Is there ever a discernible gap between God's morality and the Torah, or is the Torah itself our only window into the realm of divine values? Put another way, is it permissible for a reverent Jew to challenge the morality of a law, and to base this challenge on his or her own understanding of justice and thus God's will?
This is a fundamental question for Judaism, as it is for all faiths that base themselves on a sacred literature. If we say that the Torah as it has been received is the first and final word, then precedent always enjoys the presumption of divine favor. If, however, we say that the Torah provides multiple lessons on the nature of morality, and that some are in tension with others, then it becomes our highest religious obligation to study these lessons and seek out the divine voice within them. The former position is common in Orthodoxy, but the latter view, more common in Conservative Jewish discourse, is also typical of classical rabbinic literature.
A fascinating case in point in this week's portion regards the claim of the daughters of Zelophehad (Numbers 27: 1–11; see also the recap in Numbers 36). This man from the tribe of Manasseh has five daughters but no son. Earlier in the parashah a census of males for the purpose of military conscription is followed by the verse, "to these shall the land be apportioned" (26:53). Apparently this means that only families with male heirs will be granted a portion in the land. Because identity is associated with inheritance, this rule effectively means that Zelophehad's family will soon disappear from both the land and the memory of Israel.
The patent unfairness of this law emboldens Zelophehad's five daughters to rise up and present their case to Moses: "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!" Moses is apparently flummoxed by this indignant claim, and without even a cursory reply, he turns to the Lord for help. The Lord replies unambiguously: "The plea of Zelophehad's daughters is just: you should give them a hereditary holding among their father's kinsmen; transfer their father's share to them." As the rabbis observe with awe, "happy is the person whose claim is accepted by God!"
But what gives these women any hope that their claim could be accepted? Hasn't the law already been established by God at Sinai? Sure, the law seems unfair. But what's fair got to do with it? Why should anyone think that his or her own sense of fairness is relevant when the Torah has already been revealed by God to Moses on Mount Sinai?
This question is the impetus for a remarkable early midrash found in Sifre BeMidbar (133):
The daughters of Zelophehad approached. When the daughters of Zelophehad heard that the Land was to be divided among the tribes, to males and not to females, they gathered together to take counsel in each other. They said, "Not like the mercies of people are the mercies of God. People have more mercy [i.e., preference] for males than females, but the One Who spoke and the World came to Be is not like this; rather, [God's] mercies are for both males and for females, and for all, as it says, "The Lord is good to all; His mercies are over all his creations." (Psalms 145:9)
This early rabbinic text imagines the women citing the book of Psalms to vindicate their trust that God is egalitarian: "His mercies are over all his creations." Preferential treatment for males is not, according to their interpretation, a policy established by God, but rather a bias established by men. The nineteenth-century commentator Barukh HaLevi Epstein asks what makes these women think that people (i.e., rabbis) favor men? He answers his own question with three Talmudic texts that give preferential treatment to men and concludes that "men tend to worry about their own reality more than that of women" (Torah Temimah to Numbers 27:1, number 1).
One delightful feature of this text is its blithe anachronism. The daughters of Zelophehad cite the book of Psalms, which will not be written for many more centuries, and is not, in any event, a legal text. According to Epstein, they also know their way around the Babylonian Talmud! In the realm of Torah, all ideas and all actors are expected to interact. The conversation of living Torah transcends time and space in its pursuit of the truth. These women know that God is just to all, and they know equally well that the revealed law of inheritance is unjust to women. The rabbis, both ancient and modern, do not dispute the accuracy of the women's complaint of discrimination. Still, it is remarkably audacious for the women to make their claim to Moses, and to assert that divine justice is on their side.
Imagine if Moses were an insecure leader, which would have been quite justified after the past few weeks of rebellions. What would an insecure leader do? Wouldn't he shunt these women and their impertinent request aside? Wouldn't he bristle at their challenge to the fairness of his teaching? It is a mark of the greatness of Moses that instead he listens to the challenge and, upon hearing its reasoning, he turns back to God and waits to discern a new teaching.
What does this mean for us? Are the narratives of the Torah and the interpretations of ancient rabbis just a part of our religious history, or are they meant to teach us how to act today? When we learn of an injustice perpetuated under the banner of religious precedent, should we simply accept this as an unfortunate reality, or should we too seek a solution that is just to all? What would Moses do?
Unfortunately, we are not Moses, nor do we have the inspiration of even the minor prophets of Israel. While it is often tempting to make prophetic pronouncements about justice, our religious culture has evolved a more deliberate process for addressing tensions between precedent and morality, called halakhah. This process is exceptionally delicate. When we become strident in our pronouncements of justice, we lose access to the wisdom of our ancestors and allow a rupture to open in the community of Torah. But when we are obstinate and unwilling to listen to the concerns of the oppressed, then our Torah becomes petrified, like living wood now turned to stone.
It is exceptionally hard to follow the middle path that is both reverent and responsive. It assumes that God's morality is found both in the precedents described in our sacred literature and in the lived reality of our day. Like Moses, we must be attuned to the lives of those who turn to us for guidance, and then we must return in reflection to the voice of the One Who Spoke and the World Came to Be. While we may never hear our vindication spoken from the heavens, we may still hope to discern in time that our words of Torah were wise, reverent, and just.
The publication and distribution of the JTS Commentary are made possible by a generous grant from Rita Dee and Harold (z"l) Hassenfeld.