[Avodah] Tzeni'us and gender roles

[Chana Luntz]

> RMShinnar wrote:
> (By your criteria, how tzanua is it to get up in  front of a class?
> > In front of a court?

RAF:
 
> Sorry to barge in, but IIRC, there is a chazal that considers it
> immodest for a woman to stand in front of a court. Cited even by Rashi
> Devarim 22:16 (melamed she-ein la-isha reshit ledabber bifnei ha-ish,
> which is why she is represented by her parents).

And then RRW writes:

> FWIW When I attended Ner Israel - The principle of tz'nius for a woman
> in the public arena was capsulized by the passuk:
> "Kol k'vudah bas melech p'nimah"

I wondered when we were going to get onto this - and in fact I nearly added
something on it at the end of one of my previous posts, but this would have
made that post even longer than it already was.

One of the reasons that RHS's thesis has a certain ring of truth about it,
even though when you think it through, it actually ends up denegrating
things that are fundamental to our value system, is because, it seems to me,
it is accurate in terms of the halachic responses to the court system -
although the term used in the primary gemora that discusses it (Shevuos 30a)
is not *tznius* but, as RRW has identified, kol k'vuda.

But, and I think this is where RAF above is misunderstanding RMS, RMS above
is talking about being an advocate (lawyer) in the court system (and the
secular court system at that).  Being a lawyer is a very very different kind
of situation to being either a litigant or a witness.

Let us just think for a moment about what it means to be either a litigant
or a witness in any court system.  Basically, the aim of the other side is
to demonstrate that any opponent is, in the case of a monetary case, a liar
and probably a thief, and if we are talking about more serious cases - rape
and the like, that those disputing are liars and, in the case of victims,
possibly sexually immoral as well.

The whole exercise is, has to be, one of public humilation.  Whether that
humilation is attempted primarily by the lawyer for the other side (as in
common law jurisdictions) or by the judge, as in more inquistorial systems,
because there has to be an attempt to get at the truth, probing and
humiliating questions need to be asked.  The modern western system tries to
alleviate this somewhat by allowing for closed circuit television evidence
and behind the screen evidence etc etc - but it cannot get away from it
entirely.

Thus RMB/RHS's thesis does work vis a vis the particular public role that
comes with being a witness.  Nobody in their right mind ought to jump at the
opportunity to be a witness.  It is no accident that a litigant can force a
possible witness to come to beis din and swear an oath that they do not know
any testimony, because it is highly likely that a person, even if they do
know some evidence, would prefer not to put themselves through the necessary
cross examination that a court case entails. 

And take what perhaps seems like a more innocuous form of witnessing - eg
being the eidim at a wedding.  Well that is all fine and good if everything
goes well.  But if there is a serious problem with the marriage, then there
could well be, many years down the track, a serious push to pasul you the
eid.  Because if you are pasul then the marriage is pasul and gitten need
not be obtained, putative mamzerim are not mamzerim, etc etc.  There is
therefore the remote but real possibility that your entire life will be
crawled over and dragged into the public realm in order to attempt to
demonstrate that you are not, really, shomer shabbas or the like.  Whether
you really did or did not dance with your wife at a wedding (and whether it
matters) may become grist for the public mill.

So on this one I think RMB's/RHS's thesis is right - any sensible man would
logically avoid having to be a witness or a litigant, and the only reason to
do so is as a public service, because it is necessary and somebody has to do
it (or because people do not think through the consequences).  And that is
why we have halachos that compel witnesses to come to court.

It is in this framework that the gemora on Shavous 30a discusses the fact
that women do not generally come to court, even as litigants - preferring to
send others to represent them (which it would seem halachically they are
permitted to do) on the basis of of the principle kol kavuda bas melech
penima.  And it also implies that this is the basis for the exclusion of
women as witnesses - see eg Tosphos there (although of course this is from a
pasuk, so no reason need really be given, so even that one cannot say for
definite).  What this seems to allow is for women, for the most part, to
avoid cross examination and public humilation in a court setting.

Now let us turn to the case that RAF is discussing.  The husband has
maliciously stated, because he hated the wife, that she was not a virgin
when he married her - and embarressing physical evidence has then had to be
produced in front of the whole court that this is not true. Can you think it
would be a nice thing to expect her to then get up in court and run the case
herself?  Can you think of a more humiliating and revolting scenario to
expect a person (and lets face it, we are generally talking about a 12 year
old girl here) to participate in?

So the truth is, witnessing and court cases are, by definition, a necessary
evil.  If everybody always spoke the truth and acted properly, they would be
virtually unnecessary.  The court case discussed above could never happen if
a) husbands never brought malicious charges and b) all wives were celibate
before marriage and faithful after it.  Throw in the abolition of unpleasant
circumstances, and they would be rendered completely unnecessary.

But that is not the Jewish view on public roles generally. We do not
generally believe that the beis hamikdash was a necessary evil (even the
Rambam's view on korbanos limits this to korbanos, not to the entire public
nature of the worship in the beis hamikdash) or that the public nature of
shuls is problematic, or that our heros are less than heros because they
occupied public positions.  Nor, moving from the general to the specific,
does the gemora bring kol kvuda on not giving women aliyos - even though, as
you can see, it was a known principle.  It brings kavod hatzibbur (see
Megilla 23a) - very very different focus, and in fact one that stresses the
importance of the public role in front of the tzibbur, rather than any
protection of the individual.

Regards

Chana