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.