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.
