More Thoughts on the Halakhic Process that may or may not be Clarifying, Feminism, and a Pretty Crazy Chiddush I Have that you Shouldn’t Necessarily Trust Me On: The Musical

So, a review on my thoughts on the halakhic process, as introduction to headier topics. I may be repeating myself. I may not be. I don’t know. But it’s still a necessary introduction.
Is Judaism entirely determined by communal norms?
No, that would mean incorrect practices would always become okay, as long as enough people are fooled. If everyone would eat pork, would it become kosher? I’d venture to say probably not.  It would also make change difficult, and make arguing with the community impossible, and in fact invalidate any discussion at all about what the community is doing.

So, what other factors exist besides communal norms? I see two: Texts and Authority.

Texts are the anchor of Jewish religion. The most important thing to know about text is that it doesn’t answer questions. It’s raw material. It can be interpreted in a variety, but finite amount, of convincing ways. This is especially true when you consider that the texts of the Jewish religion, in particular the Talmud, contain a multitude of different ideas, streams of thought, and opinions, all of whom stem from the same authoritative source.
Sometimes, perhaps most of the time, text anchors communal practice. The communal practice is predicated on textual authority. In other words, we do what we do because that is what is written in the Gemara, Rishonim, and Acharonim, and those who don’t do that are in violation.
Other times, it serves as an anchor for change and/or difference in communal practice. People will go back to the sources and discover the communal practice is wrong, either because it’s not consonant with the text or not applicable to the reality, and therefore argue that the textual sources demand a change in communal practice. I have found, from my own studies, that most successful religious movements in Jewish history see themselves as a return to the the original sources, even as they change things tremendously. Most of the time, due to the multivalent nature of those original sources, they aren’t even necessarily wrong, just picking one or two texts that provide leverage for a new approach to the entire corpus. For instance, in modern times, Hilchos Niddah underwent a change in its predominant conceptualization from laws related to health and hygiene to laws to preserve and enliven family life. But, this was not a matter of there being no sources for the latter approach and the sources only containing the former. Rather, the latter approach takes a statement by Rabbi Meir that the separation engenders endearment between the couple, and uses that source as the foundation of its approach, seeing all other sources in that light.
But, for such change to actually take hold, they need to be listened to by the community, which is a tautology of sorts, but worth saying because its corollary is indeed counterintuitive: Any reading of the sources’s validity is not decided by its actual consonance with the original intent of the sources but by the community’s acceptance of the reading of those sources.
Sometimes, the reading of the sources themselves is compelling enough to be convincing of the whole community. The community does not necessarily consist of illiterate idiots, and it is able to critically evaluate whether a source indeed fits with the text.
Other times, the authority of the interpreter of the text plays a larger role in the acceptance of the interpretation of the text. Authority, by definition, means that people are willing to listen to you. So an authoritative person’s interpretation of the text has greater leeway, because of the community’s willingness to accept his interpretation and put it into practice. That authority, though, is predicated on that person’s knowledge of the text, and their ability to interpret it, meaning if they give an interpretation that is extremely unlikely, the community has the right to reject it. Furthermore, his authority is also based on his standing in the community, and his interpretations are sometimes limited by the communal norms, while other times he has to justify the community’s standards.
To complicate things even further, when that authority decides to sit down and write a book, he adds the decisions he made, affected by communal norms and other texts, to the textual corpus of Judaism.

Halakha thus has 3 components, which constantly interact with each other to produce Jewish Law.
1. Text
2. Authorities
3. Communal Practice.

Communal practice is established by text, as interpreted by authorities recognized by the community for their textual proficiency and fitting in with the community, whose interpretations are affected both by the text and communal standards, whose decisions than become part of the text that establishes communal practice. I hope that wording isn’t too confusing.

There can be multiple authorities that are accepted by multiple different communities, thus accounting for halakhic differences.

Are all interpretations of the text thus correct? Not necessarily. I can think of two ways that an interpretation can be wrong.
1. An interpretation can be rejected by all, perhaps even most members of a community, for whatever reason, and without communal acceptance it becomes invalid.
2. An interpretation can be accepted by a community, but be so rejected by other communities it makes it impossible for them to accept the other community, making it not accepted by the larger community of Orthodoxy. This is very tricky, and I’m not sure I have a good theory to account for this. I’m working on it.

At any rate, this serves as an introduction of sorts to my thoughts on Feminism.

Feminism, which we are here defining for our purposes the idea that men and women are equal and should be afforded equal opportunities, is something Orthodoxy has to come to terms with, because it is not going away, and it is reality.

So let’s be clear what we’re talking about. We’re not talking about “Yeshivish straw man” feminism, that women and men should be the same in every way, the “Oh, they’re going to demand to pee standing up” stuff. We’re not talking about the angrier radical feminists, the Jezebel commenters and Tumblr accounts. What are we talking about?

We are talking about the fact that women, comprising 51% of our population, have limited opportunities within our community. We’re talking about the fact that a woman of a similar temperament to myself, a thoughtful person, who finds themselves fascinated by Judaism and Jewish sources, who attains a good base of knowledge in the subject, who knows how to learn, knows her stuff, cannot attain a position of religious authority within the religious community without a fair bit of debate, getting called a heretic, and public calls for her to be “modest”. To make things worse, all of these attacks are based in Jewish sources, sources that say she cannot learn Torah, that her brain can’t handle it, that its better if she stayed at home and took care of the kids, that her wisdom is the spinning wheel, and though she recognizes that those sources need to be respected as authoritative, practically, she knows more Torah than most of her male peers, and she knows that those sources weren’t written by women because women weren’t given the chance to. The closest she can get to an uncontroversial position of religious authority is by marrying a man who has it, which is quite possibly infuriating to an independent person rightly proud of their own achievements. And we’re not counting having a PhD in Talmud or whatever, those are secular achievements in Jewish sources, not a recognition by the religion of religious achievement. But, if she would use her intelligence and resourcefulness in the secular world, in academia, in medicine, in business, there would be much less barriers to her success. Some do leave for a secular world which will value their achievements, and that’s a problem, one that I have seen happen to friends of mine, and that alone should spur us to action, that we’re pushing intelligent and morally sensitive people out of Orthodoxy.

But let’s deal for a second with the ones who stay, who try to live with the cognitive dissonance of being an accomplished woman in a community that devalues their accomplishments. Occasionally, they will hear of a halakhic argument that allows them to live with a little bit less of cognitive dissonance. They can maybe wear tzitzis! They can maybe wear tefillin! Maybe they can get an aliya! Maybe being a rabbi isn’t so problematic! Maybe even if they’re not rabbis, they can decide halakhic shailos under the official supervision of a rabbi! And then they hear the reaction from the Orthodox community: We can’t do that, because it might lead to feminism, it might strengthen the notion that men and women are equal and deserve equal opportunities and the right to be judged based on their actual achievements and not gender, and we can’t have that, because denying women that right is, for some reason, an ikkar emunah, that it is an absolute rule of our community that your achievements and your person can never be recognized because of your gender.  I’m not saying anything about the halakhic validity of those arguments, and I think that at least some of them do not pass muster. But let’s be less offensive and a little bit more knowledgeable about what we’re actually saying, and little bit more sensitive about what the way we say it. This is not to say that halakha should necessarily be dictated by such concerns; that’s a different discussion. But those concerns should absolutely dictate the way we discuss it, especially as long as women’s opinions are not part of the discussion, because they don’t have semicha and thus lack the religious authority to take part in these halakhic discussions. Let’s stop using “feminism” as a scare term, let’s stop thinking that every woman who advances a halakhic argument is trying to destroy the Judaism from within, and let’s stop thinking that Judaism has to deny women opportunities.

As may or may not be clear from what I have written so far, to my mind, the main issue presented by feminism is the lack of religious authority afforded to women. This issue presents itself on two fronts. Number one, and most obvious, woman’s religious accomplishments do not give her the same opportunities as a man, which is problematic. Why should two people who know the same amount of Torah, have the same personal piety, and have the same qualifications for the job be afforded different opportunities? (To say nothing of the fact that there are numerous women who are actually more qualified than the rabbis currently employed) Number two, and less obvious but more important, how can halakha discussion deny any idea of participation of 51% of the people it is binding upon? How can we make halakhic decisions, especially those that exclusively obligate women, without their input, especially considering they are now often educated enough to take part in those discussions? To me, this is the key issue, and the one that needs to be addressed before anything else is. Women need a seat at the table. Once we get them a seat, then we can discuss everything else, and the reality of women becoming more educated and more liberated becomes the reality that reacts with the halakhic texts. So how do we get them that seat? More importantly, can we get them that seat? Arguments have been advanced in favor of women rabbis, working on the assumption that the halakhic considerations against women rabbis, especially those of serarah, are largely inoperable in today’s environment. These arguments, putting aside the question of how valid they are, have been largely not accepted by the Orthodox community, a significant fact in the system I’ve been outlining. Other solutions include Yoatzot Halacha, women authorized to decide Hilchos Niddah under the aegis of a rabbi, which is a solution gaining acceptance in the community, but still has holdouts against it.

I’d like to suggest my own solution, based on a chiddush I have in the sugya of women’s hair covering, but not actually pertaining to the question of whether women should or should not cover their hair. IMPORTANT DISCLAIMER: It is probably insane. It likely has holes in it. Nobody is likely to listen to it, and I don’t mean to pasken anything for anyone. It is purely a theoretical exercise I found interesting. I’m not a rabbi, I’m just in semicha, and if you would not ask a guy in medical school to perform open heart surgery on you, you shouldn’t listen to me. Nevertheless, I present in the name of practice, getting feedback, public interest, and maybe getting people to think outside the box.

One of the main foundations of the idea that a woman needs to cover her hair is a Mishna in Ketubot (7:6):

[*] ואלו יוצאות שלא בכתובה העוברת על דת משה ויהודית ואיזו היא דת משה מאכילתו שאינו מעושר ומשמשתו נדה ולא קוצה לה חלה ונודרת ואינה מקיימת ואיזוהי דת יהודית יוצאה וראשה פרוע וטווה בשוק ומדברת עם כל אדם אבא שאול אומר אף המקללת יולדיו בפניו רבי טרפון אומר אף הקולנית ואיזו היא קולנית לכשהיא מדברת בתוך ביתה ושכניה שומעין קולה

 

A woman can lose her ketubah for violating two different things: “Dat Moshe”, which, includes, according to the Mishnah, giving her husband food that is not tithed, having sex with her husband while a niddah, not setting aside Challah, and vowing but not fulfilling her vow; And “Dat Yehudit”, which includes, going outside with her hair uncovered, spinning in the street, and speaking to everyone, and then Abba Shaul says cursing her husband’s parents, and Rabbi Tarfon says a “screamer”, woman whose voice could be heard by the neighbors (though the gemara will go on to give differing opinions as to what “screamer” means)

So, what interests me here is what exactly is Dat Yehudit, and how exactly does it differ from Dat Moshe? There seems to be a prominent conception that Dat Moshe is Halachos D’Orayta, and Dat Yehudit is Hilchos D’Rabanan, perhaps ones exclusively related to tzniut. This approach appears to be based on the gemara’s wording in its interrogation of the mishnah, asking how hair covering is Dat Yehudit when it seems to be a D’Orayta:

תלמוד בבלי מסכת כתובות דף עב עמוד א

ואיזוהי דת יהודית? יוצאה וראשה פרוע. ראשה פרוע דאורייתא היא! דכתיב: הופרע את ראש האשה, ותנא דבי רבי ישמעאל: אזהרה לבנות ישראל שלא יצאו בפרוע ראש!דאורייתא -קלתה שפיר דמי, דת יהודית – אפילו קלתה נמי אסור.

Despite this, I will contend that the difference between Dat Moshe and Dat Yehudit is not a difference between D’Orayta, mitzvos commanded from the torah, and D’Rabanan, which we’re defining, for our purposes as decrees made by Chazal whose authority stems from them and not the Torah. Furthermore, I maintain that at the very least, there is a large amount of rishonim who also did not think of the difference between the two categories as such. Instead, we are dealing with two entirely different realms of Jewish Law and Religion. Dat Moshe is our system of halacha encompassing both Hilchos D’Orayta and D’Rabanan. Dat Yehudit is a different system entirely, comprised mostly of communal norms about What Jewish Girls Do, specifically how they act and dress.

The basis of my claim is that the word that the rishonim seem to prefer to describe Dat Yehudit is not “gezeirah”, or “divrei chachamim” or any other term that would imply that these are halachot D’rabanan. Instead, they prefer to use the term “minhag,” which would seem to indicate that this a system of communal norms, not of decrees made by Chaza”l. First, Rashi:

רש”י מסכת כתובות דף עב עמוד א

דת יהודית – שנהגו בנות ישראל ואע”ג דלא כתיבא

The Shitta Mekubetzet brings down an earlier version of Rashi that further underlines this point.

מתני’ דת יהודית. דברים שאינם אסורין מן התורה אלא מנהג בנות ישראל הם לצניעותא בעלמא והיא עוברת על דת המנהג.

Again, he does not say they are gezeirot d’rabanan, rather, they are the customs of Tzniut of Jewish Girls, What Jewish Girls Do, even though they are not written. Someone who violates those laws violates “dat haminhag”, not the words of the chachamim or the like. Though it is true that the counterexample to the laws of Dat Yehudit are “assurin min hatorah”, the fact that they themselves are not given any kind of description that would seem to indicate they belong under the rubric of Issurei D’Rabanan is significant. It also is important that this holds true for most of the rishonim I have seen thus far, who use the term “minhag” rather than anything that would imply that these are hilchos d’rabanan. I have yet to find anyone who explicitly refers to Dat Yehudit as d’rabanan, and while I’m loathe to use arguments from unanimity, because there’s always one guy you haven’t found yet, the fact that this appears to hold true for a vast majority of rishonim is significant.

The Piskei Ri’az adds an important point:

פסקי ריא”ז מסכת כתובות פרק ז – המדיר

או העוברת על דת יהודית שהוא מנהג צניעות שנהגו בנות ישראל בעצמם

Like Rashi, the Piskei Ri’az views Dat Yehudit as primarily minhag-based, but makes a crucial, one-word addition. It is the minhag accepted by B’not Yisrael on themselves. It is not decreed by an external authority, it is simply the accustomed ways and standards of modesty of Jewish Girls, ie, What Jewish Girls Do.

The Meiri splits between Dat Yehudit and Dat Moshe in a way that may shed light on Rashi.

בית הבחירה למאירי מסכת כתובות דף עב עמוד א

אמר המאירי אלו יוצאות שלא בכתבה העוברת על דת משה ויהודית כלומר לא סוף דבר בזינתה תחת בעלה שאיבדה כתבתה אלא אף העוברת על דת משה ויהודית ודת משה נאמר על מצות הכתובות בתורה או הרמוזות בה ודת יהודית הוא נאמר על מנהגים הנהוגים באומה מצד צניעות להיות בנות ישראל יתירות במדת צניעות על כל שאר נשים

The Meiri’s split between Dat Moshe and Dat Yehudit has Dat Moshe comprising all that is written in the Torah and all that is hinted to in it, and Dat Yehudit comprising customs of modesty that the nation is accustomed to. It’s noteworthy that the Meiri sees Dat Moshe as comprising Torah SheBichtav plus, which indicates its not pure d’oraytas. It is possible that included within “hinted to in it” contains Hilchos D’Rabanan as well, and that may be what Rashi means by “assur from the torah”. I’m not entirely confident on this point, and if anyone can point me towards the Meiri’s thoughts on the matter of the relationship between the two, but it makes some kind of sense, especially within Rashi. At any rate, we see that the Meiri also does not call Dat Yehudit anything that would imply they are hilchos d’rabanan, and also prefers the term “minhagim” to describe it. Very interesting is his notion of what Dat Yehudit accomplishes, which is making sure that Jewish Girls are more modest than all the other women out there. This seems to convey that Dat Yehudit also has an element of a sociological marker, to serve as an identifier of Jews as opposed to non-Jews.

So far, we can say a few things about Dat Yehudit
1. It is a system of minhag, not issurei d’rabanan
2. It is the communal norms accepted upon themselves by Jewish Girls
3. It serves as a sociological marker of Jewish Identity.

I think all of these three things are present in the Rambam, (Hilchos Ishus 24:11-12)
First, his explanation of what comprises Dat Moshe:

ואלו הן הדברים שאם עשת אחד מהן עברה על דת משה: יוצאה בשוק ושער ראשה גלוי, או שנודרת או נשבעת ד ואינה מקיימת, או ששמשה מטתה והיא נדה, או שאינה קוצה להחלה, או שהאכילה את בעלה דברים אסורים ואין צריך לומר שקצים ורמשים ונבלות אלא דברים שאינן מעושרין. והיאך יודע דבר זה כגון שאמרה לו פירות אלו פלוני כהן תקנם ליועיסה זו פלוני הפריש לי חלתה ופלוני החכם טיהר לי את הכתם ואחר שאכל או בא עליה שאל אותו פלוני ואמר לא היו דברים מעולם, וכן אם הוחזקה נדה בשכנותיה ואמרה לבעלה טהורה אני ובא עליה.

A number of things to note:
The Rambam’s explanation of Dat Moshe seems to be adding in scenarios that specifically are hilchos d’rabanan. First of all, from the fact he makes a kal v’chomer with maaser as the kal indicates that it is in fact kal, which seems to point to him talking about maaser b’zman hazeh, which is d’rabanan. Secondly, in giving an example of how a wife would fool her husband about hilchos niddah, he uses the example of “x told me this ketem was tahor”, and ketamim are d’rabanan. The Rambam seems to go out of his way to express that Dat Moshe includes both D’Orayta and D’Rabanan halachos.
Additionally, he adds in “walking out with hair uncovered” to the list of laws in the category of Dat Moshe, in accordance with the conclusion of the gemara.
Now, his explanation of Dat Yehudit:

ואיזו היא דת יהודית, הוא מנהג הצניעות שנהגו בנות ישראל, ואלו הן הדברים שאם עשת אחד מהן עברה על דת יהודית: יוצאה לשוק או למבוי ה מפולש וראשה פרוע ואין עליה ורדיד ככל הנשים, אע”פ ששערה מכוסה במטפחת, או שהיתה טווה בשוק וורד וכיוצא בו כנגד פניה על פדחתה או על לחיה כדרך שעושות הגויות הפרוצות, או שטווה בשוק ומראה זרועותיה לבני אדם, או שהיתה משחקת עם הבחורים, או שהיתה תובעת התשמיש מבעלה בקול רם עד ששכנותיה שומעות אותה מדברת על עסקי תשמיש, או שהיתה מקללת אבי בעלה בפני בעלה.

Important Notes:
1. His explanation of the difference between the Dat Moshe law of walking out with your hair uncovered and the Dat Yehudit law of walking out without the right kind of hat is contained in the words ככל הנשים, ie, one is a matter of halakha, and one is a matter of communal standards of tzniut.
2. He stresses that the things forbidden by Dat Yehudit are the things that are  כדרך שעושות הגויות הפרוצות, lending credence to the notion these are partially markers of Jewish identity.
3. He refers to them as minhagim, and not as any of the terms the Rambam uses to describe halachos d’rabanan, which is very, very significant considering how carefully the Rambam uses such words.

Taking all this together, along with the fact that I have been largely unable to find any rishonim who refer to Dat Yehudit as hilchos d’rabanan (though, again, I am hesitant to offer arguments from unanimity, because there’s always one guy you overlook), I think we can reasonably state that Dat Yehudit, instead of being a term to describe Hilchos D’Rabanan, or even a certain section of hilchos d’rabanan, is a term to describe the general standards of the Jewish community when it comes to women’s actions, and particularly dress. These standards are not halachic, but they are binding. What we therefore have is a binding system of the Jewish religion, pertaining exclusively to women, which is based primarily on communal norms.

Now, taking my introduction about the different components of halakha into account, what Dat Yehudit is a system that is like halacha, minus, for the most part, texts and authorities. There are Things That Jewish Girls Do, and Ways That Jewish Girls Dress, that have no texts to be based on, and, consequently, no authorities to become experts in those texts and interpret those texts. But what we do have is a system within Jewish religion which is completely determined by women, and what the community of religious women accepts on themselves. And if we want to have female religious leaders within Judaism, one way to do that is to formalize this system, having some women be considered, by glint of their personal piety and wide respect, experts in What Jewish Girls Do, and have them write texts detailing the requirements, shaped by and shaping the communal norms of present-day Orthodoxy. As it is, I already think women should be writing and teaching tzniut to other women, as having a man get up in front of a class of women and say “here’s what people like me find sexually appealing, make sure you don’t do that” is bad on so many levels.

But allow me to be a little crazy.(WARNING: ENTERING HALAKHIC SCIENCE FICTION ZONE) Such women would have their own title to indicate their religious achievements in the area of Jewish religion uniquely their own. Perhaps their expertise in that area would give them authority in matters not formally covered by Dat Yehudit, and they’d find themselves gradually getting more questions on other areas of halakha they do actually have the expertise to pasken in. As for the texts themselves, the requirements recorded in the texts written by such women need not be predicated on worrying about male sexual impropriety, but could be predicated purely on Jewish identification, an idea which has pretty much happened with hair covering anyway. Even if they are, at any rate, time would pass, contexts would change, and the requirements recorded in these texts written by these women would gain unquestionable status, and the reasons given for why Jewish Girls wear say, three-quarter sleeves, I dunno, would shift by themselves, and the requirements would continually attain new meanings, growing further and further from their original intent and context. What would emerge is a legitimate system of Jewish law which is wholly determined by women, comprised of texts by women, and with women authorities.

I realize talking about such controversial things is dangerous, both because I could be called a heretic or a sexist, but, again, the purpose of this blog is to think out loud, and I am probably very wrong about many things. I’m trying. So, um, I hope I’m not a heretic. Or a sexist…..I was young and stupid!

This post is indebted to Joshua Skootsky, who helped me flesh out my thoughts and called me out on BS.

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