Tuesday, January 26th, 2021

Can Women Receive a Heter Hora’ah? Chukim, Mishpatim, and Womanhood (Part 2) by Aryeh Klapper

March 17, 2010 by  
Filed under New Posts

In my initial posting on the subject of women’s ordination, I made a series of general theoretical points, which I elaborate on here as necessary context for the specific arguments I’ll be making in this post:

a)      Conventional Orthodox theology divides the Taryag Mitzvot into chukim and mishpatim, understood in accordance with Rashi as respectively mitzvot that have a humanly intelligible purpose and mitzvot that don’t.  I noted that rishonim of the Spanish philosophic tradition among many others reject this approach, but the conventional understanding suffices here.

b)      These categories apply not only to complete mitzvoth, but also to details of mitzvoth, and not only to pesukim per se, but also to laws derived by Midrash Halakhah.  Thus Parah Adumah can be the quintessential chok, and yet one position in Mishnah Parah 3:7 can provide a rationale for the rule that only one cow may be brought out at a time.  Similarly, the symbolism of tzitzit may be evident, and yet leave the reason for the exclusion of rounded-corner garments a mystery.

c)      Mitzvot and details can shift categories over time, as past rationales fail to adequately explain new scientific data or Jewish experience.

d)     Mitzvot that are regarded as mishpatim will tend to expand over time, as the letter of the law is extended to the limit of its spirit, and each new expansion serves as reinforcing evidence for the truth of that spirit; but mitzvoth that are regarded as chukim will stagnate, as poskim will not have the confidence to extend them beyond the strict letter of the law.

I suggested that the disagreement between by friends Rabbi Rothstein and Rabbi Helfgot might be understood in that light, namely that as both of them agree that no specific halakhah covers the question of whether women can be granted semikhah, the question then becomes whether all previous restrictions on women’s roles should be treated as chukim, and so to speak quarantined, or whether they should be mined to see whether semikhah falls into a category of roles that women should not be allowed to assume.

Finally, I noted two aspects of the “mishpat” position in regard to the “chok” position;

a)      It must worry very much about slippery slopes, as every concession it makes to the “chok” position makes the spirit of the law less clear, and therefore less influential at the next point of conflict.

b)      It may legitimately suspect the “chok” position of deception, either of self or of others.  In other words, the “chok” position may actually be a cover for a position that substantially disagrees with current halakhah and halakhic precedent and seeks to overturn it; with the claim of “chok” serving as a stopgap only.

Can Women Receive a Heter Hora’ah?

Let us turn now to the concrete question of whether women can receive a heter hora’ah and serve as the religious leaders and halakhic authorities for a community.

            It seems to me that it would be disingenuous to deny that many of those who support women’s ordination hope and expect over time that at least some of the other sex-based distinctions in current halakhah will be overturned.  That is, the humble “chok” position – that we accept halakhah completely as is, but admit our failure to understand it in this area and therefore seek to limit its reach –  is often not a psychologically or politically stable position.

            However, I suggest that it is also deeply unconvincing to claim that any coherent traditional rationale to deny women semikhah can be constructed out of past halakhah in conjunction with current practice, in either the Modern Orthodox or the Charedi communities.  To be specific:

a)  Some seek to apply the prohibition against “serarah” to prohibit women from assuming that role.  But even if we believe (as I do) that Rambam is far from alone in extending that prohibition from monarchy to “all appointments in Israel”, it seems implausible  to assert that the Modern Orthodox community paskens that way.  We have followed the Israeli Religious Zionist community’s halakhic authorities in endorsing Golda Meir as Prime Minister of Israel, and the position of assistant rabbi of a suburban shul (or for that matter Board President) seems much less akin to “malkhut” than Prime Minister?  Many specific arguments permitting the premiership can be found in Rav Gershuni’s wonderful Mishpat HaMelukhah, and most of those apply to the rabbinate with equal force, but I think the reductio ad absurdum suffices.

            One might suggest that the prohibition applies specifically to positions of religious leadership.  But I can find no basis for this suggestion in Rambam or any other rishon, and while technical solutions for specific activities can be found to explain why D’vorah and other exceptional women could lead Jewish communities with rabbinic approval, it is hard to find any such solutions other than the suggestion in Tosafot that D’vorah acted “al pi hadibbur” (i.e., her case is a chok) that can be reconciled with this suggestion..

b)  Others seek to apply various conceptions found in past halakhah of women as flighty, non-detail-oriented, or less rational than men to explain their specific disqualification of women from psak halakah.  But these same men, in times of crisis, entrust their wives and children if not themselves to female oncologists, therapists, pediatricians, emergency room physicians, and the like; receive advice from female lawyers and appear before female judges without prejudice; and so on and so forth.  These claims strike me as either deeply disingenuous or else evidence of deep internal disjunction, and I suspect that such claims would be taken as insulting by even the most traditionally observant women in Modern Orthodoxy, and by most Charedi women. 

c)  Finally, some argue that the role of rabbi is so public that it is simply unsuited for women, on the ground “kol kevudah bat melekh penimah”.  But here again, it is hard to argue that the female professionals who now populate every segment of at least non-chassidic Orthodoxy – who manage academic departments and businesses, appear in court, and make critical major presentations in every field – occupy a less public role than rabbis.  Indeed, in this regard I suspect it would be instructive to cull the schedules of Chabad shluchot and charedi rebbetzins for a given week in the US to see how many of them give public lectures or appear on public panels each week.

            Accordingly, it seems to me fair to say that any non-formal rationale for banning women rabbis must either be a radical break from all past rationales or else must seek to radically transform the current Orthodox community, largely by “turning back the clock”.  Short of that, it seems to me that it would be more straightforward to admit that no one currently has a religiously satisfying account of gender roles in halakhah.  The slope has long since slipped with regard to such arguments.

             To sum up thus far: I suggest that Rabbis Helfgot and Rothstein are each unrepresentative of their respective sides of the argument.  Rabbi Helfgot’s genuine willingness to accept current Halakhah as unchallengeable is rare (and indeed, he only defends, rather than endorsing, women’s ordination), and Rabbi Rothstein’s genuine belief that the rationale he offers is compatible with contemporary American Orthodox conceptions and practice may be even rarer.  Those who endorse women’s ordination are generally committed in principle to a greater egalitarianism than formal halakhah currently permits, and those who forbid women’s ordination are generally committed in principle to much greater practical restriction of women’s roles than is currently endorsed and practiced by the halakhic community.

            What then are we to do?  Perhaps less ambitiously but more importantly, where are we to draw the lines of legitimacy?  What should it mean to be Orthodox with regard to these issues?  I hope to address these issues in Part 3 of this series.

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