Friday, March 13, 2009

Can Women Issue Halakhic Rulings?

(This is cross-posted on my Ask the Rabbi blog.)

I was recently asked to respond to the question of whether a woman who is knowledgeable in Torah Law may issue rulings on matters of halakha. My answer, in brief, is contained in this post; I apologize in advance for my uncharacteristic use of Hebrew letters and terminology, I have not had a chance to translate the relevant "lingo" from the original document into English just yet.

(Incidentally, you can read the entire paper, complete with some interesting and even surprising footnotes, here.)

There is a paucity of classical source material addressing the question of whether qualified women can render halakhic decisions, i.e., give הוראה. However, what material does exist is uniformly and clearly in support of the permissibility of women being halakhic decisors (מורות הוראה). For example, the ספר החינוך in פרשת שמיני מצוה קנ"ח writes that the prohibition of giving הוראה while intoxicated applies both to men and to women who are qualified to rule on halakhic issues.

Furthermore, the ברכי יוסף, written by the renowned sage מרן החיד"א and cited approvingly in פתחי תשובה חו"מ סימן ז' ס"ק ה states unequivocally that, although women are not permitted to serve as judges on a rabbinical court, a knowledgeable woman may issue decisions on matters of halakha. Former Sephardic Chief Rabbi of Israel, Harav Eliyahu Bakshi-Doron, concurs with this view in his responsa שו"ת בנין אב as did one of his most illustrious predecessors, Harav Ben-Zion Meir Hai Uziel in both משפטי עוזיאל and פסקי עוזיאל.

The פתחי תשובה points out that this distinction is, in principle, made by the ספר החינוך as well, inasmuch as he states that women are forbidden from serving as judges but nevertheless allows for the possibility of legitimate מורות הוראה who would be required to observe the mitzvah prohibiting them from engaging in halakhic decision-making while under the influence of alcohol.

As the פ"ת mentions, this approach is also supported by תוספות in מסכת נדה דף נ, who argue that, even if Devorah was not permitted to serve as the official judge of the Jewish people, she must at least have instructed the judges in the proper interpretation of the law - i.e., been מורה הוראה to them.

This dichotomy, however, appears problematic. Why should a woman be entitled to render halakhic decisions yet be barred from serving as a judge? In order to understand the answer, we must clarify the fundamental difference between the concepts of הוראה and פסיקת דין and the legal mechanisms by which they operate.

The literal meaning of הוראה is teaching or instruction; indeed, the words הוראה and תורה share the same Hebrew root. Specifically,הוראה refers to the application of the abstract principles of Torah Law to the concrete particulars of life. In essence, then, הוראה is nothing more than a by-product of intensive Torah study. When one develops a thorough and comprehensive theoretical knowledge of an area of Jewish law, and applies that knowledge to the practical exigencies of life, one is basically engaging in הוראה.

This is not to say that all Torah study is created equal. On the contrary, the validity of any הוראה will be a function of the quality of the research and analysis that produced it. Not all explanations are correct, not all interpretations are valid, and not all conclusions are warranted. Even the most distinguished and scholarly Yeshiva students, Rabbis, men and women are subject to occasional error, flaws in reasoning, forgetfulness and bias. As the רמ"א explains in ש"ע יו"ד in סימן רמ"ב סעיף י"ד, both halakha and tradition dictate that one may not rely upon - or encourage others to rely upon - the conclusions that emerge from one’s personal analysis of the Law until one has received explicit permission to do so from one’s teacher. This restriction, similar to secular ‘quality control’ laws that require doctors, lawyers, etc., to receive an accredited education and be licensed before practicing in their fields, prevents students who are insufficiently prepared from adhering to or disseminating their own incorrect rulings prematurely.

Be that as it may, the fact remains that the goal of all learning is to bring the practical implications of Torah to bear upon our lives; therefore, we can safely assert - at least in theory - that every well-executed, sincere and genuine act of תלמוד תורה has the potential to culminate in some kind of הוראה, whether it is a הוראה to oneself or a הוראה to someone else. The essential point here is that the core of any given act of הוראה is the process of Torah study upon which it is based and from which it emerges, and that this process is equally accessible to competent men and to competent women.

Judgment, or פסיקת דין , on the other hand, derives its validity not from the process that produces it but from the stature of the one who issues it. Judgment is, by its very nature, an act of governance (שררה) and an exercise of personal authoritative leadership rather than the outgrowth of a specific act of תלמוד תורה. In this sense, serving as a judge is more akin to receiving the original form of semikha that was conferred from Rabbi to student from the days of Moshe Rabbenu until persecutions led to its discontinuation during the Talmudic period. The quality of being a מוסמך or a בעל המסורה inheres in the recipient, endowing his person with unique legal authority (שררה) and his decisions with legitimacy and binding force.

In the framework of פסיקת דין, then, the legal decisions of the individual are manifestations of the special status with which he is vested and take effect by virtue of that status alone. Since today we lack the authentic Sinaitic ordination, a lone judge cannot arrogate to himself the level of authority once possessed by a יחיד מומחה המוסמך; it is instead granted to the collective of three judges who convene a בית דין. Once the בית דין rules on a case, this ruling cannot be reversed unless a manifest error in the proceedings is discovered. This is because the binding nature of the decision is intrinsic, enshrined by the authority of the team of judges and not contingent upon any other factor.3

Granting a woman this form of political authority, or שררה, is what most Rishonim find objectionable about the prospect of allowing women to serve as judges. Prohibiting women from holding positions of שררה ensures that they remain free from communal obligation so that they can dedicate themselves to maintaining the integrity and sanctity of the Jewish family which was placed in their care by הקב"ה.

We can now understand why women may indeed be מורות הוראה but may not, according to most opinions, hold official positions of שררה such as judgeships. Women are capable of engaging in the study of Torah at high levels and their theories and conclusions deserve to be accorded the same respect and weight as those of their male counterparts. As long as their process of Torah study is legitimate, the הוראות that organically emerge from it are, by definition, legitimate as well. The validity or binding force of a given halakhic conclusion is not contingent upon the political station of its proponent but upon the research and analysis that generated it; espousing such a conclusion neither necessitates nor entails שררה.

In summary, the act of הוראה is essentially an act of learning or teaching and is not a manifestation of an individual’s political authority or שררה at all. Therefore, a competent, knowledgeable and God fearing woman who receives the requisite permission from her teachers is entitled to be מורה הוראה.


Anonymous said...

clear post. But why do you write this:

"Prohibiting women from holding positions of שררה ensures that they remain free from communal obligation so that they can dedicate themselves to maintaining the integrity and sanctity of the Jewish family which was placed in their care by הקב"ה."

Are there any sources that connect serara to care of the family? I'd assume not, since the issur also applies to gerim. This reasoning implies that women without family or with grown family are included only because of the general halacha, but in principle should be excluded from the prohibition. In general,women are free not to marry, so for issues where they are not metzuve but permitted, they have freedom to do or not to do and this explanation- that they are freed from obligation, so that they can prioitize family - seems to me to work. I don't see how it can work with issurim (i.e. something more than saying they are not eligible to be motzi others or in a group like minyan which goes hand in hand with eino metzuve)since that would be a ban on doing something that would interfere with something (i.e. marriage) that they don't have to do in the first place. This requires suggesting that the torah is encouraging them to marry and barring things so that they do rather than simply freeing them so they have the option. Given this way that serara is different than other issues with women and coupled with the fact that geirim are excluded from serara too, I don't see why this explanation is likely.

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