Every now and then, we read of a “new” proposal by an Orthodox rabbi or organization aimed at solving some well-known problem of halakhah. The proposal will draw favorable reviews for its innovation and creativity, even as its author or authors insist that their idea is “strictly kosher,” that it fits well within the structure and the strictures of Orthodox halakhah. Yet when we read the proposal closely we can’t help but think: haven’t we heard this before? Wasn’t this same idea put forth some years ago by a non-Orthodox rabbi or organization? And didn’t the Orthodox rabbinate reject it at the time precisely because of its origin among the “heretics?”
This is one of those times.
A recent report in the Israeli press (Hebrew) describes a proposed legal instrument called a harsha’ah l’get – essentially a power of attorney – that will work “to prevent wives from becoming agunot.” Through this document, devised by a team of Orthodox rabbis working with the Center for Women’s Justice (CWJ), the husband would appoint an agent to issue a get (a writ of divorce) to his wife at some unspecified future date when a divorce is in order but when he personally is incapable of authorizing it – for example, should he disappear without a trace or should he become incapacitated due to physical or mental illness. Normally in such cases, given that under Orthodox halakhah the husband has the exclusive power to authorize a divorce, the wife becomes an agunah (meaning, literally, “a chained woman”), unable to free herself from what has become a non-existent marriage. It’s too soon to tell whether Israel’s Chief Rabbinate will endorse this harsha’ah as halakhicly valid, but its authors are guardedly optimistic.
So far, there’s nothing particularly new or even “progressive” in this proposal. The concept of harsha’ah l’get is deeply rooted in Talmudic law. It is related in some respects to another familiar halakhic idea, the conditional divorce (get al t’nai), a get that stipulates that the divorce becomes valid should such-and-such a condition be met. Both devices, the harsha’ah and the get al t’nai, work to dissolve a marriage in situations where the husband himself cannot authorize the divorce. In particular, this proposal is reminiscent of the legend that prior to setting out for battle the soldiers in King David’s army would issue such conditional divorces to their wives.[1] More recently, the idea of a pre-authorized get was floated as a possible remedy for the agunot of Israeli soldiers who disappear during action and whose deaths cannot be proven.[2] True, there are numerous halakhic issues that have to be resolved before this proposal can be instituted, but these do not appear insurmountable.
Yet tucked away in the aforementioned press report is this tantalizing comment from CJW attorney Nitzan Caspi-Shiloni as follows : “At this stage, the document prevents a wife from becoming an agunah. As time goes on, we hope to develop it to the point that it can also authorize a get in an instance where the husband refuses to issue one.” As the CJW acknowledges,[3] the harsha’ah as presently constituted would not apply to cases of refusal – sarvanut get (סרבנות גט) – in which the husband is available and is legally competent to issue a divorce but unjustifiably refuses the demand of the wife and of the beit din (rabbinical court) that he do so. The sort of document that Caspi-Shiloni envisages would strip this abusive power from him. It would presumably be signed by the husband at the inception of the marriage and would grant power of attorney to the beit din to issue a get on his behalf at such time that he refuses the court’s order that he divorce his wife. Such a document would go a long way toward correcting a morally intolerable abuse of the halakhah, under which the recalcitrant husband can chain his wife to a long-since-dead marriage simply by refusing to do the right thing.
What a great idea! And wouldn’t you know it, this very remedy has been proposed before, perhaps most recently by Rabbi Louis Epstein of the (Conservative) Rabbinical Assembly of America back in 1935.[4] He, too, saw the sh’tar harsha’ah as an effective solution for wives whose husbands either disappeared or who for no good reason refused to authorize divorce. Alas, Epstein’s proposal failed; its death was due largely to the “ferocious attack” led by the (extreme Orthodox) Agudat HaRabbanim which – in addition to various halakhic objections that with good faith might have been addressed – believed that it was “contrary to good Jewish policy… to permit us [i.e., the Rabbinical Assembly] a voice in matters of Jewish law.”[5] Now, after all the intervening decades, it appears that at least some concerned Orthodox Jews are thinking of revisiting Epstein’s idea and bringing it back – presumably without his name attached to it (no use reminding certain folks of its tainted origins in the Conservative movement) – but still.
From all this, we can learn three things
First, there exists in the Jewish world today a group of people – let’s call them the Guardians of the Halakhic Galaxy – who claim for themselves the absolute right to set the criteria of legitimacy in Jewish law. That assertion of monopoly leads them to say “no” to any halakhic idea, even a long-overdue measure to rectify a glaring injustice against women, if it is put forth by a rabbi who isn’t sufficiently “Orthodox.” That’s just shameful on intellectual grounds, let alone on ethical ones. After all, a great rabbi once counseled us to listen to truth, no matter its source. (But then, perhaps he was not sufficiently Orthodox?)[6]
Second, we need not despair. Good halakhic ideas may be rejected for a time, perhaps for decades, but they eventually come back. They come back because the demand for justice, which gave rise to those ideas in the first place, is itself eternal and much too insistent to allow those ideas either to die or to fade away.
Third, since good halakhic ideas are not the sole property of the Orthodox rabbinate, those of us in the progressive halakhic community must continue to do our work. The ideas we create and debate may not find an immediate receptive audience on the other side of the great halakhic divide, but that doesn’t mean they are destined for oblivion. Halakhic ideas – if, like the harsha’ah l’get, they are good enough – live on, perhaps someday to become the possession of k’lal yisrael, the entire Jewish people.
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[1] B. Shabbat 56a and B. K’tubot 9a-b; see Rashi’s comment to both texts.
[2] It was raised by, among others, Chief Rabbi Yitzhak Halevy Herzog, Res. Heikhal Yitzhak, Even Ha`ezer 2:1.
[3] See the CJW’s statement: “note, we are not speaking about cases of get refusal.”
[4] Proceedings of the Rabbinical Assembly of America, vol. 5 (New York, 1939), pp. 227-235. The volume includes the proceedings of the RA conventions of1933-1938.
[5] Proceedings, pp. 333 and 336.
[6] The rabbi in question is the Rambam, in his preface to his Sh’monah P’rakim: ושמע האמת ממי שאמרה – “accept the truth from whosoever utters it,” which in his refers to the philosophers (chiefly Aristotle) whose insights lie at the core of that composition.