Thank you.

It really isn’t well grounded, and indeed the sources for it are Abudarham, Rabbi Moshe Feinstein, and according to Peninei Halakha also the Chafetz Chaim—that is, relatively late sources and apparently based on reasoning.

If I am a first-order decisor, do you think I could prove that today the situation is different and therefore it would be possible to obligate women, or is there still something else missing?

The question is of course to understand a bit better the whole idea of first-order halakhic ruling.

Most decisors (of the second order) would treat your ruling as Reform, and it would not enter the consensus of all the sages of the second order. There is no such thing as Reform in the second order. So it’s a shame for you to try; this isn’t a game, it’s simply a mistake to rule this way.

You mean a first-order decisor. As I wrote, in principle this is a first-order consideration, but not every such consideration is correct. The first order allows such considerations; it does not force them. The argument has to hold water, and I very much doubt that this was the rationale for exempting women.
The fact that the rationale is based on reasoning does not disqualify it. I just think the reasoning is not really convincing.

Maimonides, for example, holds that this is a descriptive rule and not a constitutive rule, mainly because he has quite a few exceptions. So it is not even a correct rule in all cases, but simply a convenient representation of a large collection of cases. If so, reasoning does not belong there at all, and automatically neither does your reasoning.

I do not remember such a statement from Maimonides, and it does not seem likely to me that there is one. I would appreciate a source.

Maimonides’ Commentary on the Mishnah, Kiddushin 1:7:

“You already know the principle accepted by us: we do not derive from general rules, and when it says ‘all,’ it means the majority. As for the positive commandments in which women are obligated and those in which they are not obligated among those that apply to them, this does not depend on a rule; rather, they were transmitted orally, and these are matters received by tradition. Do you not know that eating matzah on Passover nights, rejoicing on the festivals, Hakhel, prayer, reading the Megillah, the Hanukkah lamp, the Sabbath lamp, and sanctifying the day—all of these are positive time-bound commandments, and women are obligated in each of them just as men are. Likewise, the commandments of being fruitful and multiplying, Torah study, and redemption of the firstborn son—each of these is a positive commandment not dependent on time, and nevertheless women are not obligated in them. Rather, they were transmitted orally, as we mentioned.”

With God’s help, eve of Hanukkah, 5781

If the oil in the flask had burned on the first day in the natural way, the oil would have been completely used up and there would have been no possibility for it to burn on the following days.

As we see in the miracle of Elisha’s oil jug—there is no creation ex nihilo even by way of a miracle. There had to be a small amount of existing oil on which a blessing was bestowed, and from it all the vessels were filled, but there had to be something already in existence for the miraculous blessing to take effect upon.

Therefore, necessarily, some oil also remained on the first day in the lamp for the needs of the coming days. The non-consumption of the half-log in the flask—that is a great miracle.

Best regards, Yaron Spiegel-Karnieli

Yaron, I think you commented in the wrong place by mistake.
Ayin, is this Rabbi Kapach’s translation? From what I understood, the common translation of Maimonides’ Commentary on the Mishnah was done by an ignoramus.

Rabbi Kapach’s translation (as cited in the Bar-Ilan Responsa Project) says the same thing in slightly different wording:

Maimonides’ Commentary on the Mishnah, tractate Kiddushin, chapter 1, mishnah 7:
“And positive commandments not caused by time are commandments whose obligation applies at all times, such as mezuzah, parapet, and charity. And you already know that this is a principle accepted by us: we do not derive from general rules, and when they said ‘all,’ they meant the majority. But regarding positive commandments in which women are obligated and those in which they are not obligated, taken in their entirety, they have no rule; rather, they are transmitted orally, and these are received traditions. Do you not know that eating matzah on Passover night, rejoicing on the festivals, Hakhel, prayer, reading the Megillah, the Hanukkah lamp, the Sabbath lamp, and sanctifying the day—all these are positive time-bound commandments, and women are obligated in each of them just as men are. And similarly the commandments of being fruitful and multiplying, Torah study, redemption of the firstborn son, and the war against Amalek—each of these is a positive commandment not caused by time, and women are not obligated in them. Rather, all of them are matters of tradition, as we explained.”

With God’s help, first candle of Hanukkah, 5781

According to the reasoning that when women do have time they are not exempt from positive time-bound commandments, there would have been no need to justify women’s obligation in the Hanukkah lamp by saying that “they too were part of that miracle,” since at the time of lighting the lamp a woman would generally be at home (which is why the lighting of the Sabbath lamp was entrusted to them).

From the fact that the reason of “they too were part of that miracle” was needed, it seems that even though the women were at home at the time of the lighting, the exemption from positive time-bound commandments still applied to them.

Best regards, Yaron Fishel Korinaldi

Ayin, where did you see in Maimonides that the rule is descriptive? I only see there a clarification that the rule has exceptions (which everyone agrees to anyway), and the rule can still be constitutive where it applies, while in the exceptional cases there is some derivation or other consideration that overrides it.

It says explicitly: “But regarding positive commandments in which women are obligated and those in which they are not obligated, taken in their entirety, they have no rule; rather, they are transmitted orally, and these are received traditions.” There is no rule there, in an essential sense; everything is by tradition.

Why do you understand “there is no rule” as meaning no essential rule rather than no descriptive rule? Even if the rule of positive time-bound commandments is constitutive (as one component but not the only one—just as “you shall not steal” is constitutive, and yet a religious court can still forcibly collect a fine from so-and-so), it is still not a sufficient description, and so de facto there is no rule other than what was transmitted orally.

It should also be noted that according to the reasoning of Rabbi David Abudarham, that women were exempted from positive time-bound commandments because they are occupied with the needs of the home—in our time there is even more reason to exempt them, since besides the fact that women still fill the central role in raising the children, they also work outside the home and devote time to professional training and academic study, etc., so that women’s time nowadays is no less pressed than it was in the past.

At any rate, even in the past there were “important women” who were exempt from housework (and therefore became obligated in reclining on Passover night), and nevertheless we have not heard any opinion among the medieval authorities (Rishonim) that they should be obligated in positive time-bound commandments, because the reason for a law does not necessarily overlap with its formal definition, and when the Torah or the Sages exempted women, they exempted all of them and did not discuss each one individually.

Best regards, Y.F.K.

Indeed, I suspected that this is what you would bring. There is no statement here whatsoever that this is a descriptive rule, as P. wrote nicely here.
As for this logic, see my article on the ukimtot.