In the 1990s, the FAA wanted to mandate the use of child safety seats on airplanes to insure toddlers equal protection with adults in the case of a crash. However, airplane crashes are extremely rare and the higher cost of travel led many families to drive, rather than fly. A study conducted at the time estimated that an additional 13 to 42 children would die in traffic accidents over the next decade. This has been termed an example of Unforeseen Consequences, noted by 18th century Enlightenment philosopher Adam Smith.
In 1936, sociologist Robert K. Merton wrote an analysis of the term he popularized, “Unintended Consequences,” which result from purposeful acts intended to bring social change. (The paper was titled “The Unanticipated Consequences of Purposive Social Action.”)
It appears to me that this week’s parashah, Pinchas, includes what may be the earliest recorded example of unintended consequences. The census recorded in this week’s parashah is what we might expect — names and numbers — until we find women named in the accounting of the descendants of Manasseh:
Now Zelophehad son of Hepher had no sons, only daughters. The names of Zelophehad’s daughters were Mahlah, Noah, Hoglah, Milcah, and Tirzah. (Numbers 26:33)
Why are five women named in a census of men from the age of twenty years up, by their ancestral houses, all Israelite males able to bear arms (Numbers 25:19)? Perhaps the answer is that a highly significant story about their challenge to the laws of inheritance and property rights comes on the tail of the census, in chapter 27. The laws of land inheritance were designed to keep land within a clan and within a tribe. Women might marry outside the clan or tribe; hence they could not inherit. The land holdings of Zelophehad — itself ironic because the Israelites are still in the Wilderness and no one yet possesses land — will pass to his brothers and uncles, bypassing his daughters because Zelophehad does not have a son. The sisters protest.
The daughters of Zelophehad, of Manassite family — son of Hepher son of Gilead son of Machir son of Manasseh son of Joseph — came forward. The names of the daughters were Mahlah, Noah, Hoglah, Milcah, and Tirzah. They stood before Moses, Eleazar the priest, the chieftains, and the whole assembly, at the entrance of the Tent of Meeting, and they said, “Our father died in the wilderness. He was not one of the faction, Korach’s faction that banded against Adonai, but died for his own sin and he has left no sons. 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!” (Numbers 27:1-4)
Now there’s an interesting challenge! Moses does not dismiss the women out of hand, or with a curt, “It’s God’s law. Weren’t you listening at Mt. Sinai?” Perhaps Moses recognizes the justice of their claim. It’s significant that they couch their request in terms of preserving their “father’s name” rather than their property rights. Moses brings their case before God, who responds:
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. (Numbers 27:6)
The sisters’ successful challenge of traditional laws of inheritance is often lauded. As an example, The Torah: A Women’s Commentary enthusiastically tells us:
Five daring sisters — Mahlah, Noah, Hoglah, Milcah, and Tirzah, also known as Zelophehad’s daughters — loom large in this Torah portion… They brilliantly challenge the inheritance system (which has disenfranchised them) when they request a share in the land… In this episode these sisters succeed in securing a legacy for themselves, so that they, rather than their father’s male relatives, will inherit his portion. But they do even more than that, something unique and extraordinary: they initiate a Torah law, a legal precept that becomes a legacy for future generations because what they ask for themselves becomes a law sanctioned by God. (The Torah: A Women’s Commentary, p. 961)
I would love to read the text this way and celebrate this break through for women, but the final resolution of the issue in Numbers chapter 36 gives me great pause. In parshat Mas’ei, the last in the Book of Numbers) we find the Josephites objecting to the reform of inheritance laws:
The family heads in the clan of the descendants of Gilead son of Machir son of Manasseh, one of the Josephite clans, came forward and appealed to Moses and the chieftains, family heads of the Israelites. They said: “Adonai commanded my lord to assign the land to the Israelites as shares by lot, and my lord was further commanded by Adonai to assign the share of our kinsman Zelophehad to his daughters. Now if they marry persons of another Israelite tribe, their share will be cut off from our ancestral portion and be added to the portion of the tribe into which they marry; thus our allotted portion will be diminished.” So Moses, at Adonai’s bidding, instructed the Israelites saying, “The plea of the Josephite tribe is just (dovrim).” (Numbers 36:1-5)
It turns out that the “reformed” law of inheritance is disingenuous. In reality, Zelophehad’s ancestral holding is held by the daughters for a generation, assuming they marry within their own tribe — almost in escrow for the next generation — and then inherited by Zelophehad’s grandson, thus retaining the land holding for Zelophehad’s line.
Many years ago in college I took a Classics course and wrote a paper on women in Ancient Roman law. By the first century, a free Roman woman could manage her own finances, as well as own, inherit and sell property without the permission of her father or husband. A woman’s freedom in ancient Rome was far from equal to that of a man: women could not be party to a contract or make a will. But when they inherited property, it was truly theirs.
In the end, the daughters’ protest does not benefit women (except perhaps to keep them financially afloat until they can pass everything on to their sons), but rather tightens a man’s control on property by insuring that the land is inherited in his direct line, not by his brothers or uncles, even in the case where he does not father a son.
Reform hailed as progressive that turns out to be regressive seems to be a recurrent phenomenon. Prohibition was passed for good reasons, but the result was large-scale organized crime, and some 15,000 cases of hand and foot paralysis and many deaths from wood alcohol. So, too, the so-called “War on Drugs” has turned successful drug cartels into extraordinarily wealthy and frighteningly violent organizations.
Minimally, the change in Torah’s laws of land inheritance, so often hailed as progressive, is not. From a certain vantage point, it could be viewed as regressive, preventing a distribution of wealth even within a clan. Unintended consequences are serious indeed.