Agunah and the Problem of Authority: Directions for Future Research Bernard S. Jackson Agunah Research Unit Centre for Jewish Studies, University of Manchester [email protected] 1.0 History and Authority 1 2.0 Conditions 7 2.1 Conditions in Practice Documents and Halakhic Restrictions 7 2.2 The Palestinian Tradition on Conditions 8 2.3 The French Proposals of 1907 10 2.4 Modern Proposals for Conditions 12 3.0 Coercion 19 3.1 The Mishnah 19 3.2 The Issues 19 3.3 The talmudic sources 21 3.4 The Gaonim 24 3.5 The Rishonim 28 3.6 Conclusions on coercion of the moredet 34 4.0 Annulment 36 4.1 The talmudic cases 36 4.2 Post-talmudic developments 39 4.3 Annulment in takkanot hakahal 41 4.4 Kiddushe Ta’ut 48 4.5 Takkanot in Israel 56 5.0 Conclusions 57 5.1 Consensus 57 5.2 Other issues regarding sources of law 61 5.3 Interaction of Remedies 65 5.4 Towards a Solution 68 Appendix A: Divorce Procedures in Biblical Times 71 Appendix B: Secular Laws Inhibiting Civil Divorce in the Absence of a Get 72 References (Secondary Literature) 73 1.0 History and Authority 1.1 Not infrequently, the problem of agunah1 (I refer throughout to the victim of a recalcitrant, not a 1 The verb from which the noun agunah derives occurs once in the Hebrew Bible, of the situations of Ruth and Orpah. In Ruth 1:12-13, Naomi tells her widowed daughters-in-law to go home. Even if she herself were to remarry and have further sons, “Would you, for them, refrain from having husbands (#y)l twyh ytlbl hng(t Nhlh)? No, my daughters; for it grieves me much for your sakes that the hand of the Lord is gone out against me.” We think of the problem of the agunah today in terms of the female victim of a recalcitrant husband. As used in rabbinic literature, however, it is confined neither to the wife nor to victimhood. Rabbenu Tam (R. Jacob b. Meir, France, 1100-1171) Bernard S. Jackson disappeared husband) is approached by appeals to history. An “historical” argument, in this context, is one which is willing to draw normative conclusions from the facts of halakhic history established by (independent) historical research. Broadly, we find two types of such argument. 1.1.1 The first appeals to an earlier stage in the development of the halakhah, and invites us to revert to it. For example, it has been argued that the procedure mentioned in Deuteronomy 24:1-4 was merely the expression of a custom, and “there is no biblical injunction mandating the giving or receiving of a get”.2 However this may be,3 such an argument ignores the authority of rabbinic interpretation, which takes no account of the possibility of such an anterior, oral stage, but rather (a) views the procedure of sefer keritut as mandatory, (b) classifies the procedure as a matter of prohibition (issura)4 (since a woman not so divorced is forbidden to any other man) and (c) regards this prohibition as of de’orayta status.5 It is this combination which makes change particularly difficult. 1.1.2 A second type of historical argument might be the following: major historical changes have been made in Jewish law (not least, in the areas of marriage and divorce) in the past, in particular: (i) the introduction of financial security for the wife through the ketubah and its being secured on the husband’s property.6 conceives of the case of the moredet who wishes to remain in the marriage but without obeying her husband as one where it is the wife who “chains” the husband, since he may not financially be in a position to divorce her: After this, Amemar explains [the essential elements] of the [case of] a moredet — that she says: “I want him, but I wish to cause him pain,” [meaning] “I want him if he does not wish to divorce me and give me my alimony, I want him — in order to cause him pain and keep him tied [to me] (ule’igno) until my alimony gives out ... (Riskin 1989:100). From a text of Raban (Rabbenu Eliezer ben Natan, born Mayence 1090, an older contemporary of Rabbenu Tam), it appears that the terminology “chained” may have originated as a deliberate penalty for a wife who was “rebellious” (e.g. by withholding sexual relations): We also cause the moredet who says “I want him” to wait one year without the divorce, to penalize her by being “chained” (lekonsah shetitagen) (Riskin, 1989:92f.). During this year she is deprived of maintenance (see Rabbenu Tam, citing Alfasi, in Riskin 1989:99): either she will fall into line or, at the end of the twelve months (the ketubah having now run out or been forfeited), she will be divorced (even if at that stage she still does not want to terminate the marriage). 2 M.D.A. Freeman, “The Jewish Law of Divorce”, International Family Law (May 2000), 58-62, at 58. 3 See Appendix A. 4 See, e.g., Rosh Resp. 35:1 at §4.3.1, infra; M. Elon, Jewish Law, History, Sources, Principles (Philadelphia: Jewish Publication Society, 1994), II.851; see also Elon, I.123 (on M. Eduyot 1:12, Yevamot 15:3), 137-140, for the distinction in general. Thus, arguments based upon the capacity of Rabbenu Gershom to ban polygamy also miss the point. What R. Gershom did was (merely) to remove a permission (heter) to take more than a single wife. Polygamy was never mandatory nor was monogamy ever prohibited. Indeed, as Professor Resnicoff reminds me, if despite R. Gershom’s decree a man took a second wife, the marriage was valid under Jewish law and the second wife was biblically forbidden to any other man. 5 Both the prohibition of adultery and the status of the woman as still married if she has not received a get being (explicit) biblical rules. Against this, Rav Moshe Morgenstern, “Hatorot Agunot: Emancipation Of Chained Women”, ch.1 (originally at http://www.agunah.com; see now HATOROT AGUNOT - Sexual Freedom from a Dead Marriage (New York: privately published, 2 vols., 2001)), argues that all present marriages have only rabbinical status since kiddushin by delivery of a ring is derived from the Torah by use of the middot, and is therefore only rabbinical (following the view of Maimonides — as opposed to that of Nahmanides — that such conclusions are derabbanan unless de’oraita status is explicitly ascribed to them: see Sefer Hamitsvot, 2nd princ., ed. Kafih, p.11). In support of the rabbinical status of contemporary kiddushin, following Maimonides, Hilkhot Ishut, 1:2,3, 3:20, he cites also Pithei Teshuvah Even Ha’ezer #25 end of chapter 42; Rav Akiva Eiger, Responsa #9/1; Shev Ya’akov #21. Against the view that even if kiddushin by a ring is rabbinic, the requirement for a get would still be biblical, he argues “if the status is only rabbinical, then all disabilities or stigma that are Biblical in character do not exist.” For this he cites Tosafot Baba Batra 48b. It is not clear whether this implies that adultery is now permitted! 6 The husband forfeits the mohar if he unilaterally divorces the wife without good cause. See further B.S. Jackson, Melilah 2004/1, p.2 Agunah and the Problem of Authority: Directions for Future Research (ii) A control on unilateral divorce by the husband was imposed via court supervision of the process: a get must be authorised by (though it is not issued by) a bet din.7 (iii) Consent of the wife came to be required by Rabbenu Gershom unless one of a number of serious, defined matrimonial offences was proved.8 (iv) The ban on polygamy (attributed to R. Gershom).9 (v) The rejection of kiddushin by biyah.10 Why, then, can we not make the necessary changes to meet the problem of agunah today? Against this, the dogmatician might reply: it is not a question of history, but rather of authority. The mere fact that changes were made in the past does not in itself entail the view either that those who made them had the authority to do so or that we have authority to make such changes today. Any appeal to the halakhic authorities must be based upon authority, not history: the halakhic authorities are — dare we say? — “positivists”: the validity of halakhic propositions is judged ex auctoritate, the authority being that of the poskim and the sources they use.11 We have to accept as our starting point the orthodox premise that changes cannot be made today unless the authority exists to make such changes. The issue then become whether such authority does exist. 1.2 At this point, however, the history of the matter re-enters the debate. The question of authority itself sometimes depends upon historical claims. If the Talmud ranks as the highest authority, we need to establish the text of the Talmud. One talmudic text vital to our question has, as we shall see, a problematic text. Is the establishment of the text itself to be determined by historical scholarship or by recourse to authority? In this same area, that of whether the husband of a moredet may be coerced to give her a get, the claim is made (by Rabbenu Tam) that the Gaonim lacked authority to do what they did, and this view of Rabbenu Tam proved (ultimately) decisive for the future development of this area of law.