Women’s Rights in Old Testament Times
by James R. Baker
Chapter 10.
The Daughters of Zelophehad
[p.161]The story of the daughters of Zelophehad raises interesting questions about the rights of women. What expectations did they have regarding inheritance? Why would they want to be heirs? Could they be heirs in the absence of sons? Historically males were obligated to support women and children and therefore became primary heirs of the land and property of their parents. Women had the responsibility to create families by bearing and nurturing children. This could be best accomplished in a stable and secure environment to be provided by the father and husband. Both roles were recognized and regulated by law.
In some ways women were better off than heirs. They could use their interest in their father’s estate (usually one-tenth of its value) when they needed it most—at the beginning of their married life. A present receipt of a future interest such as a dowry could be much more valuable than an heir’s uncertainty of waiting for the death of a benefactor. A wife was supported by her husband in the stable environment of his parental home and could thus turn her full attention to her children.
Ideal expectations, however, were not always reality. How did the ancients deal with family inheritance when there were [p.162]no sons? The story of Zelophehad and his daughters provides some interesting insights.
Zelophehad was not the first father to sire only daughters, but he was one of the most famous. He was the second great-grandson (fifth generation) of Manasseh, son of Joseph (Jos. 17:1-3). He followed Moses out of Egypt and died in the wilderness before reaching the promised land. He had five daughters: Mahlah, Noah, Hoglah, Milcah, and Tirzah (Num. 27:1).
Apparently they did not expect an inheritance from their father. But one day after their father’s death, according to Jewish tradition, Moses was discussing levirate marriage within the daughters’ hearing.1 It occurred to them that if a childless widow could preserve her husband’s name through an heir provided by levirate marriage, an heir who would inherit the deceased husband’s lands, justice demanded that a way be found to preserve the name of an honorable man who had only daughters. If daughters could inherit those lands, they could thus perpetuate his name and thereby honor him. They faced an additional incentive, for as a firstborn son, Zelophehad would have himself received a double portion from his father.2
The daughters brought their petition before Moses, Eleazer (son of Aaron) the priest, and the whole congregation of Israel and their leaders (Num. 27:2). They described their father to Moses as faithful to the God of Israel. He had not participated in the rebellion of Korah, and his only 201D; was that he died without having a son (v. 3). “Why should the name of our father be done away from among his family, because he hath no son?” they asked. “Give unto us therefore a possession among the brethren of our father” (v. 4). Concerned with the perpetuation of their father’s name, they insisted that they be allowed to inherit the land and by a new legal fiction to preserve the name of their father—the land would be known as the land of a daughter of Zelophehad.
[p.163]None of the tribes of Israel had yet received a land inheritance. Perhaps despite the Jewish tradition in Baba Bathra to the contrary, all Israel was gathered together to plan the distribution of the land and not to discuss levirate marriage. According to the narrative, this would be a more logical setting for the daughters’ petition. However, Moses was said to be present in the court (Num. 27:2), and inheritances were not thought to have been distributed until after Moses’ death, when Joshua and the tribes of Israel had subdued the land (Jos. 13-19). At that time the land was assigned by lot to individuals among the tribes. Each of Zelophehad’s daughters received two lots because their father was a firstborn son (17:5). Therefore, a plausible explanation is that the daughters had actually sought to participate in the original division of land inheritances after they arrived in Canaan and to have the land chosen by lot under their father’s name.
Could this legal problem have been avoided if Zelophehad had thought through more carefully how to dispose of his property and to provide for his daughters? Or was it impossible at that point under the laws of Israel for a daughter to inherit from her father?
In all probability, the daughters appeared before the court of Israel sometime in the late thirteenth or early twelfth century B.C. What laws in the ancient Near East at or before these times related to the inheritance rights of daughters, even though the new Mosaic code was generally more liberal and enlightened than the codes of neighboring societies?
The Code of Lipit-Ishtar permitted daughters who became priestesses to be full heirs with their brothers.3 A priestess served in the temple and did not receive a marital dowry. Such women thus could inherit land. Since such daughters/priestesses would never have children, their brothers became their heirs.
The Code of Hammurabi permitted a soldier to deed any [p.164]property he owned that he had not received as a gift from the king for military service to his wife or daughter.4 The Code of Hammurabi also contained a provision permitting inheritance rights for a priestess5 and added that a father could give his priestess daughter full power to bequeath her inheritance to whomever she wished. If the father did not provide for his priestess daughter by gift or will, the law did. Her estate automatically went to her brothers upon her death, unless she was a priestess of Marduk (the highest rank). Then she was free to do as she wished.6 According to the Code of Hammurabi, if a father provided his daughter with a dowry at her marriage, she was no longer considered his heir.7
Statutes regarding inheritance rights of daughters are missing or are simply not addressed in other codes. Therefore, we can identify two principles from the two aforementioned codes: (1) If a daughter decided to forego marriage and dedicated herself to the service of the gods, she became an heir of her father; (2) if a daughter married and received her dowry from her father or her brothers, she lost heirship rights.
If we assume that similar codes applied in Israel—an assumption that can neither be proven nor disproven—we have an interesting situation presented in the parable of Job. He made his three daughters equal heirs with his seven sons (Job 42:15). Why did the author of this story think he would have been able to do this?
It was not unheard of in ancient law for daughters to become heirs. When Gudea, ruler of Lagash (a city in Sumer, part of the future empire of Babylon but before the rule of Hammurabi), published his edict to establish justice in his domain, he announced, “In the house in which there is no son, the daughter enters into the position of heiress.”8 Another Old Babylonian legal text from Nippur records, “If a man dies and he has no sons, his unmarried daughters shall become his heirs.”9
[p.165]However, another document from roughly the same period and location (the ancient Babylonian city of Sippar) notes, “There is no right of inheritance for daughters in Sippar, be they the eldest or not.”10 Although this last statement does not say whether such daughters had brothers and the text is incomplete, it appears that the inheritance rights of daughters were not uniform throughout the Near East. Even in the absence of sons, the inheritance rights of daughters appear to have been more of a benevolent aberration than a generally accepted practice.
Legal documents from Nuzi about 1300 B.C. provide additional insight. The Nuzis practiced adoption on an unprecedented scale for their time. In one Nuzi contract, a father adopted his daughter as a son for inheritance purposes: “Thus (declared) Unaptae, `My daughter Silwaturi I have given the rank of son. . . . The entire inheritance share, in the city and in the various cities, I have given to my daughter Silwaturi, whom I had given the status of son.’”11 We do not know whether she had any brothers. In another contract a father adopted a son and married his daughter to him, making them joint heirs—with the provision that if the son/son-in-law ever married another wife or divorced the daughter, all the inherited property would pass to the daughter.12
Other documents indicate that daughters were made equal heirs with their brothers.13 In some contracts sole daughters were heirs subject to the birth of a son/brother, who then became sole heir.14 Apparently a father could also give his daughter any gift that he wished during his lifetime or in his will, including both real and personal property.15 Documents from other ancient communities such as Ugarit, Alalah, and Elam reveal instances where daughters inherited even when they had brothers.16
It is clear that fathers were generally not prohibited from making their daughters heirs. Even among adherents of the [p.166]Mosaic code, if a father wanted a daughter to inherit from his estate, he could find a way by will or gift (Jos. 15:19; Job 42:15). If he did not create a legal transfer during his lifetime, however, in most jurisdictions his daughter would not receive an inheritance, although she would have rights of dowry or maintenance.
Zelophehad’s daughters argued before Moses and the other members of the court that it was unfair that they could not use their father’s right to cast lots and that some provision should be made so they could inherit and preserve their father’s name upon his inheritance. Moses took their petition before the Lord and received the following answer:
The daughters of Zelophehad speak right: thou shalt surely give them a possession of an inheritance among their father’s brethren: and thou shalt cause the inheritance of their father to pass unto them. And thou shalt speak unto the children of Israel, saying, If a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter.
And if he have no daughter, then ye shall give his inheritance unto his brethren.And if he have no brethren, then ye shall give his inheritance unto his father’s brethren.
And if his father have no brethren, then ye shall give his inheritance unto his kinsman that is next to him of his family, and he shall possess it: and it shall be unto the children of Israel a statute of judgment, as the Lord commanded Moses (Num. 27:7-11).
Thus, Israel’s law of intestacy was changed, and daughters were added to the chain of succession, becoming second only to their brothers. If a father died with only daughters and had not provided for those daughters by will, they became his legal heirs.
Some time later other members of the tribe of Manasseh [p.167]complained to Moses that if the daughters of Zelophehad married outside the tribe, their inheritance would go with them and thus diminish the tribe of Manasseh. Clearly this ran contrary to the original purpose in giving them an inheritance (Num. 36:3). Moses agreed and amended the law so that daughters had to marry within their father’s tribe to retain the land inherited (v. 8). All the daughters of Zelophehad married cousins (v. 11).
The Daughters of Lot
The daughters of Lot engaged in unusual sexual relations for which they have been both maligned and blessed. The sons they bore became the founders of nations protected by God.
God determined to destroy the city of Sodom where Lot and his family lived but sent angels who gave Lot and his family an opportunity to flee before the destruction came. Lot could not convince the husbands of his married daughters to come. But he, his wife, and his two unnamed daughters fled from Sodom shortly before “brimstone and fire” rained upon it and upon its sister city, Gomorrah (Gen. 19:24).
As they fled, Lot’s wife looked back, disobeying the instructions of the warning angels, and was turned into a “pillar of salt” (Gen. 19:26). Lot and his daughters fled to a cave in the mountains where they stayed, afraid to go out because of the great destruction.
It is not clear how long they were there, but apparently they had a clear view of the desolation. They apparently concluded that the entire earth had been devastated and depopulated. Lot’s eldest daughter proposed to the younger: “Our father is old, and there is not a man in the earth to come in unto us after the manner of all the earth: Come, let us make our father drink wine, and we will lie with him, that we may preserve seed of our father” (Gen. 19:31-32).
[p.168]These women appear to have understood the principle of levirate marriage. If a man died childless, a brother or other near relative would become the widow’s husband for the purpose of fathering a child to preserve the name of the deceased husband and to provide security for the wife in her old age.
The daughters of Lot apparently contemplated such a union. It would not have been a conventional levirate marriage. But they believed there were no more available worthy men of their lineage—and they justified their act by the same principles justifying levirate marriage. On consecutive nights the daughters made Lot drunk and then had sexual relations with him, the elder on the first night and the younger on the second. This did not constitute rape since a woman could not by legal definition rape a man.
Ancient legal codes prohibited fathers from committing incest with their daughters. The Old Babylonians of Hammurabi’s time banished from the city fathers who committed incest with their daughters from the city.17 The Hittites, several centuries later, would make father-daughter incest a capital crime for the father.18
Lot’s daughters were aware that Lot could not, ethically or legally, consent to their plan to provide him with offspring, but he could not be faulted if there was no intent on his part, and no law specifically prohibited daughters from initiating sexual relations with their father.
Each of Lot’s daughters bore a son. The oldest daughter called her son Moab (“from the father”) and the second daughter called her son Ben Ammi (“son of my people”). These sons became the forefathers of the Moabites and the Ammonites, who were protected by God until they fell into idolatry. Moab was an ancestor of Ruth and therefore of David, Solomon, and Jesus.
[p.169]Notes:
1. Baba Bathra 119b, in I. Epstein, ed. and trans., The Babylonian Talmud (London: Soncino Press, 1948), 490.
2. Jos. 17:5; Baba Bathra 8.3, in Herbert Danby, trans. The Mishnah (Oxford: Oxford University Press, 1985), 376.
3. “lot5″> “If (there is) a high-priestess a priestess or an epicene whose father has bestowed a dowry on her and has written a tablet for her (but) has not granted her written authority in the tablet which he has written for her to give (the charge of) her estate to whom she pleases and has not conceded her full discretion, (then,) after the father goes to his fate, her brothers shall take her field and her plantation (into their charge) and give her food oil and clothing according to the capacity of her share and satisfy her. If her brothers do not give her food oil and clothing according to the capacity of her share and do not satisfy her, she may give her field and plantation (in)to (the charge of) any cultivator who pleases her and her cultivator shall maintain her; she shall enjoy the field (and) the plantation (and) anything which her father gave her so long as she lives. She shall not sell (them and) she shall not use them to settle the claims of any other (person). Her inheritance belongs to her brothers.” Code of Hammurabi 178, in G. R. Driver and J. C. Miles, eds., The Babylonian Laws, 2 vols. (1952; rprt. Oxford: Oxford University Press, 1968), 2:71.
6. Code of Hammurabi 180, 182, in ibid., 2:73.
7. “If a father has bestowed a dowry on his daughter (who is) a lay-sister, has given her to an husband (and) has written a sealed tablet for her, after the father goes to (his) fate, she shall at the division [p.170]not take (anything) out of the property of the paternal estate.” Code of Hammurabi 183, in ibid.
8. Z. Ben-Barak, “Inheritance by Daughters in the Ancient Near East,” Journal of Semitic Studies 25 (1980): 23.
11. J. Paradise, “A Daughter and Her Father’s Property at Nuzi,” Journal of Cuneiform Studies 32 (Oct. 1980): 189.
15. Katarzyna Groesz, “Dowry and Brideprice in Nuzi,” in Studies on the Civilization and Culture of Nuzi and the Hurrians in Honor of Ernest R. Lacheman, eds. M. A. Morrison and D. I. Owen (Winona Lake, IN: Wisenbrauns, 1981), 168.
16. Ben-Barak, “Inheritance by Daughters,” 24-32.
17. “If a man (carnally) knows his daughter, they shall banish that man from the city.” Code of Hammurabi 154, in Driver and Miles, The Babylonian Laws, 2:61.
18. “[If a man] sins with his mother, (it is) an abomination {capital crime}. If a [man] sins with a daughter, (it is) an abomination. If a man sins with a son, (it is) an abomination.” Hittite Law 189, in E. Neufeld, ed., The Hittite Laws (London: Luzac & Co. Ltd., 1951), 54.