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Agunah and Ideology Agunah and Ideology This is the third volume of a five-volume series, by each of the members of the Unit: Vol.1: Bernard S. Jackson, Agunah: The Manchester Analysis (Agunah Research Unit, vol.1, based on the Working papers of Yehudah Abel, Nechama Hadari, Bernard S. Jackson, Shoshana Knol, and Avishalom Westreich) Vol.2: Yehudah Abel, Confronting ‘Iggun Vol.3: Shoshana Knol, Agunah and Ideology Vol.4: Avishalom Westreich, Talmud-Based Solutions to the Problem of the Agunah Vol.5: Nechama Hadari, Agunah and the Protection of Women Vols. 1-3 are being published simultaneously in July 2011. Vols. 4 and 5 will follow later in the year. Ordering details, for one or more volumes, may be found at: http://www.legaltheory.demon.co.uk/ARU.htm Agunah Research Unit, Volume 3 Agunah and Ideology Shoshana Knol Deborah Charles Publications 2011 Copyright © 2011 Deborah Charles Publications All rights reserved. No portion of this publication may be duplicated in any way without the expressed written consent of the publisher, except in the form of brief excerpts or quotations for the purpose of review. ISBN 978-1-906731-13-7 (hardback) Published and Distributed by: Deborah Charles Publications On behalf of The Agunah Research Unit, University of Manchester E-mail: [email protected] http://www.deborahcharles.co.uk Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne. CONTENTS Abbreviations viii Preface ix 1. The problem of iggun 1 1.1 Introduction 1 1.2 Solutions to the agunah-problem 4 1.2.1 The missing husband 5 1.2.2 The recalcitrant husband 8 1.3 Kiddushin al tenai 8 1.4 Hafka‘at kiddushin 12 1.4.1 Kiddushei ta‘ut 14 1.5 Get al tenai 14 1.6 Kefiyah 16 1.7 Prenuptial agreements 19 1.8 Moredet: two concepts of rebellion 20 1.8.1 The attitude of the Geonim to the moredet 23 1.8.2 The attitude of the Rishonim to the moredet 24 1.9 Women, Sexuality and Torah 26 1.10 Conclusion 38 2. Tav lemeitav: its history and its use throughout the ages 40 2.1 Introduction 40 2.2 Talmudic sources and their interpretation 42 2.2.1 Baba Kamma 110b/111a 42 2.2.2 Kiddushin 7a 46 2.2.3 Kiddushin 41a 48 2.2.4 Kethubot 75a 52 2.2.5 Yebamot 118b 56 2.3 The Interpretation of tav lemeitav 57 2.3.1 Poskim on tav lemeitav 57 2.3.2 Rav Moshe Feinstein on tav lemeitav 59 2.4 Tav lemeitav and the claim for kiddushei ta‘ut 62 2.4.1 Grounds for kiddushei ta‘ut 64 2.4.2 List of salient defects 66 2.5 The Debate between Broyde and Hacohen 73 2.6 Conclusion 76 3. The Moral Fear Argument 79 3.1 The Moral Fear Argument from its Source in the Mishnah 79 3.2 The takkanat haGeonim 81 3.3 The Tosafot and the Moral Fear Argument 87 3.4 The Rambam and the Moral Fear Argument 88 3.5 The Rosh and the Moral Fear Argument 89 3.6 Node beYehuda Mehadora Tanyana 91 3.7 Rav Moshe Feinstein 93 3.8 Leniency because of Moral Fear 95 3.9 The Moral Fear Argument applied to Men 96 3.10 Conclusion 98 4 The Piskei Din Rabbani’im statistical review 101 4.1 Data research on the two maxims 101 4.1.1 Who filed for divorce and on which grounds? 102 4.1.2 The moral fear argument and its context 103 4.1.3 Me’is alay 104 4.1.4 Kefiyah 106 4.1.5 Evidence 107 4.1.6 Halakhic comments 109 4.1.7 Other issues 111 4.2 Five Cases where there is no Divorce 112 4.3 The Two Maxims in One Source: PDR 7/65-73 and PDR 11/4 112 4.4 The Moral Fear Argument Applied to Men 126 4.5 Dina demetivta 128 4.6 Kefiyah 132 4.7 The Two Maxims in a Single Source Outside the Piskei Din Rabbani’im 137 4.7.1 Tsits Eliezer 5:22 137 4.7.2 Ribash 209 138 4.7.3 Radbaz 4:260 139 4.7.4 Rema 96 140 4.7.5 Penei Yehoshua on Ket. 63b 142 4.7.6 Heikhal Yitsxak E.H. 1:3 142 4.8 Conclusion 144 5. The Necessity for Proof 145 5.1 Introduction 145 5.2 The Agunah whose Husband is Missing 145 5.3 Tamei’a ani lekha: the Wife of a Kohen 147 5.4 Tamei’a ani lekha: the Wife of an Israelite 152 5.5 Moredet me’is alay 155 5.6 Evidence when the Husband Accuses the Wife of Adultery 158 5.7 Mored me‘usah alay 161 5.8 Conclusion 162 6. Tav lemeitav and the Moral Fear Argument: How Do They Influence Divorce Cases? 163 6.1 Tav lemeitav and the Moral Fear Argument: a Summary 163 6.2 The agunah Problem Today 165 6.3 Conclusion 170 Appendix: The Piskei Din Rabbani’im Chart 173 Bibliography 182 viii Shoshana Knol: Agunah and Ideology Abbreviations All references to talmudic tractates are to the Babylonian Talmud, unless indicated by T.Y. 1 Sam. 1 Samuel Arak. Arakhin B.B. Baba Bathra B.K. Baba Kamma B.M Baba Metsia E.H. Even Ha‘Ezer Erub. Erubin Exod. Exodus (Shemot) Gen. Genesis (Bereshit) Gitt. Gittin H.I. Hilkhot Ishut H.M. -oshen Mishpat Josh. Joshua Judg. Judges Ket. Ketubbot Kidd. Kiddushin Lev. Leviticus (Vayikra) M. Mishnah Ned. Nedarim Nidd. Niddah Num Numbers (Bamidbar) PDR Piskei Din Rabbani’im Ps. Psalms S.A. Shulxan Arukh Shab. Shabbat Sot. Sotah T. Tosefta T.Y. Talmud Yerushalmi Yeb. Yebamot Shoshana Knol: Agunah and Ideology ix Preface This thesis aims to give an historical overview of two maxims applied to women with regard to divorce, mainly when women want a divorce against the will of their husband. The first maxim is wlmr) btymlm wd N+ btyml b+ (tav lemeitav tan du milemeitav armelu); a woman prefers to stay in a marriage, even if it is bad one, than to be single. The second maxim expresses the fear that any woman who claims that she does not want to remain married to her husband must have cast her eyes upon another man and wants the divorce for this reason only (h#) )ht )l# hl(b l( tlqlqmw rx)b hyny( tntwn). This last maxim has been named the “moral fear argument”. Both maxims show that women are regarded mainly as sexual: either in need of marital relations or prone to immorality. The subject of the thesis is to give an historical overview of the two maxims and to see how these maxims influence modern day divorce cases. Starting from their sources in either Mishnah or Talmud, the two maxims are used on a regular basis throughout history by the poskim. A majority of these poskim have been read and analyzed and changes in the use of the maxims have been highlighted. The centrepiece of this thesis lies in an analysis of forty five court cases heard by Israeli batei din between the fifties and seventies, which can be found amongst the Piskei Din Rabbani’im on the Bar Ilan Responsa database. These court cases provide some interesting insights into the history and the usage of the maxims and several changes were observed, such as the fact that the “moral fear argument” has also been used against men from the time of the takkanot of Rabbenu Gershom onwards. It also became clear that a form of the takkanat haGeonim is still used, even though the Rishonim abandoned it. The necessity of proof is another aspect which became obvious in the Piskei Din Rabbani’im. To distinguish between the different modes of proof mentioned, a chapter is dedicated to evidence. Halakhic change never happens in a vacuum, as becomes evident in the thesis. Changes regarding agunot occurred both due to internal halakhic debate and external (foreign) influences. The final chapter considers what all this means for the future: how do the two maxims influence modern day divorce cases? Is halakhic change a possibility in our days? Is a solution to the agunah problem possible and if so, what needs to happen? This thesis would not have been written without the ongoing support of my supervisor Prof. Bernard S. Jackson and I owe him therefore a big vote of thanks. Although he must have thought at times that this thesis would never see the light of day, he never gave up trust in me. The research for this thesis was done within the framework of a team, the Agunah Research Unit, and I owe all my colleagues (Prof. Bernard. S. Jackson, x Shoshana Knol: Agunah and Ideology Rabbi Dr. Yehudah Abel, Dr. Avishalom Westreich and Mrs. Nechama Hadari) thanks for their input to the team, for their inspiration towards my own work and for their help whenever required. The Agunah Research Unit is a team in the true sense of the word. But I owe special thanks to Rabbi Dr. Yehudah Abel, who has an extraordinary knowledge of halakhic sources and who helped me not only in finding sources, but also in discussing textual and halakhic difficulties with me. All this was done with enormous patience and humbleness. I cannot thank him enough for his help. For linguistic help I must thank Sophie Garside and Malka Hodgson, who extended my knowledge of Hebrew, and Dr.
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