נשים בדיון הלכתי, נשים ומתן פסקי הלכהJewish Legal Writings by Women, Women and the Issuing of Halakhic Rulings

א׳

1Chanah Henkin

ב׳

2Any discussion of women’s religious roles needs to go back to Devorah HaNevi’a (the Prophetess).

ג׳

3ודבורה אשה נביאה אשת לפידות היא שפטה את ישראל בעת ההיא. והיא יושבת תחת תמר דבורה בין הרמה ובין בית אל בהר אפרים ויעלו אליה בני ישראל למשפט.

ד׳

4And Devorah was a prophetess, a woman of Lapidot, she judged Israel at that time, sitting beneath the date-palm of Devorah, between Rama and Beit El in the Mount of Efraim, and Israel went up to her for judgment. (Judges 4:4–5)

ה׳

5“She judged Israel”—this is the biblical precedent brought in the halakhic discussion of two issues: (a) Can a woman serve in a public position of authority (“mesima”)? (b) Can a woman judge? An examination of how the Rishonim treat this issue will establish for us the parameters within which we need to evaluate pesika, the issuing of halakhic rulings, by women.

ו׳

6The talmudic sages, perhaps not entirely at ease merely with the spiritually charismatic personalities of the biblical period, ascribe to them the more familiar identities of profound Torah scholars. This is true for both men and women. “Abraham observed the entire Torah” (Yoma 28b). “The daughters of Zlafchad, they are learned, they expound the law, they are righteous (chach-maniyot hen, darshaniyot hen, tzidkaniyot hen)” (Bava Batra 8). “Amram was head of the Sanhedrin” (Shmot Rabba 1:13). “The house of study of Shem” (Targum Yerushalmi, Toldot 25:22). This is also the basis for their understanding of Devorah. “…She judged Israel (hi shofta et Yisrael)”—what was her activity?

ז׳

7In Devarim 17:15, we read:

ח׳

8שום תשים עליך מלך אשר יבחר ה׳ אלקיך בו מקרב אחיך תשים עליך מלך לא תוכל לתת עליך איש נכרי אשר לא אחיך הוא.

ט׳

9You shall place upon you a king whom HaShem your God will choose, from amongst your breathren you shall place upon you a king, you shall not place upon you a gentile who is not your brother.

י׳

10The Midrash Halakha Sifre (Ibid.) comments: “Melekh velo malka,” a king and not a queen. What the Sifre is saying is that the verse could have been constructed more economically, without the repetition of “tasim alekha melekh.” The verse could have read: Som tasim alekha melekh mikerev achekha asher yivchar HaShem Elokekha bo, etc.—you shall appoint a king from amongst your brethren whom HaShem your God has chosen etc. Since Hebrew is gender specific but the male voice is commonly inclusive of both genders in the Torah, the repetition of melekh, male king, in the first two clauses therefore teaches that we may appoint only a male.

י״א

11Rambam in Mishne Torah, Hilkhot Melakhim (1:5) expands this to all public roles of authority (kol mesimot):¹The process by which Rambam expands the scope of the prohibition is discussed by Rav Moshe Feinstein in Responsa Iggerot Moshe, Yore De’a 2:44.

י״ב

12אין מעמידין אשה במלכות שנאמר עליך מלך ולא מלכה וכן כל משימות שבישראל אין ממנים בהם אלא איש.

י״ג

13We do not set up a woman in kingship, as it is written, ‘“upon you a king,’ and not a queen.” And likewise, to all positions in Israel, we appoint only a man.

י״ד

14Rambam’s ruling becomes relevant to the topic of psikat Halakha by women via the Radbaz (R. David b. Zimra, 16^th c., Egypt) who, in his commentary on Mishne Torah, asks (ibid.): How can Rambam assert that a woman cannot be appointed to a mesima? Devorah was a prophetess who judged Israel, and that is certainly a mesima! He answers:

ט״ו

15לא קשיא שהיתה מלמדת להם המשפטים, א״נ ע״פ הדבור היה.

ט״ז

16This is not a challenge, for she taught them the laws. Alternatively, it was according to the Almighty’s command.

י״ז

17She was not actually a judge, but rather “she taught them the laws.” Alternatively, she was indeed a judge, but she bypassed the restriction that applies to other women because God appointed her. In his first answer, “shehayta melamedet lahem hamishpatim (she taught them the laws)” Radbaz does not mean she was a grade school dinim teacher. She judged Israel, and if judging is interpreted as teaching the law, then she decided Halakha. She issued halakhic rulings for the nation. And Radbaz is telling us that this interpretation that Devorah paska halakha, issued halakhic rulings, is not inconsistent with Rambam’s objection to kol mesimot, nor with anything else Rambam wrote.

י״ח

18The Tosafot (12^th–13^th century) reach the same conclusion, but through a different process. Their problem is not “melekh velo malka” or “kol mesimot,” but rather the prohibition against women judges. From the Gemara in Shavuot (30a) and Nidda (49b) it can be determined that a woman is ineligible to judge, and this is stated explicitly in the Jerusalem Talmud.²Sanhedrin 3:6. Tosafot (Shavuot 29b) challenge this with the precedent of Devorah. They answer:

י״ט

19איכא למימר שהיתה מלמדת להם הדינים, א״נ לפי שהיתה נביאה היו מקבלים אותה עליהם

כ׳

20We must say that she taught them the laws, or alternatively, that because she was a prophetess, they accepted her upon themselves.

כ״א

21According to Tosafot, the Gemara can be upheld so long as we make either of two assumptions: (a) Devorah was a poseket—“hayta melamedet lahem hadinim”—and not a courtroom judge, or (b) she was indeed a judge, but the objection of Halakha is not to the act of judging by a woman but rather to the coercive aspect of her appointment. If all litigants voluntarily accept her judicial authority, she can judge. Because Devorah was a prophetess, Israel willingly accepted her authority.

כ״ב

22Ramban (Nachmanides), representing 13^th century sephardic tradition, also offers two alternative explanations of Devorah’s judging (Chiddushei haRamban, Shavuot 30a):

כ״ג

23וכן אמרו בירושלמי שאין האשה מעידה ואין האשה דנה ומאי דכתיב והיא שפטה את ישראל פירושו מנהגת שעל פיה ובעצתה היו נוהגין זה עם זה כדין מלכה ואע״ג דאמרינן בספרי שום תשים עליך מלך ולא מלכה נוהגין היו בה כדין מלכה אי נמי מקבלין היו דבריה ברצונם.

כ״ד

24And likewise, in the Jerusalem Talmud, they said, a woman does not testify and does not judge. And what of: “she judged Israel”? It means that she was a leader, like a queen, and that according to her decision and counsel they conducted their affairs with each other. And even though we say in the Sifre, ‘“You shall place upon you a king,’ a king and not a queen,” they conducted themselves as if she was a queen. Alternatively, they accepted her words voluntarily.

כ״ה

25The term shofet (judge) during the pre-monarchial period in Israel was used synonymously with political leader; and when we speak of Yehoshua or Gidon as shoftim, we do not mean they were courtroom judges, but rather heads of state. Ramban explains that in like fashion Devorah, who was a shofetet, was leader of the nation. This raises the question: is not the leader of the nation for all intents and purposes a king, whether we use the term or not? Yet, continues Ramban, we can maintain that Devorah was the leader of the nation without any conflict with the principle of ‘melekh velo malka,’ because she was not officially appointed king, but rather the people acted as if she were king; we thus arrive at the same point implicit in Tosafot, that it is the procedure of appointment, and not the act of serving in the position, that is halakhically objectionable. According to Tosafot, Devorah could have functioned as the supreme judge so long as she was not formally appointed. According to Ramban, she was de facto political leader, because everyone voluntarily accepted her leadership.

כ״ו

26The second explanation Ramban gives is that Devorah indeed judged Israel, but here again, they accepted her judicial decisions of their own volition. Ramban differs from Tosafot on this last point in that Tosafot explain that Israel accepted Devorah as a courtroom judge because of her status as a prophetess. Ramban, on the other hand, mentions only the general legal mechanism through which anyone can be accepted—“mekablin hayu devareha birtzonam (they voluntarily accepted her words).” The implication of Tosafot is that such acceptance might be appropriate only for a Divinely ordained prophetess, while no such limitation is implied by Ramban.

כ״ז

27The applicability of voluntarily acceptance to any woman becomes absolutely clear in the writings of Ramban’s disciple, Rashba (Chidushei haRashba, Shavuot 30a):

כ״ח

28וא״ת הא כתיב והיא שפטה את ישראל י״ל דלא שפטה ממש אלא מנהגת כשופטים ששפטו את ישראל ואע״ג דאמרינן בספרי שום תשים עליך מלך ולא מלכה התם לא מנו אותה אלא היו נוהגים בה כדין מלכה והיו נוהגים על פיה ואי נמי שופטת ודנה שהיו מקבלים אותה כדרך שאדם מקבל אחד מן הקרובים.

כ״ט

29And if you say: Indeed, it is written, “And she judged Israel,” one must say that she did not actually judge, but was a leader, like the judges who led Israel. And despite our saying in the Sifre, ‘“You shall place upon you a king,’ a king and not a queen,” she was not appointed, but they conducted themselves as if she were a queen. Alternatively, she was a coutroom judge, and they voluntarily accepted her as one accepts a relative.

ל׳

30He brings the same two options as does Ramban, Devorah as head of state or courtroom judge, but concludes regarding courtroom judge, “kederech she’adam mekabel echad min hakrovim,” as one accepts a relative. Rashba informs us that Devorah, if we posit that she was a courtroom judge, was accepted through a mechanism open to anyone. Just as one party may accept a blood-relative of the other party to judge him, even though the halakha normally forbids a blood-relative from judging, in like fashion Israel voluntarily accepted her authority.

ל״א

31This same position is articulated by Ran, R. Nissim of Gerona, (14^th century; Shavuot, chapter 4, ד׳׳ה שבועת העדות):

ל״ב

32והא דכתיב גבי דבורה והיא שפטה את ישראל לאו שופטת קאמר אלא מנהגת, ואע״ג דאמרינן בספרי שום תשים עליך מלך ולא מלכה התם לא מנו אותה אלא נוהגין היו על פיה, וא״נ שופטה ודנה היתה שהיו מקבלין אותה כדרך שאדם מקבל אחד מן הקרובים.

ל״ג

33And that which is written regarding Devorah, “she judged Israel”—a judge is not implied, but [rather] a leader. And although we saw in Sifre: ‘“You shall place upon you a king,’ a king and not a queen,” there they did not appoint her, but acted according to her words; alternatively, she was a judge, for they accepted her as one accepts a relative.

ל״ד

34To summarize thus far:

ל״ה

351) Among the Rishonim, Rambam alone speaks of a general stricture against appointing a woman to a position of public authority.

ל״ו

362) Radbaz explains that positing that Devorah was a poseket is not problematic for Rambam, despite the above strictures.

ל״ז

373) Ramban, Rashba, and Ran are prepared to posit that Devorah was a political leader.

ל״ח

384) Tosafot, like Radbaz, posits that Devorah taught them the laws, i.e., was a poseket.

ל״ט

39Finally, none of the Rishonim has any problem with Devorah’s having engaged in the act of judging, so long as she was not appointed.³Iggerot Moshe, ibid., no. 45:

מ׳

40There is yet a third halakhic issue in the context of which the subject of pesika, halakhic ruling, by a woman, arises. Another Rishon, Sefer haChinukh, writes in Mitzva 152 that, while inebriated, one is prohibited from either entering the Temple or issuing a halakhic ruling, hora’a:

מ״א

41שלא להכנס שתוי במקדש, וכן שלא להורות, כלומר שלא נדון בדבר מדיני התורה בעוד שיהא האדם שיכור.

מ״ב

42Not to enter the Temple inebriated, and likewise, not to issue a halakhic ruling. In other words, not to interpret a Torah law while drunk.

מ״ג

43Sefer haChinukh continues that the prohibition against issuing a halakhic ruling while drunk applies equally to men and to a “learned woman who is worthy of issuing a ruling.”

מ״ד

44ונוהג איסור ביאת מקדש בשכרות בזמן הבית בזכרים ונקבות, ומניעת ההוריה בכל מקום ובכל זמן בזכרים, וכן באשה חכמה הראויה להורות.

מ״ה

45This prohibition of entering the Temple while drunk applies during the time of the Temple to males and females, and the prohibition against ruling [while drunk], [applies] in all places and at all times, to males and likewise to a learned woman who is worthy of ruling.

מ״ו

46Earlier, in Mitzva 78, Sefer haChinukh rules that the mitzva of following the majority opinion in deciding Halakha applies equally to men and women. The Minchat Chinukh comments that in a law requiring a formal beit din such as in monetary or capital cases, a woman is ineligible to rule. But in issur veheter, matters religiously proscribed or permitted, we accept the opinion regardless of who constitutes the majority, whether they be learned women or men.⁴R. Yosef Babad (Lvov, Poland, 1869):

מ״ז

47R. Chaim Yosef David Azulai, the eminent 18^th century Jerusalem-born sephardi sage, rules in his Birkei Yosef that although a woman cannot judge, she can pasken, issue a halakhic ruling,⁵Choshen Mishpat 7:12: and this is the meaning of “hayta melamedet lahem hadinim” in Tosafot. He writes that the fact that a woman can issue a halakhic ruling is proven by Sefer haChinukh who, in Mitzva 83, agrees that a woman cannot judge, and on the other hand, in Mitzva 152, writes that a woman may not issue a halakhic ruling while drunk. This opinion of the Birkei Yosef is cited by the Pitchei Teshuva.⁶Choshen Mishpat 7:5.

מ״ח

48This position, I want to stress, is non-controversial. Nowhere within the Rishonim or the Achronim is there an opinion that the Halakha prohibits in principle the issuing of a halakhic ruling by a woman.⁷Iggerot Moshe, ibid., 60, in discussing the controversy between R. Yochanan and Resh Lakish in the Jerusalem Talmud Terumot 8:4 concerning handing over criminals to the authorities, inquires why the “wise woman” in II Samuel 20 is so-called, as her ruling is ostensibly in conflict with ab initio Halakha. R. Feinstein takes for granted the fact that a woman can issue a ruling. He challenges only the nature of her ruling, which he later defends.

מ״ט

49On the other hand, issuing halakhic rulings requires wide knowledge of Halakha, in addition to which there are many and detailed klalei pesika, rules for issuing a halakhic decision. For instance, in Nidda (7b), we learn that we do not issue halakhic rulings based upon the aggadah, nor do we rule from the Mishna. In Bava Kama (30b) and Shabbat (12b), we learn the principle “halakha ve’en morin ken,” that under certain circumstances one is not even permitted to publicize the actual Halakha, lest the community permit themselves to be negligent in related areas. This is found also in Beitza (28b), Chulin (15a and 15b), and Menachot (36b).

נ׳

50Because hora’a, issuing a halakhic ruling, is laden with such responsibility, R. Yehuda Hanasi (in Sanhedrin 5b) established the takana, ordinance, that a disciple may not rule without the reshut, the authorization, of his teacher.

נ״א

51Finally, the Gemara in Sota (22a) and again in Avoda Zara (19b) warns against those who issue halakhic rulings although unqualified to do so. “Rabim chalalim hipila—ze talmid chakham shelo higi’a lehora’a umore.” But, “va’atzumim kol harugeha—ze talmid chakham shehigi’a lehora’a ve’eino more.” “‘[Hora’a] has felled many’—that is a scholar who has not reached the stature of ruling and yet rules; ‘and great are her fallen’—that is a scholar who has indeed reached the stature of ruling yet does not rule.”

נ״ב

52So what of women? Will they remain in the category of rabim chalalim hipila, unqualified candidates for hora’a who might fell many, or will women reach the level of va’atzumim kol harugeha, those scholars who should issue rulings lest “great are her fallen”?

נ״ג

53First of all, I want to say—as the head of a learning institution which is qualifying women to address questions of hilkhot nidda in practice—we should stop using the term poskot. I turn to the rabbis and to the women who are using the term and I beg them to stop. It is not accurate, not constructive and it will not result in poskot. Ein habrakha metzuya ela bedavar hasamuy min ha’ayin, constructive changes will not be made in the glare of spotlights.⁸This applies with even greater force to talk of the semikha (ordination) of women as “rabbis,” with its unwanted implications of competition with men for pulpits and other community positions. Semikha has long lost its original meaning of “laying on of hands” by rabbi to student in an unbroken chain stretching back to Moshe, a chain which was broken in talmudic times. Rather, semikha today is a heter hora’a, permission given by a rabbi/teacher to a student permitting the student to issue halakhic rulings in the locale of, or during the lifetime of, the teacher. Technically, in the absence, or with the death of, the teacher, semikha is no longer required; nor is it required in order to give a halakhic decision in the abstract, as opposed to a ruling in a specific case, nor to merely citing an explicit ruling in the Shulchan Arukh or other accepted text. See Shulchan Arukh, Yore De’a 242:7, 9, 13.

נ״ד

54We are embarked on a tantalizing journey toward va’atzumim, learned women with the profound Torah scholarship, force of religious personality, and penetrating insight which will lead the community to seek them out as halakhic authorities, perhaps initially specializing in areas of Halakha which relate to women or which demand mastery of highly technical, scientific material. As we proceed along this journey, we should not casually and prematurely use a terminology that presumes a greater level of Torah accomplishment than we have yet achieved. A process is underway, and it can only be harmed by sensationalism.

נ״ה

55Second, our major concern must be the Halakha. Not for the purpose of empowering women, but enabling women to observe mitzvot meticulously, to blossom with the full richness of the fabric of the religious experience.

נ״ו

56In order to meticulously observe the Halakha, women need women! For reasons of modesty, women do not wish to, and often will not, discuss a hilkhot nidda question with a man. The consequences of a shayla (question pertaining to Jewish law) not asked can range from improper observance of the Halakha to marital anguish and even to infertility. As little as ten years ago, we had no solution to this problem. Today, we are witnessing, before our eyes, with profound emotion and gratitude to HaKadosh Barukh Hu, the emergence of a first generation of talmudically-literate women who will be able to advise other women in this field. They are committed to the Halakha and devoted to their fellow women. We must utilize this precious new resource of learned women to inspire piety and devotion to Torah in other women.

נ״ז

57Third, we are living in challenging times, when gender roles are changing and family structures are weakening. We must weigh carefully the results of the changes we are making upon our families. As we assume new roles uplifting to our spirits and enabling us to apply our new scholarship for the benefit of Am Yisrael, we must make certain that we are not falling short of the proper nurture of our children or abandoning the joys of a large family.

נ״ח

58There is a tension within Judaism between formalized and spontaneous religiosity, and even within God between din (the Divine quality of judgment) and rachamim (mercy). Rachamim wants to create the world in order to give man the opportunity to excel; din wants to prevent man’s failure. This struggle asserts itself regularly in the Midrash. In Gemara Berakhot (7a), God prays that His mercy will successfully conquer His midat hadin. To a certain extent, historically this tension was resolved by the balance between the traditional male and female roles. Chesed, deferral to others’ needs, requires time, a requirement which the domestic role has, through the ages, nobly accommodated. The Gemara brings several incidents contrasting the halakhically meticulous tzedaka of the talmid chakham husband with the preferable chesed of his presumably less-learned wife. The dangers to the delicate balance between din and rachamim, between formalized and spontaneous behavior, comes not from higher Torah learning for women but from the roles men and women are already playing in an increasingly impersonal and technological society. When we create new role models for women’s religious leadership, we must ensure that they represent not only great learning but also personal piety, commitment to family and to chesed, and excellence in middot as well.

נ״ט

59והקושיא ואע״ג דאמרינן בספרי דלא קאי על מה שהיתה דנה דלישב בדין לא הוי כלל באיסור דמינוי אלא כשנתמנה להיות משופטי העיר, אך הוא מדין אחר שאשה פסולה לדון כשם שפסולה להעיד, וע״ז תירץ הרמב׳׳ן דלא דנה כלל ושפטה את ישראל פירושו שהנהיגה את ישראל שעל פיה ובעצתה היו נוהגין זע״ז כדין מלכה, והקשה ע״ז קושיא אחרת דא״כ פסולה מהא דספרי מלך ולא מלכה ותירץ שלא מינוה למלכה אלא ששמעו לדבריה כמו למלכה. ואח״כ תירץ על הקושיא דפסולה לדון, א״נ מקבליו היו דבריה ברצונם היינו שלא בכפיה והפסול לדון אינו עצם הפס״ד אלא הכפיה.

ס׳

60See also R. Ben Zion Meir Chai Uziel, Piskei Uzziel, Choshen Mishpat 44.

ס״א

61ונרי שאם חכמי הדור חלוקין באיזה דין באר״ה חוץ דינים שצריך ב״ד בשעת מעשה כמו דיני נפשות או דיני ממונות והולכין אחר הרוב אין חילוק דאפילו חכמים קטנים מצטרפים לרוב אם הם חכמים ואל תסתכל בקנקן וכוי. וכן נשים חכמניות כמו דבורה ששופטת את ישראל. כן באיזה דין הבא שצריך ב״ד צריכים ב״ד כשר אבל לעניו מחלוקת באיזה דבר אין שום חילוק רק מי שהוא חכם חשבינן דעתו יהיה מי שיהיה כנ״פ.

ס״ב

62אף דאשה פסולה לדון מ״מ אשה חכמה יכולה להורות הוראה וכן מתבאר מהתוספות לחד שינויא דדבורה היתה מלמדת להם דינים. וכן תראה בסי החנוך דבסי׳ פ״ג הסכים דאשה פסולה לדון ובסי׳ קנ״ב בענין שתוי כתב וז״ל ומניית ההוריה וכוי וכן באשה חכמה הראויה להורות וכוי עי׳׳ש.

ס״ג

63There is, however, one midrashic source which seems to deny women the right of ruling. In Bamidbar Rabba 10:5 Manoach, father of Shimshon, in explaining why he asked the angel to confirm his wife’s report (in Shoftim 20), is quoted as saying “women are not bnot hora’a, and one can not rely on them.” However, (a) the context implies that testimony, not halakhic ruling, is being referred to, (b) Manoach is a non-authoritative figure in midrashic lore, and (c) no such statement is found elsewhere in rabbinic literature.

ס״ד

64Nevertheless, in particularly sensitive and difficult areas such as arranging writs of divorce, semikha has become mandatory, as well as in order to assume an appointed position as rabbi or halakhic authority of a community (Arukh haShulchan 29). It has also become customary to grant a partial semikha to permit the awardee to rule in certain halakhic areas even though not in others, such as yore yore without yadin yadin. One can envisage the equivalent of a heter hora’a being given to qualified women in areas such as hilkhot nidda, or even in parts of hilkhot nidda, without using the term semikha and without the title of “rabbi.”

ס״ה

65My husband, Rabbi Yehuda Henkin, noted a further consideration, based on Yore De’a 242:11. When necessary “le ’afrushei me ’isura,” to keep someone from sin, a student can rule even without semikha. Particularly in the area of hilkhot nidda where many women will not and do not consult a male rabbi because of the intimate nature of the topic, it may be le ’afrushei me ’isura to train and encourage women to answer other women’s questions.