Laws of Succession Ordinances by the Religious Leadership of Sephardi and Moroccan Jewish Communities and Their Economic, Social and Gender Implications

Abstract

This paper discusses the innovativeness of the Inheritance Ordinance introduced in Toledo during the 12th century and later reintroduced in Fez in Morocco following the expulsion of Jewish communities from Spain and Portugal. Community leaders in Toledo, and after the expulsion also in Fes, transformed the laws of succession established in biblical times by granting women equal rights on matters of inheritance by marriage. The ordinance also granted unmarried daughters the right to inherit alongside their brothers despite the fact that, according to biblical law, daughters do not inherit when there are sons. Inheritance ordinances had significant social, financial and gendered implications on Jewish lives in many communities. The study will show that leaders of Sephardi Jewish communities were nothing less than advanced in their innovative and unprecedented ordinances related to women’s inheritance. Their innovativeness followed a number of preliminary conditions which enabled it. First and foremost was the authority vested in these Jewish leaders by the monarchy in various parts of Spain and Portugal. The laws of the kingdom in these countries granted women equal rights in succession laws. So as to avoid significant differences and reduce legislative gaps, ordinances were issued to correspond with national realities. Spain had been the world’s center of Jewish Halacha following the period of the Geonim—the heads of the ancient Talmudic academies of Babylonia and its sages—, and the Sephardic sages felt that their position allowed them to make bold decisions. The most innovative Jewish ordinance issued in this regard back in the 12th century was the Tulitula ordinance, originating from the city of Toledo, home to one of the largest and most affluent Jewish communities of the time. The regulation granted wives rights over their husbands’ inheritance regarding property established during their joint lives, as well as property which she had brought with her to the marriage. Following the Expulsion of Jews from Spain, the expelled sages, arriving in Morocco, reinstated the Tulitula ordinance in the newly established community of the city of Fez, further improving women’s position beyond the provisions of the original regulation. The new circumstances following the expulsion resulted in many Jewish communities in Morocco adopting the new version of the regulation. As they had been forced to wander from place to place, the expelled communities encountered severe problems involving family law. The ordinances spread throughout nearly all Jewish communities in Morocco. In the 19th century, a number of changes were introduced to the Fez ordinances, which in practice diminished women’s inheritance rights. However, the essence of the original ordinance was ultimately assimilated into Rabbinical and Supreme Court rulings of the State of Israel, due to its suitability to Israel’s modern inheritance laws and to the legislation of the Women’s Equal Rights Law in 1951. The leadership of Spanish sages and community leaders in various countries and of rabbinical judges in Fez, Morocco, had been both charismatic and rational and included modern components for coping with social change and new realities under the Kingdoms of Spain as well as following the expulsion.

1. Introduction—Ordinances in Jewish Law

As is the case in many legislative systems, the Jewish Halacha can be divided into two main legislation types: supreme legislation and subordinate legislation (Alon 1988). While supreme legislation has a general legislative nature, subordinate legislation consists of detailed rules in specifically defined areas of the law. As in any other legal system, written law is perceived in Jewish Halacha as supreme legislation that is the statute of the Jewish law, while ordinances ruled by community rabbis are seen as subordinate pieces of legislation of Jewish law. As is the case in other legal systems in which the authority of subordinate legislators is exalted from supreme legislation, so does the source of the rabbinical authority—subordinate legislators—in Jewish Halacha come from the written law (Deuteronomy 17:11).

The regulation, being subordinate legislation, operates mainly on two levels:

• It innovates in areas that did not previously exist, thereby rectifying distortions that grew over time. This is the origin of the Hebrew word ‘Takana’—something that fixes.1
• It amends existing practices and imposes certain obligations, with a tendency towards amendments serving either the public or the individual (Orbach 1996).

This legislative layer in Jewish law enables it to continue achieving the purposes of the law, even when the legislative continuum leads to an undesirable legal effect. Contrary to legislative procedures expressed in ‘Justice, Justice Thou Shalt Pursue’ (Deuteronomy 16:6), ‘A judge has only that which his eyes see’2 or ‘Let justice be done though the heavens fall’,3 all of which focus the judge on the facts of the case at hand, ordinances operate on a more innovative and creative level of Jewish law. The legal scope of the ordinance is derived from Halachic interpretation, the legislator’s intent, and the basic principles of the Torah. Legal norms are interpreted in spirit and not necessarily by the intricacies of their wording, meaning that substance would have preference over form in achieving the aims of the Torah.

The subordinate legislation of community rabbis was expressed in ordinances developed over generations, whose aims changed according to circumstances and timing. Often, the ordinance sets a mode of behavior in a specific Halachic area which is not directly deducted from the written norm, but rather from the laws of the Torah: ‘Do what is right and good’ (Deuteronomy 6:18). Often, the ordinance serves to soften the judicial result of the law while adjusting it to the case in question and to the intent of the supreme legislator.4

The legal assumption at the basis of Jewish ordinances is precedence to the nature of the law, rather than to its form or to rules of evidence. The nature of the ordinance in Jewish law is the purpose for which it had been made and therefore sanctifies the means. There are many examples of subordinate legislation in Jewish law, the most prominent of which are ‘Mip’nei tikkun ha-olam’ or ‘Mip’nei darchei shalom’. These regulations aim to cope with the problem of justice in law, their goal being to form a bridge between justice and equity, changing reality, the adversities of the time, and the legal case in question. These legal arrangements preceded British equity laws by thousands of years, although the latter also aim to achieve equity in their own way in cases in which the judicial result of the law may lead to only relative justice, or even to distorting the legislator’s intent.

Jewish law includes many equitable elements emanating from the instrumental status of the law.5 Its objectives differ from other known legal systems in that it is the means for achieving the purposes of the Torah and the realization of the religious ideal. Jewish law has a religious raison d’être that delineates a suitable way of life required for the proper existence of Jewish society and also human society. This raison d’être is the foundation of the law, and therefore a legal procedure that would lead to an outcome that does not correspond with it would either be rejected or changed by an ordinance. In this way, a negativistic or formalistic approach to the law is prevented in advance, as it may undermine the realization of the religious ideal. Moreover, the law can be adjusted to pressing needs through its equitable components, which are implemented through ordinances.

Legislative authority can also be found in Jewish law among authorities other than Halachic sages, such as the king’s legislative activity in civil and criminal areas, which the rabbinical leadership perceived as existing for the benefit of the public in its entirety, as the saying goes—‘The fate of an entire generation is determined by its leader’.6

Takanot HaKahal, or ‘Communal Ordinances’, are rules that originated from the needs of the public and its representatives. The earliest of such ordinances can be found in ancient Hilchot [laws] regarding the ‘Benei Ha’ir’ [townspeople] as well as internal legislation of various professional associations: “The city’s inhabitants mutually compel one another to construct a synagogue and to purchase scrolls of the Torah and the Prophets, the city’s inhabitants are permitted to stipulate the rates (price of wheat and wine) and the measurements and the wages of laborers, and they are entitled to enforce a public fee on public matters.”7 The main role of Takanot HaKahal was introduced into Jewish law from the tenth century onwards, with the rising power of the Jewish community in the diaspora (Amar 2020a, p. 222).

2. Aim of the Study and Methodologies

A qualitative methodology was used, based on the interpretative approach. This methodology centers on understanding, describing and analyzing social phenomena through respondents’ subjective experiences. It is a description of ‘objective reality’ as seen through their eyes and their stories (Tuval-Mashiach and Spector-Mersel 2010). The researcher’s role is to follow actions and experiences that define social and cultural reality. This interpretative approach does not assume a unified reality, but rather argues that people define reality in different ways. Therefore, researchers should identify and interpret their own points of view and perceptions regarding the meaning of the studied phenomenon (Sabar-Ben Yehoshua 2016).

The present study relies on qualitative content analysis of early and later Jewish adjudicative literature (10th to 19th centuries) including Maimonides (Rambam), Rashi (Rabbi Shlomo Yitzchaki), Rabbeinu Tam (Rabbi Jacob ben Meir), Ritva (Rabbi Yom Tov ben Abraham of Seville), Rashba (Rabbi Shlomo ben Avraham ibn Aderet), the rulings of the Moroccan sages following ordinances published by Rabbi Abraham Enkawa in the book of rulings, and works by M. Amar (Amar 2020b), Shweka (1998), Meyuchas Ginau (1999), Baruch Megged (2009) and others. This type of literature enables an investigation of changes in Sephardi communities, and specifically deviations from the Halacha (collective body of Jewish religious laws derived from the written and oral Torah) as well as significant transformations in the rulings of Sephardi and Moroccan sages and their impact on laws of succession today.

Content analysis is an important stage in qualitative research. In the present paper, this includes a review of the literature of Chazal (Sages of Blessed Memory), early and later Jewish adjudicative literature, the rulings of Sephardi and Moroccan sages and recent studies in the field. The importance of this literature is in tracing early changes introduced in Spanish communities, specifically changes to the ordinances of the Torah and significant changes through Sephardi and Moroccan sages’ rulings and their impact on inheritance laws in present times.

This methodology uses a variety of textual analysis parameters: written text, voice, picture and digital video, in order to reach conclusions about human behavior (Bauer and Gaskell 2011). The content analysis process included a number of stages, based on which the ordinances were analyzed: transcription of the collected data; reading of all documents and their classification into themes; classification into central categories and their prioritization; analysis and interpretation of the findings and contents; and finally, the investigator’s own conclusions (Shkedi 2003).

3. Inheritance Law in Jewish Law

The question of inheritance has been much deliberated in Jewish Halacha throughout history, as it involves not only financial and emotional aspects but also has national implications such as the passing of property from one tribe to another. In fact, the grounds for inheritance laws in the Torah had been to avoid just that—the passing of land from one tribe to another, as stated in the main source for inheritance laws in the Torah:

Say to the Israelites, ‘If a man dies and leaves no son, give his inheritance to his daughter. If he has no daughter, give his inheritance to his brothers. If he has no brothers, give his inheritance to his father’s brothers. If his father had no brothers, give his inheritance to the nearest relative in his clan, that he may possess it. This is to have the force of law for the Israelites, as the Lord commanded Moses.

(Numbers chapter 27, verses 8–11).

The general rule in estate law is that “No inheritance in Israel is to pass from one tribe to another, for every Israelite shall keep the tribal inheritance of their ancestors” (Numbers, chapter 36, verse 7). The order of inheritance, then, is determined by the proximity of the heir to the bequeather. The sages of the Mishna had established their rulings on the final verse of the inheritance laws: “...give his inheritance to the nearest relative in his clan, that he may possess it.” (Numbers chapter 27, verse 11). Accordingly, they ruled that the father’s family is to be considered ‘his relatives’ rather than his mother’s family.8 This leads to the conclusion that the woman does not inherit from her husband, but if she dies her husband does inherit from her. Despite this discrepancy, the Sages of the Talmud (3rd to 5th centuries) were aware of two possible extreme situations involving inheritance: if the woman does not inherit, she may starve, but on the other hand, if the terms of the Ketubah [Jewish marriage contract] are increased (for instance for the value of the land that had formed collateral for payment of the Ketubah in case of divorce), its financial value may exceed that of the husband’s property, meaning that his heirs would be disinherited after the Ketubah had been repaid. The solution proposed by the Sages of the Talmud to the first situation is that a man may bequeath land to his wife in his will, and this inheritance to his wife would replace payment of the Ketubah. This rule of the Halacha depended upon the wife explicitly or silently agreeing to this while the will was being drafted. The solution for the second situation is that as long as she is a widow, the woman would subsist from her husband’s estate.9

According to the Talmudic Halacha as described by Rambam:10

• As a rule, women do not inherit.
• Laws regulating a man inheriting his wife are considered ‘Derabbanan’ (Aramaic: ‘of our rabbis’), meaning that they originate from a Halacha ruled by sages, rather than directly from the law of the Torah.
• If the wife dies, the husband inherits all her property, whether they be ‘Melog’11 or ‘Tzon Barzel’ assets,12 and he has precedence over any other person.13
• This law is valid also in cases in which his wife was prohibited to him by the laws of the Torah, as the marriage had not been conducted according to the Halacha. For instance, a widow marrying a Cohen Gadol (high priest), a divorced woman marrying a layman Cohen (who is not a Cohen Gadol), and even if she is young (below marriageable age, which is 12 years), and even if the husband is deaf (and therefore according to Jewish law legally unfit to accumulate assets), he inherits from his wife.14

However, restrictions were also defined for this Halacha:

• The husband can only inherit assets that had belonged to his wife at the time of her death, and not future ones, such as an inheritance due to her from her father.15
• If they were divorced, the husband has no right to her assets.
• The Halacha does not oppose prenuptial agreements, in which case the woman is entitled to stipulate in her Ketubah that if she has no sons when she dies, all her property would return to her father’s house, as this is a prenuptial condition, and prenuptial conditions are permitted.16

The Halachic key to changes in this Halacha over generations, and to the ordinances made on this matter by community rabbis, consists of two central rules. The first—‘Hefker beth-din hefker’ (‘That which is declared by a court ownerless property is forthwith accounted ownerless property’): relying on the Torah, the Sages of the Talmud17 determined that the court may make ownerless the assets of a person if there is reason to do so. Rabbi Yitzhak found reference to this in the book of Ezra: ‘Anyone who failed to appear within three days would forfeit all his property, in accordance with the decision of the officials and elders, and would himself be expelled from the assembly of the exiles.’ (Ezra, chapter 10, verse 8). Rabbi Eliezer based this on the following from the book of Joshua: ‘These are the inheritances which Eleazar the priest, and Joshua the son of Nun, and the heads of the fathers of the tribes of the children of Israel, divided for an inheritance by lot in Shiloh before the Lord, at the entrance of the Tent of Meeting. So they finished dividing up the land.’ (Joshua, chapter 19, verse 51). Rabbi Elazar explained: ‘What do heads have to do with fathers? Only to tell you: Just as fathers bequeath to their sons anything they want to, so too, the heads, the leaders of the people, bequeath to the people anything they want to’ (Joshua, chapter 19, verse 51).

The second rule is ‘The custom of the State’—as it is permitted to stipulate upon the ruling of the Torah in inheritance laws, many Jewish laws in this area are based on local custom, and here, too, Rambam ruled: ‘When a man marries a woman without specifying any conditions, he should write her a ketubah, giving her a sum that is customarily given in that locale…In this and in all similar matters, local custom is a fundamental principle, and it is used as a basis for judgment, provided that the custom is commonly accepted in the locale’.18

Community leaders, ruling on the basis of the Halacha throughout the generations following Rambam, found it difficult to keep this specific rule in force, especially if the wife died shortly after marriage and the husband inherited all assets that she had brought with her to the matrimony. In fact, this difficulty had already been raised among the sages of the Midrash in their interpretation of the following phrase from the Torah: ‘Your strength will be spent in vain’ (Leviticus 26, verse 20), and the sages explained: ‘If a man gives his daughter in matrimony and sends her off with much capital and his daughter died even before the seven days of merriment have passed, he finds himself burying his daughter while also losing his capital’.19

4. Women’s Inheritance Ordinances in Various Ashkenazi Jewish Communities following the ‘Schum’ and Rabbeinu Tam’s Ordinances in Comparison with the Tulitula Ordinance

In the beginning of the 12th century and well into the 13th century, Ashkenazi rabbis of the communities of Speyer, Mains and Worms (towns on the bank of the Rhine in Germany), legislated ordinances known as ‘Schum’. These ordinances had been legislated in three separate conventions held by the rabbis of the region and accepted as binding. Some of them had even been included in the ‘Shulchan Aruch’ (a book of Jewish law compiled in the 16th century by Rabbi Joseph Karo, which became part of the Halachic corpus of the People of Israel). The ordinances included monetary laws, legal procedure, levirate marriage (Yibbum, Halizah) and more. The most widely known of these ordinances is the dowry ordinance legislated by Rabbi Yakov Ben Meir also known as Rabbeinu Tam (1100–1171). The background for this ordinance is a reality of which the rabbis of Ashkenaz became aware in various cases involving a woman dying within a year of her marriage, and her husband inheriting from her. Rabbeinu Tam established his ruling on the interpretation offered by Chazal (Sages of Blessed Memory) to the biblical law: “If a man married a woman and she died within 12 months without leaving a viable offspring... he should return the entire dowry, and what remains in his possession which he had not taken from the dowry, and what she had not used, he should not deceive by using it... and what remains would be returned within thirty days...”.20

During that period, the vast majority of members of the communities were poor. Often involving much difficulty, fathers used to raise dowries to marry off their daughters, and in many cases took loans from family members to enable this. If the daughter died shortly after her marriage, the husband would inherit from his new wife based on the Halacha that is based on the Torah. This resulted in the father losing not only his daughter but also his money, which he now still had to return to his lenders, even though his daughter was no longer alive. Rabbeinu Tam’s ordinance was bold because it amended a decree of the Torah that states that a daughter does not inherit, only sons do, and that a wife does not inherit, only husbands do. The Torah’s explanation for this decree is that it prevents a family’s estate from passing from one tribe to another—which in turn risks undermining the tribal division of the Land of Israel as decreed in the Torah prior to entering the land of Canaan. The history of Halacha usually shows us that adjudicators changed or innovated Hilchot that required change because of changing circumstances, but very few of them dared change an explicit ‘d’var Torah’ (word of the Torah). The danger in such cases is that innovative and daring rulings would not gain legitimacy among community members, and the adjudicator would thereby lose his position as such.

Rabbeinu Tam later retracted this ordinance,21 although by then it had spread among some Ashkenazi communities. According to M. Amar, his decision to retract the ordinance aimed to avoid cancellation of d’var Torah by a court that has no such authority. In order to change an explicit d’var Torah, the Halacha requires two conditions: first, the revising court—which must be a high court (‘Bet Din Gadol’ or ‘Great Sanhedrin’) —must be of a high authority having an identical position to that of the Amoraim Jewish scholars Rabbi Ammi and Rabbi Assi. The second condition is that the majority opinion be accepted by the minority. If the minority did not agree or did not participate in the discussion, the majority may not coerce its opinion. According to the wording of the ordinance, the minority was only informed of its contents, but their consent had not been requested. This right to enforce the law on the minority is reserved, as aforesaid, to a high court that is authorized to coerce the public and forfeit its property, but a normal court must obtain the consent of the minority, and therefore Rabbeinu Tam concluded that the ruling of the Torah should remain in force (Amar 2020a, p. 218).

During the same period, in the 12th and 13th centuries, even more innovative and bold ordinances were introduced, which reduced the husband’s right to the inheritance even if children remained, and without limitation of time following the wife’s death.

5. Innovation in Women’s Inheritance Ordinances in a Number of Kingdoms in Spain

Evidence of the presence of Jews in Spain in general, and in Jewish centers such as Toledo, Saragossa and Barcelona in particular, dates back to the 6th century (Ray 2013b, p. 3). Until the Muslim conquest of Spain in 711, Jews endured a hostile Christian rule. They suffered religious persecution, and those who did not convert to Christianity kept their religion hidden. The new Muslim rule, however, brought better times to the Jewish communities of Spain. Special conditions were defined for the official existence of Jewish communities. Jews received the Muslims with open hands and began to display their Judaism out in the open. The Golden age of Jewish culture in Spain had begun, with yeshivas opening and Torah studies becoming a legitimate pastime. Communities gained religious freedom, with each electing their own rabbinical judges for the courts that were inaugurated under Muslim patronage. Rabbinical judges were appointed for a limited period of time, and these appointments were recognized by the rulers of the land. Some researchers claim that the authorities had been involved in these appointments, but most believe that there was no such involvement in the appointment of rabbinical judges (Dayanim). Nonetheless, during that period, Jewish communities in Spain enjoyed complete autonomy, as well as independence in the election of their spiritual leaders (Shweka 1998, pp. 108–98; Ray 2013b, pp. 107–8).

Even upon the Christians’ return in 1085 and their conquest of many cities in Spain, the order and administration left behind by the Muslims continued to exist, and the position and involvement of Jews was upheld in all areas of government (Meyuchas Ginau 1999, p. 11). In the 13th century, with the main Jewish community situated in Lisbon, Jews enjoyed freedom of commerce and were free to settle throughout Portugal (Ray 2013b, p. 33). They served as advisors to kings as physicians, scientists and philosophers. The physician of King Alphonso the 6th, conqueror of Toledo, was Yosef HaNasi Ben Ferruzial, a Jew who had been close to the king and acted on behalf of the Jewish community. Evidence of his work can be found in the writings of famous local poet and philosopher Rabbi Judah Halevi, who praised Ben Ferruzial’s contribution to the community. Many other important Jewish leaders were born and operated in Toledo, including Rabbi Abraham Even Ezra (1089–1167); Rabbi Asher ben Jehiel, also known by his Hebrew acronym ‘the Rosh’ (1250–1327), who had been born in Germany but spent most of his life in Toledo; Rabbi Abraham ibn Daud, also known as Rabad I (1110–1180); and others. During the 13th century, under a different regime, pogroms were held against the Jewish community of Toledo, and about a thousand of them were massacred. In 1391, harsh laws were enacted against the Jews, thousands of whom were murdered and many others joined the Christian faith (Harvey 2010, p. 22).

With the quieting of upheavals in the kingdom, efforts were made both in Castile and in Aragon to restore public order, and by the mid-13th century, the heavily depleted Jewish communities endeavored to rebuild themselves. Leaders of various Jewish communities in Spain legislated new and bold ordinances involving women’s inheritance. Early testimony of the existence of ordinances and customs in the Jewish communities of Spain at the time can be found in the ‘Shu”t’ (Responsa, Questions and Answers) written by Ramah (Rabbi Meir HaLevi Abulafia, 1170–1242)—head of the Jewish community of Toledo (the capital city of Castile) and a rabbinical judge in the city’s court—among the greatest adjudicators of that period in Spain:

Thus, we have seen that if you do not have among you any stipulation nor custom involving the husband’s inheritance of his wife’s property except for the law of the Talmud, then Reuben the husband shall inherit all of his wife’s property, and nor her son or Shimon her father have any right whatsoever. And if you have among you a custom by which the son shall inherit it all, then Reuben has no claim over his wife’s property while his son lives...and if their custom is that her husband and son shall inherit her in equal parts, or that one of them inherits more than the other—the letter of the law is that anything Reuben should inherit shall be according to the custom... (Elon 1988, pp. 679–80)

In fact, Ramah ruled that if there is no clear custom in the community as to the husband’s inheritance, then a new Halacha shall be introduced by which the son can inherit from his mother, or the husband and son in equal measures. The innovation is that the husband’s inheriting is not as clear-cut as had been stipulated in the Torah and as had been the custom in Jewish communities throughout the world. This is a bold decision which only a bold adjudicator such as Ramah would have been able to make undaunted.

As shall be shown below, a detailed and bold ordinance on women’s inheritance, known as the ‘Tulitula’ ordinance (the Jewish name of Toledo), regulated women’s inheritance, alongside other ordinances made in the city of Valladolid22 and other cities in Spain including Soria23 and Segovia.24 The common line between all these ordinances is that they all discuss women’s inheritance.

According to the Tulitula ordinance, a woman inherits and bequests to anyone she pleases the sum of her Ketubah, up to half of the estate, not including the dowry which is hers, and Tachrichim (ritual burial furnishing) and all burial needs, as in the original wording of the ordinance:

When a husband dies in our city, while married to a woman, and she has presented her Ketubah bill as any widow, she shall not collect the [full] sum of her Ketubah, only half of all that he has left in assets, land or chattels, and the other half shall remain free of lien to the recipient of her husband’s inheritance, whether present or not present, and she has no right to collect more than half the sum of her Ketubah only, whether this shall or shall not suffice from his possessions and property. But the sum of her dowry and what she had earned for him or what land she may have gained by inheritance after her marriage, or what she has bought from him in her name and her husband died, all of it shall be returned to her alone, as this is not the rectification but what had been known to have been the husband’s possessions and property. And the Tachrichim and burial needs shall be from his entirety, and then the woman shall take half of his as her Ketubah, and the [other] half will remain for his heirs.25

The Valladolid ordinances focused on various areas in community life. Among the ordinances was one that dealt with daughters’ inheritance, as follows:

When they are survived (the husband and wife) by sons and daughters, the daughters will inherit with the sons in equal parts if the daughters are unmarried... and if they are engaged—they shall marry with their part.

(Harvey 2010)

The leaders of Jewish communities in Spain acted to establish the Jewish-religious character of their communities. In the cities of Toledo and Valladolid, regulations and ordinances were formed by community leaders and rabbinical judges who aimed to restore community life to its former order. Jewish communities in these cities were larger than in other Spanish cities at the time. Jews were involved in all areas of city life—commerce, science, medicine and philosophy. The daily encounter between the three monotheistic religions in Spain in general and particularly in these cities enabled a wide range of diverse activities, with tolerance and leeway between leaders of the different religions in many areas (Meyuchas Ginau 1999, p. 11).

Behind the initiative to introduce the Valladolid ordinances in 1432 was Don Abraham Benveniste who had been close to the Kings’ courts and served as Finance Minister to the King of Castile and as the country’s Chief Rabbi. The purpose of the ordinances was to rehabilitate the Jewish communities of Spain following persecutions by the Christian kings that lasted until 1391. The ordinances focused on various areas: Torah studies, appointment of Dayanim (Rabbinical judges) and community heads, taxation, public works and the limitation of luxuries. Don Abraham took advantage of his good position with the authorities in working towards restoring Jewish community life to its prior glory. The fact that he had served in a double role as Chief Rabbi and Finance Minister gave him wide authority to act and the religious authority to implement far-reaching Halachic changes.

According to Max Weber’s leadership models (Weber 1968; see also Oliver-Lumerman et al. 2018, p. 3), Don Abraham’s leadership can be classified as rational leadership that relies on the rational authority granted by national arrangements, in order to uphold a social-organizational order in the Jewish community. Don Abraham’s concern for community life motivated him to act based on the authority vested in him in order to regulate the needs of the Jewish community.

Toledo was home to one of the largest and most important Jewish communities of the time. As part of the community’s reformation process following the upheavals against the Jews, community leaders defined new orders designed to protect the cohesion of their communities. Ordinances were ruled by the city’s Dayanim, which, as aforesaid, obtained their legal and legislative authority from the Kingdom in many areas. Specifically, in the matter of the current paper, these ordinances involved women’s inheritance. New and daring ordinances were enacted on this topic, attesting to an authoritative religious leadership characterized by initiative and charisma that closely monitored the changing realities of Jewish life.

The boldness of these ordinances can mainly be noted on the religious level:

• All of them involve inheritance and emphasize women’s right to inherit from their husbands just as husbands inherit from their wives, in contrast to the word of the Torah.
• The couple’s assets are perceived as joint property—belonging to them and to their sons, as well as to their daughters if unmarried.
• They regulate financial relationships between the couple out of concern for their children, lest they remain penniless in the event of the father remarrying.

To understand just how innovative and far-reaching the ordinances in these communities were, we note the fierce opposition expressed by ‘Rosh’ (Rabbi Asher ben Jehiel) who arrived from Ashkenaz to serve as Rabbi in the city of Toledo and had finally been appointed Chief Rabbi of the city in 1305. Rosh was born in Germany and studied the Torah with his father, Rabbi Yehiel, and with Maharam of Rothenburg (Rabbi Meir of Rothenburg), the most important and unrivaled adjudicator in Ashkenaz at the time. In 1286, Maharam of Rothenburg was jailed for an attempted escape from Germany and an alleged attempt to organize a mass escape of Jews from the region. The emperor demanded a huge sum from the Jews as ransom for releasing him from prison. With much difficulty, Rosh collected the required sum, but Maharam of Rothenburg refused to be liberated for a huge sum of money, and the attempt was unsuccessful.

During the summer of 1298, terrible pogroms were held in Germany against the Jews, with entire communities murdered. Despite this, the emperor demanded that Rosh hand in the collected ransom money to free Maharam of Rothenburg, even though the latter was not released from prison. Finally realizing that not only the money presented a problem but that his life was in danger, Rosh fled to Spain where he was accepted by the Jewish community with great honor and respect, and even offered the position of Rabbi of the city of Toledo (Shweka 1998, book 1 (Tishrei-Kislev, 5759)).

When Rosh read the Tulitula ordinance and its regulation of women’s inheritance, he held a long debate with the local Dayan—Rabbi Israel Ben Yosef, native of the city of Toledo, who agreed with the position of former local Dayanim in interpreting the ordinance and the intent of its adjudicators, as had been understood until Rosh’s arrival in Spain. The question raised by Rosh was whether, according to the adjudicators, a woman may endow her inheritance to whomever she pleases, including her husband in the event that he outlives her, and in doing so expropriate the rights of her heirs; or whether her rights pursuant to the ordinance are also the rights of her heirs and relatives who funded her dowry, and therefore she may not sell, transfer or waive her rights without their consent. Rosh believed that the ordinance did not grant women the right to bequeath property to whomever they pleased, but rather that it expropriated said right from the husband’s inheritance to the woman’s heirs. When the Dayan Rabbi Israel presented to Rosh the positions of former local Dayanim such as Rabbi Yaacov Even Sushan and his son Rabbi David Even Shushan, who had claimed that the ordinance regulates the financial relationship between husband and wife, Rosh rejected this position, alleging that in fact these spiritual leaders transgressed against the writings of the Torah, by which the woman does not inherit from her husband. Moreover, he insinuated that these old religious leaders were influenced by the laws of the Kingdom of Castile that had recognized the right of the woman to inherit from her husband (See above Shweka 1998, p. 108).

In fact, here is a difference in approaches to the Halacha, manifested in a different type of leadership. Rosh was influenced by a Halachic world view that became prevalent in Ashkenaz, by which an explicit d’var Torah is not to be revised. Even when Rabbeinu Tam revised the matter of women’s inheritance in Ashkenaz, he had only referred to woman’s inheritance after her death, so that her relatives, who had given money for her dowry, would not lose their funds if she died in the first year of her marriage, but never intended to grant a general inheritance right to women so that they may act upon this right as with any property ownership.

Again, based on Weber’s leadership model (Weber 1968), the leadership style of both Rabbeinu Tam and Rosh can be seen as traditionalist leadership whose legitimacy comes from traditional religious authority. This type of leadership perceives its role as a responsibility to pass on tradition from one generation to the next and therefore does not view leaders as having the authority to change such traditions. In his argumentation, Rosh blames one of the former Dayanin as having been influenced by the Kingdom’s law, thereby explaining the pressure to which he was exposed at the time. He saw the laws of the Kingdom as having influenced Halacha, which is an impossibility for a traditional leader that believes that his main role is to be a protector of tradition and its rules.

After the long discussion, Rosh ordered that testimonies would be collected regarding local customs, and that the city’s Jewish leaders would convene in order to affix his interpretation of the ordinance. Clearly, such a gathering would not have been necessary had there not been those who did not agree with his interpretation of the ordinance. The purpose of the meeting was to ascertain whether the local custom, by which a woman inherits from her husband according to the ordinance, in fact remained in force or whether it had changed. Rosh, as the Chief Rabbi of the city, held the religious authority to interpret as he saw fit, but he knew that local custom prevailed and therefore had to follow the customary local Halachic procedure required in order to achieve change. To succeed in his venture, Rosh acted as a social spiritual leader (Fry 2003; Oliver-Lumerman et al. 2018, pp. 4–5), utilizing his spiritual authority as the Chief Rabbi of the city, while implementing a social authority that is delegated to the leaders of the community by the Kingdom. He convened a council composed of community leaders and the city’s Dayanim in order to reexamine the local custom. The discussion was held against the backdrop of an actual claim, which was presented to him for his ruling.26 His position was accepted, but not unanimously as was the requirement in Spanish communities. A majority resolution required the presence of all community leaders and its Dayanim, which was not the case. Shweka believes that the majority of the city’s leaders were not pleased with Rosh’s position but preferred not to confront him, and therefore he had a majority but not an absolute one.

Following the doubt raised in interpreting the implications of the Tulitula ordinance, community leaders that had introduced ordinances elsewhere made sure to clarify their intent on this matter. In the Jewish community of the Island of Mallorca, local Dayanim had set the original Tulitula ordinance as their custom, before it was revised by Rosh, except if the woman died without sons, in which case her relatives would inherit half her dowry (Assaf 1925; Amar 2020a, p. 222; Grossman 2001, p. 263). Identical ordinances to the Tulitula ordinance were accepted in Molina and Segovia. In Valencia, where the Halacha remained the binding rule, no ordinance was accepted. Rosh had influenced communities outside of Spain, for instance Algiers, where in 1394 the ordinance had been introduced following his revision.27

According to Grossman (Grossman 2001, p. 263), relying on a general historical perspective, “The ordinances issued in Spain were more concerned with women’s equal rights than the ordinance of Rabbeinu Tam”, which, as aforesaid, influenced the nature of the Halacha in Ashkenaz for many years to come.

6. Other Women’s Rights in the Inheritance Ordinances of Fez, Morocco

On 31 March 1492, the Catholic monarchs of the Unified Kingdom of Spain signed a decree for the expulsion of Jews from all cities, towns and lordships of their kingdoms. The official explanation for the expulsion as stated in the decree was to stop the damage to Christianity caused by the Jews in influencing Jews who had converted their faith. The decree stated that the steps taken by the kingdoms to prevent the influence of the Jews on the converts had been to no avail, and therefore the decree was issued to expel all Jews. Many Jews left Spain for North Africa, Italy and countries ruled by the Ottoman Empire. Some crossed the border to neighboring Portugal, where they were promised political asylum. However, the Portuguese king went back on his promise, and five years later the Jews again endured a mass expulsion from Portugal. For lack of any other recourse, many Jews converted to Christianity, and others did so only outwardly in the hope that reality would change and they would soon be able to return to practicing their religion in Spain or Portugal (Megged 2009, Chp. A).

The expulsion was experienced as a great trauma for all Jews and led to the annihilation of the Jewish community of Spain, which had existed in the country since Roman times, and to a tendency to settle in Muslim rather than Christian countries (Ray 2013a). It had been preceded by a long period of riots and pogroms against the Jews under Christian rule, and only during the Muslim occupation of Spain did the Jewish community enjoy true cultural and religious prosperity, a community that had produced the greatest Jewish philosophers, scientists and physicians, as well as the greatest adjudicators and scholars of the Jewish world. Its prosperous period continued even after the Christian reconquering of Spain from the Muslims, but changes in the Kingdom led to the subsequent deterioration in the status of the Jews, culminating in their expulsion in 1492.

The expelled Jews arrived in Morocco in two waves, the first following the expulsion from Spain and the second following the expulsion from Portugal. Therefore, in addition to the influence of the regulations made in Spain, and specifically in Toledo, on matters of women’s inheritance, Moroccan sages were also influenced by developments that originated in Portugal.28

Morocco’s advantages as a sanctuary resulted from its geographic proximity to Spain and the knowledge that the Catholic monarchs did not intend to conquer Morocco, as well as the belief that maybe this period would pass and they would be able to return to Spain. Most Jews arrived in the city of Fez, which was known as a financial and political center. King Mulai Muhammad al-Sheikh (1472–1505) showed a positive attitude towards the expelled Jews, which reinforced their sense of security and preference to live in Fez (Corcos 1966). Following their arrival at the city, and after having endured a range of absorption crises and natural disasters, the leaders of the expelled Jews began the task of organizing their communities, through ordinances that relied on those previously incorporated in Spain. Leaders and sages among the expelled communities revived ordinances on various topics, aiming to set Jewish life back on its tracks and to cope with the difficulties created in family law by the expulsion. From Fez, ordinances spread to other cities in Morocco including Meknes, Sefrou, Debdou and Tetouan. They lasted for 250 years, from 1492 until 1750.29

Below are a number of ordinances in which changes were introduced in Fez in 1545, as indicated by the Sages of Fez:

We, the undersigned, Sages of the sacred communities of Fez, have convened to negotiate on public matters, and we have noted that an ordinance of the expelled communities requires some amendments. And this is what we have deemed fit to amend in said ordinance.

(Amar et al. 1986, p. 31)

Below are three examples of inheritance ordinances originally issued in Spain and then amended in Fez, with further changes made to them upon the arrival in Fez of the Jews expelled from Portugal, changes which, as mentioned above, were essential for coping with the new circumstances.

1.

According to the original ordinance of the Jews expelled from Spain who had arrived in Fez:

When the wife dies and her husband lives, and she did not leave after her a viable offspring, the husband should take two thirds of all her assets at the time of her death. And her heirs would take one third... and if no such heirs of hers are found down to the third generation, but only farther away, they will not inherit her estate at all.

(Amar et al. 1986, p. 31)

The amendment following the emigration of Jews expelled from Portugal to Fez in 1498:

And if she did not leave after her a viable offspring from him and from her, then the husband would share half of the half, after taking his share in the clothing and the offspring of the wife [presumably from a previous husband]... and if she has no offspring nor father nor brother or sister, then the two thirds of her estate will go to her husband, and a third to her heirs from her father’s side.

(Amar et al. 1986, p. 32)

2.

According to the original ordinance of the Jews expelled from Spain:

When the wife dies and her husband still lives, and she leaves after her a viable offspring from this husband, her husband and her offspring will share her estate, in equal parts. And in addition, the husband will share it with her father and her brothers. And the viable offspring, to inherit his mother, should be at least thirty days old, and even if it lives but one hour after his mother has died, it shall inherit his mother.

The following change was applied to the ordinance in Fez after the arrival of the Jews expelled from Portugal:

If the woman dies and her husband lives and she has left a viable offspring thirty days old as stipulated above in clause C from him and from her, [the husband] would share with that offspring her entire estate, half and half (even if she has sons from another man, they will not share in his sons’ inheritance from her...), and even if she has left melog assets, these will be shared as well.

(Amar et al. 1986, p. 32)

3.

The original ordinance of the Jews expelled from Spain had set equal rights to sons and daughters as heirs:

When they are survived by boys and girls, the girls will inherit equally as the boys. This is true before the girls have married. And if they are betrothed, they shall marry with the part that they inherited [this would be their dowry].

The change made in Fez after the arrival of the Jews expelled from Portugal:

All boys would inherit equal parts, as well as the unmarried girls, except for the eldest son, as the Torah has granted him the senior part. And if he shall not have an offspring at all, it shall be shared with his father.

(Amar et al. 1986, p. 31)

To conclude, three important innovations were implemented in women’s inheritance ordinances following the emigration of the Jews expelled from Portugal to Fez:

• The equal division of assets, which had already been known in Spain, advanced a further step forward in the Fez ordinances, with the influence of the exiles from Portugal, when it was determined that women would inherit from the entire estate and not only from their own.
• A further innovation involved the division of all assets, from any source belonging to the couple, upon the death of the husband—whereby the woman inherited half, and his sons the other half.
• Girls and boys inherited equally, unless they were already married, rather than betrothed as in the original ordinance.

The writers of the ordinance did not explain the reasons that led to amending the original ordinances in a way that benefited women and in fact established equality in the division of property upon the woman’s death. Investigators believe that the Jews expelled from Portugal brought with them the idea of equality in the division of assets from the laws of the Kingdom of Portugal. They lobbied for these amendments to suit the practice that had been prevalent in Portugal, and as a continuation to the inheritance ordinances of Tulitula and Valladolid. This approach was reinforced by the words of Rabbi Yossef Ben Lev, who had been among the Rabbis of Thessaloniki and the head of the yeshiva in Kushta—two cities that had absorbed thousands of expelled Jews and Anusim: as our rabbi teaches us, in the kingdom of Portugal there is a law and a custom that the widow is granted half the assets left by the husband, whether she has contributed much or little in her dowry.30 M. Amar noted that the wording of the Fez ordinances was a continuation of an ordinance that had been customary in one of the communities of Castile in Spain. The Halachic basis for the ordinance had been a ‘Shtar Tenaim’ (an engagement contract) between the marrying couple that relied on the Talmudic ordinance of ‘Mipnei darchei shalom’ (For the sake of peace) (Amar 2020a, p. 227).

Just how bold and far reaching the ordinances were can be noted from an extreme implementation of the ordinance in Fez. In this specific case, a couple had been married and on the evening of their marriage went up to a ‘Yichud’ (union) room (privacy room, where bride and groom are alone immediately after a Jewish marriage ceremony). Normally, there are no other people present, which marks the wedlock between the couple and their sanctification to one another, but as the groom had been ill and prohibited from consummating the marriage, they were not left alone. Afterwards, his medical condition deteriorated, and he died. The wife’s relatives alleged that, pursuant to the ordinance, all assets should be shared with the husband’s heirs—because they [the couple] had stood together under the Chuppah (the canopy covering the couple during a Jewish wedding ceremony, marking their union), this in itself was a ‘Yichud’, and therefore she was his wife for all matters and purposes, regardless of whether the marriage had been consummated. The Dayanim Rabbi Yehuda Ben Atar, Shmuel Hatzarfati Ben Danan and Rabbi Yaacov Ben Zur, among the greatest adjudicators in Morocco, discussed the question of what would be accepted by the Halacha as a ‘Chuppah’ or ‘Yichud’.

Following Halachic review,31 the Dayamin ruled that if the couple went into a place where a bed was placed, and they ate and drank, even though the marriage had not been consummated, the Halachic definition of a ‘Chuppah’ had, in fact, taken place. Furthermore:

If the man could have consummated the marriage, but the doctors, to be on the safe side, prevented him from doing so should his illness deteriorate, then the Chuppah is considered to have been complete and they shall share the assets pursuant to the ordinance.

32

It should be noted that, in Judaism, the purpose of matrimony is first and foremost to bring forth offspring and to ensure the continuation of the human race, and therefore a couple’s union is considered valid only following a symbolic act of consummation of the marriage between them. In our case, the religious law and the social concern were combined—the bride was considered a wife even though her husband died on the eve of their marriage. The wife was considered a widow and her value in the eyes of men was declined, meaning that her dowry in a second marriage would be half that of a single woman. The Dayanim had not been blind to this fact and wanted to compensate her as a widow that had just been married. Naturally, the boldness of the Dayanim and the influence of the expelled leaders had enabled such a ruling, which in Ashkenazi communities would have been unheard of. Moreover, the Dayanim saw themselves also as community leaders, responsible for the restoration of their communities following the expulsion crisis, and this is another reason for their boldness in legislating such far-reaching ordinances in order to rectify and reorganize their Jewish communities.

Despite the boldness of the ordinances that the expelled Jews had brought with them, the Fez Dayamin understood that not all problems involving women’s inheritance had been solved, as the ordinance could still be overlooked in two ways (Amar 1989):

• The husband may divide his property before his death between his sons or relatives, and even to strangers, so that no inheritance remains after his death.
• The woman may grant her husband a waiver of her rights while she lives.33

If the wife’s inheritance is considered a personal right as is her dowry, she can do with her right as she pleases, as well as waiving it for the benefit of her husband, while she is still alive. Such waiver may result in a dispute between the granter of the dowry and the woman, or between the granter of the dowry and the husband after the woman [wife] has died.34 The Moroccan sages in Fez understood the Spanish inheritance ordinance as it had been understood by Rabbi Israel Hadayan and as had been the practice in Spain before the amendment introduced by the Rosh, i.e., that the wife had the right to grant half the inheritance to her husband, because the inheritance was seen as her personal right. Based on this assumption, they had been aware of the possibility that the wife would grant her right to her husband for reasons of marital harmony and the wish to appease him while they were living together, and therefore they attempted to limit these possibilities to the best of their abilities.

From a social and gender-based perspective, it is clear that despite the innovation introduced by the Spanish sages in granting women inheritance rights, the wife’s status is weakened from the start—as normally her dowry is granted to her by her relatives, based on the assumption that the rules of the Tulitula ordinance apply to the marriage, meaning that the woman inherits and they could be reimbursed. On the one side, her relatives are breathing down her neck, while on the other her husband who is living with her is urging her to waive her right. Consequently, the right granted to the wife by the ordinance becomes an obstacle in her life, since in most cases she will concede to the wish of her husband with whom she shares her life. This social reality is described in the ordinance and had been the motivation behind its amendment. In 17th-century Fez, many women preferred, while they were still living, to waive and grant their husbands the rights to the half of the inheritance reserved for their relatives upon their death (Amar 2020a, p. 227). Such waivers often resulted in disputes and arguments between the husband and the wife’s relatives. Her relatives would feel deceived, claiming that the dowry was given to the wife in the first place on the premise of the terms of the Ketubah, by which they were assured the wife’s share. To overcome such arguments and to protect women by reinforcing their financial independence, it was decided that anyone granting a Ketubah to his daughter would explicitly specify this term in it. As to previously signed Ketubahs, it was decided that a wife’s waiver would apply only in the following cases:

• The terms of the Ketubah should specify that the granter of the dowry had granted it to her pursuant to the terms of the ordinance by which he would have the right to her inheritance under the ordinance, and therefore a waiver required the approval of the rabbinical court in the presence of the holders of the wife’s inheritance rights.
• As to Ketubahs granted in the past before the ordinance had been issued, it was decided that the wife’s waiver would be valid only with the consent of three Dayanim and in the presence of her relatives that are in the city. This arrangement was intended to prevent forced waivers and so that the relatives would be able to argue that the dowry had been granted according to common terms of the Ketubah, in which case the court would not approve the waiver.

Because of the importance of the ordinance and the innovation of adding to the wife’s independence, all of the Dayamin of the city of Fez discussed and signed the ordinance: Rabbi Yehuda Uziel, Rabbi Abraham Hacohen, Rabbi Saadya Ben Raboh, HaNagid HaMeule Rabbi Moshe Halevi, Rabbi Yitzhak Aven Zur, Rabbi Shmuel Even Denan, Rabbi Jacob Hagiz, Rabbi Vidal Hatzarfati and Rabbi Shmuel Even Haviv (Amar 1989b).

About two years following the signing of this amendment to the ordinance (1605), it was again amended, this time to facilitate the implementation of the original ordinance. As aforesaid, the original ordinance required three Dayanim and the presence of the wife’s relatives. These conditions were not easy to achieve, and therefore the amending Dayanim decided that in order to facilitate the implementation of the ordinance, the change that the wife wishes to make in her rights by waiving her rights to the benefit of her husband requires the physical presence of one of the sages of the city. He would instruct her as to the implications of such a waiver and would ensure that it was done of her own free will. The intent behind this latest amendment, as aforesaid, had been to protect a wife that concedes to her husband for reasons of ensuring marital harmony or as a result of his pressure to grant him such a waiver. In addition, they added the following changes:

• There was no need for the existence of an explicit term in the Ketubah that the dowry would return to the granter.
• The property for which the waiver is requested is not only the dowry granted to the wife from her father’s household but any property owned by her from other sources as well.
• The presence of only a single sage is required at the time of the waiver, whose role is to admonish the wife lest she be blamed for passing property from one tribe to another (transferring the inheritance from its rightful owners).
• There is no need for the presence of her relatives, so as to prevent arguments between them and the husband and his relatives.

A further alternative raised from the wording of the first ordinance issued in Fez, which had been the practice until 1603, is that the wife is entitled to waive her Ketubah and its terms, cancel it and make new terms with her husband, without her relative’s involvement and without requiring the court’s consent, but with the following conditions:

• The presence of a sage at the time of the waiver, whose role is to admonish the wife lest she be blamed for passing property from one tribe to another (transferring the inheritance from its rightful owners);
• Witnesses to the admonishment—that in fact a sage had warned the woman and that she did not accept his warning;
• The husband has immediately made another Ketubah;
• The waiver would be complete even if she made it during illness and then recovered, and even if she divorces or is widowed, she will be entitled only to the terms of her new Ketubah.

Reference to this alternative can be found in the response of two sages of the same generation, Rabbi Shaul Sererro and Rabbi Jakob Even Denan, among the greatest leaders and Dayanim of Fez.

During a period in which women had generally not been financially or socially independent, the Dayanim of the city of Fez were committed to providing women with the protection they needed to ensure that the rights granted to them based on the innovative Tulitula ordinance would be protected and not lost as a result of husbands’ sophisticated ploys. A further consideration among the reformers of the ordinance was to prevent disputes between the husband and the wife’s relatives after her death, and between the wife and her husband while they were both living. They made it difficult to transfer the wife’s rights, as they knew well that the wife would not want to argue with her husband during their married life. This position stems from the wife’s lack of independence at the time, and her dependence on her husband. On the other hand, she also felt committed to her family who had given her the dowry for her marriage knowing that she would inherit half of the assets upon her husband’s death or her own, and that they would be reimbursed.

The positions of the Dayanim of the city of Fez point to a rational style of leadership having social and political authority and legitimacy, granted in the harsh and shaky reality that followed the Jews’ expulsion from Spain and Portugal. This leadership, whose members served as Dayanim in addition to being community leaders, relied on personal charisma (Weber 1968) that enraptured the people of the community and led to social change. The attributes of this leadership can be seen in the delineation of a new path and organization of the communities towards a safer and more hopeful future. Leadership in a religious society that was in the midst of a deep crisis grew against the backdrop of communities that fell apart as a result of the expulsion, communities that were suddenly exposed to problems in family law which they had never encountered before the expulsion, cases such as when a wife refused to accept Christianity and fled to a new country while her husband remained and became Christian, and vice versa; families who arrived with children and others who left their children behind; and more. This new reality forced the Dayanim of Fez to show their leadership and to sometimes act outside the borders of traditional Halacha. They based their strength on the works of the adjudicators of Spain in Toledo and Valladolid, added to them, innovated in line with the harsh new reality and prevented disputes and exploitation of women. Naturally, the laws of the kingdom in Portugal that recognized the right of the wife to inherit half the estate added to their awareness of the reality of life for the Jews expelled from Portugal.

The inheritance ordinances of women in Spain and Morocco are unique and unparalleled in any other Jewish community in the world. The Dayanim of Fez acted as they had been expected to act by their community members—addressing existing plights and changing circumstances. This authority was granted to the sages of Israel both by the written law of the Torah and by the essence of the idea of the oral law—which had originally not been written so that its commandments would not be frozen in time just like the written word is frozen, but rather that it would change over time, while remaining within the rules in which change is permitted. The sages of Ashkenaz did not dare change the Halachic tradition, and even when reality required change, they went back on their word. In terms of leadership style, Ashkenazi sages represent a traditional leadership model that perceived itself as passing tradition from one generation to the next, without substantial changes and while maintaining the rigidity of the Halacha.

7. The Status of the Tulitula Ordinance in Israeli Religious Law and in the Israeli Ruling

In the beginning of the 1950s, Israel’s Supreme Court deliberated whether a widow inherited from her husband as well as inheriting her Ketubah, or half the inheritance including the Ketubah. This question became pressing against the backdrop of two laws that had been added to the book of laws: the Women’s Equal Rights Law in 1951 and the Succession Law in 1965. In the 1954 Skinder vs. Helen Schwartz verdict,35 the appellant claimed her right to her Ketubah in addition to a quarter of her husband’s inheritance. The district court as the first instance ruled that she was not entitled to her Ketubah in addition to the inheritance, relying, inter alia, on the Tulitula ordinance by which the woman inherited only half of the estate, and this included her entire inheritance. In the appeal, it was alleged that this ordinance was not customary among Ashkenazi Jews, and therefore its provisions should not be taken into consideration. In the Kipper verdict, Judge Shiloh accepted the position presented by Dr. Etzioni in the civil appeal Philosof vs. ‘Taoz’, which tended to accept Judge Kister’s position on the right to the Ketubah on top of the inheritance. The court ruled, in line with the Tulitula ordinance, that a woman may choose the greater of the rights, up to half the value of the estate.

In the Levi affair36 on which the Supreme Court ruled in 2002, Judge Edna Arbel stated that the Ketubah is an institution of Jewish law, and therefore Halacha rules should apply to it, including the financial valuation of the Ketubah.37 In this case, a woman sued her husband’s estate and demanded payment of her Ketubah in addition to the inheritance which she received. This particular claimant married the deceased after his first wife had died. Before matrimony, the couple signed a prenuptial agreement stating that the property of each would remain separate. However, the husband would give his new wife half of the ownership of the house in Caesarea, and if he died before her, she would be entitled to the severance pay from his employer. In addition, the funds remaining in their joint account would belong to the wife. In the Ketubah, the husband granted her 3 million shekels. After a while, the husband prepared a will in which he bequested everything to his sons from his first wife, excluding what he had granted his second wife. A year and a half after the wedding, the husband died.

In a plea preceding the first instance, the wife demanded 50% of the house in Caesarea, severance compensation, and the funds in the joint account. The sons did not oppose this. Then, she demanded her Ketubah of 3 million shekels. The family court rejected her request, adopting the ruling in the Kiper verdict38 by which the court should examine, in such cases, the intent of the husband, meaning whether he had intended to add the sum of the Ketubah on top of the will. In addition, the court relied on the Halachic ruling of Shulchan Aruch (Even HaEzer mark Kav), which is based on the Talmud: “If [a man] writes his property to his children, and writes some land to his wife, she has lost [the right to] her Ketubah [marriage contract], provided that she did not protest but was silent”.39 The court also adopted the ‘Philosof ruling’40 by which the amount of the Ketubah was the husband’s debt payable, but as stipulated in the Tulitula ordinance, this meant up to half the value of the estate. Judge Arbel rejected the ruling of the district court, by which a will cannot refute the Ketubah. As aforesaid, she based her decision on Shulchan Aruch Even HaEzer mark Kav.

In another court ruling, Judge Hana Rish-Rothschild ruled as follows: “Limiting a widow’s right to the sum of her Ketubah as stipulated in clause 104 (a) to the inheritance law...is not the only limitation of the right, but according to Jewish law her right is limited to half of the value of the estate.”41

In conclusion, while the legislature chose not to explicitly state the provisions of the Tulitula ordinance and its more advanced Fez version in the Inheritance Law of the State of Israel, the reason was not that its provisions were not acceptable, but rather that the legislature considered the fact that some communities had not accepted it. Various legal discussions on the inheritance rights of women include extensive references to the regulation; moreover, positions that doubted the legal status of the Ketubah or believed that its value should be left to civil law were not accepted. Legal explanations relied on women’s expanded rights and Inheritance Laws, as well as the closest to them in the religious law—the Sephardi and Fez regulations that granted women equal inheritance rights. This had been possible for three reasons: the interpretative ways of the Israeli court, which adopts a practical approach to legal documents; the tendency of the court towards harmony between laws; and the absence of a uniform ruling in religious law. This freedom of action, in turn, permitted Israeli law to absorb the religious law closest to it. In this regard, the court had essentially rejected the inheritance law enacted according to the Ashkenazi Jewish custom and accepted the improved Sephardic version as it had been introduced in Spain and regulated again in Fez, incorporating far-reaching changes to inheritance law. The regulations used by the exiled Jews in Fez granted the wife equal inheritance rights from the entire estate of her husband, without stipulation as to the existence of sons or the length of the marriage, as described above. These regulations migrated from Spain to Portugal, where they were influenced by its laws and were then regulated once again in Fez, remaining the custom in Morocco for 250 years.

8. Discussion and Conclusions

Women’s inheritance is a heavy matter in Jewish Halacha, having vast financial, social and gendered implications. According to the Halacha derived from the written scriptures, the wife does not inherit from her husband. The reason behind this was to prevent the passing of land from one tribe to another, so as to maintain in place the division of the land into estates as had been defined in the Torah and upon entrance into the land of Israel in the times of Yehoshua bin Nun. Despite this clear-cut rule, the sages were well aware of the problematic nature of this rule as far back as the Talmudic era. Their apprehensions were based on cases in which the wife would be left with nothing if she did not inherit from her husband, particularly when the husband married more than one woman and his heirs were not her sons. This problem also exists in case of divorce, when the husband is penniless and unable to pay the wife’s Ketubah. The wife may remain in great poverty and without the ability to inherit from the husband when he dies. The danger in such cases is not only starvation, but also a social danger of undermining woman’s honor and increasing her dependence on others who may take advantage of her plight. The Talmudic sages proposed a number of solutions for protecting a woman’s honor. One solution required the husband to provide a guarantee for payment of the Ketubah in the form of a plot of land that was kept for that purpose. The second solution is that the woman would live off her husband’s estate for the rest of her life, as long as she did not remarry. However, despite these solutions, the problem of inheritance remained a complex one, especially in the harsh reality caused by exile in various areas of the world.

The present paper presented different approaches to women’s inheritance among Ashkenazi and Spanish community leaders in the 12th and 13th centuries, against the backdrop of a strict traditional Halacha and local influences. The Ashkenazi sages were confronted by inheritance issues in extreme cases such as in the case of a woman who died shortly after her marriage. In such a case, the Halachic tradition ruled that the husband inherited from his wife. The legal outcome created a twisted justice and an absurd situation in which the husband inherited from his wife shortly after they were married, while her parents not only lost their daughter but also the money that they had invested in her dowry.

This extreme situation led Rabbeinu Tam, the greatest of Ashkenazi adjudicators in the 12th century, to introduce an ordinance that in such a case the wife’s dowry would be granted to her relatives, but then he retracted his ruling a year later. The idea to present an ordinance that perceives the wife’s relatives as her heirs attests to the fortitude of Rabbeinu Tam as a leader and adjudicator, and yet his retraction points to the type of leadership that characterized him and most other Ashkenazi sages in exile—a traditionalist leadership that perceived its role as dedicated to passing on tradition from one generation to the next (Weber 1968). This is a style of leadership that worked to maintain tradition as had been done by all adjudicators in the past, finding it difficult to deviate and change laws and practices that had been established many generations before. The Ashkenazi sages, led by Rabbeinu Tam, saw their religious leadership role as a tool for maintaining Halachic tradition and perceived change or innovation as a danger to Halacha and tradition. This leadership opted to protect Halachic tradition even when complex realities dictated new needs and confronted situations that did not exist in the past.

The great difference between Ashkenazi and Sephardic leadership in terms of women’s inheritance and their status can be noted upon the arrival of Rabbi Asher ben Jehiel (‘the Rosh’) in Spain from Ashkenaz in 1304. When he was required to present his opinion on the women’s inheritance ordinance that had been previously issued in Spain, he deliberated at length with local Dayanim and refused to recognize the interpretation granting inheritance rights to the wife similar to her husband’s right to inherit. His was a traditional leadership style characteristic of Ashkenazi leaders. His years of religious and rabbinical formation were spent in Ashkenaz, under the patronage of the greatest adjudicator of the time, Maharam of Rothenburg. As a leader who studied with the traditional leaders of Ashkenaz, Rosh found it difficult to agree with interpretations presented to the local Dayan Rabbi Israel Ben Yosef to the Tulitula ordinance of the previous generation. Granting inheritance rights to women was in stark contrast to traditional Halacha. As noted, even when Rabbeinu Tam exceptionally adjudicated on the return of the dowry to the relatives of a woman who died shortly after her marriage, he had no intention of granting the wife land inheritance rights, but simply returning her dowry to her relatives to prevent injustice.

Rosh was unwilling to accept an interpretation of the Tulitula ordinance that granted women the same property inheritance rights as their husbands. It never occurred to him that the creators of the ordinance intended to rule in stark contrast to the Halacha. When the local Dayan Rabbi Israel Ben Yosef presented to him what had been written by one of the adjudicators of the previous generation, Rabbi Yaacov Even Shoshan, he explained that the ancient sage had been extremely old at the time and moreover was influenced by the laws of the kingdom.

As aforesaid, the leadership of Rosh pertains to Weber’s first leadership model, as does that of Rabbeinu Tam. This type of leadership is characterized by protecting the Halachic tradition and the avoidance of change, even when the local custom dictates otherwise. The authorities of Rosh were extensive, as the Rabbi of the city of Toledo as well as through his political authority that gave him free reign. Even when the laws of the kingdom and society in Spain gave women similar inheritance rights as their husbands, Rosh refused to recognize such equality or consider the social and legislative reality that existed in the kingdoms. His stark opposition was even more pronounced in view of the general Halachic rule by which the custom of the place shall prevail, and the fact that local custom may even overrule the Halacha itself when it comes to civil law.

Contrary to the leadership of the Ashkenazi sages, the Spanish sages and Dayanim deliberated these issues in the 12th century and later on. As early as the beginning of the 12th century, the sages of Spain introduced the Tulitula ordinance that granted wives nearly equal inheritance rights as their husbands. Community leaders in Spain and specifically the issuers of the ordinance enjoyed religious and social freedom. This leadership had been highly influential in the Jewish world, as the center of Judaism had transferred from Babylon in the period of the Geonim to Spain in its Golden Age. Spain produced venerable Jewish scholars, well-known adjudicators and rabbis, scientists, philosophers, poets, linguists, physicians and more. The sages of Spain saw themselves as leaders of the Jewish world and as ones who were able to present innovations without concern of opposition from other adjudicators. Social reality in Spain and Portugal also influenced Jewish community leaders in terms of their Halachic approaches to women and their social status. Women of Sephardi descent generally enjoyed a more advanced status compared to the women of Ashkenaz.

In this context, the Spanish sages can be characterized as charismatic and rational, based on Weber’s models. The first adjudicator who marked the turning point in relation to women’s inheritance in Spain had been Ramah—the greatest adjudicator of his generation in Spain. His counterparts at court were Rabbi Yitzhak Meir Even Migash, the son of Rabbi Yosef Even Migash, the teacher of the father of Rambam and whom Rambam had viewed as his teacher although he did not actually study with him. To understand his position and Halachic authority, it would suffice to note that Ramban (Rabbi Moshe Ben Nachman) was among those who turned to him with questions. Ramah’s revolutionary nature included his open recognition of the right to stipulate property relations between spouses on a d’var Torah. This Halachic rule was not foreign to the Halacha, but few used it. The second thing he did was grant Halachic recognition to treating women’s inheritance as did the local custom, and only if there was no local custom should the Halacha then be consulted. Women’s inheritance is a financial matter, and therefore rulings on this matter may deviate from the writings of the Torah. Moreover, if the local custom stipulates otherwise, it should be followed. In this regard, he followed in the footsteps of the greatest adjudicator of all times and the greatest of Spain’s sages—Rambam himself, who ruled for financial stipulation on a possible d’var Torah, provided that the custom is widespread in the region.

As aforesaid, Sephardi leadership shows a combination of charisma relying on the status of the sages of Spain throughout the Jewish world and a rationality relying on national arrangements and the wish to adjust the Halacha to changing circumstances. The Dayanim of Spain and its leaders were elected by their communities, and their authority was granted to them by the State. Their job was to ensure organizational and social order among their communities, and therefore this type of leadership can be characterized as rational (Oliver-Lumerman et al. 2018).

The inheritance rights of women emigrated with the expelled Jews from Spain and Portugal to Morocco and to the city of Fez. The expulsion had been traumatic for the Jews of Spain, creating a harsh reality which the sages of the expelled communities had never before experienced. Broken communities shattered into fragments, traveling from the Spanish countries and bringing with them difficult problems in many areas of life, and particularly in family law. The expulsion crisis forced the sages of expelled communities, who had gone into exile in Fez with some of their community members, to act quickly and authoritatively in reorganizing their communities. Although the Dayanim held onto Halachic authority from Spain and charismatic leadership is ingrained in religious communities, they were redefined as leaders of the communities and in a short time formed the community in Fez. This leadership gained the trust of their community members immediately upon their arrival at Fez, as they possessed the three essential components for leadership success (Maccoby 2009; Klein and House 1995):

• The group to be led—the community members that exiled with them from Spain and Portugal—were in a traumatic state, confused and in need of leadership.
• Supportive environment—the local king of Morocco took the expelled Jews under his auspices and gave them a sense of security. These auspices included authority granted to the Dayanim to rule on behalf of community members on many issues.
• The leaders—the city’s Dayanim enjoyed wide religious authority, and their power as religious leaders was clear to all in a community composed solely of religious members. This community aspired to return to the values of Judaism as it had existed in Spain. In this crisis situation, leaders gave hope to their communities by providing a vision of values (Popper 2002; Weber 1968; Castelnovo et al. 2017) that would return them to those of the Jewish religion and tradition as had been the custom in Spain.

The Dayanim and leaders of the community in Fez used ordinances to reinstate community life to its previous state, but the harsh reality following the expulsion and the customs among the expelled led them to improve the original inheritance ordinances of Tulitula and Valladolid by benefiting women more than had been the intention in the original Tulitula ordinance. The inheritance ordinance issued in Fez spread quickly to many cities in Morocco and became the custom for 250 years. The ordinance changed the status of women, with its impact extending beyond financial matters of inheritance, also to stipulations in the Ketubah on the prohibition to marry a further wife—a condition that is included by the wife in the Ketubah. This custom, too, had spread in many cities in Morocco.

With the establishment of the State of Israel and transfer of the authority on marriage and divorce to the rabbinical court, the Tulitula ordinance was seen as binding in matters involving inheritance between couples who were descendants of Spain and Morocco. The women’s inheritance ordinance that had been issued in Morocco granted wives equal property rights as husbands, and in this the rabbis of Morocco preceded the ‘presumption of community property’ introduced by the Israeli Supreme Court following the legislation of the Women’s Equal Rights Law in 1951. The court’s innovation was that the wife’s inheritance rights would also apply to couples married before that year, pursuant to the ‘presumption of community property’ originating in an implied contract, and in fact had existed in the inheritance ordinances issued in Morocco as of the 14th century onwards.

Although the Israeli legislature chose not to include the provisions of the Tulitula ordinance and its more advanced version in Fez in the State’s Inheritance law, the reason was not that it did not accept it, but rather the assumption that certain communities had not. Extensive references are made to the ordinances in discussions regarding women’s inheritance rights. The approach that casts doubt on the legal status of the Ketubah or the position by which its values should be left to the civil law were not accepted. The legal explanations for this fact were based on the Women’s Equal Rights Law and the Inheritance Law, as well as on their counterparts in Jewish law—the Spain and Fez ordinances which granted women equal inheritance rights. This was made possible due to the interpretative ways of Israeli courts in their adoption of a practical approach to legal documents, the tendency of the court to seek harmonization of the law, and the fact that there is no clear ruling in religious law on this matter. This freedom of action enables Israeli law to absorb into it the religious law that is closest to its approach. In this regard, religious law ruled by the custom of Ashkenaz in inheritance laws had been rejected, while the improved Spanish version as introduced in Spain and amended in Fez (with far-reaching changes in inheritance laws) had been accepted.

The ordinances issued by the expelled Jews in Fez granted women equal inheritance rights over their husbands’ entire estate, without stipulations pertaining to the existence of sons or length of the marriage. Their influence on the Halacha can be noted to this day in Israel’s customary law as well as in further ordinances such as those granting equal inheritance rights to daughters and sons and ordinances obligating men to compensate women for un unrealized promise of marriage, while women in Morocco had been exempt from a parallel obligation.