Yesterday, we noted the Gemara’s discussion (Bava Batra 119b) concerning the story told in Parashat Pinchas of five sisters who sought to inherit their deceased father’s allotted share in the Land of Israel. The Torah tells that these women brought their request “before Moshe and before Elazar, and before the tribal leaders and before the entire congregation” (27:2). The simple meaning of this verse is that Moshe, Elazar, the leaders and other scholars were assembled together at the time, and these five women approached and presented their question to them all. This is, indeed, how one view interprets the verse. The other view, however, disagrees, claiming it would have been disrespectful to Moshe to present a question to him and his students together. This second view therefore adopts a somewhat strained reading of the verse, explaining that the women first approached the lower-level scholars, and when they did not know the answer, they brought the question to Moshe.
Many writers addressed the question of why the Gemara brings this discussion of the verse here in Parashat Pinchas, but not in reference to a similar verse earlier in Sefer Bamidbar, in Parashat Behaalotekha (9:6). There we read of the temei’im, the group of people who were unable to bring the pesach sacrifice due to their state of impurity, and came “before Moshe and before Aharon” to ask permission to offer the sacrifice despite their halakhic state. Seemingly, the same question arises in this context, as to whether the temei’im approached Moshe and Aharon together – as the simple reading of the verse suggests – or if they first approached Aharon and then, when he did not have an answer, Moshe. The Gemara brings no such debate concerning the question posed by the temei’im, indicating that all Tanna’im accepted the straightforward reading, that Moshe and Aharon sat together when the question was posed. Why would everyone agree concerning that incident, but not in the story of the Tzelofchad’s daughters who asked for their father’s portion of Eretz Yisrael?
The Torat Chayim commentary to Masekhet Bava Batra, as well as the Panim Me’irot (2:29), answer this question by distinguishing between different areas of Halakha – ritual law, and monetary law. When it comes to ritual law, they explain, it is forbidden to bring complex halakhic questions to a student if his rabbi lives in the city and is available, as this constitutes an infringement upon the teacher’s honor. Therefore, all Tanna’im agree that the teme’im brought their question directly to Moshe, who was obviously the leading sage of the time, and not to Aharon, who was considered Moshe’s “disciple.” When it comes to matters of civil law, however, Moshe himself established a hierarchical network of courts to resolve civil disputes, as we read in Sefer Shemot (18:25) and Sefer Devarim (1:15). As he himself authorized lower-level scholars to adjudicate civil matters, it was obviously acceptable to bring civil cases to these judges. Therefore, it was only in regard to the question posed by Tzelofchad’s daughters – which concerned the inheritance of property – that the Sages considered the possibility that the question was brought to the lower-level scholars before finally reaching Moshe.
This distinction between ritual law and civil disputes was drawn also by the Maharik (169), in a different context. The Gemara in Masekhet Sanhedrin (23a) makes a certain comment about the courts of two Amora’im – Rav Huna and Rav Chisda – and Rashi explains that these two courts were in the same city. Tosefot dispute Rashi’s explanation of the Gemara, noting that the Gemara elsewhere (Eiruvin 62b) describes Rav Chisda as viewing himself subordinate to Rav Huna, and refusing to issue any halachic rulings in Rav Huna’s city. If so, Tosefot ask, then how could Rav Chisda have established a court in the same city as Rav Huna’s court? The Maharik defends Rashi’s comment by distinguishing between ritual law and civil law. Even though questions involving ritual halakhic matters may not be answered when one’s rabbi is available, a competent scholar may convene a court to resolve civil disputes even in his rabbi’s town, in accordance with the precedent established by Moshe, who assigned lower-level judges to assist him so he would not have to single-handedly arbitrate all the nation’s disputes.
We should add that Chida, in his Petach Einayim (Bava Batra), notes that the Sifrei indeed brings the aforementioned dispute among the Tanna’im in reference to the question posed by the temei’im, thus undermining the question discussed above and obviating the need to distinguish between different areas of Halakha in this regard.