Parashat Ki-Tetzei (5760)

With God’s help, eve of the holy Sabbath, Parashat Ki-Tetzei, 5760

On the status of women and changes in Jewish law

In our portion, the Torah addresses the relationship between man and woman in several places. At the beginning, the portion deals

with the “beautiful captive woman” (Deuteronomy 21:11), a woman whom one of the soldiers desires to marry. Later in the portion there appears the section on

divorce and on remarrying one’s former wife. Still later there is a command concerning the newlywed husband that he is to be “free

for his household” (Deuteronomy 24:5), that is, during the first year of his marriage he is not to engage in any other intensive occupation

apart from building his home and his family.

As is especially striking, particularly to a modern eye, all these references are not symmetrical. The Torah

generally addresses the man, and all the commands apply to him. It is the husband who must be “free

for his household” (Deuteronomy 24:5). It is the husband who initiates the marriage (“when a man takes a woman,” Deuteronomy 24:1) and divorces her (“and sends her out of his house,” Deuteronomy 24:1).

It is the man who takes the “beautiful captive woman” (Deuteronomy 21:11). In the Torah’s world the husband is the active party and the woman

is the passive one. As the apologists are accustomed to point out, this has advantages and disadvantages for

each of the spouses, yet today there is a sense that such an approach is problematic. In the

modern world, women no longer occupy so passive a status as they did in the past, and the question of

the relevance and justice of such attitudes arises with great force.

As a result, demands arise for change and “repair” in Jewish law, some of which are possible within

the legal system, and some of which are not. In any case, it seems that the world of Jewish law is not eager to repair

even those parts that are ostensibly open to correction. The processes are slow, and criticism arises over

the ossification of the system.

Demands to correct any system of rules must be based on full recognition of the motives

and reasons for those rules. If the reasons for a certain rule are not clear to me, then obviously I cannot

determine that it is irrelevant or unjust, and consequently I also cannot demand that it be changed.

A reasonable demand for change is based on the mismatch of the rule in question to its purposes, and if those purposes

are not clear, there is no room for such criticism.

As stated, this is a general claim, and it is clear that Jewish law has undergone and continues to undergo certain changes as a result

of changes in the circumstances in which we live. In the present case, the status of women, there are strong demands

to change the legal approach in the direction of greater equality between husband and wife.[1] Some of them

may perhaps be implementable, directly or indirectly, and some are probably not implementable.

It is important to understand that the situation in which demands cannot be implemented is not accidental. Apparently the Torah sees

in these points a depth that we do not understand, and therefore it does not allow them to be changed.

As stated, one who does not understand a certain rule cannot determine that it is irrelevant and change it.

A good example of this can be seen in the subject with which we dealt last week, the laws of testimony.

Jewish law disqualifies women from serving as witnesses. Here too there is today dissatisfaction, as a result of which

demands arise for change and for equalizing women’s status. Why should women’s testimony not

be accepted? Are they less reliable? Is this rule valid even in our own day, when women are active

in all areas of endeavor and life?

At this point the claim above can be illustrated well. Last week we saw that the testimony of relatives is not

accepted, even though we have no doubt about their reliability. We concluded that testimony is not assessed only according to the question

whether the truth has been established beyond any reasonable doubt; rather, there are additional parameters by which it is assessed

(last week a possible explanation was offered for those parameters, but for the present discussion all that matters is the very

existence of them).

For our purposes, it would seem that the disqualification of women as witnesses is not necessarily because we do not believe them,

for there are other types of witnesses as well whom we disqualify despite their unquestioned reliability.

Without the discussion we conducted last week, one might also have argued that the testimony of relatives should be accepted

when it is against the interest of their relative, a case in which there is no concern about unreliability (at least no more than the concern that exists

in any other testimony). As stated, relatives are not believed even against the interest of their relatives, because testimony

is not judged solely by the truth that it clarifies.

The disqualification of women as witnesses is a law explicitly derived from verses of the Torah, and as such it has several layers

of explanation, each within the other. On the plane of reliability, one might perhaps think that women today are as reliable as

men, and from that standpoint their testimony should be accepted. However, from the standpoint of the metaphysical depth-layers

of the concept of testimony, and of the disqualification of women as witnesses, it would seem that we require familiarity with them before we can

demand changes in them. So long as we do not possess a full understanding of the nature of these layers, we cannot

make changes, or even demand them.

As with testimony, so too with the entire issue of women’s inequality in Jewish law. A demand for change can

relate only to legal rules whose reasons are thoroughly clear to us, something that perhaps exists (certainly

not always) on the plane of rabbinic law, but certainly not on the plane of the Torah’s own laws.

One who understands that such changes are not a trivial matter, since they entail deep consequences,

on both the human and the metaphysical planes, will reasonably respond slowly, if at all,

to changed circumstances. He will not be inclined to change Jewish law because of every passing fashion,

which can vanish in an instant just as it arrived.

Have a peaceful Sabbath

This may be left for respectful sacred-text disposal at any synagogue or academy of Torah study. Comments and responses will be gratefully received.

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[1] Some regard Rabbeinu Gershom’s decree (not to divorce a woman against her will, and not to marry two

women) as a step whose purpose was to equalize the status of women with that of men at the two central points

at which inequality between them appears (divorce against a woman’s will, and polygamy).

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