On the Status of Women in Rabbinical Courts
Policy Paper No. 100
- Written By: Dr. Eliezer Hadad
- Publication Date:
- Cover Type: Softcover
- Number Of Pages: 165 Pages
- Center: Religion and State
- Price: 45 NIS
A policy paper that reviews the ways that halakhic authorities have found for expanding women’s participation in courtroom proceedings, shows the correlation between the evolution of halakha and changes in women’s status in each age, and calls for expanding women's participation as litigants, witnesses, and judges in Israeli rabbinical courts.
In today's Israel, there is a great disparity between the equality of women in society in general and the status of women in rabbinical courts. According to Jewish law, women may be litigants but may not serve as witnesses or judges. Given that women serve as judges in Israel's secular courts, the absence of women judges in rabbinical courts is all the more conspicuous.
What measures have religious authorities adopted over the ages in order to expand the participation of women in judicial proceedings? What are the halakhic options for expanding the involvement of women as litigants, witnesses, and judges in rabbinical courts today?
In this policy paper, IDI researcher Dr. Eliezer Hadad reviews the ways in which halakhic authorities expanded the participation of women in the judicial process throughout the ages, points to correlations between changes in the status of women in general society and in religious life in each age, and proposes ways in which to allow greater involvement of women as litigants, witnesses, and judges in Israeli rabbinical courts.
The sweeping changes in the status of women in the modern era have exacerbated the gap between the concept of equality that prevails in Israeli society and women’s status in rabbinical courts. According to the ancient halakha, women may be litigants (plaintiffs and defendants) but may not be called as witnesses or serve as judges. Over time, these halakhic principles have been modified somewhat, but there remains a large gap between the norms of general society regarding the status of women and the options available to them, on the one hand, and the reigning halakhic standards, on the other. Considering the situation today in the secular courts where women serve as judges, the absence of female judges in rabbinic courts is all the more conspicuous.
This policy paper reviews the ways in which halakhic authorities have expanded women’s participation in the judicial process over the years, finds a correlation between the halakhic adjustments instituted and changes in the status of women during these years, and examines the halakhic options available for further expansion in our generation of their participation as litigants, witnesses, and judges. The research demonstrates that the halakhic infrastructure to support this expansion already exists and calls for changes to be made in this spirit.
Women as Litigants
The Sages ruled that women could sue to demand their rights and could be sued as well. Nevertheless, in the distant past their presence in the courtroom was strongly limited by two considerations: modesty and the view that the family property is in the husband's exclusive control. In other words, Jewish communities functioned as a society of families, and the relations among them were conducted by the paterfamilias, who represented the family in the public sphere, in general, and in the law court, in particular. During the Middle Ages in France and Germany, changes in standards of modesty and women's increased participation in the family's economic life led to an expanded presence of married women in the courtroom. Once women began to take part in commercial life, halakhic authorities accorded legal validity to their economic transactions and they were required to appear in court as litigants.
The view of women as partners with equal rights to the family's assets led to an argument among rabbinic judges about whether the property amassed during the years of marriage can be seen as the joint product of both spouses. Those who ruled in the negative believed that such an approach would undermine family unity. It would seem, however, that the contemporary view of the family as a partnership of equals demands taking these changes as a given. Consequently, it is recognizing this idea, and not ignoring it, that would strengthen the family.
In Talmudic times, halakha deemed women to be ineligible to testify in court, but they were trusted to be witnesses on matters of the forbidden and permitted in the domestic sphere. From then until the modern age, the spheres in which women's testimony is accepted broadened gradually to include additional domains outside the home and sometimes extended as far as the courtroom. A historical survey of halakha finds a correspondence between women's status in the broader cultural milieu and the halakhic rulings of each age. Already in Talmudic times, the need to rely on women's testimony in the realm of their traditional duties, in which men were not involved, and to solve difficult personal issues specific to women, such as rape and being left an aguna (lit. anchored; a woman whose husband is missing, leaving her unable to remarry), led to the admission of women's testimony by rabbinic courts.
Between the mid-eleventh and mid-fifteenth centuries, the rabbis in Germany expanded their acceptance of women's testimony so that courts could rule about domains where men were not found. After women began to pray in their own synagogues, the German rabbis accepted women's testimony in order to resolve conflicts that arose in these female spaces. Around the same time, the French and German rabbis, recognizing women's unique perspective, began admitting their testimony on matters that men generally are not cognizant of.
In our own time, the validity of women's testimony has come up not only in the context of ensuring justice, but also with regard to the overall issue of the status of women. In general, contemporary authorities do not distinguish between men and women on the substantive question of the quality of their testimony, though some do attach importance to gender differences. Chief Rabbis Herzog and Uziel proposed instituting a general halakhic ruling that would recognize the validity of women's testimony on the grounds that it is accepted by the public at large. According to their reasoning, it would be possible to grant across-the-board validity to all testimony by women if the society's leaders affirmed their acceptance of all women as eligible to serve as witnesses.
As a matter of fact, rabbinical courts in Israel do accept testimony by women. When they do so, however, they are relying on rabbinic rulings of past centuries, which over the generations expanded the field in which women could testify. They do not rely on the proposal advanced by Rabbi Herzog and Rabbi Uziel, to enact a new ruling, although that idea is broader and most appropriate to contemporary conditions. Such a ruling should be enacted in the rabbinical courts of the State of Israel.
Since the establishment of the State, rabbinic pleaders (a position equivalent to that of a lawyer in a secular law court, which is also called "rabbinical court advocates") have represented litigants in rabbinic courts. Women were ineligible to serve in this role because licensing as a pleader required a yeshiva education. In the 1990s, a petition to the High Court of Justice led to the recognition of women as rabbinic pleaders. Today women appear in rabbinical courts with this status and represent many female litigants. It is clear that women's entry into this profession has led to a significant improvement in women's ability to win their rights in rabbinical courts.
It is impossible to separate this change from the wider change that has taken place in the National Religious sector in Israel with regard to Torah study by women. The opening of batei midrash (lit. study houses) for women, in which they study Talmud and the works of halakhic authorities, has created a cohort of learned women scholars who are searching for ways to express their erudition. These study houses have laid the foundation for women to make use of their knowledge in roles that interface (at this stage) with halakhic decision-making; their training as court pleaders should be seen as part of a process that is seeking an outlet in many and varied channels. Thus the new challenge facing halakha today is that of the judicial bench itself.
The halakhic literature offers two ways to understand the prohibition of female judges. The first views it as stemming from the power vested in the position; the second sees the prohibition as an expansion of the ban against women's testifying in court. In France and Germany in the twelfth and thirteenth centuries, the Tosafists juxtaposed the conclusion that women may not serve as judges against the principle that the Torah holds women to be equal to men in all matters of civil law and the precedent of Deborah, who judged all Israel. The implication of their analysis is that women may serve as judges if the public accepts their authority. Some of them even suggested that women are permitted to hold judgeships with no restrictions whatsoever.
Contemporary rabbis have dealt primarily with the issue of the appointment of women to public and leadership positions. Most have not found any halakhic disqualification of women as community leaders in a democratic regime—because of the nature of a democracy, which renders the element of authority meaningless. Most contemporary rabbis have also recognized the halakhic possibility that a woman could serve as a rabbinic judge if the public accepts her in that role. But they oppose such a step on non-halakhic grounds, which are apparently based on the social norms of the religious and ultra-Orthodox sectors. Halakhic authorities have been willing to stretch halakha to its limits regarding political positions on the national level, but have endeavored to adhere to the original halakha for posts that are seen as part of the religious world. To date, they have viewed the rabbinical courts in Israel as such rather than as part of the public sphere in the State of Israel.
Although, to be practical, it is difficult to expect that women will be deemed eligible to serve as rabbinical court judges in the foreseeable future, the study shows that it is certainly possible from a halakhic viewpoint. Either way, there are other methods that can be employed today to ensure greater involvement of women in the judicial process in rabbinical courts. In addition to the proposals advanced by some rabbis to allow women to play quasi-rabbinical roles—as halakhic counselors, school rabbis, and even community rabbis—it is suggested that women be integrated into the rabbinical court system in quasi-judicial roles, such as advisors, and even be involved in the evidentiary stage.
In a symbolic way, the initial changes with regard to women's inclusion in the rabbinical courtroom can be linked to their exiting the domestic sphere and entry into three public spaces: the marketplace, the synagogue, and the study house. When women began to help support their families, their status as litigants changed. The creation of women's synagogues required accepting their testimony in monetary and torts cases, so that justice could be done in a space with no men. The women's study houses that have been launched in the current generation made it possible for them to enter the courtroom as pleaders. Now we must address the question of female judges.
A review of the historical evolution of the halakha regarding women's status in rabbinical courts finds increasing participation by women in the public sphere and a blurring of the distinction between that realm and the private domestic space. It appears, though, that halakha does reflect a deep-rooted view of an essential difference between men and women, in contrast to the claim that this distinction is no more than a gender construct. The halakhic attempt to define this distinction through a hierarchy of the sexes, the division of labor, and the assignment of separate spaces to each sex is problematic today, in light of the vast changes in women's status and occupations. It seems that the most appropriate way to realize this distinction today is not by maintaining the traditional division of labor, but by supporting women's active participation in all areas of life, which would in fact be enriched by the difference between the sexes.
Dr. Eliezer Hadad is a researcher at the Israel Democracy Institute and a lecturer in Bible and Jewish philosophy at Herzog College, Lifshitz College, and the Hebrew University of Jerusalem.