Tu BeAv: Celebrating a New Interpretation
The book of Bamidbar ends with the sequel to the episode of the appeal of the daughters of Tzelofchad, which triggered the new legislation enabling daughters
to inherit where there are no sons. The representatives of Menashe protest to
Moshe that this law will infringe on their territorial rights. If an inheriting
daughter ends up marrying someone from outside their own tribe, then the ownership
of the land so inherited may transfer to the husband’s tribe upon her
death. God recognises the legitimacy of their claims and the solution
provided is that the inheriting daughters should marry someone within their
own tribe to prevent the loss of tribal territory.
The Talmud reports that Chazal inferred from the verse, that the
prohibition of intertribal marriage for the inheriting daughters was only
relevant for the first generation. The day intertribal marriage became permissible
was institutionalised as a day of national celebration:
א"ר שמעון ב"ג לא היו ימים טובים לישראל כחמשה עשר באב
וכיוה"כ: בשלמא יום הכפורים משום דאית ביה סליחה ומחילה יום שניתנו בו לוחות
האחרונות אלא ט"ו באב מאי היא? אמר רב יהודה אמר שמואל יום שהותרו
שבטים לבוא זה בזה. מאי דרוש? זה הדבר (במדבר לו, ו) דבר זה לא יהא נוהג
אלא בדור זה .(תענית ל:)
Rabban Shimon ben Gamliel said: There were no days as
happy for the Jewish people as the fifteenth of Av and as Yom Kippur. Granted,
Yom Kippur is a day of joy because it has the elements of pardon and
forgiveness, and the day on which the second pair of tablets were given. However, what is the special joy of the fifteenth of Av?
Rav Yehuda said that Shmuel said: This was the day on which the members of
different tribes were permitted to enter one another’s tribe, by intermarriage.
What did they expound? The verse states: “This is the matter",
meaning this matter shall be practiced only in this generation,
The rationale for the distinction between first and second generation
is not entirely clear. Why was this issue only relevant to the first generation? The Ramban suggests that once the first-generation males
had inherited their respective territory and become entrenched therein, intertribal
marriage was less problematic as the borders were well defined.[1]
In other words, even if title were to be privately transferred to another tribe
in a subsequent generation, this would not adversely affect the established tribal
boundaries. However, there appears to be little proof for this assumption. The
plain sense is that the representatives of Menashe were fundamentally opposed
to the idea of members of another tribe obtaining private ownership within
their allocated territory.
The Ramban himself offers an alternative approach in which he derives an independent prohibition to safeguard against intertribal land transfers even
beyond the first generation:
וְכָל־בַּת
יֹרֶשֶׁת נַחֲלָה מִמַּטּוֹת בְּנֵי יִשְׂרָאֵל לְאֶחָד מִמִּשְׁפַּחַת מַטֵּה
אָבִיהָ תִּהְיֶה לְאִשָּׁה לְמַעַן יִירְשׁוּ בְּנֵי יִשְׂרָאֵל אִישׁ נַחֲלַת
אֲבֹתָיו׃ וְלֹא־תִסֹּב נַחֲלָה מִמַּטֶּה לְמַטֶּה אַחֵר כִּי־אִישׁ בְּנַחֲלָתוֹ
יִדְבְּקוּ מַטּוֹת בְּנֵי יִשְׂרָאֵל׃
This is what God has commanded concerning the daughters of Zelofchad:
They may marry anyone they wish, provided they marry into a clan of their
father’s tribe. No inheritance of the Israelites may pass over from one tribe
to another, but the Israelites must remain bound each to the ancestral portion
of his tribe.
Ramban suggests that the prohibition of transferring territory to
another tribe stands as an independent prohibition which, unlike the preceding
verse, was not limited to the first generation. This means that if a daughter
inherited land from the father, and either was married to, or subsequently
married, a member of another tribe, then the usual rules of inheritance would
be superseded. Instead of the husband or sons inheriting the daughter, the father's
family (i.e. her own tribe) would inherit her. This would guarantee that land
title would be retained within the tribe. This view has also been attributed to
the Geonim who count the prohibition against transferring tribal land amongst
the negative commandments, thus implying it was not merely a transient law.[2]
There is much to discuss about this view, but the crucial problem is that it removes
the rationale for the marriage prohibition altogether. According to this
approach, the tribal territory was already protected by the redirection of
inheritance in case of intertribal marriage, thereby rendering such a prohibition
largely redundant.
In view of the issues presented above, I would like to suggest an
alternative explanation which interprets the Talmudic passage above at face value.
At the time of and immediately following the settlement of the
land, the dominant form of social and political affiliation was the tribe, or
more specifically, the clan (בית אב) within the
tribe. Even after entering the land, the national identity did not replace the
tribal affiliations overnight. In the early years of the settlement, these tribal
and kinship structures presented significant obstacles to the development of
the national identity. Over time, however, the tribal divisions began to breakdown
in favour of national consolidation.
Even a cursory reading of the books of Yehoshua/Shoftim compared
with Shmuel/Melachim, demonstrates that the tribal divisions were dominant in
the former but less relevant in the latter. In the earlier books of
Yehoshua/Shoftim we find tribes waging battles without support from
neighbouring tribes. On several occasions, this even led to civil war.[3]
The major turning point came with the establishment of the monarchy, which
created a strong (perhaps too strong) centralised government. At the same time,
and as a consequence of the process of centralisation, there was a weakening of
the tribal affiliations. Whilst it is true that there remained an underlying
tension between Yosef and Yehuda at the heart of the north/south divide, far
from being an ideal, this was the Achilles heel in the process of tribal
unification.
Based on the above, we may suggest that the newly
derived interpretation of זה הדבר which was cause for the establishment of a holiday (15th of Av), was motivated by the realisation that
national unity should prevail over tribal loyalties. This contrasts with commentators who considered the 15th of Av to have been the intended expiry date of the initial law. According
to the Rashbam the 15th of Av represented the cut-off point between
the first and second generation. Tosfot Rid suggests that the law was already
known but was concealed until this date to protect the integrity of the initial
restriction. The alternative view, however, that the holiday was
fixed on the day the new exegesis was accepted into law following its discovery. This may well have
been many generations after the one it was first relevant to
(i.e. the second generation).[4]
I subsequently found this stated explicitly by R. Aryeh Leib
Ginsburg, famed author of the Sha’agat Aryeh, in his commentary to
tractate Ta'anit:
Rather, it appears to me that it was on the fifteenth
of Av that they initially inferred that the prohibition only applies to the
first generation. This is similar to the idea found in the Midrash in which
Boaz tells Ruth that if she would have come earlier she would not have been
accepted (i.e. they would not have been able to marry) because the specific
exegesis limiting the marriage prohibition to a Moabite man but not a Moabite
woman, had not yet been derived. From here we see that not all the
interpretations of Torah were received from Moshe.[5]
According to this approach, the temporary nature of the law was embedded
into the Torah which limited the restriction on intertribal marriage to the
first generation, but it required time until such a position could be accepted
or even contemplated. It should be recalled that the restriction itself was a
reaction to the appeals from the representatives of Menashe and did not
necessarily express an ideal. Had they not objected the issue may never have
arisen. It seems, therefore, that it was the newly obtained perspective regarding
the priority of nationhood over tribe which led to the new exegesis.[6]
The advantage of this explanation is that it explains the reason
the Torah regarded the prohibition to be only of temporary necessity. At the
same time, it provides a reason for the ambiguity in the verse. If the
prohibition would have been explicitly limited to the first generation, it is
reasonable to assume that the tribal leaders would have objected to the
inclusion of this sunset provision. This explanation also ties the inspiration
behind the new inference to the nature of the joy of the day, which celebrates the
national unity achieved through the change. Finally, as will be immediately discussed,
it is consistent with the wider attempt of the Torah to transition from the
tribal based system to nationhood upon entry into the land.[7]
Nationhood to displace tribalism
The shift referred to above emerges as a key theme in the book of Devarim.
This is reflected in the calls for centralisation in the major areas of
political, social and religious life.
With respect to religious worship, the
Torah mandates that each individual male visit the temple in Jerusalem at each
of the three pilgrimage festivals. Furthermore, sacrificial worship outside the
temple grounds becomes prohibited. In terms of the judiciary, the Torah calls
for the establishment of a supreme court - the Sanhedrin HaGadol - which is to preside
over all matters which cannot be solved by the local courts.[8] Within
the political arena, the Torah calls for the appointment of a king. Even if the
Torah intends to convey ambivalence towards the establishment of a monarchy,
the idea of a central governing body appears to be implicitly endorsed.[9] Most significantly, no prominent role is allocated to any of the
tribal leaders.
In view of the centrality of the tribe in the earlier books, the diminished
status of the tribe in Devarim is somewhat surprising. Perhaps the idea is that
as a preliminary step to nationhood, it was necessary to first reinforce
individual, familial, and tribal identities. This is readily understood in a
general sense, but even more so in view of the crushing and dehumanising effects
of slavery. Only once the people had obtained a sense of self-worth and
individual identity, could the national agenda be fully prioritised.
The book of Bamidbar therefore concentrates on the individual and the
tribal affiliations comprising the building blocks of the nation. It starts
with the individual counting reflecting the value of the individual within the whole
and concludes with a series of stories relating to individual and independent initiatives.[10]
Devarim on the other hand, which presents the vision of life in the land,
focuses on the national perspective. It represents the ideal where the tribes consolidate
under the umbrella of nationhood.[11]
From matteh to shevet
This may explain an interesting variance between Devarim and the earlier
books. Devarim exclusively employs the word shevet (17 times) when
referring to the tribes, whereas the favoured word in the first four books is matteh (over
100 times compared to 11 for shevet). Both words carry a dual meaning of
staff/tribe, though the distinction between them is not entirely clear.[12]
Whatever the precise etymology, it seems that matteh is the more
primitive form, whereas shevet is a richer, more powerful term. The various
usages of the word shevet to describe a staff, include: a royal sceptre
(Bereshit 49:10); a cane with the power to kill (Shemot 21:20); and a rod which
has the power to sanctify the animal tithe (Vayikra 27:32).[13]
The word shevet is also used in the poetic sections of Parashat Balak
where richer vocabulary is favoured.
If we consider the exceptional references to shevet in the earlier
books, it is clear that its use is limited to instances where the tribes are
referred to as part of a collective i.e. the national dimension:
כָּל־אֵלֶּה שִׁבְטֵי יִשְׂרָאֵל שְׁנֵים עָשָׂר וְזֹאת אֲשֶׁר־דִּבֶּר לָהֶם אֲבִיהֶם וַיְבָרֶךְ אוֹתָם אִישׁ
אֲשֶׁר כְּבִרְכָתוֹ בֵּרַךְ אֹתָם׃ (בראשית מט:כח)
וְהָאֲבָנִים עַל־שְׁמֹת בְּנֵי־יִשְׂרָאֵל הֵנָּה שְׁתֵּים עֶשְׂרֵה
עַל־שְׁמֹתָם פִּתּוּחֵי חֹתָם אִישׁ עַל־שְׁמוֹ לִשְׁנֵים עָשָׂר שָׁבֶט׃
(שמות כח:כא)
וַיִּכְתֹּב מֹשֶׁה אֵת כָּל־דִּבְרֵי ה’
וַיַּשְׁכֵּם בַּבֹּקֶר וַיִּבֶן מִזְבֵּחַ תַּחַת הָהָר וּשְׁתֵּים עֶשְׂרֵה
מַצֵּבָה לִשְׁנֵים עָשָׂר שִׁבְטֵי יִשְׂרָאֵל׃ (שמות כד:ד)
Conversely, matteh is used where the focus is on the tribes
as separate identities rather than as part of the collective. In Devarim, where
the focus of the book as a whole is on the national dimension, the word matteh
is entirely absent.
Returning to the final chapter of Bamidbar, the single use of the
word shevet stands out amongst 14 references to matteh.
וְהָיוּ לְאֶחָד מִבְּנֵי שִׁבְטֵי בְנֵי־יִשְׂרָאֵל
לְנָשִׁים וְנִגְרְעָה נַחֲלָתָן מִנַּחֲלַת אֲבֹתֵינוּ וְנוֹסַף עַל נַחֲלַת
הַמַּטֶּה אֲשֶׁר תִּהְיֶינָה לָהֶם וּמִגֹּרַל נַחֲלָתֵנוּ יִגָּרֵעַ׃ (במדבר
לו:ג)
Now, if they
marry persons from 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.
The reason is perhaps related to our earlier discussion. The
chapter presents the claims of the tribal leaders wishing to maintain control
of their territory, therefore the word matteh emerges as the key
recurring word. In describing the problem as they see it, the representatives
of Menashe voice their concern over the case of intertribal marriage and
consequential land transfer. This scenario, although regarded as problematic by
the representatives of Menashe, is the one which anticipates integration of the
tribes. Accordingly, the word shevet is employed here, and only here.
This may explain another anomaly. Various commentators have questioned
why the section dealing with the petition of the daughters is separated by eight
chapters from the counter claims of the tribal leaders. It is fair to assume
that the two sides made their respective appeals at around the same time so the
separation of the two halves of the story requires explanation.
This difficulty is best resolved by examining the reason the closing
story containing the compromise forms a fitting conclusion to the book as a
whole. According to what we have discussed, given the difference in perspective
between Bamidbar and Devarim, it seems appropriate for the tension between the
tribal and national system as expressed in this story, to present itself at the
transition point between the two books. The tribal hegemony, which is accentuated
in this final chapter, forms the gateway to Devarim which attempts to downgrade
these tribal structures.[14]
The interesting twist is that even within this closing chapter of Bamidbar,
though on the surface God appears to endorse the contention of the tribal
leaders, their position is subtly undermined by limiting the prohibition to the
first generation only.[15]
A concluding thought - Tisha BeAv and Tu BeAv
As it turns out, the vision of tribal unification was never fully
materialised as even following the establishment of the Davidic dynasty, the
nation became split along the Yehudah-Yoseph fault line. This division was a
critical factor leading to the destruction for which we mourn on Tisha BeAv. It
does not seem coincidental, therefore, that the week after Tisha BeAv we have
the festival of Tu BeAv which celebrates a major milestone in the integration of
the tribes and the eradication of tribal divisions.
The prophetic hope for national unity transcending tribal
divisions was powerfully laid out by Yechezkel and remains relevant to this day:
דַּבֵּר אֲלֵהֶם כֹּה־אָמַר אֲדֹנָי ה’ הִנֵּה אֲנִי לֹקֵחַ אֶת־עֵץ
יוֹסֵף אֲשֶׁר בְּיַד־אֶפְרַיִם וְשִׁבְטֵי יִשְׂרָאֵל חברו [חֲבֵרָיו] וְנָתַתִּי
אוֹתָם עָלָיו אֶת־עֵץ יְהוּדָה וַעֲשִׂיתִם לְעֵץ אֶחָד וְהָיוּ אֶחָד בְּיָדִי
(יחזקאל לז:יט-כב)
Thus said the Lord God: I am going to take the stick of
Joseph—which is in the hand of Ephraim—and of the tribes of Israel associated
with him, and I will place the stick of Judah upon it and make them into one
stick; they shall be joined in My hand.
[1] Ramban, Bamidbar 30:7
[2] R. Yerucham Fishel Perlow (1846-1934) discusses this
opinion at great length in his commentary to Sefer HaMitzvot of Sa'adia Gaon
(see here). Notwithstanding his extensive analysis and defence of the
Geonic position, the downgrading of the original concern as a חששא בעלמא (in case the inherited property
was illegitimately transferred to the husband or sons) is clearly difficult to
square with the plain sense of the text.
[3] See,
for example, Shoftim 12.
[4] The positive perspective on dissolution of the tribal boundaries needs to be reconciled with the Tannaitic view that the laws of Yovel may only apply when the people are residing within their tribal territories (Arachin 32b, Sifra Behar 2:3). It is worth briefly noting that there appears to be a material difference between the way this law is described in the Sifra and Yerushalmi, as opposed to the Bavli. At least in the Sifra and Yerushalmi, it is clear that this change of status is synonymous with the exile of the first tribes from the land and perhaps should not be conceived independently.
[5] Gevurat Ari, Ta'anit, 30b. It may or may not be coincidental that both cases (permitting intertribal marriage and permitting a Moabite woman to marry a Jew) deal with freeing a woman from an onerous restriction on marriage.
The point that not all interpretations were handed down
from Moshe is subject of dispute between the Rambam and the Geonim – see
Rambam's introduction to his commentary on the Mishnah, Sefer HaMitzvot,
Shoresh 2, and Hilchot Mamrim 2:1.
[6] If correct, this is quite remarkable, as it implies that an acquired value facilitated the revision of an existing law via discovery of a new insight in the text. I would stress that I do not think Chazal invented the exegesis to 'force' the law to conform with their changing values. At least in this case, the exegesis is based on a robust comparison with the other contexts in which the phrase זה הדבר appears (which almost exclusively relate to one-off commands). Incidentally, R. Kook wrote in several places how new perspectives could potentially lead to legitimate halachic innovation in the Messianic age through the discovery of new derashot (see, for example, Iggerot HaReiyah vol.1, p.103). In fact, the legal exegesis of the Ramban referred to above (second interpretation) has no prior source in the Talmudic or pre-Talmudic literature. The Tashbatz notes in a responsum (vol III, 322) that he and the Rivash were troubled by the fact that the Ramban derived a law from a derashah without precedent in the Talmud. However, in his analysis of the Ramban’s position, R. Perlow (ibid) writes that he fails to understand the problem: ואם לא נמצא כן בגמרא הלא נמצא כן בתורה. (There is an interesting article by R. Haim Sabato which catalogues new derashot derived after the close of the Talmud (published in Teshurah LeAmos, Herzog (2006), p.499-519), however he does not mention this example.)
[7]
This is consistent with the well-established view that the Torah's approach to
change was gradual and accepted the need for transitional measures (see Rambam,
Guide for the Perplexed, 3:32); R. Jonathan Sacks discusses the principle with characteristic
eloquence here.
[8] It
is interesting to note that whereas Yitro proposed a similar model consisting
of local judges with an overarching supreme authority (i.e. Moshe),
directionally it was the opposite. Yitro worked on the decentralisation (i.e.
appointing lower tier judges) whereas the focus of Devarim is on the
concentration of judicial authority.
[9] See
Abarbanel, Devarim, 17; Shmuel I, 8.
[10] Notably the stories of Pinchas and the daughters of
Tzelofchad centre around individual initiative (and share some textual
similarities). Jonathan Grossman (see here) argues that various other passages surprisingly grouped
together at the end of Bamidbar relate to this same central theme.
[11] Joshua A. Berman makes a similar argument:
"Speaking in the terms of the narrated world of Deutronomy, the collective strategy could take hold only if there were an attendant weakening of the tribal hierarchy that figured so prominently during the trek in the wilderness. In biblical scholarship, the amalgamation of the tribes into a federated whole is usually addressed with reference to the formation of the monarchy under Saul and David and consolidation of the tribes into a national collective. I claim, however, that this dynamic is equally at play in the political theory that animates the sermons and laws of Deutronomy." (Created Equal, p.73)
Berman marshals support
for the idea that the book of Devarim aims to relegate the tribal hierarchy by
noting the absence of other tribal terms which are prominent in Bamidbar, such
as Nesi'im and Zekenim. He also notes that the word 'fathers' is
used throughout Bamidbar in reference to the tribal patriarchy, whereas in
Devarim the terms are used exclusively in order to refer to the forefathers so
as to highlight the common ancestry of the nation.
[13] The
Matteh
which Moshe uses to perform the miracles in Egypt should be seen as consistent
with this principle as there was, on the surface, nothing unique or exceptional
about Moshe’s staff (see Shemot 4:2).
[14] Jacob
Milgrom's claim that the inclusion of
this section as an appendix is the result of the input of a later Deuteronomic
author does not sit well with the objective of
Devarim to promote national consolidation at the expense of the tribal structures. See also
R. Elchanan Samet (here) who deals with the issue of the placement from a different angle. We have discussed these considerations in a separate post.
[15] This is not the only way the position of the tribal leaders is undermined. Whereas the leaders refer to the women being passively taken (וְהָיוּ לְאֶחָד מִבְּנֵי שִׁבְטֵי בְנֵי־יִשְׂרָאֵל לְנָשִׁים), in God’s response, the emphasis is switched so that it is the women who will actively choose whom to marry (לַטּוֹב בְּעֵינֵיהֶם תִּהְיֶינָה לְנָשִׁים). The use of the masculine instead of the feminine – לטוב בעיניהם - may similarly be intended to strengthen the position of the women.
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