Thoughtful Women

There was some controversy printed in this paper surrounding a recent event that featured a female speaker who was purported to be very knowledgeable. I really don’t know too much about this hubbub except what I read here. However, it reminded me of a story that was printed in the introduction to the eighth volume of Igros Moshe that was printed posthumously. The story appears in English in the sefer Responsa of Rav Moshe Feinstein: Care of the Critically Ill. Rav Moshe had a great-grandmother named Rochel, who grew up in the same town as the son-in-law of the Baal HaTanya. She had a brilliant mind and an insatiable love of Torah. Her father did not know what to do with her because there were no schools for girls in those days and he knew of no way of satisfying her thirst for Torah. He took her to the rav of the town and he permitted her to sit in the back of the room in the cheder where the Tzemach Tzedek, who would become the third Lubavitcher Rebbe was also a student. Rav Moshe found out about this incident when out of the blue he was invited to a gathering called by the Lubavitcher Rebbe while he was a Rav in Luban, Russia. When R’ Moshe questioned why he was invited since he had no direct relationship at that time with the Lubavitcher Chassidim in Russia, he was sent a note by the Rebbe. The Rebbe explained “Your Bubbie belonged to us! She studied with our Rebbe, the Tzemach Tzedek.”

She was not the first or last wise Jewish woman to make history. Tosfos in Shavuos discusses Devorah the prophetess who was also a shofetes. The Gemara says that women cannot be compelled to testify in capital and monetary cases. Consequently, the special prohibition against denying the knowledge of relevant testimony is not applicable to them. It is not a matter of believability because we trust women with our neshamos. How does a family member know that the food in his house is kosher? How does he know if meat was mixed with milk? How does he know if the pots are kosher? He relies on the trust-worthiness of his mother/wife to keep a kosher kitchen. I once saw in the name of the Maharal that a possible reason behind the Torah’s directive that women do not testify in monetary and capital cases is because the Torah did not want mothers to be forcefully separated from their young. Lehavdil, 12 states have statutes that breastfeeding women may be exempted from jury duty. (There may be an exception in monetary cases where the woman was the only witness.)

Tosfos surmises that since women may not testify, perforce they may not serve as judges. This is because the Gemara says that whoever is permitted to serve as a judge (P) is to be considered a valid witness (Q). Since a woman is not a valid witness, it must be that she cannot serve as a judge either. This is an example of the classic argument entitled modus tollens. If P then Q. Not Q therefore not P.

However, Tosfos notes that Devorah was a shofetes and she did decide cases. This is implied in the literal translation of the verse in Shoftim “And she judged Yisrael.” It would seem that a woman may indeed serve as a judge! Tosfos first suggests that she did not actually preside over real cases. She taught Torah and relevant applications. People themselves were free to use the Torah knowledge as they saw fit. However, two litigants who each insisted that they were right would not necessarily have had any relief after consulting her. The pasuk in Navi does not literally mean that she judged, rather she taught Torah.

The second answer offered by Tosfos is that she served as an arbitrator. She was not empowered with the tools and resources of a real judge but litigants came before her and subjected themselves willfully to her binding arbitration because she was a prophetess.

A third answer offered by Tosfos in Mesechta Nidah is that she really did serve as a judge and rendered real decisions. However this was permitted because the decisions were not her own but rather they were received by her prophetic vision.

As an interesting footnote, the Chasam Sofer says that it is possible that even if a woman would be an acceptable witness, she could not be compelled to testify. This is due to the fact that testimony is only accepted by the courts during the day. Therefore the mitzvah of testifying is time-bound as it only applies during the daytime. This is similar to the mitzvah of tzitzis and tefillin which women are exempt from because they are likewise time bound and are only obligatory during the day.

Elena Kagan is almost guaranteed to become a Supreme Court Justice. (Some would argue that activist judges don’t render real decisions.) Yet she would not have our nomination for beis din.