The Case for Disconfirmative Action and Legacy Admissions

On Pinchas, Moses, The Daughters of Zelophehad, Or Why Leaders Should Be Held To A Double Standard

“Our father died in the wilderness. He was not one of the faction, Korach’s faction, which banded together against the Lord, but died for his own sin; and he has left no sons. Moses brought their case before the Lord.And the Lord said to Moses, “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 27:3-7)

According to the simple meaning of Scripture, they spoke in this way because they thought that Moses our teacher hated the company of Korach more than all other sinners who died in the desert, because they had rebelled against him and had denied the Divine approval of all his deeds; therefore they thought that perhaps because he hated them [the company of Korach] he would say: Let there be none to extend kindness unto him; neither let there be any to be gracious unto his fatherless children. (Ramban)

For, in the wilderness of Zin, when the community was contentious, you disobeyed My command to uphold My sanctity in their sight by means of the water. Those are the Waters of Meribath-kadesh, in the wilderness of Zin. Moses spoke to God, saying, “Let the Lord, Source of the breath of all flesh, appoint someone over the community who shall go out before them and come in before them, and who shall take them out and bring them in, so that the Lord’s community may not be like sheep that have no shepherd.” And the Lord answered Moses, “Single out Joshua son of Nun, an inspired man, and lay your hand upon him. (27:14-18)

Parashat Pinchas offers a unique meditation on the reality of “Key-man risk” and the problem of succession. What happens when a leader dies or is incapacitated? Can the mission, the institution, and the organization withstand this blow?

Pinchas gives us two foil cases. In one, the daughters of Zelophehad lose their father with no succession plan in place. This results in a legal ambiguity. Do they inherit or not? Ultimately, the case is resolved in their favor, but not without divine intervention. Zelophehad dies, we must assume, without thinking through the consequences of his death for his daughters. Or perhaps he doesn’t value transmission. Or perhaps he holds out hope for sons. Nonetheless, I suggest that he lives in what Heidegger calls “inauthenticity”—assuming that he will never die. His portion in the Promised Land will be his to claim, he reasons, and thus, there is no reason to secure it for his lineage.

In the other case, Moses knows he will die—he acknowledges his finitude—and prays for a successor. The priest who anoints Joshua, Elazar, is the father of Pinchas, bringing the parasha full circle: there is a link between Pinchas ben (son of) Elazar ben Aharon and Joshua ben Nun. Both are named as successors. The daughters of Zelophehad are referred to by their father’s name. Meanwhile, Moses and Aaron are just Moses and Aaron.

Although death is a natural and inevitable event, and a structure of human consciousness, the Torah links it to sin, as if human failure were its cause. That is because death itself is, Biblically speaking, an inheritance, passed down from Adam and Eve. In this frame, Moses must die because he looses patience with the people. On the face of it, it’s a trivial faux-pas, but when a leader fails—and fails by blaming his congregation—the reverberations are great. Is striking the rock the equivalent of eating from the forbidden tree of knowledge? A temptation that leads to a new, but alienating understanding of the world? Yes, in both cases, the sustenance comes—but it is an ill-gotten gain. Moses might have asked the rock to give water, but he takes it, a metaphor for his failure to treat leadership as a dialogue and his all-too human impulse to lead through coercion. The stubborn people are not changed by demonstrations of force and chastisement, but affirmed by it—now they can deflect the substance of Moses’s criticism by turning themselves into victims of his anger.

It is notable in this context that the daughters of Zelophehad emphasize their father’s sin as an individual one—in contrast to Moses, whose sin ramifies throughout his congregation, Zelophehad’s sin, whatever it was, is said to have been a kind of self-contained one. Going with the Midrash that he gathered sticks on Sabbath, we might go further—his sin brings the congregation closer together as it allows them to cathart by turning their attention to him. Zelophehad is a scapegoat.

But he is forgivable because, as his daughters imply, and God seems to endorse, he engages in no evil speech. His act is not one of talking negatively about a leader behind their back, nor to their face. Zelophehad is afforded the luxury of a private sin—which fits with what we know about him—his error is that he fails to think of the consequences of his actions for others.

Moses, the leader, loses his share in the Promised Land for what appears to be a small failure, loss of temper, while Zelophehad’s daughters retain their right to the land despite their father’s sin. It appears to be a double standard, but here’s the rub: Moses doesn’t simply loose his temper, he loses it at the people. He punches down, so to speak. Pinchas, by contrast, engages in an act of explicit violence, but can be construed as punching up—he makes an example of a chieftain who has erred. The lesson: leaders are held to higher account. Zelophehad’s daughters are not entitled to affirmative action. Rather, Moses and Zimri are judged according to disconfirmative action.

We can now understand why Zelophehad’s daughters name Korach in their plea. Korach was someone who demanded power without accompanying responsibility. But their father wanted neither power nor responsibility—he was an anti-Korach, what Hegel calls a “beautiful soul,” a private man. Korach’s challenge to Moses in last week’s parasha emphasizes the inequality in role between them, but not the inequality in responsibility. Korach wants the honor without the risk. In this week’s parasha, we see what happens to leaders who fail and how difficult and burdensome it is to be a leader.

Zelophehad’s daughters claim their “legacy” while the chieftains who mix with the cult followers of Baal-Peor squander it. The Torah has nothing negative to say about “legacy” admissions per se. The problem is when the legacy is taken for granted and assumed to be a blank check for moral turpitude rather than a call to greater moral scrupulousness. Structurally, the daughters of Zelophehad are passed over not simply because they are daughters in a patriarchal legal system, but because the Torah wants to underscore that legacy is not passive—you have to want it, claim it, demand it, honor it. Legacy, like leadership, is an asymmetric privilege, but also an asymmetric burden: it is ours to lose. All are equal, but all are not to be judged equally. The moral failure of normies, while a problem, is to be expected. It is the moral failure of leaders that requires escalation.

One final lesson we can draw from the parallel between Pinchas and Moses. Pinchas receives a covenant of peace from God, which can be read as a covert critique. God blesses Pinchas with peace, and in so doing, offers him encouragement to become a better person. Moses simply blames the people when he might have taken a page from God’s management book and blessed them with a covenant of patience. In so doing, the blessing would have reverberated in himself. We give the blessings we ourselves most need. God, we can infer, also seeks a covenant of peace. For it is the task of leader, in the ideal, not to criticize, but to coach, transform, and elevate.