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Rechtsgeschichte - The Feminist Challenge to Halakhah

Rechtsgeschichte

The Feminist Challenge
to Halakhah (1)

by Tikva Frymer-Kensky

Copyright 1994 by Tikva Frymer-Kensky

 

 

Halakhah has faced many challenges during the several thousand years of its existence, some of them quite fundamental and far-reaching, that have resulted in major changes in the way we look at halakhah. An example is the dialogue with Aristotelianism which had so much to do with the codification of Jewish law and the change of halakhah into a statement of norms rather than a record of processes. Today's challenge, which comes mostly from feminism and other forms of post-modernism, is just as radical and far-going as any that have come before. Feminism challenges halakhah on a number of different levels.

The simplest feminist challenge is on the level of the many halakhot, the many individual norms and roles that are detrimental to women. Many of these have been discussed widely--and I understand that you have heard about some of them in this series and are aware of the problems of the agunah (the "anchored woman" who can not get a religious divorce) and the questions of inheritance. There is a whole checkerboard of practices which disadvantage women. These are being identified and in many segments of the Jewish world, (somewhat reluctantly in some circles and somewhat more eagerly in others,) there is a serious attempt to try to rectify most of the gross inequities perpetrated on women by the legal system. But this layer of individual laws and rulings is just the very first layer of the challenge of feminism to halakhah. It is the layer most often spoken about by orthodox feminists who are concerned to work within the system to effect change, and by rejectionist feminists who are eager to find points of disagreement on which they can walk away from the system. But it nevertheless just scratches the surface.

At the same time, the deepest level of the feminist challenge to law and ethics, the feminist distrust of the deep structure of legal systems, is not applicable to halakhah. Feminism often worries about a system which pays greater attentions to norms and rules than to people and relationships. This is not a problem for halakhah.(I use the word halakhah rather than say Jewish law because to call halakhah "law" is to prejudice our understanding of the nature of halakhah). Halakhah is noteworthy for the fact that it has historically been willing to sacrifice and to bend norms for the sake of relationships. This manifests itself in the huge enterprise of decision-making within halakhah, Legal rulings attempted to cope with the fact that individuals may suffer from the generalizations that are necessarily inherent in law-making. The decisions of halakhic courts frequently urged (and urge) compromise rather than victory. They also often subordinate individual rules to general relation-statements such as harmony within the home. In fact, it has been said that in many respects halakhah speaks with what used to be called, "the feminine voice," a term that is mercifully quickly passing into oblivion.[2] We should probably not be surprised that Jewish modes of ruling and decision-making are similar to female processes: after all, Jews, who developed halakhah, have been people on the periphery of the power bases of society, as indeed women have been. As non-empowered people shalom bayit, Jews and women were often socialized the same way to consider the role of the individual and the community, vis-a-vis the violence of judicial legislation and punishment. The tendency of women to decide issues by thinking more of the people than of the rules -- turns out to be something that women share with the rabbis of halakhah. It may, of course, be the only thing that feminists hold together with halakhah.

The real issue of the challenge of feminism to halakhah concerns the basic set of principles of feminism. As you know there are many feminisms, and feminists do not agree on many things, and whenever you have two feminists together, they are as likely to disagree as two Jews. Nevertheless, the basic principle of feminism, the bottom line, is that women are human beings -- that they must be considered full human beings, and that to do anything else is unacceptable. Anything else is patriarchy. It may be patriarchy with an oppressive face, or patriarchy with a paternalistic face, or patriarchy at its most benevolent, but it is always patriarchy to say that women are other than fully human. This basic principle seems to us so self evident as to not need being said. But it does need to be said, over and over, for our newspapers and our history books tell us of the many ways in which that principle is violated abroad and at home every day.

Not all the world agrees that women are full human beings. And the halakhah, in fact, does not view women as full adult human beings. It does not allow them to act as witnesses; it does not empower them to act as determinative of their own destiny. The structure of family law in the halakhah always treats the men as the subjects of the law, as those who are the agents of the action, and treats the women as the objects who are taken in marriage, who are released from marriage. This orientation is fundamental to the system. It results sometime in the classifying of women together with minors, slaves, idiots, deaf mutes, and other people who are being considered by the rule of the moment as the "other" in legal determination. The law keeps women in this position by making them dependent economically, in that according to strict halakhah women do not inherit and cannot fully alienate the property of marriage, and it treats them frequently as a priori enablers of others to perform public actions. In other words, according to halakhah's mode of discourse, the community of obligated people who constitute the public's decision-making and public studying and public prayer worshiping agencies of Judaism are all male, and each woman is the satellite that revolves around her male. These women may then have their own set of social networks with other women, but there are rarely topics of halakhic discourse.

Of course, I am not talking about any particular contemporary practice; I'm talking about the way that halakhah looks at the whole issue of male-female and communal relationships. Even current attempts to rectify and ameliorate the situation of women have maintained this lack of mutuality; women continue to be objects of increasingly less harsh rules. This constitutes a basic contradiction between feminism and halakhah, not only in the traditional understanding of halakhah, but also in its contemporary manifestations. One result of this contradiction has been a rejection by feminists of halakhah. Not all, but many feminists, having seen this issue and seen it clearly, may or may not declare themselves post-Jews but tend to declare themselves post-halakhic in that they want nothing to do with the system that cannot recognize them. The other way of understanding this contradiction is the road of contemporary orthodoxy, which has absolutely embraced the distinction between men and women. Orthodoxy not only denies the impact of modern discovery on halakhah, it also embraces the idea that women and men are fundamentally different. During the last couple of decades, the orthodox world has separated males and females at an ever younger age in order to socialize them differently with different expectations of what their role in religion should be. Talmudic generalizations about about where a woman's honor lies, (inside, of course), and what a woman's way of behavior might be, and what constitutes shameful conduct, and what might disgrace the honor of the congregation, all of these hazakot (assumptions) have been embraced as ontological verities by many contemporary orthodox thinkers. These modes are timeless, says this manner of thinking: this is the essence of women. G-d did not create human beings to be mirror images of each other and therefore women should glory in being women and men should glory in being men. This essentialist thinking, like the romantic feminism that we know from American writings during the period of the "cult of true motherhood at the end of the nineteenth century, often devotes attention to the "greater spirituality" of women: women are truly more in tune to the divine than men and therefore need less prescriptions; women have rhythms of their bodies that correspond to the rhythms of the universe, and therefore need fewer time marking and time-bound rituals; women are caring and nurturing because of their occupation with children and need fewer mitzvot. Women can be placed on an enormously high pedestal, given great honor as in the Talmud, where the mother is the most revered person of all and nothing is ever said against the impact of the mother on the child. According to one famous Talmudic dictum, the woman is said to be the moral determinant of the household; if she is good, the whole household will be good. Woman is Queen of the House. In some orthodox circles today, women are encouraged to get a good education, and not essentially a secular one. It is assumed that many of the women will have modern careers. In all matters having go do with the nature of human aspirations, women are glorified and put on pedestals and normally offered a very happy, self-satisfied life. If you speak to orthodox women in these communities they will praise to you the glories of such a life for womankind. a life that the Court in America once called "separate but equal."

But, as with all "separate but equal" systems, the equality is ephemeral and sometimes the whole system tends to come crashing down. For women in these communities, this crash happens when women want out, when a woman seeks to leave her marriage and finds that she cannot do so without becoming an agunah, a woman anchored to a husband who will not give her a divorce. Or when a woman violently disagrees with her husband and finds that she cannot get her way because he threatens to walk out on her without granting her a get, (a religious divorce). Or when her husband dies unexpectedly as a young man, as happened to many in Israel in the Lebanon Wars, and she has no children and suddenly his family refuses to release her so she can marry again. These are the stress points within the system where the veils drop (speak of feminists click moments) and you get some very disillusioned, angry and bitter women. These stress points are being addressed by orthodox feminists and there really is, finally ,a serious attempt going on in the orthodox community to come up with some solutions to these problems of the agunah.

Nevertheless, at the same time, these communities have countermanded the basic idea of feminism by saying by maintaining that women are women, and men are men, that there are permanent ontological differences created by God, and that no matter what women do, they do cannot turn themselves into ontologically different creatures. Therefore, says the orthodox halakhah, no matter what a woman does in terms of obligating herself to the practices of Judaism, she cannot really be treated as obligated for that would have her become a judicial male.

There is a second stream of halakhah -- I like to call it the new halakhah -- the Conservative halakhah, which has attempted to declare many of these "verities" to be socially and culturally determined and no longer applicable. And there are thinkers who are trying not to justify the exclusion of women on the basis of what women truly want or truly are like. Nevertheless, the new halakhah has not yet addressed the basic problem of halakhah, which is the skewed view of male-female relations in which men are the agents and women the other.

In order to address this issue, we need to stand back and look at what halakhah is and what it should be, not only what it has become in the end of the twentieth century. The word halakhah ultimately has a Babylonian source. It is perhaps not insignificant that both the word Torah and halakhah have their analogue in Akkadian words, tertu and alaktu, both of which refer to oracles that you receive from God, to instructions from the deity. Torah comes from the same word as moreh -- to teach -- and halakhah comes from the word "to go. " In technical Babylonian religious texts, tertu refers to liver omens and alak to astrological omens.[3] However, it is not the technical definition that is important so much as the notion of how the term alaktu is used outside the technical divinatory realm. When we look at the word alaktu in religious literature, it means "the way" of the god, not only its way among the stars, but also its way in ethics and justice. The god's way of dealing with human beings is its alaktu, and the questioning Babylonian will say "her alaktu-- who can fathom it, who can discern the way of the gods?" The Akkadian alaktu is the equivalent of the word derech in biblical Hebrew, for the derech of God is God's way of behavior, God's way of dealing with human beings, God's way in the Temple. Halakhah is God's way and the way in which we follow God's ways. It is, in other words, a goal-oriented term. Sometimes it describes a form of imitatio dei, of behaving like God, and sometimes norms as to how humans should behave even when they are not like God (as when they engage their bodies), but it is always a term of goal direction, signifying the way that brings the community closer to God, the way that keeps the community under God.[4]

The way is mapped: it is not forced. Even in their inception, halakhic rules may not have been enforced by what has been called the "violence of the law."[5] The sanctions that the Mishnah and Talmud spell often demand a political power that the writers of these texts did not possess. They could not coerce Jews to follow these prescriptions. There have been periods when Jewish communities could enforce norms, and there have been threats of excommunication and of the supernatural sanction of reward and punishment in the world to come. Today--particularly in less traditional communities, halakhah has no coercive sanctions at all; nothing will happen to you if you do something against the halakhah. There is no state God police force; there is no official violence of the Jewish community; no one will kick you out because there is no real herem in most of Jewry today, and there is very little belief in at least the non- Orthodox circles that there will be an exact reward and punishment after death. In other words, you can break the halakhah without fear that somebody's gonna get you for it. This current lack of sanctions is not different from the ideals declared by the earliest Rabbinic writings, which admonish everyone to perform the commands, not like a servant who's looking to get a reward but rather like a servant who doesn't expect any reward at all. As this statement indicates, the halakhic system is a prescribed set of norms that are to be performed voluntarily by the community in response to the divine calling rather than as a result of human coercion.

Modern philosophies of law enable us to understand better how such a system can work. Some of you have read Dworkin and are aware of his idea that there are principles behind the law to which the law is reaching and which must never be contravened by the laws themselves. In American law, says Dworkin, we have to abstract from the law the principles that govern the law; then these principles become as important in making legal decisions as any particular rules that may have been enacted. When we look at the law of Torah and halakhah, we do not have to abstract the principles. The "metahalakhic" principles are stated very clearly: sedeq, sedeq tirdof "pursue justice," qedoshim teheyu, "be Holy", weahavta lereecha kamockha, "love your neighbor as yourself," and a few others that are perhaps somewhat less important. The purpose of the rules is to instruct you as to how you can institute justice, be holy. and demonstrate other-love. As the law develops, these principles lead to the whole enterprise of equity seeking in halakhah and should be our guide in determining what rules need to be modified and, if necessary, abrogated.

Possibly even more important for our understanding of Halakhah, and certainly much more fun, is the legal theory of Robert Cover.[6]In a review of the activities of the Supreme Court, Cover articulated his idea that all law is really a concretization of the narrative in which it is imbedded. The Supreme Court, holds Cover, decides or should decide cases on the basis of the American narrative of where we are and where we come from and should do so. Cover held that it was aberrant and wrong, to cite a famous example, for the judges in the Dred Scott Case to send the fugitive slave back to his owner. Even though statutory legislation, (the "positive law") demanded the return of a fugitive slave, this did not accord with what America was about.[7]

This type of relationship between the narrative of a people and the legal statutes is inherent in the organization of the books of the Torah in which the laws are given in the context of the release from slavery to form a holy just society. Jewish learning exhibits this kind of thinking when we talk abut the relationship between the aggadah, the non-legal theological and ethical analysis section of our tradition, and the halakhah. And our very system of law gets its authority from a narrative, from a foundation narrative of what the Jewish people are about and where they got their Torah.

The foundation narrative is really well known but let me kind of formulate it for you anyway -- I think you will recognize most of it:.[8]

Once upon a time, 5700 some odd years ago, God created the world. Later, God chose a people to bond with, the people of Israel. God rescued them from slavery so they could become God's people and established the covenant with Sinai in which God expressed desires in the form of laws. Israel accepted the covenant and agreed to obey these laws. These laws are eternal and unchanging and in order to insure their applicability, God also revealed at Sinai the elaborations of these laws in the oral Torah and the ways in which the laws can be elaborated. The Sages who lived after the destruction of the second Temple applied these divine instructions to the written Torah and thereby constructed the rabbinic halakhah as the divinely ordained extension of the Sinai tradition. Rabbis have continued to study and codify these laws and to respond to questions about halakhah so that Jews would know the proper way to achieve the will of God and could rest assured that their obedience to the halakhah would fulfill God's will and bring blessings. In this way we know God's wishes and are obligated to them.

This is a coherent narrative which has served Jews for many generations. But It has been under concerted attack by all of the discoveries of the modern world, discoveries that have cast doubt not only on the age of the cosmos but on the exact history of the Exodus narrative and the literal understanding of the Torah as revealed at Sinai. We also understand now, through our analysis of history, something about the motivation of the rabbinic actions and recognize that there was a power vacuum in the Jewish people that the Rabbis filled with the idea of the oral Torah. One of the foundational premises of OrthodoxJudaism is the principle that you do not apply the results of science to religious faith. For them, therefore, the traditional myth remains intact, as does the obligation to observe every rule that can be traced back to Sinai.

Conservative Judaism which declares itself more historically conscious, has modified the foundation story somewhat. It now goes something like this:

Once, a long time ago, certainly much more than 5700 years ago, God created the world. Later, God maybe brought some people out of slavery who met up with other people who came to a mountain where something happened which the people interpreted as God speaking. The people wrote this revelation down as law because that is how they understood it. Throughout the period of the First Temple, and for much of the Second Temple, the Israelites contemplated, integrated and reinterpreted these commandments with the guidance of their priests and prophets. After the destruction of the Second Temple the sages refused additional revelation. In so doing, they turned the written text of the Torah into the font of all order and knowledge and claimed the authority to read new meaning into the written Torah by the practice of midrash, and decide legal matters by majority rule. Generations of rabbis have constantly interpreted and amended their readings and their laws. Today we do not know the actual commands of God; we only know that neither the texts that we have now, or the laws that are based upon it, contain the actual statements of our Divine Commander. Nevertheless, we are obligated to obey them anyway.

This is an academically aware, historically responsible foundation story. It takes into account all we know of the processes of the law and the process of text making and the processes by which innovation has been made in Jewish tradition. The problem with this formulation is that the conclusion doesn't follow from the story, and it really isn't any wonder that Conservative Jewish leaders walk around saying that some of the people don't get it, that they're not observing the halakhah. In fact, and it's worth noting, Conservative Jews observe a tremendous amount of halakhah; I don't mean only the leadership of the movement, which is quite observant. I mean the normal people. Average Conservative Jews observe the ritual halakhah: the rules of observance of life-cycle events, religious rituals, performance of festivals. This is no accident, The traditional foundation story is recited liturgically and addresses contemporary Jews on a mythically powerful level. As such, it demands a ritual response, and gets this response in ritual observance. But neither the traditional nor the modified story can compel the observance of rules just because they are rules.

So we go to another variation of the foundation myth, that of Reconstructionist Judaism, which goes much like the Conservative myth except it has a different ending. It says:

Generations of rabbis have constantly amended their readings and their laws, and the Jewish people have accepted the authority of the laws and of the rabbis who interpret them. Today, knowing that we do not know the actual commands of God, and that neither the texts that we have now nor the texts that we base upon them contain the actual statements of a divine commander, the Jewish people have refused to continue accepting this halakhic system. We now live in a post-halakhic age in which the language of obligation has no meaning.

In this post-halakhic age, says Reconstructionist Judaism, we observe tradition to honor our past, but no sense of obligation adheres to this observance.

One more foundational myth, developed in most recent years, also highlights the response of halakhah to our changing understanding of history. This is the version of David Weiss Halivni, who is a leading Talmudic scholar and the spiritual leader of the Movement of Traditional Judaism. To paraphrase the sense of his myth-making foundational document pshat and Drash: [9]

"The people of Israel were not ready to observe the Torah that God had given them. The bible records many instances of apostasy and backsliding throughout the period of the first Temple. During this time the people also did not care for the written Torah as well as they should have, and many errors of discrepancies entered the written text. As a result, the written text that we have now does not accurately reflect the word of God. Therefore, during the time of Ezra, God revealed to him the true word. God did not change the written text but revealed all the principles of exegesis by which the will of God could be discerned. These principles, the basis of halakhah, are not only divinely given, they bring us closer to the true meaning of the written Torah than does the text that we have before us. The rules and laws of the oral Torah transmit the divine commands and we are obligated to obey them.

This formulaation has many advantages; it includes the results of modern scholarship and acknowledges the problems of finding the literal unity in the written Torah, and it recognizes the fact of change of halakhah throughout the century. At the same time, its notion of the second revelation gives a compelling reason to observe the laws that doesn't depend on the laws themselves but takes it back to the authority of the Divine Commander. However, it enshrines the rabbinic tradition to the point of idolatry, including all of the rabbinic statements and provisions about women. This certainly cannot be a foundational document for feminists, Nor, in my opinion, can it be an approach to law which is conducive to the pursuit of justice and equity.

In fact, if you want to have a foundational myth that will incorporate both the current aspirations and the actual particulars of the law and provide halakhah guidance, you have to develop a new narrative. This narrative draws to some extent on the mystical tradition of Judaism but is at the same time a complete rephrasing of how we think the laws got to be where it is and how we make halakhic decisions. Of course such a foundation myth has to be developed by a community, not by an individual. But here is my sketch of such a myth:

The universe has always been filled with God, and humanity developed an awareness of the transcendence imminent. They responded to the Presence and sought to establish connections with it as when Neanderthal people buried their dead with flowers. Humanity's vision of divinity raised living above mere subsistence and gave value and focus to human life and community. Written documents allow us to follow more closely our more recent ancestors' attempt to approach divinity. Sometimes their ways appear to be beautiful in our eyes, and other time ludicrous, but we acknowledge the fact of their faith.

At Sinai, at the dawn of Israel, our people experienced God's presence as the determining factor of communal life. The people wrote this revelation down as laws because that is how they heard it. Throughout the period of the first Temple and for much of the second Temple, Israelites contemplated, integrated and reinterpreted these commands with the guidance of priests and prophets.

After the destruction of the second Temple, the sages refused additional revelation and made the written text of the Torah the source of order and knowledge, proclaiming the authority to read new meanings into the written text by the prophets of midrash and decide legal matters by majority rule. Generations of rabbis have constantly interpreted and amended their readings and their laws. We follow in the path of their vision, joining with them on the course that they have set, entering their symbolic universe to pursue the past and complete the journey and in so doing we continue our creation in the image of God. Our goal is that we find in ourselves the reflection and continuation of divinity in the life that we lead in the world and in community, that we as a people live up to the injunction to be a holy people to the best of our understanding of what it takes to be holy.

The journey to holiness and Godliness is not an individual journey. The human self, encased in its own ego, lacks the expansiveness of divinity. An individual soul that opens its boundaries to connect to God in mystic union has achieved only half of its destiny. The self must find the key to connect and interlock with other selves for it is above all collective humanity that continues God's image. Halakhah is our way of acting in concert to reach God. It is our joint path on which we head for and help establish the divine order. Our task is easier because those who have come before us have indicated the way, and when we follow their way we establish connections not only to each other in the present but to all who stood at Sinai and walked along its path. Halakhah is our joint path with the generations of past and of future Jews allowing us to feel the presence of their religious yearnings in our present life and space and time. Establishing such connections across time and space is part of the enlarging of the self into the communal partner of God. Our religious duty is not only to follow the path but to constantly re-examine it to keep it headine us forward. We must continually monitor and adjust the path so that it leads to holiness and divine order, and this is the purpose of the halakhic process.

This narrative gives us a warrant to concentrate both on halakhic norms and on the aggadic principles that have animated halakhah as we attempt to live the command to be holy, pursue justice and love each other.

The question that should rightly be asked and answered is: does the tradition provide the same perspective in ways that don't come out of American reflections on the nature of law but come directly out of Jewish sources. What is the essence of the revelation: was the written Torah revealed, the written plus the oral Torah, or perhaps as the Jerusalem Talmud phrases it, "everything that an adept student will ever say before his master was already evealed on Mount Sinai." (JT Pe'ah 13a)?

Our written Torah is but a fragment of the revelation. And it is a flawed fragment. THe Torah itself provides a sense of the imperfect process transmitting the divine word. A now classic example is the part of Exodus 19 where Moshe tells the people to get prepared for the coming of God, to purify themselves and "do not go near a woman." In this one statement Moses looks out at the people of Israel and addresses himself to the men. And the women become the occasion for temptation. This statement of Moses is now well known to the point of infamy. Not as well known is the fact that earlier in the same chapter the narrator shows us God commanding Moses: God commands to Moses to go and tell the people to prepare and to purify themselves. God says nothing about "don't go near a woman". Something mediated Moses' transmission of God's word: patriarchy. Moses saw God in the way he was able to see God, and heard God in ways that he could understand God. This was the human contribution to the revelation.

Tradition also teaches us that God spoke in a very special multiplicative way. In the words of the Maharshal, God spoke through 49 sinorot, 49 conduits between us and God, each 7 times 7, purified 14 fold, and every sound came through its conduit and everybody heard it according to his differential abilities. We hear what we can hear. Rabbi Levi Yitzhaq also explains that our differential understandings result from our diverse gifts from the holy Spirit. If you are a meqil, if you tend to be lenient in matters of law, the reason is that your soul is in tune with hesed, and if you are a mahmir, meaning you tend to be more stringent in your legal decision, the reason is that your soul is in tune with the attribute of divinity that is known as gevurah. The word came in a multiplicative divine rather than human fashion, and was heard fragmentally according to the psychological abilities of what people could hear, what their makeup allowed them to hear.[10]

In effect, these mystical philosophers have deconstructed the aythority of the written word. The written word relies for its significance and authority on the interpreters and their authority. The interpretation gives the normativity. These mystical maneuvers bring us back to the plain Talmudic statement of lo bashamayim he (the Torah is not in heaven). The decision of what to do, the interpretation of the rule to apply to the human circumstance is in the hands of people, and, said the Rabbis, they should decide by majority vote of the Rabbis.

In fact, during the history of Jewry, there have been very serious changes made in halakhah on the basis of the fact that we have the authority to change with the times, on the basis that the Torah itself doesn't change but perhaps the halakhah does in order to preserve the principles of Torah and the well-being of the Jewish people. Many changes have been made that affected women. The most famous is the Hafetz Hayyim's decision that times had changed and you could no longer keep women unknowledegable in Torah. In his day, he said, you couldn't rely any more on the family to give them Jewish values because families didn't have it that well, and you couldn't rely on their being willing to consider themselves ignorant in order to learn from their husbands because the women were being taught to dance and play piano and speak french . For this reason, the Hafetz Hayyim made the dramatic change to formally educate women in Torah and the first schools for women were opened. and so it was in order to preserve the Torah that it could be changed.

There are even examples in the tradition of people changing their ontological status. One of the more radical examples is the question of deaf mutes. Deaf mutes are treated in halakhic sources as non-cognitive beings who cannot be witnesses and do not have to fulfill any of the positive precepts of a human being. However, when the rabbis of Pressburg in the 19th Century, the Sofer Simha Bunem and his father dealt with this question, they went to the schools for the deaf which were relatively new and decided that nowadays, in their time, the deaf were being taught to communicate; therefore, they should no longer be considered as possessing the status that they once had had and should be included in the obligation to all precepts. This changes their ontological status to full adult Jewish people.[11]

Another great example of how you change ontological status is delicious. The gemara (Talmud) sees a great difference between the sage, the talmid hakham and the regular folk, the am ha'arets. In effect, the am ha'aretz is defined by observing the mitzvot, and then talmid hakham by studying torah. Social cleavages between these groups were so great that at certain periods the groups would not intermarry. The talmid hakham was an elite so revered and privileged that the tradition ruled that anyone who insulted a talmid hakham had to pay a monetary fine. With changing times, this privilege was abused. Some talmidei hakhamim, sages with no visible means of support, who came to speak to audiences would badger and harangue them until someone in the audience would insult them back--at which point the sages would demand and would collect their fine. To stop such abuses, and because it no longer felt proper to have what amounted to a caste distinction within jewry, the decision was made that nobody anymore(ca 1400) was an am ha'aretz -since everyone had a little learning, they couldn't really be called an am ha'aretz. At the same time, nobody could truly be called a talmid hakham anymore because in order to deserve that title you have to be immersed in learning and nothing else. In this way, the ontological status of all Jew(ish males) was changed.[12] Of course, this provision wasn't universally acepted--there were some communities that never adopted this change, that still called a sage a sage. But this provision is a good example of a major change in social status so that gross inequality could be removed while the framework of the law was preserved intact. The relevance for women is obvious.

Of course, when you discuss changes, the question that needs to be asked is who can make the change? In certain circles it has been understood that only gedoley hatorah the greatest of all Rabbis, only those recognized as the posqim (the legal decision makers) of their generation, could make such changes. Not all Rabbinical authorities, and certainly not all the people. There are also groups within Judaism today which only will accept the authority of a particular type of Rabbi: not the master of the logic and precedent but the person who is acknowledged by the community as possessing a divine sanctity, a special daat Torah (intimate knowledge of Torah). To them, only that person can pronounce a policy.

The question of religious authority is a very substantive one. and the idea of hierarchy has to be examined. Who gets to decide questions of halakhah? Is it only the Rosh Yeshiva? Only the tzaddik (the Holy Man)? Should only people with Smichah (Rabbinic ordination) be listened to? Or how about Judaica-trained graduates from Harvard Law school? Or Academically-trained Ph.D. specialists in Jewish law? Should they have a voice?. Or perhaps -- does the ongoing revelation of God operate through the people of Israel? After all, even the Bavli itself, the Babylonian Talmud, could not become important until it was accepted by the people. And any takkanah (special decree) had to be accepted by the people.

There are numerous statements in Talmud that the people themselves are the vehicle of halakhic authority, and if you want to know the correct halakhah, you go out and you look, puk hazei in the Aramaic phrase. For example, can you keep a vicious animal? Go look. People keep guard dogs. If people keep guard dogs, it must be o.k. because the people are not trying to behave viciously towards each other.

The principle of puk hazei becomes less and less popular as time goes on, but in practice the people nevertheless sometimes asserts itself as the final arbiter of halakhic norms. A good example is the institution of tashlich -- the ceremony of casting bread upon the waters to symbolize the carrying away of sins during the New Year holiday. This practice first appears in halakhic sources in the late Middle Ages. It was the object of a concerted Rabbinic effort to squelch it for two hundred years. The rabbis tried to convince the Jews not to do it, but the ceremony had a tremendous appeal and the people wouldn't give it up. And after two hundred years, the rabbis acquiesced, saying in effect that the ritual must be in accord with Torah, and proceed to give some parameters and some definition to this people-driven ceremony.

In tashlich, the people as a whole acted as the determinants of their religious observance. There are a number of points in halakhah where the tradition declares that women were the agents of their destiny. Most of these are minor, but a few are highly instructive. According to the old Halakhah, women are obligated to hear the Megillah (the scroll of Esther read ceremonially on Purim) even though not obligated to hear the shofar. Yet everybody will tell you that hearing the shofar is a far more momentous occasion in the Jewish year than hearing the Megillah. So why does the tradition privilege women (by obligating them) to hear the Megillah? Because,it is said, women (in the person of Esther) had a hand in the redemption that led to the reading of the Megillah. As a parallel case, women came before the rabbis declaring that they wanted to be obligated to light Hanukkah lights, and the rabbis said yes, they should light Hanukkah lights because they had a role in that redemption. In this case the reference is to the story of Judith, who in Jewish tradition was the daughter of Matityahu and killed the general as part of the Macabeean revolt, and Judith was the daughter of Matityahu. The extensive role of the midwives, mothers and daughters in the redemption of Israel from Egypt is the reason that women are obligated by all of the ceremonial regulations of Pesach, such as drinking the four cups of wine. even though they are not obligated to sit in the Sukkah.

Women have also acted as the change agents for the Halakhah. Even though the older Halakhah did not require women to count the Omer, after hundreds of women had adoped the practice, a major halakhic authority, the Magen Avraham announced that since women have been doing this for so long they should be considered to have obligated themselves for all future generations.[13] In the same way (though in the opposite direction) women, who had been obligated to light Hannukah candles, simply stopped doing so, so that even today in many orthodox circles women are not expected to light their own, but witness the lighting by men.

In the light of all these examples of the ability of women to change halakhah I would draw the somewhat incendiary conclusion that it is time for women to begin to redeem themselves. If women want to be full moral agents, then they have to take the agency in their own hand. With few exceptions, women have not yet felt empowered to do so on matters of halakhah. It is ironic that despite the evergrowing number of women Rabbis in Conservative Judaism, they have not yet reached the point of self-validation. They are still looking for approval from male halakhic authorities. The issue of edut of allowing women to be witnesses, looms as a big problem for Conservative Judaism to solve in the coming years. It is becoming ridiculous to have a hundred women Rabbis and still not be able to have them witness a document or to sit on a Bet-Din.

What can you do? What are the options for changing the system? Can a group just come along and say and say "those times have past." Strict halakhic reasoning indicates that since the prohibition of women as witnesses is formally derived from the Torah, it would take a takkanah, a special decree, to change it. Is there a group that will do so?. An can it find good halakhic reasoning to justify doing so?

In fact, one can provide reason for an interpretive change. One can argue by analogy to the argument about the deaf mute. It is undeniable that women were once kept in the private sphere and kept from direct experience of the workings of the public legal system and polity. At such time there may have been justification for excluding them as witnesses except on private issues concerning their own families. Now, however, when women are an integral part of the body politic--their role has changed and so should the stricutures on being a witness.

Another precedent might be Rashi's commenton the principle of elu veelu divrei elohim haim (lit, "these and these are the words of the living God" or, as the old joke states it, "you're right--and you're right too") and on the fact that contrary opinions are preserved in the gemarrah: he says that these opinions might not be right now, but with a change in circumstances they could be right. IN a similar vein is the Hatam Sofer's comment that in another gilgul, another aeon, they could be right:[14] Why do you call a pig hazir? because it will come back (hozer) in the Messianic era as kosher. The principles may be immutable, but not the details that explicate them. One could say that the modern world with all its changes and the very different challenges and dangers it poses to modern jews, constitutes a different gilgul and so the old social categories don't apply.

Of course, the old question remains: this may be a perfectly valid halakhic maneuver, but who is going to do it? who is going to bell the cat? who has the authority to get up and do it?. And the answer is --no religious poseq is likely to get up and do it. And no group that considers itself halakhic is going to do it for fear of being attacked as non-halakhic by another group. It has to be done ultimately by the whole people, the only ones who can make a real statement on such a serious matter. And the agents of such change have to be the women themselves. They are the ones who must say "the old exclusion of women from edut (witnessing) simply doesn't pertain any more!" Women must be the self-defining group in Judaism that will get up and say "we declare."

A good example of women taking matters in their own hands comes, ironically, from orthodoxy. Because Orthodox Judaism refuses to allow women to play a role in public worship services, women began to come togetber in single-sex women's tefillah groups (prayer group). Even though they avoided saying those prayers which orthodox Judaism demands the presence of ten men to say, five eminent Rabbis (the "Ritz Five") declared the practice of such prayer groups invalid. The reason they gave was "ontological", women are private individuals: even if hudreds of women stand together they cannot constitute a public group for public prayer; they are simply hundreds of private individuals in the same place. The reaction to this ruling was the formation of an association of tefillah groups whose purpose was to support each other. This is an example of the process of women beginning their own redemption and becoming the agents of their own destiny. Of course, we shouldn't get too wildly optimistic on the basis of this example. The reason that the women got away with what is essentially a halakhic rebellion is that the tefillah groups are actually an escape valve that defuses the impetus for change among orthodox women. By satisfying the need of women to express their growing familiarity with Judaism and Jewish ritual through participation in public worship, they relieve the pressure that might build to make the official worship service more inclusive of women. In this way they serve to protect the "two state" system of Orthodoxy.

The strategy of Halakhic self-determination is an important step for women. There is a great deal of anger about the agunah. If it is not solved, women may have to stop putting pressure on men to act and start acting on their own. Instead of only telling men that they shouldn't give honor to men who refuse to give their wives gets, there will come a time when they have to say, we will not raise the children of or have sex with men who give honor to men who make their wives agunot. Similarly, if women want to be considered witnesses, they are going to have to declare that from now on they must be considered kosher witnesses.they are going to have to demand that their Ketubahs (marriage documents) be witnessed by other women or they won't get married.

This is, of course, a power play a la Lysistrata. It is also forcing the hand of the decision makers by in effect becoming decision makers. It is also a halakhic maneuver. We know that when the whole system is threatened, then it is et laasot la'adonai, "it is time to act for God", with a hora'at sha'ah. a legal ruling which doesn't have to be explained or interpreted but is sufficiently justified by the peril of the community and the necessity to act. Knowing this, the path is clear: if women want the rabbinate to change the ontological status of women, if women want to redress the basic inequity of the halakhah, the skewing of the law so that men are the agents and women the objects of actions, then we have to create a situation where the whole system is endangered without it, and it becomes a hora'at sha'ah to declare women full proactive human beings. And that maybe only women can do.

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FOOTNOTES


1 There is a very large bibliography on the Halakhah. To suggest just a few sources on its nature: Eliezer Berkovits, Not in Heaven: The Nature and Function of Halakhah, New York, Ktav 1983; Elliot Dorf and Arthur Roset, A Living Tree: The Roots and Growth of Jewish Law: Albany, SUNY. 1988; Menachem Elon, Hamishpat haivri, English Translation, JPS 1994; Robert Gordis, The Dynamic of Judaism: A Study in Jewish Law, Bloomington, IN 1990; Louis Jacobd, The Tree of Life: Diversity, Creativity and Plurality in Jewish Law, Litman Library of Jewish Civilization, Oxford University Press, 1984; Ephraim Urbach, The Halakhah: its Sources and Development, trans. Raphael Posner. Massada, Yad Latalmud 1986.

2 The term the "feminine voice" comes from Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge MA Harvard University Press, 1982. For the similarities of this voice to Halakhah see Steven Friedell, "The `Different Voice' in Jewish Law: Some Parallels to a Feminine Jurisprudence" Indiana Law Journal 1992 pp 915-949.

3 Tsvi Abusch, "Akaktu and Halakhah: Oracular Decision, Divine Revelation," Harvard Theological Review 80 (1987) 15-42.

4 For another understanding of halakhah as "Way", see George Fletcher,_"Ho and Halakha", Sevara 1:1 1990 13-15.

5 For the role of sanctions in law, see Robert Cover, "Violence and the Word" 95 Yale Law Journal 1601-1629 (1986).

6 For the applicability of Cover to Halakhah, see Gordon Tucker, "The Sayings of the Wise are like Goads : An Appreciation of the Works of Robert Cover", Conservative Judaism 45 (1993) 17-39 and Rachel Adler, "Feminist Folktales of Justice: Robert Cover as a Resource for the Renewal of Halakhah," Conservative Judaism 45 (1993)40-55 and Tikva Frymer-Kensky, "Towards a Liberal Theory of Halakhah," Tikkun 1995.

7 See the very important work by Robert Cover, "The Supreme Court 1982 term Foreword: nomos and narrative" 97 Harvard Law Review 4-68(1983) and also Bryan Schwartz, "individuals and community", Journal of Law and Religion 7 131-171.

8 These narratives have been separately published by Tikva Frymer Kensky, "Towards a Liberal Theory of Halakhah" Tikkun 1995.

9 David Weiss Halivni, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis, New York, Oxford University Press, 1991.

10 The 49 conduits are from the Maharshal (R. Shelomo Luria), 16th century in the introduction to yam shel shelomo on hulin; R. Levi Yitshak's formulation, 19th century is from Kedushat Levi. Both are cited by Moshe Sokol , "What does a Jewish Text Mean? Theories of Elu Va-Elu Divrei Elohim Hayim in Rabbinic Literature" da'at 32-33 (1994) pp xxiii-xxxv.

11 See Jacobs, A Tree of Life p 139.

12 The change was stated by R. Joseph Colon and R. Jacob Weil. See the discussion in Jacobs, A Tree of Life pp 138-139.

13 See the discussion by Moshe Meiselman, Jewish Woman in Jewish Law, 1978 pp 47-49.

14 Rashi's comment is to BT ketubot 57a ka mashma lan; the Hatam Sofer to BT Pesahim 3b ke-gedi. They are discussed in Moshe Sokol, "What does a Jewish Text Mean?: theories of elu ve'elu divrei elohim hayim in Rabbinic Literature" da' at 32-33 (1994) pp. xxiii-xxxv.