VaTashar Devora logo

VaTashar Devora logo
“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Tuesday, April 30, 2013

Welcome and Introduction

After much urging and encouragement from my “fans” and friends, I am launching my blog, VaTashar Devora - ותשר דבורה (Judges 5,1).  My primary focus is to discuss Jewish family law, through examination of recent piskei din (judgments) from the Israeli batei din (Jewish courts of law).  It is fair to keep in mind that these piskei din represent the contested divorces.  We do not see those cases in which a couple has an amicable divorce, such that they both agree to it and they come to the beit din with an agreement about division of property and childcare.  Those are duly processed and recorded, but not much of interest is likely to be found in those records.  It is the contested cases that show the intricacies of the system.

I do not believe that there is a vast difference between application of Jewish family law in the Israeli system of batei din and application of this law in any other Orthodox batei din, wherever Jews reside.  There certainly is no difference in the halakhic sources that form the foundation for the decisions of the dayyanim (judges).  There are differences between Israel and outside of Israel as to how this application of Jewish family law interacts or interferes with the secular courts, how much power of enforcement the dayyanim have, and the options before a Jewish couple, at least one of whom wishes to dissolve the marriage.  In each case – being in Israel vs. outside of Israel – there are some more difficult aspects and some less difficult aspects, but in neither case do we find a system to be proud of.  Rather, we find a system that is bogged down in antiquated law and outdated concepts that have outlived their relevance to the way people live their lives today.  We find a sincere, often well-meaning, attempt to regulate modern lives with an inappropriate set of tools.  We find a system in which the power lies solely in the hands of men, even though, by sheer coincidence, I suppose, half of the people involved in marriage and divorce happen to be women. 

And, as anyone who knows me is aware (and even if you don’t know, me, you probably just became aware), I do not keep my opinions to myself.  Therefore, editorial comments will be generously included, with my overall agenda being to demonstrate how Jewish family law, even in the most sympathetic of batei din, is far from ideal and needs a serious overhaul.  I unabashedly admit to being a feminist, and I unabashedly admit that I am influenced by modern, humanist, democratic values. 

I readily admit that I do not subscribe to the following thesis:
     1) All of Jewish law is moral and just, by definition, because it is ordained by a moral and just God.
     2) If you think a particular aspect of halakha is not moral and just, return to rule 1.

Rather, I maintain that halakha must change with the times, and that we have our own, internal, moral compasses that develop with time that have always been influenced by the society in which we live, sometimes to our benefit (consider: slavery).  I am inspired by people like Rabbi Hayyim Hirschenson, who wrote:

האמנם כל כח לאנשים על הנשים בימים הקדמונים היה מסבת המצב העקינומי ומסבת המצב המוסרי הבלתי מפותח – במקום 'פרימיטיבי' הייתי צריכה לומר 'בלתי מפותח' - אשר חשבו אז כי יתכן דת בלתי מוסר בדתי האלילים השונים, ואי אפשר למוסר בלתי דת, היפך ממה שהתפתחות למד לנו, כי אפשר למוסר בלתי דת, ולא יתכן דת בלתי מוסר, ודת עם מוסר יחד היא דת תורתנו הקדושה, ואין למדים להלכה מן המצבים הקדמונים ..., ולא ממנהג עקנאמי קדמון, כמו לא למדנו שאנחנו מוכרחים לשבת באהלים יען שאבותינו ישבו באהל ...

Indeed, all of the power that men have over women in the ancient times was because of the economic condition, and the undeveloped moral condition.  They thought then that it was possible to have a religion without morals, such as in the various idol-worshipping religions, but that it is not possible to have morals without religion, which is the opposite of what progress [in society] has taught us – that it is possible to have morals without religion, but it should not be possible to have a religion without morals, and a religion with morals combined is the religion of our holy Torah.  And, we do not learn halakha from ancient conditions, … and not from ancient economic practices, just as we did not learn that we must dwell in tents merely because our ancestors dwelled in tents …
As indicated above, I will be drawing almost all of my posts – perhaps with some interludes on other Judaism-related topics when the mood strikes me – from recent cases in the batei din, the piskei din of which have been made public.  This presents us with an important qualification:  The sample of piskei din that I have (and continue to receive) might not be representative of all decisions in those courts. The only ones that I receive are those that the particular herkev beit hadin (the three dayyanim serving for that case) have agreed to release for publication.  I can only surmise – but I have no proof – that these would be the cases that dayyanim believe put them in a good light.  And, given the amount of criticism that is heard regarding the misogyny that pervades the batei din, it is not surprising that many of the piskei din that I shall discuss show much empathy to the woman in the case.  But, to paraphrase a common saying: that (empathy) and a token will get me on the subway.  It won’t necessarily get a woman out of a marriage that she’d like to be released from.  These women are the mesuravot get, women who are refused a get

Many people today like to distinguish between that term – mesuravot get - and agunot, women who are “anchored” to their marriages in what is considered the classical sense, that their husbands disappeared, perhaps at sea, perhaps in a war, and there is no evidence or testimony about his death, or, perhaps, abandoned wives – women whose husbands are most likely alive, but have run off and not been heard from.  Some people seem to think there is a value to distinguish between the mesurevet get and the aguna, as if the woman who is refused a get is not “anchored” to her marriage.  (And how exactly do we categorize the "anchored" widow who must wait for her under-age yabam (levir) to mature, or whose yabam refuses to participate in halitza (or wants a tidy sum for the service), before she can remarry?  A rare occurrence these days, but it does still happen, and it is still part of the law. Deuteronomy 25,5-10)   But there is a reason that these people want to distinguish between an aguna and a mesurevet get.  Some mesuravot get have a way to get out of the marriage – they “simply” need to give in to the extortionist demands of their estranged husbands, perhaps relinquish property rights, agree to absurdly low child-care payments, and the like.  Thus, claim some of these people, the women are “anchoring” themselves, if they do not agree.  (In fact, they base this on the opinion of a 16th century authority; you’ll likely see this in a post in the future.)  Further, some of these people claim, that the phenomenon of a mesurevet get is a modern phenomenon, a result of the breakdown of “Jewish family values” in modern times, maybe even a result of that evil influence called feminism.

I maintain that these idealized “Jewish family values” are actually a myth.  I’d need someone to explain to me what “Jewish family values” mean in a system of law that permitted polygyny until modern times in some Jewish communities, and was only forbidden in communities in Christian Europe, where monogamy was the rule of law.  I’d need someone to explain to me what “Jewish family values” mean, if a man is permitted to marry off his daughter when she is a small child.

Let’s look at a citation from the Tosafot in Masekhet Qiddushin (41a), regarding marrying off young daughters.  We have a statement in the name of an uncertain Sage “It is forbidden for a man to betroth his daughter when she is a minor; rather he should wait until she grows up and says ‘I want so-and-so’.”  This is a rabbinic ruling; from the Torah, a man is permitted to marry off his young daughter, and this is derived in a midrash that I will not cite here, lest we get too far off topic.  On this rabbinic statement, the Tosafot wrote:

אסור לאדם שיקדש את בתו כשהיא קטנה - ואף על גב דאמר לעיל דאיסורא ליכא משום דטב למיתב טן דו ה"מ בגדולה שהיא מתקדשת ע"י עצמה דכיון שנתרצית ליכא למיחש שמא תחזור אבל קטנה שמתקדשת ע"י אביה איכא למיחש שמא אם היתה גדולה לא היתה מתרצית ועכשיו שאנו נוהגים לקדש בנותינו אפי' קטנות היינו משום שבכל יום ויום הגלות מתגבר עלינו ואם יש סיפק ביד אדם עכשיו לתת לבתו נדוניא שמא לאחר זמן לא יהיה סיפק בידו ותשב בתו עגונה לעולם. (תוספות מסכת קידושין מא.)
 It is forbidden for a man to betroth his young daughter – and even though it states above that there is no prohibition, because “it is preferable to dwell as two than to dwell in widowhood [i.e., alone],” this latter maxim refers to a woman who has come of age [at the ripe old age of 12 ½], who betroths herself, because she is pleased, and there is no concern that she might change her mind.  But a minor who is betrothed by her father, there is concern that if she were of age, she would not be pleased.  But now that we do commonly betroth our daughters, even if they are young, this is because every day the galut [exile] becomes more oppressive, and if someone has enough in hand now to give his daughter a dowry [he should do so and betroth her], lest after some time he will not have enough in hand, and his daughter will sit an aguna forever.
Yes, the Tosafot do use the word aguna, here to mean a “spinster”!  So who is being overly pedantic about use of the word aguna?   But my question to the rabbis of the Jewish communities of the time of the Tosafot (and for centuries after, as well; we have historical records of girls being married off at very early ages until modern times) is as follows:  why didn’t the community rabbis issue a takana - an edict – that prohibits requesting a dowry of a bride, whether rich or poor?  Or, perhaps the rabbis could have issued a takana requiring an equalization of dowries, where the rich would subsidize the dowries of the poor.  The rich always paid more communal taxes, in exchange for having the right to participate in the autonomous communal government.  A similar arrangement could have been made for dowries.

Our responsa literature, the halakhic codes and our history of the treatment of girls and women do not indicate that once there were these intact, loving family units – man and woman devoted to each other (and to their children), and this only changed in modern times.  But if I keep going on about this, I will not get to the real point of this blog.  You will see real cases that were presented before real batei din today, and you will see the halakhic sources used in the judgments that are rendered.  And you will be able to decide for yourselves what you think.  In fact, sometimes I will pose questions to you – I will be sincerely interested in what you would consider the most just solution to what are sometimes truly difficult situations.   

As you shall also see, sometimes men, too, are not able to be released from their (respective) marriages (one marriage per man, these days; oh, except when there is a heter me’a rabbanim – permission from one hundred rabbis).  That is because the Ashkenazi takana became universally applied: a woman has to agree to accept her divorce willingly, just as a man has to give a divorce willingly.  You are likely to see citations of this in the cases I present, also.  But don’t be fooled – that does not equalize the injustices.  These men are mesurvei get.  But, of course, their situation is not nearly as grave as that of a woman who is bound to her marriage, unwillingly.  The men don’t have problems of mamzerut if they have an extra-marital relationship, so long as the “other woman” is not a married woman.  And, the gravity of the sin is not really considered so grave.  You will see examples of how this very significant difference impacts the judgments of the batei din, in some cases not necessarily to the benefit of the man, but rather resulting in some very strange marital relationships.

A basic question that arises in this discussion, perhaps a question that you, the readers, can already think about, is:
What is preferable – marriage and divorce that are private, contractual matters, as is the case in Jewish law, or marriage and divorce that are governmental or public, such as in the United States, where a license is required from the (State) government in order to marry, and the State grants a divorce?

Let’s take another example, for comparison.  In Muslim law, a judicial divorce (faskh) can be granted to a deserted wife, defined, for example, in the Mamluk legal texts (it is useful to compare to them when looking at some of our responsa from that period) as a woman whose husband has been absent for at least six months, leaving her without property or financial support.  (See Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society, Cambridge University Press, 2007, p. 76.)

On the other hand, except in some very rare cases, Jewish law did not provide for a judicial annulment, and one can read the plethora of articles on hafqa’at qiddushin as a solution to problems of agunot and mesuravot get and the controversy surrounding the proposals to use this mechanism.  It seems, at this point in time, quite unlikely that there will be widespread acceptance of that solution in the Orthodox world.  And, even if there were, this would only modify the set of inappropriate tools that are still only in the hands of men.

Of course, one could envision marriage and divorce that are private, contractual matters, but that the contract law is different from Jewish contract law, and the contracts are not the ones imposed in Jewish family law.

What do I expect to accomplish by presenting such a negative view of Jewish family law?  I hope that I will make people think long and hard about how they want to establish their domestic relationships.  But beyond that – since everyone is convinced that they have found their true love and they will not be in one of the significant number of marriages that do not last forever – I hope that I will make people think about how to bring about the prophecy:

וְאֵרַשְׂתִּיךְ לִי בְּצֶדֶק וּבְמִשְׁפָּט וּבְחֶסֶד וּבְרַחֲמִים (הושע ב, כא)

I will betroth you to Me in justice and in law, in kindness and compassion. (Hosea 2,21)
In our current system, I see the “law” (if I were to use the typical translation, “righteousness and justice”, I wouldn’t even grant one out of four).  But not the justice, certainly not the kindness and compassion.

So far, Kohelet seems to be doing better than Hosea:
וְעוֹד רָאִיתִי תַּחַת הַשָּׁמֶשׁ מְקוֹם הַמִּשְׁפָּט שָׁמָּה הָרֶשַׁע וּמְקוֹם הַצֶּדֶק שָׁמָּה הָרָשַׁע: ) קהלת ג, טז(
I also saw under the sun that the place of law –wickedness is there, and the place of justice – wickedness is there.  (Ecclesiastes 3,16)
Some technical notes:
If there is sufficient interest in a Hebrew version of this blog, I might make the effort to either write one or recruit some volunteers to help me translate what I write in English.  (Though I write in Hebrew, it is even slower for me than my pace in English, and the syntax leaves something to be desired.)

Right now I have a backlog of a few dozen piskei din to work with, but I do hope to reach a "steady state", and have relatively short posts with summaries and highlights of any interesting new piskei din that I receive.

My next post:  What is the value or use of a ketuba, why don’t the mesadrei qiddushin concern themselves with the problems of askmakhta, and why aren’t brides taught the really important stuff in kalla classes?