Question:
I am interested to understand why women cannot judge disputes in Torah law. How is the case of Devorah, the judge, handled? Is wisdom limited to the male population? Is it understood that females have no ability to distinguish between two points of dispute?
Answer:
The Torah does not provide a reason why women cannot be judges on civil or capital cases, leaving us to only to speculate. The Jerusalem Talmud1 states unequivocally that women cannot be judges and provides several proof-texts. The ruling is codified in the Code of Jewish Law.2
In context, the rule is somewhat surprising. Throughout both the written and oral Torah we find men consulting women and following their advice, beginning with Abraham "obeying the voice of Sarah," Jacob following the advice of his mother, and later consulting with his wives before departing from Haran--even though he had been already so instructed by G‑d Himself. Similarly, King David is advised by a wise women who saves an entire city with her counsel. Numerous other women are cited in Tanach and in Talmud for their wisdom, yet we don't find any deciding civil or capital cases.
The apparent exception is the story of Devorah the prophetess, sitting beneath her date palm as "the people traveled to her for judgment." How fascinating: Rabeinu Asher writes3 that Devorah could not have been judging disputes herself, since women are not permitted to judge. Rather, she must have been instructing male judges how they should judge. Obviously, the restriction has nothing to do with intelligence or even expertise: Here you have the expert on judgment and she herself cannot judge!4
A possible explanation that is offered concerns the distinct ways in which male and female minds operate. Current research supports the common wisdom that male and female minds are wired differently and excel in different areas. How do these differences apply to judging a dispute?
In the judgment of any dispute, there are two discrete steps. The first is to hear out each party and attempt to view the situation from multiple perspectives. For this reason, one is prohibited from judging a case to which he was personally witness--it then becomes impossible to see any point of view other than that which he witnessed first hand. Similarly, a judge who is small-minded and can only see one perspective at a time is not a competent judge. Extremely rare is the case where one party is 100% to blame while the other is 100% innocent. In fact, in capital cases, if no judge has presented an argument in the merit of the defense, the judgment is invalid.
The second step in judgment requires an entirely different faculty. After the judge has weighed and evaluated all views presented, he must determine with certitude who is right and who is wrong. The first step requires understanding (binah), the ability to compare ideas to one another and sense the qualities of each one. The second step requires an entirely different aptitude, that which is sometimes called "daat chazak"--a strong realization. This is not a comparative understanding, but a solid attachment to a single idea. It requires a departure from the previous multi-sympathetic perspective into a firm commitment to a single approach, which now becomes the total reality.
How does this relate to masculine and feminine neurology? Describing the formation of the first woman, the sages note the verb "vayiven"--"and He built"--which can also be read as "understood". They comment that the woman was created with a sense of understanding beyond that of the man. The tacit implication is that this is a necessary requisite for her role as an "ezer k'negdo"--a companion who will provide an alternative view, one that the man on his own may not see. Indeed, the Talmudic sages advise a man to "bend down and let your wife whisper in your ear" when encountering a new decision in life--especially one dealing with social matters. This deeper sense of understanding is likely also a key component in the role of woman as "the mother of all life"--nurturing small minds to become greater ones.
On the other hand, men are said to have a stronger sense of daat, to make firm, decisive commitments that cannot be easily bent. I must admit that in my personal experience, few men have lived up to that assessment. Nevertheless, that does not negate the notion that this is more a masculine quality than a feminine one.
As I cautiously prefaced, any suppositions we might make in this matter are nothing more than human conjecture. Torah is an arrangement of society according to divine, not human, law. The distinctions are obvious, and included among them: Human beings must work with human nature as a given and then develop rules of governance; G‑d designs that human nature according to the rules by which He wishes they should be governed. For us to then fathom the depths of those rules would be to fathom our own nature and the nature of all things, something of which no creature is truly capable.
Nevertheless, I believe we can say this: The fact that Torah prohibits a woman from judging civil disputes and capital cases in no way implies that she is not a source of counsel and wisdom for men. On the contrary, the Torah narrative seems bent on instructing us that this is quite her role, both through the story of her creation and though the stories of the many outstanding women throughout our history who provided such, and to whom we owe our survival as a people.
