10:46 AM
Gil Student
Can a woman, who is not obligated in certain ritual acts, perform those acts on behalf of someone who is obligated (i.e. a man)? This question shook the intellectual world of the Conservative movement twenty years ago when the debate over women's ordination was raging.
I. The Theory of Self-Imposed Obligation
Prof.* Joel Roth ("On the Ordination of Women as Rabbis" in The Ordination of Women as Rabbis: Studies and Responsa, Simon Greenberg ed.) championed the novel idea of women imposing on themselves obligation of all mitzvos, thereby rendering themselves as equally obligated as men and, therefore, able to perform such mitzvah acts on behalf of men. The theory depends on the concept of neder. A person may accept upon himself an obligation as a vow and is thereby biblically required to fulfill that obligation. Thus, if a woman takes a vow to fulfill all of the time-bound mitzvos in which men of an equivalent status are obligated, she is then just as obligated in those mitzvos as men. As support for this concept, Prof. Roth points out that the literature generally discusses an "eino mehuyav ba-davar," someone who is not obligated in a matter, and not an "eino metzuveh ba-davar," someone who is not commanded in a matter. Since a woman who vows to fulfill a particular mitzvah is obligated in it, even if not commanded, she is considered a mehuyeves ba-davar.
Note that this solution only works for a woman who takes such a vow of obligation. Other women, however, do not reach this level of obligation and, therefore, cannot perform such mitzvah acts on behalf of men.
Before we proceed to point out problems with this theory, let me just state that this article by Prof. Roth is of unusual quality when compared to halakhic articles by many of his colleagues. Such articles are usually filled with strong bibliographic breadth but Prof. Roth displays additionally a sincere search for truth. He notes the weaknesses of his own theory and attempts to resolve the knotty problems that arise. I did not detect any triumphalism or scholarly sleight of hand in this article. However, I do think that some of his fundamental theories are weak, not to mention disagreeing with him on some basic principles of halakhic methodology.
II. Problems with the Theory
Prof. Roth's mentor, Prof.* David Weiss Halivni, objected strongly to his student's innovation in an unpublished paper titled "On Ordination of Women." (Note that Prof. Halivni eventually resigned from the Conservative movement and the teaching staff of its flagship seminary over this matter.) To begin with, this theory has already been raised and denied by no less an authority than R. Yosef Te'omim in his classic Peri Megadim commentary to Shulhan Arukh (Orah Hayim, 489 MZ 4).
Furthermore, as Prof. Roth duly noted, his theory seems elegant and simple at first but raises difficult problems. For example, a woman who vows to fulfill a mitzvah has, according to Prof. Roth, a biblical obligation to do so. Therefore, when a woman vows to fulfill a rabbinic mitzvah, she has a biblical obligation while her male counterparts have a rabbinic obligation. That seems quite odd. Additionally, medieval authorities agree that someone with a rabbinic obligation cannot perform a mitzvah on behalf of someone with a biblical obligation. Yet, why should a self-imposed obligation allow one to perform a mitzvah on behalf of someone biblically obligated while a rabbinically-imposed obligation does not? Also, let us imagine that we are living in the talmudic era when there was still a central religious authority with the power to enact rabbinic ordinances. A woman could choose to obligate herself in a mitzvah and, thereby, enable herself to perform that act on behalf of others who are biblically obligated. If, subsequent to that time, the central rabbinic authority should decide to obligate women in that mitzvah on a rabbinic level, this woman would suddenly lose her ability to perform the act on behalf of those biblically obligated. The imposition of the obligation would, parodoxically, reduce her ability.
All of these logical problems bring Prof. Roth's theory into serious question. However, he was aware of those problems and in his lengthy note 79 attempted to address them. In my opinion, he failed in his attempt and could not successfully resolve these logical problems. (Hopefully, more on this in a subsequent post.)
Prof. Halivni raised another problem. A vow can be annulled. A woman who vows to keep all time-bound mitzvos can subsequently have that vow annulled and relieve herself of those obligations. This, perhaps, is key in understanding why a vow does not raise a woman to the level of a biblically-imposed obligation on these mitzvos. An other-imposed obligation can never be annulled while a self-imposed obligation can.
III. A Revised Theory
Prof. Halivni offers a further suggestion - which, to my understanding, he has since rescinded - that I had, at first, misunderstood. Here are his words:
Unless women en masse are observing time bound commandments, so that if some leave, others will join their ranks; unless it becomes a minhag, a custom, of some duration, no serious change in their religious status can be contemplated... That may take a generation or so. Less than that, no permanency can be secured. Whereas after a generation, if the daughters of these truly pioneering women will want to change and drop the observance, we will tell them what R. Johanan told (in B. T. Pesahim 50b) to b'nei Bishan: kevar kib'lu avoseikhem aleikhem she-ne'emar: Shema beni mussar avikha ve-al titosh toras imekha. Your mothers have already taken it upon themselves, as it is said: Hear my son the instructions of thy father and forsake not the teaching of thy mother (Prov. 1:8).My initial understanding of this suggestion was that if a woman were to accept on herself as a binding custom to fulfill all relevant time-bound mitzvos, then it would be binding on her daughters like other customs. This surprised me because it is incorrect. The stringencies a parent adopts are not binding on his or her children. So ruled R. Yair Hayim Bacharach (Havos Yair 126) and R. Hizkiyah de Silva (Peri Hadash, Orah Hayim 496) without any (to my knowledge) dissenting opinions. That a woman accepts on herself the obligations of time-bound mitzvos does not obligate her daugthers in those mitzvos.
However, it seems to me that Prof. Halivni's suggestion was that women obligate themselves in time-bound mitzvos to create a communal custom. If and when it reaches that point, then the custom will be binding on all members of that community and such a vow-custom may not be annulled by individuals. However, even this does not entirely solve the dilemma because communal customs may also be annulled (on this, see Prof. Roth's book The Halakhic Process: A Systemic Analysis, p. 220). Additionally, if women are obligated by custom to fulfill certain commandments, this obligation is no longer self-imposed but other-imposed, with a much lesser status of other-imposed than men. Thus, if rabbinically other-imposed obligants cannot perform acts on behalf of biblically other-imposed obligants, certainly those with an other-imposed obligation due to custom cannot. This seems like something to which even Prof. Roth would agree.
(B"n to be continued)
* I use the term Prof., which is accurate, not as a slight but as a sign of respect while still refraining from conferring the title rabbi on self-professed non-Orthodox scholars.
