Thursday, July 12, 2012

What made the daughters of Tzelaphchad so brilliant?

Summary: Rashi says they were smart, since they would not have brought their claim had their father had a son. But this is common gentile law as well! Rather, Levush HaOrah explains that they meant had their father had a daughter of a son. I explain why this is compelling peshat in Rashi, based on the Sifrei. And why I still don't think it is correct peshat in Rashi.

PostConsider the following pesukim and Rashi, in parashat Pinchas:

3. "Our father died in the desert, but he was not in the assembly that banded together against the Lord in Korah's assembly, but he died for his own sin, and he had no sons.ג. אָבִינוּ מֵת בַּמִּדְבָּר וְהוּא לֹא הָיָה בְּתוֹךְ הָעֵדָה הַנּוֹעָדִים עַל ה בַּעֲדַת קֹרַח כִּי בְחֶטְאוֹ מֵת וּבָנִים לֹא הָיוּ לוֹ:

4. Why should our father's name be eliminated from his family because he had no son? Give us a portion along with our father's brothers. "ד. לָמָּה יִגָּרַע שֵׁם אָבִינוּ מִתּוֹךְ מִשְׁפַּחְתּוֹ כִּי אֵין לוֹ בֵּן תְּנָה לָּנוּ אֲחֻזָּה בְּתוֹךְ אֲחֵי אָבִינוּ:
Why should our father’s name be eliminated: We are instead of a son, and if females are not considered offspring, let our mother be taken in levirate marriage by her brother-in-law. — [Sifrei Pinchas 13]למה יגרע שם אבינו: אנו במקום בן עומדות, ואם אין הנקבות חשובות זרע, תתיבם אמנו ליבם:
because he had no son: But if he had a son, they would have made no claim at all. This teaches us that they were intelligent women. — [Sifrei Pinchas 15, Sifrei Pinchas 13]כי אין לו בן: הא אם היה לו בן לא היו תובעות כלום. מגיד שחכמניות היו:

The Levush HaOrah cites this Rashi and asks:

"That which they [the supercommentators of Rashi] ask what their great wisdom was, for even the nations of the world practice this, that the son precedes the daughter [to inheritance]. I have found that this is the explanation: That they said, 'if he had a son, and even if that son died as well and left a daughter, in which case it would be female vs. female, even so, we would not have made any claim."

To first address the question, as written. Namely,
What their great wisdom was, for even the nations of the world practice this, that the son precedes the daughter [to inheritance]?
This question is not necessarily so valid. If we consider ancient Roman law, contemporary to Chazal (who authored this statement being cited by Rashi), as opposed to the law contemporary to the supercommentators of Rashi, we find that daughters and sons do inherit equally. Thus:
Under Roman law, daughters inherited equally from their parents if no will was produced,
The daughters of Tzelaphchad were therefore well versed in Jewish law.

Despite this, the Levush HaOrah's explanation is quite compelling. This may seem surprising, given that it seems to diverge from the simple meaning of Rashi's words, prompted simply by this difficulty. However, Rashi did not come up with this on his own. Rather, he was citing Chazal, and he most often does. If we look to the Sifrei, the Levush HaOrah's explanation is precisely what we see in the Sifrei.

To be specific, there are two times that absence of sons are mentioned, in pasuk 3 and in pasuk 4. In pasuk 3, the words are וּבָנִים לֹא הָיוּ לוֹ. And the Sifrei there states ובנים לא היו לו, שאם היה לו בן לא היינו תובעות: And there in pasuk 4, the words are כִּי אֵין לוֹ בֵּן, and the Sifrei there states:

"For he had no son -- why was this stated? Was it not previously stated 'and he had no sons'? So what does 'for he had no son' teach? That they were wise, and darshened: behold, if he had a daughter of a son, we would not have claimed."

This is precisely the argument the Levush HaOrah provides, and it stands in Rashi's source. This is pretty compelling.

Even so, I am not so sure that it is peshat in Rashi. We would need to search kitvei yad to see if Rashi actually did say bat ben. But it seems that Rashi did not.

Rather, what Rashi did was modify his midrashic sources. He took the Sifrei on pasuk 3 and placed it on pasuk 4. And he appended to it an excerpt from the Sifrei on pasuk 4, that they were wise. I don't think we can ignore this deliberate modification if we are trying to determine peshuto shel Rashi.

Why would Rashi modify his sources? To create a traditional commentary that was more peshat-oriented. The second Sifrei is a midrash aggadah but with the slight farfetchedness of some midrash halacha. And one needs not go that far, that the second  כִּי אֵין לוֹ בֵּן refers to a son's daughter.

Indeed, in the new established derasha in Rashi on pasuk 4, they make two points, both scholarly. The first is that if they are not considered offspring, let their mother be a yevama; otherwise, let them inherit. Throughout, they are well-versed in the intricacies of Torah law. And thus, their plea was not simply based on common sense or a plea for kindness in the law; and I think most importantly, it was not a rebellion against established Torah law of sons inheriting. It was a legal argument. Thus, establishes Rashi, they were חכמות.

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