There is nothing absolutely ideal; ideals are relative to the lives that entertain them.
—William James
AS A TALMUDIST, I HAVE TRIED, throughout this book, to read the sources in as accurate a fashion as possible, applying to them the comparative and contextual analytical techniques described in the Introduction. As a feminist, I have tried to ferret out from these texts the thinking about women, their social status, their relationship to men, and the impact of rabbinic law on them. In addition, I have tried to point out the flaws in the two reigning theories, namely, that the rabbis—in grossly oversimplified terms—either hated women or else loved and respected them. The situation, to my mind, is much more complicated: On the one hand, the rabbis operated in a patriarchal framework and continued to treat women as secondary to men; on the other, they instituted many significant changes to benefit women. Although at any given moment in time Jewish law assigns women fewer rights and lower status than men, not always treating them as well as surrounding cultures, when we trace developments in Jewish law over time we see distinct movement, in a wide variety of legal and social institutions, from lesser status for women to greater.
Our examination of ten key issues and institutions of rabbinic law revealed:
1. that marriage, which used to involve the purchase of a woman by a man from her father, became, in rabbinic times, a form of “social contract” entered into by the prospective bride and groom
2. that divorce, which used to be the prerogative of men only, became possible for a woman, with the assistance of a rabbinical court, who could “force” a get
3. that women’s exemption from the obligation of procreation was not designed to devalue their role in procreation but rather to deny them an opportunity to sue for divorce after ten years of a barren marriage; even so, when put to the test, on a case-by-case basis, childless women were given the right to divorce their husbands
4. that women’s exclusion from the right to give testimony does not imply intellectual incapacity or emotional excess but is a function of their lesser social status; thus, women could testify on behalf of other women
5. that the law of the wayward wife, the sotah, which punished innocent as well as guilty women, but never men, was interpreted in a way that made it impossible to implement
6. that women’s disenfranchisement with respect to their father’s estate turned into partial enfranchisement when the rabbis established a dowry of a one-tenth share of the father’s net worth
7. that it was not women but men who added the extra seven “white” days to the seven-day sexual separation of husband and wife each month
8. that, according to the Talmud, women, in general, do not actively seduce men, but that men are involuntarily aroused in the presence of women, and, for that reason, may not spend time alone with them
9. that the biblical model of compensating the victim’s father for the loss of her virginity in a case of rape was abandoned in favor of a model of assault and battery, with compensation determined accordingly, and paid, in certain instances, to the victim herself
10. that women’s exemption from time-bound positive mitzvot was replaced in the course of time with selective obligation, a move consistent with the transformation of Judaism in the post-Temple period from a Temple-based to a home-based religion
I was able to arrive at these conclusions, most of which differ significantly from those presented in other books on the subject, because I read sources contextually, examining each together with associated rabbinic materials from the same time period and from others, either earlier or later. It is all too easy, if one reads texts out of context or plucks them from here and there to arrive at a different set of conclusions altogether. Although disparaging, even misogynistic, statements about women can be found in the Talmud, there is no textual evidence that the differential treatment of women and men derives from these attitudes. Rather, the explanation for the legal bias in favor of men is that the rabbis inherited and worked within a patriarchal society. In such a society, women occupy a subordinate social status.
It is therefore remarkable that in virtually every major area, as we have noted, the law was moving in the direction of extending to women more rights. Why did the rabbis make these changes? They were not feminist or proto-feminist. I can only speculate that a growing self-awareness on their part, a growing discomfort with patriarchal privilege, a deepening moral critique of society drawn from the words of the Torah themselves, greater familiarity with surrounding cultures, and even pressure brought by the people themselves, such as by women seeking divorce relief from gentile courts—all of this led to change.
Did the rabbis invent these new, enlightened rules themselves, or did they simply adapt them from Aramaic common law or Greco-Roman law? Does it make any difference if, in fact, they are “borrowed”? Since so many ancient law codes are reworkings of earlier codes and practices, and since so many similarities exist between rabbinic law and other ancient systems, there is reason to believe that a significant part of what we see in the Talmud was already standard practice. But that does not diminish the accomplishments of the framers of rabbinic law. What I have been particularly interested in showing is that, from generation to generation, individuals introduced modifications into transmitted texts and that these modifications, when taken together, add up to a larger picture of improving people’s lives, women’s in particular. Even if the rabbis did not invent the ketubah or the dowry or the wife-initiated divorce, they chose to incorporate them into the rabbinic scheme of things.
Moreover, since within their own circles they debated fine points of law, it follows that it was not necessary for them to accept, uncritically, the common practice of the people. The fact that in many areas they chose to depart from it suggests that they did not simply adopt cultural norms but filtered them through their own religious and legal patterns of thinking, accepting only those practices that appealed to their (patriarchal) sense of justice and devotion to God.1This same point is made by Reuven Yaron (Gifts in Contemplation of Death in Jewish and Roman Law [Oxford: Clarendon Press, 1960], 19). He says that although there was considerable Hellenistic influence on the laws of disposition of one’s estate, the Hellenistic legal institutions were not accepted indiscriminately. That is, showing that some rabbinic legislation was not invented by them but rather taken over by them does not disprove that the rabbis acted deliberately to improve women’s social and legal position. It actually strengthens that point. For even though the rabbinic system of law, like most others, is based on previous ones, it, nonetheless, deliberately made changes that it saw fit to make. We also saw, in many instances, uneven development over time: The Tosefta ruled leniently, the Mishnah stringently, and then the Bavli and Yerushalmi leniently, like the Tosefta.
We should also note that the consequence, if not the intention, of much of the legislation we looked at was to protect women and strengthen marital bonds. For instance, although the rabbis themselves probably recognized that the monthly sexual separation of husband and wife derived from a biblical revulsion of menstrual blood, they also understood that the result of such a separation was to maintain his sexual interest in her and also hers in him. Similarly, obligating only men to procreate and exempting women was probably a way to prevent women from initiating divorce, but the outcome was to make it possible for women to choose to have children or not. In a world of high incidence of maternal mortality, this choice may have been important to women. Even the paragraphs that barred men from being alone with women and fathers from sleeping in bodily contact with young daughters, although intended to protect men from sexual transgression, also served to protect women and children from sexual abuse.
What also came to light in the course of reading the Talmudic materials were many passages in which men explicitly or implicitly express anxiety about their own abilities. For so long, we have heard men’s dismissive critique of women, for their garrulousness, jealousy, vanity, light-headedness, sexual promiscuity, to name a few of their supposed defects. Now that women are studying the Talmud, they may find new parts that will be of special interest, such as those in which men describe themselves as weak or foolish or fearful, qualities not usually associated with them. Here and there the men let their guard down and reveal some of their own insecurities. The presence of these materials, as scattered as they are, suggests that the Talmud’s composite picture of men is probably different from what most of us think.
It is significant that nearly every woman appearing in these chapters is portrayed by the Talmud in positive terms. When women come to court, they make reasonable requests of the rabbinical judge and are appropriately accommodated by the decision he renders. Many of them appear clever, resolute, and possessing clarity of vision. On occasion, they shame men who are lacking in some of these very same qualities. The fact that the Talmud, overall, portrays individual women favorably indicates that the rabbis were willing to recognize merit and talent even in those who were subordinate to them.
Returning now to our original question at the beginning of this book: How do we, today, respond to the fact that the rabbis of the Talmud treated women in a less than equal manner, since we find such discrimination distressingly unethical? Can we accept their legislation if we reject their social agenda? In my opinion, yes. An important finding of this study is that Jewish law changes over time, albeit slowly, and that the key legal institutions at the end of the rabbinic period looked very different from the way they looked at the beginning. Or, to put it more conservatively, the rabbis fleshed out the institutions of Jewish law in ways that one could not have predicted by reading the relevant Torah verses. It is true that they did not achieve or even seek equality for women. But, since they were moving consistently to give women more “rights,” I suggest that we not judge them too harshly. The changes they made and, in particular, the direction in which they were headed, makes them fitting precursors for us. As we face our own problems with the practice of Judaism today, we can turn to the rabbis of the Talmud for solutions. They laid the groundwork and pointed the way.
I would like to end this book in the same way that it began, with a story about men and women and their complex set of interrelationships.
––Samuel wanted to have sex with his wife.
She said to him, “I am ritually impure [and hence not available].”
But the next day, [without having immersed in a mikveh], she said to him, “I am now ritually pure.”
He challenged her: “Yesterday you said you were impure and today you are pure?”
She answered: “Yesterday I did not have enough strength [for sex, לא הווה בחיילי היי שעתא. Today I do.]”
He went and asked Rav [if he should believe her that she is pure].
Rav said: “Since she gave a reasonable explanation [מתלא] of her behavior, she is believed.” (PT Ketubot 2:5; 26c)
This anecdote turns marital dynamics upside down. It is well known that issues of ritual purity restrict a woman’s sexual availability. For this reason no husband can ever be sure that when he wants sex with his wife, she will be able to accommodate him. But we find here a new limiting factor: a woman’s ability falsely to claim ritual impurity when not in the mood for sex. It would seem that Samuel’s wife could simply have said “no” but decided instead that the easiest and most effective way to resolve the matter was to offer a “religious” excuse. Rav tells Samuel to accept her lie as “truth” because she gave what he calls a reasonable or plausible explanation for telling it—not wanting to engage in sex with her husband! He thus supports women’s ability to exercise power over men in this way. The ultimate outcome is that the purity rules, which some say treat women like objects, in this case give a wife a measure of control over the couple’s sex life.
The Babylonian Talmud’s version of this anecdote brings other truths to light.
––Samuel asked Rav: If a woman says she is ritually impure and then [the next day] says she is ritually pure, what is the law? [Is she to be believed when she says, without any intervening immersion in a mikveh, that she is pure? May her husband proceed to have sexual relations with her?]
He said to him: … if she gives a reasonable explanation [for lying], she is believed [when she says she is ritually pure].
Samuel listened to Rav say this forty times(!) and still could not bring himself to act upon it. (BT Ketubot 22a)
It is remarkable that in this version of the incident, Samuel asks Rav precisely the same question that he asked in the other one, but without any reference to his personal circumstances. By not locating Samuel’s query within an anecdote, the redactor does not allow any real woman’s voice to be heard in this exchange. As a result, the charm and certainly the bite of the story are lost. The issue of a wife thwarting her husband’s sexual drive because she was not interested in sex at the time, although probably implied, is not brought to the surface. Samuel is the main character in this version, and his extraordinary (or perhaps excessive) piety, the note on which the story ends, is singled out for praise. By introducing these changes, the redactor has censored the story, rewriting it in a way that preserves the legal conundrum but makes the rabbi look righteous rather than foolish (or foolishly righteous).
Returning to the first version, we may now ask: Why did men choose to incorporate this story into the Talmud? The simple answer is that it is an apt illustration of a rabbinic rule of evidence, “if someone gives a reasonable explanation of the lie one told, he or she is believed.” A better answer is that the deliberate, even savvy inclusion of anecdotes like these shows that the Talmudic rabbis do not take themselves too seriously. They exhibit a liveliness of outlook and an openness to self-critique. Moreover, the redactor may have deliberately injected a feminist message, namely, that clever, resourceful women may take patriarchal structures designed to subordinate women and utilize them instead for their own empowerment within rabbinic law itself. In the Talmud, women seemed content with gaining a measure of control within a patriarchal system. Today, armed with the knowledge that Jewish law is open to change, women are likely to seek to become full-fledged members of the Jewish community.