Shiur 16: Appointing a Woman to a Public Office
Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion
Shiur #16: APPOINTING A WOMAN TO A PUBLIC OFFICE
Based on a Shiur by Rav Binyamin Tabory
Much has already been written and published on the issue of appointing a woman to a public office. In this article, I wish to address points related to the appointment itself. It is not my intention to discuss questions relating to modesty, dignity of the community, and the like, with which other authors have already dealt. At the end of the article, I have appended a partial list of sources dealing with this issue for those who are interested in further study.
I. ROYALTY AND WOMEN THE SOURCES
a. The Sifrei on the verse, "You shall surely appoint a king over you" (Devarim 17:15), states: "'A king' and not a queen."
b. The Pesikta interprets the verse as follows: "'You may not set a stranger [lit., a strange man] over you' (ibid.) this is a negative precept. 'A man' and not a woman; from here [we learn] that a woman must not be appointed as a leader of a community."
c. The Gemara in Berakhot 49a states that kingship applies neither to woman nor to slaves (in the context of a discussion whether or not mentioning kingship is indispensable for fulfilling the mitzva of birkat ha-mazon).
II. DISCUSSION OF THE RABBINIC SOURCES
a. The first source (the Sifrei) asserts that there is a mitzva to appoint a king. It might perhaps be understood that the mitzva is not fulfilled when a woman is appointed as king. But it does not necessarily follow from this that a woman is excluded from kingship. The Minchat Chinukh refers to case where a woman can be a queen where she inherits her royalty. The problem regarding women and royalty relates strictly to the appointment, and not to the woman's status as a queen. Moreover, if the problem is only in the appointment (and perhaps also in the fulfillment of the mitzva), it may surely be proposed that if a woman can function better than all the other candidates, she may be appointed to the position even lekhatchila. Rabbi Yehuda Gershuni in his book, Mishpat ha-Melukha, recognizes this possibility, but in an even more novel form. He notes that according to the Ba'alei ha-Tosafot on the Torah in Parashat Mishpatim, despite the prohibition to appoint a proselyte as a judge, if there is nobody greater than him to fill the position, he may be appointed. As proof for their position, they mention Shemaya and Avtalyon, who, according to the Rambam, were proselytes, but nevertheless they were appointed as judges, because they were the leading authorities of their generation. This indeed is a more novel position, for a proselyte is disqualified from serving as a judge because of the negative precept, "You may not set a stranger over you." If it is possible to set aside this prohibition when there is no greater authority, then it is surely possible to appoint a woman to the royal throne, and thus set aside the positive precept, "a king, and not a queen," when there is nobody greater than her. One might, however, argue that the disqualification of a proselyte from serving as a judge is also a problem of his appointment, but the leading sage of the generation does not require an appointment, and it is as if he were appointed on his own. In any event, the Ba'alei ha-Tosafot imply that indeed there was an appointment in the case of Shemaya and Avtalyon, and that such an appointment is permitted when the proselyte is the leading authority of the generation.
b. According to the second source (the Pesikta), there is a prohibition to appoint a woman to public office (and not just the nullification of a positive precept). However, R. Moshe Feinstein (Iggerot Moshe, Yore De'a, pt. II, nos. 44 and 45), has already commented on the problematic nature of this derivation. According to the simple understanding of the Pesikta, we learn from "You may not set a stranger over you," that only a man is included in this prohibition, but not a woman. This leads to an absurd situation, that a non-Jewish woman may be appointed as king, and that the prohibition only applies to men. This difficulty led R. Moshe Feinstein to reject the words of the Pesikta entirely and to declare them a mistake. Nonetheless, if we try to understand the words of the Pesikta, we can say that it understands that since the entire passage deals with "a man," it implies that the passage is not dealing with women. But it remains unclear whether the problem is a nullification of a positive precept, as we saw in the Sifrei, or that there is also a negative precept. In any event, the discussion that we have raised, whether it is permissible to appoint a woman when there is no man more suited for the job than she is, still remains.
c. There are those who understand from the Gemara in Berakhot that a woman is excluded from kingship, but the Or Same'ach (on the Rambam, Hilkhot Melakhim 1:5) argues that this is not what the Gemara means. The Gemara means to say that a woman is not commanded to appoint a king, but it does not discuss the issue whether a woman is fit for royalty. He adduces strong proof from the fact that the Gemara does not disqualify priests and proselytes from serving as king, and we know that they are in fact disqualified, but they are obligated as part of the people of Israel to appoint a king (see Ramban in his commentary to the Torah on the verse, "The staff shall not depart from Yehuda" (Bereishit 49:10) and Rambam, Hilkhot Melakhim 1:4). If this is true, we can remove this source from the discussion.
III. WOMEN IN OTHER POSITIONS
Even if we assume that a woman is disqualified from kingship, we could argue that logically speaking this disqualification is limited to the kingship. It is possible that the primary roles of a Jewish king are in the realms of judgment and war, and that a woman who does not go out to war and is disqualified from serving as a judge is also excluded from kingship, but not from other offices. (A comprehensive discussion of the role of a king may be found in Prof. Y. Blidstein's "Ekronot Mediniyim be-Mishnat ha-Rambam, chap. 4, "Megamot ha-Malkhut").
The Rambam's ruling, however, contradicts this conclusion, for the Rambam writes (Hilkhot Melakhim 1:5): "And similarly to all offices in Israel, only a man may be appointed." The Rambam apparently accepted the Sifrei as the source of the law that a woman may not receive a royal appointment, for it says "king" and not "queen," but it is difficult to know what is his source to expand this limitation to other offices. R. Moshe Feinstein, in the aforementioned responsum writes that he does not know the Rambam's source (he rejects the Pesikta as a possibility). He writes, however, that the Rambam's position suffices to forbid the appointment of a woman to a position that involves authority. The Rashba in Shevuot 29b uses the same formulation: "A woman may not be appointed to any office in Israel," but other Rishonim appear to disagree. The Rishonim ask (see Tosafot, Bava Kama 15a, s.v. isha tasim, Ramban, Rashba; Tosafot ha-Rosh, beginning of chap. Shevu'at ha-Edut), how could it be that Devora was appointed as a judge surely a woman is disqualified to judge! The Ramban answers (compare to Tosafot ha-Rosh, Ritva, ad loc.): "That which it says: 'And she judged (shofeta) Israel' means she led them, i.e., the people conducted themselves in accordance with her word and counsel, as if she were a queen. And even though we say in the Sifrei: 'You shall surely appoint a king over you' a king and not a queen, they related to her as if she were a queen." The Ramban questions how Devora could serve as judge surely a woman is disqualified but her appointment to a position of authority did not disturb him, to the point that he answered that effectively she was appointed to serve in the capacity of a queen. Only then did the Ramban raise the difficulty of "king, and not queen," implying that only such an appointment is problematic, but a woman is qualified for other offices.
IV. DEFINITION OF "APPOINTMENT" AND "AUTHORITY"
The Acharonim have already discussed the question whether communal consent (by way of election or appointment by a body that represents the public) permits the appointment of a woman even according to the Rambam. The Tumim cites the view of the Keneset ha-Gedola that the community (or some representative body) appointed Shemaya and Avtalyon as judges despite the prohibition to appoint a proselyte to such a position. (Earlier, we cited another explanation in the name of the Ba'alei ha-Tosafot.) According to this, it stands to reason that communal consent should allow also the appointment of a woman as well. See, however, the Tumim, who disagrees with the author of the Keneset ha-Gedola, and argues that this allowance is only valid when the king makes the appointment. R. Mordechai Eliyahu (in a recent article in Techumin) rules that consent is effective only in the case of a restricted community, i.e., an organization, or a locality, but not for national office. Another question arises as to the precise offices included in the prohibition (according to the Rambam). A proselyte is disqualified from all offices in Israel; the Rambam includes in this prohibition the offices of judge, nasi, and even supervisor of water channels. The common denominator of all these roles is that they all involve a certain coercive authority. In the absence of such power, there is no "authority," and no prohibition of appointment (see Tosafot, Yevamot 101b, s.v. ve-ana ger ana, and Rosh, ad loc.). Thus, it is necessary to examine each office to see whether the officeholder enjoys coercive authority over the community. An interesting discussion may be found in the aforementioned responsum of R. Moshe Feinstein, whether or not a kashrut supervisor is regarded as enjoying a position of authority.
It might be possible to argue that every public office invests the officeholder with the status of judge, and so a woman who is disqualified from serving as a judge, is disqualified from public office. The Terumat ha-Deshen (II, no. 214) disqualified a "wicked person" from serving among "tovei ha-ir" the city notables, and offered the following explanation: "Community notables, when they convene to supervise public and private affairs, stand in place of a court." It is, however, possible that he only disqualified a wicked person from this position, and not because the position is equivalent to that of a judge, but because it is appropriate to disqualify a wicked person from serving in this position, just as he is disqualified from serving as a judge. See the wording of the Rema (Shulchan Arukh, Choshen Mishpat, 37) based on the ruling of the Terumat ha-Deshen: "The city notables who are appointed to supervise public and private matters are like judges, and it is forbidden to appoint to serve among them one who is disqualified to judge because of wickedness." Even if we assume that this position has the very same status as that of a judge, the permissibility of appointing a woman to this position will depend on our previous discussion, how it was that Devora was appointed to serve as a judge.
In order to forbid the appointment of a woman to a public office, one must combine all the aforementioned discussions and maintain:
1) There exists a prohibition to appoint a woman to a position of royalty (and not merely the absence of the fulfillment of a positive precept).
2) This prohibition extends to other offices as well (the view of the Rambam, as opposed to many other Rishonim).
3) Communal consent does not help in the case of an office that is regarded as equivalent to that of a judge or bearing authority.
4) The prohibition is valid even if there is nobody better suited to fill the position.
Other sources dealing with the issue include:
1) Piskei ha-Rav Uziel bi-She'elot ha-Zeman, no. 44.
2) Peri Malka, no. 64.
3) Mishne Halakhot, VII, no. 254.
(Translated by David Strauss)
 This article was not reviewed by Rav Tabory.