Rabbi Gil Student has a post on a troublesome mishna:
The Mishnah in Horiyos (13a) states: A man comes before a woman in matters of life (le-hachayos) and to return a lost item, and a woman comes before a man for clothing and redemption from captivity.
The implication of the first item is that if a man and woman are drowning, one should save the man first and then the woman.
Rabbi Student then goes on to cite two rabbis who recently found ways to get out of this:
R. Moshe Feinstein (Iggeros Moshe, Choshen Mishpat vol. 4
… writes that the rule of the Mishnah only applies when
all other things are [absolutely] equal.…
R. Eliezer Waldenberg (Tzitz Eliezer 18:1) notes that the rule of the Mishnah is not mentioned in Mishneh Torah, Tur, and Shulchan Arukh. Why? To answer this, he proposes a new interpretation of the Mishnah. He suggests that "matters of life (le-hachayos)"
refers to feeding from charitable funds. Of course, he writes, when
there is a literal case of life and death then we do not differentiate
Aplogetics aside, the intent of the mishna seems clear. When the ship sinks, save the men first. Why would this be? let me suggest the following answer. Men either were or had the potential to be Torah scholars; women did not. Therefore, the rabbis ruled that men – i.e., the Torah – must be saved first.
So why ransom women first? Why not ransom men first? Because, in that case, women had the real possiblity of being raped and abused. While men also needed to fear this, the threat was, I would think, lower for us than for women. Therefore, the case is not equal, and the threat to women is higher than the threat men; therefore, women come first in this case.
But what about clothing? Why should women get their clothing first? I would think, in part, because there a many areas of a woman’s body that must, under Jewish law, be clothed; the same is not true for men. Further, who is seen to be damaged by a woman who is underdressed or naked? Men. So, giving women clothing comes first.
This leaves the case of the lost object. Why return a lost object to a male first, rather than a female? Because women had inferior property rights and were seen as extentions of their husbands or fathers.
In short, remove the apolgetics and you have discriminatory misogynistic halakha. On the bright side, the halakha is not cited in the Mishneh Torah, Tur, and Shulchan Arukh. Why?
Not, I think, for the reason citied in Rabbi Waldengerg’s, ztz"l, name. I think this halakha was too much for the people to take and too open for attack from the outside, so, in order to preserve the rabbinic order (remember, Karaite and Muslim theology were both major threats in those days) the rabbis simply ignored it in theory. In practice, in the unlikely event that a case came before them based on this law, I would think they ruled narrowly.
Aplogetics aside, women go down with the ship. How can this be justified? Should it be justified?