Maimonides and Women’s Leadership: Part Eight

by Rabbi Aryeh Klapper

As the Tosafists see it, the Talmud Bavli has evidence both ways as to whether women can be judges; the Biblical example of Devorah says they can; a Yerushalmi says they can’t.

No Tosafist cites Sifri in the context of this issue.

No Tosafist who cites the Yerushalmi rules that women can be judges, and no Tosafist proposes any method of reconciling the Yerushalmi with this position.

The Tosafists collectively present four possible outcomes.

  1. All women can be judges
  2. Devorah was a judge, but nonprophetesses can’t be judges
  3. Devorah was a judge, but people voluntarily accepted her authority to judge
  4. Devorah was not a judge, but rather a teacher of law.

It seems clear that some Tosafists ruled that women can be judges.  Ritva and Sefer haChinnukh each present this as the Tosafist opinion, albeit one they disagree with; Tosafot Bava Kamma 15a seems to hold this way; Rabbeinu Avigdor haTzarfati to Parashat Mishpatim, in the middle of the most comprehensive Tosafist discussion of the non-Yerushalmi evidence I have found, writes

ומ״מ פסקינן דאשה כשרה לדון

Nonetheless, we rule that a woman is valid to judge.

Why wasn’t this position rejected, or at least challenged, on the basis of Sifri?

I see four prima facie options.

  1. They were unaware of Sifri saying מלך ולא מלכה, and thought women could be queen.
  2. They were aware of Sifri saying מלך ולא מלכה, but did not extend it to any position beyond queen.
  3. They were aware of Sifri and extended it beyond queen, but did not see judgeship as falling under that extension.
  4. They were aware of Sifri, thought it prevented women from being dayyanim, and chose not to cite it.

The first and last of these options seem implausible to me.  Tosafists quote Sifri in numerous other places, and every version of Sifri I am aware of includes מלך ולא מלכה.

Options 2 and 3 are reasonable.  We noted in our discussion of Rambam that the extension to כל משימות does not appears anywhere that is conclusively before Rambam.  However, a number of Sifri manuscripts and early citations contain an extension to פרנס על הצבור.

Michael Appel very helpfully shared with me his work on the Sifri manuscripts; all errors and especially oversimplifications are my responsibility(.  In brief, it seems there are two key versions:

מכאן שאין ממנים פרנס על הצבור אלא אם כן מאחיך הוא

מכאן שאיש ממנים פרנס על הצבור ואין ממנים אשה פרנס על הצבור

There is at least one ms. In which the text cuts off after the first פרנס על הצבור.  Now in some handwritings a ש is the combination of an ע and a ן, which makes it easy to confuse איש and אין.  It seems entirely reasonable that the אין version was dominant in Tosafist Ashkenaz, in which case their Sifri contained no reference to an extension of מלך ולא מלכה.  Now academic scholars privilege an ms. that has איש, and my amateur guess is that איש can become אין more easily than the reverse, but I don’t think this would be enough to dismiss the text I attribute to the Tosafists as an error, and option 2 remains possible.

But I think it is also reasonable to argue that the Tosafists did not see the term פרנס as encompassing judges, but rather limited it to people responsible for making practical policy judgments.  Option 3 is therefore viable as well.

What, however, about the Yerushalmi?  Were the Tosafists who paskened that woman can be judges unaware of this text?  If so, does their position lose all halakhic weight on the ground that it was a טעות בדבר משנה, (which can be translated as an error made out of ignorance of a relevant precedent)?

This question is fascinating and important, but I think it can still be evaded in our case.  Classifying something as a טעות בדבר משנה requires a demonstration that otherwise competent decisors were unaware of the relevant text and would have changed their minds had they known it.  It is plausible in our case that the Tosafists did not know the Yerushalmi, but Sefer HaChinnukh 77 suggests otherwise.

ומכל מקום

כל זה שאמרנו שאינן דנות

הוא כדעת קצת המפרשים

,וכדעת הירושלמי, שכן נמצא שם מפורש

,אבל לדעת קצת מן המפרשים כשרות הן לדון

.ואמרו כי מקרא מלא הוא שנאמר (ו)היא שופטה

Nonetheless,

all we have said regarding women not judging

is in accordance with the opinion of some of the commentators

and the opinion of the Yerushalmi where this position is found explicitly,

but according to some of the commentators they are valid to judge

and they say that this is a full-on verse, as Scripture says “she judged”.

Sefer HaChinnukh clearly believes that the position validating women judges survived awareness of the Yerushalmi, although he concludes that evidence and logic support the position that women cannot judge.  It seems that he understood these Tosafists as holding that obvious peshat in Tanakh can overcome a Yerushalmi.

With some hesitation, I will add the following point, recognizing that it comes from a field beyond my qualifications.  Professor Yisrael Ta-Shema famously argued that the German Jewish culture out of which the Tosafists emerged was heavily influenced by the Yerushalmi, which would weaken my argument from Sefer HaChinnukh.  However, Dr. Haym Soloveitchik now contends that Professor Ta Shema’s position was incorrect.

However, it is also possible that these Tosafists had an alternative understanding, or better yet, an alternate text of the Yerushalmi, which did not rule out women judges.

Looking at the Tosafistic citations, it becomes immediately clear that the Yerushalmi is cited in different ways.  Here is Tosafot Niddah 50a:

ובירושלמי פוסל אשה לדון

אית דילפי מועמדו שני אנשים שני מעל פי שנים עדים

ואית דילפי מוישארו שני אנשים במחנה

And in the Yerushalmi it invalidates a woman to judge

Some derive [this] from “The two men will stand” – “two” from “on the mouth of two witnesses”;

And some derive [this] from “and there were left two men in the camp”.

Tosafot Gittin 88b also claims that there are two derivations, but subtly changes what is derived:

מיהו בירושלמי דיומא (פ”ו) יש

מעתה דאין אשה מעידה אינה דנה

אית דילפי מועמדו שני אנשים שני מעל פי שנים עדים

.ואית דילפי מוישארו שני אנשים במחנה

However, in Yerushalmi Yoma there is

Since it is now established that a woman cannot testify, she cannot judge.

Some derive [this] from “The two men will stand” – “two” from “on the mouth of two witnesses”;

And some derive [this] from “and there were left two men in the camp”.

In this version, both derivations relate to testimony, and inability to testimony proves inability to judge.  Both derivations thus support the reading of Mishnah Niddah as excluding women from judgeship.

A third version found in many Tosafists includes only the line “Since it is established that a woman cannot testify, she cannot judge.”

A fourth version cites only a single derivation.

There are also combinations of the third and fourth version, and of course many obviously corrupt versions.

We will see in our next installment that the versions cited by Tosafot are paralleled by different versions found in the Yerushalmi itself.

 

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