The past isn’t dead. It isn’t even past.
—William Faulkner
LIKE THE BIBLE, THE TALMUD IS A compendium of Jewish law, ethics, and culture. Even more than the Bible, the Talmud shapes the contours of Jewish life today. In a formal sense, it is an expansion of the legal portions of the Pentateuch, the first five books of the Bible. In an informal sense, it is a wide-ranging series of inquiries into how a Jew should live his or her life. For hundreds of years Jews have devoted long hours to studying the Talmud. Its terse but dense style, mixture of Aramaic and Hebrew, intricate logical arguments, and hard-to-unravel textual history have given it a mystique of its own.
Until recently, it was almost exclusively men who pored over the Talmud and wrote commentaries on it. Women neither studied it nor played any role in interpreting it. This difference is not surprising: Judaism, like most ancient religions, placed key religious tasks in the hands of men only. Today, with women’s growing interest in their past and desire to use the past to reshape the present, these texts need to be looked at afresh.
This book will read Talmudic texts from a woman’s perspective. Therefore, the choice of texts and the questions asked of them derive from a wish to determine how the Talmud sees and treats women. The core of each chapter is composed of the texts themselves, which I will cite in translation and interpret according to standard techniques of Talmudic analysis. Unlike other books that present texts shorn of context, this book will locate and then read the key texts in a sustained fashion, in their own context, and in a rich context of closely associated materials. The point of doing so is to arrive at as accurate an interpretation as possible, not reading meaning into the text, but eliciting meaning from it.
Let me begin with an illustration drawn from the aggadic (nonlegal) material in the Talmud.
An apostate [כופר]1The standard printed edition of the Talmud reads, “an apostate.” Other editions read, “the Caesar,” meaning the Roman emperor. once came before Rabban Gamliel and said, “Your God is a thief. He stole a rib from Adam when he was asleep.” Rabban Gamliel’s daughter2According to the editions that have “the Caesar” rather than “an apostate,” it may be the emperor’s daughter, not Rabban Gamliel’s daughter, who responds to the challenge. Also, according to the standard reading of this text, one could say that it is not Rabban Gamliel’s daughter but the apostate’s daughter who answers him. But whichever way we read these phrases, since it is the men of the Talmud who are telling this story about women, the broad implications remain the same whether the woman who speaks is Jewish or not. See also BT Sanhedrin 90b. [was sitting nearby and] said, “Let me answer him” [whereupon she began to act as if a calamity had befallen her] and asked to summon a policeman. When queried as to what had taken place, she said that thieves had broken into her apartment the night before and taken her silver goblet but left a gold one in its place. The apostate then chimed in, “[But how can you call that an act of theft if they left you, in place of what they took, something of greater value?] Would that such thieves come upon us often!” [“That’s precisely the point,”] she said, “Was it not to Adam’s benefit that God took his rib but left him in its place a handmaiden to serve him [שפחה לשמשו]!” (BT Sanhedrin 39a)
On one level, this anecdote shows, like the many others with which it is grouped in context, that the claims of scoffers can be rather easily refuted; that no matter what their argument, it can be rebutted. But on another level, this story is about women and rabbinic attitudes toward them. Had a man, let’s say a son of Rabban Gamliel, responded to the apostate, the sense of the story, in addition to repudiating the claim, would be that the rabbinic view of women is that they were created to serve men. However, since it is a woman who makes this point about women, we must think further.
The question is, how are we to read the parable posed by the daughter of Rabban Gamliel? Is she saying that women’s role in life is to be subservient? Or is she saying that women are beings of independent value and substance, and that it is only for the sake of her didactic analogy that she first downgrades them, which gives her the opportunity to upgrade further the value of God’s replacement object? For of what benefit to Adam would be the gift of a woman in place of a rib unless the woman were there to serve him?3In the two parallel versions of this story, in Bereshit Rabbah 17 (Theodor and Albeck ed., 158) and Aboth de Rabbi Nathan B, chap. 8 (Schechter ed., 23), no mention is made of woman as a handmaiden to serve man. The main point is that a woman is gold in comparison to a man’s rib, which is clay (Aboth de Rabbi Nathan) or that a woman is a pound of silver in comparison to a man’s rib, which is an ounce of silver (Bereshit Rabbah). In these two stories it is a matrona, a Roman woman, who claims that God is a thief. A rabbi (R. Yossi or R. Joshua) answers her. See previous notes and Tal Ilan’s comments on the matrona in Jewish Women in Greco-Roman Palestine: An Inquiry into Image and Status (Tübingen: J.C.B. Mohr, 1995). Note that her metaphor arouses no objection from the men present.
The irony here is that the daughter of Rabban Gamliel4Since most of the women who appear in Talmudic anecdotes are close relatives of rabbis, they are identified as the daughter of Rabbi X, the sister of Rabbi X, the wife of Rabbi X, and sometimes even the mother of Rabbi X. Only on rare occasions are they identified by their own name. is not a selfeffacing maidservant but a self-confident, intelligent, and aristocratic woman. What she is and what she stands for are diametrically opposed to what she says women are meant to be. It is even possible that she has in mind the now-famous contradiction about the nature of woman found in the first two chapters of Genesis: In chapter 1, woman is portrayed as equal to man; in chapter 2, she is created from his rib, as secondary.
It seems to me that the rabbis who told this story, who reported her words, were ambivalent in their attitudes toward women, viewing them on the one hand as lowly creatures, to be controlled, cared for, and used for men’s own purposes and pleasure, and on the other as essentially as human as men, not physically and mentally immature like children and not chattel like slaves.5Cf. Daniel Boyarin, Carnal Israel: Reading Sex in Talmudic Culture (Berkeley: University of California Press, 1993), 108: “This ironic double stance of both genuine empathy for women and rigid hierarchical domination is endemic in the Talmudic discourse.” This point is supported by the fact that the parallel versions of the story place the provocative question in a woman’s mouth and the clever answer in a man’s.6See note 3. By reversing these roles, the Babylonian Talmud displays its attitude toward women: smart but subordinate.
What I have just demonstrated is how to read a text from a woman’s perspective. The salient feature of this approach is looking below the surface message, in this case theological, in order to dig out information about how men and women viewed each other and themselves and the nature of their relationship during the Talmudic period. When texts that have been looked at by so many for so long are examined from new angles, it should not surprise us that they yield new information.
We can easily deduce that Talmudic law and the biblical law upon which it is based mandate a patriarchal social order. The following representative examples will suffice to prove the point: Men may have more than one wife, but women may have only one husband; men take women in marriage and may divorce them at will, but women neither take men in marriage nor may they dismiss them; women inherit from neither a father nor a husband, but men inherit from both a mother and a wife (as well as from a father); women’s religious vows may be canceled by either a husband or a father, but men’s vows may not be canceled by either a wife or a mother. The male bias of these rules is evident.
It is all too easy, as sensitive human beings, to grow angry each time we come across yet another example of a blatantly patriarchal law. But that, to my mind, is not the only or even the most reasonable response. It is entirely predictable that when judging rabbinic law from the perspective of our own recently developed egalitarian stance, we will find the treatment of women unacceptable and even morally offensive. Today, we can no longer justify assigning second-class status and fewer rights to an entire category of human beings for no reason other than their gender.
Were the Talmud simply an arcane body of ancient texts, we would not find ourselves troubled upon reaching such a conclusion. But there is much more at stake here: The rabbis’ literary and legal legacy rests at the foundation of Judaism as it is practiced today. We therefore have a problem: How can we continue to adhere to Jewish observance today in the face of a conflict between it and our modern sense of social justice?
One solution is simply to recognize that the rabbis were products of their times. Since the ancient world (and even much of the modern world until recently) subscribed to a patriarchal worldview, they did too. Although such a relativist perspective in no way diminishes the religious authority of the rabbis, neither does that perspective properly recognize their real accomplishments, even in their own time and place.
I am, therefore, suggesting that we devise a different standard by which to evaluate what the rabbis achieved. One possibility is to investigate how the rabbis’ legal thinking compares to that of their Greco-Roman counterparts. Since the rabbis were familiar with the Roman law of their day and incorporated some of its principles and even specific institutions into their own legislation, such as a gift in contemplation of death, how does the rabbis’ treatment of women compare to that of the Roman legislators?7The gift in contemplation of death is treated in Chapter 8. On the subject of rabbinic knowledge of Hellenistic law, see Saul Lieberman, “How Much Greek in Jewish Palestine,” in Texts and Studies (New York: Ktav, 1974), 216–234, in particular, 225–228. For an analysis of broader cultural influences, see Lieberman, Greek and Hellenism in Jewish Palestine (Jerusalem: Bialik, 1962). As interesting as it would be to draw these kinds of comparisons, and I will do so from time to time, this is not the best question to ask. A religious legal system, much more than a secular one, is bound by a commitment to maintain continuity with the practices of the past and accept the authority of the texts of the past. It ascribes a divine origin to these practices and texts.
I therefore propose that we evaluate the rabbinic system from a dynamic rather than a static perspective. Since the rabbis make it clear that the Torah undergirds their legislation, the questions that merit investigation are the following: In comparison to the Torah, which the rabbis accepted as holy, God-given, and hence immutable, how does their own legislation treat women? Without violating the letter of the law, were they seeking to accord them more rights and a higher status than that accorded them by the Torah? Or were they introducing new stringencies that would make women’s lives more difficult? In general, in what direction was their legislation concerning women headed? Furthermore, do the legislators openly reveal their own sense that women are discriminated against in key areas of Jewish law? Is there any evidence that they are uncomfortable with their patriarchal privilege? Do they allow women, whose voices they occasionally include in the text, to express dissatisfaction, even opposition, to the way things were?
My answer, stated succinctly, is that the rabbis upheld patriarchy as the preordained mode of social organization, as dictated by the Torah. They thus perpetuated women’s second-class, subordinate status. They neither achieved equality for women nor even sought it. But of critical importance, they began to introduce numerous, significant, and occasionally bold corrective measures to ameliorate the lot of women. In some cases, they eliminated abusive behaviors that had developed over time. In others, they broke new ground, granting women benefits that they never had before, even at men’s expense. From their own perspective, the rabbis were seeking to close the gap that had developed over time between more enlightened social thinking and women’s more subordinate status as defined by the received texts, biblical and rabbinic, without openly opposing such texts. In almost every key area of law affecting women, the rabbis introduced significant changes for the better. We cannot be sure that the rabbis themselves conceived of the notion or initiated the trend of improving women’s lives—such ideas could have come from the surrounding culture or from previous generations—but we can find clear evidence that the rabbis endorsed this position of their own free will.8See Judith Plaskow, Standing Again at Sinai (San Francisco: Harper and Row, 1990), who recognizes that the rabbis were disturbed by women’s implied absence from Sinai and therefore “read women’s presence into the text” (27). But she goes on to say that they do this “despite the fact that in their own work they continually reenact that absence.” I understand the rabbinic texts somewhat differently.
This conclusion should not surprise us. Law tends to develop over time in the direction of more humane treatment of the underprivileged. In the past several centuries, the move in many parts of the world from hierarchy to democracy is paralleled in the ancient rabbinic world by a move toward a modified, benevolent patriarchy and even a modified hierarchy. And this expansion of “rights” for women applied, albeit on a lesser scale, to other groups, such as non-Jewish slaves. Thus, the rabbis’ growing sympathy for women is not out of line with broad legal developments in other areas of Jewish law.
But did the rabbis go far enough? Could we have expected more from them? I tend to think they accomplished what they could. Although they reacted with leniency to the excessive stringencies of the Dead Sea sects that preceded them, for instance in the realm of ritual purity, and though they did not embrace the rampant misogynism of Philo, the first-century Hellenistic Jewish philosopher, neither did they adopt some of the more advanced provisions of Roman law. They cannot, therefore, be called feminists. More accurately, we can regard them as helpful to women.
I am troubled by the contemporary assumption that the presence of patriarchy necessarily precludes the possibility of those within it acting on women’s behalf. When scholars find evidence of proto-feminist action, they consider it an aberration, the expression of a dissident voice. I am not so sure. It is also possible to conclude that absolute patriarchy is only a theoretical projection, a construct, not a reality. Careful examination of rabbinic texts has led me to believe that rabbinic sympathy for women is not an expression of dissidence but rather reflects a more nuanced patriarchy than is generally assumed. Recent research in the Bible9See Athalya Brenner, ed., A Feminist Companion to Wisdom Literature (Sheffield: Sheffield Academic Press, 1995). Brenner’s comments (in “Some Observations on the Figurations of Woman in Wisdom Literature,” 85–97) on the unnamed queen who shames her husband and is the only intelligent and calm person around, as well as Valler’s comments (in “Who Is Eshet Hayil in Rabbinic Literature?” 65) on the rabbinic concept of “a woman of valor” reveal that the women of the Bible and Talmud are not the docile, submissive helpmates that patriarchy implies and that a patriarchal text would be expected to portray. and my own evaluation of the Talmud suggest that rabbinic society is more accurately characterized as a “benevolent patriarchy.” Even though it placed men in charge of women, it also permitted men to make changes that benefited women and that showed concern for women in general and even respect for individual women of accomplishment (as measured in male terms).
A number of books have already appeared that deal with women in rabbinic texts. They fall into two broad categories: those that analyze what these legal texts have to say about men, women, society, and culture; and those that try to reconstruct women’s history in the Talmudic period, based on passages found in the rabbinic corpus and elsewhere. I will briefly mention some of the more important ones. Jacob Neusner and Judith Wegner, in their systematic, detailed studies of the Mishnah, find extensive evidence of women’s second-class status. According to both authors, the rabbis view women as morally lax temptresses from whom men must protect themselves.10Jacob Neusner was the first to engage in a systematic reading of rabbinic texts from a feminist perspective. He develops a theory in a wide variety of publications, and in particular in Method and Meaning in Ancient Judaism, Brown Judaica Series, no. 10 (Missoula, Mont.: Scholars Press, 1979), 79–100, about how the rabbis defined the essential nature and character of women and men. Because of women’s unruly sexual potential, lying just below the surface, it has been necessary for men to exercise control over women. Surveying all the volumes of Mishnah that treat women, he shows that the rabbis are especially interested in the moments when women are transferred from one man to another because those times pose the greatest dangers.
Judith Wegner, in Chattel or Person? The Status of Women in the Mishnah (New York: Oxford University Press, 1988), examines, from the perspective of today’s jurisprudential standards, the vast body of mishnaic law dealing with women. She finds that in some areas, such as those relating to a woman’s sexuality and reproductive capacity, the woman is treated as chattel; in all others, she is treated as person. Daniel Boyarin and Shulamit Valler, in their close readings of legal and aggadic materials, identify multiple rabbinic outlooks on women, ranging from the more indifferent to the more empathetic.11Boyarin, in Carnal Israel, identifies two phenomena relevant to the focus of this book: the rabbis’ empathetic thinking about women, and the existence of women on the margins who engaged in actions that the culture highly valued, such as the study of Torah. He concludes that although such empathetic thinking did not overturn the male-dominated hierarchy, the texts in which men oppose the dominant ideology imply the participation of a dissident, proto-feminist voice. Shulamit Valler, in Women and Womanhood in the Stories of the Babylonian Talmud (Tel Aviv: Hakibbutz Hameuchad, 1993), analyzes in detail five clusters of halakhic anecdotes relating to women. She finds that the rabbis abandoned the stringencies that they themselves had developed and decided cases that came before them in a more lenient manner, one that displayed sensitivity toward women. Tal Ilan, in her historical work on women’s status in the early rabbinic period, notes the vast differences between rabbinic pronouncements and real women’s lives.12Tal Ilan, in Jewish Women in Greco-Roman Palestine: An Inquiry into Image and Status, a historical work, asks what was the exact social status of women in the period beginning 332 B.C.E., the time of Alexander’s conquest of Palestine, and ending 200 C.E., close to the time of the Mishnah’s publication. She concludes that only a small segment of the Jewish population, in particular the upper classes, lived according to tannaitic prescriptions. Miriam Peskowitz, upon reading rabbinic texts in the context of Greco-Roman legal and literary texts, gender theory, and material evidence, demonstrates that the tannaitic statements about women’s work constitute a theory of masculinity and femininity.13Miriam Peskowitz, Spinning Fantasies (University of California Press, forthcoming). In “Engendering Jewish Religious History,” in Judaism Since Gender, Peskowitz puts forward the theory that the study of “women in rabbinic Judaism” or “women and rabbinic Judaism” is no longer appropriate because it implies that women are separate from and marginal to Judaism. In the same volume, Judith Baskin responds that there still is a need to conduct these kinds of studies. In exploring images of women, she claims, we find evidence of multivocality, of minority views that are sometimes more enlightened than those of the dominant view of women’s essential difference from and inferiority to man. We can thus learn “important things about how Jewish knowledges are engendered” (“Rabbinic Judaism and the Creation of Woman,” 125–130).
Those six books have all made significant contributions to our understanding of how the Talmud addresses the topic of women. Although this book will also read texts closely and arrive at some shared conclusions with the above authors, the question that drives this research is different, as is the methodology.
What I am not trying to do in this book is to present the basics of Jewish law, from the Bible until today, as it affects women, as does Rachel Biale.14Rachel Biale, Women and Jewish Law: An Exploration of Women’s Issues in Halakhic Sources (New York: Schocken, 1984). Rather, I have selected for consideration those matters that best illustrate that the law, in general, was in the process of change. There are many issues that I do not deal with at all, such as levirate marriage, and others that I do not deal with in full, like testimony. I build my case by analyzing only ten topics in detail, although not exhaustively.
What I am also not trying to do in this book is to write social history. Historians often find themselves using law to write history, and Talmudists, using history to understand law. Both of these approaches are faulty. Historians cannot assume that all or even most people followed the law. Similarly, Talmudists cannot assume that sociohistorical realities are accurately reflected in the law. As hard as it will be to restrain myself from seeing the law as a representation of social reality, I will try to do so. What I am interested in is a history of the law, not a history of people. Although it is likely that what jurists see around them dictates their choice of cases to deal with and focus on, we cannot know that for sure. Since all cases could be hypothetical constructs, we cannot deduce social realities from legal preoccupation with certain issues.
The question is, how does one read an ancient text to arrive at the truth, at the author’s intended meaning? Plucking statements from different works, written in different time periods by different authors, weaving them together into a unified whole, and then claiming that they represent the rabbinic view on a particular topic is deceptive. Each text must be examined on its own; the interplay of voices over time and between texts should not be muted.
To write a credible book on the subject of Talmud and women requires that we read the texts as objectively as possible, not arriving at interpretations dictated by preconceived conclusions. In order to avoid this pitfall, I have developed the following method for reading texts: First, for each topic under consideration, I go to the loci classici, the places in the Torah and the Talmud where that topic is discussed initially and/or fully and extract the main ideas. For the Torah, that usually involves several verses. For the Talmud, that can be an entire volume, a chapter, or just one passage. Note that by so doing I am not making any choices as to which material to examine but am merely analyzing the rabbis’ principal statements on a subject. I then compare the biblical and rabbinic statements in order to see if the rabbis have made any significant changes.
Second, because I assume, as noted above, that literary and legal contexts influence meaning, I then read each paragraph of the relevant Mishnah, also called a mishnah, in the light of the surrounding cluster of mishnahs. Third, I read the mishnaic passages in the context of related rabbinic texts, from both the same time period and later. By thus seeing the full range of views on a subject, we can understand more accurately and precisely the meaning of each view articulated. Also, by noting the field of choices open to each rabbinic speaker, we can assess the relative stringency or leniency of the view he chose to adopt.
To illustrate by way of example: The Mishnah sharply reduced the number of cases in which a rapist had to pay the biblically prescribed fine to a young victim’s father—he was obligated only if he raped her when she was between twelve and twelve and one-half years old. This ruling might lead us to conclude that the early rabbis make light of the crime of rape. But by means of a contextual reading, we learn that the Mishnah replaced the fixed fine (kenas) with a variable one (pegam), to be paid in all cases without exception and able to exceed the fifty silver shekels stipulated by the Torah. From this fine we realize that the rabbis were taking rape more seriously rather than less. In this way, we see how a richer contextual reading yields a more nuanced interpretation.
The Rabbinic Texts
The key rabbinic text, the touchstone of all subsequent rabbinic commentary, is the Mishnah (M), the first canonical and reasonably comprehensive compilation of Jewish law to follow the Bible. It is written in Hebrew and arranged topically into six major divisions, called orders, which are each subdivided into tractates (volumes), named accordingly. One of the six divisions is called Nashim, meaning women or, more likely, married women.15I prefer this translation because women are dealt with in virtually every volume of the Mishnah. Married women and a variety of marital institutions are dealt with primarily in the tractates of Nashim. Most texts we will examine in this book derive from that order.
Much of the material in the Mishnah is anonymous, but about one third to one half is attributed to specific individuals, called Tannaim. Although some material precedes the common era, such as that attributed to Hillel and Shammai, the vast majority dates from the first two centuries of the common era. It is easy to see that the Mishnah developed in layers over time, each generation of rabbis adding its thoughts to those of the previous ones. Rabbi Judah the Prince, usually referred to merely as Rebbe, is credited with the final redaction of the Mishnah in about the year 200. Whoever the redactor was, it is clear that an editorial hand imprinted the entire work with a consistency of style, syntax, and even legislative outlook.16Jacob Neusner, ed., The Study of Ancient Judaism, pt. 1 (New York: Ktav, 1981), 18ff. It is therefore legitimate to ask, with respect to most topics, what the broad legislative goals of the redactor of the Mishnah were.
The Tosefta (T), also written in Hebrew and organized just like the Mishnah, with the same major divisions and subdivisions, is a companion volume to the Mishnah, dating from the same period of time and presenting the views of many of the same rabbis. It seems more a compilation and compendium than a thoroughly redacted work. It is intimately related to the Mishnah, even beyond its organization, in that paragraph by paragraph it supplements, disputes, and illustrates passages of the Mishnah. But what is the relationship of these two works to each other?
It is standard scholarly opinion that the Tosefta postdates the Mishnah and is a commentary on it, in fact, the very first commentary. But this statement does not give the complete picture. For although the Tosefta contains much material posterior to the Mishnah, it contains anterior material as well. Careful comparison of passages in the Mishnah and Tosefta shows that many mishnaic rules are based on and constitute a reworking, often very subtle, of the parallel Tosefta passage. It is likely that the redactor of the Mishnah changed the earlier formulation of the rule in order to have it conform to his view on a particular subject. By examining the roads not taken by him, by seeing which of the many options he selected and which he rejected, we can better understand his legislative approach and goals, as well as those of his contemporaries. Comparison of two similar but slightly different formulations of the same rule makes it possible, again, to see in what direction the law was headed and what were the legal concerns of the day. The striking fact that the views of the Tosefta are often more lenient, and hence beneficial to women, than those of the Mishnah, suggests that the redactor of the Mishnah had a more conservative bent than some of his colleagues.17Judith Hauptman, “Pesiqah L’humra B’mishnat Gittin,” Proceedings of the Tenth World Congress of Jewish Studies, August 1990; “Women’s Voluntary Performance of Commandments from Which They Are Exempt” (in Hebrew), Proceedings of the Eleventh World Congress of Jewish Studies, Jerusalem, 1994; Shamma Friedman, “Tosefta Atikta … ” Tarbiz 62, no. 3 (5753/1992–93).
The Babylonian Talmud, known as the Bavli, is the great commentary on the Mishnah, produced in Babylonia from about 200 until 750 C.E., and written in both Hebrew and Aramaic. In today’s printed texts of the Talmud, each passage from the Mishnah is followed by the associated Gemara, that is, the analysis of the mishnah drafted by the Tannaim and Amoraim, the latter being the collective name of rabbis of the post-mishnaic period. The earliest form of the Gemara on a given mishnah consisted of a string of tannaitic and amoraic statements, the tannaitic ones commenting directly on the mishnah and the amoraic ones both on the mishnah itself and on the related tannaitic comments. These tannaitic materials, called baraitot, external teachings—because they remained outside of the Mishnah—are often the same passages that appear in a parallel place in the Tosefta. They prove extremely useful when one is deciphering the meaning of cryptically worded mishnahs.18It is especially common for the Amoraim of the two Talmuds to interpret a mishnah in the light of the parallel paragraph in the Tosefta. In so doing they often read back into the mishnah a line of thought that the redactor of the Mishnah had decided to reject. In this way the Amoraim are able to reclaim discarded points of view, ones that they may find more to their liking than that of the redactor of the Mishnah. See my book Development of the Talmudic Sugya: Relationship Between Tannaitic and Amoraic Sources (Lanham, Md.: University Press of America, 1988), chap. 3.
Like the Mishnah, the Bavli developed in layers, each generation adding its thinking on the matters under discussion to that of the previous one. Unlike the Mishnah, it does not seem to have been redacted by one individual, although tradition claims that R. Ashi (d. 425 C.E.) was a principal redactor.19See David Goodblatt, “The Babylonian Talmud,” in The Study of Ancient Judaism, pt. 2, ed. Jacob Neusner (New York: Ktav, 1981), 170–177. The Bavli also contains an extensive layer of anonymous commentary, called stama d’gemara, the anonymous voice of the text. It does not express independent opinions of its own but rather weaves together the tannaitic and amoraic materials into a unified whole. There is general scholarly consensus that this commentary, without which it would be almost impossible to understand the interrelationship of the earlier materials, was composed between approximately 500 and 750 C.E. Because of its subsidiary nature, I will pay less attention to it and more to the tannaitic and amoraic dicta themselves. The Talmud also cites, with reasonable frequency, anecdotes and courtroom cases that relate to the law under discussion. Since no women functioned as Tannaim or Amoraim, it is in these materials, which often feature women, that we find what appear to be historically reliable data about women, what concerned them, how they articulated their ideas before the rabbinical judges, and how the judges responded to them. Whenever relevant, I will cite this material.
The last major text under consideration is the Palestinian Talmud, known as the Yerushalmi, an analogue of the Bavli, written at approximately the same time, but in the land of Israel. It, too, is a commentary on the Mishnah, composed of tannaitic passages, amoraic sayings, and interwoven anonymous commentary. It was completed in the early part of the fifth century C.E., much before the Bavli.
Of these four texts, only two are studied with regularity today, the Mishnah and the Bavli. The other two, the Tosefta and the Yerushalmi, were not regarded by the codists as the basis for fixing Jewish law and have been routinely neglected, probably for that reason. For the purposes of this inquiry—and for the satisfaction of general intellectual curiosity—these works are extraordinarily useful.
The Plan of the Book
Throughout this book, I limit myself to consideration of halakhic texts and ignore aggadic (i.e., nonlegal and homiletical) ones because I am interested in the development of law—not attitudes—over time. Some of the aggadic statements praise women, and others exhibit deep misogyny. Since almost every aggadic statement can be offset by another that says just the opposite, all that we can conclude by collecting many examples of any one view is that it existed, not necessarily that it dominated. However, even if I fail to show that misogyny did not predominate, I still hope to show that it stayed in the realm of theory and was not incorporated into the law. This is a point worth emphasizing.20Tikvah Frymer-Kensky, in her chapter on biblical women (in Feminist Perspectives on Jewish Studies, ed. Lynn Davidman and Shelly Tanenbaum [New Haven: Yale University Press, 1994]), notes that “much of the patriarchy that we associate with the Bible and all of its misogyny has been introduced … by later generations of readers” (26). Although I find extensive evidence of a patriarchal social order in biblical laws, I agree with Frymer-Kensky that misogyny is not the driving force.
Each chapter of this book strives to accomplish two goals: one, to tell the “story” of one aspect of Jewish law—how it changed over time—through close readings of texts; two, to dispel some well-established myths about what these texts mean. Chapters 1 and 2 of this book, “Sotah” (wayward wife) and “Relations Between the Sexes,” illustrate the contextual method of reading rabbinic texts and provide background material for the rest of the book. Both deal with the rabbis’ perception of men’s and women’s sexual nature and the implications of this outlook for social and religious life. The next five chapters, “Marriage” (3), “Rape and Seduction” (4), “Divorce” (5), “Procreation” (6), and “Niddah” (menstruants) (7), all deal with aspects of marital life. The reason that a discussion of sex crimes against women follows a discussion of marriage is that, according to the Bible, the simplest solution for the victim’s predicament was marriage to the aggressor. Chapter 8, “Inheritance,” follows, because a woman’s dowry upon marriage is the share she receives from her father’s estate. “Testimony” and “Ritual,” Chapters 9 and 10, deal with women interacting with men in a court of law and in the performance of religious ritual, at home or in the synagogue. Note that since each chapter tells its own “story,” each may be read independently of the others. Also note that each chapter is designed for all readers, Talmudic novices as well as veterans. Both groups will find material to ponder.
Two populations may object to the conclusions reached in this book. First, some Jews will not grant that the rabbis made any changes in the law to improve women’s status because the law in its entirety was all there in the Torah to begin with. Since they posit the transcendent value of Torah and its non-time-bound system of ethics, then, even that which is not made explicit in the Torah is still embedded in the words and is waiting to be discerned by the reader at the appropriate time. This view is a matter of belief; I cannot dispute or disconfirm it.
I see things somewhat differently. If the Torah is silent and the rabbis speak up—for instance, if the Torah describes marriage as the purchase of a young woman from her father, and the rabbis later portray it as a “social contract”—then I will credit them with adapting the older rules to the more progressive social thinking and altered social configurations of their day. I am not thereby casting aspersions on the Torah. Rather, I am suggesting that in some cases what was appropriate at an earlier time was no longer perceived of as ethical by later generations. There is ample precedent for such legislative evolution in the ancient world. For example, research on the Dead Sea Scrolls has shown that many of them rework biblical texts in order to accommodate these texts to the outlook of the scroll’s author. Scholars consider that an early form of exegesis. I am making the same claim for the Talmud. It, too, is a work of exegesis in that it bases itself on the Torah but, at the same time, alters those rules that do not sit well with its own contemporary sensibilities.
The second population that may challenge my conclusions is the feminist one. In light of my reasonably positive evaluation of rabbinic behavior toward women, some feminists may label this reading thinly veiled apologetics. I would counter by arguing that my approach represents a “contextualized feminism.” It demonstrates that patriarchy was the dominant form of social organization in the rabbinic corpus and only identifies improvements in women’s legal status within such a framework. It also seeks to determine what role notions of gender play in men’s thinking on a variety of subjects affecting women and also their attitude toward women. In a broader sense, it is feminist in that I show, as does Ilana Pardes21Ilana Pardes, Countertraditions in the Bible: A Feminist Approach (Cambridge: Harvard University Press, 1992), 4, 144–145. Pardes finds remnants of female voices in the biblical texts that speak out against patriarchy, that put forth truths other than the predominant patriarchal ones. Although suppressed, those remnants were nonetheless included in the canon. and others for the Bible, that some of the rabbi-legislators themselves, and occasionally some women, put forth countervoices, calling into question the patriarchal basis of Jewish law.22The redactor of the Talmud, by including these male voices, and occasional women’s voices that also speak out against rabbinic patriarchy, is himself expressing some doubts about the appropriateness of its male bias. For women’s voices, see, for example, BT Yevamot 34b and PT Ketubot 2:5; 26c. These texts are discussed in Chapter 6 and the Conclusion.
It is unfortunate that so little feminist Bible research focuses on biblical law. Some researchers who study the biblical women, like Tikvah Frymer-Kensky, claim that the social status of women devolved over time, from the biblical to the Talmudic period, in particular in response to Hellenism and its misogynies.23Frymer-Kensky, Feminist Perspectives, 26. The same point is made by S. D. Goitein, in “Women as Creators of Biblical Genres,” Prooftexts 8, no. 1 (January 1988): 29. Goitein, in this article, analyzes women’s poetry, not laws of personal status. If such studies focused on biblical law, however, they would show that the legal status of women improved over time. Just as so many feminist studies are recovering the Bible for women, identifying the feminist countertraditions, reading the stories about major and also minor female characters through feminist eyes, and reaching the conclusion that the Bible speaks to feminist women and men today, I will, in a general way, do the same for Talmud. I do not believe that it is possible to depatriarchalize the Talmud, but I will show that, within its patriarchal framework, not only is sympathy expressed for women, as already noted by Valler and Boyarin, but, even more important, resolute action taken on their behalf.24I disagree with Rosemary Ruether (“Feminist Interpretation: A Method of Correlation,” in Feminist Interpretation of the Bible, ed. Letty M. Russell [Philadelphia: Westminster Press, 1985]), who claims that the Bible becomes the authoritative source for justification of patriarchy in Jewish and Christian society (116). Since Jews today read the Bible and practice its teachings through a rabbinic filter, it is more accurate to say that the Bible and Talmud justify, not patriarchy per se, but a modified, benevolent patriarchy, as explained above. Ruether’s interpretive, redemptive strategy is to focus on the prophetic traditions that destabilize the ideologies supporting the male-dominated social order.
I will not try to fit my conclusions into the framework of any particular feminist theory. Nor will I dismiss the rabbinic corpus merely as the thinking of men about women, not women about women. I read and analyze these texts both from the perspective of a feminist consciousness and from the perspective of the Talmudist that I am trained to be. These qualifications, I hope, have predisposed me neither to put the rabbis on a pedestal nor to ignore their limitations. I place before the reader all the texts and my methods of analysis. The words will speak for themselves.
Notes