Rabbi Michael Abraham’s Paradigm for Changing Jewish Law – A Critique

Opening post by the rabbi

Rabbi Michael Abraham’s Paradigm for Changing Jewish Law – A Critique

Sent on 8/7/2013

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Rabbi Michael Abraham’s Paradigm for Changing Jewish Law – A Critique

Rabbi Michael Abraham published an article in which he proposed an Orthodox paradigm for changes in Jewish law. In the course of his remarks there, he proposes, on the basis of that paradigm, a change in the law that disqualifies women as witnesses. I would like to discuss and critique his remarks there, as a continuation of the discussion that took place here. [The critique here should also interest many forum members who do not believe in Torah from Heaven, by approaching the issue as a logical puzzle. Are Mikhi’s arguments plausible and acceptable—while accepting the Orthodox principle that the Talmud and the tradition of legal rulings are binding? This is especially relevant in light of his assessment that ‘…the religious map will change before long, and parts of Modern Orthodoxy (including rabbinic leadership) will join the Conservative/Reform movements, and something more sane will emerge, speedily in our days, amen.’ It is therefore important to become familiar with it: for the Orthodox, so that they do not stumble in Jewish law; and also for the Reform, so that they do not fall into illusion, as Yerubaal wrote: ‘Ironically, precisely a position like the one Mikhi presents is the most substantive threat to Reform that I know.’] I will divide the critique into four sections. A. A critique of the proposal to change the law so as to permit women’s testimony as a matter of basic law. B. On the paradigm for changing Jewish law. C. Can a paradigm for changing Jewish law be proven from the Meiri? D. On the paradigm for changing Jewish law in a situation of uncertainty. Women’s testimony – background: according to the Torah, women are disqualified from serving as witnesses by scriptural decree. The Talmud in tractate Shevuot 30 derives this from the verse, ‘Then the two men shall stand’—’men’ and not women—and from a verbal analogy based on the word ‘two.’ (In the Jerusalem Talmud, the Sifrei, and Rambam, there are different derivations, but the law is agreed upon by all.) This ruling is codified in Rambam and the Shulchan Arukh. The Talmud explains that women’s testimony is accepted and relied upon in resolving many questions, and even serious matters of prohibition (see below), when those matters do not require the formal laws of testimony. Formal testimony applies only to ‘testimony concerning a person,’ based on the verse ‘One witness shall not rise against a person’—for example, testimony to extract money from someone in possession of it or to sentence a person to lashes or death. Likewise, a woman is not qualified to serve as a ‘constitutive witness’ for marriage and divorce (according to Jewish law, a marriage takes effect only if two witnesses were present. Such testimony is called ‘constitutive testimony’). The same is true of documentary testimony (signing a marriage contract, for example) and testimony for sanctifying the new moon—in short, constitutive testimony, in which the witnesses’ presence gives legal validity to the act. (And not in order to prove that the event occurred; this is not the place to elaborate.) Today all rabbinical courts accept a woman’s testimony in almost every area because of an enactment of the early authorities (Rabbeinu Gershom or Rabbeinu Tam), as brought in Rema, Choshen Mishpat, sec. 35, subsec. 14, and in Pitchei Teshuvah there, and elsewhere. And because today there are no formal adjudications under Torah law at all, the practice is that, in the arbitration agreement, the parties undertake to accept the testimony of women and other disqualified witnesses. Practically speaking, the disqualification of women’s testimony today is expressed mainly in the fact that a woman is disqualified from serving as a witness for ‘constitutive testimony’ in marriage and divorce, for signing a marriage contract, and, in short, for constitutive testimony. ++++++++++++++++ *Who can discern errors? If I erred in presenting his position, one may assume that, as an active forum member, he will correct me. **In the last response Mikhi hinted that I copied a paragraph from his article without giving him credit. So I am doing that now. (When I wrote these words I did not remember the article at all, but after he pointed it out to me I looked and saw that there really is a similarity between the two. Apparently I was influenced by his writing. To my mind, that is only a greater compliment. I apologize and note it here.)

Source (the ‘Stop, People Think Here’ forum): http://www.bhol.co.il/forums/topic.asp?topic_id=3015746&forum_id=1364