The Tur and the Drisha
The previous post in this series cited a long list of Rishonim and Achronim who say that women may not write Sifrei Torah, tefilin, or mezuzos. There is one major code of Jewish law which was not mentioned, and that is the Tur.1 The Tur discusses our topic in two different places: Once in Orach Chaim and again in Yoreh De’ah.
In Orach Chaim (39:1) the Tur writes:
תפילין שכתבן עבד, או אשה, או קטן, עובד גלילים, וישראל מומר – פסולין.
Tefilin that were written by a slave, or a woman, or a minor, [or] a non-Jew, [or] a Jew who has converted to another faith are invalid.
The continuation of the Tur discusses tefilin found in the possession of a heretic or non-Jew, etc.
This halacha seems similar to Rav Hamnuna’s beraisa, with the notable difference that the Tur only talks about tefilin, not mezuzos or Sifrei Torah.
In Yoreh De’ah (281:1) the Tur writes:
ספר תורה שכתבו מאיני ישרף. כתבו נכרי יגנז. נמצא ביד מאיני או ביד נכרי יגנז ואין קורין בו.
A Sefer Torah written by a heretic should be burned. [A Sefer Torah] written by a non-Jew should be buried. [If a Sefer Torah is] found in the possession of a heretic or a non-Jew it should be buried and we don’t read from it.
The Tur continues to tell us that we still have to redeem it, but only for market value, etc.
note: Here, the Tur is paraphrasing the statement of Rav Nachman. This halacha does not reference the beraisa of Rav Hamnuna at all.
The Drisha (one of the commentaries on the Tur) analyzes this halacha in Yoreh De’ah. In short, the Drisha claims that the Tur holds that although women cannot write tefilin or mezuzos, they can write Sifrei Torah. The Drisha writes:
כתבו נכרי כו׳ עיין בבית יוסף שהביא לשון הגמרא שגם בכתבו עבד או קטן או אשה פסולין
… See the Beis Yosef[’s commentary on the Tur], which quotes [Rav Hamnuna’s beraisa in] the Gemara, which lists women, slaves, and children among those who are invalid to write [a Sefer Torah].
ומן התימה שלא כתבו רבינו כמו שכתב באורח חיים בדין תפילין סימן ל״ט
It is surprising that [the Tur] did not include [the complete list from the Gemara here] the way he did in Orach Chaim in the laws of tefilin …
The Drisha presents a possible (forced) explanation:
ודוחק לומר דלא כתב כאן אלא מה שדינן לשרוף או לגנוז מה שאין כן בכתבו אשה דאף דאין יוצאין לקרות בה בציבור מכל מקום יכולין ללמוד מתוכה
It would be difficult to say that [the Tur] only listed here the types of Sifrei Torah that should be burned or buried; as opposed to [a Sefer Torah] written by a woman, which cannot be used for public Torah reading, but could be used for [private] study.
In this hypothetical explanation, the Drisha says that perhaps the Tur held that there is an additional category of Sifrei Torah: Besides the valid Sifrei Torah that are read in public; and the idolatrous Sifrei Torah that are burned; and the invalid Sifrei Torah that are put in geniza; there are also Sifrei Torah written by women (or slaves or children). These Sifrei Torah are not burned or buried, and they can’t be used for public reading, but they can be used for private study.2
The Drisha rejects this possible explanation:
דמכל מקום הוה ליה למימר האי דינא דאין יוצאין בה
[If the Tur held that there was a category of Sifrei Torah that can only be used for private study], he would have explicitly said [that these Sifrei Torah] can’t be used to fulfill the obligation [of public Torah reading].
Since the Tur did not specifically address this theoretical category, he must hold that there is no such thing as a Sefer Torah that can only be used for private study. Therefore, the Drisha felt compelled to say that the Tur must hold that Sifrei Torah written by women can be used for kri’as haTorah.
The Drisha then adds:
שוב עיינתי ברי״ף והרא״ש שהשמיטו גם כן מימרא זו, וצריך לומר שלא סבירא ליה הדין כן, כי אם בתפילין ולא בספר תורה
I later looked into [the commentaries of] the Rif and Rosh, who also leave out [women from their lists of people who cannot write Sifrei Torah]. So we must say that they also hold [that women are only not allowed to write] tefilin, [but they could write] Sifrei Torah.
And finally, the Drisha concludes:
עיין בתשובתי שכתבתי בזה, והארכתי שם בטוב טעם:
See the responsa where I wrote about this [topic], and I elaborated on it at length.
This teshuva is lost which is unfortunate because it might help resolve some of the difficulties with this Drisha.
One problem is the “proof” from the Rif and the Rosh: Although it is true that in hilchos Sefer Torah the Rif and Rosh only discuss the status of Sifrei Torah written by heretics and non-Jews (just like the Tur in Yoreh De’ah), elsewhere in their commentaries3 they both clearly say that women cannot write Sifrei Torah or tefilin or mezuzos. Another issue is that the Drisha’s explanation puts the Tur in the awkward position of arguing against an explicit Gemara and all of the other Rishonim.
All later Achronim reject this opinion of the Drisha, and state the halacha as written in the Rambam and Shulchan Aruch. The only mention of this Drisha in the halachic literature is in the context of it being disregarded because it is not a compelling argument.
In spite of our difficulty with the language of the Tur, the conclusion is clear: Based on the Gemara, and the other Rishonim, and the later codifiers of halacha, it is not permissible for women to write Sifrei Torah, or tefilin, or mezuzos. Any STAM written by a woman is pasul, it cannot be used for any purpose, and it must be put into geniza.
Postscript
There is one final issue that still needs to be addressed: Until now the discussion has been limited to Sifrei Torah, tefilin, and mezuzos. There is another sacred item commonly written by sofrim, and that is megilas Ester – which will be the topic of the next post.
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The Tur was written by Rabeinu Ya’akov Ben Asher – the son of the Rosh, among the last of the Rishonim, and one of the early codifiers of halacha. ↩
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It would be unusual in the modern era for a Sefer Torah to be used for private study, but this was not always the case: Until the Gutenberg revolution, the only way to study any text was to write it out by hand. ↩
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Rif: Halachos Ketanos, Hilchos Tefilin 7a.
Rosh: Halachos Ketanos, Hilchos Tefilin 3; Gitin 4:45. ↩