The Logic of Exclusion in Bavli Jurisprudence

This paper examines a consistent pattern of contrasts regarding women’s inclusion in positive commandments between the jurisprudence of the Babylonian Talmud on the one hand and rabbinic texts from the Land of Israel on the other. In cases where the Mishnah presents multiple views on whether women are obligated in a given obligation, across a range of sugyot the Bavli exempts or excludes women. By contrast, texts from Eretz Yisrael, including parallel passages in the Yerushalmi, the Tosefta, Midrash Halakhah, along with the minor tractates, typically prefer the inclusive view that obligates women, or at least question the logic of exempting them.

Some of these cases have been explained in chronological as opposed to geographical/jurisprudential terms, with the Bavli texts representing later views that eventually gained currency. However, this paper contends that this phenomenon is evinced across the spectrum of Palestinian texts from different periods and is actually the product of a divide in rabbinic thought that can be localized to different regions.

Interestingly, this pattern reverses when it comes to aggadic texts. In a number of texts, the Bavli presents—sometimes even showcases—female subjects where they are absent from Palestinian parallels, usually representing the source material upon which the Bavli texts expanded. What’s more, in an example of the intentional interplay of legal and narrative materials, the aggadot in the Bavli often relate to those very commandments which the Bavli sugyot explicitly exclude women from halakhic obligations.

These differences will be examined considering dominant cultural attitudes along with work on the relationship between law and narrative.