The fifth chapter of BeMidbar deals with the obligation of those who have sinned to bring an asham-sacrifice. The verses open and say: “Speak to the Israelites: When a man or woman commits any wrong toward a fellow person… and that person realizes his guilt.” (BeMidbar 5:6)
We find here a seemingly inclusive and egalitarian opening regarding any person who has robbed or sinned in any way. These verses center on robberies that occur within the community and between its members. The law focuses, in the verses themselves and the Rabbinic exposition upon them, on defining the victims of the robbery. The ensuing discussion raises questions regarding the thin line between those whom the law refers and relates to and those to whom it does not.
Along with the asham-offering itself, robber also has to bring a shelamim-offering, and the robber has to return what he stole and appease those he violated: “He shall make restitution in the principal amount and add one-fifth to it, giving it to the person whom he has wronged… in addition to the ram of expiation with which expiation is made on his behalf.” (vv. 7-8)
After setting down the basics of the law, the verses turn to a case where the victim is no longer alive and also has no heirs: “…Giving it to him whom he has wronged. If the man has no kinsman to whom restitution can be made, the amount repaid shall go to God for the priest.” (vv. 7-8)
As such, the verse teaches us that the kohen serves as the legal heir in a case where there are no relatives to inherit the victim’s due restitution. This law takes into account the broadest view of society, including those in the society who, if not the weakest, are certainly the most alone.
The meaning of this law is that when a person is a member of the Jewish community, any attack on them is not something that can be neutralized or ignored. Retribution does not depend on the victim’s power to obtain or capacity to receive it. As such, this case covers much more than any one individual’s circumstances as a victim – even if there is no one to stand up for the victim, no one who is responsible or interested in the payment, there is a system set up by the community that ensures that this crime will not be passed over in silence.
The various midrashim that deal with this passage ask versions of these two questions: First, who is this person? Who could possibly have no heir? Second, since the word “man” in mentioned in the verses, the question is asked whether women are included in the law of those who do not have heirs?
If the man has no kinsman” – R. Yishmael says: “Is there really any person in Israel who doesn’t have a redeemer? So what is the verse teaching by saying “If the man has no kinsman?” The verse teaches about one who robs a convert, swears to him, and then he dies [before being repaid]. He pays the principle and the added fifth to the priests, and the asham-offering is brought on the altar.
R. Natan says: “If the man has no kinsman” – I only have a man, how do I know that a woman is also included? As it says “to whom restitution can be made.”
First, the midrash seeks to identify who could be so alone so as to have no legal heir, no “kinsman.” The primary assumption, as articulated by R. Yishmael, is that there is no person in the community of Israel who has no redeemer, no relatives or heirs, because R. Yishmael assumes that the Jewish people itself constitutes a family. So as long as there are other Jews, there are other relatives. It should be impossible for there to be no one to serve as the redeemer. Indeed, the community of Israel are in fact the children of an actual, single person named Israel; Jews are a family group who are united by a shared bloodline. We are all equally descended from a forefather, an ancestor (which leaves room for less uniqueness among individuals, less diversity and inclusiveness among members).
However, in attempting to locate that person who can be stolen from but have no one to demand the recovery of the loss, the midrash pushes this exclusive voice aside. Instead, the group is defined in a different way – not as the product of family ties – in order to hone in on the individual within Israel who has no family.
So what is the verse teaching by saying “If the man has no kinsman?” The verse teaches about one who robs a convert.
Here, R. Yishmael offers converts as the example of someone who has no heirs, no redeemers. The verse and the law come to include the convert and to teach us that even those without a family to fight on their behalf are seen by the law. When the vulnerable ones have been robbed, the kohen and the Holy will step into the breach and act as their redeemers.
Thus, according to the midrash, this entire passage actually focuses on the narrow case of robbing a convert. Moreover, the midrash not only solves the riddle of whom the verses could be referring to, but also challenges the notion that being Jewish necessarily means that you are part of the family of “the children of Israel.” Converts present a different anchor for the definition of the group of Benei Yisrael, one that you are not necessarily born into, but that you can choose to join.
The second question that emerges in the midrash is about the place of women – are female converts protected by the law as well?
R. Natan says: “If the man has no kinsman” – I only have a man, how do I know that a woman is also included? As it says: “to whom restitution can be made.”
R. Natan, as the midrash quotes him, shares R. Yishmael’s principle that these verses refer to one who robs a convert. R. Natan suggests that from the word “man” in the verse, you would think that only a man’s loss is relevant in a case where the money could not be returned to the heirs of the one who was robbed. If a female convert were to be robbed, and she was no longer present, the money due to her would not go to the kohen along with the sacrifice that is brought.
R. Natan’s initial reading of the verse challenges the expansion of who is going to be included in the Jewish people, from a social and legal perspective. The office of the Holy provides an heir where there otherwise would be none, yet R. Natan questions whether this provision applies to a female convert, or if she is not be included in this holy social structure.
R. Natan concludes that she is included. He brings her into the social structure by emphasizing a short phrase in the selfsame verse, “to whom restitution, asham, can be made.” However, it is not clear how this phrase actually accomplished its inclusive goal. There are three possibilities:
The noun “asham” emphasizes that any stolen good (that obligates one in a guilt-offering) needs to be brought, regardless of its owner’s (gender or other) identity.
The relational word “to him” is a mutual expression which serves to include, irrespective of gender.
The verb, “to restitute,” requires every robber to return what he took, regardless of the identity of the person from whom he stole.
We find the same law, expressed differently, in another midrash – Sifrei Zuta.
If the man has no kinsman” – I only have a man, how do I know to include a woman? The verse says “If the man has no kinsman.
In this midrash as well, the starting assumption is one that excludes, focusing on a man and not a woman. However, in this midrash, the exclusion is rejected by a different phrase from the pasuk, “If the man has no kinsman.” Since we know that the word “man” excludes a woman, it must be that the words that comes to include people who are not “men” are the words “has no redeemer.”
The Talmud Bavli also asks this same question in its own way.
Ravina asks: What is the law if one robs a female convert? Do we say that the verse specified “man” and not a woman, or maybe this is just the way of the text [to use male pronouns inclusively]?
Here we have the same possibility of exclusion, articulated by the Amora Ravina, a few generations later. However, I’d like to focus on the possibility that Ravina offers in his question: that perhaps masculine terminology in the Torah is rightly understood as inclusive, that “this is just the way of the text.” Maybe, when the text says “man” it means person, “man” as a gender neutral word, and it should never be read as excluding non-“men” at all!
This law, these verses, and these midrashic readings of the verses each attempt to be inclusive in different ways. They worry about the converts, those who are most isolated, and the women among them, the vulnerable of the vulnerable, including them both in the law.
We are left with two ways to understand the motivations behind this law: We could emphasize that in this halakhah, the kohen and the Holy are the primary beneficiaries when the law is in place. The debts and the returned payments of all converts who have no “redeemers” go straight into the kohen’s account. One way of viewing this law is therefore that it is designed to benefit the bottom line of the Temple and those who serve in it.
However, at the same time, it seems that this law is designed to teach a moral lesson to the community, a significant message in our post-Temple time. Through this law, the convert is considered to be a full member of the Jewish community. However, since we are talking about something that happens after she dies childless, her belonging remains purely conceptual.
However, even beyond the convert herself, this law serves an educational purpose with regards to the religious community and how it treats and relates to converts.
By way of summary and conclusion, let us say that the sages choose to read these verses in such a way they place the kohen and God’s home on the side of the converts. We can’t know what motivates their reading – whether it is their understanding of what belongs to the Holy, or whether it is a product of their social reality, that they hope to appropriate the reality of the Temple in order to forge their own socio-religious reality. Either way, we have before us one answer to the question of what is meant by the general term “Israel.” Israel is not joined together as a family, but rather they are bound together as an inclusive group, a group that cares for its weakest members and makes provisions for the most vulnerable in its midst.
 For a broad discussion of these forms of inclusion and exclusion see Women Out, Women in: The Place of Women in Midrash (Hebrew) (Tel Aviv: Miskal-Yedioth Ahronoth and Chemed Books, 2008), which is the product of research done by me in collaboration with the late Prof. Chana Safrai.