Reshut: Individual Discretion in Halakha

By Rabbi Saul J. Berman

The exemption of women from 14 mitzvot of the Torah has been subjected to much analysis, generally related to the rationale for exemption. I would like to explore the legal meaning of such exemption. While the rationale for exemption defies simple explanation, the form of exemption is perfectly consistent. The 14 mitzvot from which women are exempt are all behaviors which, by Torah law, are mandatory for men, but are neither mandated nor forbidden for women.

To explore the meaning of this particular form of Jewish law, first do a rapid inventory in your mind of all the actions, conversations, feelings and beliefs in which you engage during a single day. I assume it is a long list, but just keep it in mind… 

Discussions of halakha tend to focus heavily on questions of authority. Upon being informed that a particular act or omission is required by halakha, the natural first question is, “by what authority?” Is the duty or prohibition a matter of revealed law, written or oral, (d’oraita); rabbinic law (d’rabbanan); universal custom (minhag); or communal legislation (takkanat hakahal)? The answer to this core question then becomes the grist for much subsequent discussion.

But notice how we have already fallen into a trap in assuming that the substance of halakha is exhausted in the identification of that which is required and that which is forbidden. The realms of hiyyuv (duty), and issur (prohibition), occupy large places in halakha. Indeed, Rambam classifies all of the 613 mitzvot into the categories of duty — mitzvot aseh, and prohibition — mitzvot lo taaseh.

Now return to the mental list which you compiled in response to my opening request. How many of those items fall neatly within the categories of duty or prohibition? I would venture a guess that only a small percentage fit within that framework. Does Judaism then consider the bulk of our daily activities to be outside the framework of halakha?

 In reality, halakha classifies human experience into three broad categories. There are those actions and beliefs which are duties (mitzva or hova), those which are prohibited (assur), and those which are discretionary (reshut).

This latter realm, that of the discretionary, is identified in rabbinic literature as patur u’mutar. For example, the Talmud in Kiddushin 29b determines that women are patur u’mutar with regard to the mitzva of talmud Torah. The Talmud thereby explicitly rejects the tannaitic position of Ben Azzai, who maintains that women are equally obligated with men in this mitzva. It also confirms the amoraic teaching of Sotah 21b, that even Rabbi Eliezer could not possibly maintain that women are actually forbidden to study Torah. Interestingly, of the 613 mitzvot, the 14 from which women are exempt purely in consequence of gender all fall in this category of patur u’mutar.

If there is neither duty nor prohibition, what is the Jewish attitude towards performance of these acts? They fall within the realm of the discretion of the individual. But while they are discretionary, rabbinic counsel is brought to bear encouraging or discouraging engagement in these acts. There are key phrases in the Talmud which indicate the presence of rabbinic persuasion in regard to discretionary activities.

What does it mean when the Talmud urges us to act “lifnin mi’shurat hadin,” beyond the requirement of the law? It means that the act itself is not obligatory, but that the rabbis urge us to consider doing it anyway. Having announced and safeguarded a lost object for over a year, the finder is entitled to keep it as his or her own even if the original owner now appears. There is no residual duty to return the property; doing so is purely within the discretion of the finder. However, the sages urge us to consider returning the article1. The act remains discretionary, but the rabbis encouraged the behavior.

Other ways in which the rabbis persuade us to engage in discretionary behavior are by identifying the behavior as middat hasidut (behavior of the righteous)2 or by indicating that a person is hayav b’dinei shamayim (liable according to the law of heaven)3.

Conversely, there are times when the rabbis dissuade an individual from engaging in a discretionary act. For example, the victim of a penitent thief who had stolen clothing due to his poverty is encouraged not to take his clothing back. If he does so, ein ruach hakhamim noha heimeno (the spirit of the sages is not pleased with him)4.

If the Rabbis felt strongly enough about matters of reshut so as to persuade or dissuade us from engaging in these activities, why did they not just legislate the requirement? Why did they allow the discretionary capacity to remain intact?

Our sages understood that the goal of Torah is not the creation of the perfect automaton. Rather, the goal of Torah is to evolve our free will and ethical personalities to the point that we make appropriate ethical decisions out of our own free conscience. Therefore, the preservation of a distinction between legal governance and persuasion is vital.

Beyond the element of ethical autonomy, there is the value of spiritual subjectivity. Much as ethical sensibilities need to be cultivated, so do the subjective capacities for perceiving the presence of God in our lives. Halakha helps us achieve this goal by regulating our interactions with God through prayer and ritual activity. But halakha does not exhaust the capacity for intimacy between a person and God; it only frames it. To enhance our relationship with God, we need to be aware of what makes us sense the presence of God, of what divine qualities we can emulate while still preserving our individuality. Limits on ritual duties create the space within which spiritual subjectivity can grow.

The realm of reshut is thus not just empty space available to be stuffed with new laws and detailed rules. The realm of reshut is critical religious space left open for the formation of the ideal personality of each unique Jew.

Jewish women have used the autonomy and subjectivity granted to them by Torah to fulfill mitzvot from which they are exempt. Taking into account rabbinic counsel, they have integrated into their religious regimen 8 of the 14 discretionary mitzvot. These mitzvot are shofar, sukkah, lulav, k’riat shma, sefirat ha’omer, procreation, rejoicing in the first year of marriage, and talmud Torah.

In regard to 4 other discretionary mitzvot my observation is that women are defining a significant role for themselves in the ceremonial structure, without undertaking the performance of the obligatory act itself (circumcision, pidyon haben, writing a sefer Torah, and birkhat kohanim). In regard to the 2 remaining mitzvot which fall within the category of patur u’mutar, namely tefillin and tzitzit, there has thus far been only marginal interest in experimentation. This may reflect general rabbinic counsel against women adopting these mitzvot.

It remains essential to preserve the balance between authority and autonomy, between objective rules and subjective opportunities, between the exercise of rabbinic power and the role of rabbinic persuasion. The category of reshut is vital in our struggle for individual religious identity. 

Rabbi Saul J. Berman is the Director of Edah, Associate Professor of Jewish Studies at Stern College and Adjunct Professor teaching Jewish Law at Columbia University School of Law.

 

1 Bava Metzia 24b.

2 Ibid. 51b-52b.

3 Gittin 53a.

4 Bava Kama 97b. Treatment of these and other such expressions of rabbinic persuasion in cases of reshut can be found in Equity in Jewish Law by Aaron Kirschenbaum, New Jersey: Ktav, 1991.

 

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