Volume 55 Number 03
Produced: Tue Jun 19 5:45:13 EDT 2007
Subjects Discussed In This Issue:
Agunot/Msorevet Leget (2)
[Chana Luntz, David Riceman]
Batei din/ agunot & business conflicts
[Joseph Ginzberg]
----------------------------------------------------------------------
From: Chana Luntz <chana@...>
Date: Fri, 15 Jun 2007 14:09:04 +0100
Subject: RE: Agunot/Msorevet Leget
Joseph Kaplan writes:
> I now know I'm out of my depth, but, nonetheless, basing myself just
> what Chana Lunz writes regarding whether a bet din has the power to
> beat a man to giver his wife a get, I think she overstates matters
> somewhat. She explains that "the bottom line conclusion is that the
> various sugyas do not make sense if one is to say that a beis din can
> just force a man to give a get if a woman says maos alai." But then
> she teaches us that the Rambam and the Rashba, not insignificant
> rishonim, say that a bet din can coerce the giving of a get in a maus
> alai situation. I assume that they must deal with the sugyot in some
> way that they do make sense. So it seems to me to be more of a
> machloket rather than sugyot simply not making sense.
Sorry if my post was misleading. What I was trying to say in my
statement about the "bottom line conclusion", is that this is the bottom
line conclusion of Tosphos (the problem with explaining a Tosphos, is
that they go all over Shas to bring proofs and counter proofs, and so to
explain one properly, one has to then give the background to each of the
proofs and counter proofs, which means that you need to explain those
sections of Shas, as well as making sure people continue to follow the
logic, and that, while an interesting exercise in learning, makes it
very easy for the reader to get sidetracked from the ultimate
conclusion). That is, to be clear, it is Tosphos who is saying, albeit
in my words to give a conclusion, that the sugyot do not make sense if
you say that the man is forced in a maus alai situation. In fact
Tosphos, as is so often the case, is disagreeing with Rashi, who in fact
says that the man is forced. So yes, it is a genuine machlokus rishonim
- and in fact in my first comment on this issue a few months ago in
mail-jewish Vol 53 no 90 I wrote "The problem is this. You and Jeanette
are quoting the Rambam (who held that a get can indeed be forced) but
most poskim tend to (and have historically, at least in Ashkenaz)
follow(ed) Tosphos, who held that it can't. While one can understand
the desire to reopen a rishonic machlokus, the halachic process is such
that this is not so simple."
> In addition, towards the end of her analysis, she refers to the "myth
> of a beis din's ability to force" the giving of a get, but she also
> refers to the practice of the geonim, Sfarad until the time of the
> Rambam, and Yemen of having courts force the giving of a get, which
> makes the use of the word "myth" problematic.
Again, what I was characterising as a myth is not that there was not a
machlokus how to posken on this matter, but what appears to be a
widespread view that the halacha follows the Rambam, when in fact it
doesn't. (Would you not discribe as a myth a situation where it is
widely believed that in a certain war, X won rather than Y, when in fact
Y won). And you also need to look and ask some serious questions as to
why it is that Tosphos' view appears to have won out over the Rambam's.
> But putting these lomdush issues aside -- and I certainly bow to her
> greater halachic knowledge in these matters -- I do have a question.
> According to Chana's analysis, the nature of marriage changed when the
> Torah was given. If that's so, why has the issue of msorevet get
> arisen in full force only in the recent times? -- the question I was
> addressing. One answer might be, my assumption is wrong; Judaism has
> always had this problem; it's not new. But if that is the case, then
> the problem should be documented by discussions of it in responsa and
> other halachic literature. However, from my reading of secondary
> sources on these issues I'm not aware of any extensive discussion
See, my initial response is to the contrary - that there is loads and
loads of this documented in halachic literature and responsa. The whole
give and take on the subject of whether one forces a husband or not
takes place in the context of real cases (the beitei din were, or were
enjoined not to, force a get). So I am not sure that it has really
arisen in full force in modern times, but rather that betei din have
been dealing with this (or not) on a case by case basis for ages.
I agreed with the second part of your post though, that the existence of
civil society has altered matters. But, probably even more critically
is the the changes in women and their status and children and their
status. Up until relatively recently, it was very rare for women to
have serious money and to be able to work outside the home. Suing a
woman for money was a bit of a useless exercise, and it was reasonably
agreed that most of the wealth in the home belonged to the husband, with
the exception of the kesuba and the dowry, which is why all of the
battles in the halachic literature about money are all about the kesuba
and the dowry - and note that the general halachic assumption (note
*gross gross* oversimplification here, the literature on how to and when
to pay the kesuba is voluminous) is that payment of the kesuba by the
husband is a kind of halachic fine (meant to make sure that the husband
does not divorce his wife too easily), which is waived or reduced if the
wife is in any way responsible for seeking the end of the marriage and
hence the too easy to divorce rationale does not apply. Nor was it that
common for the family of the woman to back the woman up financially
(they had often arranged the marriage in the first place and it suited
their social networking). And of course child support was much more
limited (let's face it, childhood was much more limited, children were
expected to function as adults much earlier) and the level of financial
drain caused by children today was unheard of. The whole idea, going
back to the torah, that a get had to be a get krisus, a final cutting
off of relations between them, tends to assume they were not spending
the rest of their lives negotiating child support and access visits and
whether one or other can go on holiday and the like. Our child
protection system binds ex couples together in a very tight web that is
very different from the classic form of divorce.
But a lot of it is also about differing expectations. There was not a
lot of money to go around to start off with, and it seems pretty clear
that if a woman did not have a marriage it was accepted that this
equalled virtual penury - whether it was because she never had a
marriage to start with, or because she had lost her husband or what. So
the idea that a woman who wanted out of a marriage left with very little
did not seem such an odd concept - women without marriages were
impoverished, full stop. I know it is an odd thing to refer to in a
halachic discussion, but the choice of Elizabeth in Pride and Prejudice
not to marry an odious man who comes with a good living is a relatively
modern one, whereas the choice of her friend Charlotte, who at 27 was on
the shelf and married the man refused by Elizabeth so she could run her
own household and have a decent material life is much more classic.
Read what Charlotte has to say about why she accepted her one and only
marriage proposal. Even so, there were and have always been men who
were so odious that it could not be borne, they not being the kind of
man one could send out to the garden as much as possible (one of
Charlotte's work arounds). Charlotte of course knew what she was
getting herself into, and made her choice with her eyes open, and in
many other cases women did not, either because the man deceived them, or
they were not as perceptive as Charlotte. But even so, her world is
much more like the world in which much of this halachic literature
functions than the world of Elizabeth. The halachic literature just
does not reflect a world where the pursuit of happiness (and love) was
considered a G-d given right. Very few had that luxury. Are we wrong
to have different expectations? To think Elizabeth right and Charlotte
wrong, or at least, to expect and demand that our lives be like
Elizabeth's? Jane Austen herself, perhaps caught between worlds, never
married. I don't know, these are also difficult questions. We clearly
do have the love between Ya'akov and Rachel, or even Yitzchak and Rivka
as an ideal, not the grudging endurance of a Charlotte. And yet the
halachic literature is replete with understandings and expectations that
many will, if they have to, make the choice of Charlotte. Whereas these
days there are very few who are willing to accept a Charlotte type
relationship, and hence many more who fall within the maus alai category
than before. But is that something we should be seeking to reverse?
That women are, perhaps, more sensitive to the state of their marriage
than they were previously, and less willing to tolerate a pretty
disfunctional one (or alternatively tolerate living alone and out of a
disfunctional marriage). I find it difficult to say that is a bad thing,
but it does make comparisions to history rather uncomfortable (just as
one feels rather guilty about struggling to cope when one considers that
one's grandmothers raised so many more children without the help of
washing machines and dishwashers and fridges and other modern
appliances, and yet one still never seems to have the time).
> in such primary halachic literature, although I am certainly open to
> be educated. But if my assumption is right, but Chana is also right
> that my reasons are wrong, then why did this problem arise only in
> recent times?
So, in short. I guess my answer is not that it arose only in recent
times. But that the numbers have significantly increased in recent
times, because many of those who in older times would have put up with
the marriage, today won't. And some of the tone problem that you are
having, I suspect, is because rabbis who are steeped in the halachic
literature are very conscious of this - making it easier for them to
tolerate what we would not tolerate. I give this example often, because
I think it is instructive. In English law, I think until around a
century/two centuries ago - a man was permitted to beat his wife with a
rod no thicker than his thumb. Anything more was considered abuse, but
less was acceptable. Can you understand why a woman living in a society
where this was the law might not, perhaps, complain about a certain
degree of physical abuse that today we would find completely
unacceptable? Even though the majority of the halachic literature is
totally against spousal abuse (not all of it, but mostly. Even if she
is totally dedicated to the halacha, most women in this sort of society
are likely not to leave or seek to leave unless the abuse was worse than
that sanctioned by the general society. So the cases in the literature
that will arise in a country similar to the England of yore will all be
cases where the abuse is worse than that sanctioned by general society
(and the woman will no doubt make that statement when in front of beis
din .. If he was only doing X, like everybody else's husband ...) So we
have a bit of a disconnect here. Rabbis who spend their lives reading
about how terrible it used to be, and read one horrendous teshuva after
a next, and women who have no idea about how awful things could be
historically for single women (eg starvation as a not unknown condition
for an unmmarried woman - the cohen in the gemora who betrothed all of
the single women in a time of famine so that they could eat teruma was
not doing it so they could have delicacies). I know that doesn't help
the problem, because today's problems are real, and saying that things
were worse in earlier times (eg your grandmother could cope with more
children) does not mean that you can. But on the other hand it is hard
to genuinely understand the history of halacha if one is not aware of
the historic reality - and one certainly cannot attempt to answer a
question as to why did this problem arise only in recent times if one
does not understand what really went on in times that are not recent.
Shabbat Shalom
Chana
----------------------------------------------------------------------
From: David Riceman <driceman@...>
Date: Mon, 18 Jun 2007 09:23:54 -0400
Subject: Re: Agunot/Msorevet Leget
From: Joseph Kaplan <penkap@...>
> According to Chana's analysis, the nature of marriage changed when the
> Torah was given. If that's so, why has the issue of msorevet get arisen
> in full force only in the recent times?
At least in the United States the nature of divorce has changed. It is
now possible to get a divorce without showing misbehavior on the part of
either party (and, in many states, without mutual consent). Halacha
requires mutual consent for divorce (at least among ashkenazim). So
that while the Jewish and American definitions of divorce may have
always been different, not only have the numbers of divorces increased,
the reasons motivating divorces have changed, and that has increased the
clash in cultures.
David Riceman
----------------------------------------------------------------------
From: Joseph Ginzberg <jgbiz120@...>
Date: Mon, 18 Jun 2007 14:10:39 -0400
Subject: Batei din/ agunot & business conflicts
>Halacha HAS acceptable solutions for ALL of these problems.
>Unfortunately, the problem is usually nowadays not the halacha, but
>rather some of the Batei Din. Many times just by switching Beit Din, my
>husband succeeded in freeing a woman from her husband in cases such as
>those listed above. Unfortunately, the process can take sometimes
>several years.
Forgive my naivete, but after seeing postings similar to the above
dozens of times in relation both to aguna issues and general bet-din
corruption issues, I am confused.
Rather than the endless discussions, protests, and so on, wouldn't the
"activists" better serve those in need by simply creating new batei din
untainted by outside influence? It would seem to be a fairly easy
project, simply fund a bet din so it's truly communal, endowed and so
independant of outside donors and influence. If the dayanim are decently
paid, unafraid of losing their jobs and get paid the same no matter how
they rule, there is no incentive for them to cheat (ain adam choteh v'lo
lo). They wouldn't be so overloaded eking out a living, either, so
cases would not drag on so long.
Given the mega-millions being invested in yeshiva buildings, mikva's,
and the like, it doesn't seem to me to be that farfetched.
Or are there agendas to those advocating various types of pressure and
so on, to solve these problems? Even if the aguna issue is solved that
way, basic business conflicts still need a place for resolution per
halacha, currently no less a problem than agunas.
Anyone good at fund-raising willing to tackle this?
Yossi Ginzberg
----------------------------------------------------------------------
End of Volume 55 Issue 3
