Agunot Campaign Forum Speech
Rabbi and Director of YAKAR London.
Professor of Comparative Religion.
The Faculty for Comparative Religion, Antwerp, Belgium.
‘The Agunah In Halacha’
LONDON, 13 NOVEMBER 2000
I care very much for halacha (Jewish Law) and I care very much about the position of women in our society. I believe that there are still areas where the lot of women needs ameliorating, at the very least. This is why I am delighted to have the opportunity to express my views on the subject of how halacha is being used to put some women at a serious disadvantage. Whether we are or are not in a position to change halacha is not the issue. Whether we are considered ‘experts’ or not (and of course every so-called expert has someone else calling him inadequate in one way or another) halacha is an open accessible book. There is nothing to prevent anyone studying, examining and arguing.
Halacha is a wonderful and amazing structure. It is not simply ‘law’. It is the oldest system governing every area of human activity. Time and again it survived suppression and the challenge of confronting alien systems. It has been responsible for keeping Judaism alive. It has been able to do this because, despite its miraculous origins, it included the principle that it was up to humans to take the original revelation further. The Priest, the Judge and later the Rav were given authority to be the safeguarders and also the innovators of Jewish Law. As the Talmud records in the case of Achinai’s Oven, on occasion God Himself is defeated over an issue of halacha by a majority decision of humans.
Any autonomous system of religious law that finds itself functioning in an alien environment is bound to encounter problems. Religious authorities have always used the halachic system itself to find ways of dealing with new challenges while preserving the integrity of the original concepts. The biblical law of the Seventh Year Release created the notion of a Sabbatical. It was designed to give hard working farmers and merchants a break and an opportunity to study. Debts were automatically released. In time this led to a crisis because lenders were frightened to make money available towards the Seventh Year. The leader of Jewry some two millenia ago, Hillel the Elder, decided not to cancel a law that in principle enshrined a noble idea but found a way to deal with the crisis. The ‘Prosbul’ transferred personal debts to the courts, which were exempt and able to collect on behalf of individuals.
Indeed Jewish courts were given extraordinary powers to impose punishments, to go beyond the law to meet emergencies and to legislate for areas such as trade and commerce in a post agricultural era. They assumed responsibility for the affairs of the disadvantaged. They modified Torah Law by stopping the obligation to blow the Shofar or take the Lulav on a Shabbat. They presided over a major adaptation in the wake of the loss of the Temple by replacing the sacrificial service with community prayer. They changed the procedure for marriage and introduced the Ketuba, the marriage contract, to protect the rights of widows and divorcees and they established the principle ( Ketubot 3a ) ‘ Whoever marries does so in accordance with rabbinic law and they have the power to annul the original contract.’
Beyond the age of the Talmud, Rabbeynu Gershon banned polygamy (for the Ashkenazis ). Rabbeynu Nissim modified marriage settlements. The medieval ketubot introduced all sorts of conditions and limitations that protected the rights and the property of women. Indeed it seems that then the issue was not one of sex but rather wealth. The wealthy person could make provisions the poor man or woman could not. No one talked about changing the law. The very notion would have sounded absurd. But development, modification, expansion and innovation were all used constantly as ways of creating new realities while remaining true to the original system.
Similarly, the obligation of a brother to take responsibility for a childless sister in law, as recorded in the Torah, looks as though it was intended as a protective measure for the woman. Here to, the unintended by-product in a changing society, was another situation in which a woman came, sometimes, to depend on a man for release.
The Torah legislates for certain obligations a man has to his wife. Failure to maintain these can lead to a wife demanding a divorce. Sometimes the courts can insist on it. But the Torah also stipulates that in the case of divorce a man must write the document himself or appoint a representative to do it for him. Naturally in a text covering a thousand-year span and different societies as the Talmud is, one can find differing and sometimes unpalatable views on divorce and the criteria for separation. But overwhelmingly the Talmud shows evidence of creative and protective legislation. The simple command to ‘leave my house’ still prevalent in parts of the world, was unacceptable. Yet new legislation also created uninyended difficulties.
The issue of the Aguna (the wife whose husband had disappeared and had not left any instructions one) has always been a problem because one needs evidence that a husband has died rather than just conveniently disappear. And in an era of slavery, banditry and kidnapping, one had to be sure a husband would not return before allowing a wife to remarry. The Talmud waved the usual restrictions of two, male, witnesses. There was even a recorded tradition (anachronistic perhaps) but reflecting Rabbinic concern) that at King David’s time his soldiers wrote bills of divorce before they went out to war in case they did not return. The amount of space given in the Talmud to conditional divorces shows the extent to which they were used to prevent women being left in a tied status.
There is the allied issue of a husband simply refusing to give a divorce when required to. In previous times religious authorities had powers that were simply too great for an individual to withstand. Before the enlightenment if one was excluded from the Jewish community the only option was then to join the Christians or the Muslims. The ability of modern man to disappear into new lands and beyond the reach of authority created new problems.
The idea that a get should be given willingly is fine. But what of a man who refuses? The forced Get, a Get Meusah, seems to have been less of a problem once. Nowadays this is used as the main argument against bringing pressure to bear on a man.
The Shulchan Aruch indicates that a compelled Get only means one where the husband actually protests in public that he was compelled. The text itself says ( Even HaEzer 134. 5 ) ‘As for a case where a man is obliged to give a Get and he refuses, the Bet Din force him and it is a mitzva on every Beth Din in any place and at any time to force him to divorce and to cancel any public statement he may have made.’ Indeed in Israel there have been cases of men sent to Jail for refusing and recent legislation is now stacking the cards much more fairly in the woman’s favour. But in the diaspora this can’t be done.
Annulment is another device, written into the original rabbinic system of marriage, which can be used. But Courts of Law don’t like using it nowadays. It is indeed a draconian measure with repercussions, but sometimes such measures are the only resort. The great R.Moshe Feinstein suggested it as a way of dealing with the American Reform phenomenon of dispensing with religious divorces altogether.
If the issue is relatively simple and there are halachic options such as annulment, why is it proving to be such a problem? The orthodox world does not like innovation. The argument given is that if Jews don’t want to be bound by halacha they can join an alternative system. Post Holocaust Orthodoxy has been preoccupied with survival and it has done a remarkable job by retreating behind its own defences. The result is that it has grown exponentially while it has not compromised or given in to pressure. Indeed its successful track record confirms it in its reluctance to make concessions. Since halachic innovation nowadays requires consensus it is difficult to find it in the current climate. Calls for new legislation even if that legislation is allowed for within halacha are looked on with suspicion.Nevertheless, in Israel particularly, the range of alternative rabbinical authorities allows for greater flexibility and more options than we in the diaspora can have.
I believe male chauvinism is a factor. Too many ( not all ) Batei Din around the world are prepared to use unconventional means to help a male ( such as the device for getting round Rabbeynu Gershom’s ban on bigamy ). Too often they accede to male demands for financial ‘compensation’ and suggest to the woman that she gives in for an easy life. I know of far too many cases where the woman was treated abominably. Invariably it has been because of factors more related to money than ethics. One cannot help but speculate that if the boot were on the other foot, intransigence would be far less evident.
This has indeed been a man’s world for too long and frankly I don’t think they have always done justice to women. The man was historically the source of authority and could have more than one wife. At the time it made sense to talk about the ‘male’ as it did about ‘the king’ (even though there were Jewish Queens, for example Salome, the sister of Shimon Ben Shetach the Pharisee leader).
One can understand the idea that ‘the glory of a princess lies within’. One can understand why the halacha sought to protect women from the courts and being subjected to the sort of aggressive cross examination and humiliation that many rape victims experience in our so called ‘Modern’ systems. I can applaud the idea that the home is the centre of Jewish life rather than the market place.
This is why women were not welcomed within the judicial system (though their testimony was acceptable on a wide range of issues). But when women are taken advantage of, this surely is not what the Talmud intended or wanted. The Rabbanim of the Talmud tried all sorts of measures to mitigate the disadvantages women laboured under.
Nevertheless the primary role of the male in public and legislative arena remained. Could this be dealt with? In theory it could by re-examining the role of woman in the way that scientific advances led to the re-definition of a deaf mute in halacha. The battle over orthodox women’s role is still being waged in the ultra-orthodox world. Access to the work place, university education, computers, phones, cars and indeed the voting-booth is being seriously debated. It is in many ways exciting to see how necessity and pragmatism are eroding old conventions.
The issues of the Agunah and the Recalcitrant Husband are indeed uppermost in halachic dialogue here in the diaspora. Nevertheless, the most common suggestion that comes from religious authorities in the diaspora is to seek solutions through the civil courts. Delighted as I am at progress on this front, I would still rather not be looking to secular systems to solve our own difficulties. We have to use our own methods. It is unacceptable to assume that our own system cannot deal with its own problems.
Similarly, the related issue of Mamzerut, the offspring of an incestuous or adulterous intercourse was one handled delicately and considerately in the past. Consistently, the authorities from the Talmud onwards, found ways of dealing with the problem. Very often their method was to turn a blind eye, to avoid stigmatizing and to find ways of removing barriers. But here too, when they have been challenged openly or politically, the effects have tended to be counter productive.
The question is whether these are problems with halacha or with those who apply it. Even laws that have fallen into disuse still have a moral and ethical message. So the tendency has always been to find ways round rather than to revoke or eradicate something hallowed by thousands of years of tradition.
Is there any merit in campaigning to try and bring about changes in a legal structure by confronting a system that sees itself as transcending normal legislative criteria? Or should the campaign be to influence the climate of rabbinic opinion by keeping the issue on the public agenda?
Confrontation is guaranteed to cause the barricades to rise. But I believe that sustained pressure, keeping the issue in the public mind, reminding the authorities of the strength of public opinion will eventually bring a reassessment of solutions that already exist within the current framework. There are many cases I could quote from the trivial to the major where, in the end, pressure from the common man (and woman) has brought about a new approach or an acceptance of a public practice. It takes time to see defensive attitudes work through a generation. We can see progress and I believe we will. All the evidence from Israel and America shows that slowly attitudes are changing. All legal systems react slowly. Some, slower than others. We have a lot to be proud of but the pain of a single woman ‘ causes the altar to weep tears’. We must do all within our power to dry those tears.