Kiddushin 35

Rules for women.

We’ve been exploring the mishnah’s general rule that women are not obligated in positive, time-bound commandments. But, as we saw on yesterday’s daf, there is no clear biblical basis for the rule (though the Gemara offers some clever derivations) and exceptions in actual practice. In fact, there are so many exceptions that one might wonder whether this should be the rule at all. The Gemara observes that one could argue the opposite — that women’s obligation in positive, time-bound commandments is the rule, with notable exceptions.

Here’s how one might make that argument: According to rabbinic tradition, the Torah implicitly commands women to eat matzah at the seder. The Torah also explicitly commands women to participate in hakhel, the public reading of the Torah every seventh Sukkot. Both of these are positive, time-bound mitzvot, so the rabbis ask why these verses couldn’t be used to come to a general conclusion that women are obligated for all positive, time-bound mitzvot? The answer is that we have the following rule:

Any two verses that come as one do not teach a precedent.

Having two examples of positive, time-bound mitzvot that women are obligated to perform does not allow us to leap to the conclusion that women are obligated in all positive, time-bound mitzvot.

The challenges keep coming. As we saw yesterday, the foundation of the mishnah’s general rule exempting women from positive, time-bound mitzvot is that women are exempt from wearing tefillin. However, not everyone agrees that tefillin really are a time-bound mitzvah:

And who did you hear say that tefillin is a positive mitzvah that is not time bound? It is Rabbi Meir …

And even the principle about not generalizing a rule from two exceptions seems not to be universally accepted. Once again, the Gemara is willing to at least give these dissenting arguments a hearing:

And according to the opinion of Rabbi Yehuda, two verses that come as one do teach a precedent, and donning tefillin is a positive mitzvah that is not time bound. 

What emerges from these discussions is a picture the rabbis forced to resolve contradictory traditions, some of their own making. The Torah has no general statement on which mitzvot obligate women, and doesn’t offer explicit guidance for most mitzvot. The mishnah has a general statement, but it doesn’t match established practice. So how can we prove the mishnah’s principle? And why does it so poorly match what people actually do?

The daf shifts briefly to an easier problem, noting that women are consistently required to observe all negative mitzvot (things one is not allowed to do) with only three exceptions:

And with regard to all prohibitions, whether they are time-bound or whether they are not time-bound, both men and women are obligated to observe them, except for the prohibitions of: do not round the corners of your head, do not destroy the corners of your beard and do not contract ritual impurity from a corpse.

The hair-cutting prohibitions, by custom, apply only to men (and the beard one for obvious reasons). The last applies only to priests, who are always men. So, these exceptions are easy to explain, and in general establishing a biblical basis for the rule that men and women are obligated in the same negative mitzvot turns out to be a lot easier:

Rav Yehuda says that Rav says, and likewise the school of Rabbi Ishmael taught: The verse states with regard to a guilt-offering: “When a man or woman shall commit any sin that a person commits…” (Numbers 5:6). The verse equates a woman to a man with regard to all punishments (for violated prohibitions) in the Torah.

In the end, far less attention is given by the Gemara to women’s obligation to observe negative mitzvot than to women’s inconsistent exemption from positive mitzvot that are time-bound. Refraining from negative mitzvot is important, as is clear above, because it maintains societal peace and order. But requiring people in positive mitzvot has a less obvious pay-off. As a result, the obligation of women is far more contested. And the discussion is messy, perhaps because, as Rabbi Elliot Dorff has taught, custom (not formal biblical exegesis) has always driven law on women:

“The Talmud’s discussion and rulings, then, indicate quite clearly that neither a legal analysis of biblical verses, nor even a rabbinic attempt to generalize over the practices of their time was the ground for determining what women may or may not do. That instead was decided on the basis of the multiple and inconsistent, but apparently well-established, customs of their community.” (Conservative Judaism 49:3, 1997, p. 5.)

Our daf offers but one example of how custom, especially when applied to gender distinctions and public roles, might be entrenched but is not immutable. Law can and does change, as society’s views of men and women develop.

Read all of Kiddushin 35 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 17th, 2023. If you are interested in receiving the newsletter, sign up here.

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