Sanhedrin 055

9:
We have seen that the disqualification of women from serving as witnesses to the fact was derived by the sages from the Torah by the hermeneutic instrument of Gezerah Shavah [identical terminology], and that it would be plausible to assume that they did so because the accepted conceptualization of the social position of women in their times would not permit them to draw other conclusions: 'this must be the intention of the text', as it were. The use of a Gezerah Shavah makes the derived ruling have the same Halakhic status as the text of the Torah itself. In theory, the hermeneutic instruments are vehicles for making explicit what is deemed already implicit in the words of the Torah. This makes it very difficult for an Halakhic movement, such as is Conservative Judaism, to effect a change in this situation.

10:
One of the most difficult aspects of the attempt to find a solution to the problem is the fact that testimony to the fact is not something that is internal to the Conservative Movement alone, but has tremendous external ramifications. For instance, what validates a Ketubah [Deed of Matrimony] is not the fact that the husband delivers it to his wife: Halakhically speaking he does not even have to sign it! Nor has it anything to do with the affiliation of the officiating clergy: even a lay person can recite the Marriage Blessings and preside over what the bridge and groom do. The Ketubah is a document signed by the witnesses to the groom's offering Kiddushin to the bride and her acceptance thereof. It is the testimony of the witnesses, signed by them, that gives the Kiddushin validity. In theory, such a document should be acceptable throughout the Jewish people – provided that the witnesses signing the Ketubah are qualified to do so in the eyes of those perusing the document. The same applies with even greater stringency to the witnessing of a divorce. Thus we could arrive, in theory, at a situation in which the validity of a marriage or a divorce performed by one arm of the Jewish people would not be acceptable to another arm.

11:
However, the matter does not rest there. Even within our own Movement there is no unanimity on the matter of women's testimony. In fact, it seems to be an issue that splits the Conservative rabbinate right down the middle. When this issue was discussed at the Convention of the Rabbinical Assembly as recently as 1992, the voting was 53 for granting "Gender Equality in Halakhah" while 50 were opposed. [See "Proceedings of the Rabbinical Assembly, Volume 54, pages 316-317.] These considerations would suggest caution. On the other hand, one cannot maintain caution for ever! Sooner or later a solution will have to be found to this problem, which adumbrates so many other problems that women face in the Halakhic arena. Many suggestions have been made, and most of them show some facet or other of Takkanah. A Takkanah is a ruling voted upon and accepted as binding by an Halakhically legal body (such as a convention of rabbis or an organized congregation). The ruling stipulates how that body will conduct its affairs in a given aspect of communal life. The problem with using a Takkanah in matters such as we are discussing, is that it applies (in the absence of a Sanhedrin) only to the body adopting the Takkanah and does not answer the problem of universality. Whether men and women sit together in a synagogue is no one's business but that of those sitting there; whether a woman may read from the Torah is no one's business but that of those listening to her reading; whether a woman can be counted as part of a Minyan [quorum] is no one's business but that of those congregating there to worship. Whether or not a woman is married is not her private business, nor is it just the private business of the community in which she lives – unless we agree to divide the Jewish world into discrete camps with no intermarriage between them at all. Furthermore, the Takkanah does not solve the problem of the disqualification of women as witnesses to the fact by Torah law – as seen by half the Conservative rabbinate.

12:
I would hesitate greatly before intruding myself into such a problem. But, if everyone were to hesitate in this way the situation would never be brought any nearer to solution. I do not think that my suggestion would satisfy any but by own colleagues – and probably not all of them! But I can put forward a suggestion that might go some way towards alleviating the de-Orayta problem [that the disqualification has the status of Torah law, not rabbinic law]. In order to illustrate my suggestion I would like us to recall an incident that we discussed during our study of Tractate Berakhot [see RMSG of August 27 1997] and which concerns a verse from the Torah that we read yesterday.

I further added, in commenting of the topic under discussion:

What my suggestion means is that the social status of the modern woman is so changed that we can no longer assume that when the Torah legislates for a women who is secluded in the privacy of her home and would not wish to socialize in mixed society, that it is also legislating for a different kind of woman. We might claim that just as "Sennacherib King of Assyria mixed up all the nations" was sufficient justification for assuming that Ammon and Moab were no longer the Biblical Ammon and Moab, so might we claim that "Napoleon Emperor of the French reversed all the social mores" – or some similar claim. When it is necessary, even the most recalcitrant of orthodox Poskim [decisors] agree that the status of the modern female has changed: that is why they now permit schoolgirls to study the Oral Torah – a notion that was still considered anathema only one hundred years ago! So there is hope yet.

To be continued.

Michael Simon asks two questions.

I appreciate your explanation of biblical hermeneutics, especially the Gezerah Shavah. My question is twofold; first are we still Halakhically bound by hermeneutical rules or may we adopt another rule of interpretation for the same verse which better fits modern needs? and second, within our approach to Halakhah, given that the sociological fact (that a woman wouldn't "expose herself in a public place" two thousand years ago but does so today) has changed, do we change the Halakhah, and if so, by what process?

I respond:

I hope that Michael's second question has already been answered in the body of our shiur. I here address his first question, whether or not we are still bound by the hermeneutical rules.

In his Introduction to his Mishnah Commentary, Rambam [Maimonides, North Africa, 12th century CE] first describes how Moses taught the Written and Unwritten Torah to Israel. He then continues as follows:

(A list of these Instruments is given in the famous "Baraita of Rabbi Yishma'el" which forms the preface to the Halakhic Midrash "Sifra" and which is reproduced in many prayer-books at the start of the daily morning service. There is a Maĥloket [difference of view] between Rambam and Ramban [Nachmanides, Spain, 13th century CE] as to the status of a law derived in this way. Rambam says that such a law is mi-de-Rabbanan [of Rabbinic status] whereas Ramban says that it is mi-de-Orayta [of Torah status]. The view of Ramban is the accepted view. In any case, it was only until the end of Mishnaic times [beginning of 3rd century CE] that the use of these Instruments was accepted. From Amoraic times onwards it was disallowed.

It follows that laws derived by the application of these Instruments are binding laws, and we may not view them eclectically. When such a law is no longer deemed appropriate, the best way of dealing with it is by "outdating" it (as I suggested above). Certainly, according to a tradition, we may not create a new law by the application of these Instruments.

More of your questions next time.