Parashat Pinchos: So What Did He Really Do? by Yaakov Bieler

Bnot Tzelofchad justifying their claim to their father’s share of the land of Israel.

During the course of their presentation to the Jewish leadership to have their father’s assigned portion in the land of Israel turned over to them, the daughters of Tzelofchad discuss their parent’s death and how the particular context in which he died justifies their claim:

BaMidbar 27:1-4

And the daughters of Tzelofchad ben Chefer ben Gilad ben Machir ben Menashe of the families of Menashe the son of Yosef approached. And these are the names of his daughters: Machla, No’a and Chegla and Milka and Tirtza.

And they stood before Moshe and before Elazar the Kohen and before the princes and the entire congregation at the doorway of the Tent of Meeting, saying:

“Our father died in the desert, and he was not part of the group that stood against HaShem in the group of Korach, “Ki BeCheto Meit” (but rather he died as the result of his own sin) and he had no son.

“Why should the name of our father be removed from the midst of his family (the assumption of the verse is once there are no heirs to inherit an individual’s estate, for all intents and purposes his line has stopped and he will soon be forgotten) just because he has no son? Give us a holding amongst the brothers of our father.”

How might their claim be justified?

The technical rationale for why Tzelofchad’s daughters are insistent that he was neither part of the Mitlonenim[1] (lit. complainers), the general response of the people to the report of the spies (BaMidbar 13:1-14:39) nor the Korach rebellion (Ibid., 16-17), but rather died due to some singular, personal transgression, is explained by a number of Biblical commentators down through the ages.

A)

RaShI on BaMidbar 27:3

(Sifrei) Since they came to say that he died due to “his sin”,[2] they had to clarify that this sin was not that of the “Mitlonenim” (after the spies’ report) or the congregation of Korach where the attacks were directed against HaShem, but due to his own sin he died, and he did not cause the masses to sin with him.

The qualitative difference between a sin which only affects the sinner and one that influences others and causes them to follow suit is not only understandable intuitively and rationally, i.e., there is a greater broad-ranging affect when an act causes others to sin than when it is confined to oneself, but also can have specific Halachic ramifications:

Bava Batra 118b

The share (in the land of Israel) of the spies[3] was taken by Yehoshua and Kalev…

The Mitlonenim (as a result of the report of the spies) and the congregation of Korach received no share of the land (of Canaan).

Once the spies bearing unflattering accounts of the land aligned themselves with groups that stood outside the parameters of the general community of the Jews—either by refusing to trust in HaShem and enter the land, or objecting to His Chosen leader for them—it is fitting that their respective punishments include being literally disowned and disinherited by that community.

B)

According to another commentator, not only did the Mitlonenim and the followers of Korach lose out on future possessions in the land of Israel, but they were deprived of everything else that they already possessed as well.

Sephorno on 27:3

Their (Korach’s and his followers’) verdict[4] was that they would lose all of their property by having it declared Cheirem (belonging to God, and not subject to human acquisition).[5] Moshe had imposed this status on their property when he said (to the rest of the Jewish people), (BaMidbar 16:26) “Turn aside now from the tents of these evil people and do not touch anything that belongs to them,[6] lest you be caught up in their destruction”. And so they (Korach and his followers) were judged by the Laws of Heaven, when the text states, (Ibid. 16:32) “And the earth opened its mouth and swallowed them, their houses and all people associated with Korach, and all of their property”. However, (Tzelofchad’s daughters argued, by stating “Ki BeCheto Meit” they were contending) that his (Tzelofchad’s) punishment was different (from that of Korach and his followers) and was limited to his having to die, without his property being lost to his heirs. (Consequently the portion of Canaan that he had coming to him should be rightfully given to his daughters.)

C)

Another commentator reaches the same conclusion as Sephorno, but rather than framing the sins of the Mitlonenim and Korach and his followers as directed against God, resulting in their property being declared Cheirem, defines the matter in terms of their attacks against Moshe, in contrast to Tzelofchad, whose sin had nothing to do with Moshe.

Meshech Chachma on 27:3

It is possible that they were Darshaniot (interpreters of the nuance of the law)[7] and they knew that those executed by Beit Din, their property is turned over to their heirs (Sanhedrin 48b), whereas those executed by the king (for some form of treason or rebellion against the king’s authority), the king becomes the owner of their property. Moshe had the status of king, as it is stated, (Devarim 33:4-5) “And Moshe commanded to us a Tora, the inheritance of the Congregation of Yaakov. And he was king of Yeshurun[8] when the heads of the people and the tribes of Israel were gathered together.” Despite the fact that the tribe of Levi received no portion in the land of Canaan,[9] it is nevertheless possible that he (Moshe) would generously redistribute the land that is turned over to him to the people. Therefore if he (Tzelofchad) died by participating in the sin of the Ma’apilim (see the view of R. Yehuda ben Beteira in Shabbat 96b-97a quoted below) or because of gathering sticks on Shabbat, his property would be turned over to his heirs. But the congregation of Korach, who attacked Moshe in order to remove him from the kingship, is considered as if they were executed by the king. For this reason, they (Tzelofchad’s daughters) explicitly say that their father did not die as a result of being associated with Korach.

But even his daughters do state that Tzofchad’s death was the result of some transgression on his part.

At the same time as these women assert that their father Tzelofchad did not participate in the mass sins of the spies (BaMidbar 13:1-14:39) and the Korach rebellion (Ibid., 16-17), they nevertheless do associate his death with some other sort of sin—“Ki BeCheto Meit”—as opposed to simply stating that he had died naturally of old age. The reason for this would appear to be that by definition, deaths among the Jewish people in the desert, as opposed to previously in Egypt or subsequently in the land of Canaan, are the result of God’s Decree to punish the people for their reaction to the spies’ report.

BaMidbar 14:33

And your children will graze in the desert forty years and you will bear your unfaithfulness until your bodies will be consumed in the desert.

Therefore there would seem to be only four possibilities whereby Tzlofchad’s death could be accounted for: a) he died at the hand of other human beings,[10] b) he died as a member of the Generation of the Desert whose fate was determined after the sin of the spies, c) he died as the result of one of the Divine Plagues that broke out due to various transgressions,[11] or d) he died as a result of some personal sin.[12] R. Akiva and his Tannaitic[13] colleague[14] debate as to which of the aforementioned possibilities, a) or d), applied to Tzelofchad:

Shabbat 96b-97a

Our Rabbis taught: The stick gatherer—d)—(on Shabbat and therefore a capital offense—BaMidbar 15:32-36) was Tzelofchad. And therefore it is said, (Ibid. 15:32) “And while the children of Israel were “BaMidbar” (in the desert) they found a man gathering sticks…”, and elsewhere it is said (Ibid. 27:3) “Our father died “BaMidbar”…”[15] Just as there (27:3) Tzelofchad is meant, so too here (15:32) Tzelofchad is meant. This is the view of R. Akiva.

Said R. Yehuda ben Beteira[16] to him: In either case, you will have to be answerable for the assertion that you have just made. If you are right, the Tora shielded him (did not identify who the wood gatherer was in order to protect him and his family) and you reveal him. If you are wrong, you impugn a righteous man.

But R. Akiva learns (and thereby arrives at his conclusion) by means of a Gezeira Shava?[17] He (R. Yehuda ben Beteira) did not accept/receive the Gezeira Shava.[18]

But then to which group of sinners (his daughters attributed his death to his “sin”) did he belong (according to R. Yehuda ben Beteira)? He was one of the Ma’apilim—a)—(they presumed to go to the top of the mountain).[19]

Whereas, R. Yehuda ben Beteira’s view does associate Tzelofchad’s death with a supernatural element, i.e., the absence of Divine Protection that could be ordinarily  counted on when the Jews would go into battle with God’s Approval, consequently leading to an Amaleki victory, in contrast to the earlier Amaleki defeat in Shemot 17:8-16, R. Akiva’s assumption is that Tzelofchad was put to death by the community via public ritual execution—(BaMidbar 15:36) “And the entire congregation took him (the stick gatherer) outside of the encampment, and they pelted him with stones and he died, as God had Commanded Moshe.” It is true that their act was authorized by God, but the difference between losing one’s life as the result of a plague or the absence of Divine Protection constitutes a qualitatively different form of death than execution carried out by a human court. In the former cases, it is not always clear what wrong has been committed by someone who loses his life, and sometimes a plague or the removal of Divine Protection indiscriminately applies to the evildoer and the righteous simultaneously,[20] once Heavenly Wrath is incurred. But with respect to judicial executions, the crime is usually blatant and clearly premeditated, allowing one to conclude that the individual should take full responsibility for what has happened to him.

Even if it could be contended that what Tzelofchad’s daughters meant by the phrase “Ki BeCheto Meit”, was that he had been killed due to his stick gathering on Shabbat, and since violating a Shabbat prohibition is not as serious as joining in the complaining that resulted from the report of the spies or taking up Korach’s cries for rebellion, nevertheless, it would hardly appear to be a badge of honor for their father. Does the daughters’ publicizing their father’s sin, even with the best of intentions with regard to inheriting land in Israel, constitute a violation of the Commandment to respect one’s parents? Could such a concern contribute to the innovative Midrashic interpretation of Tzelofchad’s actions?

Tosafot,[21] Bava Batra 119b, d.h. Afilu Ketana SheBahem Lo Nisait Pachot MiArbaim Shana

It appears to RaShBA that he agrees with the view (R. Akiva) that Tzelofchad was the stick gatherer, and the incident of the stick gatherer occurred at the beginning of the forty years in the desert, immediately after the sin of the spies, as it is stated in the Midrash, that he (Tzelophchad) did this (violated Shabbat by gathering sticks) LeSheim Shamayim (for the sake of Heaven).

Since Israel were saying: If it has been decreed that we will not enter the land of Israel as a result of the sin of the spies, we are no longer obligated to observe the Commandments (i.e., the purpose of the Commandments is to allow us the merit to enter the land of Israel. If that no longer is possible, then we should not be held to observance any longer).

He stood up and desecrated Shabbat in order to be executed and thereby show others that the Commandments are still in force.

Such a view makes Tzelofchad a much more complex character. It is true that he violated Shabbat and was killed for his trouble, but he did it sacrificially and idealistically, with the intent to sanctify God’s Name rather than desecrate it. Now his daughters can cite his spiritual example; gathering the sticks might have been an Aveira, but it was paradoxically an Aveira LiShma (for the sake of God), and for such an act, a man’s name deserves to be remembered and his holdings transferred to his daughters.

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[1] The name associated with this group is based upon the verb in BaMidbar 14:2 “VaYilonu” (and they complained).

[2] Gur Aryeh notes that without the text’s additional clarifications of Tzelophchad’s non-participation in the sins of the Mitlonenim  and Korach, one could understand the term “his sin” to refer to one of these notable transgressions, since each individual participating in these incidents also died as a result of committing “his sin”.

[3] In BaMidbar 14:37-8, the Tora records that whereas the spies who presented evil reports about the land

(Ibid. 13:5, 7, 9-15

And these were their names: of the tribe of Reuben, Shammua the son of Zaccur. Of the tribe of Simeon, Shaphat the son of Hori… Of the tribe of Issachar, Igal the son of Joseph… Of the tribe of Benjamin, Palti the son of Raphu. Of the tribe of Zebulun, Gaddiel the son of Sodi. Of the tribe of Joseph, namely, of the tribe of Manasseh, Gaddi the son of Susi. Of the tribe of Dan, Ammiel the son of Gemalli. Of the tribe of Asher, Sethur the son of Michael. Of the tribe of Naphtali, Nahbi the son of Vophsi. Of the tribe of Gad, Geuel the son of Machi.

died as the result of a plague, Yehoshua and Kalev not only survived physically:

Even those men that did bring up an evil report of the land, died by the plague before the LORD. But Joshua the son of Nun, and Caleb the son of Jephunneh, remained alive of those men that went to spy out the land.

but the Tora’s statement to the effect that they “stayed alive” is viewed as a redundancy since they are mentioned in any number of subsequent verses, and therefore is intrerpreted  in terms of their receiving extra shares in the land—the very one’s that were forfeited by their counterparts, i.e., the spies who gave negative accounts of the land.

[4] RaMBaN on 27:3 claims that this verdict was handed down by the Beit Din of Moshe. A similar judgment of disenfranchisement according to RaShI was rendered by this court against the child of the Egyptian father and the Jewish mother, leading this individual to blaspheme—see RaShI on VaYikra 24:10.

[5] A paradigm for property of people who die as a result  of miraculous Divine Punishment being deemed as belonging to God and not subject to repossession by private individuals once their original owners have been eliminated, is the conquest of Canaan, whose first battle took place in Yericho (Yehoshua 6). Strict instructions are given that all property that remains after God “Hands” the city over to the Jews, i.e., the walls come “tumbling down”, belongs to God and is not to be taken by the Jews themselves (Ibid. 6:17-24). One individual from the tribe of Yehuda, Achan, defies the order (7:1 ff.) and dire consequences ensue for the Jewish people in general—they are routed in their next battle over the city of Ai—as well as for Achan himself and all of his possessions, those he took from Yericho as well as anything else that he owned (Ibid. 7:24-26).

[6] This phrase is superfluous in terms of the practical need for everyone to leave the immediate area where Korach and his followers are encamped prior to the rebels being swallowed up by the earth. Consequently Sephorno interprets the words to suggest that even after the deaths of Korach and his followers, their property is not to be “touched”, i.e., taken by others since it is Cheirem.

[7] Bava Batra 119 b

The Rabbis taught: The daughters of Tzelofchad were wise, “Darshaniot”, and righteous…

“Darshaniot”—for they said: If he (Tzelofchad) had a son, we would not have spoken.

RaShBaM

As it is written, (BaMidbar 27:4) “…And he had no son”,  and it was already known that a son inherits from his father, because they were familiar with the section of the Tora dealing with inheritance…and their knowledge of how to be Doreish is reflected by their comment “…and he had no son. Give us a holding…”, implying that if he (Tzlophchad) had a son, then he naturally would take precedence over a daughter…

[8] Meshech Chachma follows the interpretation of Ibn Ezra, who understands the antecedent of verse 5 as the subject of verse 4, i.e., Moshe, as opposed to RaShI, RaMBaN, Rabeinu Bachayai, Da’at Zekeinim MiBa’alei HaTosafot, Sephorno, etc. who understand v. 5 as referring to HaShem.

[9] Levi received 48 cities rather than an actual portion of Canaan, and Moshe was a member of that tribe. Consequently, for the land of those who rebel against him to be turned over to Moshe would seem to contradict his status as a Levi. See BaMidbar 35:1-8; Devarim 10:9; 18:1-8.

[10] An example of people dying in the desert due to human violence are the casualties resulting from the battle with Amalek (Devarim 25:18). (The Amalekites were responsible for the deaths of the Ma’apilim as well—see fn. 18 below. However, since the text states explicitly that God Withheld protection from them, it makes the Jews’ deaths seem to be a “reverse plague”, i.e., just as death can come about as the result of some type of metaphysical plague, it can also happen due to not what God Does, but rather what He Chooses not to Do, I do not see these deaths as in the same category as those associated with the attack immediately after the Exodus from Egypt. Whereas it could be argued that the stragglers at the edges of the encampment did not receive the Divine Protections as symbolized by the seven clouds [see Sifrei BeHa’alotcha #25] that were supposed to surround the people and protect them from the scourges of the desert, i.e., animal, human, meteorological, etc., it is equally possible to suggest that these people chose to place themselves outside of the protected zone by non-compliance with the Commandments, and therefore tempted fate as well as brought upon themselves their eventual destruction at the hands of the Amalekites.) While it is logical to assume that there must have been losses when the Jews battled the kingdoms of Sichon (Ibid. 21:21-24) and Og (Ibid. 21:33-35), no mention is made of any of the Jews being killed or injured. Perhaps, just as death by human hand takes place when the people are not acting in accordance with Divine edicts—it is assumed that the stragglers at the outskirts of the Jewish camp who were vulnerable to Amalek’s attacks were not in complete compliance with God’s Law—so too when God’s Edicts are followed, including a Promise to Place the enemy into Israel’s hands, it is possible that the Jews come through the experience literally unscathed. See 31:49 for such a claim regarding the operation against the Midianim.

[11] E.g., BaMidbar 11:33; 16:35; 17:6-15; 25:3, 8; 26:1.

[12] While the decree after the sin of the spies called for everyone above the age of twenty eventually dying during the forty years of wandering in the desert—naturally some people died prematurely due to their involvement in sins, including even Moshe and Aharon—it would appear that their deaths will occur as a result of old-age rather than some sort of plague or infirmity.

[13] A Rabbinic personality who lived prior to and during the period when the Mishna was composed by R. Yehuda HaNasi.

[14] Different primary sources identify R. Akiva’s opponent in this dispute as either R. Shimon or R. Yehuda ben Beteira.

[15] R. Akiva is resorting to the common hermeneutic principle of Gezeira Shava (a common word) whereby it is assumed that when a similar—it does not always even have to be identical—word appears in two different places in the Biblical text, that the two places share some sort of commonality. Generally, since there is a finite number of words in Biblical Hebrew and therefore the repetition of forms of the same word is inevitable, leading to an infinite number of potential associations, a Gezeira Shava is not to be made as the result of human initiative, but rather it is passed down through the generations as part of the Oral Tradition that emanates from Sinai. When a controversy exists and at least one side holds up such an interpretation as proof for its position, the counterargument contends that such a Gezeira Shava was not part of the Oral Tradition that it was not taught by the disputant’s Rabbi and therefore is fallacious. Another means by which the thrust of a Gezeira Shava can be blunted is by admitting that there exists such a literary connection between the two topics, but to maintain that the commonality to be derived is something other than what is being claimed. See ArtScroll Siddur, pp. 48-50, including the footnotes.

[16] RaShI on BaMidbar 27:3 quotes R. Shimon as authoring this view. See fn. 1 above.

[17] The Oral Tradition treats an accepted Gezeira Shava as if the point that is derived is explicitly written in the Biblical text. Consequently there should be no room for R. Yehuda ben Beteira to disagree.

[18] See fn. 4.

[19] Once the Divine Decree was Pronounced that as a result of the peoples’ acceptance of the report of the spies that Canaan was unconquerable, those who were above twenty at the time of the Exodus—with the exceptions of the tribe of Levi, Kalev and Yehoshua—would die in the desert, a group of Jews decided to attempt to take matters into their own hands. But their efforts were not only to no avail; they died trying:

BaMidbar 14:40-45

And they got up early in the morning and they went up to the top of the mountain, saying, “We are here and we will go up to the place that HaShem has Promised, for we have sinned.

And Moshe said, “Why now are you transgressing the Commandment of HaShem? It (your attempt to enter the land) will not be successful for HaShem is not among you, so that you will not be smitten by your enemies.

“Because the Amalekites and the Canaanites are there before you, and you shall fall by the sword because you have turned away from HaShem. Therefore HaShem will not be with you.”

“VaYa’apilu” (And they presumptuously/spitefully) went up to the top of the mountain. And the Ark of the Covenant of HaShem and did not leave the camp (symbolizing that those trying to enter the land had no spiritual support).

Then the Amalekites came down and the Canaanites who dwelled in the mountain, and smote them and discomfited them as far as Chorma.

[20] Although Avraham complains about such indiscriminate loss of life during periods of Divine Punishment independent of the moral and spiritual standing of the victims prior to the destruction of Sodom and Amora in Beraishit 18:25, and God’s Readiness to consider preserving the cities if ten righteous people can be found within them, gives the impression that God will pointedly Avoid destroying the righteous together with evil doers, numerous sources suggest that this indeed has and continues to occur throughout history, e.g.,

Bava Kamma 92a

Rava said to Raba bar Mari: From where can the proverbial saying be derived that together with the thorn, the cabbage is smitten (i.e., during the process of eliminating that which has no human benefit, harm often comes to that which is useful for food)?

He replied: As it is written, (Yirmiyahu 2:29) “Wherefore will you contend with Me, you all have transgressed against Me, says HaShem”.

It could be argued that if the society in which a righteous person finds himself is corrupt, then he bears some of the responsibility for this state of affairs; nevertheless it is obvious that in most contexts such an individual is powerless to change the moral condition of his environment. But then the question arises why the individual remains in such a perverse setting. Shouldn’t he be concerned that his family members, let alone himself might become corrupted by those around him?  Unfortunately, not everyone, particularly during the Biblical and Talmudic periods, has the wherewithal to simply pick up and relocate.

[21] It is interesting to note that we have no record of this Midrash other than in its citation by Tosafot. Dr. Haim Soloveitchik has pointed out that the Ba’alei Tosafot often justified questionable actions on the part of the Jewish community. Is promoting such a Midrash doing the same for Tzelophchad and allowing us to give him the benefit of the doubt, at least to some extent?

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