So specifically because it is Torah-level and not rabbinic, it can be changed without a court, whereas if it were rabbinic (an enactment/decree/etc.) it could not be changed unless the Sanhedrin were restored.
That’s really paradoxical, because after all, in Torah-level matters we are stringent, and in rabbinic matters lenient.

The stringency of Torah-level law applies only in cases of doubt. I referred you to Maimonides at the beginning of chapter 2 of the laws of Rebels, where this is explicit. But even if this were a rabbinic law, there are situations in which it can be changed when the rationale no longer applies (see the last chapter of Neria Gutel’s book Changes in Nature for dozens of examples and several mechanisms for this).

Recently the OU put out a document opposing the ordination of women to the rabbinate, because of the growing phenomenon within Orthodoxy in the U.S.
I’ll spare you reading all 14 pages and lay out the 3 main points:
(1) Maimonides’ view is not the only one among the medieval authorities, and there are those who disagreed with him. Also, the definition of “authority” needs clarification, and it is not clear that every rabbinic role would be included in that definition. (2) The fact that there is no precedent does not mean it is forbidden, because there is also no opposite precedent. In other words: if the question of women functioning in a rabbinic role had come up over the generations and been completely rejected by the halakhic decisors, one could speak about precedent. But since it never came up, it is doubtful whether there is really sufficient precedent here. (3) The spiritual division of roles between the sexes is not an absolute Torah decree — the authors of the document themselves admit this, and as an example they mention that women’s Torah study is a change from previous generations; however, they distinguish between changes in the personal realm and changes in the public realm — a distinction that itself has no clear support.

1. What do you think?

2. Do you think there is really a need for women to serve as halakhic decisors and judges like men?

3. I understood that regarding women’s testimony, you do think this could be “updated” only after the establishment of a Sanhedrin. Is that correct?

And with regards and esteem,

Greetings.
I don’t think this is a question of need but of rights. There is no reason today to prevent them from serving in such roles, not necessarily because we need them. As for women serving as judges and giving testimony, there is a prohibition stated in the Talmud itself, and therefore if this is not a matter of “they accepted them upon themselves,” it would be preferable for there to be a Sanhedrin in order to change it. But even without a Sanhedrin there may perhaps be some basis for it. And when it is a matter of “they accepted them upon themselves,” then of course everything is possible without a problem. As for women serving as halakhic decisors, there is no problem at all. Issuing a halakhic ruling is not an office. Anyone who knows enough can rule. We have never found any disqualification barring someone from ruling on Jewish law. Since when is a halakhic decisor a role that is subject to bodily-status disqualifications?

What is the distinction between a woman halakhic decisor, where there is no problem, and a woman judge, where a Sanhedrin is needed? (In any case, ordination has ceased.)
Are you sure that the disqualification of women’s testimony is rabbinic and not Torah-level?
Also, they say women cannot discharge men’s obligation in commandments, and therefore prevent their participation. Is it possible to obligate women in positive time-bound commandments without a Sanhedrin, and then they could discharge men’s obligation?

I didn’t understand the question. The distinction between a woman halakhic decisor and a woman judge is that with halakhic decisors there is no bodily-status disqualification at all. We have found no requirement in Jewish law regarding who may issue halakhic rulings and who is disqualified from doing so. In the laws of judges you can see that there are bodily-status disqualifications for judging and for testimony. What is unclear here?
Where did I say that the disqualification of women is rabbinic? On the contrary, from the passage in tractate Shevuot it appears to be Torah-level (learned from the verse: “And the two men shall stand”).
I do not see any way to obligate women in positive time-bound commandments. Unless a reason is brought explaining why in the past they were exempt and now that reason no longer applies. I do not understand why they were exempt in the past, and therefore I see no consideration in favor of changing this.

As for my first question, everything is clear, thank you.
You wrote: “As for women serving as judges and giving testimony, there is a prohibition stated in the Talmud itself,”
So are you distinguishing between the meaning of the term rabbinic and “stated in the Talmud”?

“A prohibition stated in the Talmud” is a prohibition that appears in the Talmud; it can be either Torah-level or rabbinic. The point is that one who disagrees with it is disagreeing with the Talmud.

Can you sharpen the concepts of “they accepted them upon themselves” and “law stated in the Talmud”?
Why, in the case of “they accepted them upon themselves,” is everything possible? Would that mean that even the prohibition of seven clean days, which is also something “they accepted upon themselves,” could be abolished? And how?
As for “law stated in the Talmud,” every law is in the category of “law stated in the Talmud,” since it was ruled in the Talmud. If so, every law would require a Sanhedrin in order to change it, and that empties the beginning of Maimonides’ laws of Rebels of content. That would also include the prohibition mentioned above against appointing women to positions of authority, since that too was ruled in the Talmud and would therefore require a Sanhedrin to change.

Hello Oren.
In the laws of judges and witnesses there appears the concept of “they accepted them upon themselves,” meaning that one may accept upon oneself witnesses or judges who are otherwise invalid (for example, to be judged before three cattle-herders, or “my father and your father,” who are invalid for judging and testimony. See Mishnah Sanhedrin 24a and the halakhic authorities). Therefore, when someone is invalid to judge or testify, the parties can accept him upon themselves and be judged before him. In my opinion (although on this point there are authorities who disagree), a community too can accept invalid persons upon itself as permanent judges (as with the courts in Syria).
This has nothing to do with other things that the people accepted upon themselves, such as Rabbi Zeira’s stringency or seven clean days.

The authority of the Talmud comes from the public’s acceptance. Therefore the public can also revoke it. If a Sanhedrin were established and decided that the Talmud has no authority, then it would have none. In essence the Talmud is like a Sanhedrin, and therefore a later Sanhedrin can nullify it. Rabbi Kook writes in For the Perplexed of the Generation that a Sanhedrin can also change the law that a matter established by a formal count requires another count to permit it, or the requirement that the later court be greater in wisdom and number.
But to your question, this does not empty it of content. Maimonides brings the principled law. The fact that we accepted upon ourselves the authority of the Talmud is also valid.

Indeed, any law that appears in the Talmud should be changed only after a great deal of thought. But in Jewish law there are very few, if any, mandatory rules — that is, rules that obligate in a sweeping and non-circumventable way. In certain cases of need we do in fact deviate from Talmudic rulings (one should remember that its status is by our power, so the same mouth that prohibited is the mouth that permitted). It depends on the nature of the law and the circumstances that require the change. I referred to the last chapter of Gutel’s book Changes in Nature, where you can see quite a few examples of this. In my trilogy I will expand on this (once those annoying missionaries finally let me get to it and finish it).

Rabbi, can you explain again the logic behind the first response? If the sages interpreted a verse because of a certain rationale, and the rationale changed, can one interpret it differently without a Sanhedrin?
At first glance that sounds strange and doesn’t fit with principles like “when the rationale lapses, the decree does not lapse,” and also (though I’m not expert in the passages about this, and maybe interpretation and decree are different laws) — are there sources for such mechanisms?

Maimonides at the beginning of chapter 2 of the laws of Rebels distinguishes between Torah-level laws, whose alteration requires a religious court, and rabbinic laws, which require a court greater in wisdom and number. Interpretive derivations plainly belong to Torah-level law (even according to Maimonides’ second root, for this purpose it is clear that their status is Torah-level, because we are dealing with interpretation and not legislation).
A Talmudic law has the status of the Great Court, and therefore in principle one should not change it, even when the rationale has lapsed, without those conditions. But all the rules of Jewish law are not mandatory; rather, the sages of each generation can examine whether there is harm or special need and nevertheless change things, against the rules. Usually explanations are found after the fact, and various mechanisms are defined, but those are after-the-fact explanations. I referred here to the last chapter of Neria Gutel’s book Changes in Nature, where you will find quite a few examples of changing rabbinic laws when the rationale has lapsed (even though changing rabbinic laws is harder than changing Torah-level laws).
There are no clear sources for this, because we are speaking of deviation from the rules. The “rules of deviation” (= an oxymoron) are created by the sages of each generation, and only afterward do commentators turn them into new rules. I expand on this in my trilogy.

My difficulty with this specific mechanism of permission (the rationale for the sages’ interpretation has lapsed + it causes harm) is that in theory it allows permitting the entire Torah for anyone, taken to an extreme.

Tomorrow someone could come and say that the sages interpreted “You shall not kindle fire in any of your dwellings” as a prohibition on every kind of fire because every kind of kindling they knew required a lot of work to ignite. But today that rationale has lapsed, and there is a kind of fire that is easy to turn on, which the sages did not know, and this prohibition causes harm because to secular people it just looks anachronistic — so electricity would be permitted. (You can refute this particular example with the prohibition of creating a new entity and the like, but I am asking only about the principle.)
Of course the problem is that this principle can be stretched to many more laws. Maybe I’m just conservative, but it seems to me like a dangerous opening for permitting many more prohibitions. (Though if it is true, then that is the reality.)

Furthermore, if so, there isn’t all that much basis for criticizing the Conservatives; they too are just adapting the Torah to their time with enactments. Of course that by itself is irrelevant, because if they are right then they are right… but the principle sounds strange to me.

As long as I required a Sanhedrin, I left the power only in the hands of the Great Court, but this specific mechanism seemingly allows anyone to do it.

So where is the boundary?

(I’m asking in order to learn, of course, not to provoke or anything like that.)

As you wrote, one must distinguish between dangers and slippery slopes on the one hand, and truth on the other. After all, the same claim can be made against the Pharisees, who changed the Torah through their interpretations and took it very far. The slippery-slope question needs treatment, but it is a second-order question. Beyond that, even when a Sanhedrin does this, the same danger exists (and indeed it did happen when there was a Sanhedrin). So why should conservatism be required דווקא when there is no Sanhedrin? When there is one, are we not concerned about slippery slopes? If not, then we should not be concerned in our case either. The sense is that people use the requirement for a Sanhedrin as a technical brake against change, that is, as a conservative mechanism. But that is not the real meaning of the requirement for a Sanhedrin. In the end, there is permission to change and there is an obligation to be careful, and the two do not contradict each other.
As for the Conservatives, indeed they are right about many things. The dispute is mainly a question of dosage (and even there, the truth is on their side in many cases). There is no definable difference between Conservatives and Orthodox (but there is with Reform). It is only a matter of degree.

I think the barrier of a Sanhedrin allows changes to be carried out in an orderly way through representation of the people, by broad agreement (following the majority), and specifically by the sages of that generation, and it seems to me that this is significant. By contrast, it’s like the logic that most central laws are determined by the Knesset, while local matters are within the authority of each agency in its own area.

In any case, if I understand correctly, your reasoning is that a Sanhedrin is not required for a mechanism of this kind (say, lapsed rationale + harm), and anyone can rule this way for his community?

This discussion is empty of content. If consensus is required, then my opinion makes no difference. And if it is not required, then in any case it is not required. Obviously, when there is no recognized institution, anyone can make decisions for himself; the only question is whether he himself should decide to do so without consensus. There have been hundreds of examples like this throughout the generations; sometimes it started with a halakhic decisor, and usually it started from below (like selling an animal to a gentile in Tosafot on Avodah Zarah 15, and lending with interest to a gentile in Tosafot at the beginning of “Which is usury,” and many more).
Such a decision depends on many questions that the decision-maker must take into account: Is the harm only to his community or is it general? Will his decision affect the broader public or only his community? Is the harm great or small? Is this a broad public issue? How substantial is the change? Is there disagreement about the need for change and/or about the law being changed or not? And so on.

And one more note. Consensus, if needed, can also be achieved today. The requirement for a Sanhedrin is a formal halakhic requirement (for example, ordained judges are required), and therefore one should not confuse it with the requirement that there be consensus.
I remember an article in Tzohar in which the author proposes creating a supreme halakhic institution in our day without renewing ordination. His claim is that such an institution could do many things that are considered to be entrusted only to the Sanhedrin. Unfortunately I do not remember the title of the article or the author.

Following up on the question about the term “law stated in the Talmud,” at the start of the thread you wrote:
“The prohibition on women is not a rabbinic enactment but a Torah-level law, and the rationale for the law itself no longer exists today. One must remember that this law is not written explicitly in the Torah; the sages established it as an interpretation of the Torah’s words, apparently in light of their understanding, the reality of their time, and their reasoning. Therefore this is not really a change in Torah law, since today it is clear (to me) that this is not the Torah’s will, and there is no clear source for it in the Torah. Reality has changed today, so in my opinion it can be changed without any need for a Sanhedrin.”

But later you wrote that the Talmud’s very interpretation of the Torah’s words falls under the category of “law stated in the Talmud,” which requires a Sanhedrin to change. So in the end what difference does it make whether the law is Torah-level or rabbinic? Either way it falls under “law stated in the Talmud” and therefore requires a Sanhedrin.

Hello Oren. The quote at the beginning of my remarks dealt with entrusting positions of authority to women, not with their disqualification from testimony and judging. Regarding disqualification from testimony and judging, I wrote explicitly later that I do not know the rationale clearly (though I suspect it is connected to their status then), and therefore it is hard to change.

In principle, every law established in the Talmud is like a law accepted in the Sanhedrin, and therefore a Sanhedrin is required to change it. A rabbinic law requires a Sanhedrin greater in wisdom and number, and a Torah-level law requires any Sanhedrin. But the rules of Jewish law are flexible, and where there is need or harm there is room for change and for a different interpretation with the agreement of the sages of the generation. And certainly when the law is the result of an interpretation later than the Talmud, or when it is disputed in the Talmud, then it can be changed more easily.

Yes, I meant the prohibition on assigning positions of authority to women. On the one hand you argued that it is a Torah-level law and therefore if its rationale has lapsed it can be changed more easily, but on the other hand this law appears in the Talmud, and therefore it is in the category of “law stated in the Talmud” and therefore requires a Sanhedrin to change it. That is the contradiction that is difficult for me here.

This is an example of a change that has already taken place “from below” due to changed circumstances (like women’s Torah study). The scope of the prohibition on assigning authority to women does not appear in the Talmud. See at the beginning of the article here: http://www.daat.ac.il/daat/mishpach/maamad/nashim-2.htm

Could you give a bit more detail on the difference in the sources of Jewish law between appointing a queen and women’s testimony and judging?

The difference is first of all in the very focus. If there is a general law not to appoint women to positions of authority, why are specific laws needed regarding testimony and judging? That can indicate that in those areas there is something more than just the social issue. Beyond that, the disqualification of women from testimony and judging is discussed extensively in the halakhic authorities and in the Talmud, and therefore it became a solid halakhic foundation. Appointing women to positions of authority hardly appears anywhere. It was not perceived by the halakhic authorities as a clear halakhic prohibition, and therefore it is probably social. Add to this the fact that positions of authority do not require any basic fitness at all. We have not found in Jewish law disqualifications for positions of authority, or any law at all in the laws of authority. By contrast, in testimony and judging there are other disqualifications, both bodily-status disqualifications (such as relatives) and those suspected of lying. Therefore it is reasonable that with positions of authority we are dealing with a social limitation and not a real law, unlike testimony and judging.

Thank you for your words!

Michi, hello. You wrote: “I do not see any way to obligate women in positive time-bound commandments. Unless a reason is brought explaining why in the past they were exempt and now that reason no longer applies. I do not understand why they were exempt in the past, and therefore I see no consideration in favor of changing this.”
In case you don’t know it, let me refer you to an article by Professor Shmuel Safrai giving a reason for women’s exemption from positive time-bound commandments in the view of the sages, as opposed to their Torah-level obligation (in his view). Note carefully that the commandment regarding the Sabbath day is phrased: “Remember the Sabbath day… you shall not do any work, you, your son, and your daughter, etc.” Why does it not say “your wife”?! Is she exempt from the Sabbath??? Rather, the plain meaning of the verse “remember,” even though written in the masculine, is directed to the female as well. And this is Shadal’s argument on Exodus chapter 19: “You shall not do any work, you: this certainly includes man and woman, for regarding minors it mentioned your son and your daughter, and regarding slaves your male servant and your female servant; if so, the woman is equal to the man, and she is under her own authority like her husband, for if the woman were subjugated to her husband like a maidservant, it would have had to warn the man about her rest, just as it warned about the rest of his children and servants, because they are not under their own authority. And so in all the commandments of the Torah Scripture speaks in the masculine, but the woman is included too; and our sages exempted her from positive time-bound commandments. It seems that in their days the status of women changed and the men made their burden heavier upon them.”

http://lib.cet.ac.il/Pages/item.asp?item=17131

To add to the discussion, here is a call to change the status of women from within Jewish law itself, as presented by Rabbi Professor Eliezer Berkovits (quotations in quotation marks, with the main novelty at the end):

The Encounter — Gender Implications
Berkovits’s thought places the principle of encounter (between God in revelation and the human being as he is) as the highest foundational principle, and thereby sets an entirely different bar for morality and gender equality. Here Berkovits does indeed concede the above feminist critique regarding the lowering of women’s status in religion, but not for its reasons. Consistent with his approach, Berkovits wrote a work aspiring to respond to the feminist critique, calling for changes from the existing patriarchal practice. The principle of encounter also gives rise to a fitting conception of Jewish law. Indeed, like Maimonides, Berkovits holds that the Torah is a pedagogic creation, embodying a vision still awaiting realization. His approach to Jewish law is teleological — as developing toward a more complete purpose: “Judaism is a process through history… until all of history is redeemed from impersonal servitude” (redemption from the impersonal is identical with encounter — G.S.). But from the principle of encounter itself it follows that God must take man into account as he is. And this includes his cultural environment as well, while presenting a moral standard that is realizable within the horizon of his free choice. Therefore one must distinguish between ideals that are authentic to the Torah — Torah true — and those tolerated by it — Torah tolerated. The latter are stages that have not yet reached the realization of their full morality; at the time the Torah was given, it tolerated them temporarily for pragmatic reasons, not out of identification with them. God took the moral level of human beings into account and adapted the moral law to their level.

Such is the non-personal stage of woman, which monotheism certainly did not create, but which already existed before it and throughout the cultural sphere. Clearly monotheism did not cause women’s low status; the opposite is true: monotheism introduced the principle of encounter of every “I” with the “Thou,” and this includes striving for a genuine and equal encounter between all the sexes. But because of the very principle of encounter, God had to meet humanity as it is, without coercing it into impossible paradigms. Yet the “pure” principles of the Torah already encouraged, from ancient times — and even within the Bible itself, though subtly — development toward the second stage:

“The second stage, which we call the personal status of woman. In this stage we learn from the demands of the Torah’s ideals. This even led to halakhic innovations, going beyond concern for women’s rights and welfare.”

But Berkovits is well aware of the gap between the Torah ideal of encounter and the exclusion of women in life: “The truth is that we are still very far from equality of duties and rights between husband and wife, between man and woman, in matters of marriage and family life”… In fact, the Torah’s developmental system has, as it were, entered an illegitimate freeze. The two value-systems have existed side by side for hundreds of years, and in a certain sense this is still so today, without fully realizing what the Torah teaches, which has not been brought into corresponding implementation in people’s day-to-day lives. True, Jewish law has taken a step forward through enactments for the improvement of women’s status in married life, but not enough has been done. Too many gaps still remain in Jewish law, especially in the social status of women:

“While in the halakhic realm, that is, the legal realm, we find development and a tendency to equalize the rights of the woman with the rights of the husband, in the social realm the situation is completely different.”

Therefore the discriminatory attitude toward women that appears in Jewish sources should be seen as existing despite and in spite of the Torah, not because of it, as the critique claimed:

“In the sphere of social status almost nothing was done. There is no doubt that behind this state of affairs stands a systematic view regarding the nature of woman. These things find expression in sayings of the sages such as: women are light-minded, women are not fit to teach and one should not rely on their words, daughters do not have settled minds, a woman prefers one measure and promiscuity over nine measures and abstinence. On what basis did our sages formulate such an approach? It seems to me that apologetics will not help us. We have reached a point at which we are obligated to admit the truth: this outlook is not founded on the Torah… It seems to me that the negative statements about the character of women are grounded in a social reality different from ours. What is today so much to a woman’s honor was not perceived by them that way… In my opinion, to say today that a woman is not believed but men are — that is simply untrue. It is a desecration of God’s name, a desecration of the Torah.”

From this it is clear, then, that one must emerge from within Jewish law itself, and by means of its own rules of the game strive to improve women’s status until equality. The halakhic decisor is not a helpless subject standing before the halakhic canon. Quite the opposite: by virtue of the encounter between God and man (as begun at Sinai), an encounter that presupposes partnership and mutual covenant, the decisor bears moral responsibility for actively shaping Jewish law. Therefore, as a moral being, he cannot evade his moral responsibility, which reflects the condition for partnership with God. This principle lies at the heart of Berkovits’s spiritual-halakhic world. And thus he concludes:

“There is no doubt that under current conditions our forefathers left room for us to distinguish ourselves in, to continue in the path of the sages on this issue until equality of duties and rights is realized. Within the framework of authentic Jewish law, everything is prepared for achieving this goal.”

Greetings.
I read it quickly and superficially, and it is a collection of baseless speculations. He raises various hypotheses, and I do not see in them any substantive argument.
The simplest explanation is that women’s exemption was an ancient tradition (from Sinai?), and the interpretive derivations only grounded it after the fact. Abudarham already explains similarly to him, but that explanation seems very strained to me. Fine — to exempt women from commandments that require a specific time during the day. But why exempt them from commandments that apply at a certain time of year? There is no reasonable explanation for that in his words.