Date: Sun, 16 Apr 200 13:26:53 -0600 (CDT) From: Jay F Shachter The Plight of the `Aguna, Part 1 I have just read an entire issue of mail-jewish devoted to a discussion of prenuptial agreements, and to the practice in some circles (all of the examples, except one, were from the United States of America; the one exception was from Israel) of grafting onto the Jewish wedding procedure a prenuptial agreement intended to repair Jewish divorce law so as to make it more closely resemble the enlightened legal systems of the goyim, in which divorces are granted on demand to either of the two parties to a marriage. In my opinion such discussions are premature. Before we can profitably discuss how best to repair Jewish law, we must prepare the ground for such discussion by first discussing why Jewish law is in need of repair. Only once we understand the plight of the `aguna, and why Jewish law must be repaired, can we then proceed to discuss how best to effect such repair. But even that discussion is also premature. Before we can discuss why Jewish law must be repaired, we must first understand the current state of Jewish law. Accordingly, I envision that I shall make three postings to mail-jewish. In my first posting, I shall summarize the current state of Jewish divorce law, with occasional comparisons to the enlightened legal system of the goyim. This posting should occasion some discussion, which will lead to an understanding of the current state of the law. Then, in my second posting, I shall describe the problem, and present the reasons why Jewish law is in need of repair. This posting should occasion some discussion as well. Then, in my third posting, I shall present some modest proposals for solving the problem. In the State of Louisiana, we have the Napoleonic code, according to which what belongs to the wife belongs to the husband and vice versa, but that is the exception. Most states of the United States, and the State of Israel as well, are governed by Anglo-Saxon common law. Any references in this exposition to "the enlightened legal system" are references to the prevailing law of the United States. Judaism, like virtually all religions, is strongly opposed to divorce. This is evident empirically. In all traditional Jewish communities, wherever the moral influence of the surrounding nations is limited, divorce is virtually unknown. Whenever it does occur, it is met with universal censure. Over a thousand rabbis appear in the pages of the Talmud, with much information about their personal lives coloring the discussions on legal matters (including descriptions of several unhappy marriages), but within this cohort only a negligible number are reported to have been divorced. Nevertheless, Jewish law, in apparent defiance of the sociological reality, does provide for the dissolution of marriages. Divorce is mentioned obliquely in Leviticus 21:7, Leviticus 21:14, Leviticus 22:13, Numbers 30:10, Deuteronomy 22:19, and Deuteronomy 22:29, while the mechanism for effecting a dissolution of marriage -- the husband gives the wife a bill of divorce -- is presented explicitly in Deuteronomy 24:1 and Deuteronomy 24:3. It is peculiar that a legal system should provide for performing an act which has always been unanimously condemned by any society that has ever lived in accordance with that legal system. This peculiarity is not to be minimized by noting that, e.g., Jewish law contains a complete corpus of criminal jurisprudence. That would be confused thinking. The laws for dealing with murderers are not addressed to the murderers: they tell us what to do, if someone has committed murder, but they do not say, "if you are going to murder someone, here is how you should go about doing it". This peculiarity must be understood in the context of several other laws -- all in the book of Deuteronomy -- that are equally peculiar. The Jewish legal system is a religious one, and consequently an ethical one, but in a few places it contains explicit concessions to ethical imperfection. The starkest and most famous example is Deuteronomy 21:11 through Deuteronomy 21:14, which prescribes the treatment of a female prisoner of war whom a soldier has taken for himself. In the history of Jewish jurisprudence, no one has ever suggested that this is commendable conduct. The Jewish understanding of this passage has always been that it is a concession to moral imperfection. Certain things happen in wartime, and if they were forbidden, they would happen anyway. Some soldiers of the victorious army are going to mate with the conquered women. If this conduct is proscribed, they will do it anyway, but then they will leave the women behind when they return home, like the American soldier who left behind my pregnant mother-in-law in 1945. Deuteronomy 21:11 through Deuteronomy 21:14 provides a mechanism for the female prisoner of war to become the legitimate wife of the soldier who took her. Without saying, "it is acceptable for you to do this" it says, "if you are going to do this, then this is the way to do it". There are indications in Scripture that several other laws fall into the same category. The language of Deuteronomy 12:20 suggests that the eating of meat, outside of the sacrificial rites of the Temple, is vulgar, implying that the requirement in Deuteronomy 12:21 that such flesh be ritually slaughtered before being eaten is also a concession to moral imperfection. People would eat animal flesh in their homes even if the law forbade it, so, instead of forbidding it, the law regulates it, and even sanctifies it, to the extent that such sanctification is possible. A straightforward reading of I Samuel 8:11 through I Samuel 8:18, as well as I Samuel 8:7 and I Samuel 10:19, suggests that monarchy is not the ideal form of government, implying that the laws in Deuteronomy 17:14 through Deuteronomy 17:20, which regulate a monarchy -- should one be established -- are also a concession to moral imperfection. (Jewish legal opinions are divided on this issue. Some scholars -- e.g., Maimonides -- maintain that monarchy is the ideal form of government. In any event the question is moot, because the monarchy, once established, has become an integral component of the Jewish state.) It is in this context that Deuteronomy 24:1 must be understood. Some men would simply abandon their families if no orderly mechanism were provided for divorce. It is not that divorce is condoned. In traditional Jewish society, it never has been. But if a man who would otherwise abandon his family is bent on divorcing his wife, then Jewish law provides him a procedure for doing so. Four verses at the beginning of Deuteronomy Chapter 24, together with six other verses scattered in Leviticus, Numbers, and Deuteronomy, do not constitute a divorce code. The core of Jewish law is the first five books of the Bible: Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. These books are roughly analogous, in the enlightened legal system of America, to a written constitution, albeit one that cannot be amended. But there is more to a code of law than a written constitution. There is even more to a constitution than a written constitution, both in Jewish law, and in the enlightened legal system. I do not know how the state constitutions have been interpreted, but I do know that the Federal constitution has been construed to grant "implied powers" to the various branches of government ever since Justice Marshall in McColluch v. Maryland upheld the right of Congress to create a corporation. Similarly, Jewish law recognizes that certain traditions have their origin in the revelation at Sinai, and, even though they were not written down at the time of the writing of the Torah, they are equal in authority to the written laws of the Torah. Sometimes the existence of such unwritten traditions is logically necessary. For example, Exodus 20:10 (and other verses elsewhere) prohibits a certain kind of activity on the Sabbath. But, except for isolated fragments like Exodus 35:3, and perhaps a couple of other places as well, there is nowhere an enumeration of which activities are prohibited. But there must have been a contemporaneous understanding of what these prohibited activities were, because Numbers 15:33 relates the arrest of a man who gathered together sticks on the Sabbath; although the punishment for this offense was not yet known (and was revealed in Numbers 15:35), clearly it was known that it was illegal -- and yet gathering together sticks on the Sabbath was nowhere enumerated in the written Torah as a prohibited act. The only explanation of this narrative is that the written Torah is incomplete. The Jews must have been told, at the time the Sabbath was given, what the prohibited acts were, even though the list of prohibited acts was not incorporated into the written Torah. Another and different kind of example is the annulment of vows. Numbers 30:3 stipulates that vows must be fulfilled. Nowhere does the Torah state that a vow can be discharged through annulment, and yet, Jewish law allows for a vow to be annulled, under certain circumstances. Since the obligation to fulfill one's vows is Scriptural, it would not have been possible for subsequent legislators to create a power to annul vows, if such a power had not been granted to them by the Torah, just as Congress could not have granted itself the power to create a corporation, if such a power had not been granted to it by the Constitution. As the last sentence implies, the laws of the Torah, written and unwritten, have been augmented by human legislative activity. The Torah confers authority on such legislative bodies in Deuteronomy 17:11. The festival of Xanukka, for example, so familiar to Americans because it often coincides with Christmas, commemorates a post-Biblical event. The laws of Xanukka are rabbinic legislation; they do not originate in Scripture. No rabbinic law can permit violating a prohibition of the Torah, just as, in the enlightened legal system, no act of Congress can contravene the Constitution. Both the legislative authority and the supreme judicial authority are vested in a council of seventy-one elders called the Sanhedrin (the name that is now used for this body is Greek, but the institution itself dates to Numbers 11:24, a thousand years before the Macedonian conquest of Israel). Executive authority, the power to tax, and the command of the military, are vested in the monarch, but the Sanhedrin retains the power to declare war, and the power to ratify the successor to the monarch. The Sanhedrin, in its capacity as the supreme judicial body, has the power to constitute inferior courts (in the enlightened legal system this power is given to Congress rather than to the Supreme Court, but in Jewish law the legislative authority and the supreme judicial authority are both vested in the same body). Inferior tribunals, of twenty-three judges, have jurisdiction over provinces and large towns. The smallest courts consist of three judges. Certain rituals require courts of five or of seven. There are no legislative bodies inferior to the Sanhedrin; local self-government is restricted to the passing of temporary edicts, and does not extend to the enacting of permanent laws, although the prevailing interpretation of the laws can of course differ in different jurisdictions, because they are subject to different courts. Exodus 18:26 and Deuteronomy 1:17 confer on an inferior court the right to decline a case and to pass it up to a superior court, both as to matters of fact and to matters of law. This is roughly analogous, in the enlightened legal system, to when a lower court certifies a question of law to be heard by a higher court, although normally the motion originates in the higher court, resulting in a writ of certiorari. Usually, in the enlightened legal system, certification of a question is done on motion of one of the litigants in the lower court, but it can also be done sua sponte (I think Ex Parte Lambdin P. Milligan came to the Supreme Court in this manner). Jewish legal opinions are divided over whether superior courts have the power to assume jurisdiction over cases presented to inferior courts. No power analogous to the writ of certiorari is explicitly granted to the superior court in either Exodus 18:26 or Deuteronomy 1:17. If no such power exists, the necessary implication is that litigants in Jewish courts do not enjoy the right to appeal. Although the question is not settled, the majority opinion is that there is a right to appeal, even though it is not explicitly stated in the Torah. In Hebrew, to designate someone as fit to serve as a judge on a Jewish court is called giving that person "smikha". Since the time of the entry of the Jews into the land of Israel, smikha can only be given in Israel, and it can only be conferred by someone who has smikha, who must have received it from someone who had smikha, in an unbroken tradition going back to Moses (the word is derived from the verb in Deuteronomy 34:9). This is roughly analogous, in the enlightened legal system, to the rule restricting the practice of law to people who have been trained by lawyers. You can read all the books in the law library and pass the bar exam with a perfect score, and you will still be forbidden to practice law, unless you apprentice under someone who has been admitted to the bar, or attend a law school taught by people who have been admitted to the bar. In the enlightened legal system the motive behind the rule is not a reverence for the law, but only a desire to control who may profit from it. Nevertheless, both rules are similar in form. Courts of limited jurisdiction are formed from judges of limited jurisdiction, since smikha can be limited in its scope -- e.g., a person can receive smikha to judge criminal matters involving corporal punishment, but not to judge criminal matters involving monetary fines. If a court does not contain at least one judge with smikha, then the court is authorized only to hear civil disputes, and nothing more. A man with smikha receives the title of Rabbi. Of the five categories of punishment that are mentioned in chapter twenty-eight of Leviathan, only corporal punishment, pecuniary punishment, and exile appear in Jewish law (the last is restricted to the internal exile mentioned in Numbers 35:25 and elsewhere, and is imposed only for involuntary manslaughter). Corporal punishment imposed by Jewish courts can be capital, or less than capital. No court with fewer than twenty-three judges has original jurisdiction over any capital case. Courts have occasionally imposed extralegal punishments, under emergency circumstances. The monarchy lapsed in the land of Israel, for all practical purposes, with the invasion of Pompei in the year 62 before the common era, although a nominal monarch (from a new, Roman-appointed dynasty) remained on the throne for over a hundred more years. The Sanhedrin continued to function for several hundred years after that, but it finally dissolved around the year 425 of the common era, and it has not yet been reconstituted. Smikha was lost shortly thereafter. Northern European Jews (also known as Ashkenazi Jews), out of nostalgia for the ancient title, and as a sign of respect, still call their religious teachers Rabbi, but the title is incorrect. All other Jews call their teachers Hakham ("Scholar"). Ashkenazi Jews also use the term smikha to denote graduation from a course of religious instruction, but this too is incorrect. With the dissolution of the Sanhedrin, the legislative power disappeared, and it is not presently possible to enact new laws or repeal old ones. With the loss of smikha, the judicial power ceased to extend to criminal matters, except when extralegal powers were assumed. The only way the law has continued to evolve has been through opinions on civil cases, and through singly-authored briefs (called tshuvot) which answer questions of law that have been voluntarily submitted for consideration. A legal system that evolves only through limited case law and the publication of briefs evolves slowly, but it evolves nevertheless. Without legislative power, no changes repugnant to the status quo can be introduced. Changes not repugnant to the status quo -- e.g., prohibiting something not currently mandatory -- can be introduced, but there is no power in the court to enforce such changes. This has led to a search for new mechanisms of social control. The situation is roughly analogous to, in the enlightened legal system, a scheme for using, e.g., the power to regulate interstate commerce, to regulate something totally unrelated to interstate commerce and over which Congress has no regulatory power, like how much wheat you grow on your land for your own consumption, or what drugs you put in your body. In the enlightened legal system, the prevailing interpretation of the Constitution for many years was expressed by the majority opinion in Hammer v. Dagenhart, which prevented Congress from pretending to use one of its enumerated powers as a tool for aggrandizing its own authority. But during the presidency of Franklin Roosevelt the Supreme Court retreated from Hammer v. Dagenhart, and gradually surrendered the liberties of the people to the legislative power of Congress. In Jewish jurisprudence, there has never been any appreciable Hammer v. Dagenhart sentiment. This has less to do with structural differences between the two legal systems than with the historical fact that, unlike the enlightened legal system, Jewish law has never been used by the empowered class as a weapon against the people. One new method of social control that has proven quite fruitful in enabling courts to expand their effective powers beyond their legal limits is a sanction that is not imposed by any officer of the court, but by the community as a whole, albeit under the direction of a respected religious leader. This is the punishment of nonintercourse, or xerem (the word is cognate to the Arabic harem). When a religious court pronounces a xerem (or a less intense form of the sanction, called nidduy) against an offender, all the members of the community who wish to be ruled by the religious court curtail their intercourse with the offender. When the ban is lifted by the court -- normally after the offender has complied with some order that the court otherwise lacks legal power to issue -- then intercourse with the community can resume. One xerem of great historical importance, and the one of greatest relevance to an exposition of Jewish divorce law, is the xerem that was instituted a thousand years ago, in Germany, by a religious leader and social reformer named Gershom. There were five things that Gershom wanted Jews to stop doing. He lacked authority, however, to enact new laws, and he could not in intellectual honesty write a brief claiming that existing law -- either Scriptural or rabbinic -- prohibited these activities. For example, he wanted to forbid the reading of another person's mail; but the Torah nowhere explicitly states that Jews have a right to privacy. In the enlightened legal system there is a ninth amendment to the Constitution, which provided a place where a right to privacy could be located, as in fact it was in the majority opinion of Griswald v. Connecticut. (But then the court weakened its own argument by going on to locate the same right in the penumbrae of the fourth and fifth amendments, and elsewhere. This began a train of confused thought which culminated in the muddleheaded majority opinion of Roe v. Wade. In partly finding for Roe, the appellate court had located a right to privacy in the ninth amendment, but Blackmun explicitly rejected the ninth amendment argument and located the right solely in the fourteenth amendment, a much worse place for it.) There is no ninth amendment to the Torah, however, nor is there anything analogous to it, other than a vague statement in Leviticus 19:18 requiring that others be treated the way one would want to be treated by them. Instead Gershom and his court decreed, that for a limited period of time not to exceed one thousand years, any Jew who read another Jew's mail would be placed in xerem. This made the behavior illegal de facto, though not de jure. Two of the five parts of Gershom's xerem address asymmetries in Jewish marital law. Under Jewish law a woman may not, simultaneously, have more than one husband, but a man may have more than one wife. Since there are approximately as many men as women in the world, polygyny has never been mathematically possible on a large scale. Occasionally it has been practised by men wealthy enough to afford two (or more) households. Wealthy Americans tend to be polygynous too, but in the enlightened legal system, the second wife is called a mistress, and she has no marital rights. She may not appear with her husband in public without being subjected to severe social sanctions. She may not spend holidays or special occasions with him. If she bears her husband a child she will be vilified. And she will not even be permitted to attend her husband's funeral when he dies. The only way he can give his second wife any rights or dignity is to break up his original marriage. Under Jewish law, second (and subsequent) wives have equal rights as first wives. Gershom wanted Jews to stop practicing polygyny for a limited period of time. Lacking the legal power either to forbid or to invalidate polygynous marriages, he declared instead that anyone who contracted one would be in xerem. This meant that men and women who continued to practice polygyny would have to do so furtively, the way Americans do. It is puzzling that Gershom would want to dismantle an institution that was used by only a miniscule part of the society, and which guaranteed justice and equal protection to people who would otherwise be without them. But one must understand the historical context. Judaism in that time and place was suffering from enormous pressure from the surrounding culture (Gershom's own son became an apostate Christian; and one of the five parts of Gershom's xerem, significantly, is a ban on any Jew who discriminates against a repentant apostate). Christians were taking advantage of the ignorance of uneducated Jews, and telling them that Christianity was fairer to women than Judaism, because its marriage laws were more symmetrical. Gershom no doubt believed that introducing this symmetry into Jewish practice would benefit a greater number of people than it would harm. Another asymmetry in Jewish law addressed by Gershom's xerem is the asymmetry of Deuteronomy 24:1 and Deuteronomy 24:3. A divorce is effected when the husband delivers a bill of divorce to the wife. An unprejudiced reading of these verses does not discern anywhere a requirement that the wife desire the divorce, only that the husband deliver the bill of divorce to her. Jewish law admits that even a divorce against the wife's will can be valid. This is perfectly understandable if the right to divorce exists in the first place only to protect women who would otherwise be abandoned by their husbands. But it provided the Christians with a propaganda tool to use against ignorant Jews. To repulse any accusations that Judaism discriminated against women, Gershom introduced symmetry here as well, and put an end to involuntary divorce. He lacked authority to forbid or invalidate any divorce performed without the wife's consent, but he decreed that any man for the duration of the edict who delivered such a divorce (except when immodesty was involved) would be in xerem. Coupled with a ban on polygyny, however, a ban on involuntary divorce makes it impossible for a man to remarry if his wife becomes mad, or otherwise legally incompetent (and therefore unable to consent to a divorce). When there were young children who needed a mother, this could result in much misery. In such cases Gershom allowed the xerem to be suspended -- but only with the consent of one hundred religious scholars, living in at least three different countries. The xerem of Gershom was accepted in its entirety by all the Jewish communities in Germany, and eventually by all Ashkenazi Jews. In certain other communities it was only partly accepted. Without a Sanhedrin in Israel, uniformity of practice could not be enforced. This lack of uniform practice was characteristic of the post-Sanhedrin period. It was not only that one community would accept additional restrictions (like those of Gershom) that were not accepted by another community. It was also that knowledge became fragmented, and unwritten traditions were remembered differently in different communities. Eventually the danger seemed real that Judaism would splinter into incompatible sects, and the need was felt to codify all of Jewish law, both Scriptural and rabbinic, into a single authoritative code -- something that had never before been done. The work of codification began in earnest in the tenth century of the christian era. The first attempted codes of law failed to receive widespread acceptance, because different communities had already evolved different practices, which they would not abandon for the sake of national unity. All subsequent attempts for the next six hundred years failed as well. Moses Maimonides (1135-1204) wrote an enormously respected code of law in fourteen volumes, but it was accepted as authoritative only by the Yemenite and Egyptian communities. Finally, in 1565, Yosef Karo (1488-1575) published the Shulxan `Arukh, which was accepted as an authoritative code of law by all Jewish communities except for the Ashkenazi Jews. Then Moshe Isserles of Poland (1520-1572) wrote a gloss to the Shulxan `Arukh describing the prevailing Ashkenazi practice; the Shulxan `Arukh with the gloss was accepted by all Ashkenazi communities. This code, in four sections, is now the authoritative code of law throughout world Jewry. Ashkenazi Jews study the code with the gloss, and all other Jews study the code without the gloss. New cases, of course, arise constantly, that need attention from contemporary scholars (e.g., is it permissible to own wheat futures on the Passover?) but the laws stated in the Shulxan `Arukh are the accepted law for all Jews who are beholden to the law. Marriage and divorce law is treated in the third section of the Shulxan `Arukh, called Evven Ha`ezer. The traditional Jewish revulsion toward divorce is explicitly expressed in Evven Ha`ezer 119:3 (following the sentiments of Malachi 2:13-16) -- "a man must not divorce his first wife". But the sentiment is qualified. Chapter 154 summarizes all the cases when a recalcitrant husband can be compelled by the court to divorce his wife (although the power of compulsion fell away with the passing of smikha, social sanctions can be applied against a man who falls into one of the enumerated categories, and courts have also sometimes employed extralegal measures in situations of great communal need). A man can be compelled to divorce his wife if he is unable or (recapitulating a law stated in Evven Ha`ezer 77:1) unwilling to fulfill his conjugal duties toward her. He can be compelled to divorce his wife if he develops a foul body odor that his wife finds repulsive. The Isserles gloss points out that he can also be compelled to divorce his wife if he habitually beats her without provocation. No other categories are mentioned. Under Jewish law, a Jewish woman unable to obtain a dissolution of her marriage from a Jewish court may not petition the secular court system for her desired relief. The fourth section of the Shulxan `Arukh, called Xoshen Mishpat, recites in paragraph 26:1 that it is forbidden under Jewish law for a Jew to bring another Jew before the secular courts. The plaintiff must summon the defendant to a Jewish court, and may only bring a case before a secular court if the defendant repeatedly ignores the summons. Normally, the Jewish court would first hear the case ex parte, and the relief that it granted to the plaintiff would then limit the relief which the plaintiff may subsequently request in a cause of action filed in the secular court system. If, in violation of the law, a Jewish plaintiff pursues a cause of action against a Jewish defendant in the secular courts, fails to obtain all the relief requested, and then attempts to pursue the same suit in the Jewish court, the Isserles gloss on Xoshen Mishpat 26:1 reaches the conclusion that the Jewish court will refuse to hear the plaintiff's suit. Perhaps it will offend enlightened readers that under Jewish law a wife cannot unilaterally terminate her marriage at will, but the law (as currently practiced) is symmetrical, and if the doctrine of "provable grounds" seems barbaric to enlightened people today, there was a time not long ago when even Americans felt that marriage was a solemn covenant and homes were not to be torn apart without compelling reason. Jay F. ("Yaakov") Shachter 6424 N Whipple St // Chicago IL 60645-4111 (1-773)7613784 jay@m5.chi.il.us