Halakhic Dead White Men?

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imageHalakhic Dead White Men? On Feminism and Jewish Ritual Jurisprudence

by R. Aton Holzer

The question of the moral intution of the Sages has been the subject of a recent exchange of op-eds between Josephine Felix and Rabbi Gil Student on the Jewish Press website, and those of Rabbi Ethan Tucker and Rabbi Shlomo Brody on Times of Israel. The proximate cause is the challenge posed by feminist theory to the gendered system of Orthodox Jewish ritual. Does the restriction of women from donning tefillin, developed in the literature of the Rishonim and codified in the rulings of Rema (Orach Chaim 38:3) and Aruch Hashulchan (OC 38:6), reflect a Rabbinic tradition fully in sync with the oppression, stereotyping and patriarchy of Greco-Roman attitudes toward “the second sex?” Tucker and Felix vote yes. Brody points out that the absence of the tefillin prohibition from the Talmud undermines Tucker’s argument – indeed, the Sages of antiquity by and large allowed women to wear tefillin, and thus afforded women full “citizenship” in the Halakhic polity. In contrast, Student asserts that the Torah advances a weltanschauung that includes gender roles, albeit one that is ostensibly benign rather than oppressive. I suggest an additional perspective.

Women are encumbered by fewer responsibilities but have access to all privileges — with the exception of privileges that inevitably become responsibilities for other women

In his landmark essay “Rupture and Reconstruction,” Prof. Haym Soloveitchik notes that the Aruch Hashulchan, R. Yechiel Michel Epstein’s late nineteenth century reformulation of the Shulchan Aruch, was among the last of the codes that reckoned with the “mimetic tradition,” that “saw the practice of the people as an expression of Halakhic truth.” Its author, writing at the end of the nineteenth century, articulates a particular view regarding the accepted communal practice with regard to women’s participation in time-bound rituals. He presents a local rationale for prohibiting women’s tefillin in OC 38:6, but presents a more interesting programmatic formulation earlier in the volume.

In Orach Chaim, Hilchos Tzitzis 17:2-3: “… but our women make blessings on sukkah and lulav… and according to this, also with regard to tzitzis, it would seem that they are able to enwrap and bless. But in truth, we have not heard this. And we don’t allow them to wear a tallis, and certainly not to recite the blessings. And this is not similar to shofar and sukkah and lulav, for they come once a year and the mitzvah is momentary; but tzitzis, its obligation is year round and not pleasant (נאה) for women. Moreover, all those mitzvos are obligatory for men, so they can also do them. But tzitzis is not obligatory, as I have written in chapter 19, so how can we permit women to do it? And this is the intent of our master, the Rema, who wrote: ‘And nonetheless if they want… but it appears as yuhara (ostentation). And therefore they should not wear tzitzis, since it is not an obligation incumbent upon the individual.’ Meaning: It seems as ostentation since it is constant, and also since it is not an obligation for a man except when he has a four-cornered garment. And therefore we do not allow them to practice this mitzvah. And such is the practice, and it is not subject to change.”1

Of particular interest is the first of the two rationales presented here. For R. Epstein, a key problem with women’s participation in exempted daily obligations — tzitzis, and by the same logic tefillin — is that daily obligations are “not pleasant” for women, and therefore represent ostentation, yuhara. But what is the connection?

R. Epstein appears to argue that with regard to women’s observances, there is a need to circumscribe public displays of religious ostentation — sincere or not — which have a particularly corrosive effect on others, and ultimately societal structure.

Unlike shofar, lulav, and almost every other time-bound religious obligation, women’s public observances of a daily commitment has the potential to foster a socioreligious hierarchy in which feminine piety is identified with observance of this commitment. A publicly-observed option has a way of becoming an obligation — both for idealistic reasons (why should I not do an extra mitzvah and amass more merits?) and not-so-idealistic reasons (I want to show my community that I am a groyse k’nocker, a big shot). Perhaps this is the meaning of yuhara: ostentation in the setting of daily ritual commitments is corrosive because it raises a non-obligatory mitzvah to an obligation and inevitably crowds out other values to which the Torah assigns importance, or at least which women should be allowed to opt for unselfconsciously (e.g., child-bearing and -rearing, which don’t lend themselves to a commitment to attendance and participation in daily public time-sensitive rituals). Women are encumbered by fewer responsibilities but have access to all privileges — with the exception of privileges that inevitably become responsibilities for other women.

Every period of Jewish history is peppered with remarkable women who assumed untraditional roles, and the judgment of such women in classical sources is mostly positive. Perhaps one could argue that Halakhah does not force genders into roles — the mitzvah of procreation is not incumbent upon women! — but disallows behavior that would undermine the assumption of traditional roles by others.

Felix also references the invalidity of women for testimony. Perhaps there is a similar dynamic at play in the matter of women’s rendering of testimony. Testimony is not optional in Jewish law, but rather mandatory: אם לא יגיד ונשא עונו. If you find yourself in the category of those who can render testimony, you must do so. Since Jewish law legislates for categories and not individuals, it may have thought it unfair to impose such an obligation on a gender that includes many individuals whose choice of pregnancy and motherhood makes them more vulnerable to abuse and intimidation, particularly in a system in which prosecution of crime depends entirely upon testimony. Certainly Jewish history, and the modern reality, has its share of Salome Alexandras who can ably defend themselves — but Jewish law does not allow their testimony at the expense of fellow women who apply their strengths in a manner that weakens them in the realm of defense from criminals.

The achievements of feminism in the workplace were clearly necessary; reasonable people — not least a complex tradition that boasts scholars from Deborah to Bruriah to Nehama — agree that there are models of engagement in society for women beyond that of June Cleaver. Western civilization needs all the finest minds of humankind, not merely 50%, to be engaged in the arts, sciences and every field of human endeavor. Nonetheless, the movement leaves unanswered questions that society is still working out. Chief among them: if women are out in the workforce performing the same jobs and hours as men, who raises the kids? It is insufficient to punt this task over entirely to the men, because this just recreates the same “oppressive hierarchy” in reverse. Logically, if feminism concedes that child rearing is necessary to the survival of human society, and accepts that it is not possible to structure an economy such that all occupations are mommy-friendly (allowing for long absences, unpredictable schedules and part-time hours), it will have to accept that at least some women will choose mothering as their calling. Given that this is so, it is unfair and elitist to stigmatize the whole “mommy” enterprise, as second-wave feminism has effectively done.

The Aruch Hashulchan seems to suggest that Judaism, at various junctures in its development, was aware of the ultimate societal consequences of unbridled egalitarianism, and thus disallows practices that would lead to stigmatization of motherhood. It does not obligate women to bear children, but does not allow for pieties that would place obstacles in the path of those who wish to do so.

  1. I thank Rabbi Hanan Balk for bringing this source to my attention. 


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About the author

Rabbi Dr. Aton Holzer has semicha from RIETS and has published in a number of Torah venues. He practices surgical dermatology in Miami.

The opinions and facts here are presented solely by the author. Torah Musings assumes no responsibility for them. Please address religious questions to your rabbi.

9 Responses

  1. Ephrayim says:

    I’m sorry but I feel the apologetics in this post are glaring and not very comforting for the many that see through them. If women are excluded from giving testimony because some women can be exploited if they had to give testimony, explain why women are not allowed and not believed if they volunteer to testify? The concept of יוהרה occurs many times in rabbinic literature for many practices which are not required, but never does it have the meaning you claim. I think you are over-reading the Aruch HaShulchan and all that he means to say is that since it is a mitzvah that is done everyday people we more likely notice and there is therefore more יוהרה.

    The question you seem to implicitly grapple with is how halacha can legislate that others protest my pretentious aggrandizement. In the age of autonomy this seems like a fair question– it’s my choice to act that way if I want to isn’t it? There are a few answers that can be offered to this question, but one answer we need to consider is that halacha does not believe in autonomy, especially when it comes to women over whom we can more easily exert control.

    • atonholzer says:

      Reb Ephrayim, I suspect that for those who firmly believe that Jewish tradition shared the same socio-cultural assumptions as general society, any approach that avoids this conclusion, no matter how reasonable, will be deemed apologetics. I have met many whose minds are made up in this regard, and I have no illusion of changing anyone’s deeply held beliefs.

      As far as your specific contentions, as was explained, there is simply no category of voluntary Eidus in Jewish law. Why this is so is an interesting question that deserves a separate discussion, but is not relevant to women’s issues.

      יוהרא appears in Bavli in several contexts, all of them dealing with the adoption of optional practices that are meant to be limited to Torah scholars, and I think my understanding of the concept is absolutely compatible with each. I can’t vouch for the various ways in which the concept plays out among different Rishonim, but I don’t see why you would say “never does it have the meaning” that I claim.

      I think my reading of the Aruch Hashulchan is actually the most plausible. There is no trace of evidence for your suggestion of degrees of Yuhara, that are diminished with regard to Shofar and Lulav and more pronounced with regard to daily observances. It is difficult to see how folks wouldn’t notice when the shul swells with women, young and old, for Teki’as Shofar. Rather, as the AH makes clear, Yuhara rises and falls on whether the practice is a daily one.

      The question you mention is an important one, though not the main point of the essay. I think that the question of personal autonomy in Judaism is a complex one, but not the focus here. Although if the matter was simply about Rabbinic assertion of authority and control, it seems strange that Judaism would otherwise allow unfettered access to all other Mitzvos Aseh SheHaZ’man Grama, even public ones.

  2. AJ says:

    2 related Comments:

    (1) In your second to last paragraph: “Chief among them: if women are out in the workforce performing the same jobs and hours as men, who raises the kids? It is insufficient to punt this task over entirely to the men, because this just recreates the same “oppressive hierarchy” in reverse. Logically, if feminism concedes that child rearing is necessary to the survival of human society, and accepts that it is not possible to structure an economy such that all occupations are mommy-friendly (allowing for long absences, unpredictable schedules and part-time hours), it will have to accept that at least some women will choose mothering as their calling”

    While shifting the whole parenting responsibilities for all families would certainly be oppression-in-reverse, that does not preclude the possibility for some families to be structured as such — (e.g. the dad could work in a “mommy-friendly” job and the mom could work in a harder one. And while some women will certainly still take on the traditional mother responsibilities, in some families it will be the father (even if a higher percentage of the times women will take it),

    (2) If we are making a distinction based on the fear of stigmatization of motherhood due to the secondary effects of requiring extra commandments (as certain “permissions” will soon be socially commanded), I wonder how that applies to the Rabbi/Maharat debate — specifically, in that not all men are Rabbis, and permitting Maharats would not imply that all women should become Maharats….

    • atonholzer says:

      Dear AJ,

      I agree with point 1. The approach I am suggesting avoids a Halakhic prescription of gender roles.

      With regard to point 2, the Rabba/Maharat debate is distinct, as a specific Halakhic category is not obviously implicated by bestowal of the title itself. (The applicability of the issue of Serarah, if it is a factor, relates to the manner in which the title is used.)

      If we indeed extrapolate a Halakhic value of refraining from stigmatizing motherhood, then when one is devising a degree or title for women, it is important to assess whether attainment of the title would be set as an ideal for all Jewish women, or if it is simply a professional designation (e.g., MD, JD, Psy.D, etc.) for one among many valid career choices. The title Yoetzet certainly seems to fall into the latter category.

      For men, Semicha and attainment of the “Rabbi” title has in some circles been set as the crowning achievement for all who partake of Yeshiva studies, which for many Orthodox subgroups ideally encompasses all men. From the perspective explored in this article, the degree to which a feminine clergy title is anticipated to assume the (ideal) societal status of its male counterpart would establish its propriety or impropriety.

      • AJ says:

        I like the distinction made in point 2 – and I think it the question about the attainment of the title is actually a larger issue and question in the Modern Orthodox community, distinct from specifically-gender issues.

        However to clarify, by “Rabbi/Maharat debate”, I meant “women in educational/pastoral/Halakhic-decisor leadership roles within synagogues/communities”, and did not mean to focus on specific titles granted. Sorry for the lack-of-clarity

  3. Ephrayim says:

    “there is simply no category of voluntary Eidus in Jewish law”

    How does this answer my question? If women were believed then such a category would exist. To be honest R. Shlomo Fischer (Beit Yishai 106) does link the chiyuv to the ne’emanut. But this is besides the point because not every eidut is bein adam lichveiro. For example, women are pasul for eidut hachodesh. But as far as I know there is no chiyuv to give testimony for the new moon (and despite this the laws of Shabbat may be relaxed in order to facilitate its testimony) and certainly nobody will extort you if you choose not to. A Kohen Gadol is kosher for eidut hachodesh despite not being able to give testimony in other instances.

    As to the use of yuhara, you simply need to do a Bar Ilan search and you will see that in most instances you cannot explain it the way you claim, and even when possible it does not seem to be the likely explanation. In my search, 8 of the first 10 sources could not be explained that way. But the reason why it is so obvious that this pshat is apologetic is because you’ve made yuhara a misnomer. To say something is forbidden “because of haughtiness” but really mean that it is forbidden because you will cause others to adopt non-binding halachic practices borders on the absurd.

    I didn’t say anything about varying degrees of yuhara. I said that it will be more noticeable. But of course this is only a factor if the practice is an irregular practice. Women doing the mitzvot of the chaggim, though not required, is a common and therefore not subject to yuhara.

    I will agree with you that some have made up their mind that the Torah’s laws are sexist and will never be convinced otherwise. I also believe that the converse is true and that their are many who will never be convinced that halacha exhibits any form of sexisim. But like most things, the truth is probably somewhere in the middle. When we categorically refuse to entertain certain possibilities and conclusions we often are prone to convoluted thinking.

    • atonholzer says:

      How this answers your question: Halacha operates with a principle of לא פלוג רבנן; legislation applies to categories and is not a case-by-case affair. Once the category of women is excluded from Eidus, there are no exceptions under that rubric. In contrast, the Kohen Gadol is not excluded from Eidus, but his obligation is relaxed under certain circumstances.

      It seems clear that the paradigmatic type of Eidus is that of “Bein Adam L’Chaveiro.” There is considerable evidence that the Rishonim felt that Eidus for Kiddush HaChodesh was not actual Eidus at all. See here, for example, http://www.vbm-torah.org/archive/metho63/12lo%20tehei.rtf for a more complete discussion of this.

      Incidentally, Eidus HaChodesh is actually a poor example of testimony that is free of intimidation; given the Sadducean controversy that raged for much of the second Commonwealth regarding the lunar calendar, this particular Eidus is portrayed in the Mishnah and Gemara Rosh Hashanah as particularly subject to pressure and foul play.

      As to the use of Yuhara, I maintain that the uses that actually appear in the Talmud — as opposed to commentaries and later literature — can be understood as I suggest. Please demonstrate which Talmudic sources cannot bear my interpretation.
      As to the “absurdity” of my suggestion, I question this characterization. Haughtiness is surely an evil trait, but since when do we legislate against such behavior? The answer: when there are adverse sociological repercussions to such behavior.

      As to your argument about women’s practice of Chagim-associated Mitzvos as being common, thus exempt from Yuhara: if I understand it correctly, this reasoning runs afoul of the logical fallacy “begging the question.” If women’s wearing Tefillin was common, it would likewise be exempt from Yuhara, by your logic. Conversely, if hearing Shofar was deemed Yuhara, perhaps women would not do so.

      There is an old saying: “If you have a hammer, everything is a nail.” One critique of higher Biblical Criticism was a lessened ability of Bible scholars to appreciate the nuance and literary complexity of the Bible text because any apparent discrepancy was attributed to multiple authorship. Similarly with regard to women’s issues; I fear that a belief in Rabbinic sexism can foster an intellectual laziness that leads many to attribute any gender difference in Jewish tradition to androcentrism.

      • Ephrayim says:

        At last the debate has boiled down to uncertain arguments. Yes, לא פלוג רבנן is a Talmudic concept found in many places but there are no clear cut rules when this is applied and when it is not. I could make a case that it should not apply to eidut of issur since that is a category onto itself. Certainly if Chazal were advocating a position of gender equality, as you argue, they should have found a way to split the types of testimony so that women would be kosher for at least certain things. Instead they disqualified them from all things that require eidut, ostensibly leaving the impression that women are not qualified because of their inherit incompetency.

        Your quibbles with eidut hachodesh are not really addressing the issue I raised because there are other issues of issur for which they are not believed. Even regarding those issues of issur on which they are relied upon (those on which we say עד אחד נעמן באסורין) Tosafot (Gittin 3b) has a hard time understating why, resorting to a gezeirat hakatuv of וספרה לה, which means the svara chitzona is that without it, and indeed for everything else besides issues of עד אחד נעמן באסורין, they are not to be relied upon. Positing that eidut hachodesh is not a real eidut only makes the question stronger because it would not be subject to your invented לא פלוג רבנן. I’m not sure what intimidation you are referring to. Sadducees tried to manipulate the process to align it with their own calendar calculations and in response the Pharisaic beit din intimidated the witnesses with all types of questions; but how does this have to do with the intimidation of extortion that you referred to?

        “Haughtiness is surely an evil trait, but since when do we legislate against such behavior?”
        Like I said in my first comment, this is the question that you are grappling with. Your answer is only one of many possible answers.

        “If women’s wearing Tefillin was common, it would likewise be exempt from Yuhara, by your logic. Conversely, if hearing Shofar was deemed Yuhara, perhaps women would not do so.”
        Correct. I see no issue with saying that.

        “I fear that a belief in Rabbinic sexism can foster an intellectual laziness that leads many to attribute any gender difference in Jewish tradition to androcentrism.”

        I very much agree with this point. As a matter of public policy we should never say that anything contained in Chazal smacks of sexism. But on the individual level it is still quite a conundrum for me. I acknowledge the effects of even agreeing to one Biblical criticism or subverting something in Chazal, but I am not sure that denying such criticism on principle is the healthiest thing to do. This is very complicated issue and this is not really the form to discuss it.

        • atonholzer says:

          I am not clear as to why these arguments are uncertain. The conceptual approach to Torah study has been quite successful in reducing a great many (dare I say nearly all?) areas of Halachic discourse to the interplay of formal categories, which are bounded by לא פלוג רבנן, or its corollary אם כן נתת דבריך לשיעורין. I don’t see why we ought to muddy the waters in this regard.

          The distinction between the formal category of Eidus and the non-Eidus entity known as עד אחד נאמן באיסורים works quite well with my suggested approach. Eidus is a formal category that excludes women, children and a host of others, categorically. This need not relate in any way to any sort of “inherent incompetency” on the part of women, just as the exclusion of material evidence from admissibility under the formal rules of conventional Jewish criminal law does not mean that such evidence is not compelling.

          On the contrary, in situations of dire need, the Talmud finds “back doors” for women’s testimony that sidestep the formal Eidus category; this itself puts the lie to the assertion of Rabbinic assumptions of inherent incompetency.

          I am not sure to what you refer when you state “I could make a case that it should not apply to eidut of issur since that is a category onto itself.” In Issur, ritual law, formal testimony is not required. The exceptions are circumstances in which a matter which is interpersonal in nature — and thus governed by the categories of civil law, which *does* require formal testimony (e.g., marriage and divorce) — has ramifications in ritual law.

          You are right that Eidus HaChodesh is a red herring. Nonetheless, just to finish the thought — the Mishnah and Tosefta Rosh Hashanah record stories of suborned perjury and sabotage of the signals, and great lengths to which the Rabbis went to encourage witnesses to come forward. I agree that there is no direct Rabbinic textual support for the possibility of sectarian intimidation of witnesses. Nonetheless, in the context of other Rabbinic and extra-Rabbinic accounts of bloodshed between Pharisees and sectarians over fine details of religious practice, it is not difficult to imagine that rendering such testimony may have involved a degree of risk.

          As to your last point: Intellectual honesty does require us to consider, and grapple with, every reasonable argument and possibility with regard to the philosophy of Halacha and its development. That such deliberations impact on the Halachic process is not clear; the greatest Halachists have shown that sometimes the meaning that a text can bear is more important than the original authorial intent. Still and all, chronological snobbery is alive and well in contemporary thinking, and intellectual honesty does not obligate us to wear the male chauvinist shoe when it does not clearly fit.


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