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The Jewish Chronicle - - JUDAISM - BY DR ALEXIS BRASSEY SHAB­BAT SHALOM

MANY TRA­DI­TIONAL so­ci­eties still main­tain a sep­a­ra­tion of male and fe­male roles, but to our eyes, th­ese sep­a­ra­tions which are of­ten gov­erned by religious pro­hi­bi­tions, ap­pear back­ward. When we, in the West, look at the preven­tion of women in Saudi Ara­bia from driv­ing a car or en­ter­ing a ceme­tery, we view th­ese sorts of re­stric­tions as dis­crim­i­na­tory and ret­ro­grade. Ju­daism can­not ig­nore its hosts and in fact Jewish law in­sists that the law of its host takes prece­dence over Jewish law on the pro­viso that an in­ter­pre­ta­tion of Jewish law can be made com­pat­i­ble with its host’s law. The for­mu­la­tion, dina d’malchuta dina (the law of the land is the law) or dina for short, is a con­flict of laws de­vice de­signed orig­i­nally to fa­cil­i­tate Jewish com­mu­ni­ties’ sur­vival in ex­ile. How can we make sense of English law in the con­text of some of our Jewish tra­di­tions? Which should take prece­dence?

The UK — since the Sex Dis­crim­i­na­tion Act of 1975 and more re­cently the Equal­i­ties Act 2010 — has made it un­law­ful for any­one to be treated less favourably as a re­sult of their gen­der. If a per­son is pre­vented from do­ing “X” be­cause of gen­der, then this would be un­law­ful. There are ex­cep­tions to this rule, most rel­e­vantly the ex­emp­tion re­li­gions en­joy in some in­stances; for ex­am­ple, an Ortho­dox syn­a­gogue would not be com­pelled to per­form a same-sex mar­riage. But how many of our tra­di­tional pro­hi­bi­tions are ro­bust enough to meet the religious ex­emp­tion test un­der UK law?

The dina rule should op­er­ate in the same way as the 1998 Hu­man Rights Act op­er­ates on English law. An old law has to be in­ter­preted in such a way as to make it com­pat­i­ble with the new rules. So English law might have pre­vi­ously al­lowed the ex­pul­sion of an im­mi­grant be­cause of crim­i­nal ac­tiv­ity; but, un­der the Hu­man Rights Act, he may be able to re­main be­cause he has fam­ily in Eng­land.

The dina rule was bril­liantly de­signed to pro­vide rab­bis of fu­ture gen­er­a­tions the power to pre­serve tra­di­tion but in such a way as to op­er­ate sym­pa­thet­i­cally with host na­tions. To bol­ster the power of mod­ern rab­binic in­ter­pre­ta­tion, Jewish law also in­sists that all rab­bini­cal rules must be de­cided with the bal­ance tip­ping to­wards le­niency rather than strin­gency. The no­tion that mod­ern Jewish prac­tice can’t be amended on the ba­sis of min­hag, cus­tom, or even rab­binic rul­ing, is false. The re­cent lurch to strin­gency is also odd given the rule pre­scrib­ing le­niency.

So, given th­ese laws, why is it that Ortho­dox com­mu­ni­ties can’t per­mit pre-batmitzvah girls to sing Anim Zemirot, the beau­ti­ful song near the end of the Shab­bat, and oc­ca­sional Yom­tov, ser­vice which is rou­tinely sung by pre-batmitzvah boys?

A num­ber of di­vi­sive tra­di­tions about women can be traced back to the laws sur­round­ing tzniut, mod­esty. One of those re­stric­tions is kol ishah, a rule which sug­gests that a man can­not be ex­posed to the voice of a woman in the be­lief that her voice re­veals her naked­ness.

The rab­binic de­bates on the strict­ness of th­ese rules is by no means set­tled, rang­ing from an out­right ban to the mod­ern Ortho­dox stance which per­mits joint singing. What is no­table about the de­bate is that it is en­tirely de­rived from rab­binic rules which them­selves are sub­ject to, firstly, the rule of le­niency and, se­condly, the rule of dina. This means that in the con­text of English law they are all apt for re­view.

The is­sue of kol ishah in re­spect to pre-batmitzvah girls doesn’t ap­ply, even on the most strin­gent in­ter­pre­ta­tion of tzniut. Nor do any other fig-leaf ex­cuses such as not want­ing to give girls the im­pres­sion they can con­tinue singing when they are older. The ban on let­ting girls sing in Ortho­dox shuls be­lies a deeper, more wor­ry­ing main­te­nance of a tra­di­tion which can­not have any ba­sis in any­thing other than a pref­er­ence to dis­crim­i­nate.

When one con­sid­ers the ex­ist­ing Ortho­dox pro­hi­bi­tion on pre­vent­ing girls from singing in shul on Shab­bat, we are wit­ness­ing not just a breach of English law un­der the Equal­i­ties Act 2010, but we are also wit­ness­ing a breach of Jewish law, the dina. We live in a so­ci­ety which en­shrined in law that un­less there are spe­cific religious pro­hi­bi­tions — not rab­bini­cal rules which can be rein­ter­preted, not taste or pref­er­ence, not min­hag — then we are break­ing the laws of the re­li­gion we pur­port to rep­re­sent.

It is high time that rab­bis recog­nise the power of the mod­ernising devices Ju­daism has pro­vided them with in or­der to sus­tain, re­fresh and re­gen­er­ate Ju­daism. The real value of Ju­daism lies in its ca­pac­ity to set a moral stan­dard wor­thy of fol­low­ing.

We are hun­dreds of years be­hind in the eman­ci­pa­tion of women. The shame­fully slow pace of re­form is al­ready do­ing its dam­age as young women un­sur­pris­ingly turn away from an Or­tho­doxy that re­fuses to lib­er­ate, but rather lamely ex­cuses it­self be­hind the fig leaf of min­hag as a rea­son to pre­vent pos­i­tive change. Dr Brassey is a lawyer and mem­ber of Hamp­stead Gar­den Sub­urb (United) Syn­a­gogue FRI­DAY, JAN­UARY 15 (She­vat 5), Shab­bat be­gins in Lon­don at 4.05; Bournemouth 4.11; Leeds 3.55; Manch­ester 4.04; Ty­ne­side 3.55; Glas­gow 4.00; Jerusalem 4.22 (lo­cal time). SATUR­DAY, JAN­UARY 16 (She­vat 6). Por­tion of the Law (To­rah): Bo, Ex­o­dus 10:1 to 13:16. Por­tion of the Prophets (Haf­tarah): Jeremiah 46:13-28.

Why can’t Ortho­dox com­mu­ni­ties per­mit pre­bat­mitzah girls to sing Anim Zemirot?

SHAB­BAT ends in Lon­don at 5.14; Bournemouth 5.28; Leeds 5.13; Manch­ester 5.17; Ty­ne­side 5.09; Glas­gow 5.18; Jerusalem 5.36. FRI­DAY, JAN­UARY 22 (She­vat 12), Shab­bat be­gins in Lon­don at 4.17; Bournemouth 4.22; Leeds 4.07; Manch­ester 4.16; Ty­ne­side 4.05; Glas­gow 4.13; Jerusalem 4.28.

PHOTO: ALAMY

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