Volume 54 Number 83
                    Produced: Sun Jun  3 23:02:25 EDT 2007

Subjects Discussed In This Issue: 

Fiat Libellus Repudii
         [Jay F (Yaakov) Shachter]


From: Jay F (Yaakov) Shachter <jay@...>
Date: Wed, 30 May 2007 21:12:18 -0600 (CDT)
Subject: Fiat Libellus Repudii

In v53n34, one of the contributors to this mailing list has directed our
attention to married Jewish women whose husbands have abandoned them,
but have not divorced them under Jewish law.  These women, whom the
contributor calls "Agunot", are in a sad state.  Because they are
married, Jewish law forbids them to cohabit with anyone other than their
husbands; their husbands refuse to cohabit with them, and also, in
violation of Jewish law, refuse to divorce them (see Mishne Torah, Sefer
Nashim, Hilkhot Ishut 14:7 and 14:15; Shulxan `Arukh, Evven Ha`ezer 77:1
and 154:3), an act which would enable these women to cohabit with
somebody else.

Although Deuteronomy 24:1 requires a bill of divorce to be both written
and delivered through a husband's agency, the contributor has proposed a
course of action so that these abandoned wives need not live out their
lives in loneliness -- a proposal breathtaking in both its simplicity
and its audacity.  Her solution, in her own words, is for the rabbinical
authorities to "grant the gets [bills of divorce] and get over the
minutiae."  In other words, the rabbinical courts shall divorce these
women from their husbands by fiat, as the Gentile courts do.

The English word "fiat", meaning, a self-effectuating pronouncement,
i.e., a pronouncement that effects its intent, through the very fact of
its being pronounced, comes from the Latin, specifically, from the
familiar verse in Genesis:

        Dixitque Deus: "fiat lux" -- et facta est lux.

It is greatly tempting to believe that we have the power to bring things
into existence by calling them into existence, and, believing so, it is
greatly tempting to exercise that power.  But before we yield to either
of these temptations, we would be well advised to consider the
continuation of the above-cited passage:

        Et vidit Deus lucem quod esset bona et divisit
        lucem ac tenebras.

That is to say, we should be certain that the thing we create shall be
vidit Deus quod esset bona; and we should be certain that we shall be
able effectively to be divisit ac tenebras.

First of all, there is the question, not whether we can call spirits
from the vasty deep, but whether they will come when we call them.  The
person to whose post I am responding holds the position that a Jew's
marital status can be controlled by our pronouncements about it.  The
notion is that if a woman thinks that she is now able to remarry, and if
everyone who knows her thinks that she is now able to remarry, then the
thing happens.

Against this notion one could raise the objection, "It doesn't really
happen.  We imagine it.  It is hallucination."  But the fallacy of this
objection is obvious: it presupposes that somewhere or other, outside
ourselves, there is a "real" world where "real" things happen.  But how
could there be such a world?  What knowledge have we of anything, save
through our own minds?  All happenings are in the mind.  Whatever
happens in all minds, truly happens.

But even if there is no God in Whose immanent Mind an external reality
exists, and a woman's marital status can be safely solipsized, that does
not mean that it is wise to do so.  Prudence, indeed, will dictate that
religious codes long established should not be easily changed.  The
science of constructing a religion, or renovating it, or reforming it,
is, like every other experimental science, not to be taught  priori.
Nor is it a short experience that can instruct us in that practical
science, because the real effects of moral causes are not always
immediate; but that which in the first instance is prejudicial may be
excellent in its remoter operation, and its excellence may arise even
from the ill effects it produces in the beginning.  The reverse also
happens; and very plausible schemes, with very pleasing commencements,
have often shameful and lamentable conclusions.  In religions there are
often some obscure and almost latent causes, things which appear at
first view of little moment, on which a very great part of our felicity
or misery may most essentially depend.  The science of religion being,
therefore, so practical in itself, and intended for such practical
purposes, a matter which requires experience, and even more experience
than any person can gain in his whole life, however sagacious and
observing he may be, it is with infinite caution that anyone ought to
venture upon pulling down an edifice which has answered in any tolerable
degree for ages the common purposes of our society, or on building it up
again without having models and patterns of approved utility before his
eyes.  Consequently, when Orthodox Jews propose to make any change to
our religious practice, we do so by appealing to existing legal
principles that allow us to do so.

Piquax Nefesh, it is proposed by the poster to whom I am responding, is
the legal principle that will allow us to enact the reform that she
wishes us to make.  In her own words, continuing the quote that was
cited above, right after the part about getting over the minutiae: "The
bottom line is pikuach nefesh".  Piquax Nefesh is the principle that
Jewish law can -- and must -- be abrogated, in order to save Jewish
lives.  Several abandoned wives have committed suicide rather than live
out their lives in loneliness, and thus a mechanism, even an illegal
mechanism, to prevent similar suicides in the future would be
permissible under Jewish law.

As it turns out, this is a poor argument, for two reasons.  Neither of
the reasons is that Piquax Nefesh requires a present threat to an
identifiable victim.  This is a myth.  It is commonly believed -- even
by some posqim [people who are asked to decide questions of Jewish law]
-- but it is still a myth.  Piquax Nefesh can apply when the danger to
life will occur in the future, at an unknown time, to unknown
individuals who cannot now be identified.  See `Eruvin 45a; Mishne
Torah, Sefer Zmanim, Hilkhot Shabbat 2:23; Shulxan `Arukh, Orax Xayyim

The first reason why it is a poor argument is that Jewish law does not
recognize Piquax Nefesh in the case of adultery.  A Jew is required to
surrender his or her life, if necessary, rather than commit adultery.
See Psaxim 25a-25b; Mishne Torah, Sefer Hammada`, Hilkhot Ysodey
Hattorah 5:2 and 5:7; Shulxan `Arukh, Yoreh De`a 157:1.

The second reason is that Jewish law does not classify a self-created
danger to life as Piquax Nefesh.  Let us illustrate this with a quote
from the Mishne Torah, because Rambam is relatively permissive where
sexual matters are concerned.  He will let your husband kiss you in
places the Shulxan `Arukh will not.  Nevertheless, this is what he
writes in Sefer Hammada`, Hilkhot Ysodey Hattorah, 5:9 --

    If someone who has set his eyes on a woman, languishes,
    approaching death, and the doctors have said that there is no
    cure for him unless he copulates with her -- even if she is
    unmarried, we refuse him even to speak with her from behind a
    wall; let him die.

You are not allowed to abrogate Jewish law to save your life, if you are
the one who has created the threat to your life, because you could not
abrogate the law.  I am certain that there are Jewish men who have
committed suicide because they could not experience an enjoyable orgasm
unless they could feel a phallus inside their rectum.  I do not know how
often this has happened, but there are millions of Jews, so even highly
infrequent events have surely happened more than once.  Nevertheless, a
poseq will not, in the hope of preventing future suicides, tell a male
homosexual to get over the minutiae of Leviticus 20:13, and marry a man.
Rather, a poseq will tell the homosexual to find a woman who is willing
to marry him, and do the best he can.  A well-read poseq will further
advise him to give his wife a strap-on dildo, and instruct her how to
use it (the mandatory reading list for posqim is extensive, and includes
many books that are not generally found in yeshiva libraries).

The analogy is not perfect.  Without minimizing the sympathy we feel for
the homosexual, most of us feel more sympathy for the abandoned wife,
because we think of her as a victim, whereas we do not think of the
homosexual as a victim, because there can be no victim, where there is
no victimizer.  Because there is a victimizer in the case of the
abandoned wife, there is a strong aversion to letting him get away with
his victimization.  This does not, however, strengthen poor arguments
advanced on grounds of piquax nefesh, it only explains the motivation to
advance them.  People sometimes use piquax nefesh as an excuse for doing
things that they want to do for other reasons.  I used to tell Ruch'l
Weiss that checking her breasts for lumps was piquax nefesh, but she
still wouldn't let me do it.

The person to whose post I am responding is apparently convinced that
the minds that can find 150 ways to declare a bug ritually pure can
surely find 1 way to break the marriage bonds of an abandoned wife.
But, in fact, there are not 150 ways for an intellectually honest mind
to declare a bug ritually pure.  There are not 48 ways.  There is not
even half a way.  The only way you can declare a bug ritually pure is by
deciding beforehand that you want to declare the bug ritually pure, and
then by developing the power of not grasping analogies, of failing to
perceive logical errors, of misunderstanding the simplest arguments if
they are inimical to your predetermined conclusion, and of being bored
or repelled by any train of thought which is capable of leading in a
contrary direction.  It also needs a sort of athleticism of mind, an
ability at one moment to make the most delicate use of logic and at the
next to be unconscious of the crudest logical errors.

If our posqim had failed to find an answer to the question, "what
positive number, multiplied by itself, is equal to 1764?" it would be
reasonable to say that our posqim have not tried hard enough.  But the
problem confronting our posqim might not be at all like finding the
positive number whose square is 1764.  It might be more like finding the
positive number whose square is -1, and a lack of motivation to solve
the problem might not be the reason why they have failed to solve it.
Our posqim are not cowards, or I should say more precisely, they are not
all cowards, and there are among them those who dare do all that may
become a poseq; who dares do more, is none.

This kind of essay traditionally concludes with an earnest little sermon
made up of helpful hints.  I have none to offer.  I can offer only the
reasons that seem to preclude helpful hints.  Foremost among them is
that the people wishing to draw our attention to this problem are using
language with deliberate intent to deceive.  It was mentioned earlier
that married women who have been abandoned by husbands who refuse to
divorce them are being called `Agunot.  Other contributors to this
mailing list have already correctly pointed out that the proper term for
such a woman is a Msorevet L'Get.  An `Aguna is different.  An `Aguna is
a woman whose husband has been taken captive, or who has otherwise
disappeared, and it is not known whether he is alive or dead.  Karnit
Goldwasser is an `Aguna.  Jeanette Friedman never was.

To point out that language is being used incorrectly is not enough.  One
should also point out why.  In this case, the incorrect use of language
involves erasing the distinction between two different legal categories.
What goal is served by doing so?

If your goal is to solve a problem, you will want the problem to be as
small as possible.  If your goal is to solve a problem that seems too
large to solve, your strategy will be to break it up into sub-problems,
and to break the sub-problems up into sub-sub-problems, until you have
problems that are small enough that you can solve them.  Maybe some of
the sub-problems are soluble, and some are not; in that case, if you
fail to make distinctions among cases, you will never solve anything.

If your goal is to bewail a problem until someone else takes note of it,
you will want the problem to be as large as possible.  If you believe
that other people are not taking note of the problem that you are
bewailing because it is not large enough, your strategy will be to
aggregate it with other problems, and to aggregate the aggregation with
still other problems, until the combined problem is large enough to
compel the attention you want.  This involves erasing the distinctions
among different cases, so you can bewail one large problem, and not
several small ones.

You also get to choose a name for the problem from any of the names of
the cases that have been aggregated.  With respect to the matter under
discussion, the problem of the `Aguna is one where extensive effort on
the part of learned jurists has actually resulted in some progress
(mostly having to do with extending the category of evidence that will
provide acceptable proof of the husband's death).  Consequently, using
the term "`Aguna" elicits the cognition, "This is a problem that can be
solved by our rabbis, if they work at it hard enough".  Calling a woman
an `Aguna when she is not is calculated to elicit the same cognition.

Such a strategy may succeed in the case of the Msorevet L'Get if, in
fact, it is a problem that can be solved by our rabbis, if only they
work at it hard enough.  Or it may not, because problems that are made
to appear larger than they are, by means of erasing the distinctions
among cases, may become so large that they are overwhelming.

The strategy may also fail for another reason.  A serious problem can be
inflated by aggregating it with a less serious problem, and thereby
diluted, so that the entire problem seems to be of little importance,
and attention is therefore allocated to other things.  This can be
illustrated by noting a third category of woman that is also often
wrongly styled an `Aguna, a category that has not been mentioned yet.  A
Moredet is the opposite of a Msorevet L'Get.  A Msorevet L'Get is a
woman who wants to be married, but her husband refuses to cohabit with
her.  A Moredet is a woman who refuses to cohabit with her husband, but
her husband wants to be married to her.  For polemical purposes, some
people classify the Moredet together with the `Aguna, whom she does not
resemble, and the Msorevet L'Get, to whom she is diametrically opposed,
and call them all `Agunot.  Forcing all of these different people to
suffer the same fate can be defended, but only by arguments that are too
brutal for most people to face, and which do not square with the
professed aims of the people who would advance them.  Better to use
language in a misleading way, and call them all by the same name, so
that people will fail to see their differences.  This inevitably
results, however, in reducing the sympathy felt for the entire class,
because two categories of people who deserve much sympathy are diluted
with a third category of people who deserve less sympathy, or none, and
no distinctions are made among them.  I do not expect that any
satisfactory progress will be made in this matter until the prevailing
strategy ceases to be polemical, and becomes practical, which will
require making proper distinctions among cases.

		Jay F. ("Yaakov") Shachter
		6424 N Whipple St      Chicago IL  60645-4111
			<jay@...>    http://m5.chicago.il.us


End of Volume 54 Issue 83