be detracted from among his family, because he had no son…?"
The connection between the women's claim and the census of those who would inherit the land is hinted at already in the census itself. In the list of the families of Menashe, we are told:
(26:33) "And Tzelofchad ben Chefer had no sons, but daughters. And the names of the daughters of Tzelofchad were Machla and Noa, Chogla, Milka and Tirtza."
The names of these daughters is recorded in a census of men in order to hint at what will happen later on. Immediately at the conclusion of the census, thesfive women will come to claim their father's rights, and theirclaim will be accepted. Hence, there is justification for their inclusion among the inheritors of the land, who are being numbered in this census.
Following the census and the event appended to it - the story of the daughters of Tzelofchad - Moshe is commanded regarding several other matters, and some other events take place, all of which are described in chapters 27-32. Starting at the end of chapter 33, the Torah comes back to a discussion of the preparations for the conquest of the land and its settlement. The command is given (33:53-54), "And you shall inherit the land and dwell in it… and you shall share out the land for inheritances by casting lots…." The borders of the land that is to be parceled out are set forth (34:1-15), and mention is made of the names of the princes of the tribes "who will share out the land for you." Mention is also made of the cities of refuge and the levite cities, which must be set aside from the inheritances of the tribes (chapter 35).
What is common to all of these commands is that they pertain to the inheritance of the land as a process that is carried out in a tribal framework. This unit, from the end of chapter 33 until the end of chapter 35, deals with the division of the land among the tribes. Although every individual receives a portion, he receives it within the framework of the tribal inheritance. Thus, not only does the individual have rights concerning the land - so does the tribe as a whole.
These mitzvot and these preparations for entering the land and for its division among the tribes are what cause the heads of the households of Gilad ben Makhir to come before Moshe and to claim the rights of their tribe, which may be harmed because of the inheritance by the daughters of Tzelofchad. Their claim is therefore that the right of inheritance of the INDIVIDUAL (Tzelofchad, through his daughters) may turn out to affect the right of inheritance of the TRIBE, in a case of inheritance by daughters. This claim, obviously, becomes relevant only after the system of inheritance in the land has been defined as a division into tribal inheritances, carried out by the princes. This contradiction, which becomes highlighted only at this stage of Sefer Bemidbar, is clearly formulated in their words:
(2) "And they said: God commanded my lord to give the land as inheritance BY LOTS to [the tribes of] Bnei Yisrael, and my lord was commanded by God to give the inheritance of Tzelofchad, our brother, to his daughters…."
To summarize: after the census, which prepared for the inheritance of the land by INDIVIDUALS, the representatives of an individual whose rights of inheritance were denied demand that this situation be righted: "Why shall the name of our father be detracted…." Following the transmission of the mitzvot preparing for the division and inheritance of the land by the TRIBES AND THEIR PRINCES, the representatives of a tribe that feels its rights are being damaged come to demand the correction of this problem: "For their portion will be detracted from the inheritance of the tribe of our fathers." The correction of the deprivation of the individual, say the heads of the households of Menashe, may be at the expense of the tribe as a whole.
e. Essential similarity between the two halves of the story
Although on the legal level there seems to be a conflict between the claim of the daughters of Tzelofchad and the claim of the heads of the households of Menashe, the contradiction is easily solved, as becomes clear in the continuation of the story. It is more important that attention be paid to the identical motives of the two groups of claimants: to both groups, the right of inheritance in the land is of great importance. Neither the daughters of Tzelofchad nor the heads of Menashe come to present their claim out of monetary considerations. The right to inherit a portion of the land is a right of both the individual and the community. Both the individual and the community have a great desire to realize this right, and fear any possible deprivation of it. The similarity of motive is expressed in the direct parallel between the two parts of the story.
Sefer Bemidbar concludes with a comprehensive solution to the problems of inheritance of the land: both the problem of individuals, whose may lose their portion if they lack sons, and the problem of tribes, whose tribal inheritance may thereby be diminished.
Both groups that come before Moshe choose their words carefully and present their claims well, with politeness and without any hostility. They are not fighting over a piece of tangible land, but rather over an inheritance that is destined to be given, and they do so out of great love for the promised land.
In light of this, both groups receive Divine approval for their claims, and an instruction allowing them both the right to inheritance:
"The daughters of Tzelofchad have spoken truly."
"The tribe of the children of Yosef has spoken truly."
(Translated by Kaeren Fish.
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