by Rabbi Aryeh Klapper
Note: This series will follow the format of a daily yeshiva shiur, in the sense that all ideas and readings are tentative and that I expect to seriously revise and correct on the basis of readers’ criticisms. My hope is that together we will make a substantive and creative contributions.
Elements of the halakhic tradition at least seem to clash head-on with fundamental feminist critiques. That is to say, they can easily be read as silencing, denying credibility, fetishizing, or as entrenching patriarchy.
One possible mode of response is to celebrate the clash and see halakhah and feminism as fundamentally opposed. This response unites the rejectionist halakhists with the rejectionist feminists, but with opposite results. By their very existence they reinforce each other’s preconceptions.
A more modest halakhic approach recognizes that our interpretations of Torah are always tentative, and that we should accept the truth from whomever speaks it. A more modest feminist approach recognizes that ideology is not a reliable source of truth, and that a lived and living tradition which has nourished the souls of Jewish women for millennia should be accorded great deference.
Modesty should not prevent halakhists from seeing some ideologies as fundamentally valuable, and others as fundamentally pernicious. What matters is that we should not make our attitudes toward those ideologies into self-standing halakhot. It is perfectly proper for halakhists to believe that Torah is largely aligned with rugged individualism, or conversely with Scandinavian socialism. It is not proper to argue that halakhah must support or oppose a particular social program because it aligns/conflicts with one or another such ideology.
This is hard, because ideologies are very useful practically. Few of us have the time or inclination to think through even each public issue on its own; we pick a few that seem crucial, and then align politically with whichever side agreed with us on those few. I am arguing that in the realm of halakhah we cannot afford this efficiency. (For what it’s worth, I also think that the United States cannot afford this in its court system, and especially not in the Supreme Court.)
One of the challenges for Modern Orthodoxy in particular is to enable halakhic conversation across the feminist/nonfeminist divide. There is no doubt that some halakhists see feminism as a pernicious ideology, while others – myself among them – find at least some of the fundamental claims of some forms of feminism to be compelling, and see the feminist lens as a valuable source of chiddushei Torah, whether their own or those of scholars they respect in all areas of Torah.
It would be simplistic to say that the common ground of conversation should be advance agreement to be bound by the outcome. There is no recognition of common authority, and the logical extremes of each side’s position is utterly unacceptable to the other. But perhaps we can agree not to make alignment or nonalignment with feminism the halakhic test, but rather be compelled to make our arguments on specific halakhic and value grounds.
One test of this possibility is the question of whether halakhah excludes women from holding specific roles or offices. From a feminist perspective, there is no question that any rule which restricts women in that way is immoral, especially if there are no counterpart exclusions for men. The rule “a king” – not a queen” is therefore unacceptable, no matter how limited its application in theory and practice. From a halakhic perspective, however the existence of this rule seems never to be explicitly challenged in the halakhic literature.
There are four overlapping strategies by which a feminist committed to halakhah can cope with this:
1) Arguments from silence – The absence of explicit challenges to the rule need not demonstrate that it was universally accepted, especially if one can find instances in which it is seemingly relevant but not cited. For example, there are various references in Rabbinic literature to historical queens of Judea, and their legitimacy is not challenged by the rishonim on the grounds of our rule. One can therefore argue that the rule is not normative.
2) Eliminating contemporary relevance – there are no kings today. One can resist the extension of the rule to positions other than monarchy. Alternatively, one can argue that the rule extends past monarchy but only to positions in a monarchy, or at least to positions in some hereditary hierarchy, or to positions that are appointed by nondemocratic authorities.
3) Eliminating communal relevance – One can argue that the rule (or a particular extension of the rule) applies only in involuntary communities, or only in communities that see it as degrading for women to play public roles or to exercise formal power.
4) Finding workarounds – One can claim that the rule (or a particular extension of the rule) applies only to positions that are not in any way publicly accountable, or where authority is not shared with anyone else. One can then formally construct modes of accountability or sharing.
The advantage of the first approach is that it addresses the values issue as well as the practical outcome. The disadvantage is that normal halakhic process would suggest that, given a choice, one should prefer candidates who are proper according to all halakhic positions. So even if a convincing argument from silence can be made, one still requires a moral overlay to reach the desired result.
The advantages of the other approaches, respectively, are that they enable one to argue that one is acting in accordance with consensus, that one respects other communities that act differently, or that one is ruling in accordance with the spirit as well as the letter of the law (even while acknowledging great discomfort with that spirit).
The interconnected disadvantages of these approaches are that a) they often seem disingenuous, and b) they require endorsing some exclusions of women. So, for example, the argument that excludes democratically elected officials from the rule would still bind appointees of an authoritarian state from appointing women to other positions.
My own take – which is highly idiosyncratic, and therefore not politically practical – is that we should be able to resolve these two issues by explicitly distinguishing the “is” from the “ought”. It should be legitimate for a halakhist to argue that such-and-such is the law now – e.g. women can serve only in democratically elected offices – but that the law should be otherwise – e.g. properly understood, the Torah allows women to serve as appointed irrigation-canal supervisors.
So long as such an approach is not embraced, we will have disingenuousness, both ways. Antifeminist halakhists will argue that the rule extends further than they believe it actually does, and feminists will appear to accept restrictions that they actually reject.
A good case study of these discussions may be the halakhic conversation generated by R. Mosheh Feinstein’s 1959 responsa permitting a widow with no other means of supporting herself and her children to serve as a kashrut supervisor in place of her late husband. Tomorrow I will post the text and translation of the relevant part of Rav Mosheh’s first teshuvah. My commentary on the teshuvah will appear iyH Thursday, and depending on interest, the series will continue from there.