The Daughters of Zelophechad 2 - Legal Theory, Common Law, and Repeated Commands

A commenter Jerry raised an important challenge (here and here)to my interpretation of the Daughters of Zelophechad story (here and here). My argument, in short, is that Moses's final political act was to modify a halachic rule in the name of God, but without consulting God, to promote justice. In doing so, he created a common law system. The story is in Numbers 36:1-12.

Jerry disagrees. He argues, based on Number 36:5 and 6, that Moses did consult God first. The narrative of that consultation is omitted in the text, but it is referred to by Moses. He further argues that this story is shortened because the action speeds up once Moses's death is announced in Number 27:12.

This argument is plausible, but I think my reading is better.

The Torah contains three stories involving a change in the law, and the question I am addressing is what do we make of these stories. A careful look at the three stories shows an interesting change in structure.

The first story involves the second passover (pesach sheni) story in Numbers 9. God issues a command regarding the passover sacrifices. Some people come to Moses with a particular problem. They are ritually unclean (since they just buried a dead person) and cannot offer the sacrifice. (Num. 9:6-7), Moses then consults God and God explicitly responds with a change in the law, namely, that they can celebrate Passover a month later. (Num. 9:8-14). God not only modifies the law for people who are ritually unclean, but also for people who are are on a long trip. Notably, God changes the law without commentary or explanation, but the clear implication is that the old law did not work well, at least for these people in these particular circumstances.

The second story involves the Daughters of Zelophechad. (Num 27.) They come to Moses with a particular problem with the law (Num 27:1-4), and the text explicitly states that that Moses consulted God and God responded with a change in the law. (Num 27:5-6.) Here, God changes the law because the daughters' claim is "just".

The third story involves the men from Manasseh wanting a further modification to the previous law change. They consult Moses and explain the problem. (Num 38:1-4.) But there is no account of Moses consulting God as he did in the two earlier stories. Instead, the next sentence simply says "And Moses commanded the children of Israel on (or about) the word of God." (Num 36:5.) And then, "This is the word (or thing) that the Lord has commanded regarding Zelophechad's daughters." (Num 36:6.)

From a purely halachic point of view, all three stories are unnecessary. The final halachic rule is "Do X, unless Y applies, in which case do Z." The Torah could have simply set forth the rule in that form. (E.g., Celebrate Passover on 14th of Nissan. However, if you are ritually unclean or on a long trip, celebrate it on the 14th of Iyar.) However, the Torah gives us the general rule, a story where this general rule creates a problem, the people effected asking Moses for an exception, Moses consulting God, and God agreeing to the exception. In fact, with the two Daughters of Zelophechad stories, there is a complex final rule involving a limitation to an exception to a rule.

My claim is that the purpose of the stories is to show that halacha is a common law system. It evolves and changes. In the first story (pesach sheni), the problem involves people who are ritually unclean, but God imposes a broader exception (for people who are unclean or on a trip). This shows that exceptions are not always limited to particular cases, but may involve broader categories or similar categories. In the second story (Daughters of Zelophechad), the change is made in the interests of justice. That is, it identifies one particular reason for making a change in the law. And in the third case (men from Manasseh), there is a shift in the source of the change. Rather than the text explicitly stating Moses consulted God and God commanded the change, we have no mention of Moses consulting God and Moses commanding the change himself, albeit stating that it is from God. My claim is that this story teaches that once Moses knew the principles and was old and wise, he himself could modify the law under appropriate circumstances in accordance with these principles. And this change in the law is in fact commanded by God. In other words, this is another example of people acting to bring Godliness into the world, rather than God acting to bring Godliness into the world in a supernatural way.

This is a perfectly reasonable way to run a legal system. English and American common law have worked this way for the better part of a millennium. In fact, I think the halachic system recognizes this explicitly. Not only can leaders impose new laws as "fences", but they can also command that positive Torah mitzvot not be performed (such as the rule prohibiting the explicit Torah mitzvah of hearing the shofar on Rosh Hashana when RH falls on Shabbat).

Jerry notes that the wording in this third story is used elsewhere. The text says "And Moses commanded the children of Israel according to the word of the LORD, saying: 'The tribe of the sons of Joseph speaketh right. This is the thing which the LORD hath commanded concerning the daughters of Zelophehad, saying: ....'" That is, Moses himself notes that God issued these commands. And this form is used elsewhere. For example, "And Moses spoke unto the heads of the tribes of the children of Israel, saying: This is the thing which the LORD hath commanded: . . . ." (Num. 30:2.) In this last example, there is no record of God explicitly saying these things, but presumably God did. So too in Numbers 34, argues Jerry.

This is certainly a plausible reading of the text. But this theory does not explain why the structure of the narrative changed from the earlier two stories (where God was explicitly consulted) to here, where God is not explicitly consulted in the text. And it does not explain what we learn from this story. We already know from the earlier two stories that God can change the law and that God does so when a claim is "just."

Jerry's explanation is that the narrative needs to speed up once Moses's death is announced in Number 27:12. But a single sentence saying that Moses asked God would not drag things out. Note how this is dealt with in the second story: "And Moses brought their cause before the LORD. And the LORD spoke unto Moses, saying: . . . ." That doesn't really slow down the action a lot. And of course we have the entire book of Deuteronomy before Moses finally dies, and the action comes to a complete stop during that book.

Moreover, Numbers 28 (the chapter immediately after Moses's future death is announced) contains a long speech by God. Jerry notes this and argues that it is a "follow up" to the same commands in Exodus. True, but that makes matters worse. If the text is trying to speed up, it makes no sense to include repetitive mitzvot and add extra text involving God speaking.

But strictly speaking, Jerry's reading is plausible. There is enough in the text, consistent with other areas of the Torah, to support the reading that Moses did consult God here. And my reading is plausible as well. There is an odd change in the structure of these stories that is only explained by the idea that Moses did not explicitly consult God but made the change himself based on divine principles. And my theory ties in with a broader notion of the common law evolution of halacha. But neither of our theories give a broader account of when the Torah presents a command by stating that God says X, that Moses says God says X, or both.

Eilu v'eilu.