In recent years, there has been a significant amount of dialogue within the Orthodox community, particularly among the left-wing Modern Orthodox, over issues of halakhic progressivism, or the attempt to consciously change Halakhah to conform to a standard more in line with our modern values and sensibilities. This dialogue is most often heard in the context of women’s issues (such as women’s role in the synagogue or rabbinate), although there are other areas of Halakhah (such as homosexuality) in which increased attempts are being made to revise traditionally-held views of Jewish law.[i]

Just as with many issues of controversy in the Jewish community today, the topic of halakhic progressivism is not a new one; in fact, the issue figures prominently in the biblical narrative of the daughters of Tselofhad.  In this article, I will examine two classical rabbinic approaches to this narrative and, by doing so, I hope to shed some light on the question of halakhic progressivism in its modern context.

The story of the daughters of Tselofhad begins in Numbers 26:53-56, when God tells Moses:

To these shall you divide the land as an inheritance in accordance with the number of names. To the multitudinous, you shall increase his inheritance, and to the few, you shall decrease his inheritance; each man, according to his numbers shall his inheritance be given. However, with a lottery shall the land be divided, according to the names of their fathers’ tribes shall they inherit. According to the lottery shall they inherit, whether the many or the few.[ii]

Subsequent to this ruling,[iii] the daughters of Tselofhad approach Moses in front of the entire Jewish people, claiming:

Our father died in the dessert, and he was not one of the assembly who congregated against God in the assembly of Korah, for he died in his own error, and he had no sons. Why should the name of our father be diminished from the midst of his family because he has no son? Give us an inheritance among the brothers of our father!

Moses listens to their request and approaches God, Who responds:

The daughters of Tselofhad speak correctly, give them a portion of inheritance among the brothers of their father, and you shall pass the inheritance of their father to them. And to the Jewish people shall you speak saying ‘When a man dies and has no son, you shall pass his inheritance to his daughter.’

God then presents a hierarchical list of relatives who inherit a man who dies without sons.

A number of questions emerge from this narrative. What prompted the daughters of Tselofhad to approach Moses? More specifically, were they merely inquiring as to the halakhah in their particular situation, or were they attempting to change an already established law? Furthermore, what would have happened had the daughters of Tselofhad not approached Moses with their claim? Would the halakhah today maintain that only sons would receive their father’s inheritance, or would the halakhah ultimately have come to be that women also receive an inheritance (in the absence of living brothers) irrespective of whether or not the daughters of Tselofhad had ever petitioned Moses?

There are two basic approaches to this narrative found in rabbinic literature.  The first approach can be found in tractate Bava Batra, in the name of Shimon ha-Shikmoni.[iv] According to ha-Shikmoni, Moses knew from the outset that the daughters of Tselofhad would receive a portion in the land of Israel. However, Moses was unsure whether the daughters of Tselofhad would also receive the extra portion normally reserved for firstborn sons, as their father was a firstborn son (the alternative would be that the daughters of Tselofhad would receive a portion equal to that of each of his father’s brothers, as opposed to a double portion). Thus, the significance of the halakhic problem in question is relatively minimal, not a groundbreaking issue of women’s rights. Furthermore, according to Shimon ha-Shikmoni, the nature of the discussion between Moses and the daughters of Tselofhad was not confrontational; Moses was simply unaware of the proper procedure in this situation. It therefore emerges that the actions of the daughters of Tselofhad were not particularly courageous or revolutionary; they were merely asking Moses for a ruling on an undecided halakhic issue.

Additionally, according to Shimon ha-Shikmoni’s approach, “the legal portion concerning inheritance should have been written [solely] through Moses, but the daughters of Tselofhad merited to have it written through them.”[v] In other words, the daughters of Tselofhad made no change to the extant halakhah—in fact, had they not approached Moses, the halakhah would still have eventually been decided in their favor. The only real consequence of the conversation between Moses and the daughters of Tselofhad was that they would now receive credit for the revelation of this part of the Torah’s laws concerning inheritance by having their names associated with this section of the Torah.

Shimon ha-Shikmoni‘s reading of the narrative of the daughters of Tselofhad is attractive for two reasons:

1)      It preserves a sense of the immutability of Halakhah.  That is, the daughters of Tselofhad never changed the halakhah in any way; they were merely the conduits through which the a priori halakhah was revealed.

2)      The daughters of Tselofhad are, in this reading, not portrayed as rebels or reformers, but rather as sincere Israelites with a halakhic question. From a traditionalist Orthodox standpoint, it is much easier to understand the Torah’s positive attitude toward the daughters of Tselofhad if we do not view them as people who were trying to modify Halakhah to conform to their personal needs.

Despite the theological attractiveness of Shimon ha-Shikmoni‘s approach, however, we must realize that it runs counter to a number of details in the text of the biblical narrative. There are several indicators in the narrative that suggest that the encounter between Moses and the daughters of Tselofhad was of a more confrontational nature than Shimon ha-Shikmoni would have us believe. First of all, the fact that the Torah makes a point of telling us that the daughters of Tselofhad stood “in front of Moses, El’azar the Kohen, the leaders of the tribes, and the entire congregation of Israel [in front of] the tent of meeting”[vi] indicates that the nature of this incident was not a just a run-of-the-mill halakhic inquiry, but rather something far more critical and contentious. Moreover, the strong language used by the daughters of Tselofhad, such as “why should our father’s name be diminished?” and “give us an inheritance!”[vii] demonstrates that the daughters of Tselofhad felt that they were being slighted in some way by the extant halakhah, not that the halakhah had simply “not yet been revealed.”

Perhaps it is for these reasons that Sifrei[viii] takes a radically different approach towards the understanding of this narrative. In its commentary to the first verse of Numbers 27, Sifrei expounds:

Once the daughters of Tselofhad heard that the land was to be distributed to the tribes, to males and not to females, they all gathered to take counsel. They said “not like the compassion[ix] of mortals[x] is the compassion of the Holy One, blessed be He, as mortals are more compassionate to males than to females, whereas the Holy One, blessed be He, has compassion for all, as it is stated, ‘and his mercy is upon all his creatures.’”[xi]

Sifrei’s reading of this biblical narrative differs from Shimon ha-Shikmoni‘s reading in a variety of ways. According to Sifrei, the daughters of Tselofhad were not merely questioning Moses as to whether they had a halakhic right to the portion of the firstborn; rather, they were protesting a known halakhah which explicitly denied women the right to an ancestral portion in the Land of Israel.  In other words, the daughters of Tselofhad felt that, although the halakhah that women would not inherit a portion in the land of Israel had already been established, it was inconceivable to them – knowing that God is merciful and compassionate to all – that this would be the ruling that the Jewish people would have to abide by for all ages. When God said to Moses that “the daughters of Tselofhad speak correctly,” He was in effect acquiescing to the claim of the daughters of Tselofhad. God had agreed to amend the established halakhah because of their argument.

Without discussing the thorny theological problems that arise from Sifrei in terms of dealing with God “changing His mind,” we can learn a number of important ideas from Sifrei’s reading of this narrative. The most striking thing, of course, is that God’s acquiescence to the daughters of Tselofhad demonstrates that, although the halakhah does represent God’s will, this in no way means that there are no alternative possibilities that God would find acceptable in lieu of the original conception of the halakhah.   It is also apparent from Sifrei’s reading that Judaism is not merely a religion of rules “set in stone,” as it were. Rather, Halakhah can sometimes defer to overarching Torah values, even to the point where a halakhah can be altered out of deference to Torah-based beliefs and values. Finally, we see from Sifrei’s reading of the story that even the common people, not just the halakhic leaders, have the ability to make a meaningful contribution to the halakhic process, even to the extent of changing the accepted halakhah.

When applying these ideas to the modern halakhic process, however, we must recognize that the modern context is not necessarily analogous to the biblical one. There are two reasons for this: 1) The incident of the daughters of Tselofhad took place in a time prior to the canonization of Halakhah in the written Torah.  2) The daughters of Tselofhad made their petition during a period of prophecy. In other words, it can be argued that the daughters of Tselofhad had the ability to change an existent halakhah only because 1) the Torah was not in its final form yet, and it was therefore subject to change; and/or 2) the daughters of Tselofhad had a method of speaking to God (through Moses) to see if their request was approved. In the modern context, where both the Written and Oral Torah (by means of the Talmud) have attained canonical status, it would be impossible for us, as rabbinic Jews, to overturn Halakhah to anywhere near the extent that was done by the daughters of Tselofhad.

Does this mean, however, that in a post-biblical, post-prophetic era it would be impossible for the strict Halakhah to be mediated by other Torah-based values? To some degree, it does. As rabbinic Jews, we view ourselves as bound by an ever-expanding canon of halakhic literature. To step outside the canon would be a breach of everything that the rabbinic tradition stands for.  Nevertheless, even within the canon of the halakhic tradition, there is still a sufficiently wide array of opinions and room for interpretation to allow for the creation of a more value-centric halakhic system. By utilizing sources within our tradition in tandem with the values that form the fundamental backbones of the Torah, such as justice, truth, and compassion for all of God’s creations (which, according to our midrash in Sifrei, includes a notion of gender equality), we can create a more idyllic halakhic system than if we were merely to “count heads” of halakhic authorities of a previous era or simply hold to Halakhah as it has been practiced for a long period of time.

Sometimes we forget that the halakhic system is not principally a conservative enterprise. The goal of the halakhic process is not to ensure that “the more the world changes, the more we do not.” If that is the goal, Halakhah has failed quite miserably. There can be no doubt in the mind of anyone with even a cursory knowledge of the history and development of Halakhah that Jewish Law, as it is practiced today, is significantly different from the way it was practiced in biblical or even Talmudic times. Yes, the halakhic system depends on the fact that we treat the Bible, Talmud, and (to a lesser extent) rulings of earlier halakhic decision-makers as canonical, but this should not prevent us from deciding which opinion or interpretation to follow based on a strong understanding of fundamental Torah ideals, even if this means modifying Halakhah as it is currently practiced.

Of course, in order for there to be any semblance of order in the halakhic process, halakhic change cannot be made on an ad hoc basis by any individual who feels that an existent halakhah runs contrary to Torah values, as this would inevitably result in religious and societal chaos. However, if we follow the example of the daughters of Tselofhad, it cannot be considered sacrilegious or improper for the religious masses to respectfully petition rabbinic authority to consider changing the accepted halakhah within the broader parameters of the rabbinic tradition so that it more strongly accord with the beliefs and values which form the core of Judaism. Although it is ultimately up to the recognized halakhic authorities to make the final decision on halakhic matters, sometimes it is the duty of the religious masses to ensure that Halakhah is established in a reasonable fashion that accords with not just the texts of our tradition, but with our values as well.

Toviah Moldwin is a junior at YC majoring in Computer Science.