Women as Halakhic Decisors: An Analysis from First Principles

by Rabbi Aryeh Klapper

ולהורת את בני ישראל

את כל החקים אשר דבר ה’ אליהם ביד משה

And to provide hora’ah to the Children of Israel

regarding all the principles which Hashem spoke to them via Mosheh

ויקרא י:יא Vayikra 10:11

 The question of whether women can be halakhic decisors rarely receives the rigorous halakhic attention it deserves. The reason for this is clear: conversation is generally conducted with a view toward advancing or opposing specific programs and agendas for women’s religious leadership in Orthodoxy, and analytic precision becomes less significant than rhetorical effect. What follows is a tentative and rough attempt at analyzing the question from first principles, taking as little as possible for granted. Corrections, refinements, extensions, etc. are very welcome. They will help and encourage me to–very eventually–produce a work that can meet exacting scholarly standards. Please note that my purpose here is to propose and develop lines of analysis, not to take firm positions. It is therefore likely that I will be working with positions that are analytically useful even though in the realm of psak I would rule against them without hesitation. And now on to the main course.

It is a halakhic given that each Jewish woman has halakhic obligations, i.e. that in certain times and places she is obligated by religious law to act in certain ways. Actions require halakhic determinations and decisions. No one has ever suggested that every woman must ask a qualified posek before engaging in any religiously significant action. Women decide their own priorities, relationships and perhaps even what berakhah to make on cornflakes. Or they may decide to ask the sh’eilah about cornflakes to someone else, which is in and of itself a halakhic decision. In short: Individual women make halakhic decisions for themselves in exactly the way individual men do, and their capacity to do this is bounded by the same rules that bind men.

On the other hand: The original Sanhedrin was formed when Mosheh Rabbeinu laid his hands on (=gave semikhah to) seventy men. Service on the Sanhedrin, and on its subordinate courts, was thereafter limited to those with direct semikhah from those seventy men. For the purposes of this article, I assume only men were eligible for this. On that basis, we can say that the Sanhedrin and its court system represent a form of halakhic authority over others that women cannot have.

Our question therefore is: How far toward direct semikhah does a woman’s authority to answer halakhic questions for herself extend?

Most prior analyses have started from the other side, by trying to limit the influence of direct semikhah. Proposed limitations include authority over other women as opposed to over a mixed community, elected as opposed to imposed authority, exclusive as opposed to shared authority, capacity to enforce authority, and so on and so forth. These approaches assimilate the issue of semikhah-authority to that serarah-authority, which is derived from the derashahking and not a queen.’ (The survey of opinions in R. Gershuni’s Mishpat Hamelukhah is extremely helpful, and I recommend it to you with this note: It is hard to take seriously any limit on authority that endorses Golda Meir as Prime Minister while forbidding her to be President of a Young Israel) We should resist this conflation. Rabbi Moshe Feinstein argued that the ban on women’s serarah is limited, according to almost everyone but Maimonides, to queenship. Leaving aside the very real question of whether Rabbi Feinstein’s analysis is compelling, his argument leaves no way to justify limiting semikhah on the basis of serarah, as a halakhic decisor is not a queen. Rabbi Feinstein therefore must have understood the issue of halakhic authority as separate from the question of authority generally

Now direct semikhah ceased many centuries ago, and so contemporary men cannot have that form of authority either. Limiting the issue to contemporary halakhic authority, we can differentiate men and women only if: (a) Semikhah stands for a broader category of halakhic authority over others that women cannot have; or (b) some forms of contemporary halakhic authority over others are derived from the authority of semikhah, and therefore may exclude women; or (c) some forms of contemporary halakhic authority over others are deliberately modelled on semikhah, and therefore may exclude women.

Category (c) applies to socially-constructed formal authority, not to authority that derives directly from personal achievement and character. It may be central to the question of whether a woman can receive a formal license to pasken, or “be ordained as a rabbi,” but it is generally irrelevant to the question of whether a woman can be a halakhic decisor per se. While the categories do intersect, for example when a community decrees that certain types of public halakhic issues can be addressed only by an ordained rabbi, for our purposes category (c) can reasonably be ignored.

What is halakhic authority, and how is it exercised? Is it derived from/modelled on direct semikhah? We noted above that an individual woman can make decisions for herself. Let us add there is generally no ban on providing halakhic information to other people, and under many circumstances women are obligated to provide such information to others. For example, women are obligated to rebuke wrongdoers, inform their husbands as to their niddah state, and certify that food they are serving is kosher. It seems unchallenged that women may refer questioners to reference books, and therefore they may respond to questions by citing those books from memory. In other words: answering most halakhic questions in most situations–even unasked–does not require hora’ah, and women can certainly do this. Halakhic argument comes into play only when we reach the sphere of hora’ah.

The category hora’ah appears in multiple halakhic contexts, and there is no reason to assume that it is defined identically in each context. Here are four such contexts: (a) a Sanhedrin must bring a sacrifice if its halakhic error caused most of the Jewish people to sin mistakenly–but only if its error constituted a hora’ah; (b) a Rebellious Elder is executed for issuing a ruling that defies the Sanhedrin–but only if his ruling constitutes a hora’ah; (c) an ordinarily qualified scholar may not issue a hora’ah after drinking a revi’it of wine; and (d) a student may not issue a hora’ah in the environs of his or her primary teacher.

In contexts (a) and (b), a too-obviously wrong ruling is excluded from the category of hora’ah. I suggest that by the same token a too-obviously correct ruling is excluded. This yields a possibly useful definition: A ruling is a hora’ah if and only if a different answer to the same question could also be a hora’ah. One step further: A ruling is a hora’ah if and only if a different answer to the same question could be wrong and still be a hora’ah. And now one step further: A ruling is a hora’ah only if the person making it was choosing among a variety of answers, at least one of which could be wrong and yet still be a hora’ah.

The result of this formulation is that it is generally not a hora’ah to cite a halakhic handbook, or to refer one to the ArtScroll Niddah book rather than Rav Tzvi Sobolofsky’s, with regard to a case that is substantively identical to one that has been ruled on by prior decisors. This is why Rav Herschel Schachter argues that the vast majority of ordained Orthodox rabbis are not qualified baalei hora’ah, even though he of course understands and approves of their responding to the vast majority of their congregants’ halakhic questions. Nishmat draws a similar distinction between the job of a yoetzet halakhah and someone with a heter hora’ah. Obviously the line is blurry, and a sliding scale of competence-to-importance/difficulty might work better than a line, but I think that the border’s general location can be plotted. Rav Schachter and Nishmat seek to prevent incompetents from issuing hora’ah, not to make gender distinctions among the competent. This is because Birkei Yosef famously writes that a woman chakhamah can give hora’ah, and his statement is reasonably taken as reflecting halakhic consensus. This probably means that there are no gender distinctions at all as to which halakhic questions can be answered, or which answers given. All that matters is knowledge and training. Birkei Yosef might seem to end the discussion, but I suggest that he does not. Here’s why:

Birkei Yosef’s evidence is the position of Sefer haChinnukh that the prohibition against giving hora’ah while drunk applies to women as well as men. But this does not necessarily mean that women can also give the hora’ah referred to in other contexts. Note that two of those contexts–the communal sacrifice and the Rebellious Elder–involve the Sanhedrin or those eligible to join it, and therefore presumptively exclude women. We therefore need to explore whether those forms of hora’ah have contemporary ramifications. This in turn requires us to introduce another axis: What is the effect of a hora’ah? Here are three options: (a) Essentially nothing. It provides information useful to individuals who seek to live their lives in accordance with halakhah; (b) Legitimating. Without such a ruling, a particular option would be foreclosed, or it would be illegitimate to foreclose a particular option. Because a hora’ah said so, other people cannot denounce me for acting in this way, or refusing to act in that way; (c) Binding. Because of a hora’ah, I must take this option, or I must not take this option.

It is plausible that women can issue hora’ah in the first or second senses, but not in the third, which was originally the province of those with direct semikhah. Our question then is whether the third category exists at all nowadays. I think the answer is no. As I understand it, the binding force of a hora’ah nowadays is the result of a constructive neder. By asking someone a question, you are implicitly swearing to treat their answer as binding. Similarly, although less obviously, a synagogue’s acceptance of a rabbi’s halakhic authority is a voluntary collective oath to treat the rabbi’s answers as binding. The latter may raise general issues of serarah, but is not different in kind than an oath to treat a woman’s answers on issues of plumbing as binding.

Another possible source of contemporary halakhic authority is the teacher-student relationship. Students may not issue hora’ah in the presence of their primary teacher–even in the lifetime of their primary teacher–without permission. It is possible to extrapolate from this that students are bound by the hora’ah of their primary teachers. But one can generally choose to cease being the student of any particular teacher, and free oneself from the direct authority of their hora’ah. Some argue that a universally acknowledged gadol hador has this kind of authority over every Jew. One might then argue that even a woman who was the greatest halakhic scholar of her time could not become gedolat hador. That would be a really good sh’eilah to have.

The Center for Modern Torah Leadership will continue doing all we can to bring this sh’eilah into practical being, so that we can ask it to the greatest halakhic scholar of the time. I’m confident that we’ll follow her answer voluntarily, even if she tells us we don’t have to.

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