On the Appointment of Women as Judges in Rabbinical Courts (Column 70)
With God's help
Some time ago it was reported that, for the first time in Israel, a Muslim woman qadi was appointed, that is, a woman who would serve as a Muslim judge in a shari'a court. As expected, MK Zehava Galon, in her opinion piece, suggests that we learn from them,[1] and calls for applying this principle to rabbinical courts as well. In my article in Makor Rishon (see also columns 56,57,58) I explained that there is not the slightest impediment to appointing women rabbis, and here I will continue that line and address the appointment of women as judges, a subject that is decidedly more complex. The issue involves rather intricate halakhic clarifications, and here I will only note a few general lines for discussion.
A Warm-Up: the Shakdiel High Court Case
In 1987, Leah Shakdiel's candidacy to serve as a member of the religious council in Yeruham was disqualified because she was a woman. Together with the Association for Civil Rights, she petitioned the High Court of Justice against the Minister of Religious Affairs (Zevulun Hammer, not exactly an honorary member of Neturei Karta). During the proceedings and the surrounding events, the media presented a marvelous rabbinic consensus, including rabbis from across the spectrum, that this was absolutely forbidden according to Jewish law. Some threatened that if the High Court exceeded its authority and dared intervene in this "internal religious" matter, the religious councils would be shut down or dismantled and harsh steps would be taken.
And lo and behold, the High Court (Aharon Barak, Miriam Ben-Porat, and also the religious justice Menachem Elon) was not especially impressed by the threats, and in the end ruled to accept the petition. The minister was required to accept Shakdiel as a member of the religious council. And lo and behold, immediately afterward that rabbinic consensus evaporated as if it had never existed. Everyone understood that there was no halakhic or other problem whatsoever with the matter, and to this day women serve on religious councils and no one says a word. Moreover, during my time in Yeruham (that was also when I got to know Leah well), the Haredi community in Yeruham opposed the appointment of a religious man to the religious council and proposed in his place a secular or traditional woman. How the mighty have fallen!
I still remember that I, a mere yeshiva student at the beginning of my Bnei Brak period (later, when we moved to Yeruham, we came to know Leah Shakdiel well), wondered at the meaning of that "prohibition." What prohibition is there in this? Where did this marvelous halakhic consensus come from? And indeed, there is not the slightest problem with such an appointment, apart from yet another attempt by the forces of darkness to impose medieval social norms on us. It turns out that turning an administrative-governmental matter into an internal religious matter is a technique that does not always work, and that is a good thing. But membership on a religious council is the easy case, since it is truly not a matter for Jewish law in any way whatsoever. By contrast, appointing women judges is very much a halakhic matter. Here the conservative opposition appears more well-founded.
On Secular People, Religious People, and Conflicts
If we return to Zehava Galon, it is no great feat that a secular MK calls for appointing a woman, since she is not committed to Jewish law at all. Even if Jewish law does indeed prohibit this very severely, that presumably does not trouble MK Galon very much. This is similar to a secular person criticizing Jewish law for requiring the wife of a kohen who was raped to separate from her husband, or for forbidding work on the Sabbath. Such criticism is of course legitimate, so long as it is aware that its point of departure is a lack of commitment to Jewish law. A religious person can be committed to the principles of morality and humanity that reject harming such a woman and her family, but he is also committed to Jewish law, which requires this (apparently out of concern for the holiness of the priesthood). A religious person, and only he, can find himself in such a conflict, and when he comes to formulate a position he will have to make difficult decisions. A secular person does not make difficult decisions in such a context, because he is simply not committed to Jewish law and therefore is not in conflict. His position is of course legitimate (though in my opinion mistaken), but his criticism of the religious position as though it were immoral is groundless. The religious person is committed to morality no less than he is, but in his world there are additional values, and sometimes they clash with moral values and he must make difficult decisions. Seemingly, so too with respect to the question of appointing women judges. There too MK Galon can easily criticize the halakhic situation, precisely because she is not committed to Jewish law at all. I assume she would be happy if there were no male judges and/or female judges here at all, in a completely egalitarian fashion. By contrast, a modern religious person who is committed both to women's equality and to Jewish law—he, and only he, is in the conflict that forces him to make difficult decisions.
And Yet, Legitimate Criticism
If so, outside criticism is seemingly irrelevant, just as in the case of the wife of the kohen. What standing does a person have to speak with respect to a system to which he is not committed and which he neither knows nor understands? Similarly, many criticize the involvement of secular people in selecting chief rabbis. They do not understand Jewish law and are unfamiliar with it, so why should they have standing in the process of choosing rabbis? What do they understand at all about the rabbinate and rabbis?
But these claims are mistaken, indeed absurd. MK Galon and the general public she represents would very much prefer that there be no rabbinate and no rabbinical courts here, and they probably do not really understand this subject either (like many in the religious public), but whether they like it or not, they too are subject by law to the system of rabbinical courts and the Chief Rabbinate. In a democratic conception, it is impossible for people to have no standing with respect to institutions and persons who rule over and affect their lives. The spirit of democracy requires that a citizen have the right to participate in choosing those who staff governmental institutions that have authority over him.[2] It follows that every citizen, religious or secular, has every right to criticize the system, express a position regarding it, and even demand that it change, or make any other demand, whether or not it accords with Jewish law. Of course, he also has the right to express his opinion and try to advance it regarding who will fill these positions.
Religious people who wonder what secular people have to do with such questions, and ask why they have legitimacy to criticize halakhic conceptions, simply do not understand the framework of the discussion. They think this is a religious-halakhic matter, and forget that they themselves turned it into a governmental-public matter. MK Galon and her colleagues are not engaged here in criticism of Jewish law or of rabbis, but of a governmental institution of the democratic State of Israel. They are not expressing a position regarding Jewish law but regarding what ought to exist in the institutions of government of the state in which they are supposed to be equal citizens with influence. So too, the appointment of women judges in the state's courts is an administrative matter, not a halakhic one, just like the appointment of women to the religious councils. Therefore here too there is certainly room and legitimacy for criticism and demands directed at this governmental system.
One cannot claim that this is an internal religious matter that concerns only those committed to Jewish law, while at the same time demanding to give this institution authority over all the state's citizens. One cannot demand that the courts be staffed solely by male judges while at the same time imposing their authority by force of secular law on all citizens who object to this. If someone thinks that the demand for women to serve on the courts contradicts Jewish law (see below on this), let him kindly content himself with appointing judges and internal courts for the religious public or for any other group willing to accept this, but without any secular governmental authority whatsoever. The rabbinate and the courts, as well as part of the religious public, want to enjoy all worlds and dance at every wedding. To receive power and authority over the general public by virtue of secular democratic law, and at the same time to determine for themselves, without taking into account the views of all the citizens, how these institutions are to conduct themselves.
The only way out that allows halakhic purism is separation of religion and state. That would make it possible to do what religious people believe in, so long as they do it only for themselves (in this case I would apparently remain on the secular side of the map). Whoever is unwilling to separate religion and state should not complain about those who demand modes of conduct that fit democratic values, even if they do not fit Jewish law.
Criticism from Within
And yet, up to this point we have been dealing with "criticism from outside," and we have seen that it is entirely legitimate when it comes to secular governmental institutions like the rabbinate or its courts. But beyond that, there is room to examine the position that a person who is in fact committed to Jewish law ought to take on this issue. As I mentioned above, a modern religious person (and only he) is in a conflict on this issue. One who is not religious is not in conflict, and one who is not modern is not either. From the standpoint of the modern religious person, Jewish law may prohibit the appointment of women judges (see below), but modern and democratic values require it. Is there room for such criticism from within as well? Can someone who is committed to Jewish law but also committed to the values of equality join MK Galon's criticism? Seemingly, this involves rebellion against the authority of Jewish law. What is a person committed to Jewish law supposed to do or think in such a situation?
I will not discuss here the very possibility of such a conflictual situation. In column 15 I dealt with the question of normative duality, and there I showed that a person committed to Jewish law can also be committed to additional, "secular," values (although for him they too will probably be the result of his religious commitment). But the possibility of such a situation does not necessarily tell us what decision is to be made about it. I too can be in conflict and hold both the values of Jewish law and the values of equality, and there is no contradiction in this to my religious commitment. The question that still lies before me is whether, from a standpoint committed to Jewish law, there is a possibility of deciding this conflict in favor of the value of equality. Or perhaps a person committed to Jewish law can indeed find himself in conflict, but his halakhic commitment nevertheless obligates him, in the final analysis, to oppose such an appointment?
The Disqualification of Women from Judging and Testifying
The halakhic point of departure for the discussion is the ruling of the Mishnah and the Talmud in Shevuot 30a that a woman is disqualified from giving testimony. This is learned from the verse And the two men who have the dispute shall stand before the Lord, which is expounded as referring to witnesses (and not to litigants), and from here it is derived that only men are fit to be witnesses, not women. This exposition is problematic in several respects, which I will not enter into here, but the law is explicit in the Talmud and is ruled so by all the halakhic decisors (see, for example, Shulchan Arukh Choshen Mishpat 35:14 and elsewhere).
What about judging? The Mishnah, Niddah ch. 6, mishnah 4 (49b):
Anyone fit to judge is fit to testify, and there are some who are fit to testify but are not fit to judge.
The Mishnah states that whoever is fit to judge is fit to testify, and in the opposite direction there is an exception (see there in the Talmud who it is). From here the halakhic decisors infer (this is the rule of denying the consequent, modus tollens, in logic) that one who is disqualified from testifying is disqualified from judging. It follows that women, who are disqualified from testifying, are apparently disqualified from judging as well. So too it is ruled by all the halakhic decisors (see, for example, Shulchan Arukh Choshen Mishpat 7:4 and elsewhere).
Tosafot, in several places throughout the Talmud, are troubled by how the prophetess Deborah and she judged Israel ("judged Israel"), for a woman is disqualified from judging. Thus, for example, Tosafot, s.v. Any, Niddah 50a, asks:
Anyone fit to judge is fit to testify. And if you would ask: but a woman is fit to judge, as it is written regarding Deborah, “and she judged Israel at that time,” and at the end of the first chapter of Bava Kamma (15a) we expound from “that you shall set before them” that Scripture equated woman to man with respect to all punishments in the Torah; and just as this verse speaks of litigants, so too it speaks of judges, as we expound in HaMegareish (Gittin 88b), “before them” and not before idolaters; yet a woman is disqualified from testifying, as stated in the chapter Shevuat HaEdut (Shevuot 30a).
Tosafot bring two proofs that a woman is fit to judge: from Deborah and from the Talmud in Bava Kamma 15, which equates woman and man. They ask how this can be reconciled with the fact that she is disqualified from testifying and with the Mishnah that equates testimony and judging.
Tosafot answer with several solutions:
And one may say that this is what it means: any man who is fit to judge is fit to testify.
Here the assumption remains that a woman is fit to judge, and the comparison between testimony and judging applies only to men. Afterward two more solutions are brought that actually accept the comparison in its straightforward sense and assume that a woman is indeed disqualified from judging as well:
Alternatively, even if with regard to litigants a woman is included, nevertheless with regard to judges a woman is not included; and Deborah judged by divine instruction. Alternatively, she did not actually judge, but only taught them the laws.
And finally Tosafot bring that the Jerusalem Talmud held that a woman is disqualified from judging:
And in the Jerusalem Talmud a woman is disqualified from judging. Some derive it from “then the two men shall stand”… “by the mouth of two witnesses,” and some derive it from “and the two men remained in the camp.”
As noted, there are several parallel Tosafot passages throughout the Talmud, and in most of them the first solution is not brought (and it is indeed strained). Still, we do have here one opinion among Tosafot that a woman is fit to judge.
This is the first opening that allows a woman to be deemed fit to judge according to Jewish law. Admittedly, this is the view of a very small minority among the medieval authorities (Rishonim), and as noted it is also strained in the Talmud itself, but in a pressing situation (and conflict is a pressing situation) Jewish law sometimes relies on solitary opinions. The question is whether we see the value of equality as important enough to define a pressing situation.
Two More Heretical Thoughts
Beyond that, I cannot suppress the following heretical thought: even if there were no such Tosafot, could a halakhic decisor in our day not raise this possibility on his own? I assume they would crucify him for Reformism (what Tosafot are permitted, we are forbidden). But before they place the noose around my neck, I still cannot escape raising this question.
And if they are already hanging me, I will not refrain from raising yet another consideration. Is it not possible that the rabbinic exposition is based on a certain conception of women that may have been true in their time (and perhaps not even then), whereas today there has been a social change that requires renewed study of the passage? After all, every exposition involves the expositor's own reasoning. When the rabbis expound the verse And the two men shall stand, they could have excluded minors, slaves, converts, or anyone else they wished, but they chose to exclude women. They also chose to construe the term men as though it refers to the witnesses, whereas the plain meaning of the verse obviously concerns the litigants. Is it not possible that the rabbis understood, on the basis of their own reasoning, that it was proper to disqualify women from testimony (and perhaps from judging as well), and therefore chose precisely this exposition? If so, perhaps this was true only of the women of their time, and had they lived today their conclusion would have been different. They would have chosen to exclude minors or other persons, or to exclude nothing at all, because the verse is written in its plain sense and there is no reason to exclude anything or anyone on its basis. See about such considerations in my article here.
"Kiblu Alayhu"
But beyond the halakhic discussion whether women are fit to judge or not, we should remember that in fact, at least in the civil sphere (monetary law), and certainly in criminal matters, we do not really have actual judges today. The courts are devoid of coercive power, and they operate only by virtue of the parties' acceptance. Anyone who comes to such a court is required to sign consent to a compromise, and thus the ruling receives legal (and also halakhic) force. But such a court is not truly a halakhic court, and all the laws of judges do not apply to it. In this case the rule of they accepted them upon themselves applies, meaning that both parties can accept upon themselves disqualified witnesses or judges, and the testimony or the ruling will bind them just like the ruling of a regular halakhic court. In such a case we may accept relatives, disqualified persons, and of course women as well.
My friend Nadav Shnerb, in his illuminating article, pointed out that today's rabbinical courts in fact even insist on not ruling according to Torah law, and matters go so far that someone who nevertheless demands to be judged according to Torah law is treated as a recalcitrant litigant (someone unwilling to litigate before a halakhic court). So if the court itself is unwilling to judge according to Torah law and demands to be seen as a mediating body rather than an adjudicating one, there is no impediment whatsoever to appointing women to sit on it. Within such a framework one may forgo all Torah laws (such as accepting one witness, a woman's testimony, self-incrimination, and other procedures that Jewish law rejects), and in particular the disqualification of women from judging and testifying.
Someone may come and argue that if there are fit judges, it is improper to accept disqualified judges upon ourselves, but this claim carries weight when the judges really do judge according to Torah law. When the fit judges themselves insist on not judging according to Torah law, I see no logic in rejecting the establishment of courts on the basis of they accepted them upon themselves.[3] In practice, one could appoint any woman or man, even without halakhic knowledge. But certainly, if there is a woman who has the relevant halakhic knowledge (although in my aforementioned article in Makor Rishon I noted that I doubt whether there is such a woman), there is no impediment whatsoever to appointing her.
"Kiblu Alayhu" in Personal-Status Law
Admittedly, what we have said until now applies mainly to courts for monetary matters. In the area of personal status the situation is different for two main reasons: first, the rabbinate's courts have coercive power by force of law (and not because of they accepted them upon themselves), and therefore there, ostensibly, the judges should be halakhically fit.[4] Second, in the sphere of personal status (Even HaEzer) it is accepted that there is no possibility of accepting disqualified judges upon ourselves. In the simple sense, the rule of they accepted them upon themselves is based on contract law, that is, on a contractual agreement between the parties to accept the court's ruling. But freedom of contract exists only in the sphere of monetary law. There a person can waive money that is due to him by law, and therefore he can make a contract with his fellow that they will litigate before a disqualified court, and they thereby waive for one another their halakhic entitlements. But in personal-status law the Torah dictates the ruling, not the agreement of the parties. Unlike in monetary matters, in the sphere of personal status a person cannot stipulate against what is written in the Torah.
I will say only briefly that study of the topic of they accepted them upon themselves may open possibilities for applying this rule even to laws that are not ordinary monetary law (for example, fines), and perhaps even to personal status. But such a halakhic argument would require too deep a departure from our discussion here.
It is important to understand that even in the courts that deal with personal status, in most cases the discussion concerns evidence, or monetary law, or other ancillary laws that do not specifically require fit judges. For example, even a court that determines that a certain marriage is void for some reason (a disqualified witness, the intention of the parties, and the like) does not perform a legal act as a court, but rather essentially issues a ruling about what is prohibited and permitted, and for that women are entirely fit (see my aforementioned article). Coercing a divorce is a more delicate matter, since coercion requires the authority of a fit court, and yet in practice today's courts almost never coerce.[5]
It is not entirely clear what will happen if the legislator, which is the source of the coercive power of these courts, decides to grant coercive power only to panels that include women judges and not to the regular courts. In such a case, of necessity, there would be no fit court at all with coercive power, and the question would be whether the courts established by the legislator would also have halakhic validity. I will mention that Jewish law rules that if coercion is carried out by gentiles, but it is halakhically justified on the basis of a fit halakhic court, the coerced divorce is valid. So perhaps when women judges sit by force of law and coerce in situations that are justified according to Jewish law, their acts too will have halakhic validity. This is a complex halakhic question and I will not enter into it here, but it is interesting to think about this possibility in which the secular legislator saves us from Jewish law and from ourselves, and forces us to conduct ourselves in an egalitarian way so that we have no other way out. I will not deny that, from my perspective, such coercion would be welcome.
Two Topical Comments
I cannot refrain from two topical comments by way of conclusion.
- I have already written in several places (for example here) that religious coercion in Israel, and the dark norms according to which the rabbinic system conducts itself, are the fault of the secular public. Almost exclusively theirs. They are the majority, and they are the ones who repeatedly, and with great devotion, make sure that not even a single small ray of light reaches those regions. Which of course does not prevent them from lamenting darkness, coercion, conservatism, ossification, and the like. How convenient it is to cook the porridge for myself and not want to eat it (that is, to blame others). In various places I have also pointed to the reasons for this (and no, this is not only a matter of coalition considerations. That is a common excuse, but not a very persuasive one).
- I mentioned above that the minister who disqualified Leah Shakdiel's candidacy was not Litzman or the Satmar Rebbe. It was Zevulun Hammer. To this very day, the Jewish Home and Tkuma parties operate in the area of religious legislation and religious institutions exactly like the Haredi parties. The only difference is that they try (without success) to have chief rabbis appointed who wear knitted kippot, but are conservative in the fullest sense. To this day things are conducted there this way because Bennett and Shaked apparently understand nothing whatsoever about halakhic and religious matters, and therefore are certain that the norms of the rabbis of Tkuma are Jewish law in its purest form, and that every God-fearing person should work to realize them. This is the price of ignorance that we all pay (Ignoramuses ruled over us, and there is no deliverer from their hand), and this is also the reason why I will not repeat the mistake I made some years ago (in Bennett's first election campaign, when I still had hopes for him), when I decided to join and vote for the Jewish Home. No more.
[1] To her credit it should be said that she does not present this as though "even the Muslims have already progressed and we are stuck." This is the common left-wing fallacy that assumes that Arabs/Muslims are supposed to lag behind us in every area (they are allowed to carry out attacks, discriminate against women, use violence, be disloyal to the state, and more), and they are forgiven for it. Perhaps this stems from the despair over religious Judaism and the religious establishment having already grown so deep that even this assumption no longer really exists?…
[2] See column 66 on the democratic conception that underlies every citizen's right to influence the direction of his society and state.
[3] This is, of course, a weighty issue, and there are those who argue that the identity of the judges matters as well, not only the legal system according to which they judge. I will not enter into this issue here, but the reader can see my discussion of it in my article on the prohibition on resorting to secular courts.
[4] I am ignoring for the moment the question of ordained judges versus laymen and the rule of their agency.
[5] One may wonder whether the secular law that delegates its power to them can also require that women serve there and grant them validity. After all, the coercive power is given to the courts in this sphere by the legislator, and therefore it can make that power conditional on the appointment of women judges. See the next paragraph for a remark about the expectation that secular people save us from ourselves.
Discussion
1. It’s strange that דווקא someone who talks all day about first-order halakhic ruling suddenly hangs everything on Tosafot.
2. I don’t think they would crucify someone who proposed Tosafot’s answer today. And in fact you didn’t write Tosafot’s answer, but only this possibility, and I think not by accident. As far as dealing with the difficulty goes, it’s clear to you that Tosafot’s other approaches are more plausible (and likewise it is clear to many nowadays, who would not be troubled by a verse from the Book of Judges), but you want to raise this possibility for other reasons, and that is exactly why you’d be hanged. If the author of Mishneh Halakhot were to raise such an answer, nobody would get excited, because it would simply stem from some holy anxiety over an explicit verse.
3. It seems to me that since Proccacia’s ruling, in any case there are no longer purely monetary proceedings in the state rabbinical courts, only divorce and inheritance cases, so if “they accepted him/them upon themselves” doesn’t work here, then it is not relevant at all. If you want to open a private court with Dafna and Nachman (by the way, there’s a challenge here: how to set up a panel that isn’t gender-skewed without discriminating against either gender; maybe one needs help from various queers), nobody will stop you. Just have them sign an arbitration agreement.
A fascinating article.
Note that the dilemma arises only for a modern-religious-statist person.
I am ultra-religious (in principle) and ultra-modern (on the edge of postmodernism), and even so I have no problem with appointing a horse as head of the rabbinical courts. I simply do not recognize them as an authority. True, there are great Torah scholars there (I am an ardent admirer of Rabbi Yosef Shalom Elyashiv), but the state’s appointment only adds a blemish. In my view, the coercive power granted to them by law also adds no religious legitimacy.
I heard that Rabbi Yitzhak Zev was angry about Rabbi Elyashiv’s agreement to serve as a judge in Heikhal Shlomo (which the latter justified on grounds of livelihood).
Rabbi Elyashiv’s brilliant decision (without sarcasm) to push Rabbi Metzger for chief rabbi (and head of the rabbinical court) shows his real opinion of state institutions.
How exactly are you ultra-modern on the edge of postmodernism? Maybe you’re also ultra-religious on the edge of postmodernism? And what about ultra-Zionist on the edge of postmodernism—is that also possible in your opinion?
It seems to me that you urgently need to sharpen your concepts.
Hello,
I have several questions, some about the substance of your remarks and some that arise as a consequence of them:
1. Regarding the halakhic argument: you present Tosafot’s first answer as legitimate and say that in exigent circumstances one can rely on it. And I ask: why is such an answer legitimate if you too understand that it is very forced and cannot reasonably be “inserted” into the text? In other words: what is the boundary for accepting forced and implausible answers and bringing them into the halakhic consensus? It seems to me that the answer to this question is: if the answer succeeds in arousing in us a reasonable doubt that the Gemara may indeed bear such a meaning, then it is included among the halakhic considerations; otherwise I think one cannot relate to it at all.
Especially according to what you generally argue—and rightly so—that the main acceptance of halakhic authority is directed toward the Talmud, and therefore any interpretation that is very far from the Talmud sins against the truth and distances us from our acceptance of the Talmud as authority.
Even if you claim that Tosafot’s answer creates some doubt regarding the interpretation of the Talmudic text, it seems to me that you admit it is a remote interpretation, and therefore all the Rishonim moved away from it in practice—as if to say, “How long will you go on distorting Scripture for us?”
I imagine that your answer will be something like this: since I think the conclusion is correct, I may use “halakhic tools” so long as they are legitimate within the halakhic discourse [and an answer of Tosafot is legitimate], and therefore I can employ Tosafot’s answer, even if it seems to me to do violence to the true meaning of the text, so long as it leads me by legitimate halakhic means to the conclusion I think should be reached—and perhaps even Hazal themselves would have reached it had they lived in our generation [and taught at Bar-Ilan University 🙂 ]
This answer [if it is correct, and if I have accurately captured the honorable rabbi’s view] is a derivative of your additional claim that we can and should change halakhah in accordance with our norms, and if so, both draw from the same source, and they are nothing but two kings using one crown. And that leads me to the next claim:
2. If so, it seems that you rely mainly on the second argument, namely that Hazal’s derashah in this matter is nothing but a “creative derashah,” composed of policy considerations suited to reality—meaning, each generation and its own reality, and Hazal created the halakhah on the basis of their norms and values, and therefore the derashah should be upgraded in accordance with our times. This is indeed an important point, since it is clear that many of Hazal’s derashot are creative derashot, and if it is a creative derashah then perforce this leads us to the conclusion that the derashot were created on the basis of norms and values appropriate to their time and capable of change [as in the well-known example from Rabbi Akiva, that earlier generations said that during the days of her menstruation a woman should not put on eye paint, etc.; Rabbi Akiva saw that this led to disaster and changed the elders’ derashah].
But in order to argue this, I think you need to sketch several things:
A. Are we able to do this? Do we have the power to change derashot, or is that ability entrusted only to Hazal or only to the Sanhedrin? In my opinion, there are derashot that are the product of the early creativity of the Sanhedrin, and they usually constitute a “foundation stone” in halakhah—those are hard to change without the “supreme council of halakhic ruling,” i.e. the Sanhedrin. In my opinion, the laws of women’s testimony definitely belong to that category. By contrast, there are “lighter” derashot, products of later tannaitic or amoraic creativity, where there is certainly room to say that even we have the ability to update them—unless we say that “we accepted the Talmud upon ourselves,” in which case we accepted constraints upon ourselves. In other words, I am distinguishing here between a derashah of the Sanhedrin, which is weighty and requires a Sanhedrin to repeal it, and a mere derashah “with the stroke of a keyboard” is not enough, especially since issues of the “rebellious elder” may arise if it is a ruling of the Sanhedrin—an argument that, in my opinion, is missing from your remarks. In contrast, a creative derashah of a tanna or amora is one that in principle we too can change, though we are prevented from doing so by the force of our acceptance of the Talmud, and therefore we must use legitimate halakhic tools; and then the first argument returns. In addition, you did not explain why in the matter of women serving as judges we have the ability to change the law of the Gemara and cast off from ourselves the yoke of “accepting the Talmud.”?
B. According to which values should we make changes? After all, you live in a society where equality between the sexes is very strong, but you ignore the fact that most people for whom halakhah matters do not live that way; they live with a certain distance in day-to-day life. Shall we go according to your values, or according to the values of the majority of those who observe halakhah—or those to whom halakhah matters? [Hand on heart: it is true that most of those who keep pumping out slogans about equality do not really care about halakhah—even sensible and realistic halakhah—and they cut lots of corners, and sometimes from all the “corner-cutting” halakhah has rolled like a wheel far away from its original conceptual source.]
C. There are many other halakhot that deserve updating, and in them it would be much easier to act [that is, there is a far greater chance that you would be right and hit the truth]. For example: the various prohibitions of meat and milk, such as waiting six hours between meat and milk. According to the Talmud it is not at all clear that there is any basis for waiting six hours (Rabbeinu Tam’s view, for example). If we take into account that the source of the prohibition is because idolaters would offer such things to idolatry [as Maimonides wrote in the Guide; I know of no other more sensible rationale apart from kabbalistic or Hasidic pilpulim that are plainly non-rational], today the rationale has certainly lapsed, since no one worships idols anymore, certainly not with veal soup in cream sauce, and there would certainly be room to be lenient regarding all these frightening decrees that bear no relation to reality—see the laws of meat and milk, where there are hundreds of halakhot of decrees such as “contact with steam,” “absorption in a vessel,” “deteriorated taste,” etc. [which themselves usually do not stand up by their own standards—for example the taste absorbed in a vessel, where nowadays there is not even the faintest resemblance of taste after washing a utensil with the product known as “Fairy”]—perhaps there would be room to leave in place only the original rabbinic prohibition against placing meat and milk on one table. Bearing in mind that until now I have spoken only about rabbinic decrees within the prohibition of meat and milk; and in truth, if we already have the power to expound as you suggest, why not expound like Philo of Alexandria, who argues that the prohibition of meat and milk applies only to “a kid in its own mother’s milk,” because of the cruelty of cooking the child in its mother’s milk—but cooking the child in its aunt’s milk would involve no prohibition whatsoever [if we wanted to be stringent, we might forbid it with any family relation and permit cooking only where they are not first-degree relatives—in the next generation they would forbid cooking among “secondary incest prohibitions,” meaning also cousin’s milk and great-grandmother’s milk, and in the end the kashrut agencies would compose a genealogy book for calves, so in the end we would not gain much], for after all there is no idolatry nowadays, so why be so stringent regarding all meat and milk?
And what about some updated derashot regarding the verse “You shall not eat flesh torn in the field” — why do we need hundreds of laws of tereifah when we know today that most of Hazal’s disqualifying injuries are curable nowadays by technological and scientific innovations, and that the animal can survive with them for a full life much longer than the twelve months mentioned by Hazal? Why not expound that the tereifah stated in the verse is only one that was “in the field,” torn by a lion or an evil wolf, where there is concern about contamination or bacteria from carrion, etc.? Believe me, that is more logical than the accepted halakhah and fits the plain meaning of the verse much better.
It is necessary to outline more clearly when to make a change by means of derashah, and how the change is to be made, and with what tools we are to carry it out. These are not things one can pull out of one’s sleeve, especially since it appears that you are really not consistent on this matter, and you are interested in making changes only in matters that are “burning issues” for our enlightened and liberal brethren. What about the millions of Jews who suffer from halakhah—which badly needs updating—at every step of their lives, and it weighs very heavily on their way of life??? I am astonished!
3. Regarding the additional argument you raised (all the rest of what you wrote was just in order to get to this argument): that today a family-court rabbinical court merely clarifies and does not “rule”—I think you are mistaken, and it seems to me that even you do not really rely on that. In family law they rule at every step, beginning with the amount of the ketubbah and the level of support payments, and ending with child custody. This is the area that requires the most ruling. Do not expect a couple going through divorce proceedings to reach compromises; that is simply not what happens in practice. I know the situation very well; if you wish I can elaborate, but I am sure that with a bit of fieldwork tomorrow at the university among family-law jurists (drop in on Prof. Lifshitz or Dr. Chava) you will understand this very quickly.
4. While we’re at it: I have a question that has long bothered me in this context. After all, you too concede, and write, that many derashot are “creative derashot,” and as such they are open to change according to the norms of the generation upon which we wish to apply them. In my humble opinion most derashot are “creative derashot”; it seems to me that you too write this in a number of places [you wrote in the past that at Sinai we received only the “core” of the commandments, and the rest is Hazalic development]. If so, the son asks: why is this called Torah? And why is there a mitzvah to study it? If many halakhot are the product of Hazal’s creativity, and they are subject to the values of a given time, why is this relevant and why is Torah study a mitzvah in our time? Is there not a need for Torah to be connected to “the will of the Creator,” and not merely to values that Hazal found a mattress and pillow on which to settle by means of hints in verses? This question is also relevant regarding commandments that are not values, for example the mitzvah of reciting the Shema. [Assuming that the meaning of “when you lie down and when you rise” refers to the Shema and not to the general repetition of words of Torah—as Tosafot hold that Shema is rabbinic], Hazal established when to fulfill the commandment—even though “when you lie down and when you rise” refers to the actual act, and Hazal translated this into times; and there are other laws as well, such as how to recite and articulate it, in what language, and in what order. All these are creations of Hazal [based on worthy considerations of the form of the mitzvah and formalization, etc.]. What makes this a matter of Torah study? After all, it stands to reason that Hazal in our time would change some of these laws, such as the “time of rising,” and the like?
5. Another question on the substance of the discussion: setting political correctness aside, I hope to receive from you a substantive answer without fear that tomorrow you will be fired on a Tomahawk missile from “the Higher Institute for Torah” to “the Institute for Analytic and Synthetic Research” in your home. Do you think that women and men have equal halakhic decisional capacity? Is there room for the view that women mix a lot of emotion into their halakhic considerations? I have some impressions [intuitions grounded in reality, but to elaborate would take endless space, so briefly]: women are less sharp in legal ruling; I see this in the courts as well, even in Supreme Court decisions. Any good jurist will tell you this—in secret, of course (make a long appointment with Lifshitz and go in without a recording device, and you’ll see what he says). The greatest jurists throughout all history, and throughout the short history of the Supreme Court, were all men. Men innovate much more and go much deeper; their vision is (much) deeper than women’s. Women are generally formalists and do not create precedent. Does that say something about their grasp of reality? Is there something here that proves anything about their capacities compared to men in drawing analogies from one matter to another? Of course I know there are very sharp women, but is that true of the majority? I also know that those who are not especially sharp are still good enough for judging, and usually no mishap comes through their hands. But perhaps Torah law, which is not formalistic like modern law, but is based on the judge’s ability to examine reality in depth, without endless rules, without involving feelings, without involving emotions [there are dozens of studies showing that women in positions of power are less balanced and try “to show us” how strong they are—see female police officers], perhaps for such reasons and others judging is simply not a profession for women? I know it is disgusting to say this, and if people knew my name it would probably be legitimate to execute me stringently according to ISIS’s method, but why am I not right?
5. Now, if I may ask a personal question [of course you noticed I didn’t wait for permission; I simply assume that you like personal questions, and I leave it to you whether to answer or not]. If I understand correctly, this form of Torah study that you propose is a Conservative approach. It seems to me that I even heard you say so in one of your lectures at the university, that in your opinion “there is no essential difference between the Conservative approach and the Orthodox approach.” If so, why do you insist on remaining within the Orthodox camp? Is the goal to influence from within (legitimate in my eyes)? A by-product of that accursed psychology that makes it hard to detach from one’s place of upbringing? It seems to me that recently some of the foundational assumptions to which you adhered in the past have changed (completely legitimate), perhaps because of the book you are writing, perhaps because of your engagement with biblical criticism that is leaving its mark on you. Are you changing direction unconsciously? Or do you know it and simply lack the emotional strength to make the change openly? Forgive me for this question, but I would not raise it had you not written explicitly in one of your recent posts (I do not now remember where), “that you are not afraid that biblical criticism will lead you to far-reaching conclusions.” To sum up this question: has there been a fundamental change in your views “regarding the core of Judaism and Torah” as you presented them all these years, and is that what is causing the significant recent change in your halakhic positions—what is called in academia “the philosophy behind halakhah”?
With love, appreciation, listening, and learning,
The least of the students
Hello Yishai.
1. If you are not familiar with how halakhah operates (which I rather doubt), let me do you a favor on that score. A halakhic responsum can raise several arguments, even merely as supporting branches. I bring Tosafot in order to show that there is such a precedent, even though from my perspective first-order reasoning would have sufficed. After all, I added the possibility of saying this on our own. If you search the site a bit, you will discover that even in the halakhic responsa (usually laconic) that I write when needed, my remarks include sources from the Rishonim and Aharonim. I do not derive everything from the Torah itself or from laws I received directly from Sinai. As a rule, when a decisor says something novel, even if he does so on first-order grounds, he generally brings citations from Rishonim who said something similar, even if their reasons are different and even forced. Had you bothered to think a little before writing, I assume you would have understood this simple point on your own.
2. And I think they would. Precisely because of how forced it is (as I noted in my remarks), it becomes all the clearer that Tosafot could raise it but today they could not. You can of course write whatever you want in the Torah journal of the yeshivah where you study (Meisharim), but a decisor who wrote such a thing on the practical plane would be hanged from a high tree. Decisors rely on answers of Tosafot, or of other Rishonim and Aharonim, that are no less forced, as subsidiary grounds for leniency or even as normative rulings ab initio. So the condemnation of such a ruling does not stem from how forced it is but from the agenda. But what can be done? Choosing a halakhic option is also done on the basis of agenda considerations.
3. It does not really matter for the essence of the principled discussion. And factually too I am not sure you are right, but that would require investigation.
Meni.
Many thanks. There are so many contradictions, ambiguities, and misunderstandings in a few of your sentences that the paper would run out before they did. Beyond that, as an enthusiastic admirer of Rabbi Elyashiv, I only wanted to inform you gently that sadly he has already passed away.
To my dear least of the students, greetings.
Unfortunately, it is hard for me to read comments of such length, and certainly to respond to them.
1. See what I wrote to Yishai in the first response.
2. Among the other arguments there are some that are not even of the matter at hand. In addition, there are various speculations there about my hidden intentions, and those too have no substance. In general, when I want to write a book, or even to clarify the halakhah in all its aspects, I will not do it here.
3. Here there is a misunderstanding of my remarks. I am not expecting the couple to reach understandings. The “kiblu alayhu” would be done by the public, as with the gentile courts in Syria.
4. Too long to detail here. In general, the Talmud has halakhic authority (even if it is not correct). Even a creative derash binds us just like what was given at Sinai, as though it were done in the Sanhedrin. The sphere of discretion is exercised within a halakhic framework.
5. I wrote my opinion about the current state of women in an article in Makor Rishon. On the question whether this is essentialist (that is, something that cannot change), I have no answer, and neither do you nor anyone else. But all this is irrelevant, since I am discussing the principled plane, and surely you will not deny that there could be a woman fit to judge. The question about most women is irrelevant. Most men do not know how to issue halakhic rulings or think, either.
5. (Numbering as in the original.) I already explained in the article—which as my least of the students you surely read—that there is certainly no real difference between Conservative and Orthodox. Sociology does not really interest me.
1. It was not presented as a subsidiary factor when first-order ruling suffices. The Talmudic discussion ended with the conclusion that it is impossible—that is, this is the conclusion of the first-order discussion. Then a second-order discussion began, whose conclusion is that one may rely on a forced minority view. Only afterward, within the framework of heretical musings and the matter under discussion for hanging, was a first-order argument raised (and even that only as a possibility, not out of conviction that this was indeed the reason for the exclusion of women). Finally another first-order argument was raised, “they accepted him/them upon themselves,” but it is not clear whether it stands (that goes beyond the scope of the discussion).
In short, no good first-order arguments were presented (it was not even said that you are convinced by such arguments, only that perhaps there are such arguments and that this is not the place to elaborate), so it is not my fault that I understood the main argument to be second-order.
2. Even Tosafot did not write this as normative halakhah, and certainly not for practice. Their discussion is interpretive. I am sure that if someone proposed such an answer today in a shiur, and even wrote it in his book (let us assume it has a wider circulation than Meisharim), it would not move anyone. Even if someone, in another halakhic discussion, found himself discussing this because he reached the conclusion that some other question depended on it, and he relied on an argument like Tosafot’s, I do not think it would move anyone. What causes the problem is the practical change, especially a practical change whose source is external rather than internal. What is true is that today there is more suspicion of someone who wants to make a change, lest he be coming from an external motive. But that is a justified suspicion, and you yourself prove it, for you did not come to change things from an internal motive. You of course disagree with this whole story, and in fact support the Conservative approach, Heaven forfend.
Hello Yishai. It seems to me that the sides have been understood (or not understood); I will only clarify one important point, since from your words it emerges that this was not clear from mine.
This post was not intended to propose my conclusion on the subject, but rather reflections (general lines for discussion, as I described at the end of the opening paragraph). In essence, the main point is to bring to the surface the very motivation—that the desire for there to be female judges can exist even for someone committed to halakhah, and not only for Zehava Galon. From that point on, when it comes to the practical ruling, I raised only possible arguments and broad outlines for discussion.
Nowhere did I write that this is my conclusion, and indeed at present it is not my practical conclusion (I mean regarding the rabbinical courts of the rabbinate, which in any case ought to be shut down. Regarding private monetary courts, there is no problem from the outset, as I wrote).
Glad I gave you the opportunity to vent a bit of enjoyable mockery..
Do you not agree that extreme modernity may lead to postmodernism?!
Only after modernity accustoms you to ask and cast doubt does postmodernism turn doubt into something inherent.
And how is the fact that Rabbi Elyashiv died relevant? If in Rabbi Elyashiv’s day Rabbi Yitzhak Zev (and little me) did not accept the state’s rabbinical judges, then all the more so now that he is not there..
Hello Meni.
Indeed, I do not agree that extreme modernity may lead to postmodernism, if only because I do not know what “extreme modernity” is. I do think that modernity is not necessarily connected to a willingness to ask questions, but rather—if at all—to the type of answers given to those questions (and even that not necessarily). And it appears that this is why father David sent you to clarify the concepts for yourself.
As for your comment about Rabbi Elyashiv: you claim that there are outstanding Torah scholars in the rabbinate whom you greatly admire, and you bring Rabbi Elyashiv as an example. What I meant to tell you is that this seems a rather odd example. To bring one exceptional example, of someone who has already passed away and served there a very long time ago, for such a general statement is rather funny.
I must say regarding the livelihood excuse that you really made me laugh. Next time I worship idols, I too will explain that it was for livelihood. I hope you will continue to esteem me afterward, although you will certainly allow me to say that I am not sure of that.
As for accepting the authority of the state, the matter is comparable to not accepting the authority of the Exilarch. This is the secular authority today, and by the law of the Gemara and by simple logic, a judge cannot serve without authorization from the secular authority. By the same token, you can also decline to recognize the law of gravity or the law of non-contradiction. And I write this as someone who likes and esteems the system much less than you do, and who hopes every day for its closure (and even tries to contribute to that, to the extent of his meager ability). Ideology and worldview, as correct and good as they may be, cannot change facts.
Maybe you should consider voting this time for the new Zehut party?
Someone here already suggested that in the past. I actually identify quite a lot with most of their platform and with Feiglin, but the people involved are not my cup of tea (not in terms of character but in terms of conduct and implementation). Maybe…
Why only play it down?
I can already see it: MK Rabbi Dr. Michi Abraham
??? We were talking about voting, not about being elected.
To enter the Knesset of the heretics with my own two feet? That is a case of “be killed rather than transgress” (as our master, the author of Pe’at Sadkha, rules explicitly).
But it would be really funny!
And since in any case you are already planning your hanging in the town square, you can both be killed and transgress, and fulfill “grasp this as well as that; do not let your hand rest from either.”
With God’s help, 32 of the Omer, for the sake of the soul of my father and teacher, my grandfather, my teacher, peace be upon him
It is worth mentioning, with reference to Rabbi M. D. A.’s discussion of “Torah articles written by women,” that he pointed to the present reality that, as of now, even the most outstanding women learners do not cross the threshold of a “good avrekh,” all the more so they do not approach the level of “fitness for judgeship,” which even outstanding Torah scholars do not always attain, and even those go through a grueling training track of 15–20 years of study. It is hard to see a woman heading in that direction.
On the other hand, women today do have central roles in the rulings of the rabbinical courts. A large share of the decisions do not depend at all on complicated halakhic questions, but rather on questions of “the child’s best interest,” where there is great weight to the opinions of professionals—psychologists and social workers—professions in which women are significantly represented, and the rabbinical courts take their professional opinions into account regardless of their “gender.”
And in general, both the rabbinical courts and the family courts prefer that disputes be settled by mutual agreement between the spouses. Today there are “assistance bureaus” next to the rabbinical courts, in which professionals try to mediate between the spouses and to reach—or at least come close to—mutual agreement, for the good of both the parents and the children.
Precisely the natural trait of women, insofar as radical feminism has not destroyed it—the ability to deal with problems while emphasizing the practical-social side and not “let the law pierce the mountain” (as the scholar Prof. Carol Gilligan pointed out)—this trait is very suitable for the role of mediation, and it is in this direction that every “wise-hearted woman” ought to be directed: to compromise and mediate, to establish peace and understanding between the litigants.
With blessings, S. Z. Levinger
A question.
How should one relate to the laws in the Sifrei— as Oral Torah or as Hazalic interpretation?
Until today I understood them as Oral Torah.
And even if we say this is Hazalic interpretation, does that not obligate in every situation—mandatorily? Can one discuss the reasons for their words and repeal them if they are not relevant? If so, how is this determined? After all, roughly all the details of the Torah are found there, so in this way one could repeal the whole Torah. Where is the boundary?
I did not understand the question. Hazalic interpretation is the Oral Torah. As for changing interpretation and the Oral Torah, see Maimonides, beginning of ch. 2 of Hilchot Mamrim, that there is no principled problem changing things by a court. Today we do not have a court, and therefore all that remains for us is only our interpretation of the earlier laws. On changing halakhot nowadays without a court, see Neria Gutel’s book, Hishtannut ha-Teva’im, final chapter.
As to your question where the boundary lies, I answer that there is no boundary. Everything depends on the specific matter. I do not set boundaries in advance, just as Maimonides there did not set any. A court can even determine that there are only three primary categories of labor on Shabbat, and that is what would bind.
What a strange argument—to rely on an answer in Tosafot that the writer himself admits is forced, against an explicit halakhah ruled in the Shulchan Arukh?
After the ruling, you can’t suddenly rely on something else.
A ruling is a ruling, and when they ruled like Beit Hillel regarding the rival wife of one’s daughter and the child is a mamzer, you can’t come and wave Beit Shammai around and say he isn’t a mamzer; and when it was ruled that a person is a Sabbath desecrator, then he is executed, even if there is an earlier opinion otherwise, because that is not how it was ruled.
First, this is a “strange” argument that decisors use all the time (“Rabbi Shimon is worthy to be relied upon in a pressing circumstance”), and that is the way of decisors in all generations: to rely on a minority opinion in a case of need and when reason points that way.
Second, you assume that a ruling in the Shulchan Arukh is like a ruling of the Sanhedrin in the Chamber of Hewn Stone, about which it says, “You shall not deviate.” And from where do you get that? Do you have a verse that grants absolute authority to the Shulchan Arukh? In my Torah I found no such verse. What I know is that after the Talmud no decisor in the world has authority, no matter how great he may be (see, for example, Rosh on Sanhedrin ch. 4, sec. 10). It is no wonder that the Shulchan Arukh was disputed quite a bit, including by its own commentators.
And by way of a side remark, I do not know how many executions of Sabbath desecrators you have seen in your lifetime, but the decisiveness with which you rule this is very impressive. For my part, I am really not sure that even if we had ordained courts today, they would execute someone who conducts himself in accordance with a halakhic view not found in the Shulchan Arukh. To tell the truth, I am quite convinced that they would not do so. At the very least I would like to think so for the sake of the survival of the Yemenite community, for example. Wouldn’t it be a shame to lose it?
The “kiblu alayhu” (“they accepted him/them upon themselves”) that you described operates today within the framework of shuda de-dayyanei,
there are those who would say: the judges’ plunder..;(
and in any case it is clear that there is absolutely no obstacle to appointing a boy/girl to the position of judge so long as the litigants accept them,
and it is quite likely that when knowledgeable and skilled female judges are appointed, this will add to the public acceptance of the rabbinical court and strengthen the “kiblu alayhu,”
for the glory of the State of Halakhah!