Can the demand for change in the status of women be halakhically legitimated

The disintegration of Halakhic authority serves to diminish the flexibility of the posek in yet another manner. So long as popular religion functions according to internalized religious standards, and responds spontaneously to these values as well as to socio-economic stimuli, the live tradition of the people and their intuitive religious sensibilities, even when arrived at via methods independent of the fine points of Halakhah, could be regarded as a bona fide element in Halakhic deliberation.(24) But a peripheral group on the outskirts of Torah observance obviously will not directly affect the state of affairs in the heartland, not only because the Halakhist addresses himself primarily to those who accept his jurisdiction, but because the common practice of dissident groups can hardly be regarded as the wellspring for living Torah. We may view the impact of feminism on Judaism as an example of change which corresponds to the model presented in the first passage of Harav Kook cited above (i.e., a temporary force imposed upon normative Judaism from without), or we may view it more charitably in accordance with the more positive model presented in the second passage (i.e., as indication of the readiness of Halakhically observant Jews to voluntarily accept higher levels of moral sensibility). But given the Halakhic reluctance vis-a-vis premeditated, deliberate reform, it would seem that the path open to would-be Orthodox feminists either way lies not in pressuring for, but in genuinely being a new type of woman who is so inextricably entrenched in the change that this becomes a factor to be taken into account in determining Halakhic decisions, yet is so firmly and palpably committed to Jewish tradition that the Halakhist is forced to take her and her problems into account. The more that popular practice attaches itself to the authority of Halakhah and religious traditions, the more the posek is called upon to mediate between the Halakhah of the written sources and the living tradition of the people, and the less he can get away with presenting a model of behavior which caters merely to the select minority that succeeds in maintaining the codified standards of the past.

Even when the dialectic between the codified tradition of the written sources and the live tradition of popular practice functions at an optimal level, not everything is possible. Many suggest that women's learning is an essential key to any solution of their problem. But this is not only -- as some feminists would imply -- because women would then have the tools to devise solutions which exist in potentia in the Halakhah, but which male legislators have failed to employ, since, quite naturally, women's needs are either misconstrued or take second place in their order of priorities. It would also make evident the constraints placed on the Halakhah to change as they wish. There is probably much to be said in favor of the argument that if women today were poskim, the Halakhah would look different. But hopefully this would be limited to questions of implementation and not to questions of principle, because ideally the posek strives to remain uninfluenced by the outcome of his decision.