Published in Tradition, 46:4 (Winter, 2013), 67-238.
Rabbi Aryeh A. Frimer is Ethel and David Resnick Professor of Active Oxygen Chemistry at Bar Ilan University.
Rabbi Dov I. Frimer, a practicing attorney, is Adjunct Professor in the Faculty of Law at The Hebrew University and a member of Tradition’s editorial board.
Women, Keri’at ha-Torah, and Aliyyot1
The communal keri’at ha-Torah (reading of the Torah as part of the prayer service) has undergone something of an evolution over the years. The roots of this service can be traced back to the septennial Hakhel service held on Hol ha-Mo’ed Sukkot following shemitta (the sabbatical year). It was then that the King read portions of the book of Deuteronomy to the assembled nation, “men, women and children.”2 As noted by the Hinnukh,3 the purpose of this reading was not just the public study of the Torah, but more importantly a reaffirmation of the centrality of the Torah and Torah study in the life of the Jewish people.
In addition, the Talmud4 records a tradition that a central reading of the Torah for the Sabbath, holidays, Rosh Hodesh, Hol ha-Mo’ed, Mondays, and Thursday was established at the time of Moses.5 It was not until the beginning of the Second Commonwealth that Ezra the Scribe (ha-Sofer) instituted keri’at ha-Torah on Sabbath afternoons. It would seem that the Mosaic practice had only one oleh, i.e., a single individual to get an aliyya and read the Torah aloud for all. It was Ezra who instituted multiple aliyyot, varying in number according to the nature of the day: seven on the Sabbath; six on Yom Kippur; five on the remaining Festivals; four on Rosh Hodesh and Hol ha-Mo’ed; and three on Sabbath afternoon, Hanukkah, Purim, fasts, Mondays, and Thursdays.6 The goal of these readings was public Torah study, and to assure that it would take place on a regular basis.
The mishna in Megilla (4:2) makes it clear that the seven aliyyot designated by Ezra for the Sabbath are actually the minimal number, and additional aliyyot (called hosafot) may be added as desired.7 Since these hosafot are part of the original takkana (enactment) of aliyyot, theyare also part and parcel of the fulfillment of this rabbinic obligation.8 Thus, one who receives a hosafa recites the birkhot keri’at ha-Torah just like one who received one of the first seven.Whether hosafot may be added on the holidays, as well, is a matter of dispute, though R. Moses Isserlis (Rema), along with the majority of codifiers, rules that it is actually permitted.9 Nevertheless, the general custom is to refrain from adding hosafot on Yom Tov – with the exception of Simhat Torah. In the latter case,R. Israel Meir ha-Kohen Kagan,10 explains that we follow the basic law (me-ikkar ha-din) which is lenient, in order to enhance the rejoicing with the Torah.
The codifiers further discuss whether, as part of the Torah reading (basic aliyyot or hosafot), it is permissible to reread a section that was already chanted in a previous aliyya – and recite the keri’at ha-Torah benedictions thereon. The ruling of both Rabbis Caro and Isserlis is to follow the lenient opinion of Rivash when there is good reason to do so. This is indeed the normative practice on Hanukka, Hol ha-Mo’edSukkot,and Simhat Torah – where the same verses are read repeatedly.11 Since the codifiers conclude that hosafot and repetitions are all part of Ezra’s original enactment of keri’at ha-Torah and communal Torah study, birkhot ha-Torah are recited. The take-home lesson is that there is no room to make any distinctions between the requirements and level of obligation of the first seven aliyyot and those of the hosafot. This conclusion is stated explicitly by many leading posekim (decisors or adjudicators of Jewish law).12
We turn now to the keri’at ha-Torah benedictions. Initially, prior to the reading, the firstoleh began by reciting "Barekhu et Ado-nai ha-mevorakh (Bless the Lord who is blessed).” To which the community responded, and the oleh repeated: “Barukh Ado-nai ha-mevorakh le-olam va’ed (Blessed is the Lord who is blessed for all eternity)." This first oleh then recited the first of the two birkhot ha-Torah "…asher bahar banu mi-kol ha-amim… (Who chose us from all the nations)." The lastoleh following his aliyya recited the culminating benediction, "…asher natan lanutorat emet… (Who gave us a Torah of truth)." The intermediary olim recited no benedictions.13 Already in Talmudic times, this procedure was changed so that eacholehrecited the barekhu salutation andthe two berakhot before and after his reading.14
Additionally, each oleh originally read his own Torah portion aloud from the sefer Torah.15 This required literacy, knowledge, and preparation – a challenge to which not all were equal.16 It was not until several hundred years later, in the post-Talmudic Geonic period,17 that a ba’al keri’ah (Torah reader) was appointed to read aloud from the Torah for each oleh.18
תנו רבנן: הכל עולין למנין שבעה, ואפילו קטן ואפילו אשה. אבל אמרו חכמים: אשה לא תקרא בתורה, מפני כבוד צבור.
The Rabbis taught: All are eligible for an aliyya (hakol olin)20 among the seven [Sabbath aliyyot] – even a minor and even a woman. However, the Rabbis declared: a woman should not read (lo tikra) from the Torah – because of kevod tsibbur (communal honor).
Although this source presumably suggests that women are theoretically eligible to receive an aliyya and read their portion, in practical terms, however, this was seemingly ruled out because of kevod ha-tsibbur. This dichotomy finds further expression in the ToseftaMegilla, which reads:21 והכל עולין למנין שבעה, אפילו אשה, אפילו קטן. אין מביאין את האשה לקרות לרבים.
And all are eligible for an aliyya among the seven [Sabbath aliyyot] – even a woman and even a minor; [however,] we do not bring a woman to read for the community.
Despite the above negative ruling of the Talmud and Tosefta, and in their wake all subsequent codifiers,22 there have been several recent attempts to reopen this issue. Within the last decade, two major approaches have been suggested - one penned by R. Mendel Shapiro23 (in part based on the earlier writings of R. Yehuda Herzl Henkin24) and the other by R. Prof. Daniel Sperber25 - which attempt to build a case for women's aliyyot at a normative halakhic service.26 In essence, they argue that the change in women’s sociological status in contemporary society should impact upon the contemporary halakhic relevance of kevod ha-tsibbur – such that bona fide aliyyot, with their attendant blessings, should no longer be out of bounds for women. R. Shapiro further posits that if the major barrier to women getting aliyyot is kevod ha-tsibbur,then the community should be sovereign to forgo its honor. Prof. Sperber, on the other hand, maintains that if there is a community of women who are offended by their not receiving aliyyot, then kevod ha-beriyyot,the honor of the individual, should trump kevod ha-tsibbur, the honor of the community.27 These lenient rulings were soon after put into practice in various “egalitarian halakhic” or “Partnership” minyanim (e.g., Shira Hadasha in Jerusalem and Darkhei Noam in Manhattan; see Addendum for further discussion). The motivation for these innovations was, to our mind, positive and sensitive – an attempt to afford women greater opportunities for unmediated invovement in Jewish ritual.28 The question that we will address, however, is whether or not such innovations lie soundly within the parameters of halakha.
II. Assisting Others in Fulfilling their Religious Obligations
As previously noted, in Mishnaic and Talmudic times there was no such institution as the ba’al keri’ah, and, hence, each oleh read his own Torah portion aloud from the sefer Torah for the community. It necessarily follows that the Babylonian Talmud and Tosefta in Megilla cited above,which grant theoretical eligibility to women to receive an aliyya, also empowered the olah to read her portion for the community. This ability to read from the Torah, and assist (le-hotsi) the other members of the community in fulfilling their keri’at ha-Torah obligation, might indicate that women share in the communal obligation of keri’at ha-Torah. The rationale for this conclusion requires us to go off on a bit of a tangent to discuss the rules of assisting others in fulfilling their obligations.
Mitsvot can be divided into two categories: (a) mitsvot which are incumbent on one’s body (mitsvot she-beGufo), like donning tefillin and wearing tsitsit,eating matsa and maror on Passover, and immersing in a mikva; (b) mitsvot which are verbal or auditory obligations, such as reciting kiddush or havdala or reading Megillat Esther.With regard to mitsvot she-beGufo, each individual must perform them for themselves – no one can do these mitsvot for another, and the principle of agency (sheluho shel adam ke-moto – one’s agent is as oneself) is of no avail.29 On the other hand, with respect to verbal or auditory obligations, one Jew can receive assistance from another. Thus, one can, for example, recite appropriate benedictions, read the megilla, and sound the shofar for his fellow to hear. The mechanism by which this assistance is received is known as shome’ake-oneh (listening attentively is like reciting it oneself).30
According to most authorities, shome’ake-onehis a transfer mechanism, by whichnot only the verbal aspects, but the totality of the "assister's" actions, are conveyed to the "assistee." As a result, de jure, both the assister and the assistee have simultaneously fulfilled the same obligation.31 Thus, for example, although the congregants themselves are not reading from a parchment, they fulfill their commandment of reading Parashat Zakhor from a sefer Torah and the recitation of the Book of Esther from a bona fidemegilla, with the rendering of the ba’al keri’ah who is doing so. Similarly,those assembled carry out their obligation of reciting kiddush or havdala over a cup of wine, though they themselves are not holding such a cup.
However, Jewish law asserts that there is an intimate connection between obligation and this empowerment to assist others. Thus, the major proviso for shome’ake-oneh is that the one rendering the assistance must be a bar hiyyuva (obligated), as stated by the Mishna: “Anyone who is not obligated cannot assist others in fulfilling their obligation.”32 This latter ruling readily leads to the conclusion, that “only one who is obligated can assist others in fulfilling their obligation.”33 Importantly, the Mishna’s ruling also suggests that one not obligated can nonetheless perform the mitsva for themselves, since no transfer mechanism is required.34
Since obligation is pivotal to assisting others, let us clarify this requirement a bit more. The obligation we are referring to must be an “inherent” obligation. The term “inherent” refers to an obligation that devolves upon an individual because it was biblically or rabbinically commanded. The individual remains “inherently” obligated whether or not he has in fact fulfilled the obligation. This term comes in contradistinction to “assumed” obligations. For example, women are generally exempt from positive commandments which, like sukka, shofar,and lulav, are not continual obligations but, rather, time-determined—mitsvot aseh she-haZeman geramman.35 Nonetheless, women may perform them on a voluntary basis, as a petura ve-osa (one who is exempt, yet performs the commandment). However, women who repeatedly take upon themselves the performance of a normally optional/voluntary mitsva (like hearing the sounding of the shofar) may, according to many authorities, transform its status into one that is akin to that of a compulsory obligation (kibbelu or shavya alaihu hova).36 But this is not because the women now bear an inherent obligation like the men,37 but rather because there is now a neder mitsva – an oath to do a righteous act.38 As such, and unlike inherent obligations, the assumed obligations can be removed via hatarat nedarim, the traditional procedure for removal of oaths.39
Returning to verbal or auditory obligations and shome’ake-oneh, the codes have refined this pivotal mechanism further:40
(1) Shome’ake-oneh only enables one Jew (“the assister”), who is actively fulfilling his or her own obligation at that moment, to assist (in yeshivish parlance, “to be motsi”) those with an equal or lesser obligation (e.g.: a biblical vs. a rabbinic mitsva; or a rabbinic vs. a non-obligatory mitsva) to fulfill their duty. One cannot, however, assist another Jew who bears a greater obligation; put otherwise, one cannot receive assistance from another Jew of lesser obligation. This is because when the relative level of obligation of the assister (motsi) is lower than that of the assistee (yotsei), it is as if the assister is not obligated at all.41
(2) Shome’ake-oneh also enables two individuals who both want to perform a non-obligatory act – for example, to recite a birkat ha-nehenin (pleasure benediction) prior to eating food42 or birkat ha-mitsva (mitsva benediction)43 before the performance of an optionalmitsva44 – to assist one another. This is provided that both are doing the exact same action at the same time. However, one who already recited their food or optional mitsva benediction cannot repeat it for someone else; this would be a berakha le-vattala (a benediction for naught) which is forbidden.45
(3) Based on what we have said until now, one who was obligated, but has already fulfilled his/her obligation, should be ineligible to utilize shome’ake-oneh to assist his fellow Jew, since he/she no longer has an obligation to fulfill (see no. 1). Nevertheless, in the case of obligatory mitsvot – be they biblical or rabbinic –he/she still bears religious responsibility or arevut46 for his/her fellow Jews who have yet to fulfill their obligation. Because of this religious responsibility, or arevut, one is still deemed obligated to some extent at his/her original level47 and is, hence, empowered – and even required – to assist those with an equal or lesser inherent obligation. This principle is also known in the halakhic literature as “af al pi she-yatsa motsi”48 – even though one has fulfilled his/her obligatory mitsva, arevut empowers him/her tohelp others to fulfill their requirement. The consensus of posekim is that arevut is applicable not only to birkhot ha-mitsva, but also to obligatory birkhot ha-shevah (benedictions of praise).49
To reiterate: shome’ake-oneh is the halakhic vehicle by which one Jew can assist another in fulfilling his/her verbal or auditory requirements. The prerequisite for this is that the oneh (reciter) is actively discharging his/her own duty at that moment. Nevertheless, in the case of obligatory mitsvot, even if one has already fulfilled his/her obligation, arevut recreates sufficient obligation for shome’a ke-oneh to kick in again.
Two points need to be emphasized, however. Firstly, arevut cannot allow someone with a lesser obligation (e.g., rabbinic) to assist another Jew with a greater obligation (e.g., biblical). Arevut is no stronger than shome’a ke-oneh itself; it only ‘reboots’ the obligation at its original level. Secondly, the principle of af al pi she-yatsa motsi applies only to obligatory mitsvot (no. 1 above). It does not, however, apply to optional mitsvot or to pleasure benedictions (no. 2 above), which do not carry with them any intrinsic requirement that they be performed at all (see no. 5 below).
(4) Arevut can also be used by those who would have been fully obligated were some external condition fulfilled. They are considered “inherently obligated,” even if a prerequisite condition for the actual obligation has not yet been fulfilled. They therefore can recite the appropriate benediction for their fellows requiring assitance.50 For example, if one partakes of bread and eats his fill (kedei sevi'a), he would be biblically obligated in Birkat ha-Mazon. However, because of arevut, one who ate only a ke-zayit of bread, and is, therefore, only rabbinically obligated,51 can join a zimmun and recite Birkat ha-Mazon for one who ate his fill.52 This is because the one who ate only a ke-zayit of bread could eat his fill and become biblically obligated.
The halakhic literature is replete with examples of the application of the arevut of inherent obligation. Thus, any male can recite the Birkat le-Hakhniso for the illiterate father of a child undergoing circumcision, even though the assister lacks a newborn son.53 The rationale is that if the assisting male were to have a son, he would be obligated to recite Birkat le-Hakhniso at the circumcision. In addition, it is the universal custom for the mesadder kiddushin (the one performing the wedding) to recite the Birkat Erusin (betrothal benedictions)54 – even though they are actually incumbent upon the groom.55 This is because if the mesadder kiddushin himself were to marry, he would be obligated to recite this Birkat Erusin. Similarly, because of inherent obligation, many leading decisors allow one who skipped a full day in the counting of the omer to nevertheless recite the benediction for one who has not.56 Finally, many leading posekim permit one who has not yet accepted the Sabbath or Holiday to recite kiddush for others who have.57 This is indeed the widespread practice in Israeli hospital wards. According to these authorities, arevut is applicable since the mekaddesh himself will shortly become obligated, and, were he to accept the Sabbath or Holiday at that moment, he too would be obligated.
(5) There is some disagreement among the posekim regarding one who was obligated but has already fulfilled his obligation. Can such an individual assist those with no inherent obligation who want to perform an optional mitsva or recite the relevant benediction? There are two positions on this issue.
a) The “Majority School”: The vast majority of posekim maintains that one bears no arevut for those who lack any inherent obligation – even though they would like to fulfill a mitsva or recite a birkat ha-mitsva optionally.58 Hence, one who has already fulfilled his or her obligation cannot assist those not inherently obligated. For example, a male who already counted sefira can neither count for his wife nor recite the appropriate benediction for her.This is because neither shome’ake-oneh nor arevut are operative: shome’ake-oneh is inoperative because the reciter of the text or benediction has already fulfilled his obligation; arevut for its part cannot jumpstart the reciter’s obligation, since the assistee is not inherently obligated.Reciting a benediction under such conditions would be for naught and deemed a berakha le-vattala. Similarly, a man who already heard the sounding of the shofar may not recite the associated benedictions for his spouse because one bears no arevut for those who are not inherently obligated; the benedictions she must recite herself.
b)The “Minority School”: There is, however, a small cadre of prominent modern posekim, who disagree with the previous majority approach. They maintain that one, who has already fulfilled his obligation, can help those who would like to perform even an optional mitsva. Nevertheless,they concede that the assister cannot recite the benediction for the non-obligated assistee. For example, a man who already blew shofar can do so again for his spouse but cannot recite the associated benedictions for her; this she must do so for herself. This school is split, however, as to the exact rationale behind this ruling.
The first approach within the “Minority School,” which we will dub the “Arevut Group,” concedes to the “Majority School” that arevut is the central issue. Nonetheless, it is generally acknowledged that although a woman lacks a “hiyyuv ha-mitsva” (a mitsva obligation), her performance of the optional mitsva is considered a “kiyyum ha-mitsva”–fulfillment of a mitsva worthy of heavenly reward. Consequently, argues this group, arevut can be invoked to enable those who would like to perform even an optional mitsva to do so, utilizing the principle of “af al pi she-yatsa motsi.”59 However, this approach distinguishes between arevut for an optional mitsva and arevut for the associated optional berakha.60 This is because the halakhic permissibility of a woman to recite an (optional) berakha on an optional mitsva is the subject of major dispute (see Sec. VA below); Ashkenazi posekim permit it for the woman herself because of her kiyyum ha-mitsva. However, the ba’al teki’ah (the one sounding the shofar)who previously heard shofar has no further kiyyum ha-mitsva by blowing shofar for a woman. Thus, since her recitation of the benediction is only optional, he has no arevut which would allow him to pronounce the Lord’s name in the birkat ha-mitsva for her. What is more, in light of this dispute, there may well be a serious obstacle to its recitation - namely, a berakha le-vattala. These problematics preclude arevut and, hence, do not allow a man to pronounce the birkat ha-mitsva on a woman’s behalf.
The second approach within the “Minority School” is that of the “Shome’a ke-Oneh Group.”61 The focus of this group is not arevut, which they admit is inoperablefor those who lack any inherent obligation. Rather, they turn their attention to shome’a ke-oneh – which, as discussed above, is the mechanism of transfer of verbal or auditory mitsva actions. This cadre’s novel suggestion is that, contrary to the assumption of the “Majority School,” shome’a ke-onehper sé does not require obligation (and, hence, arevut) to effect the transfer. Rather, arevut is required only when transferring the fulfillment of mitsvaobligations. Thus, where the listener needs to fulfill an obligation - such as a man hearing the shofar or megilla -arevut is a sine qua non. However, where the one being assisted need not fulfill any obligation, but rather has chosen to perform an optional mitsva, shome’a ke-oneh (even absent arevut) is a sufficient transfer mechanism. This is true even though the action does not emanate from one who is presently obligated. What is required, however, is that the one assisting: (1) be inherently obligated or at least have a fulfillment of an optional mitsva (kiyyum ha-mitsva); and (2) intend to assist the listener in the performance of a mitsva (“kavvanat mashmi’a”). These two requirements are necessary in order to transform – in the absence of any obligation – the physical action being performed (e.g., the blowing of the shofar) into a ma’asehmitsva (a mitsva action). This ma’aseh mitsva can then be transferred to the listener via shome’a ke-oneh. Consequently, a man who has already fulfilled his own personal obligation can blow the shofar for a woman. Regarding the benediction, since the woman who hears the shofar fulfills an optional mitsva (generating a minimal“kiyyum ha-mitsva”), she may, according to Ashkenazi practice, pronounce the attendant blessing herself. However, the male assister, who has already fulfilled his own personal obligation, has no“kiyyum ha-mitsva.”In addition, absent arevut, there is no renewed “hiyyuv” that would allow the male to recite a berakha.
All agree, however, that one who has already fulfilled his obligation may simultaneously assist both one who has yet to fulfill his obligation (for whom the assister has arevut), as well as one who lacks any inherent obligation but would like to perform the mitsva optionally (for whom the assister lacks arevut). Once the recitation of the benediction is justified and valid for the one, it is effective for both categories. For example, one who has already recited the benediction leshev ba-sukka for himself may repeat it for an obligated male, while simultaneously assisting a non-obligated female. “Af al pi she-yatsa motsi” has effectively returned the assister to obligation and to point no. 1 above.62
(6) There is a well known dispute as to whether or not arevut is gender-dependant.63 R. Joseph Te’omim, R. Ezekiel Segel Landau, and R. Ezekiel Kahila (reputed to be a pseudonym for R. Joseph Hayyim al-Hakam of Baghdad)64 espouse the view that women are generally excluded from arevut. On the other hand, R. Akiva Eiger65 maintains that arevut is purely linked to obligation and, hence, women share arevut with men in all mitsvot in which the former are obligated – contingent of course on the level of obligation. Our presentation throughout follows the generally accepted majority opinion that arevut is obligation controlled (per the school of R. Eiger).66
(7) One who is not inherently obligated bears no arevut for his/her fellow Jews, inherently obligated or not. For such non-obligated individuals, the principal of af al pi she-yatsa motsi is inoperative. Thus, a woman who has already heard shofar, shaken the lulav or counted sefira may not recite the relevant mitsva benedictions for others who may want to fulfill these time determined mitsvot.67 Minors bear no halakhic obligation to ensure that others fulfill their religious requirements; hence, the overwhelming consensus of the codifiers is that the concept of arevut does not apply whatsoever to minors.68
The question nevertheless arises whether minors performing a given ritual for themselves can assist others via the mechanism of shome’a ke-oneh. As a general rule, majors are biblically obligated to perform commandments, while minors are biblically exempt. Nonetheless, there is a rabbinic obligation to educateminor children (mitsvat hinnukh), and many, if not most, rishonim maintain that this obligation falls solely on the parents, with the child bearing no personal obligation whatsoever.69 According to this first view, a minor can certainly not assist a major with any of his/her obligations.
However, some rishonim have ruled that minors themselves are rabbinically obligated to fulfill those commandments which will become obligatory upon them when they become of age.70 Importantly, it is this latter view which is adopted by the Shulhan Arukh and many other leading posekim.71 Despite this personal obligation, a minor can still not assist a major in biblical commandments, since the minor’s rabbinic obligation is a lesser one. Even in cases where the adult’s duty is also rabbinic in nature, the minor still possesses a lower level of obligation than a major. This is because the major is obligated because of a single rabbinic decree (had de-rabbanan); the minor’s obligation, however, is the result of the application of two rabbinic edicts (trei de-rabbanan) – one edict predicated upon the other. The first is the rabbinic commandment itself and the second is the rabbinic educational edict obligating minors to perform the commandments.72
Because of this fundamental disagreement among rishonim and later decisors as to the precise nature of a minor’s obligation in mitsvot, we will indicate, throughout the remainder of this paper, that a minor has “a minimal obligation, if at all” or we will state that a minor “does not bear the maximal obligation.” We will attempt to analyze each issue according to these varying views.