by Rabbi Aryeh Klapper
In the previous installment, we cited Rav Mosheh’s position that Rambam excludes women d’oraita from serarah and mesimot, and that he derived these exclusions by analogy to the exclusion of converts. Rav Mosheh goes on to argue that many rishonim completely disagree with Rambam. That is to say, those rishonim hold that the exclusion of women is limited to the monarchy and should not be extended at all.
Rav Mosheh does not consider the possibility that they disagree with Rambam only about the extent to which the exclusion should be extended. He also does not mention the possibility that they completely reject the exclusion.
We will consider both of these possibilities. Essentially, my task in this installment is to reorient the conversation about the rishonim so that it does not revolve entirely around Rambam.
Two points must be clear at the outset:
- The Talmud never directly discusses whether women are excluded from monarchy, or from any general class of positions or authority. It may not even discuss their exclusion from any specific position. Moreover, it seems to refer to at least two women rulers of Judea as המלכה without any evident discomfort or disapproval. Based only on the Talmud and Mishnah, we can certainly argue from silence or from inference that normative halakhah rejects the Sifri’s exclusion of women from monarchy.
- The Talmud does not use the term שררה when excluding converts from positions beyond monarchy.
Both editions of Sifri do have the derashah מלך ולא מלכה. This derashah is also cited in Ramban, Rashba, Ritva, and Ran al haShas, Ran al haRif, Sefer haChinnukh, Rabbeinu Meyuchas on Devarim, and the commentary of “Raavad” on Sifri.
There are glaring absences on this list. Most strikingly, Rashi and all the Tosafists are missing. It is fair to say that in halakhic contexts this derashah is cited primarily by Rambam and Ramban uBeit Midrasho, with some evidence from Provence as well. Furthermore, Ramban et al cite it precisely to fill what they see as a lacuna in the Tosafot tradition.
Arguments from silence must be made with great caution and rigor. Here is how I will try to meet that high bar. מלך ולא מלכה is introduced by rishonim other than Rambam exclusively in the context of a discussion developed by the Tosafists. I will first lay out the composite substance of the sugya as it appears in the Tosafists and other rishonim who don’t cite מלך ולא מלכה. I will then show how מלך ולא מלכה is introduced into this discussion by Ramban etc. I expect to then argue that Rambam’s point is so obvious and necessary given his understanding of מלך ולא מלכה that the Tosafists’ failure to bring it up demonstrates that they at the least understood the derashah very differently. Finally, I expect to argue for the added significance of the rishonim in Provence who were aware of Ramban and still don’t introduce מלך ולא מלכה into their discussions of the sugya.
Here is the sugya as per the Tosafists:
On Kiddushin 35a and Bava Kamma 15a, a beraita from the House of Rabbi Yishmael derives from the opening verse of Parashat Mishpatim that “Scripture equated men and women with regard to all issues of dinin in the Torah.” On Gittin 88b, the Talmud quotes a beraita that applies this verse to judges. It follows that women can be judges just as men can be.
In addition, Shoftim 4:4 says of Devorah היא שפטה את ישראל. On the assumption that to be sh.f.t is the same as to be a dayyan, this also demonstrates that women can be judges.
However, Mishnah Niddah 6:4 says that “All those who are valid to judge, are valid to testify, although some who are valid to testify are invalid to judge.” Since Mishnah Shavuot says that women are not subject to the oath imposed on possible witnesses, and Talmud Shavuot 30a provides a Biblical source for the exclusion of women from testimony, and this is also assumed by Talmud Bava Kamma 88a, it follows that women are invalid to judge.
In addition, Yerushalmi Yoma 6:1 states that women cannot judge, and provides Scriptural grounds for that statement.
What conclusion can we reach about women as judges based on these seemingly contradictory sources? The Tosafists offer the following possibilities.
Women are valid as judges. Mishnah Niddah 6:4 should be read as saying “All men who are valid to judge are valid to testify. (This position in Tosafot never explicitly addresses Yerushalmi Yoma 6:1)
Women are invalid as judges.
- The beraita on Kiddushin 35a and Bava Kamma 15a equates them only as litigants, not as judges.
a. did not judge, but rather taught the law (in some versions: to the male judges)
b. judged al pi hadibbur. (This may mean either that a special prophetic decree declared her an exception to the normal exclusion of women, or else that she was allowed to judge because she was merely a vehicle for prophetic judgment.)
c. judged only because they (which can mean either the litigants in a specific case or the community generally) accepted her upon themselves because she was a prophet (or because of the Divine Presence about her).
Thus far the Tosafists. I have not found a Tosafist who frames the issue of judgeship in the context of other positions, even though Rambam frames judgeship for converts as a violation of both serarah and mesimah.
We noted above that the Tosafists who validate women as judges offer no alternate explanation of Yerushalmi Yoma. Ramban takes this Yerushalmi as dispositive, and rules that women are invalid. He then raises the challenge from Devorah, and offers a response not found among the Tosafists:
“ומאי דכתיב “והיא שופטה את ישראל
שעל פיה ובעצתה היו נוהגין זה עם זה
And as for Scripture writing “and she sh.p.t Israel” –
this means: she n.h.g,
that at her word and advice they would n.h.g. one with the other,
as if she were legally queen.
Ramban does not cite either of the Tosafists’ first two answers, so we have no way of knowing why he abandons their formulations.
Ramban then raises the challenge from the Sifri excluding a queen:
ואף על גב דאמרינן בספרי שום תשים עליך מלך ולא מלכה
His first response is
נוהגין היו בה כדין מלכה
they were n.h.g with her as if she were queen.
His alternate response, which may be similar to the Tosafist’s third response to the challenge from Devorah, is:
מקבלין היו דבריה ברצונם
They would accept her words willingly.
At least five aspects of Ramban’s formulations are difficult to understand:
- What if anything changes as the result of the question from Sifri? His answers before and after each use the verb נהג and the phrase כדין מלכה.
- What does the root n.h.g. mean?
- What is the difference between “being n.h.g at someone’s word” and “accepting their authority”?
- What does the phrase כדין מלכה mean, esp. if halakhah bans the institution of מלכה?
- Does his alternate response relate to the question from Devorah, the question from Sifri, or to both?
The next installment will discuss Rav Mosheh’s reading of Ramban, raise difficulties with that reading, and propose an alternative.