Date: Thu, 31 Jan 2002 00:21:18 -0500 (EST) From: "Jonathan Baker" Subject: Isha Psulah Ladun Josh Backon and I, on another forum (SCJM), have been having an argument, and we thought we'd pass it along to the chevre and see what comes up. Pardon the length: Josh wanted to be sure that his sources were cited, as well as my counterarguments. -- It all started with some guy grousing about Haviva Ner-David's quest to become a rabbi. S-- challenged him to prove that women can't be rabbis. Josh chimed in with >See: Yoreh Deah 242:14 in Shach, Birkei Yosef and Pitchei Tshuva for >definition of semicha today. Also: Bet Yosef TUR Choshen Mishpat 25. >As for women getting semicha: see Choshen Mishpat 7:7. They are ineligible >(isha pesula la'dun) [see also Rambam Hilchot Melachim in the first perek] >See also Rishonim on the gemara in Yevamot 45b. I countered with Pitchei Teshuva CM 7 s"k 5, which says micol maqom isha chachamah yecholah lehorot horaah (which is the definition of modern smicha, according to the aforementioned SA YD 242:14 in Rema), based on the Tosfos on Devorah. Josh responded: >The Tosfot there is "al pi ha'dibbur haya"; thus you can NOT use this >incident to understand that women can be rabbis. So we started trying to figure out exactly what Tosfos says. There are about half a dozen relevant Tosfos on Devorah and women as dayanot. S-- brought the Minchat Chinuch end of positive mitzva 83, which says that women can be judges in a zabla if the litigants accept them, and registered his annoyance with Josh for listing a bunch of sources that don't seem particularly relevant to the issue at hand. Josh then tried to shlug up the P.T., claiming that it was addressed to a particular woman, to judge on a one-shot basis. I said that micol maqom looked like a general heter, especially as a comment on a code. Josh again: >To follow up my prior posting: see Shulchan Aruch YOREH DEAH 127:3 >re: "ne'emanut" (reliability?) for "issur v'heter" (e.g. kashrut). >Look in the Rema, Shach {EIN ha'nashim ne'emanot b'issur d'oraita]. >See also: Kreiti s"k 19; Yad Efraim YD 94:2; Nachalat Tzvi 42:3. >Also: Tosfot Pesachim 4b d"h heimnuhu; ROSH Pesachim Perek Alef Siman 3; >(and RAN there). >Not only can they NOT get Yoreh Yoreh smicha; they don't even have > ne'emanut on issurei d'oraita! To which I responded, without looking up the sources, that that's ridiculous, or else none of us could eat anything our wives/mothers cooked, or could have relations with our wives based on their eidut about having gone to the mikva. Basically, he had proven the sheretz tahor -- nice theory, but runs up against the wall of halachic reality. By this time, we're getting pretty frustrated at the other's opacity. Micha, in the meantime, tried a linguistic argument about Devorah from shofeit vs. dayan, saying that shofeit meant war-leader while dayan meant judge. I countered that this was post hoc ergo propter hoc, because dayan qua judge doesn't show up until I Sam 24:16, so you can't argue that because dayan existed later, it also existed earlier. We stalemated on this one, I think, esp. since the Targum on Devorah translates shofeit as dayna for her, while earlier in the book it translates shofeit as nagid. [Micha's 2 cents: I said that shofeit could be used here strictly in the sense of war-leader. Not that it's the primary meaning, but in a discussion of the era of the Shofetim an obvious secondary meaning could be intended. As she (among other shofetim) was not eim beis din (see the Rambam's list), it would seem that the word "shofeit" in this discussion should not be given the naive usage. [I also suggested a different idea: perhaps a woman can't be a rav, but could be a soferes in the sense of "divrei soferim" -- a navi + rav. In fact, this could be the intent of the rishonim rather than her rule being a nevi'ah's hora'as sha'ah. -mi] Josh then tried to argue from Hil. Melachim 1:5 melech velo malka that the ban on women having serarah barred them from being rabbis/ judges. I countered that not everyone reads melech velo malka broadly; e.g. RJD Bleich's article on Women on Synagogue Boards -- he reads it broadly, but cites others who don't, and there are plenty of shuls with women on the board. Back on the issue of Devorah as judge, Josh: >Look in the gemara in Megillah 14a, in Rashi there and in the GRA on >Seder Olam.... [later] that gemara lists the shoftim. In that Gemara -- nothing useful, a list of neviot, not dayanim/shoftim. Nobody argues that Devorah wasn't a neviah. -- >See also the Tosfot in Yevamot 45b. This is where it starts to get interesting. Here are a list of Tosfos: B"K 15a s.v. Asher; Yeb 45b s.v. Mi; Nidah 50a s.v. Col; Gittin 88b s.v. Velo; Shevuot 29b s.v. Shevuot; One after another, Josh would raise "See the gemara in X place", and each time I would look and tell him either "that's talking about eidut, not dayanut" or he would say "see where it says isha psula ladun", and I would say, "that's Tosfos saying it, not the gemara." Tosfos based his opinion on a gemara in the Yerushalmi Yoma 32a, which does indeed say that a woman cannot judge, based on a gezera shava between "shnei anashim" and another "shnei." One might think that's dispositive. But, if one reads on in the Yerushalmi, the gemara shlugs up the gezera shava, hooking the other side to another halacha elsewhere, and leaving this verse to prove (as in Shevuot 30a) that the witnesses and/or the litigants (each pair) must both be standing up in court. So Tosfos bases his ruling on a REJECTED DRASHA. Not a strong reed on which to balance a major halacha. The final straw that convinced Josh that there's something strange going on here, was the Tosfos in Shevuot 29b Here's my post: Me Josh :>Let's start from scratch: check the Tosfot in Shevuot 29b d"h "shevuot :Yes, let's. That tosfos brings the alleged inference from the verse :of "shnei anashim" which comes from the next page (30a), but that's :talking about eidut, and the oath of eidut -- since women can't be :witnesses, they don't take the oath of witnesses. :>ha'edut". Only one who is a kosher witness can be a judge; since a woman :>isn't a kosher witness, she can't be a judge. The Tosfot there brings :>down all the relevant sources. :So he then tries to infer it from eidut, and then brings that Yerushalmi :again as support for his inference GLOSSING OVER THE FACT THAT THE GEMARA :IN YOMA REJECTS THE GEZERA SHAVA THAT HE NEEDS TO MAKE THE PROOF! :Then he brings Kiddushin 35a, which seems to disprove him, by saying :"all are kosher to judge", but he comes back with Gittin 88b, which :disqualifies batei din of nonjews and/or laymen, and then waves his :hands a bit as if to say that this should also exclude women, but has :to admit that women and men can both be litigants. :Another weak Tosfos, that depends on handwaving. :The closest he came was the citation of Niddah 49b/50a, which doesn't make :for a valid inference (All witnesses can judge; No woman can witness; :No woman can judge), except that he doesn't make the inference explicitly. :Rather, he makes the inference, and then bases it on the weak Yerushalmi :in Yoma, thereby shooting himself in the foot. :In Aristotelian terms: :All W are J, No I is W --> No I is J; :where I: isha -- woman W: kosher Witness J: kosher Judge :which doesn't rule out the possibility of the statement "Some I are J, :even if they aren't W" That would be, in First Figure, an A E E form, :and there is no valid mood that fits those requirements. (P.V. Spade, :Thoughts Words and Things, www.pvspade.com) :So the inference doesn't work, and the support from Yoma is weak at :best. And then he bases all the other Tosfos (B"K, Niddah, etc.) :on this chain of "logic." -- :>In Perek haCholetz 45b "isha eina re'uyah ladun". :That's in TOSFOS for the third or fourth time, not in the GEMARA. :>There seems to be a Yerushalmi in the 3rd Perek in Sanhedrin :>and one in Yoma. :I was referring to the one in Yoma 32a, which, while it does say what :Tosfos brings, it also REJECTS that gezera shava. So how can Tosfos :use it as a binding Amoraic precedent? :>The Tosfot in Shevuot 20b d"h "shevuat ha'edut" quotes a gemara in :>Kiddushin 35a (which I haven't checked up). :Which again I don't see as relevant to this issue. That page talks :about mitzvot asei shehazman grama, and whether or not women are :equally bound with men as to civil law -- which they are. -- My later observation on the whole thread: :I must say I feel odd to be arguing this side of the question of women :as judges. I've always taken for granted the Rav's statement that :women shouldn't feel bad that they can't be witnesses or judges, since :neither can the kohen gadol or the king. But now that I'm looking into :it, it's not comparable at all, since the kohen gadol and the king are :exempted from witnessing/judging by the Mishna, while women are exempted :from witnessing by the Gemara (and possibly the Mishna), and exempted :from judging only by Tosfos, and only by very weak logic in Tosfos. :Which leads me to wonder -- what in Tosfos' milieu caused him to rule :against counting women in communal roles? He's also the first to rule :against counting women in a minyan for prayer (not counting in a minyan :for benching comes from the mishna/gemara). After this, Josh acknowledged my point -- that apparently Tosfos is the first source to rule that women cannot be judges, and does so in a very weak way. He suggested that we pass the issue along to Avodah: is there an earlier source than Tosfos that passuls women from dayanut (NOT eidut; that they are pasul l'eidut is well-established)? Is there a stronger proof than rejected gemaras, invalid inferences, and handwaving? Josh's commission: >Ask if there is a DIRECT source (isha pesula ladun) BEFORE Tosfot. And ask >if the Mei Menuchot or Shita Mikubetzet (or Shaagat Aryeh or Pnei >Yehoshua) shver these Tosfot!! He also notes that AhS derives the psul ladun from serarah, rather than from eidut, which is at least a plausible derivation, if not really sup- ported directly from any of the sources. I note that Rambam in Hil. Sanhedrin 2:1 where he lays out the requirements for judges does not explicitly bar women from judging. He does say at one point "anashim chachamim venevonim", but even that is marked as his chiddush by the Ridvaz, who quotes the gemara as "baalei chochma..." -- i.e., genderless. So we throw it to you: is isha psula ladun Tosfos' chidush, or is there a real source/drasha/mesorah from which he gets it? -- jon baker jjbaker@panix.com -- ===== Date: Thu, 31 Jan 2002 12:50:12 -0500 From: "Gil Student" Subject: Re: Isha Psulah Ladun Jonathan Baker wrote: >Tosfos based his opinion on a gemara in the Yerushalmi Yoma 32a... >But, if one reads on in the Yerushalmi, the gemara shlugs up the gezera >shava, hooking the other side to another halacha elsewhere, and leaving >this verse to prove (as in Shevuot 30a) that the witnesses and/or the >litigants (each pair) must both be standing up in court. So Tosfos >bases his ruling on a REJECTED DRASHA. Not a strong reed on which to >balance a major halacha. I'm not so sure the Yerushalmi rejected the drasha. It looks to me like the Yerushalmi darshens the word "ve'amdu" to prove that the witnesses/litigants must be standing. The gezera shava seems to stand. Admittedly, I have only looked at the text and not mefarshim. Perhaps they understood it differently. Also, FWIW, IIRC R. Saul Lieberman used the rationale of isha pesulah ladun in his teshuvah on ordaining women. He said that while semicha is not dayanus, for it to have any serious meaning we should treat it with the same weight. Or something like that. The teshuvah was published by UTJ in Tomeich Kahalachah vol. 1. They included a photocopy of RSL's handwritten teshuvah so no one could deny that he wrote it. It can be found in the YU library. Gil Student ===== Date: Thu, 31 Jan 2002 13:41:33 -0500 (EST) From: "Jonathan Baker" Subject: Isha Psulah Ladun I had written: > :The closest he came was the citation of Niddah 49b/50a, which doesn't make > :for a valid inference (All witnesses can judge; No woman can witness; > :No woman can judge), except that he doesn't make the inference explicitly. > :Rather, he makes the inference, and then bases it on the weak Yerushalmi > :in Yoma, thereby shooting himself in the foot. > :In Aristotelian terms: > :All W are J, No I is W --> No I is J; > :where I: isha -- woman W: kosher Witness J: kosher Judge WHOOPS! I misread the mishnah, read it backwards. That should read All J are W, (which can also be read as "All -W are -J") so All I is -W + All -W are -J -> ALL I are -J. So the inference works. Which leaves me wondering: why bring in the Yerushalmi? Is it just an asmachta? Do we learn from klalim (I thought we didn't) in the mishna? Where does the clal itself come from (all who are cosher to judge are cosher to witness, but some who are cosher to witness are not cosher to judge) - the Gemara doesn't say, but only addresses the issue of a suma as an example of the latter. And Why Is Tosfos The First To Make This Explicit? Is there some connection with the myth that "rashi's daughters laid tefillin" - who would have been the mothers of the Tosfos. ===== Date: Tue, 5 Feb 2002 16:29:32 +0000 From: Micha Berger Subject: Re: Isha Psulah Ladun Since that exchange on scjm, I recieved a personal email that lends support to both of my (mutual exclusive) suggestions about the role of Devorah. As the author hasn't chosen to share it with the cherah, here's the part that is relevent to my earlier post. I proposed two possibilities to scjm, as I inserted into RJJB's summary: 1- That she was a "soferet" (as in "divrei soferim") not a "rabbanit". That Tosafos were not necessarily proposing that her rule was a hora'as sha'ah, but rather that because she was a nevi'ah she is different in kind than a rav. This seems to be shitas Rashi in Avos 1:1, who considers Devorah amongst the Zeqeinim listed there. 2- That the word "shofeit" was meant for its 2ndary meaning. IOW, that she was a wartime ruler, and not necessareily a judge. The Rashba on Shevu'os (pereq 4) writes "delo shofetes mamash, elah minaheges keshofetim shashafetu es Yisrael". In any case, it's clear from the rishonim (and not "only" Tosafos) that the notion of a shofetes poses a halachic problem that needs addressing. It's not a usable precedent. Nor to I understand RJJB's line of argument that there is no source predating Tosafos. As though that gives us permision to hold against the one (group of) rishon(im) who does come out with a pesaq? Perhaps their silence is merely because no one asked the question. -mi -- Micha Berger When you come to a place of darkness, micha@aishdas.org you do not chase out the darkness with a broom. http://www.aishdas.org You light a candle. Fax: (413) 403-9905 - R' Yekusiel Halberstam of Klausenberg zt"l ===== Date: Wed, 6 Feb 2002 22:58:18 +0000 From: Micha Berger Subject: Re: Isha psulah ladun On Wed, Feb 06, 2002 at 05:29:12PM -0500, Jonathan Baker wrote: :> 1- That she was a "soferet" (as in "divrei soferim") not a :> "rabbanit". That Tosafos were not necessarily proposing that her rule :> was a hora'as sha'ah, but rather that because she was a nevi'ah she is :> different in kind than a rav. :> This seems to be shitas Rashi in Avos 1:1, who considers Devorah amongst :> the Zeqeinim listed there. : I don't see that at all. Rashi does not say she is different than any other : shofet. And if Yiftach was the final halachic authority (Yiftach bedoro : k'Moshe bedoro), then so was Devorah in the same sense - that's what I : get from that Rashi. Ein hachi nami. They all were final halachic authorities, but qua zeqeinim. I'm suggesting that the zeqeinim, being nevi'im (a feature Rashi mentions), are soferim not rabbanim. This would make Devorah an example of a soferes, not a rabbanit. Which is the peshat I'm suggesting for Tosafos: that her access to devar H' made the class she belonged to different in kind than the semichah that is closed to women. :> 2- That the word "shofeit" was meant for its 2ndary meaning. IOW, that :> she was a wartime ruler, and not necessareily a judge. :> The Rashba on Shevu'os (pereq 4) writes "delo shofetes mamash, elah :> minaheges keshofetim shashafetu es Yisrael". : What do any of these sources say to the Targum's translation of "shofetet" : as "dayna", contra the translation of "shofet" as "negid" in Perek 2? : You still haven't answered this... The burden isn't on me, but on the Rashba -- who explicitly says otherwise from the Targum. I therefore assumed some answer existed without bothering to find one. (Yet.) Note the Rashba is a Sepharadi contemporary (1235-1310ce) of the Baalei Tosafos. The pesaq was widespread by the time of its first report. -mi -- Micha Berger The mind is a wonderful organ micha@aishdas.org for justifying decisions http://www.aishdas.org the heart already reached. Fax: (413) 403-9905 ====== Date: Wed, 6 Feb 2002 20:12:48 EST From: RabbiRichWolpoe@aol.com Subject: Re: minhag and bet din In a message dated 2/5/02 3:53:39pm EST, Eli.Turkel@colorado.edu writes: > As an aside is it obvious that the present day minhag of 2 days of yomtov > outside of israel was instituted by a Sanhedrin hagadol. > Source? > The gemara in > Beitzah says just they sent from EY without any indication who > sent. Was there still a Sanhedrin in their days? > More generally does Beis Din ha'gadol require lishkat haGazit or just > many people with semicha which is probably the status of the sanhedrin > in the days of the Amoraim. Moreover the enitre Raison d'etre diappeared when a fixed calendar was instituted Tangentially, any place that was "makom hamagi'in" was not subject to YTsG. Which means sevearl things: 1) Today even in neighboring areas YTsG might not apply if shluchin could have made it on time (except of course RH itself!) 2) With today's communcations, it is pashut to say that the entire world is makom she'magi'in EVEN if we went back to kiddush hachodesh al pi r'iyah! So YTsG is truly obsolete memah nafshach - except or course RH itself which would not afford use of modern communications on YT. The ikkar reason today is Minhag Avoseinu Beyadeinu. Tangentially I have suggested in other posts that the ORIGINAL Takkanah of Hanukkah was botel at the time of the Hurban, but it was re-instituted later. It probably was Observed all along, but the era of the Mishnah came after the original Takkanah was over and before the re-confirmation of the TB in Shabbos. IOW, it is possible that the original Takkanah of YTsG WAS Sanhedric at one time but is kept in motion NOW due to a combination of Inertia and its ratification by TB stating somthing like "Minhag Avoseichem Biydeichem." Regards and Kol Tuv, RabbiRichWolpoe@aol.com ===== Date: Fri, 8 Feb 2002 00:47:38 EST From: RabbiRichWolpoe@aol.com Subject: Re: Isha Psulah Ladun In a message dated 2/5/02 3:52:33pm EST, micha@aishdas.org writes: > In any case, it's clear from the rishonim (and not "only" Tosafos) that > the notion of a shofetes poses a halachic problem that needs addressing. > It's not a usable precedent. See the AhS re: using Michal as a precdent for women wearing Tefillin... IIRC Orach Chaim Siman 37 AhS presumption: exceptions MAY be made for exceptional women Im kein the fact that Devorah was a Nvi'ah would indicate that she was bechezkas "exceptional".... Regards and Kol Tuv, RabbiRichWolpoe@aol.com ===== Date: Sun, 10 Feb 2002 20:07:14 +0000 From: Chana Luntz Subject: Re: Isha psulah ladun Micha Berger writes >:> The Rashba on Shevu'os (pereq 4) writes "delo shofetes mamash, elah >:> minaheges keshofetim shashafetu es Yisrael". > >: What do any of these sources say to the Targum's translation of "shofetet" >: as "dayna", contra the translation of "shofet" as "negid" in Perek 2? >: You still haven't answered this... >The burden isn't on me, but on the Rashba -- who explicitly says >otherwise from the Targum. I therefore assumed some answer existed >without bothering to find one. (Yet.) Again, I don't understand the problem, so maybe I have missed something. We know that a person who is posel to be a dayan (eg a karov) can be a dayan if both parties accept that person (mishna, Sanhedrin 24a) - it is one of the bases that a modern day dayan (who of course does not have smicha) is able to judge. Is a modern day dayan not a "dayan"? I also don't quite understand how we got from dayanus to rabbanus. They are distinct titles even today (Yoreh Yoreh vrs Yadin Yadin)? If anything, one of Tosphos' explanations for Devorah is that she did not function as a dayan but as a rav (she taught, rather than judged). Regards Chana -- Chana Luntz ===== Date: Tue, 12 Feb 2002 20:12:07 +0000 From: Micha Berger Subject: Re: Isha psulah ladun On Sun, Feb 10, 2002 at 08:07:14PM +0000, Chana Luntz wrote: : We know that a person who is posel to be a dayan (eg a karov) can be : a dayan if both parties accept that person (mishna, Sanhedrin 24a) - : it is one of the bases that a modern day dayan (who of course does not : have smicha) is able to judge. Is a modern day dayan not a "dayan"? Perhaps not. It's a good thing you raised this question as it forces disambiguation. The Sanhedrin is composed of dayanim. A modern day dayan is not a "dayan" in this sense of the word. Dayan in the more minimal usage is actually less than a poseiq. He is providing a one-time ruling, more like a moreh de'asra than an IM. And, if the dayan is operating by force mutual consent, it may be more because of the rules of pesharah than those of din. It is unclear which usage the Targum means when speaking of Devorah. If you assume the latter, then I would say that Chanah is right. -mi -- Micha Berger Life is complex. micha@aishdas.org Decisions are complex. http://www.aishdas.org The Torah is complex. Fax: (413) 403-9905 - R' Binyamin Hecht ===== Date: Tue, 12 Feb 2002 23:34:16 -0500 From: Arie Folger Subject: Re: Isha psulah ladun RMB wrote: > Ein hachi nami. They all were final halachic authorities, but qua > zeqeinim. I'm suggesting that the zeqeinim, being nevi'im (a feature > Rashi mentions), are soferim not rabbanim. Wadda?! I thought that zeqeinim are the rabbanim musmakhim par excellance. Besides, what exactly are soferim that they may not fall under the categories that exclude women from hora'ah? BTW, why do you think that Devorah is necessarily not a precedent? I believe that the presence of one case in massorah is a precedent. Only when the exceptional nature of an event is emphasized (a la 2 ktuvim habaim kee'had ein melamdim, or 3 ktuvim habaim kee'had ein melamdim) do we state that it is not a useful precedent. And furthermore, even if it isn't a useful precedent, we need to explain why, and anything short of 'al pi hadibut shaani will bring about a useful precedent for some (admittedly less common than rabbanit) cases. I find the argument against women rabbaniot - bizman hazeh that we lack smikhah - based on srarah most sound, and even that needs reinforcement, as the whole idea of a rav having srarah is debatable, espescially if we want to allow women to participate in government (ministers, etc.) and also considering that Rambam's broad definition of srarah (can't have a women or Druze sergeant in Tzahal, women as administrators in institutionas that involve males, or even any administrative position) is by no means accepted if current practice is any guide. Rather, we accept Rambam's definition of srarah only very partially, and wish that a rav would have real srarah that in a sense exceeds that of a government minister or at least that of a mayor, and therefore accept women in government and don't accept them in the rabbinate. I hope that my assesment above is wrong in some way or another, so please comment. Arie Folger ===== Date: Thu, 14 Feb 2002 16:56:45 +0000 From: Micha Berger Subject: Re: Isha psulah ladun On Tue, Feb 12, 2002 at 11:34:16PM -0500, Arie Folger wrote: : RMB wrote: :> Ein hachi nami. They all were final halachic authorities, but qua :> zeqeinim. I'm suggesting that the zeqeinim, being nevi'im (a feature :> Rashi mentions), are soferim not rabbanim. : Wadda?! I thought that zeqeinim are the rabbanim musmakhim par : excellance... Yes, but everything they said had the imprompreture of HQBH. Which is why divrei soferim is more than mere deRabbanan. So, all the precedent that Devorah could provide would at most be that a woman combined with a dialogue with HQBH is permitted to give hora'ah. As women today lack that ability, the precedent is unusable. In fact, I argued that this is what the Tosafos meant. Rather than the usual assumption that they were saying that she was a nevi'ah capable of a hora'as sha'ah, I am arguing that they were saying that she was a nevi'ah and therefore only setting precedent for other nevi'os. : BTW, why do you think that Devorah is necessarily not a precedent? ... Because so many rishonim squirm around explaining why she isn't. So, while I lack the zechus to understand any of their answers to the extent of being satisfied, I still must accept the maskanah they are trying to justify. -mi -- Micha Berger The mind is a wonderful organ micha@aishdas.org for justifying decisions http://www.aishdas.org the heart already reached. Fax: (413) 403-9905