In our last post, we urged Israel’s Chief Rabbinate to put some halakhic muscle behind its moral condemnation of domestic abuse. If the Chief Rabbi is incensed at the thought of Jewish husbands battering their wives, he should do everything he can to advocate that those husbands be required – and coerced by all acceptable legal means – to issue divorces.  Under the current consensus Orthodox halakhic opinion, when a wife sues for divorce on the grounds that her husband is abusive, the Israeli rabbinical courts, which adjudicate divorce law for Jewish citizens, are not empowered to coerce him to issue a get (divorce document). She therefore remains legally bound to him, unable to remarry and rebuild her shattered life until he agrees on his own accord to divorce her.

But does that consensus reflect what Jewish law actually says? The analysis that follows is by no means exhaustive; for a fuller discussion, you might consult the sources mentioned in note 2 to our last post. But it should be enough to suggest just how the consensus view emerged and how Orthodox rabbinical establishment conceives of the halakhic process. And it should help explain how their understanding differs so fundamentally from that of progressive halakhah, the outlook that defines our work here at the Freehof Institute.

All discussions of the law of Jewish divorce begin with Deuteronomy 24:1, which holds (in its classical Rabbinic interpretation) that the husband – and not the wife – issues the get and that he must do so of his own free will.[1] So long as he does not consent to divorce, the wife remains legally married to him. She cannot divorce him; she is an agunah, “chained”[2] to him and to the marriage until such time as he issues the get. Obviously, the best remedy for this imbalance of  power is to eliminate it. The halakhic system could take steps to enable the wife to divorce her husband, just as he is now empowered to divorce her. Progressive halakhah favors such reforms, which have been adopted by a number of non-Orthodox communities around the world. We’ll return to this subject in a future post.

Orthodox halakhah, of course, has not taken that step. But that doesn’t mean that no remedies exist under the current system in Israel. The ancient Rabbis, recognizing the clear inequity of this imbalance of power, created a legal mechanism in which a wife could sue for divorce. In response, the beit din (Jewish law court) can upon certain grounds require the husband to issue a get to his wife… and, in some circumstances, it can coerce him to do so.[3]  That’s great… except for two problems. First, the grounds specified in the Mishnah and the Talmud for coercion of divorce strike our modern ears as, well, rather quaint. (Our personal favorite is המקמץ, which according to one interpretation[4] is a man whose job it is to gather dog manure. If his wife seeks a divorce because she can’t stand his repugnant odor, he is coerced to grant it.) And second, a husband’s violence against his wife is not one of the listed grounds. So the question obviously arises: is a Jewish court permitted to add to that specific Rabbinic list and coerce divorce on other grounds, for example, in cases when a husband behaves violently against his wife?

Some poskim (halakhic authorities) say yes. These include R. Simḥah of Speyer (12th-13th c. Ashkenaz), his student, R. Yitzḥak b. Moshe, the author of the halakhic compendium Or Zaru’a[5], R. Meir of Rothenburg, the student of the Or Zaru’a,[6] and R. Shimeon b. Tzemaḥ Duran (the Tashbetz, 14th-15th c. North Africa).[7] All begin with the proposition that wife-battering is an intolerable thing, so that we must coerce the husband to divorce when no other remedy is available. Adopting their approach would provide real relief to Jewish women in Israel currently held in legal hostage to violent husbands. But others do not permit coercion of divorce on grounds of wife-beating; among these are R. Ḥananel b. Ḥushiel,[8] the Tur[9],  R. Yosef Caro,[10] and R. Moshe Isserles.[11] They hold that because the get must express the husband’s free-will decision, coerced divorce is invalid unless it is undertaken on grounds explicitly authorized in the Talmud. And wife-beating, as mentioned, is not one of those grounds.

The opinions, in other words, are divided, and the uncertainty (safek) in the law leads the dayanim,  the rabbinical court judges in Israel, to adopt a policy of judicial restraint. Although Israel’s state law explicitly permits them to employ coercive measures[12] to enforce the court’s order for divorce, the dayanim are loathe to do so in cases where the halakhah does not unequivocally authorize coercion.[13] On a formal legal level, this restraint makes some sense. Since a get coerced on improper grounds is halakhicly invalid, it is arguably safer for the courts to do nothing when the law is in doubt.[14] But on the human level, what are the dayanim saying? That it is permissible to coerce the husband to divorce when he collects dog manure but not permissible to coerce divorce when he routinely beats and humiliates his wife? That’s an absurd conclusion, but that’s the halakhah, at least as interpreted by the  dayanim.  It is a tragedy for the abused wife, who remains an agunah until her violence-prone husband  somehow changes his stripes and freely consents to issue a get, and it is a moral scandal for all who care about the reputation of Jewish law.

And here lies one of the major differences between progressive halakhah and the Orthodox halakhic establishment: we progressives refuse to allow the fact of disagreement (maḥloket) in the texts to render us powerless in the face of injustice. Now maḥloket is endemic to Jewish law.  Halakhah is a discourse of many voices, a universe of conflicting interpretations that have nourished a historical tradition of argument over what Torah requires of the individual Jew and of the Jewish community. This argument, this consideration of multiple possible readings of the texts, is a good thing; it keeps the halakhah flexible, always open to new possibilities. But at the end of the day, rabbis who adjudicate real-life questions must weigh the available interpretations and declare that one of them is in fact the best and the most persuasive. That our sources allow for and contain differing interpretations means simply that those responsible for making decisions must decide; they must choose between the alternative  opinions. In this case, when one alternative counsels us to do what is obviously just and the other would have us stand powerless in the face of evil, the choice could not be more clear.

To put this another way: halakhic caution must not contradict the moral imperative. Progressive halakhah regards it our duty to seek out and to embrace those understandings of Jewish law that affirm rather than offend against our commitments to justice, equity, and compassion. The dayanim responsible for the administration of halakhic justice ought not to hide behind the existence of maḥloket to justify inaction. If they see such misguided conservatism as a sign of humility and prudence, we see it as is a fig-leaf to cover the abandonment of moral obligation. Let them Instead acknowledge the reality that, in halakhah, as in life, we are called upon to choose between the options available to us. Even a decision to “sit and do nothing” – which is what the dayanim have decided – is a choice, We therefore have no choice but to choose.

And we bear responsibility for the choices we make.

_____________________________________________

[1] All authorities agree on this point, even if they disagree as to which clause of the verse is its precise source. Compare Rambam, Hil. Gerushin 1:2 with Rashbam’s commentary on B. Bava Batra 48a, s.v. וכן אתה אומר בגטי נשים.

[2] Compare the word עוגן (ogen), “anchor” in modern Hebrew. The root conveys the sense of “imprisonment”; see Targum Yonatan to Isaiah 24:22. Nowadays, “agunah” is often used specifically to designate the wife whose husband has disappeared without a trace and without proof of death; the wife whose husband refuses to issue a get is referred to as the m’surevet get.

[3] M. Ketubot 7:9-10; B. Ketubot 77a-b. The “coercion” could be effected by physical means if necessary; see M. Gitin 9:8.

[4] B. Ketubot 77a.

[5] Or Zaru’a, part 3, Piskei Bava Kama, ch. 161: “It is forbidden for a husband to beat his wife. If he injures her, he is obligated to pay her compensation. And if he habitually strikes his wife or humiliates her in public, he is coerced to divorce her (כופין אותו להוציאה).

[6] Resp. Maharam Mi-Rotenburg, Cremona ed., 3:291.

[7] Resp. Tashbetz 2:8. Significantly, Duran rejects the rulings of “our outstanding recent predecessors” who forbid coercion in cases of wife-beating: “Do we not possess sufficient authority on our own? On a matter of reasoned judgment such as this, a judge may rule as he sees fit, regardless of precedent (אין לדיין אלא מה שעיניו רואות).”

[8] Quoted in Tosafot, Ketubot 70a, s.v. יוציא.

[9] Even Ha’ezer 154, in the name of his father, R. Asher b. Yeḥiel.

[10] Beit Yosef, Even Ha’ezer 154. Caro rejects the opinion that permits coercion because those who hold it are not among the “leading” authorities (הפוסקים המפורסמים).

[11] Darkhei Moshe to Tur, Even Ha’ezer 154, no. 21. Even though Isserles states his explicit disagreement with Caro – he believes that the scholars who permit coercion are sufficiently prominent for us to accept as authoritative – he nevertheless concludes that coercion should not be used to obtain a get.

[12] We should note that these measures do not include beatings and other physical chastisements. But they are pretty serious. The recalcitrant husband may lose his passport and be forbidden to leave the country; his driver’s license may be revoked; he may be forbidden to open a bank account or to maintain an existing account; and he is subject to imprisonment. The relevant statute is חוק בתי דין רבניים (קיום פסקי דין שלגירושין), התשנ”ה-1995, sec. 2.

[13] In the words of Yad Laisha, an Israeli organization that aids agunot, “Alongside their restrictive interpretation of the acceptable grounds for divorce, many dayanim prefer the safest approach to halakhic decision: that is, not to decide” – מעבר לצמצום עילות הגירושין, מעדיפים דיינים רבים לנקוט בדרך הפסיקה הבטוחה ביותר: קרי, לא להחליט. On the other hand, at least one recent Israeli authority was brave enough to decide for coercion: see R. Eliezer Y. Waldenberg, Resp. Tzitz Eliezer 6:42, ch. 3.

[14] Should a “divorced” woman remarry on the strength of an invalid get – if the get is actually invalid –  her subsequent union is defined as adulterous and its offspring are mamzerim.