Women and Tefillin - Two Views of Halacha

R. Mayer Twersky has written a very clear and informative critique (reposted at Cross-Currents) of the decision to permit two Orthodox girls to wear tefillin. (See my previous post and links there for a discussion of the underlying events.) R. Twersky's essay nicely reflects the traditional Orthodox approach to halacha. R. Adlerstein at Cross-Currents called it "magisterial" and correctly noted, "Ultimately, it is not about women or tefillin - it is about the very nature of halachic process."

R. Adlerstein is exactly right. There are two basic approaches to halacha, and the choice of approach largely dictates the result in this case. (There is a similar dichotomy in American law.)

R. Twersky makes three main arguments: (1) almost 500 years ago, a key rabbinic figure (the Ramo - R. Moses Isserles) held that women could not wear tefillin, many great thinkers have agreed since then, and only a really great rabbi could change that now, (2) halacha should not give way to contemporary mores and social beliefs, and in any case (3) women who want to wear tefillin may be sincerely but are ultimately misguided by the false philosophy of egalitarianism adopted by Western culture and liberal branches of Judaism. The underlying premise of these claims is that the earlier rabbinic decisors have pretty much figured out God's will in making these rulings, and it is the height of arrogance for the rest of us to think we know better. The result of this approach -- for better or worse -- is a very static and unchanging set of rules and practices.

The alternative view of halacha is more dynamic. It gives weight to past decisions, but allows contemporary rabbis to change the rules where it is appropriate. Of course, figuring out "where it is appropriate" is often difficult. The process is interesting.  These decisions often get made at the local level first. Great rabbinic thinkers, ordinary people, and everyone in between debate the wisdom of these practices, and through this dynamic process, some practices change, others remain constant, and others still remain normative practices that are sometimes not followed by some people. The process is messier, but -- again, for better or worse -- is more dynamic and flexible.

The challenge faced by Orthodoxy is that many Orthodox Jews accept, at least to some degree, some contemporary ideas that are in conflict with (or at least in tension with) traditional Judaism. These include ideas regarding egalitarianism (as to non-Jews, women, and perhaps gays and lesbians) and the benefits and reliability of science. This sometimes makes it difficult to follow decisions made or practices established hundreds or thousands of years ago by people who did not share these beliefs, or even consider them. Resolving that tension is often difficult, especially within a traditional Orthodox framework.

The challenge faced by liberal Judaism is how to convinces its members to follow (or even care about) a liberal approach to halacha. After all, if Jewish law represents antiquated practices based on erroneous understandings of history and science as well as social beliefs that offend our deeply held modern sensibilities, why should anyone care at all about what traditional Judaism claims? (I think there are good answers to this question, as I am discussing on this blog.)

But it is largely this prior choice of which approach to halacha to follow that determines how one comes out on the issues like whether women are permitted to wear tefillin.