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.