Volume 55 Number 02
Produced: Mon Jun 18 6:29:17 EDT 2007
Subjects Discussed In This Issue:
Agunot/Msorevet Leget (3)
[David Mescheloff, Chana Luntz, Joseph Kaplan]
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From: David Mescheloff <david_mescheloff@...>
Date: Fri, 15 Jun 2007 07:20:42 -0700 (PDT)
Subject: Agunot/Msorevet Leget
Chana Luntz wrote in her customary carefully thought out fashion on some
points relating to this topic. I have been teaching Jewish Family Law
and Custom for several decades, including this topic, and have written
at length on various aspects of it, including in one of my doctoral
dissertations (I really must edit it for publication). I would like to
relate here briefly to three of the issues that she addressed.
1 - Chana addresses the question, "How can we understand, at least
partially, why Hashem changed the egalitarian legal relationship between
man and woman that He provided for non-Jews to the asymmetric one He
gave us. Chana's hesitantly suggested idea is interesting, yet I don't
think that's it. May I suggest a different idea (I don't think it's
original with me, but I don't recall where I've seen it). A biological
asymmetry between man and woman makes maternity absolutely certain (the
mother is the one from whose body the infant emerges), but leaves
paternity in doubt (clearly, a- our laws were established long before
paternity could be tested in a laboratory, b - even today, there is no
laboratory result that is 100% certain, c - even if a husband is shown
with certaintly not to be a child's biological father he may yet be
obligated towards the father in every way - say, if he agreed to his
wife's being artificially inseminated with a mixture of his semen and
that of another man). (Why Hashem made humans this way would take us
too far afield at the moment. Please note that, according to most
poskim, even today, when the mother who carries and gives birth to the
child might not be its genetic mother, yet she is the halakhic mother;
as in many issues it is not unseen facts of physics, biology and botany
that determine halakha.) This makes it impossible - or at least very
difficult - to impose family obligations on a man towards his children,
and on children towards their father, when a marital relation can be
created and broken at will by either of the parents, so that it is easy
for father or children to deny the existence of any connection between
them. (An egalitarian relationship that can be broken at will by either
side is possible not only for non-Jews, but also for Jews, at least
according to basic Torah law, according to those many rishonim who held
that the pilegesh (concubine) relationship is halachically legitimate, -
although it is ill advised). How could one know who stands in a
father-child relationship? Perhaps, since Hashem wanted the family bond
to be at the foundation of Jewish life, as it is to this very day, it
was necessary to create a family arrangement in which the woman's bond
to the man is characterized by her willingly giving up her right to be
with another man, and granting the man the exclusive right to return
this right to her (as long as he is alive). This giving up of the right
to cancel her commitment of faithfulness to the man is called
"transferring a 'woman's right' to the man" - as if it were a kinyan of
a legal right - note Rashi and Tosafot at the beginning of masechet
Kiddushin, who defines the kinyan effected in kiddusin precisely in
these terms. The penalties for violating this undertaking by the woman
are very severe. These two facts (the asymmetry of a woman's
undertaking in kiddushin and the severe sanctions for violating it) - in
contrast to the egalitarian non-Jewish arrangement, and in contrast to
pilagshut, are the underpinning of Jewish family life. Indeed, I have
suggested that it is just for this reason that the Mishnah in the first
chapter of kiddushin presents, immediately after speaking of the kinyan
of kiddushin and other kinyanim, the lists of a father's duties towards
his children and of children's duties towards their father. These are
possible only within a framework defined by kiddushin, and not by
anything less.
2 - Chana suggests that rabbis cannot be held responsible for the
current mesorevet get crisis because it is dictated by Hashem through
the Torah law that requires that a man give a get of his own free will.
That would be all well and good, were it not for the fact that the
Torah's requirement of free will is only at the very moment of the
formal ceremonial act of divorce (that is, the double act of writing and
of delivering the get). Thus if a man were bound hand and foot and
others manipulated his limbs against his will to write and deliver a
get, the get would be disqualified by Torah law. However, when the
formal ((two acts of) divorce seems for all intents and purposes to be
done willingly (indeed, the very acts of writing and delivering seem to
attest by themselves to the freedom of the formal act), one would seem
to have no choice but to recognize the validity of the divorce. Thus
the problem arises as to how to relate to a get written and delivered
with no apparent IMMEDIATE coercion at the moment of the ceremony, yet
where coercion was applied PRIOR to the formal ceremony. Clearly if
every such get were to be accepted as valid, the brutality of "the wild
West" would pale compared to that of our Jewish world. For this and
several other reasons, over many centuries our sages developed an
intricate system for measuring and defining degrees of freedom and of
unacceptable versus acceptable pressures prior to a formal divorce. I
have written about this at great length in the above-mentioned
dissertation (350 pages). Today our poskim are highly concerned about
tampering with this system, for all its parts are tied together in one
whole. So solutions to the "aguna" problem do require both creativity
and caution. I wrote very briefly about a long list of proposed
solutions in my article in Tehumin volume 21. Thus rabbis may be less
responsible for the intractability of today's problem than many like to
suggest (sometimes one gets the impression that all of Jewish society's
unresolved ill are the rabbis' fault!), but not for the reason Chana
suggests.
3 - One returns to the general philosophical question as to whether
Hashem could have given a Torah that would create unsolvable problems
for some people. I failed to be brief enough above, so here let me just
point to the Rambam's statement (and others agree) that the Torah's laws
- like all laws - are designed to work well "for the majority". That
means there will always be some who are hurt by the law. This is the
rationale behind the more general requirement to do all one can to solve
the problems the law inevitably creates for some individuals (or large
minority groups). In most cases, the solution cannot be spelled out in
advance within the law; good minded people - and rabbis - must work hard
(preferably in cooperation) to find the solutions. I believe many such
people - and rabbis - are doing their utmost in the case of the "aguna -
mesorevet get" problem. This is an especially difficult problem, with
many aspects, and different people are working on different aspects. It
seems to me unreasonable to expect that some single-dimensional act
would solve all aspects of the problem at once.
David Mescheloff
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From: Chana Luntz <chana@...>
Date: Thu, 14 Jun 2007 18:26:20 +0100
Subject: RE: Agunot/Msorevet Leget
Joseph Kaplan writes:
> Chana Luntz's lengthy reply to my reply to her response (are
> you with me still) is, as always, scholarly and perceptive.
> Although I feel a little out of my depth, let me try to respond:
>
> "But isn't all that predicated on the assumption that it is
> really a problem they [the rabbis] have created, and if they
> really truly tried, they could do something to fix the problem?"
>
> There are two different points in that question. As to the
> first, I don't believe the rabbis created the problem.
> Rather, the problem was created when the following two basic
> changes occurred in the societies in which Jews lived, thus
> making a workable system much more problematic: (a) Jews no
> longer had their own judicial system in which they could
> force a man to give a get (makin oso ad she'omer rotzeh ani;
> the court beats him until he agrees to give the get),
The problem with this frequently cited reason is that, according to the
halacha as it has been decided by the Shulchan Aruch, no court would
beat him until he agrees to give a get in the vast majority of cases
that constitute msorevet l'get.
Just to make sure we have at least a basis in the sources here - the
power of a beis din to force a man to give a get can be found in Even
HaEzer siman 134 si'if 5 - which I will translate in full (with
explanations in square brackets, otherwise you will lose the whole
context):
134:5 That which it is not [considered a valid] get when he is forced
[anus] this is only where he has served notice [previously that the get
was given under duress] but if he has not served notice if he is forced
improperly [shelo k'din] it is invalid [posul] but properly [k'din] like
where he is required to send her out [chayav l'hotzei] and does not want
to and beis din forces him until he he sends her out it is a get and it
is a mitzvah on every beis din in all places and in all times to force
him to divorce and to nullify notices [of duress]."
However, as you can see clearly from this - the get is only considered
valid if the forcing is legitimate [k'din] - which is explained to mean
where he is chayav to send her away.
However, most cases of msorevet l'get are not generally considered to be
cases where he is chayav to divorce her (a case where he is chayav to
divorce her, he must divorce her whether she wants it or not - eg on
adultery). Most cases of msorevet haget fall within the category of
"maus alai" [he is repulsive to me] and the din for that as set out in
the Shulchan Aruch can be seen from the section in Even HaEzer siman 77.
Mostly this section is dealing with a moredes (or mored), which I have
previously explained, is a woman (or man) who refuses to have sexual
relations with her husband (or wife) in order to cause him (her) pain.
But in the course of that section, in si'if 2, in describing a woman
whose husband has brought her to beis din claiming she is refusing to
have relations with him - the beis din asks her why she does not wish to
have relations, and if she says that the reason is that she finds
herself unable to, she is not considered a moredes, but the Shulchan
Aruch goes on "v'im rotze habaal l'garesha ain la k'tuba" [and if the
husband wants he can divorce her without a ketuba] and the commentators
all say on this "im rotze" [if he wants]- (I am quoting the beis Shmuel
here, but it is a general comment) but we do not force him and it is not
like the opinion of the Rambam and the Rashba" [because, as we all know,
the Rambam says that a beis din can indeed force the husband in a case
where she says maus alai].
The reason we get to this position is, as I have indicated, linked to a
tosphos in kesubos 63b which we can go into if you like, but it is based
on a complex analysis of several sugyas in the gemora. But the bottom
line conclusion is that the various sugyas do not make sense if one is
to say that a beis din can just force a man to give a get if a woman
says maos alai.
The key thing to understand is that, even were we to return to a
situation where the Jews had their own judicial system, no beis din,
today, is likely to force a man to give a get in a pure maus alai
situation by hitting him until he says rotze ani. That is because, it
is difficult to find a beis din who is going to posken with the Rambam
against the Shulchan Aruch, which is what you are asking him to do.
There are some who have proposed half way houses between these two
positions, by saying that if one can show objectively that the person
really is repulsive in some way, ie the beis din agrees that this person
really is maus, then maybe then they will (it answers some of the
objections of Tosphos). Does this satisfy your sense that there is no
inherent problem?
And as I said, it seems pretty clear that all of this is understood in
halacha to be a deviation from what existed, pre the giving of the
Torah. That is, the underlying and original arrangements for marriage
were equitable, and involved marriage by moving in and divorce by moving
out, and the Torah changed it to an arrangement whereby the power to
dissolve a marriage was fundamentally shifted into the hands of the
husband, necessitating a beis din to, at least in some cases, step in
and beat a husband to a pulp, and in many others for it to be bound by
the halacha not to do so, even should we have our own judicial system.
Is this really such an ideal system, and better than the one that it
replaced? If yes, why?
> and (b) civil divorce came into existence. So now we have a problem
> that we really didn't have before.
While it is true that today we have a civil divorce system, something
that is indeed new - I am not totally sure why that, in and of itself
makes a difference. If everybody were religious and devoted to the
halacha, and nobody married out, then I would have thought that the
civil divorce system would be neither here nor there. I think rather
what you are identifying is that we have a civil society, and a lot of
people do not really live within the halachic society but the civil
society, and hence disapproval of their actions or non actions from
within halachic society cuts no ice. That certainly exascerbates the
problem - although presumably there are (at least in theory) just as
many women who escape into civil society and ignore the get issue as
there are men who escape giving the get - however (i) if this is all
divinely mandated, surely the Torah would have seen, when it changed the
marriage arrangements, that at certain times in our history civil
societies are going to arise, giving rise to men who can escape societal
pressures, and women who can decide that civil society and mamzerim for
children is the way to go; and (ii) it does not change any of what is
said above regarding lack of power of beis din even where we have a
fully halachic society.
> And finally, with respect to your last point -- your "tentative
> hypothesis . . . that the sort of man who is willing to deliberately
> withhold a get from his wife, is or may well be the sort of man who,
> if he did not have this weapon to wield against her, might well be
> likely to murder her" -- I simply cannot accept that this was
> halacha's (or God's) purpose. And one (but only one) of the reasons
> that I cannot accept that hypothesis is that, at one point in our
> history, we were able to force men to divorce their wives, the way
> civil courts can force men to do so today. Halacha did not seem
> concerned at that time that men who were physically coerced by a bet
> din would then kill their (ex) wives on the "if I can't have her,
> nobody will" theory. And if it wasn't true then, I don't see why it
> should be true now.
But, as I have tried to show above, the discussion above seems to be
based on a wrong assumption. While it does seem that the geonim and the
courts in Sfarad up to and including the time of the Rambam (and, I
believe, including later courts in Yemen, following the Rambam) did
indeed force a man as you suggest, this was not something done in
Ashkenaz, and it was something that IIRC the Rosh was keen to put a stop
to when he came across it, due to the view of Tosphos (and a position
subsequently adopted in Sefarad as well, as can be demonstrated by the
Shulchan Aruch, leaving only the Temanim as possible inheritors of the
Rambam's position).
I don't see any way of escaping from this. And I don't really
understand how what seems to me to be a myth of a beis din's ability to
force, should it have a society in which it has the power to do so, has
been so widely and successfully promolgated, to the point that you are
not willing to look at the underlying issues that arise out of the very
nature of the marriage and divorce relationship because you are
convinced of the existence of this power.
Don't we first and foremost need to understand precisely what the issues
are?
Regards
Chana
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From: Joseph Kaplan <penkap@...>
Date: Thu, 14 Jun 2007 14:22:00 -0400
Subject: Re: Agunot/Msorevet Leget
I now know I'm out of my depth, but, nonetheless, basing myself just
what Chana Lunz writes regarding whether a bet din has the power to beat
a man to giver his wife a get, I think she overstates matters somewhat.
She explains that "the bottom line conclusion is that the various sugyas
do not make sense if one is to say that a beis din can just force a man
to give a get if a woman says maos alai." But then she teaches us that
the Rambam and the Rashba, not insignificant rishonim, say that a bet
din can coerce the giving of a get in a maus alai situation. I assume
that they must deal with the sugyot in some way that they do make sense.
So it seems to me to be more of a machloket rather than sugyot simply
not making sense.
In addition, towards the end of her analysis, she refers to the "myth of
a beis din's ability to force" the giving of a get, but she also refers
to the practice of the geonim, Sfarad until the time of the Rambam, and
Yemen of having courts force the giving of a get, which makes the use of
the word "myth" problematic.
But putting these lomdush issues aside -- and I certainly bow to her
greater halachic knowledge in these matters -- I do have a question.
According to Chana's analysis, the nature of marriage changed when the
Torah was given. If that's so, why has the issue of msorevet get arisen
in full force only in the recent times? -- the question I was
addressing. One answer might be, my assumption is wrong; Judaism has
always had this problem; it's not new. But if that is the case, then
the problem should be documented by discussions of it in responsa and
other halachic literature. However, from my reading of secondary
sources on these issues I'm not aware of any extensive discussion in
such primary halachic literature, although I am certainly open to be
educated. But if my assumption is right, but Chana is also right that
my reasons are wrong, then why did this problem arise only in recent
times? Chana's posts do not, I believe, deal with that issue, and I,
for one, would be very interested in what she believes is the reason.
Joseph Kaplan
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End of Volume 55 Issue 2