Monday, January 02, 2006

Judge Debby

Up front: This analysis, of women judges and by extension women rabbis, is not intended as halacha limaaseh. The issue is quite complex and I am not sufficiently grounded in all relevant sources, as of yet. Yet the issue is one of the type that parshablog should discuss: does Devorah's being a judge impact halacha and demonstrate that women can be judges?

We start in Niddah 49b, the Mishna:

Mishna: "Whoever is kosher to judge is kosher to testify, and there are those who are kosher to testify but are not kosher to judge."

This seems to say that the set of kosher judges is a strict subset of the set of kosher witnesses.

Since women are not kosher witnesses, they should not be kosher to judge. In fact, as Tosafot notes, in Yerushalmi Yoma, there are two explicit derivations from pesukim that women cannot be judges. The Mishna is ambiguous, in that it does not state explicitly that a woman cannot judge but just states a general rule. Thus, perhaps one might suggest, as Tosafot does, that the Mishna only intended to exclude men who are invalid witnesses, but not women. However, the Yerushalmi is unambiguous. We might say this is a dispute between Talmud Bavli and Yerushalmi, but there is nothing explicit in Bavli that contradicts the Yerushalmi, perhaps because that women may not judge was considered explicit in a Mishna. Don't create a dispute where none exists, but rather simply read the Mishna kifshuto.

In Niddah 50a, we see the following Tosafot:

Tosafot brings an objection to the rule laid down in the Mishna from the fact that the verse in Shoftim states that Devorah judged {Shoftim 4:3}:
ד וּדְבוֹרָה אִשָּׁה נְבִיאָה, אֵשֶׁת לַפִּידוֹת--הִיא שֹׁפְטָה אֶת-יִשְׂרָאֵל, בָּעֵת הַהִיא. 4 Now Deborah, a prophetess, the wife of Lappidoth, she judged Israel at that time.
Thus, we see that a woman can judge!

Tosafot first suggests reinterpreting the Mishna. It does not mean that the set of kosher judges is a strict subset of the set of kosher witnesses. Rather, it means that every man who is kosher to judge is kosher to testify, but does not mean to rule out the class of women.

However, Tosafot also mentions the Yerushalmi that explicitly rules out the class of women from being judges. There is no need to create a dispute Bali and Yerushalmi, especially as there is nothing in Bavli that suggests against the Yerushalmi, and in fact, the Mishna cited in Bavli suggests like the Yerushalmi. Indeed, one could ask the question of Devorah on the Yerushalmi as well, and not have an easy answer. So whatever the Yerushalmi would answer, the Bavli could answer as well.

Thus, Tosafot gives two other suggestions. A woman cannot judge, but Devorah judges based on Divine Word. Or, as he says in another Tosafot, on the basis of the Shechina. This answer can make sense, especially as the fact that she was a prophet is juxtaposed in the verse to the fact that she judged. {Shoftim 4:3}:
ד וּדְבוֹרָה אִשָּׁה נְבִיאָה, אֵשֶׁת לַפִּידוֹת--הִיא שֹׁפְטָה אֶת-יִשְׂרָאֵל, בָּעֵת הַהִיא. 4 Now Deborah, a prophetess, the wife of Lappidoth, she judged Israel at that time.
Alternatively, a woman cannot judge, but she was just teaching them the laws, since she was knowledgeable.

This last answer can be used to justify woman rabbis, who would not issue rulings but simply teach what the rule is. The first answer, that according to Bavli women can be judges, bolsters the case even more.

Before proceeding, let us see the remaining two relevant Tosafot inside. There is one on Bava Kamma 15a:

and another on Yevamot 45b:

Why I Reject Tosafot
However, I reject this Tosafot, for a simple reason. Namely, shofet does not mean "judge" in this context. Rather, the verb has a much wide connotation, and in this context means "rule." I believe that this is the consensus of most Biblical scholars. To cite Robert Boling in the Anchor Bible Judges:

Thus, according to peshat, Devorah did not rule in halachic matters, or at least the pasuk does not tell us so. Rather, she was a leader, and governed.

On the midrashic level as well, I am not familiar with any source that states that Devorah rendered halachic decisions. Tosafot would seem to be the first among Chazal. In other words, the suggestion seems to be post-Talmudic.

Tosafot's job is to harmonize. Tosafot often contrast two gemaras and find some way to make them both work. Often this is a good approach, but sometimes the gemaras are in fact in dispute, and a harmonization just ruins peshat in both locations. Here, Tosafot appears to be trying to harmonize a Mishna with his own mistaken reading of a pasuk, where that mistaken reading contradicts an explicit Mishna and an explicit Yerushalmi.

I would thus have difficulty relying on this Tosafot to permit women judges.

As another example, Yiftach was understood by Chazal to be an ignoramus. Yet we read {Shoftim 12:7}:
ז וַיִּשְׁפֹּט יִפְתָּח אֶת-יִשְׂרָאֵל, שֵׁשׁ שָׁנִים; וַיָּמָת, יִפְתָּח הַגִּלְעָדִי, וַיִּקָּבֵר, בְּעָרֵי גִלְעָד.
7 And Jephthah judged Israel six years. Then died Jephthah the Gileadite, and was buried in one of the cities of Gilead.
The ready answer is that he did not "judge" but rather "governed." Indeed, many of the "judges" are so for performing some act of valour and saving, and then governing Israel. We hear nothing of their Talmudic erudition in any of the book of Shoftim.

Now, one may counter with the phrase "Yiftach beDoro KeShmuel beDoro" in the context of listening to the shofet who lives in those days (in the future), and extrapolate to all the shoftim, including Devorah. One might respond that since Yiftach was termed a shofet, this statement of Chazal seizes upon him, especially since he was an ignoramus in great contrast to Shmuel, and makes him a shofet. Or, we might point out that Chazal are not monolithic, and one midrash can easily contrast with another midrash, or not be universally accepted. Thus, I would say that it is quite likely that Chazal did not regard Devorah as a judge in the sense of a dayan, and thus there is no contradiction with the Mishna or with the Yerushalmi.

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