Why Can’t a Woman Be a Judge?

In 1993, Ruth Bader Ginsburg smashed two glass ceilings when she was appointed as an associate to the Supreme court of Justice of the United States. RBD, as she became known, broke two impressive ceilings, she was the first Jewish woman, and only the second woman, to serve as a Supreme court justice. Serving as a model for women to aspire to, her story became the stuff of legends. 

Interestingly, however, is that when it comes to Jewish judging, halacha determines that women are not permitted to judge in a Beit Din. That role is reserved for men. Let us look at the reasons this is so, and consider how this ruling might influence our thinking on halacha and gender rights.

The Source

The source for this law comes from a discussion in Masechet Shavuot, which deals with the halachot surrounding vows taken during testimony in court. 

The oath of testimony is practiced with regard to men but not with regard to women, with regard to non-relatives of the litigants but not with regard to relatives, with regard to those fit to testify but not with regard to those unfit to testify due to a transgression that they performed. And the oath of testimony is practiced only with regard to those fit to testify¹.

From this mishna we learn that women are not considered eligible for testimony in a court of law. The Mishna in Yevamot² teaches us that anyone who is not eligible to testify in court may also not judge. This concept is further brought in the Yerushalmi in Masechet Yoma³ and in Masechet Niddah⁴, and from all these sources we learn that women therefore may not be judges in a court of law. The issue was further debated by the Tossafot, who have a long discussion on whether women are in fact eligible to judge, asking how it was that Devorah, the famed prophetess of the days of judges, did in fact judge!⁵ The bottom line halacha as found in the Shulchan Aruch⁶ is that women may not serve as judges, or dayanim, in religious courts of law.

The Mishna in Yevamot teaches us that anyone who is not eligible to testify in court may also not judge. This concept is further brought in the Yerushalmi in Masechet Yoma and in Masechet Niddah, and from all these sources we learn that women therefore may not be judges in a court of law. The issue was further debated by the Tossafot, who have a long discussion on whether women are in fact eligible to judge, asking how it was that Devorah, the famed prophetess of the days of judges, did in fact judge! The bottom line halacha as found in the Shulchan Aruch is that women may not serve as judges, or dayanim, in religious courts of law.

Why not? Indeed the Tosafot bring a clear opinion that the reasoning does not stem from women’s lack of ability to judge, or an idea that civil mitzvot relate to women differently than to men. When it comes to the bar on female judges, two suggestions are generally offered. We will explain them below. 

“Two Men”

The pasuk in Devarim states: “Then both the men, between whom the controversy is, shall stand before the Lord, before the priests and the judges, who shall be in those days.”⁷ The Talmud, as seen in the mishna mentioned above, takes the meaning of the word ‘men’ to exclude women. This is called a gzerat hakatuv – a decree based on the text in the Torah, and the Rabbis offered no further explanation on the rationale behind it. Based on this, the Rambam determined that the issur on women being judges is a law of Biblical nature⁸ and while the abovemention Tosafot did not say so explicitly, they too lean that way. This would have significant meaning if we were to claim that it “should” be changed in our days, where the context of our society and the role of women in religious settings is so vastly different. 

Tzniut

As mentioned, the understanding of ‘two men’ to mean exclusively men explains one element of the issur, it does not really give us insight into the reason behind it. The most commonly suggested reason is one of tzniut. Many of our scholars have suggested that for women to be in a role of judge is immodest, and further, goes beyond the role that women should be playing in Jewish life⁹. A reticence toward women in public roles can be inferred by many rabbanim as based on the pasuk in Tehillim ‘kol kvodo bat melech pnima’¹⁰, understood to mean that a daughter of Hashem should be focussed on issues relating to internal matters, rather than communal or public ones. Certainly, in our world today, many women are deeply involved in communal affairs and indeed in a most tzanua way. The issur on having dayanot does not negate this. 

Who Needs this Pain?

Another approach to our question examines the practical experience of serving as a witness: anyone who has ever had to testify in court – a beit din, or a secular one- can attest to the fact that it is a very difficult position to be put in. The pressure to give the correct and honest answer, the attitude of the lawyers one is facing, make it an overwhelming and challenging experience. Rabbi Jay Kelman suggests “Perhaps it is because the harshness displayed towards witnesses… was such that our Sages expected that no one would want to testify; the burden of one’s mistaken testimony leading to a wrongful conviction could simply be too great. The best answer our Sages could offer to the cry of, “Who needs this pain?” of testimony (Sanhedrin 37b) is that there is a biblical obligation to testify. 

Devorah

As mentioned, Devorah’s role as a judge throws a spanner in the works of this discussion! Here, signed and sealed in our holy books, is a bonafide case of a female judge! Or is she? Without going into too much detail, our Sages have largely determined that the case of Devorah’s judgment was an exception to the rule, and additionally, that her judgment did not have the status of dayanut. Devorah, they explain, judged based on the acceptance of the community of her as their judge. She was not able to force her rulings on the people and this is reflected in how she judged (with people coming to her, rather than her traveling to them)¹¹. A dayan, on the other hand, has the authority to impose his rulings. This is an essential difference, and perhaps also why in referring to Devorah the text uses the ‘shofetet’ and not ‘dayanet’. 

Perspective

There is no need to sugarcoat that in our modern day and age, some halachot leave us feeling uncomfortable. Indeed, in living in the modern world we need to acknowledge and grapple with this discomfort; how can it be that in the secular world one can become a Ruth Bader Ginsburg, yet in the Jewish world, one cannot? In approaching these issues, we need to be careful not to throw the baby out with bathwater. In this case it is important to remind ourselves that Torah came before the modern age, and that while the latter is constantly changing, Torah is timeless. Indeed, that is one of the many aspects of it that makes it so beautiful and even comforting in our dynamic lives. 

Rabbi Kelman reminds us of the intersection between halacha, society and avodat Hashem when he concludes his article on this question with the following words: “That many areas have traditionally been closed to women is reflective more of social norms (which then themselves become part of the halachic discussion) than halachic necessity. How quickly changes are made, or whether they should be made at all is, as we all know, hotly debated. Let us hope and pray that this debate is conducted for the sake of heaven.” This last point should always be our guiding principle. In the same vein, it is important to remember that while a position as a dayanet is off the table, we are, as Devorah shows us, entitled to, and encouraged to take on, many other, no less important roles in our Torah lives. From the personal – daughter, wife and mother – to the more public facing – teacher, Yoetzet Halacha, Rabbanit – our lives abound with opportunities to be an eved Hashem. 

1. Shavuot 30a:1 ↩︎
2. Yevamot 45b ↩︎
3. Yerushalmi, Yoma 6:1 ↩︎
4. Nidda 50a ↩︎
5. Nidda 50a ↩︎
6. Shulchan Aruch, Choshen Mishpat ↩︎
7. Devarim 19, 17 ↩︎
8. Rambam, Hilchot Sanhedrin 2:1 ↩︎
9. See for example Rav Moshe Feinstein, Igrot Moshe, Even Haezer, 2:11 ↩︎
10. Tehillim 45:14 ↩︎
11. For specific sources read our article on Devorah here: https://tzofia.org/2024/05/devorah-judge-prophetess-mother/ ↩︎