On the Status of Women in 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.

Women's Testimony

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.

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.