Tradition and Equality in Jewish Marriage: Beyond the Sanctification of Subordination 9781472548764, 9781441184597

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Acknowledgements

I have had the privilege of carrying out the research and writing of this book during my employment as a lecturer at Monash University, in the Australian Centre for Jewish Civilisation. I would like to thank my Monash colleagues, Professor Barbara Caine and Professor Andrew Markus for their guidance and encouragement with this project. I also thank Professors Michael Broyde, Aryeh Cohen, Charlotte Fonrobert, Naomi Graetz, Tamar Ross and Noam Zohar for their input in to this project. All the shortcomings are mine however. I would like to thank Associate Professor Mark Baker, the Director of the Centre for his support and encouragement to complete this project. Adrian Saxon was the person who initially suggested this topic for me. Rabbi David Bass alerted me to sources about the implications for sexual consent in light of women’s acquisition. In that context I am also grateful for the opportunities to present at multiple conferences of the Association of Jewish Studies and the Jewish Law Association. Thank you also to Idan Dershowitz for looking over my translations at an early stage of the project. I would also like to thank Mandel School for Leadership for providing me a warm home away from home during several stays in Jerusalem. One does not complete a project like this without access to resources. I was the recipient of a Hadassah-Brandeis Junior Research Award which helped kick-start the project. I am a part of several supportive communities including one which has allowed me to be in touch with someone for a quick chat every time I hit a difficult moment. I have also received much appreciated support from my mentor and friend Debbie Dadon, my lifelong friend and hevruta, Laini Liberman and also from Viv Brass. I would like to thank Lalle Pursglove and Rachel Eisenhauer of Continuum Press and Srikanth Srinivasan of Newgen Knowledge Works and the rest of the production team for their patience and hard work in creating this book. I am grateful for the privilege I have enjoyed of learning and sharing with many brides and grooms prior to their weddings, encouraging them to see marriage as a personal rite of passage in addition to whatever else it is for them, as well as the opportunities I have had to facilitate both preparatory rituals as well as the wedding itself. I am indebted beyond measure to my parents for their love, and belief in me. Day by day, my partner, Michael Fagenblat and I, share a rich and

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dynamic connection that enables us lots of freedom to be who we are, live our lives and transform, and keep on coming back to receive ourselves and each other. For this I am deeply grateful and constantly surprised. I treasure and delight in the sweetness of the blossoming fruits of our partnership, especially my relationship with our children, Ktoret Ashira and Ariel Raya. I would like to dedicate this book to my two grandmothers. To Nana Frida Wilinsky, with an ever-present desire to nourish – for her qualities of fortitude and perseverance, of which I have been blessed to inherit some. And to the blessed memory of my Nana Lily Holckner whom I honour for ingathering the family with ultimate charm and grace, bringing special attention to each relationship. Mine is theirs. May we all be blessed to love and to learn, to continue to bring light to the world and its people, and to transform our traditions as we transform.

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Introduction

Beyond the Sanctification of Subordination: Between Tradition and Equality in Jewish Marriage

People who identify with religious traditions and who are simultaneously fully engaged in the secular world are often confronted by competing values. The brushing up of feminism against tradition has sparked much creativity, debate and response in many circles. Worthy is the imminent critique that engages from within a culture without targeting that culture as the progenitor of male domination more than any other. The particular question of marriage that I am referring to – the formalization of the heterosexual commitment of partnership – is a fruitful place to explore this exciting yet fraught intersection of multiple ideological commitments. The transformation of male-dominated society and the growing into and claiming of full humanity for both men and women is both an inner journey – claiming parts of the self that have been projected outwards – and also an outer journey, reclaiming power and autonomy in the world. Marriage is a portal between these two spaces and has amazing potential, marriage by marriage, to transform the relationship between men and women, into a relationship of mutuality and shared humanness. Marriage is an ancient rite that has continually changed shape and been infused with renewed meaning throughout history. Traditional Jewish marriage is based on stipulations in ancient rabbinic texts. And yet religious textual interpretation and practices also transform throughout history in relationship to a community of meaning that is itself influenced by contemporary social, cultural, economic and political developments.1 This book documents the application of religious law to the practice of Jewish marriage and divorce and the social change that it has reflected and resisted. As heterosexual relationships change − on social, economic and political grounds − so do understandings and expectations of marriage. Jews and members of other faiths are looking back to their religious and cultural

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traditions for guidance around significant milestones and rites of passage, while simultaneously looking forward to create new and emerging visions of the lives they want to create and co-create. On the one hand, our traditions form our home and on the other hand, they sometimes need to be remade in order to make them feel like home.2 However, the tradition is not simply and only ours to make our own. The value of tradition comes from a sense of continuity with the past. With respect to the maintenance of Jewish normative tradition, change is limited through the narrow ascription of authority for those able to make change and simultaneously be considered as operating within. Whichever denominational allegiance one has, authority around issues of tradition is related to the community of meaning to which one belongs. Tradition is mediated through communities of meaning. Negotiating Jewish marriage is bound up with questions of who has the authority to create legal meaning and what are the limits of the capacity of the community of meaning to determine legal meaning in a constant process of flux. The community of meaning ‘tells specific stories about the act. . . . The same legal act, then can “mean” differently in different communities’.3 The relationship between what the law ‘actually contains’ and the capacity for the communities of meaning to live according to it depends on the particular relationship that communities of meaning have to normative traditions. The ‘act’ or the ‘law’ has content of its own yet the rabbinic tradition has also showed how interpretation can overthrow plain meanings. Despite the capacity for law to be radically interpreted, it ‘is assumed to contain the principles for its own elaboration . . . including extending or adding to its provisions and restricting or annulling others’.4 The capacity for community meaning-making has a bi-polar relationship to the formal legal text: On one hand the capacity for the community to make meaning can be seen to be supported and enlarged by the plurality of resource inherent in the legal text. On the other hand, the legal text can be seen as overdetermined to the extent of precluding the full creative capacity of the community of meaning. This question about the application of values in interpreting, practising and appropriating normative traditions lies at the heart of this project. I investigate the possibility of using rabbinic texts as a resource to ply open both normative and alternative structures. These possibilities are framed by the issue of authority: Who is this speaking to? Who will listen? Who is speaking? This book addresses people who are called by the traditions that bind them while simultaneously being grounded in ethical commitments (such

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as feminism) that they are not willing to abrogate. They may want to be more informed about the traditional texts of Jewish marriage, and interested in exploring possibilities for the religious ritualization of their partnership in ways that align with their other values. This book provides an interdisciplinary approach to traditional Jewish marriage as developed by ancient rabbinic texts as well as providing some practical resources for alternatives to traditional rabbinic marriage. It provides a paradigm for relating to traditional sources and integrating contemporary practice so that it aligns with the multitude of commitments that a postmodern human carries. It does not fit squarely within classical disciplines of either rabbinics, legal or feminist studies: For rabbinic and legal scholars it may not contribute substantially within their specific disciplines. For most feminist scholars it is unusual in that it treats rabbinic texts as law recognizing their binding nature, although it does this differently from others who think they are ultimately binding. In truth, this book also reflects my ambivalence about the binding nature of the tradition and the extent to which I would follow traditional norms where they conflict with other values that I hold. Through the process of researching this project the claim of authority that the rabbis held over me diminished somewhat. Even though I see the need for rabbinic authority for the continuation of that system in all of its shades, becoming intimate with rabbinic opinions and adjudications about marriage throughout the ages, particularly my sense of how rabbinic authority can be used as a channel for perpetuating gender inequality, undermined my capacity to accept rabbinic authority more than it had been undermined in the past. Some of the assumptions of this book include the following: That nonreciprocal marriage poses a moral problem; That marriage as an institution has supported women’s subordination; That there is validity is an appeal to a moral compass outside or beyond the internal moral compass of Jewish law, often treated as a complete hermetic system, which can create internal and external dissonance; Alternatives for Jewish partnership should embody mutuality and reciprocity in life and ritual; and finally that ritual makes a difference and how we do things affects the relationships we create. Some of the main questions with which I grapple in this book include: 1. To what extent is rabbinic Jewish marriage non-reciprocal? What are the limits of that non-reciprocity? In an extreme account of non-reciprocity does a woman have to consent to sexual intercourse with her husband?

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2. What is the capacity for scholars to read texts differently according to their own values and interests, and why is taking a moral position important for legal authorities? What are the potential risks involved and can they be avoided? 3. If kiddushin (betrothal/marriage) of the rabbis was constitutively nonmutual, is it possible to have a mutual relationship marked by a mutual ceremony and still call it kiddushin? What are the limits of interpretation of a community of meaning? 4. What is the best legal and social choice for people who want to live their lives both in alignment with traditional sources and practices and yet also in alignment with reciprocity in their committed partnership? In Chapter 1, I locate the issue of traditional Jewish marriage within the broader issue of the application of modern values to traditional religious forms and the implications for authority and autonomy. This chapter also locates the issue of Jewish marriage as subordination, within the rabbinic tradition, more specifically in relation to issues of women’s exemption from performing time-bound commandments as well as women’s exclusion from learning Torah, the cultural and religious apex of the rabbinic milieu. I also examine three other approaches and alternatives to traditional Jewish marriage: Brit Ahuvim (Covenant of Lovers), Annulment and Reinterpretation. Chapter 2 maps out the legal constituents and effects of the traditional Jewish betrothal (kiddushin) with an attempt to show, through classical rabbinic texts, that acquisitional elements are involved in this arrangement. This chapter presents a systematic analysis of significant features of betrothal (kiddushin) as explicated in rabbinic sources. Chapter 3 focuses on issues emerging from the non-reciprocity of divorce rights in Jewish marriage. It addresses the important question of the extent of women’s exit options in marriage through a focus on the medieval debates about the institution of the ‘rebellious woman’. After betrothal, a divorce is necessary to end the relationship, even if the full marriage has not been consummated. This institution of the ‘rebellious woman’ was developed already in the ancient rabbinic period and came under scrutiny and contention in the medieval period. If sexual relations is a constitutive element of marriage and a woman can’t have divorce of her own free will does that mean that she is forced to have sexual relations against her will? The texture of women’s agency and their capacity to consent to sexual relations in the context of a relationship with restrictive exit options is examined. Some extreme accounts of the acquisitional

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nature of the betrothal result in a severe reduction of women’s autonomy and independence. Chapter 4 explores the rabbinic notion of conditional marriage and traces its development in Jewish law. Of particular note is the novel use of conditional marriage as an attempt to avoid problems of the nonreciprocal divorce right, through a condition that retroactively nullifies the marriage in the case where a husband refuses to grant his estranged wife a divorce. This chapter draws attention to the way that this issue has evolved in the historical context of the initiation of secular divorce and its challenge to maintaining the hermetic religious seal on Jewish marriage and divorce. In particular, this chapter addresses a rabbinic response in the early twentieth century to a rabbinic proposal to institute conditional marriage as a means of avoiding some of the problems arising as a consequence of the introduction of civil marriage and divorce in France in the late nineteenth century. This chapter also discusses in detail Rabbi Eliezer Berkovits’ critical response to the initial responses of other European rabbis compiled by Rabbi Yehudah Lubetsky. Chapter 5 addresses models of committed partnership predominantly, concubinage and derekh kiddushin (quasi-marriage) which do not fit most halakhic (Jewish law) definitions of marriage but are alluded to in ancient rabbinic texts and not regarded as mere licentious relationships. Rabbi Meir Simcha Feldblum, author of an important article on ‘derekh kiddushin’ one of the alternatives that I examine in the final chapter, argues that there is a lack of knowledge and therefore of real consent in the way that contemporary women of the feminist age are getting married. This lack of consent introduces an additional problem to the other problems inherent in the non-reciprocal relationship of traditional Jewish marriage: In light of the drive by women of our day for equality in all areas of life, there is an ‘evident presumption’ (umd’na d’mukhah) that many women, if they only knew what was mentioned above [the requirement for assent to be acquired in marriage] would absolutely refuse to agree to the acquisition (qinyan) of traditional Jewish marriage (qiddushin). This is contrary to what was the case in past years. This assumption is additionally strengthened from the declarations of those women who are aware of the acqusition (qinyan) of marriage (qiddushin) and who do not accept it, their intention being solely to establish a bond of faithfulness to their partner. According to this a presumption has been created that there is a lack of consent on the part of the one being acquired (da’at maqnah). 5

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An important issue that this book addresses, although not necessarily resolves, is whether it is desirable to rehabilitate alternative models of heterosexual partnership from the tradition and to abandon the rabbinic model of marriage because it is constitutively and thus necessarily nonreciprocal. Or, on the contrary, whether it is preferable to retain the institution of Jewish marriage (kiddushin) while changing the non-reciprocal elements into a reciprocal arrangement despite explicit rabbinic statements that invalidate reciprocal marriage. In other words, can we retain the name and the institution of marriage while changing its essence or, if marriage is essentially defined in non-reciprocal terms, as it is in rabbinic law, are those of us who insist on reciprocal partnering compelled to come up with something that is no longer called ‘kiddushin’? Basically, should Jewish feminists throw out the model of Jewish marriage in rabbinic texts because of its non-reciprocity thereby holding on to a positivist reading of rabbinic law of kiddushin , or should they hold on to a notion of Jewish marriage, transform its non-reciprocal contents, knowing that this is contradictory to rabbinic requirements of marriage. It is an established yet radical rabbinic practice to hold on to a concept and to empty it of its original meaning through interpretational manoeuvres.6 However, aside from abrogating rabbinic requirements of kiddushin , an additional result of keeping the original rabbinic concept and nomenclature in order to reappropriate it, would be that the nonreciprocal content of marriage gets overwritten and whitewashed. The time is not right for this. There is not enough awareness about the constitutive non-mutuality of kiddushin to bypass changing its name. One aspect of halakhic change is related to the educative function of halakha as communal practice. In more general terms this is a question about whether in wanting to create legal change – and all the associated questions of authority and community – we use the same legal concept and empty out its original meaning, or alternatively whether we employ an alternative legal concept. In grappling with the non-reciprocity of marriage and the acquisition of the wife by the man, some have opted for a totally renewed model, like Rachel Adler’s Brit Ahuvim (Covenant of Lovers).7 Although I honour her project, I have wanted to use an alternative that has its basis in the tradition and in that way transform it. Many others have continued with the acquisition model but departed from tradition through making the acquisition ‘egalitarian’, for example through double-ring ceremonies and the woman expressing a reciprocal statement of betrothal as does the man.

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This book examines two alternative models for partnership derived from within the rabbinic tradition and the contemporary debates about them, namely conditional marriage (which only partly bypasses the nonreciprocity through annulling the capacity of the husband to refuse the wife a divorce) and derekh kiddushin (quasi-marriage). Although these two models are drawn from the rabbinic tradition, my appropriation of them makes use of the contemporary twentieth-century scholarship of Eliezer Berkovits and Meir Simcha Feldblum respectively. Appropriating dormant legal traditions in order to align praxis with current moral concerns is an important feminist methodology.8 For those people who want a Jewish marriage and don’t want a nonreciprocal marriage, perhaps a more radical way to destabilize the concept and to interrupt old meanings is to hold fast to the use of the term ‘kiddushin’ while transforming its contents. In addition, as I already hinted earlier, from the perspective of ‘author’s intention’ a totally revamped kiddushin does not make sense. That argument goes as follows: if the rabbis said explicitly that kiddushin is non-reciprocal, then we can make reciprocal relationships, but we can’t call them kiddushin . But maybe there is also a way around that. The rabbis meant many things about kiddushin and perhaps that particular characteristic doesn’t have to have precedence over the other things they meant. Plenty of apologists for kiddushin hold versions of that opinion. I have chosen to focus on non-reciprocity as the defining character of kiddushin but there are other scholars who read other characteristics of kiddushin – such as mutual responsibility – as the more predominantly definitive characteristics of that institution. Perhaps then according to them, mutuality and reciprocity would not undermine the essential nature of kiddushin (as it does when one sees the non-reciprocity as the defining aspect) even if it created some technical difficulties. The connection between canonization and the hermeneutic openness of the text is well known. The moment something is canonized, interpretations of it multiply. Respect for the canon promulgates multiple interpretations that allow the text to make good sense to us. Conversely, uncharitable readings of texts are linked to decanonization, to the failure to ascribe validity to the canonical nature of the text and not allowing it to make good sense to us. The feminist reading of kiddushin that sees it as unreconcilably non-reciprocal and in need of utter transformation is decanonizing and uncharitable because it suggests a radical break from the given and the inability of the text to make good sense to us today. Instead of emphasizing the holiness of marriage and its centrality to Jewish family and Jewish community, it reads it as a relationship based on

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unequal power dynamics that needs to be transformed if it is to serve as the basis for Jewish families. However, the approach that would keep the label of ‘kiddushin’ but shift its meanings and content pays tribute to the canon. As Moshe Halbertal says, ‘framing a text as canonical, and in our case, as divinely revealed opens hermeneutical possibilities that threaten to erode its “original” and straightforward core’.9 This would precisely be the aim of someone who wants to keep the term but have its meaning transformed. This approach would support the ongoing appropriation of the concept of kiddushin as an institution of the rabbinic canon and erode its core through changing its meaning, even when in some cases, those changes may be explicitly against what rabbis had said when they established the institution of kiddushin . According to the relationship between canonization and creativity that I detail above, the departure from the canonical concept of kiddushin which I advocate, ironically results in a possibly more limited result than maintaining the term and transforming its contents.10 Despite this impediment, because of my understanding of the limits of authority, I haven’t found a way to justify maintaining the name, changing the content and sustaining the seeming contradiction that it entails.

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Chapter 1

Laying the Table

This chapter frames the idea of approaching sacred ancient legal texts about Jewish marriage through an examination of the relationship between black letter law and the process of interpretation. The idea that lawmakers apply values in their interpretation of the law is a thread that runs through this book. It implies a moral responsibility upon lawmakers to respond ethically to problems of social injustice that arise in relationship to the application of laws. As well as illustrating the other literature in the field of Jewish marriage and feminist rabbinics, the middle part of this chapter locates the nonreciprocal marriage relationship within the rabbinic schema of male – female relations that are described through the rubric of the exclusion of women from the cultural apex of learning Torah as well as the exemption of women from time-bound ritual commandments. Non-reciprocal marriage is thus bolstered by a broader system of gender hierarchy within rabbinic Judaism as well as by the expression of patriarchal society in its different guises. The final part of the chapter explores other alternatives and approaches to traditional marriage besides conditional marriage and derekh kiddushin (quasi-marriage) which I discuss more in detail in Chapters 4 and 5 respectively.

Interpretation and authority While the process of interpretation belies the notion that there is a determinate meaning of any text, the activity of interpretation has some constraints. Stanley Fish argues that we cannot avoid interpretation and that there are no ‘facts that exist in their own self-evident shape’. He says of those trying to get beyond interpretation: The basic gesture, then, is to disavow interpretation in favor of simply presenting the text: but it is actually a gesture in which one set of

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Tradition and Equality in Jewish Marriage interpretive principles is replaced by another that happens to claim for itself the virtue of not being an interpretation at all.1

The significance and responsibility of interpretation is an important motif for feminist analysis of law. Despite the importance of interpretation, there also remains the formal legal text itself and I grapple with finding the correct language that accurately and fairly attests to the ancient and medieval Jewish texts about marriage, alongside my critique of their application in twenty-first-century Jewish life. This challenge is sharpened if I describe what I am doing as applying modern liberal values to ancient Jewish texts. Clearly, I do not expect the texts to reflect modern and postmodern sensibilities and I do not mean to invalidate the advances in status that those very texts may have represented for Jewish women. I am uncomfortable with the idea of grouping all the texts together, eliding the nuance and difference within the texts and their approaches to all things including gender and marriage, another important feminist methodology. Attention to detail helps to unpack the landscape of gender relations. Approaching traditional texts within more contemporary moral frameworks raises questions about how their authority is maintained and transformed when they are subject to new and ongoing modes of analysis. In other words, I approach the Jewish texts with a keen awareness and consideration of the authority they invoke and engender in ever-changing and diverse, yet continuous ways. I relate my concerns about marriage in the context of the framework of this authority (even if at times that leads me to step alongside it). I do this, for example, by appealing to two models of relationship as alternatives to kiddushin that have some element of precedent within the historical Jewish legal corpus. I also speak to the authority the texts represent by appealing to internal and self-referential legal questions that are evoked, placing contradictory legal principles beside each other and calling them to account with respect to their own internal logic.2 I am ambivalent towards the authority of the rabbis as invoked by other rabbis – on the one hand I do not want to disregard it and on the other hand I do not want to be solely bound to it, when, at times, I can also see its contingency and arbitrariness. There are practical implications to this discussion of authority. Ancient texts and their commentaries should not only be approached as theoretical because they mandate the practice of traditional Jewish marriage today. Layered on the texts are also the sociological contours of how these laws are embedded in communities. Situations differ between, for example, other

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countries and Israel where there is no option for civil marriage and divorce and where issues of personal status are under the ambit of the religious authorities. Within Jewish communities outside Israel, despite having civil options, many Jews opt for marking lifecycle events in Jewish ways. What happens to members of minorities when their own group discriminates against them, and when the discourse of rights has little currency within the internal norms governing the group?3 In the context of gay rights within minority communities, this has been described as the ‘tragic dilemma of someone being an outsider in a tradition they feel very much a part of’.4 Women who feel deeply connected to their Judaism could easily feel like an outsider in relation to certain laws, especially laws of marriage and divorce. Irit Koren, in her study of South Jerusalem modern Orthodox women, details interpretative strategies used by women ambivalently involved in traditional Jewish weddings.5 These women used interpretative strategies to be able to negotiate a way to perform the ritual acts (or obligations – or perceived obligations) that were otherwise at odds with their values. Liberal philosophy accounts for the potential discrimination that results from the self-organization of minority groups through the quid pro quo of exit. The liberal quid pro quo of exit is the counterbalance for the liberal allowance to minority groups to self-organize despite some elements of their activities, within limits, being counter to liberal values of the State. However for many contemporary Jewish women, such as the ones interviewed by Koren, the liberal quid pro quo of ‘exit’ is not an option.6 The inadequacy of exit as a trade-off for allowing oppressive practices by minorities is well noted by Oonagh Reitman who says that ‘if exit is not possible for some people then it can not be relied upon to further the protective and transformative roles claimed of it’.7 Despite this limitation he does acknowledge that the possibility of exit and the concomitant exertion of pressure to prevent cultural annihilation can be used to promote reform.8 Reitman argues that with respect to Jewish women and divorce, exit does not pose a threat because of ultra-Orthodox groups wanting to ‘ensure ideological purity’.9 I do not agree with him. Historically, exit may have been the reason for some proposed and some eventual changes and leniencies being made in the law.10 On the other hand, it could be that the denominational outgrowth actually promotes ‘exit’ because ultra-Orthodox Jews are less concerned about the unity and inter-relations of the Jewish people (at least non-Orthodox) and more concerned about maintaining ‘ideological purity’ as Reitman suggests.11 Thus the argument stands that women may be inclined to sacrifice membership of the group for the ‘higher purpose’

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of preservation of cultural ideals or religious standards according to particular interpretations of their religious authorities. The role of exit is fraught where people hold a ‘multiplicity of affiliations’ that mean they want to both preserve their cultural identity and simultaneously fight for greater equality.12 There are numerous ways to ‘preserve’ cultural identity, which is never a stable entity itself. Pinhas Shifman, an advocate of civil marriage in Israel, argues that the starting point of this halakhic discussion about marriage must be the establishment of the moral position in the face of the problem.13 The technical, legal, formal means are of a second order that must arise after the position has been clarified by the legal decider.14 However this is not the view of all scholars or religious leaders. Rabbi Haym Soloveitchik, for example, juxtaposes human input with the proper divine content of religious law. He says: If law is conceived of, as religious law must be, as a revelation of the divine will, then any attempt to align that will with human wants, any attempt to have reality control rather than to be itself controlled by the divine norm, is an act of blasphemy and inconceivable to a God-fearing man.15 It seems to me that his argument is polemical in that he wants to deny the necessity of the processes of secularism and ‘foreign’ ideologies on changing the law, although he accepts it if the change emerges from what he understands as religious conviction. He says: Yet the contention of this paper is that at times the very intensity of religious conviction and observance can be conducive to a radical transformation of religious law, and that the very depth of religious attachment can play a supportive role in deflecting the divine norm from the path of its immanent development, and bring it into line with the needs and practices of the time.16 In his discussion of how medieval Franco-German Jews reinterpreted the laws of Judaism that prohibit suicide and raise serious concerns about optional martyrdom in a time of religious persecution, Soloveitchik says: What had taken place was that law and logic had led men to an emotionally intolerable conclusion, one which denied their deepest feelings and more significantly, their deepest religious intuitions, and so the law was reinterpreted.17

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It seems clear that Soloveitchik is differentiating between an ‘authentic’ halakhic sensibility, and justifying reinterpretation of the law on those grounds, and the reinterpretation of the law on feminist grounds for other issues that ‘deny one’s deepest feelings’ and ‘deepest religious intuitions’ like the problem of agunah (chained woman) and the unequal partnership between men and women in marriage. The parity of men and women is a deep religious intuition of mine. It is related to both of us – men and women – as humans being in the image of the divine and being mandated to have lives that reflect divine greatness and generosity in some way.

Jewish feminist scholarship – Scholarship on Jewish marriage Although there has been much contemporary academic, rabbinic and communal attention on the plight of agunot (chained women) and mesuravot get (women whose husbands deny them a Jewish divorce), the overall problematization of the non-reciprocity of the marriage relationship has been the sole domain of feminist scholars such as Rachel Adler. Other feminist scholars such as Ruth Haperin-Kaddari, Susan Aranoff, Aviad Hacohen and Irit Koren provide a rich analysis of the non-reciprocal paradigm which includes alternative gendered presumptions to employ in current realities as well as the way contemporary women negotiate the gaps between the halakhic paradigms and their own lived values and experiences.18 All of the varieties of analysis are important and add to the full picture of understanding and the groundwork for more structural change in Jewish marriage. My research is indebted to the growing body of Jewish feminist scholarship. One of the fathers of this scholarship, Daniel Boyarin, has influenced me in charting the rabbinic texts and constructing a map of gendered hierarchies and subversions within this framework. Most useful is his model of critiquing the texts from a feminist position from within the very heart of the tradition itself. He is engaging in a critical encounter from an unreservedly expressed love relationship with the sources: He says: I repeat that I deeply love and feel connected to rabbinic texts and culture but there is much within them that I fi nd deeply disturbing as well. If Jewish culture has been a place of safety for a sissy, it has hardly − to understate the case − provided such felicitous conditions for Jewish women.

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Boyarin sees his own work as ‘a feminist project’ and one that, owes its life to feminism and the work of feminist critics: I feel an inner mandate to see to it that a project of reclamation of Judaic culture from the depredations of the civilizing, colonializing, onslaught to which it has been subject does not interfere with (even perhaps contributes something to) the ongoing feminist critique of that same traditional culture from within – to see to it, as best I can, that is, that my practice whether or not it is part of the solution, is not part of the problem. . . . The dual movement of the political project, to resist the delegitimization of Judaic culture from without, while supporting the feminist critique from within dictates the structure of my work.19 Boyarin’s pioneering work in Jewish masculinity and rabbinic literature has demonstrated that although the rabbis did not take part in the gendered hierarchies of the surrounding culture they recreated their own hierarchy. In Unheroic Conduct: The rise of Heterosexuality and the Invention of the Jewish Man, he argues that within the rabbinic community ‘male power is secured precisely through the production of a kinder, gentler discourse’.20 Elsewhere he says ‘The study of the Torah is the quintessential performance of rabbinic Jewish maleness. . . . the House of Study was thus the rabbinic Jewish version of the locker room’.21 The role that this plays in gender relations he explains thus: ‘If study defined the rabbinic male, then the exclusion of women was the practice that constructed gender differentiation and hierarchy within that society’.22 Boyarin suggests that feminist critiques be aimed at ‘this generally compassionate and humane (but absolute) control of female subjects through maintaining them in virtual ignorance of the practices that enable ritual decision making’.23 No control is gentle and despite the ‘kinder’ discourse of rabbinic masculinity, women bore and still bear the brunt of an entrenched rabbinic gender hierarchy. Regrettably Boyarin has understated the nature of rabbinic patriarchy although this has also made his work more palatable to non-feminist rabbinic scholars. In Menstrual Purity: Rabbinic and Christian Reconstructions of Biblical Gender, Charlotte Elisheva Fonrobert encapsulates the dynamic between deep engagement with the fine detail as well as the critical encounter with the text. Fonrobert shows that feminist criticism ‘asks for a commitment that can create, initially, a conflict of commitments’: This conflict is particularly acute when one is trying to make one’s home in a textual home such as the Talmud – which all of a sudden

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is reconfigured as a man’s world, and one does not want to see it as such. . . . On the one hand, rabbinic texts present a multiplicity of voices, construct a textuality of collectivity, craft webs or fabrics (massekhtot) of discourse that continue to be woven, texts that remain alive. On the other hand, the feminist literature of the last thirty years teaches us to see the limitation of that collectivity and its multiplicity of voices. The textual collectivity is composed of male voices, the product of either structures of discipleship between master and students or of the Beit Midrash as the central institutions of rabbinic learning and discussion during the talmudic period. Both institutions were famously exclusive of women.24 Scholars influenced by feminist theory have offered a number of different ways of reinterpreting Jewish tradition. Rabbi Aryeh Cohen too draws on critical feminist analysis in detailed analysis of rabbinic texts. His article ‘The Patriarchy Which Is Not One: The Ideology of Marriage in Rashi and Tosafot’,25 suggests the non-essential nature of patriarchy by undoing any perception of its unity. He shows that marriage was not a monolithic concept within Jewish tradition and that different understandings about it were maintained. This book is a constructive feminist project that utilizes feminist scholarship to transform gender hierarchy created through marriage. Although this book uses religious material as a basis for feminist critique and exploration, there is absolutely no assumption that religion is the cause of all women’s subordination in the world.26 Instead, this research in fact recuperates the possibility of change and dynamism within religious frameworks by using rabbinic texts as its primary material. Making generalizations about women in religion can amount to the denial of women’s agency in the way they come to make meaning in their lives in general and in relation to their religious lives in particular. While agency is important, we need to interrogate our ideas about agency. Saba Mahmoud’s work on women’s agency in contemporary women’s movement for mosques in Egypt is instructive. She argues that we tend to equate agency with resistance to domination and with the triumph of individual rights over group norms and customs.27 Judith Tucker further elaborates on this idea of reframing women’s agency in broader terms. She says: They have not embraced, by and large, an adversarial form of agency but rather have participated in the legal system in a variety of ways, both asserting rights and accepting to fulfil duties and obligations. Our understanding of their actions is not advanced by assuming

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Tradition and Equality in Jewish Marriage that this bespeaks a false consciousness that promotes collusion with patriarchy; rather, I want to proceed in this study of the law with female agency, and the ways in which women have apprehended the relation between the law and their own fulfilment in life, as open questions. 28

Working from the biblical context to the rabbinic one, Rabbi Judith Hauptman also provides a model for how law and practices changed throughout time. Her book, Rereading the Rabbis: A Woman’s Voice addresses laws related to women in marriage including divorce, rape, inheritance and testimony. ‘On the one hand,’ she argues, the rabbis operated in a patriarchal framework and continued to treat women as secondary to men; and on the other, they instituted many significant changes to benefit women. Although at any given moment in time Jewish law assigns women fewer rights and lower status than men, not always treating them as well as surrounding cultures, when we trace developments in Jewish law over time we see distinct movement, in a wide variety of local and social institutions, from lesser status for women to greater.29 Hauptman sees this development as evident in relation to marriage laws so that ‘marriage, which used to involve the purchase of a woman by a man from her father became, in rabbinic times, a form of “social contract” entered into by the bride and groom’.30 At the end of each of her chapters, she summarizes how she thinks the rabbis made the particular issue better for women. She says: Although we cannot say that the change approximated treating women equally with men (which is probably the goal of much legislation within Jewish circles today, particularly in the area of marital law), the inescapable conclusion is that the general thrust of rabbinic legislation regarding marriage still seems intended to confer, or at least had the effect of conferring, more rights and benefits on women and on men at the same time. This is not a circumstance in which the more they give the woman, the more they deny the man, but rather one in which the more she gains, the more he gains.31 Hauptman has miscalculated the benefits that rabbinic marriage legislation accrued to women. There is a stark way in which the more autonomy the woman has in marriage and divorce, the less control the man has. If

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the woman can be divorced on will, then the man cannot withhold divorce against the women’s will. It is also important to note, as Moshe Halbertal has shown in his book Interpretative Revolutions in the Making: Values as Interpretative Considerations in Midrashei Halakhah, that the rabbis were engaged in an interpretative project that actively embodied their values and judgements.32 If we look only from the rabbinic layer of legal history and not in relationship to the Bible, we actually miss the rabbinic overlaying of biblical ideas in the sphere of the family and the status of women. Although not all the changes supported women’s dignity and autonomy, we see that the rabbis lessened the centrality of the paterfamilias and integrated ideas of contract that combined to form marriage as we know it today. Miriam Peskowitz problematizes the categories with which we look at rabbinic texts in a useful counterbalance to Hauptman’s approach: And when we scrutinize these traditions, what do we look for and how do we look? Do we proffer examples of misogyny, sexism, and other gender-based oppression of women? Probe for systematic gender hierarchies? Highlight moments of sympathy? Do we sketch the familiarities of the quotidian? Locate ironies? Note male projections of women? Find moments when women resisted oppression, with the knowledge that these moments come to us mostly through the writings of the men they were resisting in the first place?33 And the list goes on. There are many ways to do feminist readings of rabbinic texts and different implications flow from the choices that are made, both in terms of content − which texts to address − and in terms of methodology − how one approaches the text in question. Despite the importance of highlighting structural impediments, the danger of focusing on the extent to which gender subordination is structural is that women’s agency could become invisible and power imbalances inadvertently reinscribed in narrow terms that reproduce hegemonic ways of seeing and classification. Thus it is important to note that studies of this nature should also include representation of women as sexual subjects as well as women as sexual objects.34 Most recent research in this area of Jewish marriage and divorce has focused on the problem of women who have been denied get ( Jewish divorce) by their husbands. These women become unable to remarry and have children with another partner without dire consequences for the children in terms of Jewish law. Therefore, research has focused on trying to bypass intransigent husbands and their failure to grant a divorce. Strategies

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range from retroactive dissolution of the ‘mistaken’ marriage due to a reconstructed lack of consent at the time of marriage,35 the formation of ‘marriages’ that do not require Jewish divorce and also the prerequisite for marriage of having a pre-nuptial agreement. The Agunah Research Unit (ARU) of Manchester University was established in 2004, and released a draft final report Agunah: The Manchester Analysis in July 2009 (Hereafter referred to as ARU Draft Final Report). The ARU was headed by Professor Bernard Jackson and had several doctoral and post-doctoral fellows working on solutions to ‘chained women’. The ARU Draft Final Report is a detailed document that addresses predominantly formal legal elements in creating a ‘set of solutions which solves the problem for all, although not necessarily by the same means’.36 ARU has looked for a ‘global’ set of solutions in order to preserve the capacity for intermarriage between modern and ultraOrthodox communities not withstanding their difference in halakhic practice.37 Jackson argues that the rationale for this is that Orthodox courts will permit remarriage (without a get) to women whose original marriages were non-Orthodox.38 This is a mixed blessing. On the one hand, the adoption of a stricter definition of what constitutes marriage is good for avoiding the creation of ‘chained women’ because in the case of recalcitrant husbands there can be a halakhic determination that no Jewish divorce is necessary because, in deed, no marriage took place. On the other hand, the denial of non-Orthodox marriages as marriages is dogmatic and offensive, especially when people see themselves as religiously married but then become subject to someone else’s definition of what that entails. A similar question about the halakhic status and requirement for a Jewish divorce also arises with respect to the status that would be given to Israeli civil marriages were they to be established.39 While I sincerely commend their efforts and hope that their analysis will reach the minds and hearts of the religious court judges making decisions about ‘chained women’, erroneously yet understandably, this report places all emphasis on the formalistic elements of the problem.40 The effort required to get a thin unanimity – finding a solution that would be amenable to several key major Orthodox rabbis – evokes two major concerns: First, we need to ask how claims for fairness and righteousness need to be tempered in order to cater to the highest common denominator and find a solution that everyone agrees with? And secondly, because of the nature of the report, the problems of the acquisitional relationship remain largely unaddressed. The focus on formal legal rules as a solution entrenches the normativity of the rules of marriage. In addition, perhaps a more global all-encompassing solution for all Jews would be to change the laws of

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mamzerut (illegitimacy) which would in turn help relax some of the laws of ‘chained women’ as well. On the second last page of the 210 page report, at §7.57, Jackson states: Couples contemplating marriage have both a duty to themselves and their unborn children to enter qiddushin on the basis of full knowledge of its possible consequences and an opportunity to contribute to the removal of the problems by the choices they make. Some will, in the spirit of altruism, undertake a degree of risk (but a known risk, given the measures of transparency we advocate) by entering an agreement of this kind; others will opt for no risk (an alternative to qiddushin) and will thereby contribute to the solution of the problem in a different way.41 Those who opt for traditional qiddushin without an agreement of this kind should do so in full realisation of the (different) risks they thereby incur.42 My book is thus a distant cousin of the work of the Unit. Where they have looked at the halakhic reasoning and interpretational history of different elements that could comprise a global solution for ‘chained women’, I focus on showing the inadequacy of kiddushin where ‘chained women’ are not the sole problem but a symptom of the main problem which is the nonreciprocal relationship that is at the core of the kiddushin . Jackson advocates for the ‘sanctity of qiddushin’. He claims that many couples return to Judaism through the exposure of this concept of sanctity and argues that the rabbis are short-sighted by not differentiating between religious and secular women and therefore not availing them of a generally acceptable solution.43 In addition he quotes Lubetsky’s, Ein Tenai be’Nissuin (No Condition in Marriage – later referred to as ETB) and the connection made between maintaining the sanctity of marriage and the opposition to liberalization of divorce.44 There must be a model of partnership and separation – where both partners have access to separation – and where sanctity is still possible. If this is not the case then ‘sanctity’ is in some perverse way linked to women’s lack of power subordination. The report demonstrates the degree of effort required to find ways to undermine the husband’s capacity to withhold a Jewish divorce from his wife. Besides the comment mentioned above, it does not talk about changing the model of marriage. This can probably be explained because of the intended audience of this paper who are Orthodox dayanim (religious judges) who want to take a stand on this issue but who are scared about the halakhic status of those couples they marry and divorce and the subsequent

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status of the children of parents who remarry after these divorces (or nondivorces and annulments – whatever the case may be). Another relevant publication that does address alternatives to marriage is Zaakat Dalot (The Cry of the Wretched), published in Hebrew and edited by Rabbi Diana Villa and Rabbi Monique Susskind Goldberg, two Israeli scholars in 2006. It gives a detailed analysis of a range of proposals to prevent the problems of Jewish marriage and divorce from pre-nuptial agreements to conditional marriages, and other partnerships without marriage.45 Below I refer repeatedly to this publication. This research in Jewish marriage and divorce, aimed primarily at the agunah problem, has been complemented by the development of not for profit organizations with advocacy, support and research roles in relation to easing the hardship of women stranded by recalcitrant husbands. In addition, in 1990, the Israeli Orthodox Chief Rabbinate, partly in response to some of the challenges of these issues, permitted women to train and serve as pleaders in the rabbinic courts. This has also helped to support women’s rights in the courts.46 But even before problems of unequal marriage and divorce were acknowledged as unequivocally as they are now, Jewish marriage, per se, has been the subject of Jewish legal research. In addition, as one of the building blocks of Jewish community and what is considered to be the foundation of Jewish families, Jewish marriage has been documented as a significant religious and cultural ritual and practice. Studies of marriage, ketubot (marriage contracts) in particular, have been one of the significant prisms through which historians have been able to find out more about Jewish communities, particularly with regards to research of the documents from the Cairo Genizah and their exposure of some of the differences between the ancient Palestinian Jewish community and the ancient Babylonian community.47 As previously mentioned, the question of authority is one of the major questions underlying my research. There are scholars who focus on using earlier precedents to enact modifications to marriage practices. They include Rabbi Aviad Hacohen, Rabbi Shlomo Riskin and Rabbi Michael Broyde. Bernard Jackson addressed this issue directly in ‘The Agunah and the Problem of Authority’.48An example of the way in which the question of authority impacts the capacity of contemporary rabbis to make changes is the controversy surrounding the establishment of the Rackman Beit Din and the proposal to free agunot on the basis of the determination of their marriage as mistaken because of lack of consent.49 Hacohen’s book promoted similar controversy in that it advocated the use of ‘mistaken

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marriage’ (kiddushei ta’ut) as a category to retroactively nullify marriages where men refuse to give divorces to their wives. 50 This is also the approach that has been taken by Conservative Batei Din (Religious Courts).51 As a progressive feminist theologian, Rachel Adler in Engendering Judaism: An Inclusive Theology and Ethics displays freedom of engagement with the sources that does not undermine her commitment to her dual loyalties of engaging with the tradition – wrestling with it until it blesses her (like Jacob and the angel) – and the creation of a Jewish feminist sexual ethics.52 Within the continuum of literature on Jewish marriage there are two broad categories: literature that discusses Jewish marriage in a non-problematized fashion53 and literature that addresses the ‘problem’ of Jewish marriage, most of the latter being a function of greater awareness and publicity about the plight of women stranded in marriages. There are also other texts, such as research emerging from manuscripts in the Cairo Geniza that document ancient marriage contracts and show how there has been shifts in ways of understanding marriage evidenced in that case through the differences in marriage contracts.54

Jewish marriage and legal categories Comparative law provides an interesting perspective about Jewish laws of marriage.55 In The Theory of Marriage in Jewish Law Rabbi Kopel Kalman Kahane introduces the important issue of comparative English law and shows that marriage was seen as sacrament until 1850 and was very inequitable to women. For example, a woman was not permitted to initiate divorce or to retain her own property and was at risk of domestic violence that was not prohibited by law.56 Although his approach may be too apologetic in certain respects, in that he compares rights of wife at Jewish Law to rights of wives at common law, it is useful to contextualize some of the problems of kinyan (acquisition) that are the subject of our investigation. In contrast to the historical English law that Kahane mentions, traditional Jewish law does provide for women to own their own property, and it also allows for divorce under certain conditions.57 But on the other hand we have seen how secular family law, throughout the western world, has changed as social awareness has changed: Rape in marriage became a crime, women began to be able to have their own possessions whereas, as a traditional legal framework, Jewish law has struggled with structural change. An example of this is in the relative lack of effective rabbinic initiative to alleviate the plight of ‘ chained women’.

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Is Jewish marriage an acquisition?: Survey of some modern literature In his extensive analysis of kinyan , Kahane emphasizes that while women may not have been treated in all respects equally to men, they remained free after marriage and that the change is merely one of status. Rejecting the idea of acquisition, he struggles to find a reason for the exchange of money in the act of Jewish marriage. 58 He concludes that the function of money in the betrothal is ‘neither as a value payment nor as a vehicle, but as a means of providing current enjoyment at the moment of betrothal’. 59 Kahane explicates two views of marriage which are in conflict with each other and from which he distinguishes the Jewish view of marriage. One idea is of marriage as a sacrament created by God and only dissoluble by death, and the other as ‘no more than a voluntary association of man and woman created by their own personal agreement so as to be purely a matter of contract’.60 He argues that in Jewish law, marriage is clearly a human institution, albeit one with religious significance. Despite this fact, it is not akin to contract, even though it can be terminated through mutual consent, notwithstanding potential for male recalcitrance. Kahane argues that most important Jewish medieval legalists such as Rabbi Shlomo Yitzhaki (Rashi), Rabbi Shlomo ben Aderet (Rashba), Rabbi Moses ben Maimon (Rambam or Maimonides), Rabbenu Nissim (Ran) and Rabbi Menachem Meiri (Meiri) all state that the wife is in no way the property of the husband.61 (Despite this, power inequality is still entrenched in many ways – see especially in Chapter 3, Section on ‘Rape in marriage’.) As well as bringing two examples of their statements, Kahane also gives logical reasons deduced from a comparative analysis of marriage and ownership to show how they are not the same. First, he brings the commonly used differentiation between women and other property based on the fact that women cannot be sold once they are ‘acquired’ by their husbands. According to the logic of this argument if women were owned like cattle or property, they should be transferable. The second reason is the difference in the role of the witnesses. Kahane points out that even if there are no witnesses to a sale, it is still valid whereas in marriage witnesses are legally an essential part of the ceremony. If there are no witnesses there is no valid ceremony, however strongly the partners wish it or agree about it.62 As a final move, Kahane attempts to differentiate between the wife as a person and the notion of ‘wifehood’ as an institution. Thus he concludes, in a way similar

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to Judith Romney Wegner, that ‘the husband’s ownership does not exist over the person of the woman but over her wifehood’.63 Wegner argues that ‘whenever a man owns, acquires or disposes of a woman’s sexuality, the law treats the woman as chattel for that purpose. . . . When something other than ownership of her sexuality is at stake, the law treats the woman far more like a man, namely as a person.’64 As the preceding discussions make clear, Jewish marriage can be seen as being comprised of two, sometimes competing, legal concepts. One concept is of marriage as a contractual arrangement and the other is of marriage as a change of the woman’s status where she becomes eshet ish (wife of a man) and where the man becomes her sole sexual partner. Kahane says that ‘The creation of marriage evokes, at the same time, two distinct relationships. On the one hand there is a prohibition of the woman to the world, and on the other, her permission to her husband.’65 We see clearly here that marriage is understood both as an agreement between the two parties to the marriage and as something that is important to the whole community. The whole community is impacted through marriage in terms of the recognition of the newly initiated exclusive sexual relationship between the parties as well as through the question of succession through children and guarantees of their issuance from a ‘sanctioned’ union. Mirroring Kahane’s analysis of two components of Jewish marriage, Rabbi Emmanuel Rackman shows, in his article ‘Ethical Norms in the Jewish Law of Marriage’, how the categories of contract and status interact with each other in the advent of marriage. The term hekdesh or kiddushin applies to items that have been consecrated for priestly use in the temple. Rackman argues that it is through the use of contract that a safeguard was built into the law requiring the woman’s unequivocal consent. He says ‘thus by the rather mundane-sounding law of sale, rather than the loftysounding law of consecrated things, a further safeguard was built around the woman’s unequivocal consent’.66 However I argue that this ‘contract’ that requires the woman’s consent, is also the same ‘contract’ that results in her ‘acquisition’. Although this book critiques the acqusitional ‘law of sale’ in marriage in general terms, it is also possible to see the benefit of the law of sale as contractual. This is especially positive in contrast to the law of consecrated things because the ‘law of sale’ requires consent in a way that the law of consecrated things does not: ‘sales consummated by mistake with regard to the object sold or the price paid, or sales consummated on conditions which remain unfulfilled, can be rescinded’.67 It is rather ironic that Rackman

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uses the analogy of a sale of goods while simultaneously refusing to call it an acquisition. The conceptualization of marriage as a matter of status as well as contract is, in his terms, a necessary limitation on the concept of consent because parties may agree to conditions and representations that make the institution of marriage very unstable. Any model of marriage needs to have both some flexibility and stability.68 Enough flexibility that no one partner has to be trapped in a marriage that she wants to leave but stable enough that it is not too easy to be able to leave in the heat of a moment or for the wrong reasons. This balance between flexibility and stability is another way of characterizing the positive function that the laws of marriage and divorce fulfil. This function has been called a ‘taboo’ by Rabbi Elisha Ancelevits in his project to ascertain the reasons why the rabbis established Jewish divorce as a one-sided opportunity only available to the man.69 In what could be read as an opposing view to Rackman, Rabbi David Weiss Halivni focuses on the consecration element of marriage. He argues that the marriage is only called a kinyan – meaning an issue of contract – when it is introduced with a range of other ‘saleable’ items and when it is by itself is referred to as mekudash – referring to an issue of status (as far as the terms elucidated above indicate).70 Weiss Halivni limits the significance of the usage of the word for acquisition for the marriage relationship as a mere literary convention with little substantive relevance. Whereas Rackman prioritizes the consent aspect of the contract or kinyan , Weiss Halivni tries to minimize it and interpret it out of existence so that he proves that the main idea of getting married is encapsulated in the mekadesh (sanctification) idea and that kinyan (acquisition) only appears in contexts where there is not a regular marriage. Whereas Rackman extracted the importance of consent from the contractual idea of marriage, Weiss Halivni minimizes the contractual and thus the acquisitional element by relegating the acquisitional element to a mere linguistic turn and nothing more. He concludes, ‘this usage is merely stylistic and devoid of any institutional significance’.71 Below, I show how this interpretation does not hold water, because the context of relationships in which marriage is situated cannot be ignored and reduced to issues of stylistic consideration, as Weiss Halvni suggests. And even if one was to accept his analysis, later rabbis use acquisitional concepts to justify their rulings around limiting divorce and women’s autonomy in other areas, as I show below in Chapter 3. The significance of the difference between Rackman and Weiss-Halivni should be underscored. Whereas Rackman uses the concept of the acquisition as contract to emphasize the consent it requires, Weiss-Halivni denies the contractual elements of the marriage and chooses to focus on its nature

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as related to holiness and being ‘set aside’. This notion of the woman being set aside from other men originates in the term kiddushin and the related term for those items reserved for temple use being hekdesh . Weiss-Halivni’s analysis is untenable because it attributes no significance to the term of kinyan or acquisition and thus ignores the consequences for the woman and for the marital relationship that are set in motion after the marriage as I detail in the Chapter 2. In contrast to playing down of the idea of the woman being acquired by the man, Louis Epstein claims that the husband’s duty to support his wife arises from the conception that ‘he owns her as he owns his slave’.72 To support this argument, he demonstrates how the tannaim (early rabbis from about 70–200 ce) use the verse in the Bible that discusses the rights of a female Hebrew slave to infer rights of a free-born Jewish wife. In stark contrast to this characterization of marriage by Epstein, Kahane insists that ‘no notion of ownership of the wife as a subject of property ever applied in Jewish law’.73 He points to the differences between how a slave is freed and the issuing of a get to a woman to show how different from each other the situations are. Epstein cites several classic commentators who argue that a woman is in her own possession or domain as far as marriage is concerned, and that if she is divorced a get is required not to transfer her to her own domain (because she is already there) but rather to change her to single status. In Epstein’s view, this ‘new status is that of being prohibited to all others, but allowed to him’.74 Epstein tries to argue that it is not the person of the woman that is acquired but rather her ishut or wifehood. This is no different to the distinction that Wegner makes about how women are seen as their own people except in the spheres of sexuality and reproduction. Epstein is contending that what has been acquired by the man in marriage is his wife’s sexuality and reproduction but her full humanity may not have been acquired as in the case of a slave. Absolute ownership need not be the defining factor of acquisition. In ‘Principles of the Jewish Law of Property’, George J. Webber acknowledges that as well as absolute ownership, kinyan (acquisition) can confer ownership for specific purposes.75 Perhaps this is a model of acquisition and ownership that more accurately describes traditional Jewish marriage. For example there is kinyan perot (acquisition of the fruits) where A sells B land for its fruits but A retains ownership of the land, or kinyan lezman (temporary acquisition) where A sells B land for a given amount of time which is considered a sale for a period rather than a lease.76 Rabbi Michael Broyde argues that ‘one cannot really judge the stability and attractiveness of the marriage doctrines in any system without looking

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at the exit rules’.77 Therefore one needs to look at the laws of divorce in an analysis of the nature of the marriage relationship. This is addressed in more detail in Chapters 2 and 3. Unequal exit opportunities for men and women in marriage constitute one defining aspect of classifying marriage as acquisition.

Background of marriage: rabbinic construction of gender Despite the acknowledgement of the plurality of representations of patriarchy and its counter-narratives, two major elements of rabbinic tradition have both been responsible for and bolstered the construction and separation of gender roles in traditional Judaism. I am discussing this now because it provides the ideological backdrop within which a patriarchal non-reciprocal model of marriage can ‘comfortably’ reside. One element has been the emphasis and cultural centrality of the study of Torah (specifically Talmud) which was responsible for creating an exclusionary cultural hierarchy. Until 20 years ago it was exclusively the domain of men. Judith Plaskow argues that women have rarely participated in the formulation of sexual norms and values in the major world religions, and that religious sexual values have seldom been conducive to the health or well-being of women.78 The other major element and point of distinction is the difference in ritual obligation and status between men and women in halakhic Judaism. This distinction in obligation also translates into a range of other sociological and ideological gender-differentiated practices. In the last 20 years and in direct proportion to the gains of Jewish feminism, the difference in ritual obligation has been overlaid with an ideologically conservative ‘social policy’ which ascribes particular holiness and importance to the rigidity of gender roles and the necessity of this structure in order to maintain the Jewish family.79

Exclusion of women from the central cultural practice of learning Torah Not only were there no women scholars or women’s opinions recorded by the main rabbinic texts, but women did not have access to study these rabbinic texts. Some sources argue that it is forbidden to teach women Torah.

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For example in a Mishnah that discusses the effects of the bitter waters that test whether or not a woman has been adulterous, the same text mentions how merit protects the woman. One sage uses this as a reason why the daughters should be taught this particular law but then another sage uses this as a reason why the daughter shouldn’t be taught the laws at all. In Mishnah Sotah 3:4, Rabbi Eliezer says that ‘Anyone who teaches his daughter Torah teaches her lewdness.’ Daniel Boyarin argues that the exclusion of women from the practice of learning Torah is the basis of the maintenance of male power and social hierarchy. He says it is ‘a means for the maintenance of male powerstructure via the symbolic exclusion of women from the single practice most highly valued in the culture, the study of Talmud’.80 But it was not only a legal argument that separated women and Torah study. Boyarin documents a fascinating battle of desire where men are torn between their love for the Torah and their love for women, or in some cases, simply their obligation to reproduce.81 Mainly, women were responsible for the domestic and economic elements of the family and men were responsible for the scholarly pursuits of the family. To be sure, the woman attained the merit for her husband’s study achievements, and in some circles, still does. Torah study is also a positive ritual commandment that does not have a prescribed time or amount but is ongoing. The rabbis interpreted that women were exempt from this commandment. Before noting the significance of the difference between men’s and women’s obligations in Jewish law, I will briefly address the significance of obligation in Jewish law. Robert Cover argues that Jewish law is predominantly about obligation and not about rights.82 Whereas the modern understanding of the centrality of the social contract implies the commensurate degree of autonomy and rights, he argues that the centrality of Sinai and the understanding of Jewish law as a sacred inheritance imply the notion of heteronomy.83 Given the predominance of the concept of obligation over that of rights, it follows that arguments for bolstering women’s participation in ritual life and leadership need to be based on expanding their obligation (through showing that they already are or should be equally obligated) rather than on a discourse about rights.

Exemption from time-bound commandments One of the overt legal ways in which women’s role is demarcated from men’s is in the difference between their ritual obligations. Women are exempt from time-bound commandments with some exceptions.84 One

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understanding of this exemption is that the woman, like the slave who shares the same exemption, cannot be serving two masters at one time and that the fulfilment of a time-bound ritual may conflict with the tasks that she has to perform as wife or slave respectively. This understanding of the exemption is proposed by medieval sage Rabbi David Abudarham (Seville, Spain ~1340) in his Sefer Abudarham: The reason that women were exempted from time-sensitive mitzvot is because the woman is enslaved (mishuabedet) to her husband to fulfil his needs. And if she was obligated in time-sensitive mitzvot then it would be possible at a time when she was doing a mitzvah that her husband would command her to carry out his mitzvah and if she was carrying out the commandment of the Creator she would have to leave aside the husband’s command, then she would have trouble from her husband. And if she would follow her husband’s command and leave aside the Creator’s command then she would be in trouble with her Creator therefore her Creator made her exempt from His commandments so that she can have peace with her husband. Women’s exemption from time-bound commandments is a rabbinic construct, as opposed to a biblical concept. Despite this the rabbis draw on biblical texts to bolster the three main commandments of hallah (taking portion of bread), niddah (menstruation laws) and lighting Shabbat candles that are given to women and detailed in Mishnah Shabbat 2:6. It is significant that in the excerpt above, despite its rabbinic origins, Abudharam attributes the rationale to women’s exemption from time- sensitive commandments to the Divine. He says, as quoted above, ‘therefore her Creator made her exempt from His commandments so that she can have peace with her husband’. Several rabbinic accounts of the exemption follow this logic. Although eventually discrediting the possibility out of hand, Rabbi Baruch Epstein (The Torah Temimah 1860–1941)85 states that if the husband gives her permission, he could theoretically give up on his exclusive charge on his wife and then she would also become obligated in time-bound mitzvot .86 The construct of pitting the husband and God against each other in terms of the authority they yield over the woman is based on a certain interpretation of the ‘time-bound’ commandment. This paradigm doesn’t apply to those rabbis who have a different account of the definition of timesensitive commandments. An example of a different definition is that of Rabbi Aryeh Leib ben Asher Gunzberg (Turei Even) who has an alternative

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interpretation for time-dependence as it applies to commandments. It is in response to the Tosafists trying to deal with the inconsistencies in the application of this principle that the Turei Even proposes an alternative definition of the time-bound commandment. He says that time-bound commandments are those that have a fi xed time to the extent that when the time passes, the mitzvah is not valid anymore. For example, in relation to the commandments of shofar (hearing ram’s horn being blowed) and Succah (sitting in a booth), when the time comes around the next year, the obligation is activated again but there is no way to compensate for the initial non-fulfilment of the commandment. The Turei Even compares this with the mitzvah of semichah (laying hands on a sacrifice) that the Torah commanded be fulfilled in the day and not the night, but the passing of the night does not totally nullify the commandment, but rather it is evoked again through the rise of the day. Similarly with circumcision that is obligated on the eighth day. The passing of the eighth day does not nullify the commandment, but from the eighth day onwards the commandment stands until it is fulfilled. This is a very different definition. It is somewhat strange or counter-intuitive that mitzvot as time-specific as the circumcision and also the counting of the omer are not considered time-bound in this interesting perspective. This exemption of women from time-bound commandments, as it is usually understood, has other ramifications because the corollary of obligation is the capacity to be able to discharge the obligations of others. For example, if one recites the Kiddush – blessing over the wine – and another person hears it, can the recitation also discharge their obligation to do the same ritual or do they have to do it again themselves? Mishnah Rosh Hashanah 3:8 cites explicitly that someone who is not obligated in a ritual cannot discharge the responsibilities of others who are obligated. Most Ashkenazi halakhic authorities (led by Rabbenu Tam) agree that those who are not obligated can voluntarily perform most of the rituals and there are ensuing discussions about the relative merit of this ‘voluntary’ assumption of responsibility.87 Rabbinic sources also create distinction on gender grounds through the role demarcation between husband and wife. The marital duties owed to the woman by the man as enunciated in the Bible but developed by the rabbis include clothing, food and sex. Mishnah Ketubot 5:5 details the chores that a woman does when she is married; These are the tasks that the wife performs for her husband: she grinds and bakes and launders; cooks, and nurses her child; she makes his bed,

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and works in wool. If she brought him one slave – she need not grind, or bake, or launder; two slaves – she need neither cook, nor nurse her child; three – she need not make his bed, nor work in wool; four – she sits in a soft seat. Rabbi Eliezer says, Even if she brought him one hundred slaves, he compels her to work in wool, for idleness leads to unchaste behavior. Rabban ben Gamliel says, Even if one prohibits his wife by vow from doing work – he must divorce her and give her the value of her ketubah (marriage contract), for idleness leads to boredom. The ideal woman is circumscribed to the domestic and child-rearing realm, as the ideal man is called to the House of Study to learn Torah. As is evident from the list of duties above, the ideal marriage in rabbinic Judaism, similar to other societies past and more recent, is based on a rigid social distinction and role demarcation between genders. The marriage relationship in the rabbinic context is premised on the structural division of roles between women and men. Although these ideas may have gained theological currency in certain communities and according to certain teachings there is nothing in the body of Jewish law that particularly mandates that marriage or gender roles have to always mean the same thing or look the same way.

Other alternatives to marriage This part gives a brief account of three different alternatives to traditional marriage: Brit Ahuvim (Covenant of Lovers), Annulment and Reinterpretation. Brit Ahuvim , as discussed below amounts to the development of a new model of partnership. Annulment is not an alternative to marriage per se but is a legal mechanism whereby the rabbis can activate their power to rescind a marriage. And reinterpretation, gives new meanings to the same marriage while making minor shifts within the comfort zone of the presiding modern Orthodox rabbi.

Brit Ahuvim Another alternative to Jewish marriage is the sanctification of a relationship that does not rely on particular halakhic precedent and authority. Such a model is suggested by Rachel Adler. Unsurprisingly Adler, as a feminist Jewish theologian who has journeyed between Jewish denominations, has

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other concerns aside from male religious authority as paramount in her analysis of Jewish marriage. In her ground-breaking study, Engendering Judaism , Adler offers yet another model for partnership, Brit Ahuvim: A marriage between two equal subjects. She proposes to retain most of the traditional ceremony except for the kinyan aspect. She is not concerned about making her proposal fit within halakhic language and logic. In fact as Adler describes it, it could be said that because halakhic marriage has to be unilateral, she needs to find a model outside it. The requisite acquisition in halakha can only be seen to have taken place when there has not been a mutual exchange but rather a unilateral procedure. Speaking within her estimation of the internal logic of the one-sided nature of the marriage she explains that in a traditional marriage the woman has to be acquired because it is the woman who undergoes the status change. As she points out; What all legally acceptable transactions have in common is that they are unilateral acts. Marriage cannot be initiated by the woman (BT Tractate Kiddushin 4b), nor can it result from mutual exchange (3a, 6b). The man cannot acquire her with a loan or a conditional gift (6b). He cannot bestow himself upon the woman, he has to say ‘you are mine’ and not ‘I am yours’ (6b) Processes in which both parties are active participants are explicitly rejected.’88 In her survey of ketubot from the Cairo Geniza, Adler finds that documents reflecting the Palestinian tradition (as opposed to the Babylonian tradition that form the more authoritative basis of the rabbinic laws) have the provision for a husband to grant his wife a divorce upon her request irrespective of his own wishes.89 This is documented by Mordechai Friedman in ‘Developments in Jewish Marriage and Family Law as reflected in the Cairo Geniza documents’.90 Prior to Adler, Wegner had already provided an analysis of the ambiguous status of women in the rabbinic sources in her study, Chattel or Person: The Status of Women in the Mishnah . According to Wegner’s analysis, in certain respects women are considered as religious subjects, however, when it comes to sexuality and reproduction women are considered to be chattel. She says, The rules treating the wife as chattel had a common denominator: all involved the protection of a husband’s exclusive claim on his wife’s

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sexuality . . . unless the wife challenges her husband’s ownership of her sexual function, the sages invariably treat her as a person in all matters of private law.’91 Although their work responds to similar problems with the existing structure, neither Adler nor Wegner are concerned to find legal alternatives that correspond to a certain notion of rabbinic authority and found within the halakhic system that meet the challenge of their analyses. In contrast with their work, this book proposes to engage models within the halakhic system through precedents and legal commentaries that provide clues about possible alternatives to kiddushin as well as those that help us understand the distinct nature of kiddushin.

Undermining the tav le metav presumption92 and annulment Between acquisitional models of marriage and Adler’s Brit Ahuvim is a model evoked in Ruth Halperin-Kaddari’s ‘Tav Lemeitav Tan Du Mi-Lemeitav Armalu : An Analysis of the Presumption’ (better to dwell two together rather than dwell as a widow). This rabbinic presumption that Halperin-Kaddari analyses, implies that a woman would accept almost any partner rather than remain unwed. It has its basis in the Talmud. The discussion about the validity and status of this presumption reflects a debate that applies to many rabbinic dicta. Some contemporary rabbis see rabbinic presumptions as being ahistorical and eternally binding, describing an existential reality.93 Others understand them as relating to the social context in which they arose. The latter understanding allows an analysis of the merits of each given situation to determine if the presumption would apply. This latter view sees them as more descriptive than prescriptive and hence they can be refuted if they do not apply. It is because of this particular presumption, which some rabbis still hold to be true, that they claim that even if a woman knew certain facts about her husband before they married, she would still have agreed to be married because as the presumption dictates, a woman would be satisfied easily with a partner rather than having to be alone. Therefore, this presumption is used to deny the possibility of saying that the marriage was never actualized due to lack of consent. Those authorities that consider the presumption valid, bar women from denying consent on its account. However, those who argue that the presumption is not true may find other valid reasons

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for not allowing retroactive marriage invalidation, even if they agree that it is possible that the woman’s consent to the marriage may have been problematic. Halperin-Kaddari understands this presumption as an example of the potential of contractual analysis of halakhic marriage. Willingness to acknowledge that there may be cases where a woman would not have consented to a particular marriage were she to have known what it was going to involve, provides some potential fluidity regarding how marriage is viewed. For example, if a rabbinic authority is willing to accept that rabbinic presumptions can be nullified in some situations in which there is conflicting evidence, then women could perhaps be considered unconsenting if deceived by their spouse with regard to his character. In such a case the marriage could be nullified on the basis of it being a mistaken marriage (kiddushei ta’ut). Halperin-Kaddari suggests ways to militate against the one-sidedness of the marriage without the requirement of a new and improved replacement model of marriage. She suggests redefining parties’ intentions and undertakings as well as undermining the tav lemetav presumption so that the procedure of the Jewish divorce can be bypassed and any potential problems of chained women (agunot) can be totally avoided.94 Linked to the concept of a mistaken marriage that is nullified because of lack of consent, is the concept of annulment of marriage, a power invested in the ancient rabbis that allowed them, by their word, to nullify marriages. The main difference between the concept of annulment of marriages as mandated by the rabbis and annulment due to mistaken marriage is that in the former case the marriage is and has its basis in the Talmud and has been used by Conservative Religious Courts since the 1960s. Riskin also advocates for hafkaah (annulment) as a way of undoing the marriage.95 Whereas Feldblum is suggesting a retroactive invalidation of the marriage due to error or false pretences, Riskin discusses hafka’at kiddushin (uprooting of marriage) which is the annulment by the Jewish legal court of a marriage that was previously considered valid.96 The Talmud’s examples of the rabbinic capacity to uproot marriage can be divided loosely into two main categories: one, where the marriage is invalidated shortly after it’s commencement due to technical issues; and two, where the rabbis use their power to annul marriages to allow for a divorce in the case where despite the existence of a bill of divorce, there is some problem with the divorce or its delivery that would otherwise invalidate the divorce, thereby resulting in the maintenance of the marriage.97

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Adaptation of traditional marriage There are at least two possible responses to a problematic situation: one is to change the situation and the other response is to change how the situation is perceived and interpreted. An important, although limited, alternative to new models of marriage is the adaptation practice of women who are getting married in the traditional way but who come to novel understandings of marriage and the surrounding rituals in order to lessen the sense of dissonance in their confrontation with the tradition. The need for adaptation strategies is most pronounced among women in Orthodox communities or more generally to women who are limited to having an Orthodox marriage for whatever reason. Other women who question traditional Jewish marriage often opt for a civil or non-Orthodox marriage. This choice does not exist for women in Israel where civil marriage does not exist as an option and where the only marriage for Jews is an Orthodox Jewish marriage. This model of adaptation and interpretation is a very different approach from the feminists who want a fundamental revision of marriage. Many women are seeking to make a range of significant changes within Orthodox marriage ceremonies as a response to their discomfort with the current practices. Some of these changes relate to things that are actually done and others relate to the way that the women think about marriage and associated rituals. Both of these categories of religious practice and interpretation/intention influence and transform the experience of ritual. These changes are well documented by Irit Koren in her article ‘The Bride’s Voice: Religious Women Challenge the Wedding Ritual’.98 All the women except one in her small South Jerusalem study were able to have their marriages certified by the Israeli Rabbinate. This factor is particularly significant given the situation in Israel where there is no civil marriage and the only marriage available is by Orthodox rabbis, as mentioned above. The changes they suggested challenged some guests and extended the comfort zones of some presiding rabbis. However all these cases preserved the model of the kinyan (acquisition).99 Koren offers a fascinating analysis of the different interpretative strategies of marriage employed by these Orthodox women, including symbolization, imposing personal meanings and plainly seeing the act as oppressive.100 She provides an interesting window into the way that Orthodox women live with the dissonance that emerges between their religious lives and their other values. The strategies that these women employ range from creating new interpretations to rituals that sit more comfortably with their other values as well as changing small parts of the ceremony

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to make things more egalitarian. These changes are done within a context of maintaining the traditional form of acquisitional marriage. They include: inclusion of more women in speaking roles under the chuppah; woman giving the man a ring after the main ceremony; man and woman circling around each other instead of the woman circling around the man; women saying seven blessings after the feast meal; bride and groom stepping inside the chuppah together instead of her entering ‘his domain’ and, the bride responding with a sacred verse when she receives the ring from her husband instead of remaining silent. The next chapter maps out the legal constituents and effects of traditional Jewish marriage and shows the acquisitional elements inherent in it.

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Chapter 2

The Legal Effects of Marriage

Although some scholars have minimized and denied the significance of the acquisition of the woman by the man as the basis of betrothal (kiddushin), the non-reciprocity and acquisition-like nature of the marriage is a significant element in the relationship that can and should not be overlooked. Marriage is a unique form of acquisition unparalleled in both the acquisition of other property and in other forms of regulated human relationships. The acquisition of women in Jewish marriage is comprised of a systematic subordination of a woman’s legal status in relationship to her husband. Moreover, for Jews of the twenty-first century aspiring to notions of gender equity and mutuality in intimate relationships, this acquisition is problematic both for the unequal dynamic it creates, and also in terms of the possible legal consequences of women who are stranded in relationships when their husbands refuse them a divorce (mesuravot get). The kiddushin is the acquisition of the woman by the man that occurs at the first stage of marriage. Even though the marriage contract (ketubah) is not activated from this first stage, a divorce or death of the husband is still required in order to free the woman from this status. This chapter plays a pivotal role in the argument of my book because it shows the significance of the acquisition and its legal implications as developed in rabbinic texts. These legal principles by and large continue to form the basis of traditional Jewish marriage today. This chapter establishes that marriage is based on non-reciprocity, may indeed be an acquisition and results in a series of detrimental legal effects. The rabbinic material that I discuss is by no means exhaustive but it is illustrative of the multivalent nature of this institution and its representation in these texts. In addition where some of the sources have required more clarification or detail, or where there is contention as to their interpretation I have introduced some other commentators, usually medieval, to explore the rabbinic text in question.

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The remainder of the book examines ways to fully or partially bypass this acquisition after the necessity of this bypass has been established in this chapter. This question of bypassing the acquisition is significant only if indeed there is substantial reason to do so.1 This chapter includes both sources that refer to the actual process and procedure of the betrothal, and others that deal with the legal institutions that are subsidiaries of betrothal such as divorce and the sotah ritual. Any question concerning rabbinic sources on the nature of betrothal could use a vast array of rabbinic materials that would expand the endeavour beyond the scope of this project.2 The binding foundational elements of betrothal are made clear in the discussion of how a woman is acquired − and in the recognition that it is only when the betrothal or marriage ends that a woman ‘acquires herself’. Mishnah Kiddushin 1:1 states: A woman is acquired in three ways and acquires herself in two ways. She is acquired with money, or with a document, or through sexual relations. With money – the School of Shammai says, With a dinar or the equivalent of a dinar ; the School of Hillel says, with a perutah or with the equivalent of a perutah . And how much is a perutah ? One eighth of an Italian issar. She acquires herself with a bill of divorce or through the death of her husband. The levirate wife is acquired through sexual relations and acquires herself with halitzah (a form of divorce for the levirate marriage), or through the death of the levir. This foundational mishnah shows how the initial acquisition of the woman in marriage potentially necessitates the application of legal institutions beyond itself such as the institution of the Jewish divorce as well as making reference to the levirate marriage. The phrase ‘acquiring herself’ has been used as proof by those who deny the acquisitional character of the marriage.3 Even if the degree of control exerted by the man over the woman is comparably less than in the other acquisitions referred to in the same mishnaic chapter – such as the acquisition of cattle and land respectively – the male still acquires a significant degree of control in the acquisition of marriage. Rabbi Noam Zohar notes that the placement of this acquisition in the context of a mishnaic chapter detailing other acquisitions, sets the tone for the social hierarchy between men and women that the acquisition creates.4 In contrast, while Daniel Boyarin sees gender hierarchy through male access to learning Torah and women’s exclusion from Torah, he downplays the

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significance of the acquisition in marriage as part of this hierarchy. He argues that none of the legal definitions of ownership apply, such as the ability to use the acquisition whenever one wants and the ability to see and/ or dispose of it at any time. 5 Wegner has argued that although the woman’s full personhood may not be fully acquired, her sexuality and reproduction are acquired.6 According to her view this is why a woman cannot be used at her husband’s will or on-sold as per Boyarin’s argument, thus allegedly disclaiming the marriage as acquisition. Unlike Boyarin and Wegner, I think that marriage is a unique form of acquisition encumbered by the legal consequences that are demonstrated in this chapter, even if it lacks the legal characteristics that would be normally applied to the acquisition of land or movable objects. There is a connection between women’s social inferiority (reflected in the acquisition of betrothal) and their exclusion from the performance of religious rituals as elucidated in the second part of the first chapter of Mishnah Kiddushin.7 Mishnah Kiddushin 1:7 lists the ritual obligations required of men and women: All of the commandments of the son to the father, men are obligated and women are exempt. And all obligations of the father to the son men and women are similarly obligated. And all positive commandments that are time-specific men are obligated and women are exempt. And all positive commandments that are not time-specific men and women are similarly obligated. And all negative commandments, whether or not they are time-specific, both men and women are obligated except for ‘you shall not destroy’ [referring to beards], ‘you shall not round’ [referring to side locks] and ‘There shall none defile himself for the dead’ [referring to prohibition of priests to defile themselves for dead members of the community not their specific close relations]. It becomes apparent that there is a correlation between holiness and the obligation to perform commandments, ‘ just as a Jew living in the lands of lesser holiness has the misfortune of being excluded from the holiness of the commandments’, Zohar argues, ‘so too has the Jewish woman the misfortune of being (partly) excluded from the holiness of the commandments’.8 Perhaps also women are being used as a foil for creating privilege around male commandments that the less than righteous regular male Jew may otherwise occasionally experience as a burden on time and energy. The differences in obligation both reflect and further reinscribe social hierarchy as evidenced by the conflation of Jewish women and Canaanite

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slaves in the category of exemption. There are certain commandments that can logically exist as obligations for the free male alone because he only serves God (no one else) and he does it through these very commandments.9 Although some scholars have remarked on the peculiarity of the placing of the Mishnah about betrothal among other acquisitions of slaves and property, and also among a discussion about ritual obligations and levels of holiness, this ritual hierarchy purposively bolsters the social hierarchy created in the marriage process as well. Humans – women and slaves – are distinguished from other categories of property able to be acquired through their capacity to fulfil commandments (mitzvot). But even in this uniquely human capacity, the Mishnah shows that males are hierarchically distinguished from females. However this distinction between men and women through gendered marriage and through the differences in obligation for commandments is not necessarily based on the early rabbis’ commitment to gender essentialism, but rather social gender divisions that are more amenable to change in accordance with changing values and social realities.

The establishment of the relationship Investigating the legal details of the establishment of the marital relationship yields rich evidence of its non-reciprocal, if not, acquisitional nature. This can be seen in the non-reciprocity of the actual technical process of the betrothal. It also applies to the power of male speech acts where a simple statement of the man can give rise to an acquisition and where even a relationship of doubtful status still requires a divorce in order to free the woman to marry another man. Sexual intercourse is one of the ways that the rabbis state that a woman can be acquired.10 This part also explores the rabbinic presumption that sexual intercourse signals intent of marriage and its implications in terms of acquisition. Also explored is the institution of concubinage as a rabbinic construct that features sexual relationship somewhat freed from the acquisitional model.

Non-reciprocity of the kiddushin process Non-reciprocity is one of the most important elements in maintaining gender hierarchy. The non-reciprocity of the acquisition in marriage is guaranteed through the laws that regulate the actual marriage ceremony. Although the woman is required to consent to the betrothal, silence is

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considered to be her consent.11 Although this is a general rabbinic principle that silence is considered consent, this principle has potential menacing effects in the case where a woman may not fully know exactly what the consent involves. Hence in order for the act to take legal effect she does not actually have to say anything. The act of betrothal is something that a man does to a woman. Despite the fact that a legal relationship is being created between two people, only one of them has to do something for the relationship to be established. The woman is required to consent and she can refuse the initial acquisition but the default position is that if she does nothing she accepts the acquisition. In addition, the rabbis make it clear that in order to affect a valid betrothal the man has to acquire the woman rather than acquire himself to her.12 Thus, in this paradigm it is not only that the man is the sole actor, the woman is the only one to be acquired. The semblance of mutuality would actually make the marriage invalid because the betrothal is based on and constituted by non-reciprocity.

A man can acquire many women with one statement One of the particularly striking features of the acquisition is that it can be affected easily, so much so that it is possible for a man to acquire several women with one statement. Mishnah Kiddushin 2:7, refers to the possibility of a man being able to acquire several women at once with one statement, requiring all of them to get a divorce if they do not want to be married to him. If one betrothed a woman and her daughter, or a woman and her sister together, they are not betrothed. And it once happened in the case of five women, among whom were sisters, that a certain man took a basket of figs, which [belonged to them and which] contained Sabbatical Year produce , and he said, ‘Behold you are all betrothed to me with this basketful,’ and one of them accepted on behalf of all of them. And the sages said the sisters have not become betrothed. Even though the sisters are not betrothed, the mishnah accepts the theoretical possibility of the collective betrothal of other women who are not thus related to each other. In this mishnah we see that the man can technically acquire multiple women with one statement. Thus the man’s statement is strong enough to acquire a woman and to require her to get a divorce and this is further indicative of the gendered power imbalance

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in their relationship. In this particular case, the sisters among the group are not considered betrothed because it is not permitted for a man to be married to the sister of his wife, but not because the kiddushin was otherwise ineffectual. Mishnah Kiddushin 3:12 reinstates this biblical ordinance about forbidden relationships and also the view that forbidden relationships are not considered as valid marriages. The talmudic commentary on this mishnah however, limits the efficaciousness of the betrothal, even to the three other women who are not sisters, if the betrothal statement said ‘you who are eligible to me are betrothed’ − but if it said ‘all of you are betrothed to me’ then none of them is considered betrothed.13 It is significant in understanding the betrothal as acquisition that a male speech act alone can cause a commitment that then requires a whole process for the woman to extract herself out of the situation. In the case of the mishnah above, the consent of the women to this betrothal was exercised by one woman on behalf of the other women. In general, speech acts carry great significance in the law. In our case, the power of the speech act is being used as evidence of the nature of the acquisition inherent in the betrothal process. In How to Do Things with Words, J. L. Austin calls this affective speech a performative sentence or utterance, ‘it indicates that the issuing of the utterance is the performing of an action – it is not normally thought of as just saying something.’14 In Jewish marriage the speech act has gendered implications: the speech act of the man has enough potency both to set in motion the acquisition of not only one woman, but several women. Even with respect to one woman, the speech act is potent but its capacity to simultaneously affect several women, adds another dimension to its potency. Above I mentioned that the acquisition of one woman is a potent act by the husband in that a relationship between two humans is created through the actions of one and the inaction of the other. Therefore the possibility that the same act of the man can give rise, not only to one relationship, but to several, provides further evidence of the potency of the acquisition and highlights the radical assymetry of the power of men and women in the acquisitional process.

Even a doubtful marriage requires a divorce The acquisition of a woman by a man has such great potency that it can even be carried out by a male of unknown identity. In such a case, doubt about the identity of a man who married her, or the order in which several men betrothed a single woman, will not ameliorate a woman’s need for a

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divorce if she is to marry someone else. This is further evidence that the power of the acquisition is so great that once it has reached the woman, its force remains even if it has become separated from its source. It is the non-reciprocity of this case that is most striking. A woman does not even know who betrothed her but the act of betrothal has enough force to stop her from being betrothed to someone else. For example the first part of Mishnah Kiddushin 4:9 says: If one authorized his representative to give his daughter in betrothal, but he himself went and gave her in betrothal, if the betrothal by him preceded this betrothal, his is a legal betrothal, but if that by his representative came first then this betrothal is legal; but if it is not known, both of them must give letters of divorce , but if they so wish it, one may give her a letter of divorce and the other may wed her. In the mishnah cited above we see that a woman can be betrothed twice. However, she can only be married to one man at a time. The man who first entered into a betrothal is the one who marries her and the other one needs to divorce her. If a woman can only be married to one man at a time, and we know who she married first, then the first marriage is considered to stand while the second one not. If however, it is not clear which betrothal occurred first, then an anomalous situation is created and the woman needs to get a divorce from both of them. She is definitely married, but there is a doubt about which of these two men actually acquired her first. However the mishnah also teaches us that if one of them accepts they may give her a divorce and she may stay married to the other one.

The presumption that a person will not have licentious relations, so therefore sexual intercourse signifies an intention to marry The rabbis established sexual intercourse as one of the three primary ways through which the woman is acquired in marriage.15 In their regulation of sexuality they established a presumption that a person would not purposefully have licentious sex (in Hebrew: ein adam oseh be’ilato be’ilat zenut) and therefore engaging in sexual relations shows an intention to get married. This presumption means that the process of acquisition can be set in motion even where someone may not have had the intention to get married. The act of heterosexual intercourse becomes the catalyst in affecting the acquisition. Not only does the presumption equate intercourse with

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acquisition, it also limits intercourse to marriage in an unprecedented way. It does this by polarizing two kinds of sex: sex in marriage or licentious sexual relations. This has consequences for the way that one may try to envisage a sexual relationship – even a mutually exclusive one – outside of the acquisitional framework of marriage. Although the terms zonah and zenut appear in the Bible, licentiousness (zenut) as a category takes on new meanings as rabbinic texts appropriate it in different ways. The Bible prohibits priests from marrying a zonah: ‘They shall not take a wife that is a whore, or profane; neither shall they take a woman put away from her husband: for he is holy unto his God’ (Leviticus 21:7). The rabbis interpret the term in various ways seeing it as referring to prostitution, to the sexual relations of a woman not aimed at affecting marriage, and also as a descriptive general term that encompasses condemned illicit sexual alliances, including adultery.16 Mishnah Yevamot 6:5 interprets zonah in an ambiguous way: A regular priest should not marry a sterile woman unless he already has a wife and children. Rabbi Judah says, Even though he has already has a wife children he must not marry a sterile woman, for such is the harlot mentioned in the Torah. But the sages say, A zonah refers only to a proselyte, or to a freed bondwoman or to one who submitted to intercourse of the nature of prostitution. The Talmud further elaborates on the different interpretations of zonah at BT Yevamot 61b. From the mishnah we can see that Rabbi Yehudah interpreted it as a woman unable to have children, while the other sages were referring to illegitimate sexual relations in one form or another. The presumption appears three times in the Babylonian Talmud, but is used in different ways. I will look at each of the places in which it appears and then analyse the differences between the sources. My analysis of the common denominators between the sources will also delimit our understanding of how the presumption ought to be interpreted. The presumption indicating that a person does not intend his or her sexual relations to be licentious, and the concomitant assumption that, therefore, sex was intended to effect marriage implies that sex outside of marriage is either forbidden or frowned upon. The interpretation of this statement depends on whether beilat zenut is understood as a purely normative category meaning that halakhically intercourse implies halakhic marriage. Or alternatively it can be understood as descriptive. For example,

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if we see someone has had intercourse we use that to infer that, contrary to other information, they intended to be married. Interpretation of this phrase also raises contention about whether ‘beilat zenut ’ renders the woman a technical ‘zonah’ or is it rather that this sexual intercourse is frowned upon as beyond the acceptable bounds – however without bringing legal consequences, as mentioned above. This question about the status of sexual relations outside marriage becomes particularly significant in relation to the discussion in Chapter 4 on ‘Conditional Marriage’. This question also affects the status of nonmarital exclusive relationships as detailed in Chapter 5. Some who oppose the idea of conditional marriage argue that if a marriage is to be dissolved retroactively, then that will mean that the marriage never existed and sexual relations that took place were outside the framework of marriage. Therefore, according to some opinions, they may be deemed retroactively as licentious. We will explore this argument more in detail below but on face value it does seem far-fetched to be able to apply the label of licentiousness to sexual relations in a retroactive manner. Eliezer Berkovits quotes several scholars in arguing that there is no such thing as retroactive beilat zenut (licentiousness).17 In BT Gittin 81a-b the presumption is introduced although it is not the most central point of the argument. In this talmudic passage there is an exploration of the debate between early rabbinic schools of Beit Hillel and Beit Shammai about a divorced man who sleeps in an inn with his ex-wife, and about whether or not he needs another divorce. Mishnah Gittin 8:9 (BT Gittin 81a): If one divorces his wife and she spent the night with him in an inn – Beit Shammai say, She does not need a second get from him. But Beit Hillel say, She does need a second get from him. When is this so? When she was divorced after marriage, but they agree that if divorced after betrothal, she does not need a second get from him, since he is not overly familiar with her. The underlying assumption here is that through sexual intercourse they have become remarried, and require a new divorce, since intercourse is one mode of effecting kiddushin . The Talmud then seeks to explain the root of the disagreement. At first it suggests that the fact of intercourse has been conclusively established; thus the dispute is about attribution of intention. But this is rejected in favour of an alternate reading, where the dispute is about whether intercourse can be presumed.

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Here is the text at BT Gittin 81a-b: Rabbah b. Bar Hanah said in the name of R. Johanan: The difference of opinion [recorded here] relates only to the case where she was seen to have intercourse, Beit Shammai holding that a man [in such a case] will not scruple to commit fornication, whereas Beit Hillel hold that a man will scruple to commit fornication. Where, however, she was not seen to have intercourse, both agree that she does not require a second Get from him. We learn: [BEIT HILLEL] AGREE THAT IF THE DIVORCE IS ONE AFTER BETROTHAL, SHE DOES NOT REQUIRE A SECOND GET FROM HIM, BECAUSE HE WOULD NOT TAKE LIBERTIES WITH HER. Now [if a second Get is required] where she was seen to have intercourse, what difference does it make whether it was after betrothal or after marriage? – We must suppose therefore that the Mishnah speaks of a case where she was not seen to have intercourse, and that R. Johanan was giving the view of the following Tanna, as it has been taught: ‘R. Simeon b. Eleazar said: Beit Shammai and Beit Hillel were of accord that where she was not seen to have intercourse she does not require from him a second Get. Where they differed was when she was seen to have intercourse, Beit Shammai holding that a man would not scruple [in such a case] to commit fornication, and Beit Hillel holding that a man would scruple to commit fornication’ (and therefore meant intercourse to be a mode of betrothal). But according to the Mishnah, which we have explained to refer to the case where she was not seen to have intercourse, what are we to say is the [ground of] difference? [between Beit Shammai and Beit Hillel] – We must suppose there were witnesses to their being alone together but no witnesses to the intercourse, in which case Beit Shammai hold that we do not regard the witnesses to their being alone together as being ipso facto witnesses to their intercourse, whereas Beit Hillel hold that we do regard the witnesses to their being alone together as being ipso facto witnesses to their intercourse. Beit Hillel admit, however, that if the divorce is one after betrothal she does not require a second Get from him, because since he would not take liberties with her we do not regard them as being ipso facto witnesses to intercourse. But did R. Johanan say this? Did not R. Johanan say that the halachah follows the anonymous Mishnah, and we have explained the Mishnah to be referring to the case where she was not seen to have intercourse? – Different Amoraim report R. Johanan’s opinion differently.18

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Where does the progression of this text leave our presumption of ein adam ?19 This presumption remains relevant once we know they have had sexual intercourse, but our mishnah gets narrowed to a different dispute referring to witnesses. This dispute centres on whether or not the fact that there are witnesses to the seclusion means that there are assumptions that sex took place, or whether witnesses to their seclusion are treated separately as witnesses to sex. The question of the presumption only gets activated once we have assumed that sex has already taken place. If there has been sex, does it represent an intention to be remarried or not? Is it an act representing a desire to get married? Or is it just sex with no such desire attached? Beit Hillel, in this pericope where the couple’s intercourse was witnessed, supports the presumption that the man would only have intercourse if he intended to be married to the woman. By delimiting sexual intercourse to the man’s intention to be married, it can be assumed that they wanted to make it easier for the woman to be able to show some kind of commitment the man had made to her because of the economic vulnerability of the post-virginal woman and the financial security that flows from that commitment. It also acts as a deterrent for men to be able to take advantage of women without suffering economic consequences. Despite Beit Hillel’s general upholding of the principle, their negation of it in this particular situation where the seclusion was not witnessed creates (perhaps inadvertently) a conceptual space where there can be sexual intercourse outside of the marriage relationship. Sex becomes separated from and potentially independent of marriage (See Chapter 5). This separation between sex and marriage can be seen as a necessary step in the establishment of a halakhically legitimate sexual relationship outside of the constraints of classic acquisitional marriage. Despite the conceptual space that the negation of the presumption creates, as elaborated above, it can have detrimental effects of removing the security of marriage from women after sexual intercourse. This later point is particularly poignant when one considers the economic and social rewards of virginity and the potential economic and social loss to a woman in terms of her capacity to be remarried once she has already had sexual relations. The distinction in the mishnah between whether the couple is divorced after betrothal or after marriage is based on the assumption that the couple who knows each other better – and have already had sexual relations in the past – is more likely to have had sexual relations if they stayed together

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in the inn. The question arises about whether this presumption is in tension with another talmudic maxim about men’s sexuality that ‘a man with bread in his basket is not like a man without bread in his basket’.20 The rabbis assume that a man who hasn’t been married is more likely to have more sexual desire and less restraint than a man who is married. In that case, the presumption in this mishnah would not necessarily work. These two presumptions could be partially reconciled if we argued that since the man who is divorced from the marriage has ‘no bread in his basket’ at the current time (despite being previously married) he would be as likely to have relations as the other man who was divorced from the betrothal. This case also raises another important recurring tension, that the more leniently something is defined as marriage means that a woman can be afforded the ‘protection’ of marriage and the marriage contract. At the same time such leniency in defining committed relationships and even acts of sexual intercourse as bound with marriage makes less and less available space for committed relationships that are not marriage and not subject to the non-reciprocal exit rights that plague marriage.

BT Ketubot 73a In this talmudic pericope we see how the presumption is used to require a man to repeat the condition upon which he was married every time he has sexual relations. This is because sexual intercourse is presumed to have reestablished the relationship potentially without the original condition unless it is expressly stated.21 The previous mishnah in Ketubot 72b, after which the gemara in question is placed, addresses the case of a man who marries a woman on condition that she does not have any vows upon her or that she has no blemishes. In both cases if they had that condition and she did not fulfil the condition then the kiddushin is nullified. The mishnah also adds that if he married her without making any suchstipulation (kunsa stam), and afterwards it is found that she is under vows then the marriage is valid but she may be divorced without being paid the money of her marriage contract (ketubah). The same applies to the other case in the mishnah regarding the case of a woman who had a blemish. The mishnah does not make it clear whether this is a case where he had made a vow at the time of betrothal (kiddushin) but didn’t repeat it orwhether this is a completely new case in which betrothal and marriage wereperfomed without any stipulation.22 This extract contains a dispute in the name of Rav and Shmuel in the case where there is a conditional kiddushin, but the condition is not repeated at

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the time of the wedding. Rav says a divorce is needed – suggesting that the marriage still stands, while Shmuel says that a divorce is not required. But Abaye, whose commentary makes up a later stratum of the Talmud, adds that Rav’s reason may be based on the fact that Rav believes that the condition still stands even if it is not repeated at the time of the wedding because he accepts the presumption ein adam oseh be’ilato be’ilat zenut (a person will not have their intercourse for the purpose of licentious relations). Because of the presumption that a man would not want to have licentious relations, when he has sexual intercourse in a case of a conditional kiddushin without repeating the condition at the time of intercourse, he would still require a divorce. They may both agree that the condition is valid even if it was not repeated at the time of the wedding but Rav requires a divorce because of the presumption.

BT Yevamot 107a In this mishnah, the presumption is used as a potential argument to rationalize the difference in perspectives of Beit Shammai and Beit Hillel. However the presumption is rejected as a potential rationale for explaining the differences between their perspectives. Ironically the presumption is proposed as a rationale for Beit Shammai’s position while in a different context the presumption is brought in the name of Beit Hillel. This mishnah addresses the capacity for an underage girl – who has been married under the authority of her mother or brother – to refuse the marriage. Beit Shammai is stricter in terms of who they will allow to refuse a marriage as well as the form such a refusal must take. In opposition to Beit Hillel, they argue that a woman can refuse a marriage only once she is engaged, but not yet married, in the case of a husband not levirate, the refusal has to take place in front of him and not out of sight, and it has to be made in front of a Beit Din and not anywhere else. The refusal has to be made only once as opposed to several times. Beit Hillel permits all the other options that they disallow. The gemara then tries to proceed in fi nding Beit Shammai’s logic for the stringencies in the mishnah. Each suggestion is nullified by the next problem. It is in this context that ein adam comes up as a speculative reason for Beit Shammai’s logic. Interestingly it was Beit Hillel in whose name the presumption was said in the extract from BT Gittin. However, it is soon dismissed as a case when the couple did not have sex and when they have just entered the marriage.

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Looking at all three pericopes together, it is important to note all of them involve a prior established relationship of one kind or another. In the first pericope there is a divorced couple, in the second there is a couple married with condition and in the third pericope there is a minor who has been married by her mother or brother and has the right of refusal. Thus this presumption could be qualified by saying that in the case where there is a prior established relationship one would not have licentious sex with their partner and would want it to be considered as reaffirming the marriage relationship. The limited examples of this presumption provide us with a significant reminder that any presumption needs to be understood in light of its context. It cannot be taken out of context and remain in its full integrity. With respect to the concerns mentioned above about the presumption, if we limit its application to a case of a prior established relationship then we see that it is not the sexual intercourse per se that establishes the relationship but it is intercourse in the context of the prior existing relationship. In terms of the capacity to have a sexual relationship that is not considered to be marriage this qualification is only helpful for the first sexual encounter when no prior relationship existed but would equate the ongoing relationship to marriage. This is because when it says one would not want to have licentious sexual relations the presumption is that one would want to be married because sexual relationship outside marriage is licentious. This either/or model is not uncommon but it is not the only way that the sources regard sexual intercourse outside of marriage. Alternatively it can be argued that ein adam is not the presumption defining how sexual intercourse is regarded but rather one of the several possible guiding rules and presumptions, which can only be understood in particular contexts, in this case, in the context of a prior existing relationship. This context of the prior existing relationship implies that it is the existing relationship rather than the sexual intercourse per se that carries with it presumptions of intention. Thus according to this analysis the presumption can be used to prevent the man from denying his obligation as per a marital relationship, however it would not be activated solely to require a woman to obtain a Jewish divorce if other elements of a marriage did not exist. Commenting on the mishnah in BT Yevamot cited above, Rabbi Gail Labovitz refers to a woman being defined as a zonah through the tautologous and undefined ‘beilat zenut ’ (licentious intercourse) which also denies the agency of the woman involved as well absenting the responsible male.23 This leaves the woman suffering the consequence of the sex act that has somehow become disembodied from her male partner.

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This discussion about the presumption of ein adam highlights the gender asymmetry reproduced by the rabbis. Even in the case of betrothal where both parties need to consent and have the intention to effect betrothal, the presumption of ein adam and its treatment in these above pericopes only addresses the man’s intention. For example, in the first scenario from BT Gittin where the divorced husband and wife stayed at the inn, even if the man did not want beilat zenut how do we know that the woman did not either? Is it fair to assume that in all cases she would want to be married?24 Is the talmud applying another one of its principles that assumes that a woman would rather be married to any man than have to remain alone (For example the tav le metav presumption as mentioned above.) when it assumes the woman wants to be married? It is also important to ask about the status of these presumptions in light of changing gender interests. There is a debate within halakhic communities as to whether some of these presumptions are time and context-bound or whether they should be understood as having eternal applicability. Progressive legal theorists of religious law, Jewish and Muslim alike, argue against the eternality of presumptions such as these that are clearly also influenced by sociological factors.25 What emerges from this section is that presumptions, such as ein adam are subject to at least two analyses of context dependence. The primary mode of context dependence, let’s call it internal dependence, emerges when a presumption or legal rule is examined in the range of contexts in which it arises. This examination of sources can serve to limit or expand the presumption or rule depending on the case in question. In our case it is evident that the examination of the presumption in different contexts led to a narrowing of its applicability to a situation where a prior relationship existed between the couple. The secondary mode of context dependence, no less significant, is related to the social context and matrix within which the web of legal meaning is created. Presumptions and other legal rules are established in line with contemporary values and customs and thus are subject to change as times change.

The differences between a wife and a concubine and a prostitute In contrast to the presumption mentioned above whose effect it is to render sexual intercourse as evidence of marriage, this section looks at the

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institution of concubinage as a legally sanctioned sexual relationship outside of the acquisitional framework of marriage. This section challenges the notion of sexual intercourse being synonymous with the establishment of an acquisitional relationship. An investigation of the relationship between sex and marriage in rabbinic material requires looking at discussions about concubinage (pilagshut). Concubinage is a rabbinically acknowledged sexual relationship outside of marriage. Aside from the many references to concubinage in the Bible, the main talmudic pericopes that deal with it are BT Sanhedrin 21a-b and BT Yoma 18b.26

BT Sanhedrin 21a-b This pericope that refers to the rabbinic laws about concubinage is embedded in the context of sources that refer to the king and his authority and possessions. The lead text Mishnah Sanhedrin 2:4 implores the king not to have too many wives. The unnamed author of the mishnah limits his wives to 18, and Rabbi Yehudah says that he may have as many as he wants as long as they do not turn his heart away from what he needs to do. Rabbi Shimon says that even one wife is prohibited if she distracts him from what he needs to do. The Talmud asks about the difference between a wife and a concubine. Rav Judah in the name of Rav says that wives have ketubah (marriage contract) and kiddushin (betrothal) and concubines do not. The Talmud does not say anything else about it at that point. A literary reading of the Talmud reads the pericope as a whole and deduces meaning from the way the different narrative and legal elements of the pericope relate to and reflect on each other.27 Below I will analyse several elements of the pericope that follow this rather sparse comment on concubinage and see how they relate to each other. The discussion about the difference between wives and concubines is situated in a broader discussion about King David’s wives and concubines, their names and also the number and names of some of his children. This discussion provides a segue into the story of Tamar and Amnon and eventually links Tamar’s experience of being raped by Amnon to the establishment of the rabbinic decree forbidding a man to be alone with a woman except for his mother and wife (yihud ). Rav Judah in the name of Rav, the same author of our previous statement about wives and concubines says that Tamar was the daughter of a yefat to’ar (female captive).28 This

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is a biblical term that refers to a female war captive who the Jewish man was commanded to marry if he could not withhold his desire after one month. She was required to grow her hair and nails as a way to make her less appealing to her male Jewish captors. He assumes this because otherwise, if in the Talmud’s language ‘she was the offspring of a legitimate marriage, how could his sister have been granted to him?’ This expression of yefat to’ar also gets used in another significant midrashic way. It says in Samuel 2 13:15 that Amnon hated Tamar. The rabbis claim that this may be because something happened with someone’s hair becoming tangled and mutilated: There is uncertainty about whose hair it was – his or hers. The claim that she is a daughter of a yefat to’ar (female captive) is used to explain how she may have come to have hair at all because the rabbis claimed that the daughters of Israel had neither underarm nor pubic hair. The Talmud says that is what is meant by the verse in Ezekiel 16:14 when it says ‘And you became known among the nations for your beauty’. Instead of placing responsibility on Amnon for his behaviour, the Talmud here is casting aspersions on Tamar for ‘making him’ hate her. At the same time, the Talmud attributes the prohibition of the seclusion between unmarried men and women to Tamar. The rabbis recount that the women said: ‘If this could happen to kings’ daughters how much more so to the daughters of regular men? If this could happen to the chaste, how much more [so could it happen] to the wanton?’29 And thus on this basis more precautions were established such as the prohibition of seclusion of the sexes. Women’s beauty here is infantilized, a beautiful woman is without underarm or pubic hair. Tamar is simultaneously demonized and validated as an exemplary victim despite her status as the king’s daughter. The Talmud, in the name of Rav Judah in the name of Rav, states that ‘at the same time they decreed against being alone with a married or unmarried woman’ (known as yihud ). Thus there is some relationship between the discussion about concubinage and the restriction about an unmarried man and a woman being alone together. The Talmud then launches in to an argument about the status of the prohibition given that yihud , unmarried man and woman being alone together, was already biblically forbidden at least for some men and women. The juxtaposition of the seemingly innocuous discussion about concubinage with the strictness of the yihud laws is interesting. On the one hand the juxtaposition could be a compensatory device to highlight the serious implications of being alone with a married woman or an unmarried woman, despite more permissive laws about concubinage. Or on the

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contrary it could be argued that the delineation of the yihud laws becomes a technique to bolster the institution of concubinage.30 Being alone with a married woman or with an unmarried is not concubinage. Concubinage is an established status even if it does lie outside of marriage. The prohibitions of yihud in this context could be related to establishing a third category of prohibited relations that would include any relations with a married woman or even unmediated relations with an unmarried woman. In this context, concubinage becomes a medium position between marriage and casual sex. BT Yoma 18b This pericope refers to a type of concubinage relationship where the rabbis establish a relationship with a woman for one day. After a discussion about needing to be careful about seminal emissions while away from home and staying at inns, we learn that two rabbis – Rav and Rav Nachman – on separate occasions came across a certain town and inquired whether there was a woman who was prepared to marry each of them for a day while they were held up there away from home. The Talmud problematizes this practice through reference to an alternative parallel rabbinic source, a baraita : Rabbi Eliezer ben Yaacov says: A person should not marry someone in one country and then another person in another country lest the children will come to have sexual relations with each other and a brother will marry a sister and the whole world will be filled with mamzerut (illegitimate offspring). To defer concern about unknown paternity and as a justification of their practice, the rabbis argue that ‘the rabbis have a voice’ (rabbanan kallah it lehu) which means that people know who comes from a rabbinic family and so it may not be as problematic – at least for these rabbis to engage in one night concubinage relationships – as they first suggested. Interestingly here the rabbis use rabbinic pedigree to permit sexual leniency where on other occasions the sages are considered to be more sexually stringent, as befitting for Torah scholars.31 Rava suggests that once a man has made an approach to a woman, she has to wait for seven days anyway in case she started bleeding (from intercourse), and Rashi suggests the reason could be ‘blood of desire’.32 The Talmud answers this claim in two ways: In one way, by saying that they sent an emissary in advance to betrothe a woman

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(and thus they were together after the initial seven days) and secondly, by denying the sexual encounter and suggesting that the men were simply alone with the women without having relations, by invoking the expression that ‘someone with bread in their basket is different to someone without bread in their basket’.33 This phrase is interpreted to mean that a man who has the possibility of intercourse does not have the same desire as one who does not which is why it would be possible for him to be in a woman’s company and not need to have sex. Thus, in a somewhat apologetic fashion, it is understood that the rabbis only acquired women to themselves in potentia and ironically, to fend off their desire because desire is understood to be reduced when a woman is sexually available. Thus the Talmud tries to break the nexus between seclusion (yihud ) and sexual relationship and undermines the strictness of seclusion (yihud ) that is reinforced elsewhere such as in BT Sanhedrin as discussed above, trying to maintain the sense that one-night concubinage is for the purpose of avoiding desire rather than for increasing it or acting on it. This statement at the end of the pericope both comes to condone the practice of men being alone with women when they are travelling and at the same time negates their engagement in sexual activity with the women. It may be seen to celebrate their attempts at curbing their desires and therefore reducing the possibility of unwanted emissions, as per the discussion at the beginning of the pericope about avoiding unwanted seminal emissions in someone else’s bed when you are travelling. Some scholars argue that the Babylonian Talmud especially, in contrast to the Palestinian Talmud, contains not a hint of condemnation (of men) for having several wives and multiple sexual partners.34 This pericope refutes this position and represents the ambivalence of the rabbis about this issue. It should be stated however that the explicit reference to concubinage in the first pericope arises in the context of laws about the king. It is unclear whether those rules exclusively apply to the king or whether the discussion can be broadened to apply to regular men. This point is picked up later by Rambam when he rules that concubinage is only available to the king and not to regular men.35 These sources on concubinage are important because they serve as a reminder that there was always many ways to envisage sexual relationship within a halakhic framework despite the narrow options available in the contemporary context. Chapter 5 addresses the issue of concubinage as a contemporary alternative to marriage.

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Male prerogative in one-sided divorce Non-reciprocity of rights between men and women in marriage and divorce is both reflective and constitutive of the acquisitional marriage. The effect of the non-reciprocity of the acquisition in marriage is reflected in the one-sided nature of the divorce process as well: that the male has the right to choose and refuse divorce at his will reflects the non-reciprocity of marriage. This part explores different sources relating to the male prerogative of divorce. It explores opportunities for women to leave the marriage and their diminishment in the mishnah as well as critiquing the rabbinic construction of ‘women’s credibility’ which emerges as a contested issue where the rabbis recognized that women may try to fabricate their way out of marriages barring few other exit possibilities. This could be an accurate reflection of women’s actions and recognition by the rabbis of women’s limited options and/or this could be yet another layer of projection of undesirable qualities on to the woman who is both other, but who is also potential marriage partner.

One-sided capacity of the husband to initiate divorce The exact nature of the relationship between this acquisition and divorce will be explored in more detail in subsequent chapters. Here the discussion will focus on the structure and inequality of exit rights in the marriage relationship as it is reflected in mishnaic and talmudic material. In her analysis of ways in which to ensure justice and gender equality in the family, Susan Moller Okin argues that the ‘relative potential of the exit options for the two parties is crucial to the power structure’.36 Albert O. Hirschman investigates the dynamics in the relationship between exit potential in situations and the development of voice in those situations. He says ‘that even the most loyal member can exit is often an important part of his bargaining power vis a vis the organisation’.37 This highlights the vulnerability of women within the marriage relationship where they do not have the means to leave the relationship of their own accord. One way of showing the rabbis were not only interpreting scripture but creating laws that reflected their ideological struggles is to see how rabbinic works diverge from the scriptural works upon which they are ostensibly based. The one-sided nature of divorce does not stem merely from the sages’ ‘dependence on the scripture.38 This is so because scripture does not elucidate the steps in the divorce procedure. Nowhere in the Hebrew Bible

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is women’s capacity to divorce explicitly rejected. Unlike the New Testament, the Hebrew Bible does mention that the husband places the divorce in the hand of the woman which some suggest could have been interpreted more broadly by the rabbis than it was. Wegner argues that . . . the Mishnah’s framers are making a choice not necessarily dictated by scripture. The choice expresses their independent belief that a wife should not have the legal power to divorce her husband. This view is consistent with their position that once a man has a legitimate claim on a woman’s biological function, control over that function remains with him until he chooses to give it up; and it supports my assertion that where a man’s rights over a woman’s sexuality are at stake, the Mishnah will systematically deprive the woman of her personhood.39 Mishnah Yevamot 14:1 explicitly shows the inequality of women and men in relation to divorce. The context here is how women and men’s rights differ in relation to divorcing their partners who have become deaf. Deafness in the rabbinic context was understood to refer to people who could neither hear nor speak. In both cases of a deaf man who married a hearing woman and a deaf woman who married a hearing man, the marriage and the divorce could be affected through sign language, but it was considered to be valid on a rabbinic level rather than on the more stringent biblical level. However the man who became deaf could not divorce his wife because he married her on the more stringent biblical level and he is not considered to have the competency to be able to adequately divorce her because sign language is not sufficient if the marriage was not created with sign language. A man is not allowed to divorce a woman who became mad because it is considered that she does not have the capacity to make decisions for herself and she will be taken advantage of sexually by other men. People who were deaf from birth were differentiated from people who became deaf later in life because the latter could speak and were not deemed as legally incompetent.40 The end of this mishnah states: R. Jochanan ben Nuri said, What is the reason why if a woman became a deaf-mute she may go free but a man who became a deaf-mute he cannot divorce her? They replied to him, the man who divorces is not like the woman who is divorced, because the woman goes forth with her consent or against her will, whereas the man only divorces her with his free will.

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This last sentence illustrates fully the unequal rights in divorce. The fact that divorce has to be according to the will of the man means that women can be trapped in marriages with men of ill-will who refuse to give them divorces, but also with men who lack the capacity to grant a divorce. This thickening of the requirement of the will of the husband in granting a divorce builds a firmer base of the one-sided nature of the divorce.

Reduction of opportunities for women to leave the marriage Unequal exit rights in the marriage establish a dynamic whereby women have few options for leaving the marriage. The limited opportunities that women had were then further reduced as demonstrated in Mishnah Nedarim 11:12:41 At first they used to say, Three women leave and take their ketubah: one who says, ‘I am impure to you,’ ‘Heaven is between me and you,’ ‘I am removed from the Jews.’ They later retracted, lest a woman set her eyes on another and behave immorally towards her husband. But if she says, ‘I am impure to you,’ she must bring proof for her words; ‘Heaven is between me and you,’ they must plead with her;42 ‘I am removed from the Jews’ – he may revoke his part, and she may cohabit with him, and she may be removed from the Jews. This mishnah refers to three claims that used to be made by women which entitled them to divorce with their marriage contract (ketubah). Given the coded nature of the mishnaic language in this case, I will explain the three claims. The first claim ‘I am unclean to thee’ is the classic statement that the woman makes which makes her forbidden to have sexual intercourse with her husband. Call it the ancient version of the modern ‘honey, I’ve got a headache’. The woman is believed because she is actually incriminating herself and there is a halakhic presumption that if someone could have denied something but they do not and they incriminate themselves then they are believed. However, in our case, the rabbis suspect that she may only be saying it because she wants to end the relationship with her husband and may not have other options at her disposal. This is not a pure sense of self-incrimination because she may benefit from the admission. The second claim ‘Heaven is between me and you’ has been understood in different ways by commentators with some opting for the explanation being about the irreconcilable distance between the husband

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and wife, while others interpret it as a coded allusion to his impotence.43 In the final claim she says ‘I am removed from the Jews’ and this is understood to be a vow that she takes upon herself to be removed from the Jews. The rabbis then suggest that this vow can be changed so that it simultaneously preserves the relationship with the husband. Thus he has the power to renege on the part of her vow that affects him while the rest of the vow separating her from the whole Jewish people can stay. Legally he is able to do this because of the rights mentioned above of the husband’s capacity to make, alter and undo vows of his wife. Ironically this last scenario is like a super-monogamy contract she enters where she makes a vow to be removed from the Jewish people but is only connected to her husband, through the marriage and through his annulment of the part of the vow that included him. This mishnah details the initial claims that women could make in order to leave their husbands and receive their marriage contract (ketubah).44 It then shows how the laws were changed to disallow these claims because women were suspected of using them as a way to get out of their marriages and to find or marry a man they liked more than their husbands. It is not surprising, given the paucity of options available for women to leave the marriage, that these conditions may have been misused or that the rabbis feared they would be misused. At the outset it is important to note that it is the structural inequality where divorce is not readily accessible to women that causes them to use the opportunities available in any way they can. This in turn arouses suspicion that women may not be making bona fide claims.45 In that mishnah we saw that there were initially three claims that women could make that would enable them to get a divorce and receive their ketubah . One of the most significant aspects of this mishnah is the selfconscious reframing of the law in terms of the fear of women using the law to get out of marriages and marry new men. This acknowledgement could be read as an admission under erasure of some of the problems in the non-reciprocal betrothal.46 By using this term under erasure in this context I mean to say that although the rabbis were prepared to acknowledge that women were disadvantaged by the marriage laws, and they had legislated through the initial mishnah to mitigate against some of the disadvantages, they nevertheless were not prepared to ‘take the risk’ and allow women more freedom to divorce because of their fear of women taking advantage of the freedom and abandoning their husbands. The trace that remains is that the previous law is noted before the law was changed because women were using it in unacceptable ways.47

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The Talmud also mentions another category of woman who cannot stand her husband (meus alei ) and requests a divorce on such grounds.48 This is one aspect of the rebellious woman category that is addressed in Chapter 3. He may suffer from a range of deficiencies or problems including a foul odour because he works in a tannery or because he has terribly bad breath. There is no clear resolution in the Talmud as to the rights of this woman. The lack of clarity with regard to this issue is reflected in the rabbinic treatment of it in later times with some legal decisors allowing this as a claim and others disallowing because of the fear of women taking advantage of men and making the claim when they just preferred another man. Hence this shows how these laws regulating marriage and female sexual behaviour can become a vessel for the projection of male fears of abandonment and deceit.49 The significant issue that frames this final mishnah in BT Nedarim and the ensuing amoraic material to which I will refer below, is the way in which women’s credibility is construed as the contentious issue around which these discussions take place. This rabbinic attention on women’s credibility masks the effects on women of the structural constraints of the inequality and non-reciprocity in marriage and divorce. Ironically the focus on women as agents of deception, rather than victims of an unfair structural system, reinforces their limited options in the situation.50

Women’s credibility The rabbinic focus on the issue of women’s credibility is deeply problematic. 51 There is a rabbinic presumption that on the face of it supports women’s credibility by claiming that ‘a woman would not be brazen in front of her husband’. However this is a fi nely disguised support because women are only believed because they are not bold enough to tell a lie in front of their husbands, but not because they would not lie or can generally be believed, but rather because they have limits to their brazenness. This presumption is mentioned in relation to a woman not fabricating a story that her husband had divorced her. This presumption is mentioned only four times in the Babylonian Talmud and does not reappear in any tannaitic literature nor in the Palestinian Talmud. 52 Every single instance of this presumption that a woman would not be so brazen as to lie in front of her husband is followed by its undermining through rabbinic argument. Each contradiction of the presumption will be dealt with in its own context.

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Furthermore the negation of this presumption should be viewed in a wider context than merely as rules of evidence determining whether or not divorce has taken place, but rather, as both reflective and constitutive of the non-reciprocity of the betrothal. In other words, because of the limited opportunities for women to leave marriages they may be inclined to fabricate stories if they want to leave or if they want to marry someone different. Thus the question of women’s believability comes to the fore. Ironically also the exclusivity that the betrothal demands of women, that is women’s inability to have more than one husband, means that the re-establishment of the institution of betrothal for a previously married woman relies on her being able to prove a legitimate divorce. In BT Nedarim 91a the Talmud suggests that the woman is only not believed when her husband cannot concur on the evidence, but it is suggested that when she claims that he has divorced her, she should be believed because she would not be so brazen to lie in front of her husband.53 Raba limits the applicability of this presumption by differentiating the situation on the basis of the relative strength of her character. He claims that she only would not be brazen if she was in a vulnerable position and would expose herself to shame. However he contends that if she is not particularly vulnerable then she would be brazen, even in front of him. What seemed like an overarching principle has become reduced to apply to a very specific situation of a woman who is concerned about being ashamed. At BT Yevamot 116a the presumption is brought in the name of Rav Hamnuna only to be once again negated on the basis of a case where the woman actually said she was divorced even though witnesses who she named as being present denied that it happened. The Talmud goes on to describe a debate about her falsifying claims about her husband’s death. According to one opinion she hates him so much she wants to make herself forbidden to him and on the other opinion she just uses every situation of danger to presume that her husband has died.54 In BT Ketubot 22b the Talmud offers another way to limit the applicability of the presumption that the woman can be believed. She is believed only when no witnesses support her, however if she has witnesses that do support her then the Talmud argues that she would indeed be insolent and the presumption does not apply. Finally the fourth reference (in no particular order) to the presumption which is to be found at BT Gittin 89b is also limited but in a different way. Here it is decided that literally in front of her husband she would not lie but if he was not present she would surely be impudent enough to say they had been divorced, even if it was not the

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case. Despite the differences in particular context, the underlying attack on women’s credibility is evident. In BT Yevamot, the Talmud actually makes an interesting admission. In ascertaining which case is being referred to, the Talmud asks rhetorically, ‘Don’t all women say “I want a divorce?” therefore this must be talking about the woman who said “I got a divorce!”’ The rabbis show that they are aware that it is commonplace for women to say they want a divorce. It is less common for them to receive a divorce. These excerpts demonstrate rabbinic anxiety about women’s truth-telling and believability mainly in the context of saying they were divorced when it may not be true. According to the cases here, we see that the rabbis think that women are in fact brazen in front of their husbands except in a range of limited cases. It can be argued that what is lost in the rabbinic denial or obfuscation of women’s believability may be gained in the more positive angles of strength and chutzpah that brazenness connotes. It must also be noted here that the rabbis represent women’s believability – again under erasure – through proposing a presumption that never gets upheld in any Talmudic example. Another example of women being represented as less sexually trustworthy than men is to be found in Mishnah Kiddushin 4:12. This mishnah details the laws of yihud delineating when men and women are allowed to be alone with each other. Two women are not allowed to be alone with one man because they are considered not as trustworthy as two men who are allowed to be together with one woman. In Miriam Peskowitz’s words: If Jewish women have no sense of shame, then the presence of an adult man – Jewish or Samaritan, free or slave – is necessary to deter women from transgression when they are near a minor male, who may himself not yet have the discipline to resist or the strength to prevent her. Cultivated male discipline stands in for the interior mechanism of shame that Jewish women lack. An adult man’s presence becomes the equivalent of a woman’s (absent sense of) shame.55 Much like other androcentric cultural systems, rabbinic texts represent women’s sexuality in contradictory terms. At times women are represented as sexually dangerous and at other times they are represented as objects of male desire that need to be protected. Peskowitz’s interpretation of the mishnah is in line with the pole of interpretation that sees women as sexually untrustworthy. However this mishnah can also be read as a comment

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on male desire – rather than female untrustworthiness. It can also represent the way in which men will be deterred to act in front of another man but not necessarily in front of another woman. This latter interpretation does not make it more positive for women, but it does show the range of interpretative possibilities even within a strictly patriarchal interpretative economy.

The importance of will in male divorce Above we saw the male prerogative of one-sided divorce. This part takes it one step further. As the undoing of any bona fide acquisition would require, the man has to agree to the divorce from his free will and a divorce given under duress is disqualified except in particular extenuating circumstances. The rabbis implement some restrictions to the expression of the husband’s will in divorce. They also expand the terms of reference beyond the husband’s will by detailing those occasions when it is the husband’s right and duty to divorce his wife. Thus far we have established the unilateral right of the husband to grant a divorce as well as the limited cases when and how the husband is forced to divorce his wife. Despite this there is a significant requirement that the husband give the divorce freely and of his own accord. This is the way that he relinquishes his acquisition of her. The requirement of his freely given divorce is a corollary of his acquisition of her. It would not be as strong an acquisition if he did not have exclusive rights to give the divorce of his free will. The requirement of it being freely given solidifies his sense of control and autonomy. The last part of Mishnah Gittin 9:8 reads: A letter of divorce given under duress exercised by a Jewish court is legal, but if exercised by a non-Jewish court, it is not; but the non-Jewish court may flog him and say ‘Do whatever the Jewish court commands you,’ and it is legal. Not only is the husband the holder of a non-reciprocal right for divorce, his right is protected in that he has to give the divorce purely of his own free will. The Palestinian Talmud considers narrowing the grounds for which even a religious court will force a divorce such as in those situations where the marriage is a forbidden union. However the conclusion there is that the court can make the decision for other reasons as well such as

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the husband’s inappropriate behaviour to this wife.56 In the Laws of Divorce 2:20, Maimonides develops an interesting concept of the will in response to the potential problem of a divorce being considered null and void because the husband is forced to offer it. He explains that someone is only considered as being forced to do something when it is not a religious obligation. However if it is an obligation, then every Jew wants to fulfil the obligation and it is just their evil inclination that is stopping them from fulfilling the obligation.57 Despite the black letter law requirement of free will of the husband in some cases the power of the court had more input in constructing male consent rather than male agreement as it may otherwise be understood. Cohen says: Since by law a man has to divorce willingly, the court effectively decides what willingness is. The man’s actions and words are interpreted against him. His refusals are not recognized as refusals and his interpretations of his own actions are not accepted as valid.58 This is a fine example of the way that the rabbis use interpretation to transform the meaning and implications of laws. When their interpretation works towards gaining more rights for women and undermining the exclusive male right to initiating divorce it can be understood sympathetically, but the same power can and has been applied with disastrous consequences for women. In Mishnah Gittin 4:2 the male divorce right is curtailed. In this Mishnah, the husband’s biblical right to cancel a divorce before his wife has received it, but even after he has engaged an agent, is actually nullified by the rabbis on the basis of the intolerable position that it creates for the woman. This is significant to note that the acquisition of marriage simultaneously acknowledges the personhood of the identity of the wife as the one who is acquired. Mishnah Gittin 4:2 states; Aforetime a man used to constitute a Court somewhere else and cancel it. Rabban Gamliel the Elder enacted that they should not do so because of tikkun olam (repairing the world). The problem was that the woman would potentially make use of the Jewish divorce for purposes of remarriage without realizing that it had been annulled. The Talmud explains two reasons for Rabban Gamliel’s enactment, one of them was to avoid illegitimate offspring (mamzerim) whereby

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the woman would not hear that the Jewish divorce was cancelled and would remarry and have children on that basis while she was married to another man. The other reasoning for the enactment is related to preventing chained women (agunot). If it is always uncertain whether or not the Jewish divorce is valid the woman will be afraid to remarry lest the divorce have been cancelled.59 Despite the acknowledgement of limiting harm done to the woman in this case and others like it, I am arguing that the recognition of basic rights is not sufficient and that the marriage takes away her autonomy and causes her to be too reliant on the benevolence of her husband and the rabbis for her freedom and good fortune. However, as a consequence of the power given to the court in this enactment it serves also as the basis of the principle of hafka’at kiddushin (uprooting of kiddushin) which is the power vested in the Beit Din to be able to retroactively annul a marriage.60 Although the husband is the acquiring party and he has rights, this does not mean that he can do exactly what he wants.61 Hence the rabbis need to establish his right to divorce. This rabbinic discussion reinforces the pole of representing women as vulnerable and needing to be protected. Mishnah Gittin 9:10, the last mishnah in that tractate, shows the basic tripartite dispute between Beit Shammai, Beit Hillel and Rabbi Akiva with respect to the rights of the husband to divorce his wife: Beit Shammai say, A man may not divorce his wife unless he has found something improper in her, as it is said, because he hath found something unseemly thing in her. But Beit Hillel say, Even if she spoiled a dish for him, as it has said, because he hath found some unseemly thing in her. R. Akiba says, Even if he found another more beautiful than she, as it is said, if she finds no favor in his eyes. There is a continuum of differing opinions as to the rights of the husband to divorce his wife, from the most permissive position of Rabbi Akiva who allows for a man to divorce his wife if he finds someone else he prefers, to the most limited position that requires him to find something actually improper in her. The need to find something she did that was wrong – either subjectively or objectively speaking – is in contrast to the position of Rabbi Akiva who says that a husband just needs to find someone he prefers without needing to base the divorce on anything about his wife – subjectively or objectively speaking.62 The opinion quoted in the name of Rabbi Akiva, that says that a man can divorce his wife for no other reason than if he finds someone he likes

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better, offers a stark example of the double standard operating for men and women. In a previous mishnah we saw explicitly how the law sanctioning men to grant divorces to women was changed for the very reason that Rabbi Akiva gives as a basis for men to divorce their wives. In Nedarim 11:12 we see rabbinic anxiety about women taking advantage of the laws to leave their husbands and find someone else they preferred. As it says there; Then they retracted this teaching so that a wife should not set her eyes upon another man and behave immorally towards her husband . It is significant that the law is changed so that it becomes impossible for women to choose a new husband who they prefer, when man’s right to choose a new wife is explicitly what Rabbi Akiva understands to constitute the male right of divorce. The double standard could hardly be made more explicit.63 In BT Gittin 90a there is a baraita in the name of Rabbi Meir that provides complementary aggadic commentary for our mishnah concerning the question of when divorce is permitted and/or required: Rabbi Meir said: Just as there are different opinions about food there are also different opinions towards women. There is a person who had a fly fall in his cup and he takes it out and does not drink anymore. This is the character of Popus ben Yehuda who would lock up his wife and then go out. And then you have a person who had a fly fall in his cup and he throws it out and then he drinks it. This is like all people. She goes and talks with her brother and her relatives and then comes back. And then you have someone who had a fly fall in his food and he takes it and sucks it and eats it. This is the characteristic of a bad man who sees his wife go out, with her hair wild, spinning in the marketplace visible from both sides and washing with other people. The analogy of attitudes to food and women is instructive. One devours and consumes food as an object, one devours and consumes women as an object.64 To be more precise, in this analogy the fly functions as the possible lasciviousness while the woman is represented by the contents of the cup or the food in the last example. Rashi claims that Popus was illogical in his behaviour towards his wife in not allowing her to speak to anyone when he was out of the house. This aligns with Rashi’s challenge to the dominant patriarchal paradigm in his claim that the woman actually needs an incentive to get married, as opposed to presuming that she would settle for any man because she wants to be married so badly.65 Despite the legal discussions about the permissibility of divorce – and in some more extreme cases the obligatory nature of divorce – aggadic

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literature also presents a strong case against divorce which influences later interpretations of the legal material. This is a good example of how the literary material contextualizes the legal material and casts it in a light that changes how the laws are understood and practised.66 One example of this is the end of BT Gittin: Rabbi Elazar said: when anyone divorces his first wife even the altar sheds tears on his behalf. There are numerous ways to understand the relationship between this and the laws of divorce that we have explored above. For example, one could read this statement about the altar’s tears as a serious indictment of divorce and an admission of its severity despite what look like flexible divorce laws. On the other hand this statement could be read as needing to show the seriousness of divorce but simultaneously strengthening the institution of divorce in spite of or in the face of its seriousness. In addition the altar represents atonement and divine generosity of making space for human imperfection. Legal meaning is not solely located and adjudicated in the institutions of law but rather in communities of interpretation, the time and place of its application and the stories told in relation to the law. Cohen describes the ‘dialectic tension which generates new legal meaning from old law, and then new law from that new legal meaning . . . all law is understood by the individual communities of interpretation in consonance with the individual narratives that the communities tell about themselves’.67 Because the rabbis equated exile as divorce from God, reclaiming rabbinic power over human divorce (wresting it away from the Torah) was a way for the rabbis to restore control and symbolically defer exile. This is an interesting literary reading which underscores the idea that there are many layers of the text and many simultaneous markers and interpretation of rabbinic texts. To see the rabbinic control of divorce purely as an escape from exilic narrative (not that Cohen does) would be too reductionist and deny the layers of gender inherent in these laws, despite several gendered accounts of the exilic narratives as well.68 There are some cases where the husband’s acquisition of his wife is undermined to the extent that he may be forced to grant a divorce and to pay the amount of the marriage contract.69 It is important to note at the outset that it is only because of the initial unequal exit rights where the woman cannot leave the marriage of her

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own accord that this question of forcing him to divorce emerges. Thus the assumption is that if he was not forced to divorce her she would be unfairly stranded in the marriage with no other way out. One can argue that the degree to which the rabbis made provision to force husbands to divorce their wives reflects the lack of capacity of the woman to affect divorce . Mishnah Ketubot 7:9 describes such a case where the man is forced to divorce his wife: [The court] may not compel [the husband] in whom defects were formed to divorce. R. Simon ben Gamaliel said, When is this the case? – In small defects, but for big defects [the court] compels him to divorce. This case is referring to a situation where after marriage a man develops some problem or dysfunction. The following mishnah details which blemishes would be significant enough to warrant forcing the husband to divorce his wife. They include one who has boils, and other conditions or professions that relate to the man having bad odours which include polyuos (a protrusion on the nose that complicates breathing and creates odour), a tanner, a coppersmith and a gatherer of dog faeces for processing hides. The gemara, drawing on the language in the mishnah, differentiates between those blemishes that already existed in the man – that the woman had accepted – and those blemishes that arose after she consented to the marriage.70 In addition, Mishnah Ketubot, chapter seven, has a number of other occasions when the husband is forced to divorce his wife and even to give her the money of the marriage contract because of the vows that he has made on her behalf. Here although the husband has the capacity to make and cancel vows on his wife’s behalf, the rabbis do place a limit on it. The vows that he makes that transcend the limits of rabbinic acceptability and thus can give rise to forcing the husband to divorce and pay the marriage contract money include cases when the husband makes a vow for his wife; not to get benefit from him for more than one month; not to taste a certain fruit; not to adorn herself; not to visit her father’s house in the same town. The strongest wording is in Mishnah Ketubot 7:5: If one placed a vow upon his wife that she was not to go to a house of mourning or of feasting, he must divorce her and grant her marriage settlement , because he closes all doors against her. But if he would urge, ‘Because of some other matter,’ it is permitted. If he said to her, ‘On

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condition that you shall say to so-and-so what you said to me,’ or, ‘What I said to you,’ or, ‘That you draw water and empty it away on a dunghill,’ he must divorce her and give her marriage settlement . These laws clearly delineate the limit of the husband’s control over his wife – but in so doing, they do not actually give the wife any control over herself. The capacity to limit the power of the husband is held by the rabbis. The mishnah does not allow the husband to ‘close all doors against her’ although he can close many. As well as reflecting the initial lack of women’s capacity in matters of divorce, these particular laws in chapter seven also limit the husband’s prerogative to make vows that affect his wife without her consent. His vows are not meant to preclude a basic sense of herself as a relatively ‘free’ person, even within the bounds of being acquired by her husband. As mentioned above Mishnah Gittin 9:8 clearly states that if a Jew forces a divorce it is considered kosher but if a non-Jew forces the divorce it is considered not kosher. The end of the mishnah says: A letter of divorce given under duress exercised by a Jewish court is legal, but if exercised by a non-Jewish court, it is not; but the non-Jewish court may flog him and say ‘Do whatever the Jewish court commands you,’ and it is legal. The possibility of forcing a husband to divorce is a symptom of the onesided nature of divorce. The divorce needs to come from the man and if it is not forthcoming then the rabbis have a string of cases where the husband can be forced under particular circumstances to grant a divorce. The non-Jewish court can force the husband to execute what the Jewish court determined but cannot force a divorce aside from that.71

Far-reaching consequences of kiddushin including capital punishment There are two major implications associated with the effects of the nonreciprocal kiddushin . One of them is that the woman’s status of being a wife (eshet ish) renders her liable for capital punishment if she has sexual relations with a man other than her husband. The second major implication is the far-reaching consequences of the initial acquisition that possibly creates relationships beyond the lifetime of the husband through the institution of the levirate marriage.

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Biblically, adultery of a married woman is punishable by death for the woman and the man with whom she had sexual relations. Leviticus 20:10 states: If a man commits adultery with a married woman, committing adultery with his neighbour’s wife, the adulterer and the adulteress shall be put to death. The Book of Numbers, chapter 5 prescribes an elaborate ritual for the sotah (straying woman) suspected of being an adulteress. Although the Bible indicates that adultery with an eshet ish , a woman after betrothal, amounted to liability for the death sentence, rabbinic discussion of the sotah and adultery rarely invokes death penalties. In rabbinic literature, the punishment for the adulterers became transformed from death, to the prohibition on continuing both the adulterous relationship and original marriage relationship.72 Mishnah Sotah 5:1 states: Just as the water examines her, so too does it examine him, as it said, and [it] shall enter, and [it] shall enter. Just as she is prohibited to the husband, so is she forbidden to the adulterer, as it is said, she being defiled , and, she be defiled; this is the opinion of R. Akiba. R. Joshua said, Zechariah ben Hakatzav used to expound it in this manner. Rabbi says, Since it is said twice in this Scriptural portion, she being defiled, she being defiled , one refers to the husband and the other to the adulterer. This mishnah uses the doubling of phrases in the biblical account to establish double applicability, first referring to the adulterous couple and then referring to the adulterous woman being forbidden both to her husband and to her paramour. Although in one sense there is no mutuality because on a biblical and rabbinic level (before the enactment of Rabbenu Gershom in the eleventh century that made polygamy unlawful for men as well) a man could have many wives or extra-marital sex with unmarried women without serious consequences, there is mutuality in terms forbidding of the man and woman engaging in the adulterous relationship (if the woman is married to someone else). According to Mishnah Sotah 9:9 it was actually the predominance of extra-marital sex by men that caused the demise of the sotah ritual for married women: When the adulterers increased in number, the application of the waters of jealousy ceased; and R. Jochanan ben Zakkai abolished them, as

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it is said, I will not punish your daughters when they commit harlotry not your daughters-in-law when they commit adultery; for they themselves . . . etc. (Hosea 4:14) Thus despite the predominance of the double standard the rabbis also show discomfort about it to the extent of abolishing the sotah ritual, one manifestation of the double standard. The social context becomes the undeniable matrix for the abolition, development and change of laws. However, as well as modifiying and de-instituting some elements of biblical sotah , and making it more difficult for the man to have his wife undergo the ritual, the rabbis also added some new degrading stipulations.73 The other far-reaching effect of kiddushin is the levirate marriage and the ‘automatic’ acquisition to her brother-in-law to which a wife of a childless husband is subject. The levirate marriage is an institution established in biblical law (Deut 25:5-10) and first referenced in the story of Judah and Tamar in Genesis. If a woman’s husband dies childless then she has an obligation to marry his brother or perform a ritual act (halitzah) to dislodge the obligation to marry. The process of levirate marriage strengthens a notion of the acquisition inherent in the original marriage. On a rabbinic level the initial acquisition of the husband is considered to be so great that the rabbis call the second acquisition of the dead husband’s brother an acquisition from heaven (kinyan min hashamayim). This means that a man betrothes/acquires a woman and if he dies childless, the woman is automatically acquired by his brother.74 Although the rabbis describe the mechanics of it in this way, they stipulate that there should still be the usual marriage ceremony. Mishnah Yevamot 4:4 says: If he consummated marriage with her, she is his wife in every respect, except that her marriage contract is a charge on the property of her first husband. In explaining this mishnah, particularly the issue as to why, if they are married, he does not provide her a marriage contract, deducting the contract from her deceased first husband’s property, the Talmud (BT Yevamot 39a) mentions the phrase that the acquisition is from heaven.75 The use of this phrase can be interpreted as vesting the initial acquisition with so much power that it carries over to the dead husband’s brother through the levirate marriage.

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Death of a husband The woman can be freed from the marriage or acquire herself back either from divorce or from the death of the husband (despite the possible obligation for levirate marriage or halitzah – ceremony discharging the obligation – as mentioned above). The rabbis try to avoid women being stranded in marriages with dead husbands whose death cannot be proved. The rabbis showed compassion and understanding through the leniency in the requirement of evidence of her husband’s death as a prelude to a woman’s remarriage.76 This is another way that the rabbis lessened the potential harm of one-sided divorce through flexibility in the laws of evidence relating to the death of a husband. In Mishnah Yevamot 16:7, Rabbi Akiva quotes Rabban Gamliel the Elder about a tradition of allowing women to marry on the testimony of one witness that her husband had died. Some also say that the leniency extends to being able to marry on the testimony of a woman, a slave and a bondwoman, when testimony from them would usually not suffice. But Rabbi Eliezer and Rabbi Yehoshua say she cannot remarry on the testimony of one person and Rabbi Akiva says she cannot remarry on the testimony of a woman, slave, bondwoman or relatives. The rabbis refer to a story about Levites who went to Tzoar and one of them fell ill and was brought back to an inn. On their return they asked the woman innkeeper ‘where is our friend?’ She told them that he died and she buried him. And on her testiomony they allowed his wife to remarry. And then the rabbis further questioned Rabbi Akiva; ‘Shall not a priest’s daughter be as a woman innkeeper? He responded by saying that she is believed when the woman innkeeper brings evidence. This innkeeper brought to them the staff, bag and sefer Torah (Torah Scroll) that belonged to him. This story is told as proof that a woman’s testimony and accompanying evidence was accepted as basis to allow a widow to remarry. Irrespective of how the rabbis determine this question of reliability and validity of witnesses, it is important to acknowledge the rabbinic concern, in this situation, for avoiding injustice towards the woman that would be caused by higher demands for evidence. This chapter has used rabbinic texts to show the effects of the kiddushin as a non-reciprocal acquisitional relationship. It includes examples of the legal status of the acquisition and how it is initiated as well as evidentiary rules and legal presumptions that impact the way the acquisition takes form and mediates gender relations. Even if one is not willing to call what happens to women in marriage ‘acquisition’, my argument remains unaffected: this chapter documents the dire consequences for women in

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kiddushin according to rabbinic texts, the most difficult consequence – and one from which many women are suffering worldwide today – is being refused a divorce and being unable to remarry. The next chapter will examine concept of the ‘rebellious woman’ and show that even within the acquisitional paradigm there are still different interpretative traditions and possibilities that can mitigate the negative effects of the non-reciprocity of the relationship. It will also show the darker side to acquisition and to male control of women’s sexuality. The values of decision-makers as evidenced in their rulings, remain paramount even where they are unacknowledged.

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Chapter 3

Rebellious Women and Husband-Owned Sexuality

The telltale sign of the non-reciprocity of Jewish marriage is the disparity between men and women in their capacity to leave the marriage. ‘The rebellious woman’ (moredet) – a woman who wants to end a marriage relationship – is a category generated by the earlier rabbis, first appearing in the Mishnah and then further developed in the geonic and medieval periods.1 As a liminal case, ‘the rebellious woman’ shows how the rabbis perceive the boundaries of the marriage relationship. What is the extent of the woman’s autonomy? Can she initiate her own divorce? What are the consequences of this action for her? If she does not want to have sexual intercourse can her husband force her? Is there a general requirement for or presumption of ongoing consent to sexual intercourse in marriage? One of the litmus tests of scholars’ views on the status of women in marriage – and the question of whether they consider Jewish marriage acquisitional – is their approach to women’s initiation of divorce through the category of the rebellious woman (moredet) and the related ‘right’ of the husband to free sexual access to his wife, including non-consensual sexual intercourse in marriage. Even though it is only the thicker notions of acquisition that see marriage as implying that a man can rape his wife (force his wife to have sexual intercourse), it is through the extremes that we can characterize the extent of the acquisitional nature of the relationship.2 Even where rape is not specifically condoned – as in the case of the vast majority of rabbinic opinion – marriage often implies male rights to women’s sexuality.3 It has been established that the women’s right to initiate divorce proceedings was stipulated in marriage contracts dating from the fi fth century bce in the Jewish Community of Elephantine as well as written into Palestinian marriage contracts until the eleventh century.4 The importance of the Cairo Genizah research cannot be overstated in terms of broadening understanding of Jewish marriage practices across east and west.5

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Interestingly, the study of marriage documents from the Genizah shows variations from mishnaic stipulation in both stricture and leniency.6 The variety of these historical precedents confirms the need to expose rabbinic marriage law to critical scrutiny as well as providing potential models for alterations if not alternatives to kiddushin . The rebellious woman appears in Mishnah Ketubot 5:7 where it states: If a woman is rebellious against her husband, he may reduce her marriage settlement by seven denars every week. R. Judah says, Seven half-denars. How long is the reduction to be continued? Until it reaches the full amount of her marriage settlement. R. Jose says he may continue to reduce it, in case an inheritance may fall to her from some source and he can then claim from her. And likewise also if one rebels against his wife, they may add to her marriage settlement three denars a week; R. Judah says, Three half-denars. The mishnah states that the woman who rebels against her husband loses seven dinarim from her marriage settlement per week. The husband can also rebel against his wife with lesser consequence, in which case he adds three dinarim to the marriage settlement per week. The mishnah does not specify exactly what either spouse is rebelling against, but it is clear that they both refuse to do something which they are obligated to do for the other. The symmetry in this passage between the rebellion of the husband and the wife (despite the monetary differential) and the plain meaning of the mishnah seems to suggest that the rebellion centres on sexual intercourse. But this is not the only issue. The Palestinian Talmud specifies that each of the seven dinarim the wife loses corresponds with the obligations she has towards her husband, while each of the three dinarim that he loses corresponds to the obligations he has towards her.7 The tannaitic reduction of the marriage contract (ketubah) by way of a gradual process, agreed upon in the Mishnah above, was changed in a later tannaitic generation as shown in Tosefta Ketubot 5:7 which refers to the mishnah:8 ‘If a wife rebels against her husband . . .’ This is the first mishnah. But our Rabbis enacted that (a court) should warn her four or five consecutive weeks, twice a week. [If she persists], even if her ketubah is a hundred maneh, she has lost it all. According to the Tosefta there is no gradual process but rather a rapid end is brought to the rebellion. Scholars have argued about the relative

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implications of each position, in particular in relation to their position on coercing the husband to give a Jewish divorce.9 After the rebellious woman has lost the money from her marriage contract does she receive a divorce?10 It is clear that the mishnah above only mentions the loss of the money of the marriage contract (ketubah) and does not allude to the husband being coerced to give a Jewish divorce. The Babylonian Talmud asks the question whether the rebellion relates to sexual intercourse and/or work. These responses presuppose that both sexual intercourse and work are preconditions of marriage and that abstention from either of these categories would constitute wifely rebellion. There is some support for the idea that rebellion also includes work not done; Mishnah Ketubot 5:5 clearly states the work that is required of a woman.11 The rabbis define the husband’s obligation towards the wife as including sexual intercourse. Yet there must also be a presumption, implied by presumptions about rebellion, that a wife will not withhold sexual intercourse from her husband. It could also be argued, as Wegner suggests, that the initial acquisition of the wife by the husband – prior to the marriage that signals the onset of the domestic and caretaker work responsibilities – is an acquisition of her sexuality and her reproductive capacities. In this light, her abstention from sexual intercourse becomes a contradiction to the initial acquisition.12 In the Talmud, an amoraic sage by the name of Amemar, says that if we see that she is saying no just to punish her husband then she is forced to stay with him, however if she says ‘he is disgusting to me’ she is not forced to have relations with him against her will.13 The Talmud leaves it unclear as to whether forcing merely refers to the enforcement of the fine stated in the mishnah as mentioned above, or whether it refers to actually forcing her to have sexual intercourse. However, a variant version of this text has been found.14 It reads: . . . if she says, however, ‘He is repulsive to me,’ [Amemar said] he is forced (kayfinin ley). Mar Zutra said: She is forced (kayfinin lah). (MS Leningrad Phirkovitch) According to this version he is forced to divorce her if she says that he is repulsive.15 In the other version it is she who is forced to stay with him and have sexual intercourse. Scholars have argued that the basis for coercion is not only MS Leningrad-Firkovitch’s variation of Amemar’s opinion, but also earlier sources.16 They argue that it was implied, even where it was not

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explicit, and authorized by the Babylonian Talmud, despite the view of Rabbenu Tam and other major legal authorities, that it is an unjustifiable geonic initiative.17 Prior to medieval debates around these issues, the Geonim also made some advances as a reaction to their contemporary milieu. It is around these developments that the medieval debates emerged. In contrast to defining the rebellion as sexual abstinence, Rav Paltoy Gaon (ninth- century Babylonia) has a more nuanced approach to rebellion that understands it as a general sense of enmity, somewhat bypassing the Talmudic bifurcation of the issue as a question of either sexual relations or domestic work but perhaps more in line with the general understanding of rebellion as iterated by the original mishnah. He wrote: If a couple recently quarrels and if she is the instigator, she is deemed a rebellious wife and is entitled to nothing. If he is the instigator, she is entitled to her full marriage contract payment. If the instigators are members of the household such as her mother-in-law or sister-in-law, he is required to relocate his wife since no one lives in close quarters with a snake. If he fails to relocate her he must divorce her and pay the marriage contract.18 As well as giving a sense of historical context to understanding this law, Rav Sherira Gaon’s (900 CE–1000 CE Babylonia) methodological approach acknowledges the influence of the social milieu on the development of the law. By invoking the legal initiatives of the savoraim, considered to be the latest strata of authors/editors in the Talmud, Rav Sherira Gaon links his decision to their later authority and the past 300 years of the enactment, as opposed to the initial rabbinic rulings in the Talmud. He says: Regarding your question of a woman living with her husband, who said to him: ‘Divorce me, I do not want to live with you!’ Is he required to pay her any of her marriage contract or not? Is a woman such as this deemed a rebellious wife, or not? We conclude as follows. Initially, the law was that the husband not be required to divorce his wife if she requests a divorce, except for those cases of which the Sages decreed that he is compelled to divorce her. A wife who refrains from intercourse and from the labours which she is obligated to perform for him, that is the rebellious wife. Despite all this they would not compel the husband to write her a get; rather they

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ordered that she is made to wait twelve months with no divorce granted, in the hope that she will acquiesce. Once twelve months are up, the husband is compelled to write her a get . Later, after the time of the savoraim, [the rabbis] saw that Jewish women go and avail themselves of non-Jewish [courts], forcibly obtaining writs of divorce from their husbands, with the Jews writing these get documents under duress, [each of them] possibly constituting an illicitly enforced get with disastrous results. A decree was therefore promulgated in the days of Mar Rav Raba son of Mar Rav Hunay, as follows: A woman who rebels [against her husband] and demands a divorce, [receives all the assets that she brought into the household, but nothing that he committed to pay her]. The husband is compelled to immediately write her a Jewish divorce, and she is entitled to her basic marriage contract payment. This has been our practice now for more than three hundred years; you too should do the same.19 Rav Sherira Gaon invokes the historical situation of women using nonJewish courts in order to force illicit divorces from their husbands as the basis for making it much easier and more financially lucrative for the woman to be able to be divorced and receive her marriage contract and the property that she entered the relationship with. Therefore this ruling basically gives the woman the capacity to initiate her own divorce without losing her marriage contract and thus being unduly financially penalized: A woman who rebels [against her husband] and demands a divorce, [receives all the assets that she brought into the household, but nothing that he committed to pay her]. The husband is compelled to immediately write her a divorce , and she is entitled to her basic marriage contract payment. The decision by Sherira Gaon is rationalized in terms of preventing a disaster to the Jewish people. It is difficult to determine whether the decision was a moral response to women being trapped in relationships that was couched in wider communal concern or whether the moral concern for women was secondary to the concern for the future of the Jewish people as explicitly stated in the ruling. Irrespective of the motivation, the effects for women in opening up divorce and allowing it with no financial loss remain highly significant.20

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Maimonides allows a woman to leave her husband when she claims that ‘he is disgusting to me’ (me’us alei ) but without the financial entitlement of the marriage contract. He says in Laws of Personal Status 14:8–9: She is asked why she rebelled. If she says ‘He is loathsome to me and I cannot willingly have relations with him’ then pressure is forthwith exerted upon him to divorce her because she is not like a captive that she has to have relations with a man who is hateful to her. However, when she exits [the marriage] it is without anything whatsoever of the marriage contract entitlements. . . . But if when asked she says ‘My purpose is to torment him in retaliation for such and such that he did to me or for his having cursed me or quarrelled with me and the like’ then she is sent away from the Religious Court with the following threat: ‘Be advised that if you persist in your rebellion, then even if your marriage contract is worth a hundred maneh you shall forfeit it all. But how does the above law reconcile with Maimonides’ position in Laws of Divorce 1:1-3 where he states: that a man may divorce only if he has intent . . . as it says in the verse ‘and if she does not find favour in his eyes’ . . . ‘if she does not find favour in his eyes’ means that he only divorces according to his will. And if she divorces without his will, then she is not divorced. But a woman is divorced whether or not she wants it.21 The rebellious woman is an exception whereby the subjective experience – desire or repulsion – of the woman becomes the grounds for her action. In the source directly above, Maimonides repeats the tannaitic view that reinforces the non-symmetrical nature of divorce. The man can divorce at will and the woman is divorced irrespective of her will. However in the law mentioned above, Maimonides supports the notion of coercing the husband to grant a divorce in the case where a woman is disgusted by her husband, on the grounds that she is not a prisoner who should be forced to have sexual intercourse with someone she hates. However, coercing the husband to give his wife a divorce has not been a popular strategy. Even as early as Rabbenu Asher (1250 or 1259 West Germany – 1328 Spain), less than 200 years after Maimonides there is a rabbinic turnaround against coercion of the husband, especially in relation to the legal ground of him being ‘disgusting to her’. Rabbenu Asher

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advocates for the right of the husband to maintain and hold on to the marriage, even against the wife’s will: Moreover, I say the Geonim that ruled as they did were acting on what appeared to be the imperative of the hour for the sake of the daughters of Israel. Today the situation is the opposite; the daughters of Israel are immodest . . . therefore it is best to stay far away from coercion. A great wonder at Rambam for saying that she is not like a captive that she has to have relations with a man who is hateful to her. Is that a reason to coerce a man to divorce and to permit a married woman? Let her refrain from relations with him and remain in living widowhood all her days! After all she is not obligated to be fruitful and multiply. (Rabbenu Asher, 43:8) In negating the idea of coercion, Rabbenu Asher implies that it is more important to stop the woman getting another more desirable husband than actually ensuring that the current husband is behaving in a way that befits a loving and sexually active partnership. He is reasserting the initial power of the acquisition of the woman by the man. A wife cannot leave a marriage easily, just because she wants out. Men cannot be left this vulnerable that their wives could leave them when they find someone else they prefer. When Rabbenu Asher condemns the woman to living in widowhood it is unclear whether or not he is implying that she would need to be celibate, but that the husband would have access to other sexual relationships outside the marriage. It is also unclear whether he would be prevented from fulfilling his ritual commandment (mitzvah) of having children because she did not want to have sex and whether he was saying that fulfilment of that ritual commandment is less important than actually stopping her from getting out of the marriage. Or in fact, Rabbenu Asher could be signalling the possibility of the husband actually having sexual intercourse with his wife against her will in order to fulfil his commandment to reproduce. Below I will address the range of medieval opinions that relate to the requirement of consent in sexual intercourse between husband and wife. The position that one holds in relationship to this question becomes another key marker, in addition to the initiation of divorce question, in determining where a commentator stands in relationship to the extent of the acquisition effected by marriage. The different positions elucidated by Rav Sherira Gaon, Maimonides and Rabbenu Asher can be summarized in the following way. Rav Sherira Gaon allows women the capacity to initiate divorce through the institution

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of the ‘rebellious woman’ without her losing her marriage contract. He gives a pragmatic and communal justification – to prevent tragedy to the people of Israel. He is explicitly responding to the facts on the ground where women are using civil courts to effect divorces with disastrous Jewish communal consequences. In addition to her receipt of the amount of her marriage contract he makes provision for the woman to leave the relationship with the possessions with which she entered it. Maimonides, on the other hand, uses the mechanism of the women’s subjective experience, when she thinks ‘he is disgusting to me’ to justify the divorce on the basis that a Jewish woman shouldn’t have to live as a prisoner with a man whom she hates although she does forfeit her marriage contract payment for her freedom. His position does not seem to be based in a particular time or circumstance, but more on a general principle that a woman should not have to be stuck in a home and sexual relationship with someone who she hates. Rabbenu Asher, however, argues on the basis of contemporaneous Jewish women of his time who are ‘immodest’. He expresses fear of men’s vulnerability to being abandoned in a more open system when he says ‘no daughter will remain in her place sitting [under] her husband’ if the rules of marriage are opened up in the way that Rav Sherira Gaon suggests. The divergence in these opinions demonstrates how laws change in relationship to social milieu and also how the response to any situation is tempered through a set of ideological commitments. The rabbinic sources refer to a range of situations where the husband has to give the wife a Jewish divorce. The situation is confused by the existence of some cases where the text says that he is compelled to divorce her as opposed to where it says plainly that he divorces her. This distinction could possibly be the result of a difference in circumstances in the two cases or it may be explained differently. Commenting on the Talmudic accounts the Tosafists, on this occasion Rabbi Isaac of Dampierre (twelfthcentury France) gives a competing analysis of what these Talmudic references mean. As the Tosafists say on BT Ketubot 70a, words beginning He must divorce her and pay the ketubah: Rabbi Isaac of Dampierre (Ri) holds that in all these cases where the Mishnah rules that he must divorce her, he is compelled specifically when he has done something against the law . . . [This can be] further proven from the Talmudic discussion below (BT Ketubot 77a): Rav said, If a husband states ‘I will provide no food or sustenance’ he must divorce her and pay the ketubah. The sugya (pericope) goes on to ask: Instead of compelling him to divorce her, let them compel him to provide for her!

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This implies that the phrase ‘he must divorce her’ indicates the use of compulsion. . . . Now you might ask, why were these cases not included in the list of those who are compelled to divorce [Mishnah Ketubot 7:9-10]? One can reply that that list only addresses cases like a leper or a man with polyps, conditions that come about involuntarily but not cases like these, where the compulsion results from the husband’s misbehaviour. Rabbenu Hananel, however, cited the Jerusalem Talmud to prove that in all these cases of which the Mishnah rules that he must divorce her, no compulsion is employed. . . . Hence he rules that compulsion can be used in those cases of which it is explicitly stated that ‘he is compelled’. It seems more correct, however, that compulsion should be used in all these cases as argued by the Ri. The Jerusalem Talmud holds that compulsion can mean verbal pressure; whereas we [i.e. The BT tradition] hold that a slave cannot be disciplined with words [Prov. 29:19; cited to this effect in BT Ketubot 77a], and hence the instruction is to use the rod, since the phrase ‘he must divorce her’ implies compulsion, as he is wronging her. Still, this should be not put into practice compelling a husband to divorce [his wife] except on the basis of clear evidence. For the Talmud teaches that a get (Jewish divorce) forced [even] by Israelites, [if] not in accordance with the law, is invalid and a married woman should not be permitted [to another] where there is uncertainty. The Tosafists above at BT Ketubot 70a, in a characteristic manner, refer to one of their own members, (the Ri) and then bring a counter-argument from the Palestinian Talmud in the name of Rabbenu Hananel (Kirouan, North Africa – eleventh century) that denies the use of compulsion where it does not explicitly mention it. The Tosafists are clearly making an interpretative choice as to how to respond to this problem. In order to justify the Ri’s position, they refer to the definitions of compulsion, which, in the case of the Palestinian Talmud does include verbal pressure but the case of the Babyloian Talmud does not. One may have thought that because the Palestinian Talmud has a broader definition of coercion that includes verbal pressure, even if it objected to physical coercion it may have been okay about verbal pressure. But actually given that the Babylonian Talmud does not include verbal pressure under the rubric of coercion, when the Tosafists invoke that tradition to justify coercion it is even stronger because according to them verbal pressure is not even included as coercion. In establishing that verbal pressure is not considered coercion, the Tosafists cite the source from Proverbs 29:19, ‘A slave will not be instructed by words

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alone; For though he understands, there will be no response.’ It is ironic that in a social and legal economy where wives are often grouped with slaves (and minors), that the Talmud mentioned this rule ‘that a slave cannot be disciplined by words’ as the basis for determining the extent of compulsion that can be applied to a man in forcing him to divorce his wife! This reference turns the connotation of wife as slave on its head. The husband is being analogized to the slave. There are some references of him being enslaved to his wife (meshuabad ).22 Even if he is not the slave to the woman, then perhaps he is a slave to the religious court or even to his evil inclination (yetzer hara). Although the Tosafists clearly come out supporting Rabbi Isaac of Dempierre, arguing that compulsion should be used in all cases, nevertheless their view is tempered by warnings against using compulsion including a requirement of ‘clear evidence’; making sure it is in ‘accordance with the law’ and not using it in a case where there is uncertainty. Again it is difficult to tell if their use of cautionary language is strategic or constitutive of their position. In case I am employing the hermeneutics of suspicion unfairly I will explore why the question arises. We have just established that the Tosafists hold the opinion that coercion to divorce should be applied both in cases where the Talmud explicitly mentions coercion such as in cases where a man has conditions that he has contracted involuntarily and also where the ‘compulsion arises from the husband’s misbehaviour’. However, what exactly does it mean then when they say that the compulsion – referring to the case of the husband’s misbehaviour – should be on the basis of clear evidence? This could be a way, as mentioned above, to show that the Tosafists are not taking this lightly, yet this could also be used, by later decisors, as a basis for paralysis and desistance from adjudicating according to this ruling because of the fear of uncertainty. The final line of the Tosafists strengthens my concern because they reiterate the legal point that a forced divorce (get) even by Jews is not valid if it is not according to the law. So although according to the law a Jew can force a divorce that is valid, there is not a blanket rule that all forced divorces by Jews are valid. This hovering uncertainty can function as a barrier between legal decisors and their capacity to make social change and to decide according to the more lenient aspects of the law. There is always the possibility that there is uncertainty and understandably so, no one wants the burden of wrongly permitting a woman to remarry after an invalid divorce and having children from a union that could possibly be considered illegitimate.23 There are two distinct perspectives on marriage and the gender dynamic involved in getting men and women to marry each other; one understands

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women as wanting to be married more than men and the other understands that men want marriage more and that women actually lose out through marriage. Cohen has shown that the Tosafists can be seen as representing the dominant patriarchal view of marriage in which women’s desire to marry is seen as greater than that of men, while Rashi challenges this dominant paradigm in suggesting that a woman needs an incentive to get married.24 These different paradigms about marriage can have serious implications for how we might understand each of their respective positions about acquisition, the rebellious woman and rights in relation to consensual sexual intercourse. One example of the dichotomy of approaches to marriage is from BT Gittin 34b-35a and refers to the requirements for a widow to claim for inheritance in a court from the children of her deceased husband on the basis of her marriage contract (ketubah).25 In that case the widow has to swear an oath that she has not already claimed her entitlements. In doing this she is actually in line with the other people who are claiming from the estate who all need to swear an oath. The statement that clearly shows the difference between Rashi and the Tosafists is a response to the question why we may have thought that the widow would have been treated differently than the other creditors. The Talmud answers that it is ‘because of her favour’ that we may have thought that she would be treated differently to other creditors. Rashi and Tosafot have opposite interpretations of what this statement means which reflects a difference in their ideological positions regarding marriage and the gendered assumptions thereof. Rashi argues that the statement ‘because of her favour’ should be interpreted ‘so that the men will find favour in the eyes of the women, so that the women will marry them’. In Rashi’s model there is no presumption that the woman wants to be married but rather women’s desire for marriage is represented as being wavering and by no means automatic and taken for granted. This is a surprising acknowledgement of women’s agency and volition albeit within a context where the woman is both acquired by the man in marriage as well as vulnerable to his choices around ending the marriage.26 The most interesting aspect of this explanation is the suggestion that women may in fact opt out of the marital system.27 Rashi’s understanding of women’s reluctance to be married reflects how he actually sees marriage and his view on acquisition within the marriage continuum. The Tosafists understand ‘because of her favour’ in a different way that is in alignment with their view that women want to be married to men, more than men want to be married to women.28 They say that ‘because of her favour’ infers that the proposed leniency in the case of the widow is so that

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other men will want to marry her because she will have received some payment and will not be entering into the new marriage penniless: The interest of the [patriarchal] system, as Rashi sees it, is to convince women to go along with the system of marriage by keeping it fair, and making certain that women perceive it as fair. It is this that the Tosafists do not recognise as a necessity because it is beyond the horizon of their possibilities that women will not want to participate.29 The Tosafists may view the acquisition of the woman by the man in a more narrow sense and thus have no qualms about expecting that women would want to be married. Perhaps because Rashi has a more extended sense of the degree to which the man acquires the woman in marriage that he would be more hesitant in claiming that all women would want this. Thus as a consequence of the way Rashi sees marriage he thinks that women need to be enticed to be married. Rashi’s position on marriage emerges most poignantly in his treatment of the acquisition of the levirate woman whereby if the levir has intercourse with her, even against her will, he has acquired her and he will inherit her (BT Yevamot 8b). Later at BT Yevamot 29b he interprets and justifies sexual intercourse ‘against her will’ on the basis ‘that he has acquired her and she becomes his wife with intercourse against her will because she does not have a wedding canopy (chuppah)’. At the very least it is evident that Rashi is acknowledging the capacity of the levir to affect the levirate marriage through intercourse and through forced intercourse at that. It is uncertain whether we can extrapolate from this example that Rashi would permit forced sexual intercourse between husband and wife in general. The question is whether Rashi is permitting forced sex in this case because the levirate is a special case whose union is seen to be a ‘kinyan shamayim’ (acquisition from Heaven) or whether it is part of a larger picture for Rashi about the rights that a man has over a woman once he has acquired her in marriage. Does he condone the act of forced sexual intercourse on the basis of it being the one intercourse that firms up the levirate marriage or was he referring to a continual right of sex that the initial acquisition guarantees? From a close reading of Rashi at BT Yevamot 29b it seems that he is not condoning rape, but because sex is the way that the yevamah (woman widowed who is obligated in the levirate marriage) is married without a marriage canopy (chuppah), since the yevamah is married without her consent, then that means she can be married through sexual intercourse.

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As we have seen the Tosafists (at least Rabbi Isaac of Dempierre, if not Rabbenu Tam) are more flexible about the capacity for the husband to be compelled to divorce his wife, and therefore according to the logic I am employing, have a lighter conception of the acquisition. This logic is drawing an inversely proportionate relationship between the scholar’s conception of the degree of acquisition in marriage and the woman’s willingness to get married: the ‘thicker’ the conception of marriage, the less a woman wants to get married.30 This could either be a cause for him thinking women want to be married or it could be a result of it as mentioned above. However, despite the apparent leniency of Rabbi Isaac of Dempierre in terms of the wider applicability of compelling the husband to divorce (the warnings, as mentioned above, not withstanding) Rabbenu Asher as cited above bases his response on the restrictive position of Rabbenu Tam, the other most prominent Tosafist. Rabbenu Asher (the Rosh) says (43:8): With regard to compulsion to deliver a divorce (get), I found that our Masters, the sages of Ashkenaz and France steer away to the utmost extreme from any manner of compelling the husband to divorce in the context of a wife’s defiance for they find Rabbenu Tam’s position and proofs to be correct and worthy of being endorsed. Even if it were an open question [whether to endorse Rabbenu Tam’s position or that of Geonim and Maimonides], one ought to steer clear of [causing violation] of a possibly married woman and [thereby] proliferating illegitimate children (mamzerim) among Israel. Evident here is the paralysing effect of fear that hovers over the strict letter of the law. Rabbenu Asher says ‘even it were an open question [whether to endorse Rabbenu Tam’s position or that of the Geonim and Maimonides], one ought to steer clear of [causing violation] of a possibly married woman’. Thus Rabbenu Asher is negating the reliance on the opinion of the Geonim and Maimonides and warning readers of the dangers of this position. Without denying the significance of illegitimacy (mamzerut), this statement by Rabbenu Asher shows the significance of the deployment of fear. What are the rabbis scared about? What are the tropes that evoke their fears? It makes a political difference which fears are motivating one’s actions. For example, what if the fear was addressed to worries about whether or not women were going to be harmed and the Torah and divine name would be profaned? What would legal decisions look like? This discussion about the uses of fear provides another illustration that all legal decisions are both

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part of a narrative and also are invested and directed through a complex interplay of values, interpretation and the dynamics of authority.

Rape in marriage as a reflection of acquisition Partly due to the attribution of proprietary rights to the husband over the wife in marriage, the concept of rape in marriage has a complicated legal history in the West. By definition, rape was often not seen as possible within marriage – this ‘rape exemption’ was premised on the understanding that heterosexual marriage involved implicit and continual sexual access to the woman by the man. Such a notion precluded the possibility of withdrawal of consent, and thereby also the possibility of rape. Historically, rape was also impossible because wives were seen as the same legal person as their husbands and therefore prohibited from making a legal claim against them.31 (Rape in marriage has only become illegal in all US states in last 20 years.) Although this ‘same legal persona’ idea also exists in rabbinic thinking, Jewish law has often been touted as progressive in this area and is marked as a legal model for later western developments in the criminalization of rape in marriage.32 Scholars have argued that ‘implied consent for sexual intercourse is alien in Jewish law’33 and that the law commands the parties to engage in sex only of their own volition.34 However despite this widespread perception, the non-reciprocal establishment and dissolution of the rabbinic marriage, and some rabbinic understandings of the marriage relationship, may not be as wholly supportive of women’s rights in this area as suggested. Despite the prevalent view that rabbinic law does not condone rape in marriage, a minority of later rabbinic commentaries define the acquisition inherent in the betrothal of Jewish marriage (kiddushin) as synonymous with acquisition of the sex right. To be sure, the vast majority of commentators do not condone rape in marriage, but the non-reciprocal nature of marriage makes it vulnerable to such interpretations, even if not widely accepted. Even if we were to cast aside those minority commentators who explicitly condone rape in marriage (which I don’t think we should), these minority cases cast a shadow on all marriages following this model. Even if rape has not occurred or been condoned in the majority of Jewish marriages, the fact that the model of partnership could give rise to interpretations that permit rape in marriage is extremely troubling. The question of a male sex right implicit in marriage (excluding times of sexual separation around birth and menstruation) is important in analysing

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Jewish marriage as a relationship where the man acquires the woman. In the traditional Jewish context, the boundary of the husband’s proprietary rights over the women is further layered and complicated through the rabbinically construed right of the woman to receive sexual pleasure from her husband, a right interpreted by the rabbis on the basis of the biblical verse, Exodus 21:10.35 Although subject to possible alternate understandings, this right to sexual pleasure is interpreted as one of the three biblical obligations incumbent on a husband, alongside food and clothing.36 Modern scholars use the man’s obligation to give his wife sexual pleasure as a foil against claims of the male sex right in marriage. For example, one scholar argues that sexual intercourse is ‘the duty of the husband and the privilege of the wife’.37 BT Eruvin 100b states: Rami Bar Hama said that Rav Asi said: It is forbidden for a man to force his wife in a holy deed, for it says, One who presses the legs is a sinner [Prov.19:2]. And Rabbi Yehoshua ben Levi said: One who forces his wife in a holy deed will have dishonest children. Most scholars argue that seeing rape in marriage as a sin is not a minority opinion but rather, as Daniel Boyarin argues, the generally held and authoritative position both of the Talmud and of later Jewish law. Indeed, far from treating a wife as a piece of property, or mere object for the satisfaction of the husband’s sexual desire, Talmudic law may be the first moral or legal system to realise that when a husband forces his wife the act is rape, pure and simple, and as condemnable and contemptible as any other rape.38 However, the sources are not all as unequivocal about rape being forbidden in marriage. As mentioned above, the rabbinic construction of sexual pleasure (onah) as a commandment incumbent upon the husband obscures the more difficult question of the wife’s right or otherwise to refuse sexual intercourse with her husband. The question whether the marriage implies unspoken sexual access to the woman is directly related to understanding the marriage as an acquisition of the woman. The way in which scholars use claims about male acquisition in marriage in order to justify the sex right will become evident below. Tannaitic sources do not refer to the husband’s right to have sex with his wife. In the Tosefta (Nedarim 7:1) there is a source that may imply that there is not an automatic assumption and right of sexuality for a man

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with his wife. There the Tosefta delimits a list of his wife’s vows that he can and cannot overturn. (The overturning of one’s vows by one’s husband is another reminder of the acquisitional nature of the marriage relationship.) At the end of this list is a selection of vows that he does not even need to overturn because they simply do not even hold, thus is the power of the acquisition and subsequent marriage. Tosefta Nedarim 7:1 says: If she says ‘I will not serve you, and I will not wipe your feet and I will not pour your glass, he does not even need to overturn it, she is forced against her will. The capacity of the husband to overturn a vow of his wife in all matters except for those that do not involve deprivation and are between her and other people (as opposed to her and him), is considered to be a mark of the power of the acquisition. This power is even more evident ‘in absentia’, in the case of the woman cited above who vows not to serve her husband. He does not even need to overturn her vow because it has no validity from the beginning. It is like her words cannot exist to the extent that she or they will in any way undermine the acquisition and possession of the wife by the husband.39 Since the Tosefta does not include sexual relations in this category of vows that do not even stand as vows to be overturned, perhaps we can assume that the Tosefta does not include sexual intercourse as an assumed right of the husband through marriage. However the later Babylonian Talmud is not as silent about the male sex right when it comments on the above Tosefta. This raises the question about where there was a conscious shift in the way sexuality in the marriage was seen between the tannaitic and amoraic periods. The Talmud limits the situation where the husband would overturn the vow (implying that the vow still stands) to a case where the woman would vow that she would not get pleasure from sexual intercourse – because as the Talmud states at BT Nedarim 81b ‘noone can be fed what is forbidden to him’ but states that if she was forbidding her husband from sex with her then it would not even stand as a valid vow because it goes against the basis of the marriage relationship and the acquisition it implies. Like the wife who vowed not to serve her husband with domestic duties, the woman who vows not to have sex with him is not considered to have made a vow at all. Sexual access is the basis of the marriage relationship and thus it cannot be sustained without it. One of the models for understanding the centrality of sexual intercourse to the marriage is the model of the woman’s sexuality being acquired to the man.

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The following source to be found at BT Niddah 12a does not sanction rape outright (although it may indirectly) but it does raise serious questions about whether the rabbis require married women to consent to sexual intercourse; The rabbis teach: Donkey drivers and workers and those who come from a house of mourning and from a house of celebration – their women have a presumption of ritual purity. And they can come and be with them whether they are awake or asleep. What does this refer to? If they left them in a state of ritual purity, but if they left them in a state of ritual impurity then she is ritually impure until she says ‘I am ritually pure’. In this source we see that a woman’s ostensible personal consent and autonomy is superseded by the category of her ritual purity and impurity. If he knows that she was ritually impure when he left then a husband assumes his wife is also in this state when he arrives home and that he can have sexual intercourse with her even while she is sleeping. She does not need to consent but she does need to have been ritually pure, at least when he left her. The Tosafists at BT Niddah 12a need to reconcile that text there (as quoted above) which seems to allow the man to have sex with his wife if she is asleep as long as he left her in a state of ritual purity, with the prohibition for having sexual intercourse with a sleeping woman in BT Nedarim 20b.40 The Tosafists write: ‘Including sleeping ’ – meaning, that they are not subject to the prohibition of the menstruant. But it is forbidden to have sexual intercourse with a sleeping woman as it says in Nedarim. Or else here it refers to her when she is not completely sleeping, but rather she is not awake enough to be able to respond if she is ritually pure or not.41 In reconciling these two seemingly inconsistent texts, one that says that a man can have sexual intercourse with a woman if she is sleeping as long as he knows she is ritually pure, and the other which says that sexual intercourse with a sleeping woman is forbidden, the Tosafists have created a new category of semi-sleeping. This new category refers to the woman who is apparently too asleep to respond about her ritual status, but not asleep enough for the prohibition of sexual intercourse with a sleeping woman to be applied to the man.42 Women can disguise their capacity to choose when they want to have sex by invoking their impure ritual status. In a situation where a woman may feel

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powerless then she may use her capacity to withhold or delay sexual encounters with her husband as a way to reclaim a sense of autonomy and power in the relationship. In fact the Palestinian Talmud recounts such an episode: Shmu’el wanted to sleep with his wife. She said to him: I am in the status of impurity. But the next day she said: I am in the status of purity. He said to her: Yesterday you were in the status of impurity and today you are in the status of purity!? She said to him: Yesterday I did not have the same strength as today. He went to ask Rav, who said to him: If she gave you a plausible reason for her words [which she did] she can be believed (JT Ketubot 2:5). As we can see from the story above, the wife of Shmu’el has a measure of control over the couple’s sexual life that is couched in her control over the way that these laws of menstruation are practised. Fonrobert reads this story as a symptom of the rabbi’s anxiety about women making halakhic decisions to their advantage as well as undermining women’s authority through questioning their believability.43 However it should be noted that while these instances of women’s transformation of the very institutions that bind them is transgressive and exciting, it is also a reflection of the power relationship that is constructed around them that leaves them with relatively few ways to refuse sexual intercourse with their husbands. At BT Pesachim 49b we see that even if it is sanctioned in some respect, rape is not seen as desirable and is represented as something that only ignoramus would do. Are the rabbis here projecting their desires on to the ‘other’, which, in their case is the non-scholarly Jewish male? The scholar however is the embodiment of Torah and the sanctifier of all things worldly. It says: It was taught in a baraita: Rabbi Meir used to say: Everyone who marries his daughter off to an ignoramus, it is as if he has caught her and put her before a lion. Just like a lion tramples and eats and has no shame, so too an ignoramus hits and has intercourse and does not have any shame. The rabbis acknowledge that this violence happens to women in marriage, yet they are distancing themselves from it through projecting it on to the ignoramus. Is this the only way that the rabbis regulate their relationships and make sure there is not violence against women? If it is prohibited then why are there no express prohibitions against violence against women and more

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specifically against rape in marriage?44 The acquisitional relationship, and the lack of respect and equality that it represents, can become the foreground for emotional and sexual and other physical violence against women. This model of marriage as acquisition and the concomitant freedoms that it gives men to control women’s lives is taken one step further by radical feminist theorists such as Sheila Jeffreys who characterize heterosexuality as the eroticization of subordination. In this model it is the power differential that lies at the heart of the sexual charge in the heterosexual relationship.45 In this paradigm, the capacity for a man to violate a woman within marriage is not the exception to be overcome, but rather, it is the constitutive definition of the relationship and the location of sexual charge. She says: The heterosexual couple is the basic unit of the political structure of male supremacy. In it each individual woman comes under the control of an individual man. It is more efficient by far than keeping women in ghettoes, camps, or even sheds at the bottom of the garden. In the couple, love and sex are used to obscure the realities of oppression, to prevent women identifying with each other in order to revolt, and from identifying ‘their’ man as part of the enemy. Any woman who takes part in a heterosexual couple helps to shore up male supremacy by making its foundations stronger.46 Some later halakhists recognize the right of the husband to force sex upon his wife physically. Those who recognize rape in marriage and disallow it often couch their objections in terms of holiness and the vertical relationship with God, as opposed to ethics and the horizontal relationship of mutuality between the man and his wife. It is a problematic reflection of the marriage relationship that a breach of the woman’s bodily integrity and general human decency is not actually considered to be a breach of the marriage relationship. When the text about sex with a woman is addressed solely to the man it can be experienced as debasing and humiliating by a woman reader. As a woman, I have had the sensation that I am eavesdropping on a conversation that I am not supposed to be hearing. When the text describes what the man is permitted to ‘do to’ the woman, the reader becomes witness to this possibility of what can be done to a woman; the act of of listening objectifies the ‘wife’ in a pornographic modality. Practically verbatim from BT Nedarim 20a-b, Maimonides, Laws of Forbidden Intercourse 21:9:

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A man’s wife is permitted to him, therefore whatever he wants to do with her he does, he penetrates [same word as ‘possess’] her whenever he wants, he kisses any part of her body that he desires, he has intercourse with her in the usual and unusual way (that is, from the back and front) [as long as he does not waste seed]. And even so, one of a righteous disposition will not lighten their head with this and will sanctify himself at the time of sexual intercourse, as we said in Laws of Knowledge , and he will not stray from the path of the world and his custom that this thing is only for being fruitful and multiplying. The fact that Maimonides leaves it to ‘one of righteous disposition’ to be sanctified at the time of sexual relations leaves open some gaping questions about regular men who may not be of such elevated disposition. Despite his ostensible permissiveness, he enumerates some strictures and boundaries in relation to sexual intercourse. Maimonides’ Laws of Forbidden Intercourse 21:11, 12 state: The rabbis are not pleased with someone who has a lot of sexual intercourse, one who is upon his woman like a rooster, and it is a very big flaw and something for the uncultured. Whoever has less sex is worthy of blessing as long as he does not negate the obligation to his wife without her consent. . . . Thus the rabbis forbade a person to have sex with his wife and think about another woman. And he cannot have sex in drunkenness, and not while fighting, and not from a place of hatred, and he should not have come upon her against her will so that she would be scared of him, and not when one of them is meant to be separated (menudah), and not when he has decided in his heart to divorce her, and if he does this, the children will not be moral, rather they will be brazen and even rebels and sinners. Rabbenu Nissim (The Ran) (eleventh-century Tunisia) at BT Nedarim 20b echoes Maimonides’ sentiments. According to him a man who puts fear into his wife by raping her will not have decent children and behaves in an unkosher way. This is similarly not an outright prohibition but more like a moral discouragement.47 The Raavad (Rabbi Abraham ben David in Baalei Hanefesh) establishes some strict principles for sexual intercourse.48 He says: Rape is forbidden even with one’s wife. But rather if he needs that thing, he must entice her and then penetrate her. . . . And the turning of the tables alone is what they allowed, I am only saying this when it is not

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forced on her and when she wants him with desire, but if he forces her to turn – he is definitely not saved from sin . . . and like the first opinion, it seems to me that it is forbidden to do anything to her without her consent until one entices her and she desires. In his comments the Raavad does include the opinion that says that if the woman consented to sexual intercourse then he can ‘turn the tables’49 even if she is compelled to do that because she has agreed in general to intercourse.50 The Ran, in a commentary on BT Nedarim 20b, says that when ‘it is written; “when a man takes a woman”, she is taken for him to do with her all he desires.’ Evidently this biblical verse, one of the few biblical verses about marriage, is used to bolster the later rabbinic notions of the acquisition in marriage. The Shita Mekubetzet (sixteenth-century compilation) on BT Nedarim 15b, says: If a woman says to her husband ‘my sexual intercourse is forbidden to you’– we force her and he has intercourse with her because you do not find her being removed from her servitude because she is acquired to him for his intercourse as it is written; ‘when a man takes a woman’. Here, the Ran and the Shita Mekubetzet employ the biblical marriage language of taking (kicha) as a way of describing the acquisitional nature of marriage. In their appropriation of ‘taking’ (kicha), the original ‘taking’ in the biblical source of marriage stands as a motif for continual and ongoing – possibly forceful – ‘taking’ of the woman by the man.51 The Netziv Naftali Zvi Yehuda Berlin although a later posek (nineteenth century), takes this concept even further in a way that is instructive in creating a sense of the problem of marriage as acquisition and the effects of that on the sexual relationship between a man and woman. He says (Meshiv Davar 4:35); And the acquisition of the wife by the husband is in matters of personal status, and it is not like what the Rambam said about the prohibition to penetrate an available woman . . . if he rapes her God forbid he has to pay shame and hurt expenses and he is like a thief . . . this is not so with his wife who is acquired to him and she is obligated to give him at every moment that he desires and she does not do so willingly then he can force her like a master forces his maidservant to do his work and all these things are clear and it is not necessary to reflect more about it.’

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Although the Netziv is a nineteenth-century legal decisor, his opinion is instructive as an extension of some of the other views about marriage and acquisition emerging from the medieval commentators with their roots in the rabbinic material. It shows the ultimate logic and danger of acquisition. In this dangerous power dynamic of acquisitional marriage the couple would have to work against the grain to establish mutual trusting partnerships and break the model of an unequal master–slave like dynamic. In this chapter, I began with an analysis of the notion of the ‘rebellious woman’ to show that women’s acquisition in marriage has been subject to various interpretations and legal consequences. Furthermore I argued that certain thicker notions of acquisition in Jewish marriage may be interpreted to allow a man to rape his wife. Other scholars have limited their understanding to women’s acquisition in Jewish marriage to the domain of her reproductive and sexual functions.52 For them, the problem of rape would possibly still be relevant. I do not accept the downplaying of the acquisition in Jewish marriage. The fact that a woman cannot be on-sold does not undermine the analysis above that shows how some people interpret marriage to include non-necessity of consensual sexual intercourse. 53 Even though there are rabbinic scholars who overtly prohibit rape in marriage this does not undermine my argument that makes the nexus between thicker notions of acquisition and rape in marriage, thus showing the inappropriate nature of acquisition as a basis for marriage. This inappropriateness is pronounced if marriage is to function as the foundation of the kind of mutual relationship that many heterosexual Jews may want to create in the twenty-first century and beyond. After detailing the development of the laws of the rebellious woman as well as establishing some of the parameters of the male sex right in Jewish marriage, the necessity to transform marriage becomes more evident.

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Chapter 4

Conditional Marriage

Conditional marriage provides one way of limiting the husband’s power to withhold a Jewish divorce from his wife. In fact, according to the modern iteration of conditional marriage the ongoing viability of the marriage is conditional on the man not withholding a divorce from his wife. At the time of marriage, the husband still acquires the wife but he invalidates the marriage if he withholds a divorce. Conditional marriage is an alternative to regular Jewish marriage that simultaneously mitigates the sole control of the husband over exit rights. Conditional betrothal as referred to in the early rabbinic sources does not usually apply beyond the marriage ceremony itself, in an ongoing timeframe. In cases where it does extend beyond the marriage ceremony, rather than invalidating the original marriage in the lifetime of the husband, it usually invalidates the original marriage in the case of the death of the husband so that the woman is relieved of the obligation to marry the dead husband’s brother in a levirate marriage. Those who would negate the use of conditional marriage as an alternative to marriage in a contemporary context do so for both formal legal reasons – such as claims about the non-validity of the condition and the inappropriateness of having an ongoing condition – as well as for express policy considerations – such as the immutability of the religious law and the purported degradation of the sanctity of marriage. Jewish marriage can only be dissolved either through the death of the husband or through divorce. If the woman is to remarry without the divorce, then she is considered adulterous and any offspring from that union are considered mamzerim , a special derogatory status for children who issue from a woman who is married to a man and becomes pregnant from another man.1 Mamzerim can only marry other mamzerim and they retain this status forever.2 Women today and throughout history have

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been prevented from remarrying either because the husband refuses to grant them a divorce or because he is incapable to give a divorce due to a variety of factors including physical or mental illness or being missing in action.3 The levirate marriage, even when not carried out, required (and still requires for some Jewish citizens in Israel) the widow and the dead husband’s brother to perform a ritual called halitzah to discharge the levirate obligation. A woman whose brother-in-law refuses to cooperate in that ritual also remains stranded and unable to remarry according to Jewish law. There have been a number of proposals trying to alleviate the plight of those women who are unable to get a divorce from their husbands (which occurs in most cases due to his recalcitrance). It is in the context of the levirate marriage that the Babylonian Talmud discusses the possibility of a conditional marriage that would be granted to a woman if it was known that her husband had a brother who had some characteristic that would either prevent him from giving her a halitzah (ritual to discharge levirate obligation), or alternatively make it highly undesirable for her to be married to him.4 One well known example of a conditional marriage was that established by Rabbi Israel of Bruna (Mahari Bruna) (1400–80 Germany), who made a condition based on talmudic precedent, that where a man with a brother who has specific undesirable traits (for example, like an apostate) married a woman and required halitzah , it would be deemed as if they had not been married and therefore the need for a halitzah would be obviated. This is understood differently to a condition that explicitly says that the levirate marriage would not take place. The latter condition would be a blatant condition against something in the Torah and therefore invalid. The conditional marriage is a device that comes to exclude the levirate marriage through the dissolution of the initial marriage.5 In the late-nineteenth and early-twentieth century, European Rabbis engaged in heated debate over certain ways that conditional marriage was being used in France. With the introduction of civil divorce into the French courts on 29 July 1884, the French rabbinate was concerned about women remarrying after receiving a civil divorce without being granted a Jewish divorce.6 As a consequence the rabbis wrote to the Rabbi Eliyahu Hazzan, Chief Rabbi of Alexandria (1888–1908) who, with hesitation, suggested the introduction of a conditional marriage.7 He said: Perhaps there is hope by means of a condition at the time of betrothal and marriage and at the time of seclusion and sexual intercourse. I know that this permissive ruling is not generally agreed upon; nevertheless,

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it is of some help, because those who allow it are fit to be relied on – in the time of pressing need in which we find ourselves – for the rescue of the daughters of Israel and in order not to increase mamzerim in Israel.8 (Responsa Ta‘alumot Lev III, 49) Hazzan was responding to a problem whereby despite their civil divorce, Jewish women were still married to their original husbands – according to Jewish law – but having sexual relations with someone else. In addition the offspring from the new union were considered to be mamzerim as mentioned above. The French conditional marriage proposal was formulated so that if the husband refused to give his wife a Jewish divorce after the civil court issued a divorce, the marriage would be regarded as retrospectively nullified.9 This proposal inflamed the rabbinic establishment because of their perception of its prioritization of secular law over Jewish law. For them, it amounted to stripping the husband of his right to withhold divorce. Among other claims, the European rabbis argued that the conditional marriage was invalid because the nature of non-reciprocal Jewish marriage meant that a husband has the right to withhold divorce, a right that they saw as biblically mandated and hence non-negotiable.10 In recent times there has been lively debate about this: Letters of outrage against the French proposals were collected by Lubetsky in a collected work entitled ‘Ein Tenai be Nissuin’ (No Condition in Marriage) published in 1930 in Vilna. In 1966, Berkovits published a book in response to Lubetsky’s collection entitled ‘Tenai be’ Nissuin uv’Get ’ (Conditions in Marriage and Divorce).11 This chapter discusses conditional marriage through the prism of the interaction of these rabbis. What emerges from this material – especially as developed by Berkovits – is an account of conditional marriage as a more ethical alternative to regular marriage. The legal discussion that follows is indicative of one important strategy in feminist approaches to religious law that relies on attention to the fine details of the law and its different authoritative interpretations in order to extract possibility and nuance. Mishnah Kiddushin 3:4 states the basic rules concerning how any condition needs to be worded. What is required is a double condition enumerating two hypothetical situations with the positive scenario (in this case, the fulfilment of the condition that upholds the marriage) being stated first.12 Rabbi Meir says, Any condition which is not like the condition of the Children of Gad and the Children of Reuben is not a condition, as it is

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written ‘And Moses said to them “If the children of Gad and the children of Reuben will pass” (Numbers 32:29), and it is written “But if they will not pass armed”’ (Numbers 32:30). This Mishnah refers to the biblical account of the incident in which the Tribes of Gad and of Reuben asked if they could have possession of a certain part of the land that they encountered before they passed over the Jordan River to the rest of the land.13 If they would have settled in that land without the condition that Moses stipulated, they would have been settling in the land while the rest of the tribes were in battle across the Jordan to possess their own land. A valid condition in Jewish law cannot contravene something stated in the Torah.14 One of the main arguments against conditional marriage is that it makes a condition contrary to what is written in the Torah and is thus invalid. This issue becomes complicated because despite what is explicitly stipulated in the Torah, the rabbis have a host of derived laws that are accorded the status of being stipulated in the Torah despite not being overtly mentioned as such.15 An example of a condition in the Torah that goes against an overtly stipulated law is that a man could not marry a woman on the condition of not providing her food, clothing and conjugal rights because those requirements to which the husband is bound are stipulated by the Torah.16 However as the early rabbinic text below elucidates, because these Torah requirements are considered a monetary issue, it is permitted because the rule precluding a condition contrary to Laws of the Torah is limited to non-monetary matters. Those who argue against conditional marriage that retroactively dissolves the marriage if the husband refuses to give a divorce, argue on the basis that the Torah gives the man the right to be able to refuse to give a divorce and to ensure that the woman only receives a divorce from a husband who gives it of his own free will. Tosefta Kiddushin 3:7-8 states: [If he says] ‘I hereby betrothe you . . . on condition that if I die you shall not be subject to levirate marriage,’ she is betrothed, and the condition is void, as he has stipulated a condition contrary to a Law contained in the Torah, and when anyone stipulates a condition contrary to a Law contained in the Torah, the condition is void. [If he says] ‘on condition that you have no claim against me for food, clothing, or conjugal rights,’ she is betrothed, and the condition is valid. This is the principle: Contracting out of a Law contained in the Torah as to a monetary matter is valid, but as to a nonmonetary matter is void.

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Thus in order to justify a conditional marriage – and avoid the problem as defined here as making a condition contrary to the Laws of the Torah, the divorce or marriage needs to be defined as a monetary issue (mamon) rather than a non-monetary issue (issur or ritual prohibition). Although this may seem unlikely, the Palestinian Talmud does in fact classify divorce as a monetary issue, perhaps because it has monetary consequences as well as others. The Palestinian Talmud says at Ketuboth 5:8(30b): R. Yoseh said: For those who write [a stipulation in the marriage contract] that if he grows to hate her or she grows to hate him [a divorce will ensue, with the prescribed monetary gain or loss, and] it is considered a condition of monetary payments, and such conditions are valid and binding. The Babylonian Talmud, which has legal predominance over the Palestinian Talmud, does not share this opinion.17 However, if matters of marriage and divorce are considered as monetary issues more opportunities arise for acceptable conditions. Even if marriage is not classified as a monetary issue and therefore subject to conditions according to the rules of the Babylonian Talmud, the legal requirement that the husband has to grant a divorce of his free will needs to be addressed. There is an apparent contradiction in the traditional sources whereby on the one hand the husband needs to give the wife a divorce of his own free will, but on the other hand, there are also cases where the husband is forced by the Beit Din (Religious Court) to give his wife a divorce (both discussed in detail in Chapter 2). This seeming contradiction has been responsible – as contradictions often do – for producing a host of interpretations and reconciliations. In the Mishneh Torah, Laws of Divorce 2:20, Maimonides offers an interpretation of free will which reconciles this seeming contradiction. He says that because a husband’s true will is to give a Jewish divorce, it is his yetzer hara (evil inclination) that is preventing him. Thus forcing him is not really against his will rather, it is in opposition to his evil inclination. This creative approach is based in an alternative understanding of will. The most obvious interpretation of will is the basic ego, the ‘will’ that corresponds with what a person wants or thinks he or she wants. Maimonides is making an assumption that everybody’s true desire is in alignment with the Torah and therefore if someone is not acting in that way, they are off the path and do not have access to their true will.18 In this model the Beit Din becomes

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the embodiment of the proper will which Maimonides defines, at least in this case, as the desire to fulfil the halakhic precepts.19 The Kesef Mishneh , a commentary of Maimonides’ Mishneh Torah by Rabbi Joseph Caro, author of the Shulchan Aruch , takes another interpretative leap in relation to resolving the tension between the husband giving the divorce to the woman of his own free will and the legal feature of being able to force – through physical punishment – the husband to give a divorce. He says that the Beit Din is not forcing the man to divorce through hitting him, but rather hitting him causes him to do something to stop the hitting.20 He is still giving the divorce even if he is doing it because he wants the hitting to stop. This is differentiated from some kind of legal mechanism – such as the conditional marriage – that actually has a similar effect as a divorce, but where it is achieved through the nullification of the marriage. A forced divorce under acceptable circumstances results in an actual divorce, whereas withholding of a divorce in conditional marriage could potentially render the marriage retroactively nullified, depending on the stipulations of the condition. Whereas both Maimonides and Rabbi Joseph Caro were able to address formal legal concerns by reconciling ‘forcing’ the husband to give a divorce with the requirement for a divorce to be given of the husband’s free will, Rabbi Denishevsky (in ETB) reacts with incredulity to the idea of a woman being able to have a reciprocal power of divorce. Because according to the Torah a get (Jewish divorce) has to be of his free will, he divorces [her] if he desires, and if he does not so desire, he does not divorce [her], and the relationship remains intact. But not that he should be compelled to divorce her and if he does not divorce her, she is no longer his wife.21 According to Denishevsky, the rabbis never envisaged the possibility of a husband divorcing if he did not want to. Conditional marriage in the context of a levirate marriage differs from that in a regular marriage, because in the levirate marriage, the original marriage is not affected in the lifetime of the husband. The only relationship that is affected in the conditional marriage in a levirate context is the relationship with the brother of the deceased husband, either the obligation to marry him or discharging the obligation that has been activated after the death of the husband. For example, the condition affecting a regular marriage may retroactively nullify a marriage if the husband himself

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refuses to give a divorce. This is in contrast to a condition affecting a levirate marriage that would retroactively nullify a marriage once the husband is dead in order to avoid the activation of the levirate obligation. In addition, the post-talmudic application of the talmudic presumption that a person would not have relations unless he or she intended to be married (ein adam oseh be’ilato be’ilat zenut) can lead to uncertainty as to whether the condition is nullified once sexual relations have taken place.22 One of the reasons why the validity of a condition is questioned is because the presumption that a person would not want to have licentious relations implies that if a couple is having sexual intercourse then they are presumed to have consented to a full marriage and not a conditional one that would later invalidate the act.23 Another related reason why conditional marriage is of uncertain validity, according to some opinions, is because if a person gets betrothed on condition and then gets married and has sexual intercourse, it is assumed through these actions that there is consent to a full marriage and not a conditional one that could still be nullified at some point in the future. This uncertainty has also given rise to the suggestion of needing to repeat the condition prior to every act of sexual intercourse (or immediately after) so as not to invalidate the initial condition through the act of intercourse. Because they want to err on the side of caution in the stringent laws relating to divorce, the rabbis may presume that the condition was nullified and a divorce is required. A general Jewish legal principle is that when there is a doubt with respect to a matter of biblical origin one is required to judge more stringently, whereas a doubt in a rabbinic matter can be determined leniently.24 In the Mishnah, conditional marriage is most frequently based on a finite time period within the time between the initial betrothal and the marriage.25 Examples of this condition with a limited time period include Mishnah Kiddushin 3:2: If one says to a woman, ‘Behold you are betrothed to me, on condition that I give you two hundred zuz’ – then she is betrothed and he gives. ‘On condition that I will give you from now until thirty days,’ if he gave her within thirty – she is betrothed. And if not – she is not betrothed. ‘On condition that I have two hundred zuz’ – then she is betrothed and he has. ‘On condition that I will show you two hundred zuz’ – then she is betrothed, and he will show her. If he shows her on the table, she is not betrothed.

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All the conditions mentioned above by the rabbis can usually be ascertained either before the actual wedding or very shortly after and usually within a limited and specified time period. It is considered to be important to determine the status of the marriage – if it is nullified or of it remains valid – within a finite period so that the relationship is not left indeterminate.26 Some rabbis have argued that if the conditions cannot be ascertained shortly after the wedding then the question arises as to whether the condition has ongoing validity or whether the acts of marriage and living together have invalidated the condition altogether.27 Also at issue is whether it is the Beit Din or another third party that nullifies the marriage. The former is looked upon more favourably by the religious authorities because it does not challenge their authority and destabilize the institution of marriage in the way that ‘privatized’ annulment would.28 In the case of the levir one of the considerations noted above – namely the rabbinic presumption of no one wanting their sexual relations to be considered as licentious – may be understood as not applying because the husband is deceased when the marriage gets retroactively invalidated. In addition, as will be evident below, even if one did consider the presumption to be applicable, Rabbi Yechiel Michel Epstein (1829–1908) in the Aruch Hashulchan offers a third possibility of relationship that cuts across the black and white paradigm of either marriage or licentiousness. The third category mentioned in the Aruch Hashulchan acknowledges the possibility of an exclusive relationship outside of a marriage framework. The significance of exclusivity cannot be underestimated and it is related to the anxiety about indeterminate paternity.29 Rabbi Jacob Emden (1697–1776) makes this explicit in Sheilat Yabetz (2:15) where he bases the prohibition on the daughters of Israel against becoming sacred prostitutes because of the ‘need to differentiate between one seed and another’. In this vein he reiterates the well-established rule that a woman needs to wait three months between partners, to ascertain that she did not become pregnant with the previous partner and to maintain knowledge of who the father is.30 Technically in this case of the levir, the invalidation of the marriage occurs to overcome the obligation of levirate marriage and the halitzah ritual. And it is for this very reason that critics of this application of the conditional marriage have seen it as undermining the Torah obligation and commandment of levirate marriage through contracting it out of existence and invalidating the initial marriage. Although the condition of Mahari Bruna does not legislate against levirate marriage in the given situation,

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it circumvents the levirate obligation in the beginning by nullifying the initial marriage. The full details of the condition to take effect in the case of a levirate marriage are set out in Aruch Hashulchan (EH 157:16-17). The Aruch Hashulchan prefaces this condition by naming authorities who both agree and disagree with its use in a situation where a man’s brother has an impediment that would make it undesirable or impossible for his wife to either be married to him or receive the halitzah discharging the levirate marriage obligation: The groom says to two kosher witnesses in front of the bride: ‘Listen to me you witnesses. I want to marry this woman Sarah bat Abraham and I want to marry her on condition and go to the chuppah with her on this condition and also to have sex with her on this condition and also every time we have sexual intercourse it shall be on this condition and this is my condition: If I have living progeny when I die, or even if I do not but Sarah bat Abraham dies before I do, or even if I die first but my brother Ishmael ben Abraham has already died before me, or even if I died first but I gave her a get before I died then our kiddushin (betrothal) will be total and our marriage will be total. And if I die before my wife and I have not divorced her before my death and if I do not have progeny then the kiddushin (betrothal), the chuppah (the marriage), the sexual intercourse and all of the matters relating to our personal status will be retrospectively nullified and the ring that I gave her will be for a present and not for the purpose of kiddushin’ (betrothal) and then he will immediately give her the ring and repeat ‘it is on the conditions that I said that I give her this ring’ and then they call eight people and the birkat erusin (Blessing of engagement). And then they go to the chuppah (wedding canopy) and read the ketubah (marriage contract) and say the seven blessings. And before he goes to the chuppah the groom says to the witnesses ‘listen to me, you are the witnesses that on condition that I said at the kiddushin I am going to the chuppah’ and at the time of seclusion he also tells the witnesses that it is subject to condition that he is entering the room and even when they have sexual intercourse witnesses behind the wall hear him say that ‘it is still subject to condition that I said at the time of kiddushin that I am having sexual intercourse and so too every time we have relations if it will not be as I said then it will not be considered intercourse between a man and wife but rather of a man with a single woman who is exclusively in relationship (meyuhedet) but without kiddushin and without ketubah because the whole nissuin and ketubah is done on these

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conditions according to the specific details that were enunciated and that the witnesses signed and the Beit Din will keep the signatures so they will have proof if they need it. And in any case the legal deciders said that it is not licentiousness (zenut) because she is in exclusive relationship with him (meyuhedet) and not like a prostitute. Yet they should be careful not to get to this point of nullifying the kiddushin (betrothal) and nissuin (marriage) and be careful to give her a get before he dies when she is still alive. Although the finer details of this condition and the issues that it raises will be looked at in more depth below in the context of Berkovits’ treatment of conditional marriage, it is worthwhile at this point to highlight some of the salient features of the condition as outlined by the Aruch Hashulchan.31 Above it was noted that there are various requirements that a condition has to fulfil in order for it to be a kosher condition. Although all rabbinic authorities may not agree with this precise condition, it does provide an example of the different elements of a condition that are required in order for the condition, in general terms, to be acceptable. They are based on the condition of Gad and Reuben as enunciated in the Bible and include the formal requirement that the condition needs to be a double condition and that it needs to start with the affirmative as mentioned above which is then followed by the negative scenario. The above condition does so, starting off by saying that it is a conditional marriage and then listing a whole range of possible scenarios which, if they were to happen, would ensure that the marriage would be considered as complete and valid. Then it stipulates the other side of the condition, suggesting the possible scenarios that, if they were to take place, would result in the nullification of the marriage. The negative scenario is stated (in the condition as stated above) as follows: And if I die before my wife and I have not divorced her before my death and if I do not have progeny then the kiddushin (betrothal), the chuppah (wedding), the sexual intercourse and all of the matters relating to our personal status will be retrospectively nullified. At the time of the retrospective nullification of the marriage, the ring that was given for the initial purpose of marriage, becomes retrospectively understood as a straight gift. There are two other notable features of the account by the Aruch Hashulchan. First one cannot help noticing the repetition of the condition at every point, reflecting the anxiety about the

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possibility that additional actions by the groom and with the bride could invalidate the original condition. This anxiety has its roots in talmudic discussion (and the ein adam presumption) and also harks back to some fundamental disagreements about the way that marriage and sexual relations are understood. Of additional significance is the categorization that the Aruch Hashulchan gives to the relationship after it has been retrospectively nullified. Because it was an exclusive relationship the Aruch Hashulchan called it meyuhedet (exclusively partnered) without kiddushin or ketubah but definitely not promiscuity or prostitution. This category of sexual relationship that is an exclusive relationship that is not marriage is extremely significant for the possible development of models of committed relationship that are not marriage.32 It challenges those perspectives that argue the black and white version that there are only two positions; either marriage or promiscuity with nothing in between.33 As mentioned above, some rabbinic authorities argued against the conditional marriage model because of a legal presumption that ‘no one wants their sexual intercourse to be considered licentious’.34 The argument goes that no one would agree for their marriage to be retrospectively nullified because no one wants their sexual intercourse to be considered as licentious. That argument presupposes that there is no model of sexual intercourse outside of the marriage framework that is not considered to be licentious. It also implies that there is a halakhic concept of ‘retroactive licentiousness’ because the initial marriage would only be retroactively nullified and at the time of intercourse it would have been considered as legitimate. Chapter 5 further explores the territory of non-marital committed sexual relationships. In attempting to translate the conditional marriage of Aruch Hashulchan to other situations a very significant detail should be noted. The conditional marriage that he suggests only potentially takes effect after the death of the husband in relationship to averting a potential problem of a levir refusing to do the halitzah ceremony and therefore preventing the woman from remarrying in that way. There are different issues at stake when the condition could be exercised in the lifetime of the man, therefore causing the annulment of his marriage in his lifetime.35 It is evident in the condition above quoted in the name of the Aruch Hashulchan that there is some attention to the possibility that each following act in the marriage process could be seen to invalidate the initial condition as expressed before the two witnesses at the betrothal. This is based on a range of talmudic examples and proofs.

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The first chapter of Berkovits’ book Tenai be’Nissuin uv’Get (TNG) (Condition in Marriage and Divorce) is dedicated to the issue of what actions or inactions imply that a condition is overridden and result in a full marriage that requires a divorce and what actions imply that the condition is still in play and that no divorce is necessary. The question of whether a condition is nullified or not and the subsequent results of this nullification centres around two main arguments. First, if a person did not repeat their condition at significant times – such as marriage and sexual intercourse – then it is assumed that he or she has abandoned the condition. Secondly, there is a presumption people would not engage in illicit sexual relations and therefore if they either had sex or they got married (where intention for sex is assumed) then those actions would be within the framework of marriage. Berkovits summarizes the positions of the rabbinic authorities with regard to the status of conditional betrothals and what factors affect whether the condition is either upheld, or overridden in which case the woman would still require a divorce to be freed from the relationship. Berkovits claims that the condition of Mahari Bruna does not fall in the category of a condition against the Torah, even according to the stricter view of the Babylonian Talmud which considers marriage a matter of ‘prohibition’ and not a monetary matter.36 He also says that the condition of Mahari Bruna should not be restricted, as some would argue, to the case of the apostate brother, but also includes a brother who has disappeared, become mad or is deaf.37 Berkovits argues that the concern about overriding of the condition also does not apply for several reasons as outlined below: 1. There is no question about doubting if the condition exists at the time of marriage or of sexual intercourse because the condition is in the future and will not be clarified till the future. This is different from the marriage that is conditional upon the husband not finding a certain blemish in the wife in which case there is no particular moment when it is known that he has accepted her as she is, and has fulfilled the condition and ratified the marriage. 2. Because the condition is based on her protection against being an agunah (chained woman) it is not right to assume that she would drop this concern and give up her condition. In addition, because the condition is for the woman’s benefit it is not the husband’s prerogative to renege on it and we assume that she will not give up on it. 3. The presumption that a person does not have licentious sexual relations does not apply here to invalidate the condition because it is not

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considered to be licentious. She is having relations with him in a monogamous way but it is also not considered as a complete marriage, because it is subjected to a condition. Despite these elements, Berkovits also says that one needs to be careful about the wording and suggests, as does the Aruch Hashulchan , that the conditional betrothal happens before the marriage ceremony. Berkovits also makes a fundamental conceptual leap when he says that: If it is possible to make a condition in a marriage, not only of an apostate brother but also when the brother is mad or disappeared, then it is possible to make a conditional marriage in any wedding if the bride and groom decide for whatever their reason may be. Although he may be extending the parameters for conditional marriage, Berkovits further qualifies his statement when he says that it should be limited to a real time of need otherwise there is no reason to stray from the ways of our ancestors. Berkovits differentiates his proposed condition both from the condition of Mahari Bruna and also from that of the French rabbis. It is on this basis that he states that the arguments of ETB do not apply to his proposal. Firstly he argues that since his condition is in the wife’s benefit there is no concern of annulment without witnesses and/or through the action of sexual intercourse.38 Secondly he distinguishes between forcing a divorce, which may be construed as being against the Torah, as opposed to nullifying the marriage, which he argues is not to be construed as such.39 Finally, Berkovits argues that the French rabbis wanted to make a clause in every marriage that no Jewish divorce would be necessary with a civil divorce whereas Berkovits’ condition would only come into force in a case where a husband refused to give his wife a divorce, and only then would the marriage be retroactively nullified.40 As shown above, the early rabbinic precedent for conditional marriage was limited to the case of levirate marriage. What differentiates this case from a regular conditional marriage is that in the former, the condition is only activated after the death of the husband. Thus, in his lifetime their marriage is not affected. In contrast, when there is a conditional marriage that nullifies an existing marriage if the husband does not give a Jewish divorce following the breakdown of the relationship, there is the potential for the relationship to be nullified in the lifetime of the man. By accepting the conditional marriage he may be seen to be diminishing his own power

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to withhold a divorce from his wife because he has agreed to certain ramifications to his own behaviour. Berkovits also differentiates his condition from the French condition in how it addresses the relationship between civil and Jewish divorce. In the excerpt below he shows how Lubetsky described the French condition and then shows how his is different: They also mentioned that according to civil law the woman can claim to break up the marriage and if she does so against the will of the husband and gets a civil divorce then it will be as if she is, of her own accord, removing herself from her husband. And then the Children of Israel will be like all the other nations, as it says in the Jerusalem Talmud in the second chapter of Tractate Kiddushin, that according to the laws of the nations, he divorces her and she divorces him. It is clear that none of these considerations apply to our conditions. (my emphasis)41 Berkovits can differentiate his condition from the one that ETB describes because in his suggested condition, civil marriage does not play a role and the husband has the opportunity to grant his wife a divorce from his free will. Only in the extreme case where he refuses to grant his wife a divorce will the condition that would retroactively nullify the original marriage be activated. The fact that a certain conditional marriage may only be nullified some time after the event of the marriage, in some cases a whole lifetime, differentiates this kind of conditional marriage from the conditional marriage mentioned above in which the condition can be clarified either before the actual wedding or immediately after. Whereas one may have thought that the fact that the condition would only be clarified later would be something that would make the marriage weaker, Berkovits argues that because it is known that the condition will only be clarified later, some of the other issues relating to questioning the status of the relationship in the interim period do not apply as they would if the condition would be ascertained within the first day or two of marriage. Berkovits writes: When they made the condition both of them knew that it would not be resolved a certain amount of time after the marriage. It is because of this that questions of annulling the condition or the presumption that a person does not have illicit relationships do not apply.42

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The presumption that a person does not have sex in illicit relationships is used by others to invalidate the possibility of conditional marriage. Berkovits argues that there is ‘no difference if a marriage is nullified during someone’s lifetime or after’ because he thinks there is no such thing as retroactive ‘licentious relations’.43 What that means is that even if a marriage is nullified at a later date, the sexual relationship that occurred during the marriage is not considered retrospectively as licentious.44 Berkovits adds that if licentiousness can be retroactively construed, a husband would not want it attributed to him even after he has died which would remove a distinguishing factor between conditional marriage as it applies to a husband who has died as opposed to one who is alive. He says: Now, in the pamphlet Ein Tenai be’ Nissuin , one of the rabbis said in the name of Nahalat Shi’vah that specifically if the marriage is nullified after the death of the husband one can rely on the Mahari Bruna because after his death the husband will not worry about the status of his sexual intercourses. I am very surprised that words such as these came from a Rabbi of Israel.45 Berkovits understands that irrespective of the outcome of a conditional marriage, sexual intercourse is not considered to be licentious when it was performed with the intention of marriage. Another major discussion in the Talmud relates to the capacity of the condition to remain active and valid at every stage of the betrothal, marriage and subsequent occasions of sexual intercourse. There is concern that if the condition is not mentioned at every moment, the husband has overridden his condition and the marriage stands without condition. This concern is ameliorated if sexual intercourse immediately follows the betrothal and they are considered as one event and do not require a separate and express reminder of the condition in order for the condition to be valid.46 Berkovits’ condition is different because the condition is understood to be in the wife’s advantage. Berkovits mentions that a woman is only betrothed with her consent and if she has a condition then that is the basis upon which she is betrothed. He says: In a case where the woman has made a condition which results in a loss for her if she cancels the condition, there is no suspicion that she has cancelled it.47

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He quotes Rabbi Yehezkel ben Yehudah Landau, the Nodah B’Yehudah who says that every case of marriage is considered a loss for a woman because she becomes forbidden to every man unlike her husband who is only forbidden to her relatives but is allowed to have other wives, at least on a biblical level. He continues quoting: Since in every kiddushin there is a loss for a woman when she makes a condition it is considered to be eternal and we do not suspect that perhaps she has withdrawn her condition.48 In his detailed analysis of Ein Tenai be’Nissuin , Berkovits refutes the concept that someone who gets married conditionally and has sexual intercourse needs a Jewish divorce because of a fear that the condition in the conditional marriage has been nullified. For we have seen that if the reason [that a person needs a Jewish divorce] is because of foregoing the condition, if he once stated explicitly that he abides by the condition, then he cannot renege on it. This is explicit in the Ran and also emerges from the Tosafists.49 Given what has been established above about the way in which the marriage is essentially disadvantageous for the woman compared to the man, it follows that if there is a condition in her favour then it should never be assumed that she has given up on that condition unless she explicitly mentions that she has.

The conditional marriage debates as a window into different approaches to Jewish law, interpretation and moral agency The letters in the Lubetsky collection are impassioned pleas to the rabbis of France to desist from their evil ways and to restore the Jews of France back to the holy tree of Israel. Although the impetus for these letters is the French conditional marriage proposal, some of the claims made by the rabbis are paradigmatic of the long-standing struggle with modernity and illustrate a polemical position of holding on to a ‘pure’ tradition and casting aside any ‘alien’ influences. This yearning for the origin ignores the ways in which tradition has evolved continuously through creative interaction with a range of social, cultural and economic institutions, ideas and influences reflecting the history and multiplicity of Jewish life. In his

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introduction to this version of the printed edition of Ein Tenai be’Nissuin , Rabbi Aharon Dov Alter Varanowsky opens with a sense of outrage before referring in any way to the substantial issue at hand: The greatest evil and danger to the existence of the Torah and its sages, the carriers of its banner, is not the enemy and hater from outside, from the peoples of the world, from the foreign nations that surround us, but rather he who is our flesh and blood, our haters and excommunicators from within, they are the enemies of God within our very midst, who ambush the lives of our souls, all the while pretending to love us, it is they who are the haters of Torah and its destroyers, who seek to uproot not only ‘one thing from the Torah,’ but even all its foundations and the whole Torah itself. . . . We feel upon ourselves the bitter impact of ‘the exile of the Jews’ especially among our ‘Hellenisers’ whose impact is much harder for us than all the damage we suffered from the foreign ‘Greeks’ who stood against us generations ago. There are many types of these new ‘Hellenisers’ that have arisen among us in recent generations, whose first priority and extra effort is exerted in interpreting the Torah against the law, in an attempt to adapt the Torah to today’s fashions. 50 It is significant to note that the discussion about conditional marriage that is undertaken throughout the book is prefaced by comments of this nature. No legal discussion is devoid of context. The Lubetsky collection displays a reverse proportional relationship between the general objection and personal attacks, on the one hand, and the particularities and detail of legal discussion, on the other. In other words, the more a scholar addresses the sources with depth and detail, the less he makes broad generalizations, personal attacks and alarmist claims. There is evidence from this collection that demonstrates that the less a scholar refers to formal legal rules and actual engagement in the explicit details of the law, the more their argument is bound up in alarmist claims and polemics. This introduction to the current edition is prefaced with two quotations from classical Midrash, Leviticus Rabbah: Rabbi Alexander said: If all the nations of the world would gather together to make the wing of a crow white they would not be able to, just as if all of the nations of the world uproot one thing from the Torah they will not be able to. (Leviticus Rabbah, 19)

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Rabbi Akiva said: Israel is compared to a flying bird, just as a flying bird does not fly without wings, so too Israel can’t do anything without its elders. (Leviticus Rabbah, 11:8) Varanowsky is using these two texts in several ways. The first source refers to the inability of the nations of the world to uproot even one thing from the Torah. When Varanowsky refers to this statement he does so in the context of saying that these ‘enemies of God from within our midst’ that come not only ‘to uproot one thing in Torah’ but all the foundations and the Torah itself. Where the nations of the world are powerless to affect the Torah, like changing the wing of a crow from black to white, the nations of the world have no capacity to affect Torah. This text could reinforce the strength of the Torah vis a vis the nations but it also shows the Torah’s vulnerability, at least the way Varanowsky interprets it, to the actions of other Jews. The model of the nations of the world trying to uproot something from the Torah presents an adversarial model of relations with the non-Jewish world. Varanowsky is arguing against interpretations of Torah taking on contemporary influence and would be in denial of the way that Torah has transformed across time through the constant interaction of Jews with their host communities and the richness of diasporic life. The metaphor of changing the wing of the black crow to white is also indicative of the black and white, dichotomizing thinking that characterizes Varanowsky’s approach. The second source focuses on the Jewish people and the question of authority. The Jewish people are compared to a bird that needs wings to fly. Just as the wings enable the bird to fly, the Jews cannot do anything without their sages. If we read this second text in light of the first, the assumption is that unlike the nations of the world, the Jews can uproot one or even more things from the Torah and thus they need the guidance of an elder. Or rather the Torah needs to be protected from Jews by their elders who literally sit at the gates, in this case, of Torah. Challenging the authority of accepted norms is especially threatening in areas of personal status because the capacity of Jews from different communities being able to marry each other is undermined. According to Jewish law, as mentioned above, the child of a woman who was married to someone else when she got pregnant becomes a mamzer and is consequently banned from marrying other Jews and can only marry other mamzerim . Taking the analysis of these two introductory texts one step further, in the first the language is descriptive in saying that the nations cannot uproot

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the Torah. It is not that they are not allowed to uproot the Torah, that would be a normative claim, but it actually describes that they actually cannot do it, because they don’t have the power to do it. In contrast, the second text says that Israel cannot do anything without their elders. Because people can theoretically do whatever they want, one would assume that means that Israel should not do anything without its elders. Although this is a normative rather than a descriptive claim, it can also be read descriptively, to mean that in some ontological way Israel cannot do anything without its elders.51 These claims are based on a particular view of the overriding authority of the rabbis and their determination and adjudication of both Jewish law and practice. In prefacing the collection of letters against conditional marriage, these narrative texts serve polemical purposes. The metaphor of the flying bird without wings as a comparison to Israel without its elders is a descriptive model. By using a descriptive model to parallel a normative claim, the midrash may be making an even more significant point that the normative injunction of not doing anything without the elders should be as if it was actually descriptively impossible to do anything without the rabbis. This issue of marriage and personal status impacts on the capacity of Jews around the world to marry each other and therefore it also inspires claims about the maintenance of purity and holiness, and the future of the Jewish people.52 The extra-legal arguments represent the tension between fundamentalist and more progressive approaches to learning and living religious law. In the appraising letter and preface to the Lubetsky collection, Rabbi Chaim Ozer Grodszanski describes the ‘great and overriding danger to the sanctity of personal status and family purity’ as well as ‘the destruction and the split that this will cause the House of Israel – to harm the foundation of personal status and to multiply illegitimate progeny that we will not be able to marry them’. Towards the end of the introductory letter he displays his deep distrust of the motivation of the French rabbis when he says ‘they want to make decrees based on their own opinions that are likely to uproot the foundations of Torah and their alibi is to fix the problem for agunot ’. In his view, this ‘is a “fixing” that serves to wreck, harm and profane the holiness of personal status in Israel and to make it a matter of trading and acquisition, and that is shocking’. It is ironic that Grodszanski describes the proposals for conditional marriage as a matter of trading and acquisition. The ‘fi xing’ that he labels as an alibi is a result of attempts by rabbis – misguided or not – who

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are responding to the crisis that women have found themselves of being stranded by husbands who will not issue them with a divorce. There are no new acquisitions or trading in women being proposed. It is the initial acquisition of the marriage, as detailed in the mishnah that is being addressed here in this dire hour of need. This is one of countless examples where the rhetoric of the ‘holiness of marriage’ is used as a way to leave oppressive social relations in tact between men and women as if that imbalance is in some way related to a sense of holiness. There are many examples of the way contemporary rabbinic discourse uses holiness and modesty as a way to reinforce women’s subordination and exclusion from the public domain. As Erica Brown argues; ‘the way that it [modesty] is used in current rabbinic literature, even when the act is a religious one, the fact that it may involve a public appearance or performance deems it inappropriate’. 53 When and if moral sensibility about gender power relations becomes more developed in the contemporary Orthodox rabbinic establishment then issues of gender justice will hopefully stand for holiness in the domain of women’s rights in marriage and divorce law. One of the major claims of fundamentalist religion is a call for ‘authentic tradition’ – as if such a thing really exists – which entails ignoring the products of human agency and intervention on which any tradition depends. Linked to this sense of tradition is a belief that the law is unchanging. It has always been a certain way and will always be that way. This approach to tradition plays down the impact of changing social, cultural and economic conditions on the law. Scholars such as Halbertal, Hauptman, Friedman, Freiman and Adler have provided evidence about the extent to which the laws of Jewish marriage have always been involved in a dynamic of change. In the preface to his opening paragraph that follows the two articles mentioned above, the editor of this collection, Lubetsky states: This Torah that is found in our hands, only it is eternal and shall never be replaced. This is not true of human laws and practices – they change from generation to generation according to the spirit of the time and place.54 Further on, Lubetsky compares the ‘eternal knowledge of the Torah of Moses’ to the opinion of the French legislators who are bound to change from generation to generation. The final words in this opening letter

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resound like a campaign against modernity and change and the buttressing of the fundamentalist religious perspective. He says: We have therefore commanded that the words of the generation’s sages and giants be inscribed with a stylus of iron and lead, that future generations know that this Torah shall never be replaced, and that fear of God is eternal.55 The conflict between Jewish traditional law and secular law is constructed vehemently in this discussion, with no suggestion that the two can exist side by side, precisely because the French proposal is using the secular establishment of civil divorce as a springboard to establish conditional marriage. If the wife has received a civil divorce and the husband withholds a get ( Jewish divorce) then the marriage is considered retroactively nullified. In other words should the couple get a civil divorce, the marriage is conditional on the husband granting his wife a Jewish divorce. If he refuses, then the marriage is considered as if it never happened. Lubetsky voices this tension in his notes in the introductory pages of the collection: In state law, the will of the collective is law. But in halakhic matters we are not at liberty to add or subtract from the Torah law given to us as an inheritance. This idea of the Torah as given wholly with all the changes and innovations that would eventuate has its origins in rabbinic teachings. This is expressed in Exodus Rabbah 28:4:56 Another thing: ‘And the Almighty spoke all these words’. Rabbi Yitzhak said: The prophets received at Sinai everything they were destined to prophecy in the future. For Moses said to Israel: ‘with the one who stands here with us today and the one who is not here with us today’ (Deuteronomy 29:14). It does not say ‘[the one who does not] stand here with us today,’ but rather ‘[the one who is not] here with us today.’ This refers to the souls to be created in the future, as they have no substance, and it cannot be said of them that they ‘stand.’ . . . And not only did all the prophets receive their prophecies at Sinai, but so too did the sages of every generation, each and every one received his share at Sinai.

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The idea is expressed in a range of ways in rabbinic texts. In the Palestinian Talmud Peah 2:4 it is expressed as follows: The Bible, Talmud, Aggadah, and even that which an elder disciple is destined to expound before his teacher were all spoken to Moses at Sinai. These sources imply that written and oral Torah is not changing in accordance with societal change. However this exhaustive model of revelation can be understood in a radical hermeneutic paradigm whereby all the innovations that occur now and into the future can retroactively attain the status of something that was given at Sinai. In order for something that a contemporary scholar says to attain the status of being given at Sinai it needs to be mediated through a process of authority and acceptance that determines whether or not it can form part of this authoritative knowledge. Present day innovation may have the capacity to receive heightened status and authority. However, this massive burden of inheritance of authority can also inhibit more innovative thinking and practice. In this model, all current innovation needs to achieve the Sinai standard, because in this model, there is no Torah outside of Sinai. However, there are many other models of revelation and of the relationship between revelation and authority. The biblical law of making a decision in accord with the majority is often invoked as proof for the biblical legitimacy of the decision-making powers of the rabbis, at least of the rabbinic period until the close of the Talmud in around the seventh century ce. The classic narrative showing the elasticity of hermeneutic possibility of the Sinai approach appears in BT Menahot 29b where Moses is sitting in the back of one of Rabbi Akiva’s classes and could not understand what was going on. At one point one of his students asked him ‘Rabbi Akiva, how do you know this?’ and when Rabbi Akiva answered ‘It is a tradition from Moses at Sinai’, Moses was very relieved. It is ironic because even though it was attributed to Moses at Sinai, Moses himself could not recognize the law. Despite his inability to recognize it himself, when it was attributed back to him he was reassured.57 Rabbinic texts can be used to support contradictory claims about authority and flexibility of the law. One of the major problems that the rabbis address is that the condition makes the Jewish law subservient to the civil law. Rabbi David Zvi Hoffman argues that ‘people will quickly think that Jewish marriage rests on the condition and the opinion of the judges of the land and is therefore devoid of holiness, because it becomes secondary to civil marriage and the law of the land becomes the madame and the law of Torah, God forbid, becomes

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the maidservant dependent on her, and therefore there is disgrace and upheaval’.58 As well the loss in actual application of Torah law, the fact that it appears as if the Jewish law becomes somehow dependent on the law of the land is just as much if not more damning: ‘And the name of Heaven will be disgraced among the nations’ he continues ‘Would the Catholic citizens of the land make their laws suit the laws of the land?’59 This argument denies the motivation of the rabbis and the reason why they are advocating for conditional marriage. Their intention is not about adjusting Jewish law to French civil law. They have identified moral and legal problems that arose from the introduction of divorce into French Civil law and so they are trying to find a solution that bridges the language of Jewish law with the actual practice of French Jews obtaining civil divorces and remarrying without a Jewish divorce. The passion with which these rabbis argue for the rejection of the recommendations reflect the perceived threat to the Jewish people these recommendations pose. Rabbi Aryeh Leibush Halevi Horowitz describes the submission to the French authorities by the French rabbis in poignant terms. He says: What should make tremble the heart of all who read the letters of the Russian sages is that in France there are people for whom the oil of anointment and ordination to the rabbinate has been upon their head, and yet they give aid to these libertarians and answer ‘Amen’ to their suggestions.60 In the second half of his letter Horowitz calls for a zealous response in order to ensure that this tragic proposal is thwarted and that the destruction that it will cause the Jewish people is averted. He says: Therefore the holy obligation crouches upon each person who is whole with his God and His Torah, to make sure that everyone who has a Jewish soul is revived and the blood of Israel is flowing through them, and to wear like a coat the zeal/jealousy of the Lord of Hosts, to help with all of their strength and efforts to stand with force to overturn . . . in order that mamzerim will not be multiplied in Israel and God forbid that our brothers in wonderful France will not be prevented from marrying other Jews in the diaspora.61 The proliferation of different denominations of Judaism and the different ways of defining who is a Jew mean that, one hundred years later, there are

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huge splits within the Jewish people in terms of some Jews not being able to marry other Jews. Many people living active and proud Jewish lives may not even be classified by other Jews as being halakhically Jewish at all.62 Some of the comments in the collection are aimed against the rabbis. Many letters refer to the rabbis and darshanim (interpreters) who are considered to have a lower level of learning and not to be seriously steeped in the pursuit of Torah study. They may stand and give speeches to their congregations but they do not have the authority and gravitas of the other rabbis of the generation. Rabbi Meir Simcha Cohen of Dvinsk highlights these points when at the end of a detailed and scholarly analysis he says: And I hope to God that with God’s providence they will not abandon but rather will fence up God’s holy vineyard and protect it from these people for whom Torah is not their craft, and whose toiling in Talmud is not regular.63 This polemic can also be seen as part of the larger more general tension between German Reform Judaism and the Orthodox rabbis.64 The focus of Berkovits’ Tenai be’Nissuin uv’Get (TNG) is predominantly the fine details of the halakhic sources and the nuanced debates within them that we have referred to above. As the sub-title, Birurei halakha (Clarification of Law) suggests the genre of this book is like other books of contemporary halakhists. It contains halakhic reasoning that is very complex and not necessarily for the layperson but presents a serious exploration and delineation of the different legal positions. In declaring that he is not making a psak (not adjudicating practical halakha) Berkovits can be understood as making a suggestive invitation to other rabbis to take up the arguments that he has raised. Staying away from the practical realm of law is a self-protecting move that limits the degree of resistance the ideas will cause because they are taken out of the practical realm and therefore, the threat that they pose is limited. There is one section where he takes the claims of ETB and analyses them one by one. Berkovits makes use of extra-legal arguments in his defence of a certain version of conditional marriage. He appeals to contrasting arguments relating to the urgent need to solve the ethical problems created by the law. In his introduction to Berkovits’ book, Rav Yehiel Yakov Weinberg (the Sridei Esh) establishes an ethical response to the current situation and acknowledges the problem of Jewish marriage and divorce as human problems.65 This supports Pinhas Shifman’s claim that the first step in halakhic

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change is that the rabbinic authority needs to recognize and acknowledge a moral problem that is crying for attention.66 Weinberg says in his introduction to the book: We all know the seriousness of the problems that have arisen in our days both in Israel and the diaspora, problems for which solutions have not been found, that risk personal status and destroy the purity of the Jewish family, and it is fitting that the Giants of our generation deal with them, and this book should be used as a platform and basis for investigation and new discussion.67 Interestingly Weinberg still appeals to the destruction of ‘the purity of the Jewish family’ as an impetus to find a solution and to encourage those rabbis with authority to use the ideas that Berkovits suggests as the basis for a way to move forward. Weinberg acknowledges the publication of Ein Tenai be’Nissuin and argues that since then the situation has got even worse in terms women remarrying without halakhic divorce. It grew from a handful of incidences to widespread phenomena. Weinberg pleads: I have therefore said that we should not remain silent about this breach, and there is an urgent need to investigate the possibility and the vital need for decrees that will remove the terrible obstacles from a wide circle of people, even those Jews of full faith.68 In contrast to the letters in the Lubetsky collection it is noticeable that as well as using the language of ‘purity’ and ‘breach’, Weinberg also uses phrases such as ‘need’ and ‘flexibility’ which portrays a qualitatively different attitude in the way he approaches the halakhic issue as a response to a human problem. In his short introduction, Weinberg differentiates Berkovits’ suggestions from the French proposals that elicited such a strong negative response. He argues more specifically that Berkovits ‘limits the possibility of making conditions upon particular cases and removes the dependence of the condition on civil proceedings, as will be clear to the readers of his book’.69 Weinberg maintains the language and commitment to the sentiments that the rabbis in the Lubetsky collection express concerning the sanctity of marriage and the integrity of Jewish law in relation to the civil law of the land. At the same time he has the vision to see that something needs to be done and that rabbis do have the power to make a difference to this human situation of need.

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In his own introduction to the book, Berkovits states that he is not intending to provide practical halakhic advice but his ethical concern for the problem and his desire to make a difference are his guiding principles. ‘We have not come to teach practical halakha’, he argues, ‘but rather to clarify with the help of God the viewpoints and fundamentals that apply to our issue, and we are not free to desist from this’.70 He speaks with the conviction and challenge of a prophet. At the end of his responsive analysis of the Lubetsky collection, Berkovits acknowledges yet again his ethical orientation in an appeal to authorities to do something about this problem. He says that our fathers have left us a place to open, yet again, this serious question and these serious problems relating to marriage in our nation at this current time and we are obliged to adjudicate the issue anew.71 He also uses an ethical perspective to reframe the way that he sees the potential problem of conditional marriage. Whereas the rabbis saw the French proposal as a way to give all the power to annul the marriage at the woman’s will, Berkovits reframes the situation to show that the power still remains with the husband. He says: So too in our situation the nullification of the marriage is not in her hands but depends entirely on the husband. Because of this, as long as he does not do the action that causes the marriage to be nullified, she is considered to be a full eshet ish (married woman) in all respects.72 Berkovits puts the focus back on the husband and draws attention to his behaviour – of refusing a Jewish divorce in a situation where marriage has broken down – as behaviour that is not fitting of a man who practises Jewish law. In this context the annulment of the marriage is like a remedy for his wrongdoing of withholding. He says: For here it is all in his hands. And if he desires her matrimony and for his name to be upon her, he need not nullify the condition but rather behave with her properly and according to Jewish ethics.73 In response to the claim by rabbis in the Lubetsky collection that introducing a condition into the marriage invites negativity from the beginning, Berkovits rightly invokes the identical function of the marriage contract. The ancient rabbis explain that they initiated this payment of the woman

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by the man so that that man would not easily leave the woman.74 In addition Berkovits claims that the conditional marriage is not as much personal as it is for the benefit of all Jewish marriages. A similar argument is used by modern Orthodox rabbis in relation to the pre-nuptial agreements: if everyone gets in the habit of signing the pre-nuptial agreements, it becomes not so much about the individual relationship and discomfort about its connotations but rather it becomes a way to eradicate the problems of marriages of a whole generation.75 It follows that if couples get into a habit of signing the document, then no one has to take it personally as a reflection on his or her own relationship, everyone is participating in a movement for social change. Berkovits’ focus on the ethical dimensions of this problem also means that he sees beyond the application of the conditional marriage to an individual situation. He also sees it as a collective problem requiring a collective and orchestrated response. It is this recognition of a broader ethical problem that allows for thinking about the collective Jewish people rather than the individual marriage relationship. In his response to the Lubetsky collection Berkovits also questions inaction of the rabbis based on the claim that ‘we are not experts in the laws of conditions’. He argues that rabbis need to put into practice whatever is halakhically possible.76 At the same time he says: we have not agreed to make this practical amendment in all countries because of the problems that could emerge due to those who are not experts in the laws of conditions and in the laws of divorce and marriage and they (the non-experts) are active in dealing with them in the rabbinic world.77 But at the same time Berkovits does not use the potential problems as an excuse for inaction. He continues in the next paragraph: However, in my humble opinion, if there is in truth a way to institute conditional marriage in accordance with halakha , then we have the permission to get advice and to find a solution to these practical problems and it is not out of the question.78 As well as recognizing the centrality of the ethical claim in Berkovits’ approach to the issue of conditional marriage, it is also worth noting the significance of ethical reasoning as a basis for providing the impetus for legal change. Without ethical claims there is no significant weighting on

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the side of changing and developing laws in a tradition where the legal authorities are predominantly in favour of maintaining the status quo. Berkovits also tries to differentiate between the milieu of the French rabbis’ proposal and his own. He uses the same language, as did Weinberg – of threats to the foundation of Judaism and the Holiness of the Jewish people – but he invokes them as providing an impetus for finding a solution to alleviate the problem rather than as a rationale for rejecting a solution. His line of argument appeals to the ‘hour of need’ of a specific social and historical context to invoke a creative approach to the law. ‘Hour of need’ (sha’at d’hak) is a particular meta-halakhic category that is applied to situations to produce leniencies predominantly in those areas of law deemed to be rabbinic as opposed to biblical, where there is considered more room for interpretation and flexibility.79 On a rabbinic level there are many examples in the Mishnah where the text actually documents the shift in law due to the social and political circumstance. The trope that indicates such a change in law in usually ‘barishona’ (meaning ‘at first’) which is then followed by details about how the law was changed and may often also include a reason why.80 By determining one’s legal outcome on the basis of predominant social or political reality one can follow the precedents of those who went before but one can differentiate one’s ruling on the basis of the changed social situation. He says: Everyday the situation gets worse and serious problems that previous generations were not faced with undermine and endanger the foundations of Jewish married life. For the sake of God and the Holiness of the Jewish people, we are obliged today to reconsider the matter due to the severity of the problem today and the current situation in our generation. Perhaps with God’s loving kindness, we will find a cure.81 Unlike the collection of letters that Lubetsky amassed, where each letter contained a list of pleas about the current situation and blessings that the French rabbis should not precede with their intended actions, Berkovits only briefly mentions the dire needs of the moment beyond the introduction. In the section where he responds to the Lubetsky collection, Berkovits reflects on the massive proliferation of marriage practices of world Jewry not in line with Orthodox doctrine. He says: In the pamphlet Ein Tenai be’Nissuin one of the rabbis suggested to the rabbis of France that instead of the condition they should institute that

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after the civil divorce if the husband wants to get married to another woman no rabbi should do a huppah (wedding) and kiddushin (betrothal) for him until he releases his wife with a get (Jewish divorce) according to the Torah. He concludes his words with a naïve question: ‘Is that not enough?’ Happy is the generation whose rabbis could believe in institutions like that.82 Berkovits is referring to the diversification of marriage practices that have developed in the time since ETB was written. Since Berkovits wrote his book, the last 50 years have shown even greater trends towards marriage in non-Orthodox denominations that affect the vast majority of Jews outside of Israel. For Jews inside of Israel the only state-sanctioned marriage is by the Orthodox rabbiniate and Jews who want a civil marriage currently travel abroad, most popularly on special wedding packages to Cypress. An ongoing interpretative question with regard to rabbinic texts centres on how to understand rabbinic presumptions. There is a body of statements that are used together with other legal constructs, such as majorities (rov), to determine how different questions should be answered. The presumption generally operates on the basis that, if there is no evidence to the contrary, the presumption is considered to stand. There is an ongoing question about whether and how presumptions change with social reality. In relation to the question at hand of conditional marriage the Talmud states that there is no conditional marriage, ein tenai be’nissuin , as replicated by the title of Lubetsky’s collection. Drawing on the opinion of the Tosafists, Berkovits claims that when it says there are no conditions in marriage it really means conditional marriages are very uncommon, as opposed to meaning that they are forbidden. So instead of understanding the claim as a normative one, it is understood as a descriptive one. When it is interpreted in this descriptive way then it leaves room for conditional marriages to be more common at a later date. In contrast the understanding of it as a normative statement throws into question whether it is possible at all. In that light, the first interpretation looks even more radical because instead of claiming that it is not allowed, the first interpretation actually acknowledges that it does happen, but just that it is not that common, thereby leaving room for it to become more so if the need arises – more generally in relation to a changing social context. Berkovits refers to this dynamic between seeing things as normative versus descriptive when he says: What is said in the Tosafists about the matter of conditional marriage is not an issue of law but of reality. At the time of the gemara, conditional

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marriages were not common. Many laws resulted from this fact, as may be found in Tractate Yevamoth. And truly, at a time when all or most of the nation follows God’s path, and the rabbinic courts have the authority to compel the nation to fulfill the commandments, there is no need to place conditions on marriage except in exceptional circumstances. And this was the situation at the time of the Talmud when conditional marriage was not common. But one cannot conclude based upon that reality that one must not institute any changes, if the consequence of those changes would be that conditional marriage would become common.83

Presumption as description rather than prescription The idea of seeing a presumption as describing a social reality rather than prescribing it is one of the fundamental tools for the capacity of Jewish law to change and adapt to the times, as well exemplified by Berkovits. In addition he invokes the trope of ‘the crisis of tradition’ that implies that although in the past people abided in the halakha , now that they do not to the same extent, we therefore need to modify the law accordingly. This harks back to the Talmud’s deployment of et la’asot (a time to act) as a justification for breaking the prohibition against writing down the Oral Law. Berkovits is thus using a very traditional trope of ‘crisis in tradition’ to make a change in order to strengthen tradition.84 The next chapter will explore another alternative to Jewish marriage – derekh kiddushin (quasi-marriage). It has its basis in the tradition, while avoiding acquisition, and it counts as an exclusive relationship and so doesn’t invoke connotations of licentiousness, according to most definitions. In our case the interpretative question revolves around whether to interpret the presumption as describing a certain social reality or to interpret it as prescribing a situation with normative force. If one sees it in the former way – as describing a social reality – then one needs to explore whether the presumption can and should still be considered as valid given the changing social circumstances. For example, with regard to issues of modesty requirements, in particular relating to women’s head covering, later commentators raise the question about whether uncovering the hair is a ‘disgrace’ under all conditions or whether it varies in particular social contexts where the majority of women have uncovered hair.85 Is the hair of a married woman considered to be a body part that is always covered or is it dependent on the public dress codes?86 To establish the contextualization of this law and of other

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practices according to Jewish law is significant because it establishes from the outset a tradition that has always been in creative and constitutive dialogue with its surrounding environments. As Rabbi Yehuda Henkin states in his recently published book Understanding Tzniut: Modern Controversies in the Jewish Community ‘Inurement, or habituation plays a significant if sometimes overlooked role in the development of Halacha’.87 Habituation by its nature is something that is determined in relation to a particular social context. However, not all or even most commentators see rules of modesty as relative to cultural norms, they see them as eternal and immutable. This leads to a very interesting discussion on the way that rabbinic statements are interpreted as either principles that can change as the times change or whether they are seen as eternal. In ‘Two views of marriage – Two views of women: Reconsidering Tav Lemetav Tan Du Milemetav Armelu’, Susan Aranoff addresses the question of authority and the relationship between social change and changing rabbinic norms.88 One of the ways in which the tradition can be made more pliable and applicable to social change is through seeing presumptions as describing particular social reality that can therefore be altered when it no longer provides an accurate description. The alternative is to see presumptions as prescriptive and eternally binding. When presumptions are seen in this way they allow for much less change and actually can provide a barrier to allowing the law to adapt to the current social context. One example of this can be seen in the way that Rav Joseph B. Soloveitchik interprets the verse in Genesis ‘and he shall rule over her’. He interprets it as an eternal curse so that throughout all of humanity and throughout all of time the man shall be dominant over the woman.89 There is a range of other ways in which this statement can be interpreted, however. If it is seen as descriptive then it is understood as describing the relationship between men and women but not limiting it to remain in such a problematic paradigm. However if it is seen as eternal and frozen in time then it requires that every situation between women and men is non-reciprocal, with the man ruling over the woman in one way or another, as if that is the natural or at least desirable state.

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Chapter 5

Derekh Kiddushin (Quasi-Marriage)

The previous chapter examined the possibilities of reducing the potential negative effects of acquisitional marriage through inserting a condition into the marriage. This chapter will explore the possibilities of bypassing the acquisition through the establishment of relationships, which while referenced within halakhic literature, are usually not halakhically recognized as marriage. The discussion of these alternatives – namely concubinage and derekh kiddushin1 (quasi-marriage) – will be framed in this chapter in the context of both medieval and contemporary literature and practice.2 Most scholarly discussions about the boundaries of traditional Jewish marriage feature some reference to the institution of concubinage. Although the sources contain a wide range of legal opinions, concubinage serves as a model of partnership that is not marriage. It thereby acts as a litmus test for the way that scholars have related to sexual relationships outside of the acquisitional marriage paradigm. Responses to concubinage produce important discussions about the definitional boundaries of licentiousness and its implications as well as other more general concerns about the erosion of stability emerging as a result of less regulated exit from relationships.3 A recent Hebrew article by Zvi Zohar addressing the issue of concubinage is Zugiyut al pi halakha le-lo huppah ve-kiddushin (Partnership according to Jewish law without huppah and kiddushin) gives a detailed study of the institution of concubinage. He examines the sources on concubinage as a postfacto justification of pre-marital sexual relationships that are currently a fact of life for many Orthodox Jews.4 Zohar also sheds light on the widespread rabbinic unwillingness to find a sanction for pre-marital sexuality. Concubinage is used as a model to show that sex outside of marriage in a

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monogamous committed context has precedence as an acceptable halakhic category under certain circumstances. As well as the religiously problematic policy issue of legitimating premarital sex, and the halakhic ‘risk’ of women engaging in relations prior to immersion in a ritual bath (therefore still in state of menstruation), scholars find fault with the model of pilagshut (concubinage) as an alternative to marriage because it is seen as a devaluation and de-sanctification of the Jewish family. As suggested this may be partly because concubinage does not provide the protection for the woman inherent in the ketubah (marriage contract) and thus it may be too easy for partners to leave the relationship. Having halakhically justifiable alternatives to marriage readily available has been understood by some scholars as further exacerbating worrying increases in the marriage age of Orthodox couples.5 If people are not getting married then the important mitzvah (commandment) and cultural concern for having children cannot be fulfilled within the religious purview. Although concubinage may be suggested as a way to overcome the problem of recalcitrant husbands, with the assumption that the Jewish divorce would not be needed, there is a chance that if the couple intended to have a long-term relationship then perhaps a Jewish divorce would still be required, as a stricture, at least on a rabbinic level if not a biblical one.6 The issue of which relationship requires a Jewish divorce is a subject of some controversy and debate. Babylonian Geonim and some medieval Ashkenazi authorities hold that in all cases of cohabitation, except for when it is recognized as a transient affair, marriage intent should be assumed and therefore a Jewish divorce required.7 Maimonides takes a different approach and applies a more limited definition of intention to marry. This results in an interesting situation where the stricter ruling about what constitutes a marriage results in a more lenient ruling about which relationships need a divorce. One of the possible benefits of an alternative mode of sanctifying relationships from the current unilateral model is the potential to avoid problems around divorce. Several authorities have come up with a range of interesting and effective alternatives like pre-nuptial agreements and involving the civil courts with financial mechanisms, all of which continue to be implemented with greater or lesser success.8 When they are ‘effective’ they prevent women from being stranded without divorce – sometimes this ‘freedom’ from the marriage may come at a high emotional and financial price through payment to the husband in exchange for the divorce. Where a solution involves the annulment of marriage it also militates against the

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problems of men having to grant permission for a divorce. Avoiding the problems of chained women is an important element to take into consideration for rethinking the way we see marriage.9 However, according to the position I have been advocating, problems with unilateral marriage extend far beyond the divorce issue and extend to power dynamics of relationships and the ways families are established and how both women and men view their respective roles and understand themselves in relation to each other. Scholars such as Zohar are not simply wishing to find the most desirable halakhic position separated from contemporary praxis, rather they are willing to look at behavioural norms first and then explore the halakhic possibilities that pertain to that situation. One important internal halakhic justification for acknowledging pre-marital sex is that because of the preoccupation with marriage and taboos around pre-marital sex, many women do not use the mikveh (ritual bath) when they otherwise might because they are too embarrassed, thereby breaching what is considered a biblical prohibition of having sexual intercourse with a menstruating woman (or a woman who has not been to the ritual bath since she menstruated or gave birth). It can be seen as a pragmatic approach to sanction these non-marital committed partnerships in order to enable people to fulfil the commandment of the ritual bath. Zohar is trying to bridge the gap between the contemporary modern Orthodox population and what some of the rabbis are saying. He uses the example of Rabbi Shlomo Aviner’s (contemporary Israeli Orthodox rabbi) comments about kissing and hugging out of marriage: According to Maimonides, it is forbidden on a Torah level, whereas according to Nahmanides it is a rabbinic prohibition. However, from the perspective of the obligation to keep the Torah, there is no difference for us if the prohibition is from the Torah or the rabbis.10 The different values with which both Zohar and Aviner approach the law are evident and could be summarized as such: Aviner wants to impose a perfect law on the people irrespective of their actual practice and Zohar has a more pragmatic approach and wants to embed the law in community practice.11 Above in Chapter 2, I analysed the main Talmudic pericopes in relation to concubinage (BT Sanhedrin 21a-b and BT Yoma 18b). I will now proceed with a discussion of concubinage in Rishonim (rabbinic authorities

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from eleventh to fi fteenth centuries), Aharonim (rabbinic authorities from sixteenth century to the present day) and then modern scholars. As mentioned, Maimonides prohibits concubinage except for in relation to the King. In Mishneh Torah, Laws of Kings 4:4 it says: And thus the King takes from within the boundary of Israel wives and concubines, wives with marriage contract and betrothal and concubines without marriage contract and betrothal. It is through being alone with her that he acquires her and she becomes permissible to him, but the regular citizen is not allowed a concubine. In Mishneh Torah, Laws of Personal Status 1:4, Maimonides reiterates his limited conception of the possibilities of licit sex outside of marriage through equating couples who are having sexual intercourse ‘without betrothal’ to them having sexual intercourse ‘for the purposes of licentiousness’. He says: Before the giving of the Torah a man would meet a woman in the market, and if they both wanted he would have sexual intercourse with her on the side of the road, and she is what is called a kedesha. Since the giving of the Torah the kedesha has been banned, as it says, ‘There shall be no kedesha of the daughters of Israel.’ Therefore anyone who has sexual intercourse with a woman for licentious purposes without kiddushin is lashed from the Torah, for he has had intercourse with a kedesha. As mentioned above, Maimonides is strict about the impossibility of delineating some space for licit sexual relations outside of the context of marriage, except for the special privileges of the king.12 However, this law could possibly be read differently as if the sexual intercourse for ‘licentious purposes’ and ‘without kiddushin’ are not synonymous, but rather two separate and cumulative descriptions. In his gloss to the above law of Maimonides, Rabbi Abraham ben David (the Ra’avad, ~1125–98 France) gives a narrower conception of his understanding of the definition of a kedesha. He says there: A kedesha is someone who is ready and available for everyone, but a woman who makes herself exclusive to one man, she does not get lashes or do something forbidden rather she is the concubine . . . there is no prohibition except for someone who is sexually available for anyone, because if

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it was according to his words (where Maimonides says that it is a kedesha if it is not within the marital context) how would one pay for the one who is seduced? Is he given lashes for her? Rather it is certain that one who is seduced is not considered a kedesha. The Ra’avad’s comments are aimed in two different – if slightly ambiguous – directions. On the one hand he offers a radical challenge to Maimonides by differentiating between the all or nothing model that Maimonides proposes of either marriage or kedesha, by naming a category (that he seems to condone) of concubine that refers to a woman who has an exclusive yet not marital relationship with a man. On the other hand, he tries to prove that Maimonides is mistaken by referring to the case of a woman who is seduced. The Ra’avad argues that by limiting his analysis to two extreme poles of experience and classification Maimonides is discounting the other forms of sexual intercourse that are also acknowledged even on a biblical level. In addition he is arguing that if Maimonides’ opinion is true then a man who seduced a woman would be liable for lashes, but the consequence of seduction (whether the father or the man choose not to go ahead with the marriage) is that the seducer has to pay the bride price for virgins.13 The Ra’avad is claiming that concubinage is acceptable for common people (not only the King) and that further proof of the middle positions between kedesha and marriage is the case of the seduced and seducer. At the very least, he is using the case of seduction to challenge Maimonides’ position even if he does not want to condone concubinage for the common person. Nahmanides, however, is less ambiguous with regards to his acceptance of concubinage. In fact, his expression suggests that a man has a choice of two different models of relationships that he can have with a woman depending on the kind of outcomes he is looking for. He says: Whoever comes to marry a woman, in order that she be forbidden to everyone, and acquired by him: to inherit her and to become tameh (spiritually impure) by her the Torah said: he should marry her, enter the chuppah and he should make the groom’s blessings with a quorum . . . however he who wants her to be his concubine, so that he will not acquire her, and will not be forbidden to other people, shouldn’t get married at all, the option is his.14 Nahmanides is presenting two viable halakhic options for partnership and he is far from being a lone opinion.15 Others observe that Nahmanides is reflecting the dominant practice of Medieval Spain where Jewish, Christian

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and Muslim men engaged concubines.16 For men of a high social status it was a sign of social standing to have a concubine and for poorer men it was a cheaper way to maintain relations with a woman without the longer-term and more financially onerous commitment of marriage.17 Male leaders of the Jewish community would regularly have Muslim women as their concubines.18 However the children born of these unions were not considered Jewish and the lawful wives were humiliated by this predicament. This phenomenon in Spain resulted in a ban in Toledo in the thirteenth century against those men who had taken Muslim concubines, then precipitating conversion to Judaism for some of them.19 Rabbenu Asher however approaches this issue from a different perspective (Responsa 32:13). He refers to two associated problems with an informal sexual arrangement without referring to the inherent legality or otherwise of the arrangement itself. One of the problems is that the family is ashamed to have a daughter living with someone without being married and concerned about her reduced possibilities for marriage to someone else. The other concern (also mentioned by Zohar in his article) is that outside of a formal marriage status the woman may be ashamed to go to the mikveh (ritual bath). The predicament of women in unofficial relationships ashamed to go to the mikveh (ritual bath) results in the anomalous situation where taboos of rabbinic origin (like sexual intercourse with an unmarried woman) actually can cause breaches of the more stringent biblical law like having sexual intercourse with a woman who has menstruated and not gone to the mikveh (ritual bath). Villa argues that the assumption in this case of Rabbenu Asher, where an unmarried woman is frequenting ‘Reuben’s house’ and being alone with him, is that they are not in an exclusive relationship and would they have been then Rabbenu Asher would not have objected to the relationship.20 I am uncertain about Villa’s understanding of Rabbenu Asher because I think that he does not support an exclusive relationship that is not marriage. However, it is also feasible that the objections he raised (i.e. the parents’ qualms and the reluctance to go to the ritual bath) may still be applicable even if the relationship was exclusive but outside the framework of marriage. Thus it may not be so surprising that Rabbenu Asher’s son, the Ba’al Haturim (Jacob ben Asher 1270–~1340) proves the prohibition of concubinage from this very responsa of his father. He summarizes the law at Tur, Even Ha’Ezer 26: A woman is only considered to be eshet ish through kiddushin (betrothal) as required, but if a man has sexual intercourse with her without kiddushin (betrothal) and for promiscuity he gets lashes because of ‘you

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should not be prostitutes’ and she is a zonah as mentioned in the Torah. And even if he did not have intercourse with her for promiscuity but rather for establishing something between them, she is not considered his wife even if they have been in seclusion, rather on the contrary we force him to remove her from his house. And thus wrote my father the Rosh z’l in his responsa.21 The Ba’al Haturim may have a similar conception to Maimonides about the impermissibility of sexual relationships outside of marriage. However the Ba’al Haturim mentions three categories; marriage, the kedeshah , and the category of exclusive relationship that does not require lashes, but needs to be dissolved nonetheless. It is unclear, despite his son’s attribution, whether or not Rabbenu Asher concurred with him or not. Interestingly, the Shulchan Aruch quotes the expression above of the Tur. We can infer that both the Tur and the Shulchan Aruch do not accept the presumption of ein adam .22 We referred to this concept earlier in Chapter 2 and described how this presumption did not leave room for people to have relationships outside of marriage because every consensual sexual intercourse outside of marriage was interpreted as an intention to be married because a man would not want to have sexual intercourse that was promiscuous. Perhaps because of the changing social climate, the Tur and the Shulchan Aruch following him, acknowledge that if a man has sexual intercourse with a woman without being married to her then we do not presume that he intended to be married but rather we need to stop him engaging in that behaviour and thus they legislate to have him expel her from his house. Paradoxically, the denial of this presumption is also important because the presumption has been used to argue that conditional marriage may not be valid unless the condition is repeated before every single instance of sexual intercourse, as if the act of sexual intercourse overrides any prior conditions. The presumption may also be used to require women to have to acquire divorces even in a case where they are not technically married but the presumption could work to show intention and consent to marriage. Maimonides limits the presumption to a man who has sexual intercourse with a woman to whom he was previously married. It makes sense in that case that one would not have promiscuous sexual relations with a woman who one was married to. He says in Mishneh Torah, Laws of Divorce 10:19: The sages only stated this presumption in relation to a man’s wife whom he had divorced or who he had married conditionally without repeating

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the condition. She is his wife and with his wife there is an assumption that he is not having sexual intercourse promiscuously unless he explicitly states that it is licentious sex or it is on condition that he is penetrating, but for the rest of the women, there is a presumption that it is licentious sex until he stipulates that is it for the sake of marriage. Thus it should be noted that Maimonides’ strictness about categorization of relationships as either marriage or licentiousness may mean that marriage is the only relationship that requires a divorce to facilitate remarriage to another party. In contrast, a commentator with a more fluid conception of acceptable relationships may have the stumbling block of needing either to dissolve it through divorce or at least find a good reason why a divorce is not necessary. Thus a strict view of acceptable relationships could result in a lenient view towards requirements for divorce, while a lenient view of acceptable relationships could result in stricter requirements for divorce. This is so because most commentators who accept the validity of non-betrothal relationships do so by equating them to relationships with betrothal that results in requirement of a divorce, even if the requirement is only on a rabbinic level, as opposed to a more stringent biblical level. In his gloss to the Shulchan Aruch , the Rema (Rabbi Moses Isserles) casts a new light on the subject in two ways; First, he provides a particular reason for the ruling that narrows its application and then provides the opening for a more lenient adjudication of the issue of concubinage which he takes up in a following gloss. Second, following the statement about how one must force an unmarried woman out of a house of a man with whom she lives, the Rema explains this on the basis that she would be embarrassed to immerse in the ritual bath and therefore the man would be having relations with a menstruating woman and thereby breaching a biblical law. By attaching this reason, the Rema shifts the focus of the Shulchan Aruch from the relationship with the married woman in itself to the specific biblical halakhic issue of having relations with a menstruant without immersion. This emphasis of the Rema on the issue of ritual immersion makes way for him to make a statement about concubinage. Therefore, if someone in that situation is going to the ritual bath, perhaps his opinion would be more lenient. He says in a gloss at Even Ha’ezer 26:1: She is definitely ashamed to immerse and he has intercourse with her while she is a niddah. However if a woman is exclusive with him, and she immerses for him, there are those who say that it is allowed and that is the concubine that is mentioned in the Torah (the Ra’avad and few

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other commentators) and there are those who say that it is forbidden and one gets lashes over it because of ‘there should not be a kedesha’. (Maimonides, the Rosh and the Tur) The commentators on the Shulchan Aruch also challenge some of the assumptions of both the Shulchan Aruch and the Rema. For example Rabbi Moses ben Isaac Judah Lima (the Helkat Mehokek, 1605–58) there at Even Haezer 26:2 says: From the words of the Rosh and the Tur it is unclear that a concubine would be forbidden but rather that it would be a blemish on the family and dishonorable and if it really was the transgression of the commandment ‘there should not be a kedesha’ it would be upon the Beit Din to force it. He also claims that even though Maimonides says that a regular person is forbidden to have a concubine, he does not say anything specifically in that case about lashes, thus he challenges the punishment of lashes even for one who says that concubinage is forbidden. (Lashes is only mentioned in relation to someone who is with a kedesha .) Rabbi Shmuel ben Uri Shraga Faibesh (The Beit Shmuel – seventeenth century) also cited with the Helkat Mehokek, is uncertain as to whether there is any prohibition on concubinage at all. One of the most significant statements on concubinage is a lengthy responsum of eighteenth-century Rabbi Jacob Emden (Yabetz). From the perspective of antiformalism his response is also interesting because he explicitly comments on the gaps between the formal legal possibilities of concubinage as opposed to the societal and religious impetus to promote marriage as the only possible form of partnership. The Yabetz (Responsa Sheilat Yabetz 2:15) says: What they have prevented in these states about concubine, they have prevented it from and to themselves, by thinking that it is forbidden. And a mistaken custom is not a custom and we allow it in front of them if they behaved as if they thought it was forbidden. But in truth it is permissible. And as a precaution (fence) it (the prohibition) was not ever accepted (even though one who is strict may lean towards it but it still was not accepted consensually) only from lack of knowledge did people do thus or the one who teaches that it is forbidden is mistaken. However even the prohibition is not a precaution as I wrote above. On the contrary, the

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opposite is a precaution for the Torah. Whether it is to distance from the sin of promiscuity and licentiousness, and to reduce the sexual immorality and the wasteful spilling of seed . . . according to my opinion it is a great mitzvah to publicise the permission. According to the Yabetz, in the case of the concubine, this whole theoretical discussion takes place within what he defi nes as halakhic permissibility within the scope of actual practice rather than ideal standards. However not all commentators would agree with him. They think that if we change the common denominator then all standards will fall and we will have nothing to aspire to – at least this way, even if we lose some people on the way no one will be confused about what the optimal law really is. We will now proceed with a discussion of the policy issues related to concubinage that emerge in the Yabetz’s responsa but whose implications reach far beyond. The Yabetz distinguishes between the halakha itself and social awareness of it.23 For example he urges the information about the permissibility of concubinage to be shared among the public as a matter of social policy. He presumes that despite mistaken customs any doubts about it should be overturned for the public benefit. Because of his commitment to the potential effects of concubinage, such as reducing illicit and promiscuous sex by creating another sanctioned framework outside of marriage, the Yabetz wants to publicize the permissibility of concubinage. However, other people who have other public policy considerations would not want the information about its potential or contested permissibility to be public knowledge. This is not only because they are not sure if it is permitted and they are keen to stop it as a behaviour but it can be seen to undermine the existing structure of marriage and to present a competitive alternative that is not seen as morally equivalent.24 The Yabetz also displays the contingency of interpretation and the impact of values on interpretation when he discusses the issue of precaution. He states that some people forbid concubinage as a precaution. The precaution is a legal tool used by the rabbis to protect laws from being breached.25 Ironically the Yabetz claims that the permissibility of concubinage is in this case a precaution against licentiousness. It is also possibly a precaution against men sleeping with women who have not immersed. This is so because it is claimed that women do not immerse because of shame about being in illegitimate relationships. If their relationship has legal acceptability, even without being married, then they are less likely to be ashamed to immerse. If the acceptability of concubinage does not make a difference

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to the rate of immersion then the attribution of shame as the reason for lack of immersion in non-married but committed partnerships is wrong. One of the motivations for Zohar’s recent article ‘promoting’ concubinage is the gap between the contemporary practice of many modern Orthodox singles and rabbinic pronouncements on the topic. Thus many practising Jews are having sexually active heterosexual relationships outside of and prior to marriage without a halakhic compass to guide them and with feelings of guilt, and a sense of distancing themselves from serious religious commitment.26 Zohar’s article tries to resurrect concubinage as an acceptable category, albeit as a concession to the social climate of the predominance of premarital sexual relations in certain Orthodox communities. Given the taboo that surrounds this context, it is not surprising that his arguments to support concubinage attract a variety of criticisms. I will also refer to responses to his article by Rabbi Shmuel Ariel, Rabbi Yehuda Henkin and jointly by Michal Tikochinsky and Rachel Shprecher-Fraenkel. Henkin critiques the model of concubinage on the basis of its lack of protection for women.27 He takes up the issue of ketubah (marriage contract) as a significant distinguishing factor between marriage and concubinage and advocates this for the ‘protection of women’. The presence of a ketubah (marriage contract) can be perceived as advantageous to women because it makes the husband less inclined to divorce off-handedly because he has to pay out the amount of the marriage contract. That was the initial rationale for its establishment by the early rabbis. By the same token, it is important to note that any institution that acts for the ‘protection of women’ may also play a role in sustaining their need for protection by the legal and cultural system in question. If women are seen as powerless and if cultural and legal institutions reproduce that powerlessness by the way that they see women, then concessions for women’s ‘powerlessness’ actually become a way that society can reinforce and reproduce gendered or other power differentials. In addition, the reliance on concubinage as a model has raised eyebrows from a feminist perspective. The model of the concubine, while it does away with the need for a divorce and certain particular acquisitional elements of the marriage, is still historically speaking, male-oriented and continues to represent acquisition and sexual objectification of women. Bonna Devora Haberman argues: Most acrimonious among these approaches, including Zvi Zohar’s controversial piece in Akdamot, is the revival of the pilagesh – concubine

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option – a long term relationship without marital commitments and obligations. In the current predicament, when domestic violence against women proliferates, how can we contemplate as a remedy an institution that is intended for polygamy, to preserve patriarchal descent and inheritance, and steeped in the blood of the appalling rape and dismemberment of a person’s being? The ketuba was intended as protection for women where men’s power advantages and gendered roles in society render women excessively vulnerable to abuse in intimate and childbearing relations. Insofar as narratives formulate the content and messages of legal concepts, the pilagesh – concubine status (re)invokes the desecration of sexuality and intimacy.28 Haberman is returning the concubine into one of her original biblical contexts in Judges 19 that features the story of the Concubine of Gibeah and her morbid dismemberment. No idea is without context and the reattachment of the context to this disembodied notion of concubinage sheds additional light. What are the limits of reinterpretation? Can something that was once a symbol of disempowerment and extreme violence be turned into something utterly other? Can concubinage become a way to halakhically legitimize an exclusive relationship without it being acquisitional? However as Haberman mentions, the lack of acquisition in the relationship also entails a lack of responsibility. Women in heterosexual relationships may still be in economically vulnerable situations if they are disproportionately responsible for childcare but they have no security under an arrangement that does not guarantee economic care in exchange for childrearing or the (relatively meagre) sum of the marriage contract. In his critique of Zohar, Ariel presents several models of looking at concubinage including models that actually infer kiddushin (betrothal) with concubinage as well as models that ban pilagesh to anyone aside from the king.29 The joint response by the female scholars Tikochinsky and Shprecher-Fraenkel is the most damning of Zohar’s article, not in terms of acute halakhic critique but in more general policy-oriented terms. Their response ends: ‘The Judaism that Zohar describes will be more attractive and relevant for secular Israelis. It is just that it will not actually be Judaism.’30 Tikochinsky and Shprecher-Fraenkel are suggesting that there is a clearly defined model of Jewish marriage and that digressing from that specific model threatens the Jewishness of the model. In another context Broyde challenges this notion when he describes the transformations that Jewish

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marriage has undergone and the models of Jewish marriage that existed simultaneously: Diverse models of marriage coexisted for centuries. Whether it is unilateral automatic no-fault, judicially regulated no-fault, soft fault, abandonment, hard fault, consent, or contractual marriage, each has a basis and an authority advocating it in the Jewish tradition. One is hard-pressed to see a single view of Jewish marriage.31 Historical analysis detailing how marriage practices have changed throughout time and place are useful for contradicting more dogmatic approaches to Jewish marriage. Broyde even goes so far as to say that ‘the breadth and the depth of the models of marriage presented show that these models have so little in common with each other that they can hardly fall into any common categorization of “marriage” at all’.32 His acknowledgement of the diversity of marriage is not a blanket acceptance of all forms of marriage. Elsewhere Broyde makes an oblique critique of alternate models of marriage when he says in a review essay entitled ‘An Unsuccessful Defense of the Beit Din of Rabbi Emanuel Rackman: The Tears of the Oppressed by Aviad Hacohen’, that ‘solutions grounded in a global recasting of Jewish marriages will encounter fatal problems by definition’.33 Broyde was referring there to the use of the model of concubinage as an alternative to kiddushin (acquisition). One can surmise from the language of his opposition that he is referring to the undermining and denial of the institution of marriage and the inadequacy of the concubinage model for sustaining the holiness ascribed to marital relations. Perhaps his suspicion of ‘global recasting’ of Jewish marriage is based in the unlikelihood of more global rabbinic acceptance of ‘new and improved’ Jewish marriages. The marital relationship is seen as the foundation of the Jewish family, which in turn is seen as the foundation of Jewish life. Broyde is walking on an ideological tightrope on the one hand arguing that Jewish marriage has always been dynamic and changing and on the other hand attributing to it foundational status and holiness in a particular model given its fragmented nature. Broyde shows how in theory this diversity exists in sources about marriage although it is not mirrored in contemporary practice. Broyde suggests that the ‘life of law is experience and Jewish experience has concluded that monogamy with mutual consent or fault-based exit rights works. Jewish law did not reach (and still has not really reached) that conclusion. Jewish life

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did.’34 Jewish law has not reached this conclusion because monogamy is still practised without mutual exit rights because marriage is not a mutual enactment.

Derekh kiddushin (quasi-marriage) as an alternative to marriage Derekh kiddushin (quasi-mariage) is a rabbinic model of partnership reclaimed and given new life by Feldblum in ‘The Problem of Agunot and Mamzerim – A Suggested Overall and General Solution’.35 Feldblum discusses this model of partnership that would bypass the need for a get (Jewish divorce). This is advantageous because it avoids the problem of women not being able to remarry without a prior divorce. It would also prevent the creation of mamzerim – who are forbidden from marrying non-mamzerim , as are all their descendents.36 Feldblum is a late twentiethcentury scholar, but he draws on different elements of earlier rabbinic precedent. Feldblum’s thesis emerges from his ethical concerns about the plight of stranded women and ‘illegitimate’ children, as well as the alienation of many Jews from Judaism, especially in the State of Israel where he is based. Given the common halakhic basis that concubinage and derekh kiddushin share, Zohar’s article can also shed light, with more detail than Feldblum about the halakhic basis of such partnership. But, as stated above, the concubinage model has the disadvantage of carrying with it negative connotations as opposed to the more neutral terminology of derekh kiddushin . Feldblum emphasizes that his suggested model of derekh kiddushin is not the same as concubinage although it uses a similar halakhic basis. He distinguishes his proposed model from concubinage by detailing a formalized process of divorce and pre-divorce procedures where the relationship breaks down. It should be noted that this distinction between concubinage and derekh kiddushin with respect to relationship breakdown is not inherent in the model itself (as derived from earlier classical rabbinic sources) but that it comes from Feldblum’s suggested development of the model of derekh kiddushin for contemporary application. Feldblum argues that marriage according to Torah law requires the full knowledge and consent of both parties and he uses this requirement as a hook for his argument.37 He claims that this requirement is not fulfilled in this era when non-observant women get married. They do not know and

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would not agree to commit to a relationship where the husband can withhold divorce against their will.38 There are two distinct but related possible effects that flow from Feldblum’s analysis. One possible result is the retroactive application of this principle to marriages that have already taken place. In this paradigm a woman is deemed to not have consented to the marriage and therefore the marriage is invalid retroactively because validity depends on her consent. This is related to the argument used by the Rackman Beit Din which was involved in activating the rabbinic capacity to annul marriages.39 Understandably, as Feldblum himself mentions, this argument raises much disagreement from almost all modern authorities who are nervous about throwing the status of marriages into question retroactively.40 The second possible application of this analysis relates to the establishment of this kind of relationship, derekh kiddushin , from the beginning of the marriage. This particular model of partnership represents the formalization of a relationship according to Jewish law, as opposed to a civil ceremony, that navigates delicately through and around a variety of legal definitions. As Feldblum says; It is not called kiddushin (betrothal) according to Torah, it is not kiddushin (betrothal) according to the rabbis, it is not called pilagshut (concubinage) and even so it is not considered as a relationship of immoral sexual behavior. In this kind of relationship the woman does not require a get (Jewish divorce) or halitzah (release from a levirate marriage).41 Feldblum provides a range of innovations to the ceremony to distinguish it from regular marriage. At the same time he wants the ceremony to remain in a traditional religious context with the usual components such as the chuppah (marriage canopy), exchange of rings and the seven blessings. He sees this type of marriage as preferable to a civil marriage in that it maintains a couple’s relationship with Jewish culture and law while at the same time alleviating the problems that the law in this area can cause. This is a different view to Ancelevits who recommends that secular Jews should be able to have civil marriages and need not be coerced into having religious ritual in their private lives.42 Feldblum proposes this kind of marriage especially for those Jews who do not observe Torah, rather than a civil marriage which keeps religion out of their life altogether. He also proposes this marriage for those women who would not agree to the conditions of being married in a way that would give their freedom in to the hands of their husbands through being able to withhold a get .

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Feldblum wants the fact of this couple’s union according to Jewish law to be made public, but he also wants it to be known that it is not a regular kiddushei Torah (Acquisition with biblical authority) requiring Jewish divorce in the same way that a regular Jewish marriage does. Despite this he does recommend a process of counselling and separation if a relationship that has been actuated through his model breaks down.

Derekh kiddushin – from rabbinic phrase to practical application Similar to many halakhic categories, halakhic marriage can be affected on two levels, d’oraita (of Torah status) and d’rabbanan (of rabbinic status). If one of the parties lacks full capacity in one way or another, or if the procedure was lacking certain specific details, then a kiddushin (betrothal) would be seen to be on the level of rabbinic status and not Torah status. The main difference between how something is treated on each of the levels relates to the principle that any doubt regarding biblical commandments is dealt with according to the strict opinion, whereas any doubt regarding rabbinic commandments is dealt with according to the lenient opinion. However, despite certain differences between these cases, both rabbinic and Torah marriages are still dissolved through the receipt by the woman of a divorce or through the death of the husband. In addition to these two exit points, namely divorce and death, the ancient rabbis stipulated that a female minor betrothed by her mother or brother can reject the rabbinic level kiddushin (betrothal) when she comes of age. In line with the main difference stated above between rabbinic and biblical laws there may be some leniencies attached to the divorce of a rabbinic marriage but not to a biblical.43 In order for a marriage to be affected on a Torah level the woman needs to have consented. Marriages of rabbinic origin have some kind of deficiency either in terms of the level of consent or in terms of the non-reciprocity of the acquisition. For example, the rabbis instituted rabbinic marriage for those people such as deaf women (also considered mute at that time) who would not be considered capable of providing the requisite level of consent to get married but who could get married nonetheless on a rabbinic level.44 The rabbis also instituted this kind of marriage for a minor whose father had died and whose mother or brother could marry her off so that she would not be considered sexually available to everyone. In his laws of marriage, Maimonides also applies this rabbinic status to those marriages where there is some ambiguity in the

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acquisition. Ambiguity can arise where she either says the wrong thing or where she is the active party by giving him the object of value or exchanging objects with him. In his Laws of Personal Status 3:2, the final part of that law, Maimonides says: If he gives something to her and she says [‘Behold I am sanctified to you,’] she is doubtfully married. There are two situations where a third possibility for quasi-marriage arises. These cases emerge embryonically in talmudic literature but they are only developed later.45 They both involve the case of minors who fall short on the capacity to give adequate consent, but nevertheless the rabbis did not want to call their relationships illicit. However, the rabbis did not want to attribute marriage to a minor because when he grows up he could regret that and want to get married again. Despite this, the status of a minor who did get married is up for debate by medieval and modern commentators.46 Below is a further examination of their respective positions: Tosafists at BT Yevamot 96b: And even though the rabbis did not establish marriage for a minor nevertheless Rabbenu Yitzhak said that it is not forbidden and it is not considered to be licentiousness. Tosafists also at BT Yevamot 62b: And even though the rabbis did not institute marriage for minors nevertheless they did make it that their ‘marriage’ would not be licentious relations. In both of these accounts we see a clear demarcation by the Tosafists of a relationship that is not marriage and simultaneously is neither forbidden nor licentious. In Maimonides, Laws of Forbidden Sexual Intercourse 21:25 we see another example of this classification of sexual relationships into two distinct categories of kosher marriage or of licentiousness: It is a commandment of the sages that a person marry off his son or daughter close to their puberty because if he leaves them they will come to licentiousness or straying thoughts . . . and it is forbidden to marry a woman to a minor because it is akin to licentiousness (kemo zenut).

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A parallel case to this case above of a minor being in a quasi-marriage relationship is a minor girl whose father is out of contact. Although the rabbis instituted rabbinic marriage for the minor whose father had died, by passing the capacity to marry her off to the mother or brother, this case is different because the father is alive and he hasn’t consented but at the same time he is out of contact. Thus this quasi-marriage was also under contention by the rabbis in a similar way to the discussion of the marriage involving a minor above. This case is commented on by the Sefer Halakhot Gedolot , a publication from the geonic times, which equates the father being away to the dead father and seems to give this marriage the same rabbinic status as the marriage of a minor girl whose father has died. In the former case, however, if the father returns he can ratify the marriage and thus transform it to marriage of a biblical level. It says: The case of a minor whose father is away and whose mother married her off has been brought before the sages several times. They responded that it is fine what the mother did because the rabbis enacted marriage for minors and should the father come he would get her betrothed on a biblical level and if not then she would be married according to the enactment of the rabbis. As she comes of age the marriage will grow with her and when the father gets back he does not need to get her betrothed.47 Sefer Halakhot Gedolot collapses this situation of a minor girl whose father is absent with a minor girl whose father died, and therefore fits it into the category of kiddushin derabbanan (betrothal on a rabbinical level). However, this view is not maintained by Rabbenu Asher who actually sees it as different from the marriage that the rabbis instituted yet at the same time not prohibited as licentious relations. He also carves out this more neutral space of sexual relationship that is not considered marriage nor licentiousness, as Maimonides’ analysis would suggest. He says (on Kiddushin at 2:8): Thus it seems that there is no marriage, not even on a rabbinic level, nevertheless we do not forbid it and make her be considered as available as if she is licentiousness with him, since she is in the manner of marriage (derekh kiddushin) with him and it is not licentious. Rabbenu Asher seems to be determining on a practical and pragmatic level that even though there is no marriage (neither biblical nor rabbinic) for the minor girl with an absent father, she is not considered to be licentious if she acts as if married to him.

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Conceptualizing this space between marriage and licentiousness is important in developing a model of partnership outside of kiddushin . These different positions and their implications will be examined below. I want to look at three main points of analysis: 1. The debate between the Tosafists (and Rabbenu Asher), and Maimonides as representing the tension between the idea of a neutral space between mitzvah and sin (i.e. between marriage and licentiousness) in comparison with the model of everything being either mitzvah or sin respectively (i.e. marriage or licentiousness). 2. The legal nexus between sexual relationship and the acquisition in marriage (Rabbenu Asher cf. Maimonides). 3. The different ways that the concept of beilat zenut (licentiousness) can be understood as having emerged from this discussion. This difference between the Tosafists and Rabbenu Asher, and Maimonides may be related to a debate between whether or not there is a position of neutrality as far as law is concerned. For example there is one position that holds that an action is either forbidden or it is a positive commandment, but there is another position that holds that there is an in-between position called davar reshut (discretionary things) which is neither forbidden nor a mitzvah (positive commandment), but is nonetheless acceptable.48 This debate can perhaps be traced to a more fundamental distinction between whether one thinks that there is a morality outside halakha (not a mitzvah , but not forbidden) or whether there is not (either a mitzvah or forbidden).49 Similarly in relation to concubinage and the question of separating out the commandment of ‘be fruitful and multiply’ from marriage we see Rabbenu Asher and Maimonides occupying different positions. Rabbenu Asher carves a space for a man to fulfil the commandment of procreation without getting married. He says (Ketubot 1:12): It seems to me that this blessing [on marriage] is not a blessing about doing a commandment: Procreation is the fulfillment of that commandment. If a man takes a concubine and fulfills procreation then he is not obligated to marry a woman . . . because it is possible to fulfill the commandment of procreation without marriage. The implication of Rabbenu Asher’s opinion is that marriage itself is not necessary for the fulfilment of the commandment of procreation. However, Maimonides is not pluralistic with relation to the possibilities of legally

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sanctioned unions and the idea of splitting off procreation from marriage. He says at Laws of Personal Status 1:1: Since the Torah was given Israel was commanded that if a man wants to marry a woman he should acquire her first before witnesses and after that she will be his wife. As it says: ‘When a man takes a woman and has intercourse with her.’ And these forms of acquisition are a positive commandment from the Torah. Maimonides sees this as a separate commandment from procreation and this is one of the reasons why he does not agree with Rabbenu Asher who says that the only commandment related to marriage is the commandment of procreation. Rabbenu Asher argues that the commandment of procreation can be separated from the marriage and thus fulfilled through a different kind of partnership. It should be noted however that later scholars interpret Maimonides differently and argue that when he banned sexual intercourse other than marriage he was only doing so in relation to promiscuous intercourse and not in relation to concubinage.50 There is an inverse relationship between the model of acquisition that a scholar subscribes to, and his or her capacity to imagine a relationship outside that model that is not considered licentious. For example, in the chapter above we were discussing Maimonides’ position of granting more capacity to a woman to be able to initiate divorcing her husband in a case where she can’t stand him. He says, as I quote above, Laws of Personal Status 14:8-9: She is asked why she rebelled. If she says ‘He is loathsome to me and I cannot willingly have relations with him’ then pressure is forthwith exerted upon him to divorce her, for she is not a captive that she should be made to have relations with a man whom she hates. Thus Maimonides who has a thinner notion of acquisition, as he says ‘she is not like a captive’, does not find a model of sexual relations outside marriage that is not licentious. Rabbenu Asher, who is more lenient in this case concerning the space for a sexual relationship outside formal marriage, is much more rigid when dealing with the rebellious woman. Rabbenu Asher advocates for the right of the husband to maintain and hold on to the marriage, even against the wife’s will. He says: Moreover, I say the Geonim that ruled as they did were acting on what appeared to be the imperative of the hour for the sake of the daughters

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of Israel. Today the situation is the opposite; the daughters of Israel are immodest . . . therefore it is best to stay far away from coercion. A great wonder at Maimonides for saying that she is not like a captive that she has to have relations with a man who is hateful to her. Is that a reason to coerce a man to divorce and to permit a married woman? Let her refrain from relations with him and remain in living widowhood all her days! After all she is not obligated to be fruitful and multiply. Just because she goes after the arbitrariness of her heart, and looks at another man and desires him more than the man of her youth, should we fulfil her lust and force the man who has loved the wife of his youth, to divorce her? God forbid, if any rabbinical judge would decide thus. (Rabbenu Asher, 43:8) It is possible to argue that Maimonides who had a more far-reaching conceptualization of marriage, that includes the capacity for the wife to initiate divorce, would have a stricter delineation between what is considered marriage, and other sexual activity that he would consider as licentiousness. This is in contrast to Rabbenu Asher who as we saw was scathing about Maimonides and his position of allowing the woman to initiate divorce, and yet he creates the conceptual space to be able to have a third category between marriage and licentiousness. Because Maimonides had to imagine either a marriage relationship or illicit sex he conceptualized a more fluid concept of marriage that had the possibility for the wife to initiate divorce. Rabbenu Asher however, as we see above, reacted strongly against this position but had charted the course for an alternative to both marriage and illicit sex. While Maimonides’ more lenient position on allowing women to divorce should not be cast aside, Rabbenu Asher’s more lenient position about allowing sex outside of marriage may be what we need to rely on to be able to invoke a concept outside of marriage, such as derekh kiddushin. However the problem according to this logic would be that it would potentially not be seen as outside marriage and therefore be laden with requirements for divorce that would therefore defeat some of its purpose. The concept of beilat zenut (licentiousness) was discussed in Chapter 2. From the discussion in this chapter it seems clear to divide the usage into two different categories; one normative and the other descriptive. Each of those usages represents a different attitude not only towards the particularities of this law, but also in terms of the role and use of law in general. For example, Rabbenu Asher on Kiddushin 2:8, as cited above, seems to be employing a pragmatic approach to the determination of beilat zenut . He interprets her licentiousness out of being. The facts stand as they are and the actions become a matter of value and interpretation. She is in

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a relationship and she is not married, however Rabbenu Asher is prepared to describe it ‘as if’ she is married. It would not be desirable to consider her as ‘available’ therefore we say it is as if she is married to him. He is acknowledging that by forbidding their relationship he would be making a sinner out of her in a case where she does not have to be considered as such. Maimonides however is constructing a normative concept of licentious relations. One element of the distinction between their approaches to beilat zenut may be ensconced in the different genre in which these particular ideas emerge, Rabbenu Asher from responsa and Talmudic commentary, and Maimonides, in this case, from his law code the Mishneh Torah. Genre aside, for Maimonides it is the nature of this relationship which is forbidden, while Rabbenu Asher is looking for a way to extend the law to account for this human situation within the bounds of normative acceptability. The difference between them is like the difference between someone who has an ideal of the law and defines human experience in relation to this ideal as opposed to someone who puts the human experience at the centre in coming to determine the law. This example of different ways of conceptualizing beilat zenut – one more descriptive and one more normative – is a useful way of breaking down concepts and enables more creative thinking. This mirrors the previous discussions in Chapters 3 and 4 about whether rabbinic presumptions should be interpreted as descriptive or normative (prescriptive). After the examination of these related background issues affecting the conceptualization of alternatives to marriage, I now explore Feldblum’s proposal in more detail. Feldblum presents derekh kiddushin as a solution to the agunah (chained woman) problem. He says: The problem with agunot and mamzerim continues to worsen. The suffering and humiliation that is caused especially to women and children and the resulting negative image of halakha and the Rabbinate is a perversion that can be fi xed only with great difficulty. The unending efforts of the Rabbinate, and the solutions offered until now, offer insubstantial relief.51 Before we proceed to discuss the halakhic solution he offers it should be noted that his opening above suggests a clear moral position with which he is approaching the halakhic material. He has highlighted a problem and its gravity and this is the starting point for his coming up with a

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solution. In proposing the use of derekh kiddushin as a potential solution for the agunah and mamzerut (illegitimate children) problem, Feldblum gives a concise description of what it is and how it navigates the challenging course of becoming a halakhic category that is stable enough to withstand claims of licentiousness yet fluid enough to not require a get . He says: From this we learn that there is one kind of sexual relationship that is not in the category of Torah-mandated marriage, nor is it rabbinic marriage, and it is also not called concubinage, and even so it does not constitute licentious relations. In this type of relationship the woman does not need a get (Jewish divorce) or halitzah (ritual discharging levirate marriage obligations).52 The main argument that Feldblum uses in proposing this as a solution to current problems is to offer an analogy with the circumstances of the quasi-marriage. Just as in the other cases mentioned above there was an element of lack of consent, so too in present day acquisitions there is an analogous element of lack of consent. He says: In the secular society of today many women are unaware that the kiddushin has an aspect of acquisition and that it is only possible to nullify it with the agreement of the husband. In light of women’s advances towards equality in all areas of life, there is an assumption, perhaps even a proven assumption, that were they to know the above (the acquisition and control of the husband) many women would not agree at all to the acquisition, and this stands in contrast to the situation until recent years. This assumption is underscored by the remarks of those women who are aware of the acquisition and who do not accept it at all. They are only consenting to a bond of mutual loyalty. According to this, an assumption is created this is a case of deficient consent on the part of the acquired party. 53 Feldblum does however acknowledge the potentially problematic nature of such a ‘loose’ analogy: The question is, what is the nature of the lack of consent of those women, and how is it different to the lack of consent of the deaf woman and the female minor?54

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Interestingly he tries to argue that the lack of consent on the part of modern women may be greater because with the minor and the deaf girl, their lack of consent is because of some presumed mental incapacity, not because of a particular presumption about this issue. But with regard to women who are considered to be able to give consent, there is an actual presumption that they would not consent and are opposed to acquisition. In particular if these women have expressly said that they would not approve of some kind of acquisition then it is actually clear, according to Feldblum, that they are deficient in consent to the marriage? He asks: ‘How can one give the status of biblical marriage to this marriage?’55 Feldblum emphasizes the importance of his proposed relationship especially in relation to secular women who, he says, ‘only agree to a commitment of loyalty but not to one in which she would not be allowed to go free without the husband’s consent’.56 He earnestly suggests that there might be a possibility that the Israeli Rabbinate would be able to effectuate this model of derekh kiddushin therefore subjecting it to their control and supervision. Given that the model does not require a Jewish divorce per se, Feldblum also addresses the scenario of possible relationship breakdown. He recommends that in such a case the couple would undergo a process of counseling and separation. And in urgent situations the rabbinate could authorize the separation. Although I understand why he might have made such a distinction, I would not want to adopt the distinction that Feldblum makes between those people who are Torah observant and those who are not. Although someone who is observant will probably not get married to someone else without a divorce and even less so, have children while married to someone else, nevertheless the conceptual problem of the woman being acquired by the man is not lesser for a woman who is observant. In fact, one could argue that as part of the broader system that governs her life, the religiously observant woman who is not comfortable with the acquisitional aspect of marriage has even more at stake in finding other models, although some women may not identify with the problem. 57 On the other hand, in Israel where secular women are being coerced to marry religiously because there is no civil option, there would be less reason to acquiesce would such an option be made available. In conceptualizing what a derekh kiddushin partnership would look like, Feldblum frames the discussion with the question of whether or not it is necessary to change the ceremony significantly so it does not resemble the

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acquisitional marriage. The potential problem about confusion between the models would result in a doubt about the propriety of the blessings. He refers to the responsa of the Radbaz (1:45) who says that even according to those who hold that derekh kiddushin does not count for anything, they would still be allowed to make a blessing, in the first instance (not even limited to after the fact). The blessings are not considered in vain because firstly, the blessing is about the praise of God and not about the acquisition and second, because they are de facto committing to each other like in kiddushin (betrothal) and not merely engaging in promiscuity, the blessings are not in vain. On the contrary, the Radbaz argues, one must bless because a bride without a blessing is forbidden to her husband like a menstruant woman. However Rav Ovadia Yosef is more ambivalent about the permission to say the blessings. He recommends for the blessing to be said over the wine, and for the officiator to taste the wine and then to say the blessings without God’s name to avoid potential using of God’s name in vain. 58 Feldblum argues that he will rely on the Radbaz’s opinion because he thinks it is important not to change the accepted ceremony so that the couple and the community will have the sense of the holiness of the relationship but he also adds, taking in to consideration Rav Ovadia Yosef’s concern, that the blessing should be said without mentioning God’s name. There is an educational problem with this suggestion of maintaining the same ceremony but changing the legal nature of what is happening. It is unclear how people will know that the couple has not done the regular acquisitional betrothal and hence the ceremony will potentially not have the same educative value as a ceremony that was more clearly marked as an oppositional practice. In a sense, this ceremony is not acquisition but wants to pass as such because of emotional connections to these traditions that are equated with holiness. Separating holiness from insinuations of acquisition is an important hermeneutical task to be accomplished. The significance of ritual is also related to the community’s perception of it and what appears to be happening, as well as its significance as law and what is really being affected from a legal perspective. In contemporary times the acquisition of the Jewish marriage is affected through the giving of something of value from the man to the woman, usually a ring, after the statement of the formulaic ‘Behold you are sanctified to me with this ring according to the Laws of Moses and Israel.’ Feldblum suggests that the expression should be changed to ‘Behold you are exclusive

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(meyuhedet) to me.’ One reason is that with this expression one avoids the risk of entering into a marriage of Torah level. (However according to Maimonides one does effect a doubtful marriage.) In his book review on the chapter about Feldblum’s solution in the book Za’aqat Dalot , Rabbi Yehudah Abel, drawing on Maimonides’ Mishneh Torah, Laws of Personal Status 3:6 argues that a declaration of the husband such as ‘Behold with this ring I am your husband’ would definitely not create a state of kiddushin because he is transferring himself to her and she is acquiring him.59 Feldblum argues that in addition to the weakness as a result of her non-consent to acquisition, the marriage should be further weakened with the changes to the classic statement so as not to qualify on a rabbinic level either. The second reason Feldblum gives to justify his suggestion is that ‘Behold you are exclusive’ can function as a sign that this is a derekh kiddushin rather than the traditional Torah level kiddushin (betrothal). Feldblum is sure to commend that the witnesses to this marriage do not need to be ‘kosher’ according to the usual standards. This is a further way of reflecting the status of this union and avoiding confusion with the Torah level kiddushin . Feldblum is clearly addressing his solution to the Orthodox hegemony because non-Orthodox weddings are already invalidated because of the halakhic ‘deficiency’ of their witnesses.60 Although a ketubah (marriage contract) is not a necessary part of this relationship Feldblum acknowledges that the husband may choose to obligate himself to commitments and if so then the standard ketubah (marriage contract) could be used. This echoes the response of Rav Moshe Feinstein (Even Ha’ezer 87) who recommends in the case of deaf people marrying each other, where a marriage contract is optional, that if it is used it should be the usual version. Only the very meticulous person should make simple changes if necessary. Rabbi J. David Bleich, a modern Orthodox commentator on divorce issues described derekh kiddushin as concubinage in disguise. In ‘Survey of Recent Halakhic Periodical Literature: Can There Be Marriage without Marriage?’ Bleich says that ‘ostensibly, the simplest solution to the problem is completely to do away with marriage as a halakhic institution’. He continues that because of the prohibition on extramarital sexual relations this would only become viable if a sexual relationship could be halakhically legitimated outside of the framework of matrimony. In this article Bleich has a two-pronged argument: First he states that concubinage is prohibited. Secondly he contends that couples cannot avoid the prohibition of concubinage through a declaration of intention

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to establish a derekh kiddushin arrangement. He brings a Yiddish aphorism to show us that it is ‘the same bride but with a different veil’.61 Therefore despite Feldblum’s contention about the distinction between concubinage and derekh kiddushin , Bleich remains unconvinced. Those scholars who disapprove of concubinage – either as a specific halakhic category or for policy reasons of not wanting to sanction a relationship outside traditional Jewish marriage – will most likely also disapprove of derekh kiddushin . It provides an alternative to marriage. As elucidated in the Feldblum proposal, it can be differentiated from concubinage on the basis of it having a public ceremony, and also precipitating a staged separation process in the case of the relationship breaking down. The couple would also be free to choose whether and what type of economic agreement they would have. Derekh kiddushin may even be more challenging on an ideological level for those people who oppose concubinage for policy reasons of not wanting to undermine marriage, because it is a more enticing option than concubinage (especially without the connotations of polygamy inherent in the institution of concubinage). The main challenges to Feldblum’s model are the following: 1. Is kinyan (acquisition) in marriage really an acquisition analogous to property? 2. The equivalence of derekh kiddushin with concubinage. 3. The suggestion that civil marriage would be a more appropriate option for avoiding the pitfalls of the traditional marriage, and being able to fully bypass the religious establishment. I will summarize each of his responses to these issues in turn: Feldblum argues that irrespective of how one sees the acquisition, the appropriate issue is to look at the ramifications for the woman of this acquisition (This was the basis of the second chapter of this book). She cannot leave this relationship without the husband’s permission. If the woman does not want to enter the marriage it does not take effect. Even if there is no specific rejection but there is a strong assumption she does not want to get married then a great doubt is evoked. Feldblum has made an assumption of this nature in relation to secular women in Israel who he says do not agree to get themselves stranded in relationships in which they could be potentially trapped with a recalcitrant husband refusing to give them a divorce.

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Feldblum tackles this question of equating derekh kiddushin with concubinage on two levels simultaneously. On the one hand, he points out that aside from Maimonides’ position that forbids the concubine to a regular man (as opposed to the king), the other decisors do not forbid it outright in the same way, although they push it aside for a range of religious, social and moral reasons. On the other hand, Feldblum differentiates between the two models because derekh kiddushin will be conducted, as detailed above, in the format of the traditional ceremony and thus the couple will be treated as a married couple as opposed to having the status of a concubine relationship. This is further emphasized by the suggested procedure for advice and separation detailed above which would not be applicable in the case of concubinage. Feldblum also argues that the rishonim and aharonim were not referring to concubinage when they were discussing derekh kiddushin and thus he argues for their conceptual separation. Even if they have some conceptual cross-over, Feldblum argues that the difference in nomenclature is highly significant. Feldblum argues that if civil marriage is instituted it will significantly reduce the contact that the secular Jewish Israeli population has with the rabbinate and thus will reduce its capacity to impact on behavioural norms. He claims that the more gentle touch of derekh kiddushin will still make it possible for the rabbis to advance in the issue of ‘family purity’ (practices around menstruation and ritual immersion) however they will be doing so in the context of increased goodwill and autonomy. Whereas some critics of his proposal may argue that Feldblum is breaking from the tradition, he posits that it is intended to connect the majority of the nation back to the Jewish tradition and the rabbis of Israel. Feldblum also notes from a religious perspective that civil marriage risks the dissolution of the Jewish people through the non-differentiation between marriage between Jews and intermarriage between Jews and people of other faith traditions.62 In summary, Feldblum notes that derekh kiddushin fulfils two of his crucial aims, one being that it is a model of relationship that is found within the framework of halakha and the Jewish tradition, and the other is that it avoids a connection between the couple that is based on his acquisition of her and that involves her reliance on his good will to grant a divorce.63 It is significant to note that because Feldblum has moral problems with the status quo of the traditional acquisitional marriage, he is willing to go to the tradition to find another model of partnership. However, for someone else who does not have that a priori commitment to changing the status

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quo and does not see a problem with it, contemplation of these conceptual options does not figure highly. They would either prefer to leave the traditions in place or try to find solutions to problems within the given models and structures. The approach that Feldblum models in relationship to alternatives to acquisitional marriage demonstrates an attempt to be more flexible trying to include more people, and reconfiguring the past to provide new models with which to move forward. This is in contrast to a more rigid conception of the law without compromise as a principled and ideological position, even while knowing that it may alienate many people.

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Towards Tradition and Equality in Jewish Marriage

When I began writing this book I was primarily interested in using developments in the Jewish law of marriage and approaches to the problem of agunot (chained women) to reflect on the way that Jewish legal commentators embed their ideological commitments in terms of formal legal arguments (without necessarily acknowledging this is the case). Associated with this was my understanding that the ‘right’ ideological commitments – to justice, fairness, alleviation of human suffering – could be activated in place of others and could affect the formal legal decision-making process accordingly. No one would deny that extra-legal principles such as kavod habriyot (human dignity), avoidance of hillul Hashem (desecration of God’s name), mipnei darkhei shalom (because of ways of peace), mipnei tikkun olam (because of fixing the world) have influenced Jewish law and could continue to be activated to achieve positive outcomes for people and communities. I was also interested in the locatedness of legal decisions in place and time and the significance of context in legal determinations. In the book I showed how laws have always changed with the times and in relationship to social and political milieu. This acknowledgement of the social responseability of the law is important in that it destabilizes claims about religious law being inimical to change as well as discouraging longing about an idealized and ‘authentic’ religious law, that can be potentially reclaimed, from some time that is separate from the contingencies of human change and imperfection. Historicization of law to which I refer is significant for the feminist study of religious law on two accounts: first because, as I argue in the book, it undermines any notion of a monolithic past. Patriarchal tendencies were and are many and diverse and were not and are still not monolithic. Finding differences is also finding spaces and cracks, the potential to imagine something different. Secondly, the historicization of religious law is also important for feminist analysis because establishing the fact of change in the past can allow the development of change in the present and future. More specifically, hermeneutic strategies can be employed with legal texts that support this process of change. One method that is particularly

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important is the way in which ancient legal statements can be read as either prescriptive or descriptive. When they are read as prescriptive then they usually apply irrespective of social norms (or other legal rules need to be activated to invalidate them) however when they are read as descriptive they depend on one’s analysis of the contemporary situation and thus may or may not apply. Even those people who understand them as descriptive may still hold the opinion that they are valid but there is the opportunity for engaging with the current milieu and deciding accordingly. Focusing on the formal legal rules, in this case in relation to marriage, is important for any feminist endeavour. Feminist legal strategies in relation to traditional law may include: finding new ways of understanding laws to expose their power dynamic; reading laws as social commentary; engaging in interpretative tools of the tradition to affect decision-making and resuscitating minority or less-publicized innovative legal decisions that warrant attention. Although such feminist engagement with the formal legal rules and interpretation as mentioned above can create legal change, commitment to an engagement with formal legal rules can often keep certain assumptions and practices in place, and work around the status quo in order to come up with new, albeit somewhat limited, solutions and strategies. This capacity for both innovation and limitation was highly evident in my reading of the formidable ‘Draft Final report of the Agunah Research Unit’ (July 2009) where great effort was expended on finding legal strategies in relation to the problem of agunot . Efforts were focused on finding solutions that would take into account the most intransigent halakhic perspective in order to achieve a global set of solutions of which at least one would be acceptable to all orthodox and ultra-orthodox rabbinic authorities. These efforts are to be applauded but what was absent in that report was any substantial questioning of the appropriateness of the model of kiddushin as the accepted model of marriage for contemporary Jews. This absence is understandable within the scope of the intended audience, however the lack remains apparent. Feminist scholarship of religious law works on multiple levels simultaneously. As well as providing new ways of reading texts, resuscitating old practices and locating power structures in traditional laws, it can also activate the ‘transformational capacity of law’.1 To employ the imagination towards transformation is to build on the material that we know and have, and to envision the world, in this case, the heterosexual Jewish partnership (and potentially family) the way we would like it to be. How do we embody a sense of true mutuality and partnership in a structure of relationship

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that provides for commitment without undue and unfair restrictions on personal autonomy? How do we truly embody the social construction of gender in the halakhic process so that Jewish practice becomes a shelter from and resource against gender oppression rather than another avenue of its expression? How do we account for the coherence and elasticity of a halakhic system that answers to radically diverse communities of meaning? Can these communities marry and divorce each other, let alone talk to each other? The significance of adopting an ethical position in relation to a given problem prior to investigating the legal problem cannot be understated. The weight of the authority of Jewish law and its preservative nature means that there is absolutely no impetus for any kind of change in the orthodox world without a heavyweight moral outrage by the rabbis with the right authority. Similarly, there is no threat to the question of authority and no impetus for the adoption of new models without moral outrage and ideological commitment. Different rabbis and scholars defi ne the problems of Jewish marriage and agunot in different ways, all of them important and give us grist for the mill. For some the main problem is the desecration of God’s name that results in people suffering because of halakha and the rabbis, for others it is the sheer suffering and use of unfair elements in the marriage as a weapon by vindictive partners. In addition, I emphasized the problem as one regarding the unequal and non-mutual partnership because that in itself is not the correct basis for instituting a redemptive heterosexual committed partnership in this unredeemed world. The question of authority and negotiating between traditional religious legal sources and feminist commitments is a suggested further avenue for research, using heterosexual partnership as a case study. An analysis of established models of relating to authority, as theorized by different Jewish denominations will support this study. Related to this question of authority is thinking through models of Jewish law and its relationship to praxis based on the sociological reality that the vast majority of the Jewish world do not consider themselves obligated in Jewish law. Finally, once kiddushin has been exposed as non-reciprocal and having acquisitional elements, thus making it an inappropriate basis for a mutual and reciprocal partnership, we need to determine whether the same term can be used for different means and purposes, with a radically revised content (that may make it contrary to previous rabbinic rulings) or alternatively whether new or recuperated models need to be employed to reflect the shift in values and requirements.

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The midrash about the diminishment of the moon that appears at BT Hullin 60b has always troubled me. There the rabbis explain the discrepancy in the creation narrative where one verse said ‘two lights’ to describe the sun and the moon, and immediately afterwards the next verse describes them as ‘the greater light and the lesser light’. They explain that the moon asked God how it is possible for one king to wear two crowns and then God punished the moon by diminishing it. After God tries to comfort the moon with many praises God realizes that the moon will not be appeased and then God offers a sacrifice to atone for what God did in diminishing the moon. The part that has bothered me is that just because the moon was unsure how it was going to work God didn’t give the moon a chance but rather diminished it straight away. The really painful part is my identification with the moon and the fear about sharing power, needing to trust and having no guarantees about how it’s going to work out. As is well known the moon is compared to the feminine and the sun to the masculine energies. Biological men and women have masculine and feminine aspects. The fixing of the earthly relationship between men and women needs to be undertaken with commensurate inner work where women and men both claim their different parts. No man and woman is going to share power in a heterosexual relationship of any kind if he or she has not entered the purifying fire of the inner journey of claiming the qualities of feeling and authority that have been projected outwards. The external challenges in the relationship between the sexes can serve as an awakening to us to continue repairs along parallel tracks of the challenges we face inside ourselves between different parts of the self.

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Notes

Introduction 1

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Aryeh Cohen, Rereading Talmud: Gender, Law and the Poetics of Sugiyot (Atlanta: Scholars Press, 1988) 146. See Charlotte Elisheva Fonrobert, Menstrual Purity: Rabbinic and Christian Reconstructions of Biblical Gender (Stanford: Stanford University Press, 2000) 6 for an expansion of this point. Cohen, Rereading Talmud , 146. Suzanne Last Stone, ‘The Jewish Tradition and Civil Society’ in Susan Chambers and Will Kymlicka (eds) Alternative Conceptions of Civil Society (Princeton: Princeton University Press, 2002) 151–70 at 159. Meir S. Feldblum, ‘The Problem of Agunot and Mamzerim – A Suggested Overall and General Solution’ (in Hebrew) Dinei Israel 19:5757/5758, 209. Biblical concepts such as the sotah (wayward woman), and ben sorer u’moreh (rebellious child) underwent radical transmutations through rabbinic interpretation. See Rachel Adler, Engendering Judaism: An Inclusive Theology and Ethics (Boston: First Beacon Press, 1990). See Tamar Ross, Expanding the Palace of Torah: Orthodoxy and Feminism (Cambridge: University Press of New England, 2004) 53 and 51–61. Ross refers to the resuscitation of earlier practices in her list of different ways to approach halakhic malleability. The list also includes: establishing context-related laws; creative exploration of halakhic lacunae and ambiguity; invoking overarching nonformal considerations; and ignoring past halakhic stipulations. Moshe Halbertal, People of the Book: Canon, Meaning, Authority (Cambridge: Harvard University Press, 2007) 40. Thank you to Mishael Zion for our conversation about this on the way to the airport.

Chapter 1 1

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Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge, MA: Harvard University Press, 1980) 338, 353. One example of this would be a charge against the notion of conditional marriage as leading to beilat zenut (licentious relations) which can be countered, as Eliezer Berkovits points out, with the charge that there is no retroactive beilat zenut (licentious relations). See Eliezer Berkovits, Tenai be’Nissuin uv’Get (TNG) (Hebrew) (Jerusalem: Mossad HaRav Kook, 1966) 58.

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Notes to pages 11–15

Avigail Eisenberg and Jeff Spinner-Halev (eds), Minorities within Minorities: Equality, Rights and Diversity (Cambridge: Cambridge University Press, 2004). Eisenberg and Spinner-Halev (eds), ‘Introduction’, Minorities within Minorities, 11. Irit Koren, ‘The Bride’s Voice: Religious Women Challenge the Wedding Ritual’ Nashim (2005) 29–52 at 32. The liberal quid pro quo of exit is the counterbalance for the liberal allowance to minority groups to self-organize despite some elements of their activities, within limits, being counter to liberal values of the state. Oonagh Reitman, ‘On Exit’ in Eisenberg and Spinner-Halev (eds) Minorities within Minorities, 193. Ibid., 189. Ibid., 199. Two examples of exit that provoked discussions of law reform, if not legal reform itself, that appear below in my book are women’s turning to Islamic courts for divorce at the time of Rav Sherira Gaon (tenth century Pumbeditha, Babylonia) and secular courts in France for a divorce (when secular divorce was introduced in France in 1884). Reitman, Minorities within Minorities , 199. Ayelet Shachar, ‘Should Church and State be Joined at the Altar?: Women’s Rights and the Multicultural Dilemma’ in Will Kymlicka and Wayne Norman (eds) Citizenship in Diverse Societies (London: Oxford University Press, 2000) 199–223 at 201 (fn. 6). Pinhas Shifman, ‘Is There Indeed a Halachic Problem?’ in Marriage, Liberty and Equality: Shall the Three Walk Together? Women in Judaism: Discussion Papers No. 4–5, The Fanya Gottesfeld Heller Center for the Study of Women in Judaism (Tel Aviv: Bar Ilan University, 2000) 27–31 at 30. See also Pinhas Shifman, ‘Marriage and Cohabitation in Israeli Law’ 16 Israel Law Review (1981) 439–60; Pinhas Shifman, ‘Civil Marriage in Israel: The Case for Reform’ Jewish Law Association Studies 13 (2003) 9–129. On Civil Marriage see also Eliav Shochetman, ‘On the Introduction of Civil Marriage in the State of Israel’ Jewish Law Association Studies 13 (2003) 131–84. Ibid. Haym Soloveitchik, ‘Religious Law and Change: The Medieval Ashkenazic Example’ AJS Review 12:2 (Autumn 1987) 205–21 at 205. Ibid., 206. Ibid., 211. See Ruth Halperin-Kaddari, ‘Tav Lemeitav Tan Du Mi-Lemeitav Armalu: An Analysis of the Presumption’ The Edah Journal 4:1, 2004; Susan Aranoff, ‘Two views of marriage – Two views of women: Reconsidering Tav Lemeitav Tan Du Milemetav Armelu’ Nashim 3 (2000) 199–227; Aviad Hacohen, Tears of the Oppressed: An Examination of the Agunah Problem: Background and Halakhic Sources (New York: KTAV Publishing House, Inc., 2004); Koren, ‘The Bride’s Voice’. Daniel Boyarin, Unheroic Conduct: The Rise of Heterosexuality and the Invention of the Jewish Man (Berkeley: University of California Press, 1997) xviii–xix. Ibid., 169. Ibid., 143. Ibid., 152. Ibid., 154.

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Notes to pages 15–20 24 25

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Fonrobert, Menstrual Purity, 7. Aryeh Cohen, ‘The Patriarchy Which Is Not One: The Ideology of Marriage in Rashi and Tosafot’ Hebrew Union College Annual (Cincinnati, OH: 1999) 109–28. Martha Nussbaum argues for the positive contribution that religion has had and can have in the struggle for justice. See Martha Nussbaum, ‘A Plea for Difficulty’ in Is Multiculturalism Bad for Women? ed. Susan Moller Okin (Princeton, NJ: Princeton University Press, 1999) 105–14 at 108. Saba Mahmoud, Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton, NJ: Princeton University Press, 2005). I am grateful to Maria Platt for her thoughts about and references for agency. Judith E. Tucker, Women , Family and Gender in Islamic Law (New York: Cambridge University Press, 2008) 34. Judith Hauptman, Rereading the Rabbis: A Woman’s Voice (Boulder: Westview Press, 1998) 244. Ibid. Ibid., 74. Moshe Halbertal, Interpretative Revolutions in the Making: Values as Interpretative Considerations in Midrashei Halakhah (Hebrew) (Jerusalem: Magnes Press, 1997). Miriam B. Peskowitz, Spinning Fantasies: Rabbis, Gender and History (University of California Press, 1997) 27. I am indebted to Professor Marika Vicziany for bringing my attention to this important point at a Monash interreligious seminar at Monash Malaysia campus in 2009. See Hacohen, Tears of the Oppressed. Bernard Jackson (ed.), Agunah: The Manchester Analysis, Draft Final Report of the Agunah Research Unit (Manchester: University of Manchester, July 2009) 6–7. Ibid. Ibid. See Shochetman, ‘On the Introduction of Civil Marriage’. For the question of civil marriages outside of Israel see Menashe Shava, ‘Civil Marriages Celebrated Abroad: Validity in Israel’, Tel Aviv University Studies in Law 9 (1989) 311–46. Jackson, ARU Draft Final Report , 170. My emphasis. Jackson, ARU Draft Final Report , 209. Ibid., 8. Ibid., 22. Monique Susskind Goldberg and Diana Villa, ZaakatDalot: Halakhic Solutions for the Agunot of Our Time ( Jerusalem: The Shechter Institute of Jewish Studies, 2006). See http://www.ou.org/publications/ja/5765/5765winter/WOMENADV.PDF (15/12/08) for more information about women as rabbinic pleaders. It should also be noted that in addition to harnessing difficult rabbinic sources, the present day rabbinic courts also have demonstrated significant prejudice against women in their reluctance, even in extreme situations, to force husbands – within their rightful jurisdiction – to give their wives a divorce. See this article http://www. come-and-hear.com/editor/agunot/haaretz/index.html (15/12/08) for an example of an extreme case that prompted lawyer and activist Dr Susan Weiss (now heading the Centre for Women’s Justice) in 1997 to establish Yad L’Isha,

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Notes to pages 20–3

an organization that supports women through the divorce process. Other such organizations involved in education, support and advocacy include Mavoi Satum (translated as ‘Dead End’) and Agunah Inc., the Centre for Women’s Justice and ICAR (The International Coalition for Agunah Rights). See Mordechai Akivah Friedman, ‘Developments in Jewish Marriage and Family Law as Reflected in the Cairo Geniza Documents’ Judeo-Arabic Studies (1997) 123–33; S. D. Goitein, A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza , vol. III (Berkeley: The Family, 1978). Lecture delivered on 13 March 2001 under the auspices of the Institute of Advanced Legal Studies, the Oxford Centre for Hebrew and Jewish Studies and the Jewish Law Publication Fund Trustees. See Susan Aranoff, ‘Freeing Agunot: The Rabbi Emanuel Rackman Beit Din’ JOFA Journal 4 (2005) 15, 19–20. See Michael Broyde, ‘Tears of the Oppressed by Aviad Hacohen’ The Edah Journal 4:2, (November 2004); Also see Aranoff ‘Freeing Agunot’, 15, 19–20. The 1948 Conservative Rabbinic Assembly accepted Saul Lieberman’s suggestion to insert a clause in the ketubah granting the Beit Din of that body the capacity to adjudicate were they to encounter marital difficulties. See Norman Solomon ‘Jewish Divorce Law in Contemporary Society’ 131–9 http://www.jofa. org/pdf/Batch%202/0018.pdf (26/8/09). Adler, Engendering Judaism , 1. See Louis M. Epstein, The Jewish Marriage Contract: A Study in the Status of the Woman in Jewish law (New York: Arno Press, 1973); Kopel Kahane, The Theory of Marriage in Jewish Law (Leiden: E. J. Brill, 1966). See note 47 referring to Cairo Geniza research by Goitein and Friedman. Classic compendia such as Mendell Lewittes, Jewish Marriage: Rabbinic Tradition, Legend, and Custom (Northvale, NJ: Jason Aronson Inc., 1994); and John Witte Jnr From Sacrament to Contract: Marriage, Religion and Law in the Western Tradition (Westminster: John Knox, 1997) are important in the situating of this book within the broader discussions about the development of social, legal and economic aspects to the law of marriage and analysis of its transformation through time. See for example, Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England, 1850–1895 (Princeton, NJ: Princeton University Press, 1993) 156–88. See Peskowitz, Spinning Fantasies, 27–48 about women’s capacity to own property in marriage. As part of the acquisitional process the man must give something of value (only 7 peruta) to the bride. Kahane, The Theory of Marriage , 83. Ibid., 27. Ibid., 28. Ibid., 29. Ibid., 90. Romney Wegner, Chattel or Person: The Status of Women in the Mishnah (New York: Oxford University Press, 1988) 45.

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Notes to pages 23–8 65 66

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Kahane, The Theory of Marriage , 37. Emmanuel Rackman, ‘Ethical Norms in the Laws of Marriage’ Judaism 3 (1954) 221–8 at 223. Ibid., 223. The need for stability has been misused to curb women’s right to divorce. See ARU Draft Final Report, 18–27. See Elisha Ancelevits, ‘An Explanation of Divorce Law in Male Hands and Its Practical Ramifications: A Democratic Halakhic Investigation’ 2006 (Unpublished Manuscript – in Hebrew, my translation). See David Weiss Halivni, ‘The Use of qnh in Connection with Marriage’ Harvard Theological Review 57 (1964) 244–7. This argument is supported by an analysis of kiddushei taut and the factors that will determine it are drawn straight from the language of a faulty sale. See http://www.jlaw.com/Articles/KidusheiTaut. html accessed at 26/9/06 where Michael Broyde provides such examples from footnote 14–19. Halivni, ‘The Use of qnh in Connection with Marriage’, 247. Epstein, The Jewish Marriage Contract , 149. Kahane, The Theory of Marriage , 68. My emphasis. Epstein, The Jewish Marriage Contract , 80. George J. Webber, ‘The Principles of the Jewish Law of Property’ Journal of Comparative Legislation and International Law 3rd series, 10:1 (1928) 82–93 at 88. Acquisition for the fruits or kinyan perot , is reminiscent of Wegner’s conceptualization of the acquisition being limited to women’s reproductive functions as discussed above. She argues that in all other matters the woman is treated as her own person. See Wegner, Chattel or Person , 45. Ibid. Michael J. Broyde and Michael Ausubel (eds), Marriage, Sex and Family in Judaism (Lanham: Rowman and Littelfield, 2005) 91. Ibid., 193. See Rabbi Hershel Schachter ‘Can Women be Rabbis?’ http://www.torahweb. org/torah/2004/parsha/rsch_dvorim2.html (22/9/09) where he commends and celebrates women’s absence from leadership in the public sphere by claiming that women don’t need to sacrifice their modesty and lead publically, unlike men who by so doing diminish themselves as being in the image of the divine whose ways are hidden. Boyarin, Unheroic Conduct , 179. See Tosefta Yevamot 8:7 cf BT Yevamot 63b (translation in Boyarin, Carnal Israel , 134.) Robert M. Cover et al., Narrative, Violence and the Law (University of Michigan Press, 1995) 239. Robert M. Cover, ‘Obligation: A Jewish Jurisprudence of the Social Order’ in Law, Politics and Morality in Judaism ed. Michael Walzer (New Jersey: Princeton University Press, 2006) 3. This exemption appears in Mishnah Kiddushin 1:7. All translations of mishnayot are adapted from Philip Blackman, Mishnayoth: Seder Nashim ( Judaica Press, 2000). Numbers 32, note 42.

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Rabbi Moshe Pinchuk is acknowledged for the class that he taught me which helped open up new ways of thinking about the time-bound commandments and exemption. See Torah Temimah , Shemot, 13:42. See Tosafists at BT Megillah 23a for requirement of blessing for women doing voluntary mitzvot and BT Baba Kama 87a for pronouncement about the worthiness of performing obligatory commandments in preference to performing voluntary commandments. Rabbanit Chana Henkin, prominent Israeli Modern Orthodox leader and teacher discusses the need for women to forge a new path of spiritual expression. She cites the Piacezne Rebbe to bring an alternative perspective celebrating the value of performance of voluntary commandments in his commentary on Miriam and the well being in her merit. See Chana Henkin, ‘Einah Metzuvah Ve’osah in a Postmodern World’ at http://www.nishmat.net/ article.php?id=63&heading=0 (8/7/09). The Ran commenting on the Rif at BT Rosh Hashanah 9b argues that women can say the blessing about God commanding the mitzvah despite their exemption from it because they can include themselves in the commandment to the males and because they receive reward from their fulfilment of the commandment. These issues are contested by other commentators. Adler, Engendering Judaism , 176. Epstein, The Jewish Marriage Contract , 179. Friedman, ‘Developments in Jewish Marriage and Family Law’, 123–33 at 127. See also S. D. Goitein in A Mediterranean Society. Wegner, Chattel or Person , 74. A woman would rather be with any bloke than be by herself – this means that you can never say she did not consent unless it would be totally clear that she would have never consented but her standards are considered very low. See reference to Rav Soloveitchik in Bleich, ‘Survey of Recent Halakhic Literature’, 124–5, fn. 28. See important article by Aranoff ‘Two views of marriage’, where she advocates against maintenance of the presumption and for annulment of marriages on the basis of kiddusheita’ut (mistaken marriage) and the lack of consent at the time of marriage because of the lack of disclosure and mistaken impression she had received from her husband prior to the marriage. About kiddusheita’ut (mistaken marriage), see also Aviad Hacohen, The Tears of the Oppressed , esp. 23–102. Shlomo Riskin, ‘Hafka’at Kiddushin: Towards Solving the Aguna Problem in our Time’, Tradition 36:4 (2002) 1–36. Ibid., 7. Annulment is the method that has been used by Conservative Religious Courts since the 1960s. See Rachel Sara Rosenthal, ‘Of Pearls and Fish: An Analysis of Jewish Legal Texts on Sexuality and Their Significance for Contemporary American Jewish Movements’ Columbia Journal of Gender and Law 15 (2006) 485–541 at 521–3. See also Naomi Graetz, ‘The Battered Woman in the Jewish Tradition: See No Evil, Hear No Evil, Speak No Evil’ Journal of Religion & Abuse 6:3 (2005) 31–48 at 45. See Avishalom Westreich, ‘Annulment of Marriage (Hafka’at Kiddushin): Re-examination of an Old Debate’, Working Papers of the Agunah Research Unit, no. 11, 2008, 1–14.

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Irit Koren, ‘The Bride’s Voice’ 29–52 at 32. See Broyde’s Tripartite Solution incorporating a condition, get by appointment and annulment of marriage to be activated after 15 months of having no get forthcoming at Broyde, ‘An Unsuccessful Defence’, 21–2. See also Abel’s critique at Yehudah Abel, ‘Comments on R. Broyde’s Tripartite Agreement’, Working Papers of the Agunah Research Unit, July 2009 http://www.mucjs. org/Broyde.pdf (28/10/09). Ibid., 32.

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See Pinhas Shifman, ‘Is there indeed a Halachic Problem?’ in Marriage, Liberty and Equality, 27–31 at 30 who argues for the necessity of instigating halakhic change with the identification of moral problems. The materials that I have selected are based on the rabbinic sources referenced in the section Nashim of Rambam’s Mishneh Torah that highlight key laws. See for example http://www.ohrtorahstone.org.il/parsha/5761/kiteze61.htm (27/8/09) where Rabbi Shlomo Riskin describes acquisition as commitment. Noam Zohar, ‘Women, Men and Religious Status: Deciphering a Mishnah’ in Herbert Basser and Simcha Fishbane (eds) Approaches to Ancient Judaism , (Atlanta: Scholars Press, 1975) 33. Daniel Boyarin, Carnal Israel: Reading Sex in Talmudic Culture (Berkeley: University of California Press, 1995) Footnote 6, 114–15. Here Boyarin says: I would like to note that Wegner’s repeated insistence that a wife’s sexuality is the property of her husband in talmudic law is extremely misleading (Wegner, 1988, 19 and passim), particularly in the legal context of her discussion. Virtually none of the definitions of ownership apply. A husband may not make use of his wife’s sexuality without her consent; he may not alienate it; he may not dispose of it. The definition seems to me, therefore, entirely invalid. Wegner, Chattel or Person , 120–6, 188–9. Zohar, ‘Women, Men’, 36. Ibid., 36. Ibid., 36. However Rav decreed that this technique of acqusition, despite its legal efficacy, should not be relied upon for moral reasons. See BT Yevamot 52a. See general requirement for consent at BT Kiddushin 2b and statement about silence being equal to consent at BT Baba Metzia 37b. In addition, BT Kiddushin 5b says that he cannot say ‘I am only for you’ and even if he says ‘you are only for me’ – in the language of meyuhedet , this is still doubtful. It is therefore obvious that she cannot give him something of value and then make a statement of exclusivity about their relationship. Maimonides adopts this position in Mishneh Torah, Laws of Personal Status 9:2. John L. Austin, How to Do Things with Words (Oxford: Clarendon Press, 1961) 6–7. Mishnah Kiddushin 1:1. See Phyllis Bird, ‘Prostitution in the Social World and Religious Rhetoric of Ancient Israel’ in Christopher A. Faraone and Laura K. McClure (eds) Prostitutes

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and Courtesans in the Ancient World (University of Wisconsin, 2006) 40–58 at 50–5; Louis Epstein, Marriage Laws in the Bible and Talmud (Cambridge, MA: Harvard University Press, 1942) 308ff. These include Israel Bruna (Mahari Mi’Brun – fi fteenth century Germany), Rabbi Yehezkel Landau (Nodah B’Yehudah – eighteenth century Poland) and Moses Schreiber (Hatam Sofer – mid-eighteenth–nineteenth century Europe). See Eliezer Berkovits, TNG, 58. See http://www.come-and-hear.com/gittin/gittin_81.html (20/9/11). The first part of the pericope tried to hang the dispute of the mishnah on the presumption of ein adam saying that in a case where they had been seen to have sex, depending on how Beit Hillel or Beit Shammai held in the ein adam dispute, they would determine whether or not they needed a divorce. But the baraita established that the ein adam dispute was limited to a case where they did have witnesses to the sex but the stam wanted to narrow the mishnah to a case where they did not have witnesses in order to make sense with the distinctions in the mishnah – a point raised earlier by the gemara when it asked ‘If it is just about whether or not they were seen by witnesses then what is the distinction between whether they were betrothed or married?’ Therefore it seems that the talmudic narrator wanted to limit the case of the mishnah to where there were no witnesses to them having relations. The maxim appears at BT Ketubot 62b; Yomah 18b; and Yevamot 32b. See Gail Labovitz, ‘Is Rav’s Wife “a Dish”? Food and Eating metaphors in Rabbinic Discourse of Sexuality and Gender Relations’ in Studies in Jewish Civilization 18: Love – Ideal and Real – in the Jewish Tradition (Creighton University Press, 2008) 147–69. See also Chapter 3, reference to BT Nedarim 20b and analogy of consumption of women’s bodies in sexual intercourse to eating meat. See ARU Draft Final Report, 82–4. The Tosafists there refer also to this question. Gail Labovitz, ‘Consent, Agency, and the Semantics of Sexuality in the Babylonian Talmud’, Feminist Sexual Ethics Project. http://www.brandeis.edu/ projects/fse/judaism/juda-articles/juda-art-consent.pdf (9/4/08) (2002) 22. We can assume with regard to the third scenario from BT Ketubot that the woman encumbered by vows or blemishes actually wants to be married, but the question is related to the technical details about how conditions work. See Feresteh Ahmadi, ‘Islamic Feminism in Iran: Feminism in a New Islamic Context’ Journal of Feminist Studies in Religion 22:2 (2006) 33–53 at 39–41; and Ziba Mir-Hosseini, ‘Islam and Gender Justice’ in Vincent J. Cornell and Omid Safi (eds) Voices of Islam: Voices of Change (vol. 5) (London: Praeger Perspectives, 2007) 85–9 at 88–9. Susskind Goldberg and Villa, Zaakat Dalot , 205, footnote 411. See Louis M. Epstein, ‘The Institution of Concubinage among the Jews’ Proceedings of the Academy for Jewish Research 6 (1934–5) 153–88 for a more historical and sociological analysis. About literary reading of Talmudic sugiyot see David C. Kraemer, Reading the Rabbis: The Talmud as Literature (New York: Oxford University Press, 1996). Robert Alter pioneered literary reading of the Bible which included seeing different seemingly disparate elements and stories bound together as a

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literary unit. See Robert Alter, ‘The Art of Biblical Narrative’ (New York: Basic Books, 1983). See Deuteronomy 21:10-14 for reference to yefat to’ar (female captive). BT Sanhedrin 21a. This is not overtly mentioned by the Rishonim on Sanhedrin 21a-b. See baraita at BT Pesachim 49b where an ignoramus (with implied contrast to a Torah scholar) is compared to a lion with no sense of shame and moderation about sex. Also Maimonides, Mishneh Torah, Laws of Forbidden Intercourse 21:11-12 where the rabbis are not pleased with someone who is ‘upon his woman like a rooster’ having too much sex. Dam himum – literally translated as the ‘blood of heat’ is the rabbinic category of vaginal bleeding or spotting, which according to the rabbinic biology, is a result of sexual excitement – is referred to in this context by Rashi. See BT Gittin 81a-b for sources of this statement. Yaacov Elman, ‘Middle Persian Culture and Babylonian Sages: Accommodation and Resistance in the Shaping of Rabbinic Legal Tradition’ in Charlotte E. Fonrobert and Martin S. Jaffee (eds) The Cambridge Companion to the Talmud and Rabbinic Literature (Cambridge University Press, 2007) 165 and 171. This is addressed below in the book but the source is Maimonides, Mishneh Torah, Laws of Kings 4:4. This is disputed by the Radbaz there and by the Kesef Mishnah at Laws of Personal Status 1:4 where he cites Ramban’s permissive ruling. Susan Moller Okin, Justice, Gender and the Family (New York: Basic Books Inc., 1989) 138. Albert O. Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge, MA: Harvard University Press, 1970) 83. Wegner, Chattel or Person , 49. Ibid, 50. See Bonnie L. Gracer, ‘What the Rabbis Heard: Deafness in the Mishnah’ Disability Studies Quarterly 23:2 (Spring 2003) 192–205 about the status of deafness in the Mishnah. See also Bernard Jackson, ‘Agunah and the Problem of Authority’, 2. Albeck’s notes mention that the Tosefta has the same expression of ‘ya’asu derekh bakasha’. ‘Heaven is between you and me’ evokes the image of the husband distancing himself from his wife. The suggestion to pray is understood by some people that he is impotent but others suggest, as does the Yerushalmi (Sotah 1:2) that they should make a feast. The Meiri mentions other rishonim who suggest that they should pray that she has children from him. See Samuel Shilo, ‘Impotence as a Ground for Divorce: To the End of the Period of the Rishonim’ Jewish Law Annual 4 (1981) 127–43. This same term ‘Aforetime’ and the similar structure documenting the original law and its transformation is used 31 times in the Mishnah. Its function is to document the previous law while at the same time show how it has been superseded. See Jacob Neusner, ‘The Use of the Mishnah for the History of Judaism Prior to the Time of the Mishnah: A Methodological Note’ Journal for the Study of Judaism XI:2 (1980) 177–85 at 179 who argues that we can’t differentiate between layers of the mishnah and that we need to be skeptical about the temporal sequence

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in which things are presented. His point notwithstanding, even where we read the historical information literarily it is still instructive for showing us what the rabbis wanted to construct as historical laws that had been repealed. See ARU Draft Final report §4.66 about rabbinic suspicion where the claim of meus alai (he is disgusting to me) includes a monetary claim. Martin Heidegger initiated the concept of ‘under erasure’ that was then further developed by Jacques Derrida. Heidegger crossed out a word and then let both the deletion and the word stand. The mishnaic convention of citing laws and their overturning is reminiscent of this. See Translator’s introduction to Jacques Derrida, On Grammatology (trans. Gayatri Chakravorty Spivak) (Baltimore, MD: John Hopkins University Press, 1998) xv. See Naomi Graetz, ‘Judaism Confronts Wife-Beating’ Women in Judaism: A Multidisciplinary Journal 1:2 (1998) https://jps.library.utoronto.ca/index.php/ wjudaism/article/viewArticle/172/205 (23/07/09) for domestic violence as a grounds for divorce in ancient sources and contemporary Israel. BT Ketubot 63b. See Elimelech Westreich, ‘The Rise and Decline of he Law of the Rebellious Wife in Medieval Jewish Law’ Jewish Law Association Studies 12 (2002), 207–18 at 209 and also Avishalom Westreich, ‘Compelling of a Divorce? Early Talmudic Roots of Coercion in the Case of a Moredet ’, Working Papers of the Agunah Research Unit no.9 http://www.mucjs.org/Moredet.pdf (23/07/09) 1–19. See Jane F. Gardner, ‘Aristophanes and Male Anxiety – The Defence of the “Oikos”’ Greece & Rom e Second Series 36:1 (April 1989) 51–62 at 51 where Gardner acknowledges fear of his wife’s adultery as the primary male fear; Sherry B. Ortner, ‘The Virgin and the State’ Feminist Studie s 4:3 (October 1978) 19–35 at 22 where she looks at the role of controlling female sexuality in maintaining group purity and honour, in particular how women represent the coherence and integrity of the group. See also William Jankowiak, M. Diane Nell and Anne Buckmaster, ‘Managing Infidelity: A Cross-Cultural Perspective’ Ethnolog y 41:1 (Winter 2002) 85–101 at 87 which discusses the differences between men and women’s approach to infidelity of the other partner and the social dynamic in which these reactions are constructed. See Esther Fuchs, ‘“For I have the way of women”: Deception, Ideology and Gender in Biblical Narrative’ Reasoning with the Foxes: Female Wit in a World of Male Power in J. Cheryl Exum and Johanna W. H. Bos (eds) Semeia 42 (Atlanta: Scholars Press, 1988) 74, 77. Adrienne Rich, in On Lies, Secrets and Silence: Selected Prose 1966–1978 (New York: Norton, 1979) represents the tragedy of needing to tell lies and the internal and relational divisions it creates. This is not to discount the necessity for evidentiary procedures and laws that help deduce whether people are telling the truth. BT Nedarim 91a, BT Yevamot 116a, BT Ketubot 22b, BT Gittin 89b. Now even according to the later Mishnah, which teaches that she is not believed, it is [only] there that she may lie, in the knowledge that her husband does not know; but with respect to ‘You have divorced me’, of [the truth of] which he must know, she is believed, for there is a presumption [that] no woman is brazen in the presence of her husband. Said Raba to him: On the contrary, even according to the first Mishnah, that she is believed, it is [only] there, because she would not expose herself to shame; but here it may happen that she is stronger

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[in character] than her husband, and so indeed be brazen. http://www.comeand-hear.com/nedarim/nedarim_91.html#PARTb (20/9/11). This particular explanation follows Rashi’s understanding of the Talmud at BT Yevamot 116a. BT Yevamot 116a DISCORD BETWEEN HIM AND HER etc. What is to be understood by DISCORD BETWEEN HIM AND HER? Rab Judah replied in the name of Samuel: When [a wife] says to her husband, ‘Divorce me!’ Do not all women say this? Rather [this is the meaning]: When she says to her husband, ‘You have divorced me!’ Then let her be believed on the strength of R. Hamnuna’s ruling; for R. Hamnuna ruled: If a woman said to her husband, ‘You have divorced me’, she is believed, for it is an established principle that no woman would dare [to make such a false assertion] in the presence of her husband! – [Here it is a case] where she said. ‘You have divorced me in the presence Of So-and-so and So-and-so’, who when asked, stated that this had never happened. What is the reason in case Of DISCORD? – R. Hanina explained: Because she is likely to tell a lie. R. Shimi b. Ashi explained: Because she speaks from conjecture. http://www. come-and-hear.com/yebamoth/yebamoth_116.html (20/9/11). Peskowitz, Spinning Fantasies, 57. See Palestinian Talmud 9:9. This explanation and the idea that ‘no’ does not really mean ‘no’ could turn out to be highly problematic for determining women’s consent around sexuality if sexual relations is considered to be a woman’s obligation to her husband which in itself is questionable. Aryeh Cohen, ‘Giddul’s Wife and the Power of the Court: On Talmudic Law, Gender, Divorce and Exile’ Southern Californian Review of Law and Women’s Studies 9 (1999–2000) 197–226 at 225. These two reasons are also given in relation to other enactments relating to divorce – see BT Gittin 33a. For a stringent position on this matter see Eliav Shochetman, ‘Hafkaat Kiddushin? Derekh Efsharit lePitron Ba’ayat Me-ukavot Get? ’ (Is hafkaat kiddushin a possible solution to the problem of women whose get is withheld?) and sources cited there in Shenaton Hamishpat ha-Ivri 20 (1995–7) 349–97. This point about the limit on the husband’s authority to ‘do what he wants with his wife’, is used by those who argue that the nature of the relationship is not an acquisition. Medieval commentator, Rabbenu Asher (The Rosh) on this gemara (chapter 9, Halakha 15) says that it is a mitzvah to divorce one’s wife if he finds something improper in her. However, if he did not actually find something improper but she just did not act properly to him then he shouldn’t divorce her (although he probably could). See Keith Thomas, ‘The Double Standard’ Journal of History of Ideas 20:2 (April 1959) 195–216 for a description of the double standard which is ‘the reflection of the view that men have property in women and that the value of the property is immeasurably diminished if the woman at any time has sexual relations with anyone other than her husband’, at 210. See Michael Satlow, ‘“Texts of Terror”: Rabbinic Texts, Speech Acts and the Control of Mores’ AJS Review 21/2 (1996) 273–97 where women’s objectification through comparison with food is addressed.

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See Cohen, The Patriarchy, 109–28. For more examples about this fructifying relationship between law and narrative with relation to divorce see Cohen, ‘Giddul’s Wife’, 197–226. For general relationship between law and narrative see Barry Wimpfheimer, ‘“But it is not so”: Towards a Poetics of Legal Narrative in the Talmud’ Prooftexts 24 (2004) 52–86; Robert M. Cover, ‘The Folktales of Justice: Tales of Jurisdiction’ Capital University Law Review 1 (1985) 179–203; Steven D. Fraade, ‘Nomos and Narrative before Nomos and Narrative ’ Yale Journal of Law and Humanities 17:1 (1985) 81–96; Yair Lorberbaum, Image of God:Halakha and Aggadah (Hebrew) (Israel: Shocken Publishing House, 2004). Cohen, ‘Giddul’s Wife’, 200–1. See Bonna Devorah Haberman ‘Divorcing Ba’al: The Sex of Ownership in Jewish Marriage’ in Danya Ruttenberg (ed.) The Passionate Torah: Sex and Judaism (New York: New York University Press, 2009) 36–57 at 55–6 where Haberman makes the connection between exile and divorce, homecoming and marriage. She argues that ‘the contemporary Zionist period is an unfathomable union with the divine presence in the land of Israel’ and that the smashing of the glass under the wedding canopy should serve to ‘create expressions of homecoming for Jewish wedding and marriage’. Haberman is a Jewish feminist and activist. In her paradigm the exile of the Jewish people has ended but marriage has not been freed of ownership and dominion. I appreciate how she invokes Hosea 2:18-19 to call for the move from ba’alut (ownership) to a more mutual relationship, however I am not comfortable with the metaphysical claims about Zionism and the essentialist implications of her discussion about ‘Jewish DNA’. See Zerach Warhaftig, ‘Kefiyyat Get leHalakha u-leMa’aseh’(Coercing a Husband to give a get : Theory and Practice) Shenaton ha-Mishpat Haivri 3–4 (1976–7) 153–216 (in Hebrew). Kiddushei Taut is another approach to forcing a husband to give a get when it is more difficult to compel him to give a divorce. However, in kiddushei taut the marriage is deemed void ab initio using the concept of mekah taut (mistaken transaction). See Hacohen, Tears of the Oppressed . See Leo Pfeffer and Alan Pfeffer, ‘The Agunah in American Secular Law’ Journal of Church and State 31 (1989) 48 for a discussion about use of civil courts in trying to force divorce, most particularly through financial sanctions. See also Irving Breitowitz, ‘The Plight of the Agunah: A Study in Halacha, Contract and the First Amendment’ Maryland Law Review (Winter 1992) 312. Rachel Biale, Women and Jewish Law: An Exploration of Women’s Issues in Halakhic Sources (New York: Schocken Books, 1984), 189. For example of degrading rabbinic additions to the ritual see Mishnah Sotah 1:5. This is well documented in a dedicated chapter in Halbertal, Interpretative Revolutions, as well as Bonna Devora Haberman ‘The Suspected Adulteress: A Study of Textual Embodiment’ in Prooftexts 20 (Winter/Spring 2000) 12–41. See also Ishai Rosen-Zvi, The Rite That Was Not: Temple, Midrash and Gender in Tractate Sotah (in Hebrew) (Jerusalem: Magnes Press, 2008) 242. Rosen-Zvi interrogates sotah in the context of other temple rites and rituals in addition to analysing the shifts between biblical and rabbinic sotah. He also uses the mishnaic

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representation of the ritual as a way to analyse the role of the mishnah in relation to the temple and temple ritual. See BT Kiddushin 2a. It also appears at Mishnah Nedarim 10:6; BT Ketubot 82b; BT Nedarim 74a. At Nedarim 74a Rashi interprets the phrase to mean that he is obligated to her from the Torah. This is significant because some people who have denied the meaning of kinyan as acquisition have argued that it means commitment and obligation just as Rashi explains it here. Maimonides also picks up on this phrase in his Mishneh Torah, Laws of Yibum and Halitzah 1:1 where he says that according to the Torah a marriage does not even have to take place because the acquisition if from heaven and on the basis of the strength of the previous acquisition. He also refers to it in Laws of Yibum and Halitzah 6:1. Hacohen, Tears of the Oppressed , 17–19 and more generally 6–16.

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See Westreich, ‘The Rise and Decline’. Also see Avishalom Westreich’s treatment of the debate between Rabbenu Tam and, Rashi and Rambam about whether or not the provision of coercing the husband to give a Jewish divorce is of tanaitic and amoraic, or geonic origin. The implication of the latter opinion, held by Rabbenu Tam is that the Geonim had no authority to interpret and transform the law in this way. In contrast Rashi and Rambam see the geonic opinion as directly in alignment with the earlier rabbinic sources. See Westreich, ‘Compelling a Divorce?’ I am using the term ‘thick’ to describe a more complete interpretation of acquisition that would be translated into limited autonomy of a woman in marriage potentially including the assumption of a continuous male sex right in marriage. This is slightly different to the use of ‘thickness’ popularized by Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 1973) 3–30 which refers more to multiple layers of meaning. This is somewhat complicated by the ascription of conjugal relations as a biblical commandment for the husband to fulfil for the wife, along with the other two obligations of food and clothing. Friedman, Jewish Marriage in Palestine: A Cairo Genizah Study (Volume 1: The Ketubba Traditions of Eretz Israel) (Tel Aviv and New York: Tel Aviv University and Jewish Theological Seminary, 1980) 313. See Friedman, Jewish Marriage in Palestine , 312–46 about women’s right to demand termination of marriage and Mordechai Akiva Friedman, ‘Ethics of Medieval Jewish Marriage’ in S. D. Goitein (ed.) Religion in a Religious Age , Proceedings of Regional Conferences Held at University of California, Los Angeles and Brandeis University, April 1974, (Cambridge: Association for Jewish Studies, 1974) 83–102. Friedman, ‘Ethics of Medieval Jewish Marriage’, 85, 90, 91. Friedman analysed 65 ketubah documents. One example of where the genizah material goes beyond the mishnah is in the use of terminology in Palesinian ketubot from third to eleventh centuries of the term ‘shutafut ’ (meaning: partnership). Friedman

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introduces this discovery in the following way: ‘to the extent that terminology expresses a general outlook towards an institution’. I wonder if his cautiousness reflects his ambivalence of the prevalence of the term ‘kinyan’ in marriage. The other example of the stipulations in ketubot found in the genizah showing extension (an even opposition to) in rabbinic law is with respect to restrictions on the freedom of the wife to move outdoors without the husband’s consent. Contrary to Mishnah Ketubot 7:5 he would not need any evidence to show why she needs to be locked up in this way. Friedman also makes the point that these documents were not drawn up privately or by an underground court but had the imprimatur of major rabbinic figures. See Palestinian Talmud Kiddushin 1:2, 59a. These are the obligations that set in after the marriage as opposed to after the betrothal and appear at Mishnah Ketubot 5:5, which features immediately before the mishnah about the rebellious wife and husband. Westreich, ‘Compelling a Divorce?’, 1–19 at 4. Ibid., 6–7. Ibid. Mishnah Ketubot 5:5. These are the tasks that a wife must carry out for her husband: she must grind corn, and bake, and do washing, cooking, and suckle her child, make his bed (for him), and work in wool. If she brought him one bondwoman, she need not grind not bake nor wash; if two, she does not have to cook, nor give suck to her child; if three, she is not required to make his bed (for him), nor work in wool; if four, she may even sit on a raised seat. R. Eliezer says, Even if she brought him a hundred bondwomen, he can compel her to work in wool because idleness leads to lewdness. Rabban Simon ben Gamliel says, Even though one places his wife under a vow not to perform any task, he should divorce her and give her marriage settlement , as idleness leads to light mindedness. See Wegner, Chattel or Person, 79–80, where it argues that the rebellious woman does not pose a threat to the husband’s exclusive claim on his wife’s sexual function because it involves no ‘other man’. However, despite the stipulation of the husband owing sexual duties to his wife, the fine imposed for a wife’s wilful refusal is double that of the husband’s (see Mishnah Ketubot 5:7). BT Ketubot 63b. Bernard Jackson, http://www.mucjs.org/jofaweb.htm (27/10/08). Westreich also argues that Rashi sees coercion in all the sources and not only the explicit Amemar source where it says that we don’t force the woman, which Rashi interprets as ‘we do not hold her back, but he gives her a get and she is to be divorced without receiving her ketubah’, See Westreich, ‘Compelling a Divorce?’ 6. Ibid., 1. Ibid., 2. Otzar Hageonim Ketubot 190–1, Translation from unpublished draft, Michael Walzer et al. (eds) The Jewish Political Tradition (vol. 4). Ibid. Discoveries from the Cairo Genizah illuminated a parallel procedure enabling a woman to sue for divorce practised in medieval Egypt and beyond based on

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a comparable mechanism in Islamic Law. See Friedman, Jewish Marriage in Palestine , 325 and see same author ‘The Ransom-Divorce: Divorce Proceedings Initiated by the Wife in Mediaeval Jewish Practice’ IOS , VI (1976) 288–307. See Chapter 4 on conditional marriage and discussion there about different interpretations of will. See BT Ketubot 70a. Since, however, he is under obligation to her (mishuabad ), how can he forbid her through a vow [to get benefit from him]? Or does he have the power to cancel his obligation? Although it is not within the scope of this project, that is what the parallel legal challenge is changing the laws of mamzerut or finding new ways of approaching mamzerut would alleviate pressure on solutions for stranded women. Cohen, ‘This Patriarchy Which Is Not One’, 110–11. In rabbinic terms they are called orphans when there father has died even if their mother is alive. Cohen, ‘This Patriarchy Which is Not One’, 113. Ibid. Ibid., 114. Ibid., 116. This logic itself presumes that women would not be in favour of acquisition, and that the rabbis are cognizant of this by deciding women’s willingness to get married in inverse proportionality to their understanding of the degree of acquisition in marriage. See Rebecca M. Ryan ‘The Sex Right: A Legal History of the Marital Rape Exemption’ Law & Social Inquir y 20:4 (Autumn 1995) 941–1001. See Beth C. Miller ‘A Comparison of American and Jewish Legal Views on Rape’ 5 Colum J. Gender & L. 182–215, 1995–6 for a favourable account of Jewish views on rape including elements related to issues such as burden of proof and the sufficiency of non-consent without force. Boyarin, Carnal Israel , 114. At footnote 6, Boyarin argues that Wegner’s defi nition of the woman as chattel in any way of the man is misleading. I think that Boyarin takes a too literal defi nition of ‘ownership’ when he invalidates it as a description. He says there ‘Virtually none of the legal defi nitions of ownership apply. A husband may not make use of her sexuality without her consent; he may not alienate it; he may not dispose of it.’ It is fair enough that the usual categories of ownership that would apply to a cow or land do not apply. But contrary to metaphorical representations, she is neither cow nor land. Her inability to be divorced on will and the non-reciprocity that it represents is synonymous with an acquisitional paradigm. Miller, ‘Views on Rape’, 208. Ibid. See also Mordechai Frishtik, ‘Physical and Sexual Violence by Husbands as a Reason for Imposing a Divorce in Jewish Law’ The Jewish Law Annual 9:163 (1991). See Shalom M. Paul ‘Exod. 21:10 a Threefold Maintenance Clause’ Journal of Near Eastern Studies 28:1 (January 1969) 48–53. Rabbi David Feldman quoted in Susan Weidman Schneider, Jewish and Female: Choices and Changes in Our Lives Today (New York: Simon and Schuster, 1984) 199.

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Boyarin, Carnal Israel , 114. At fn. 6, Boyarin refers to the fact that an American court cited the Talmud as a legal precedent for treating wife-rape as rape. I think it is ironic that he says ‘I remember reading somewhere (but unfortunately not where)’. The ineffectuality of her words stand in stark contrast to the power of his words as argued in Chapter 2 of this volume with the support of speech act theory and the performance of actions through words exercised by the acquiring man. See Wegner, Chattel or Person , 54–9. Interestingly, Hauptman, Rereading the Rabbis , includes nothing about vows. At Nedarim 20b there is the statement that a man can do what he likes with his wife and it is followed by analogizing her to a piece of meat. Just as a piece of meat from the butcher can be eaten salted, or roasted or baked according to one’s desires so too can a woman be consumed according to one’s desires. See Gail Labovitz, ‘Is Rav’s Wife “a Dish”?, 147–69 at 153. See Tosafists at BT Niddah 12a. See Ephraim Kanafogel, ‘Progress and tradition in Medieval Ashkenaz’ Jewish History 14 (2000) 287–315. Fonrobert, Menstrual Purity, 26. See Graetz, ‘The Battered Woman’. Sheila Jeffreys, Anticlimax: A Feminist Perspective on the Sexual Revolution (London: The Women’s Press, 1990) 292. Ibid. Note that in the expression below of the Ran at Nedarim 20b he is describing the recommendation against the husband using fear and terror as a way to force her to have sexual relations with him. pp. 120–3 R. Kapach edition. ‘Turning the tables’ may refer to anal intercourse, vaginal intercourse from behind or even vaginal intercourse with the woman on top. The male is understood as the active partner. See Boyarin, Carnal Israel , 110 fn. 1. This is then differentiated from the case where he actually penetrated her and turned the tables without her consent to the initial penetration because it is all considered without her consent and is forbidden because it is licentious sexuality (beilat zenut ). He then goes on to discredit the proof that people with that opinion use; they say that in the ‘turning the tables’ sugiyah it is the plain meaning that the women did not want it and even so Rebbi still allowed it. The Ra’avad does not see this as proof because he says that maybe the men actually enticed the women to do it so they consented at the time , but that the women were coming to the rabbis after to check if it was okay. This is an example of the rabbis reading their own developments in kiddushin back into the Bible. Is it a problem for Wegner’s notion of acquisition that the husband in some cases would need to pay the wife for his services in breastfeeding the baby? See Gail Labovitz, ‘“These Are the Labours”: Constructions of the Woman Nursing Her Child in the Mishnah and Tosefta’ Nashim: A Journal of Jewish Women’s Studies and Gender Issues 3 (2000) 15–42.

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Using the fact that a woman cannot be on-sold as proof of her not being acquired is not the only way to interpret this limitation. I think that the fact that she cannot be on-sold is more akin to the interpretation that the husband cannot surrender his exclusive sexual rights to his wife by passing her on to someone else is more correct. The husband’s acquisition is subject to limitations of halakha such as adultery and ritual purity taboos.

Chapter 4 1

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Another angle that could be taken to fi x this problem is the changing and redefinition of the status of mamzer. The closest that Jewish legal authorities have come to this is the groundbreaking decision of Rav Shlomo Goren, former Ashkenazi Chief rabbi where he allowed for a man to retroactively nullify his marriage with a woman (by invalidating his initial conversion to Judaism) so that the children of her new partnership would not be considered mamzerim . See this case written up in J. David Bleich, Contemporary Halakhic Problems (New York: Ktav 1977) 167–76. See also the Conservative Movement responsa on this issue from 2000 http://www.rabbinicalassembly.org/teshuvot/docs/19912000/ spitz_mamzerut.pdf (3/12/08). One way to change the status is where a Jewish man who is a mamzer marries a non-Jewish woman then the status of the children go according to the woman and they can convert to Judaism and be Jews without the status of mamzer. Sylvia Barack Fishman argues that there are over 10,000 chained women (agunot) in Israel alone. See Sylvia Barack Fishman, A Breath of Life: Feminism in the American Jewish Community (Waltham, MA: Brandeis University Press, 1995) 36. Ruth Halperin-Kaddari acknowledges the sharp disagreement between women’s organizations and the rabbinic establishment in Israel over the amount of chained women. This disagreement is based on the difference in definition by the two groups with the former classifying within the chained woman definition, the giving of a Jewish divorce on condition of surrendering some form of property rights. See Ruth Halperin-Kaddari, Women in Israel: A State of Their Own , (Pennsylvania, PA: University of Pennsylvania Press, 2003) fn. 33, 321. The Jerusalem Post reported that in 2007, 23 men were incarcerated for refusing to give a get, compared to 9 in 2006. See the full article here http://www.jpost. com/servlet/Satellite?cid=1205420721816&pagename=JPost%2FJPArticle%2FP rinter (5/8/09). This latter category had to be something that would make it certain that a woman would not want to be married to this man. That means that the fault would have to have been pretty bad because the rabbis do have a concept that some later commentators have interpreted as a prescriptive rule that women would rather be with any man, rather than be left alone. This concept has been used to show that a woman would be satisfied with very little in terms of her husband and therefore even if he turns out to be worse than she thought he was, she is still deemed to have agreed to the marriage because it takes her so little to be satisfied. For more details about this principle, which in Aramaic

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Notes to pages 96–9

is, Tav lemeitav tan du milemeitav armelu see Halperin-Kaddari, ‘Tav Lemeitav’; Shlomo Riskin, ‘Annulment of Qiddushin – A Solution for Aginut ,’ 22 Tehumin (2002) 191 (Hebrew); Aranoff, ‘Two Views of Marriage’; Hacohen, The Tears of the Oppressed. Some commentators disagree even with the condition for levirate marriage and an apostate brother and others agree only in the case of a levirate brother but not in the case of a brother with other special circumstances. For the former see Meil Tsedakah , siman 1 in the name of Rabbi Abraham Brouda as well as the Shevut Yaacov, Even Ha’ezer 127. See Berkovits, TNG, 30. This condition was later applied by some commentators with respect to cases of husbands who had brothers who were missing, insane or mentally incompetent in other ways. Yehudah Abel, ‘The Plight of the Agunah and Conditional Marriage’ The Agunah Research Unit, University of Manchester (UK), November 2006, 5. Ibid. As recorded by Abraham Hayyim Freiman, Seder Qiddushin We-Nissu’in (Hebrew) (Jerusalem: 1964) 389. Ibid. Ibid. In ETB (1), Rabbi Yehudah Lubetsky argues that divorce is not divorce if it is not according to the husband’s will. Yehudah Abel from the Agunah Research Institute at University of Manchester has provided a very useful and detailed account of the way that Berkovits responds to the claims of Lubetsky et al. in an article entitled ‘The Plight of the Agunah and Conditional Marriage’. A recent collection in Hebrew detailing strategies for alleviating the problems of Jewish divorce and alternatives for Jewish partnership, Zaakot Dalot has a detailed chapter about conditional marriage among its exploration of a range of solutions to the problem of agunot . See also ARU Draft Final Report, esp. 54–70. In his commentary on this Mishnah, Kehati mentions that there is a debate between commentators about the exact requirements for a valid condition. There is some opinion that as long as the condition and potential consequences are clear there is no need for a double condition. The requirements for positive preceding negative and the condition being before the act may also be subject to negotiation. See Numbers 32:29. See Mishnah Baba Metzia 7:11, also example at Mishnah Baba Batra 8:5. See David Kraemer, ‘The Formation of Rabbinic Canon: Authority and Boundaries’ Journal of Biblical Literatur e 110:4 (Winter 1991) 613–30 at 618 who discusses the contours around classification of laws particularly between the Oral and the Written Torah although he does allude to the possible Torah status of rabbinic laws not written in the Torah. Rabbi Moses Denishevsky gives this same parallel in ETB, 36. As a rule all Rishonim agree that the BT has absolute supremacy but the Palestinian Talmud can have persuasive value. Perhaps the only exception is the Rambam who seems to give equal footing to all Tannaitic and Amoraitic sources. See Yaacov Sussman, ‘Pirkey Yerushalmi’ in Sussman et al. (ed.) Mehqerei Talmud II (Jerusalem: Magnes, 1993) 278–82; Yerahmiel Brody, ‘LePesikat HaRambam al pi HaTalmud HaYerushalmi Benigud LeTalmud Bavli’ Maimonidean Studies

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Notes to pages 99–102

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4 (2000): 1–11 (Hebrew part). Regarding other Rishonim, the prevalent attitude is that expressed by the Rif, Eruvin 35b: When the talmudim disagree we follow the Babylonian Talmud. When the Palestinian Talmud mentions something not mentioned in Babylonian Talmud we follow it. Others are of the opinion that we never follow Palestinian Talmud even when it does not disagree with the Babylonian Talmud. (Thank you to Rabbi Moshe Pinchuk for these references.) Although it works to the woman’s advantage in this case, by legitimating rabbinic force towards giving a get, this essentialist approach presumes that there is a ‘natural’ state that wants to abide by halakha . See Moshe Sokol, ‘Maimonides on freedom of the will and moral responsibility’ Harvard Theological Review 91:1, 25–39; Michael Walzer, ‘A Note on Positive Freedom in Jewish Thought’ Sevara 11 (1990) 7–11; and Eugene Korn, ‘Tradition Meets Modernity: The Conflict of Halakha and Political Liberty’ Tradition 254 (1991) 34–7 for further exploration of the limits and contingencies of this position. See references in note above (particularly Walzer article where he differentiates between the will as conceived in individualistic terms as opposed to the will conceived in communitarian terms) for the exploration, elaboration and at times, problematization of this concept. Kesef Mishnah commentary on Maimonides, Mishneh Torah, Laws of Divorce 2:20. ETB, 34. See ARU Draft Final Report, §3.57, 80. For those legalists who support the position of sex outside of marriage that is not considered licentious if it is in a committed relationship known as the category of meyuhedet it is interesting to note whether they would totally negate these presumptions that sexual intercourse would preclude someone from maintaining an active conditional marriage. Sheilat Yabetz refers to this model of meyuhedet in the first paragraph of his responsa at 2:15. Basic legal principle of post-talmudic times is that in a dispute or doubt about a biblical matter the stringent view is adopted, while in a dispute or doubt about a law of rabbinic origin the lenient opinion prevails. An example of this is Maimonides’ Mishneh Torah, Laws of Rebels 1:4-5. See Eliott Dorff, ‘Judaism as a Religious Legal System’ Hastings Law Journal 29 (1977–8) 1331–60 at 1344. See Satlow, Jewish Marriage in Antiquity (New Jersey: Princeton University Press, 2001) 166 where he claims that although time periods between betrothal and marriage may have been several years for young girls of seven or eight, for girls who reached the age of puberty the period of waiting rarely exceeded one year. See Palestinian Talmud Kiddushin 2:4 and Korban Edah there. Ibid. Also Shulchan Aruch EH 38:35 where it explicitly says that after intercourse without repeating the condition it may be assumed that the condition was intentionally nullified at the time of sexual intercourse. See also ARU Draft Final Report (July 2009) §3.63–9, 82–8. See ARU Draft Final Report (July 2009) §3.43, 74. See Bonna Devora Haberman, ‘The Suspected Adulteress’, 12–41 at 25 for an analysis of the anxiety surrounding ‘indeterminate paternity’. The Yabetz’s reponse is explored in more detail in the next chapter on alternatives such as concubinage and derekh kiddushin .

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178 31

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Notes to pages 104–14

See Elimelech Westreich, Levirate Marriage , 439, fn. 25 where he refers to Aruch Hashulchan’s decision with regard to halitzah taking precedence over levirate marriage. See Meir Simcha Feldblum’s proposal in Chapter 5, and also article on concubinage, Zvi Zohar ‘Zugiyut al pi halakha le-lo huppah ve-kiddushin’ (in Hebrew) (Partnership according to Halakha but without Huppah and Kiddushin) Academot 17, 2006, especially 14–15. Rabbenu Asher who says it is possible to fulfil mitzvah of ‘be fruitful and multiply without kiddushin’. See Rabbenu Asher, BT Ketubot 1:12 Rambam has this perspective where sex outside of kiddushin is considered zenut . See Mishneh Torah, Hilchot Ishut 1:1–2. See ARU Draft Final Report, §3.51–3.62, 78–82. Abel, ‘The Plight of the “Agunah”’, 32. Berkovits, TNG, 49. Ibid. Berkovits, TBG, 37. Furthermore he quotes the Nodah B’ Yehudah (Yehezkel ben Yehudah Landau – eighth-century Czech Rabbi of Polish descent) who argues that in relation to all women we should consider their acceptance of kiddushin as a loss because they are forbidden to all men, as opposed to men who are only forbidden from specific relationships but who could take other women (See Nodah be Yehudah , Even Ha’ezer Laws of Marriage, 54). Berkovits, TBG, 59, 64. Ibid., 58.Rabbi Eliezer Gordon in ETB (35) quotes the Tosafists (BT Yevamot 107a) who say that when it says in the Talmud ein tenai be’nissuin (there is no condition in marriage) the intention is that it is not common for there to be conditions, as opposed to it being forbidden. Berkovits, TNG, 58. Ibid., 56. Ibid., 60. Ibid. Ibid. Berkovits, TNG, 7. Ibid., 37. Ibid. Ibid., 61. ETB, iv. Thanks to Aryeh Cohen for clarifying that it can also be read in a descriptive way. Today this argument is somewhat of a non sequitur given that according to many Orthodox rabbinic authorities a large proportion of the Jewish world would not be considered kosher for marriage. See ARU Draft Final Report, §1.7, 7 (fn. 5). Erica Brown, ‘The Bat Mitzvah in Jewish Law’ in Micha D. Halpern and Chana Safrai (eds) Jewish Legal Writings by Women (Jerusalem: Urim Publications, 1998) 232–58 at 246–57. See also Grossman, Pious and Rebellious: Jewish Women in Medieval Europe (Boston: Brandeis University Press, 2004) 102–22 who shows even in medieval times when there were stricter ideas about women’s role outside of the public realm there were many ways in which women subverted these structures economically and religiously such as the twelfth-century mikveh

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rebellion in Egypt (109) and also effects of women’s wealth in Spain on dynamics of gender balance (113). ETB, 1. ETB, 10. http://www.daat.ac.il/daat/tanach/raba2/28.htm (30/4/09). There is a huge body of modern scholarship and literature on these questions including Abraham Joshua Heschel’s Torah Min Hashamayim (Heavenly Torah as Refracted through the Generations) (Hebrew) (New York: Continuum Press, 2005) eds Gordon Tucker and Leonard Levin and Ephraim E. Urbach’s The Sages (trans. Israel Abrahams) (Jerusalem: Perry Foundation, Hebrew University, 1975). ETB, 18. ETB, 6. ETB, 22. ETB, 22. One of the main points of difference is whether or not Jewish identity is defi ned according to matrilineal descent alone or whether it is also defined according to patrilineal descent as well. ETB, 30. See David Henry Ellenson, After Emancipation: Jewish Religious Responses to Modernity (Cincinnati, OH: Hebrew Union College Press, 2004) 154–83. See further Agunah Research Unit (ARU Draft Final Report) 5:1 (§1.5.1) on an explanation of the editions referred to of Sridei Esh. Pinhas Shifman, ‘Is there indeed a Halachic Problem?’, 30. Berkovits, TNG, i. Ibid., ii. Ibid. Ibid., 2. Ibid., 71. Ibid., 70. Ibid., 64. BT Yevamot 89a. See Beit Din of America website at http://www.bethdin.org/agreement.asp (6/8/09). Berkovits, TNG, 68–9. Ibid., 68. Ibid., 69. There are also other such meta-halakhic categories including hora’at sha’ah (ruling of a particular time), mipnei tikkun olam (because of fi xing the world), mishum eivah (evoke hatred) and kavod ha’briyot (honour of creatures). See Daniel Sperber, ‘Congregational Dignity and Human Dignity: Women and Public Torah Reading’, The Edah Journal 3:2/Elul 5763 http://www.ise.bgu.ac.il/ faculty/kalech/judaism/sperber02dignity_qeriat_hatora.pdf (19/5/09). Mishnah Sotah, chapter 9 includes several such examples of changed laws due to changed circumstances. Berkovits, TNG, 2. Ibid., 69.

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Notes to pages 124–6

Ibid., 67. Psalm 119:126 states: ‘It is time for the Lord to act, for your law has been broken’ (New Oxford Annotated Bible ad loc.) (et la’asot, he-feru Toratekha) is the first half of a verse in Psalms that has served as a dramatic slogan at several junctures in rabbinic Judaism.Thank you to Aryeh Cohen for highlighting this other dimension of Berkovits’ position. See Rabbi Michael. J. Broyde, http://www.ottmall.com/mj_ht_arch/v24/mj_ v24i87.html#CACE (23/8/06). The technicality of the discussion can risk forgetting the problem of disgracing women as a form of social control and expression among other things of male fear of female infidelity.Norma Baumel Joseph, ‘Hair Distractions: Women and Worship in the Responsa of Rabbi Moshe Feinstein’ in Micha D. Halpern and Chana Safrai (eds) Jewish Legal Writings by Women (Jerusalem: Urim Publications, 1998) 8–22 at 20. See also Melanie Landau, ‘Re-covering Women as Religious Subject: Reflections on Jewish Women and Hair-covering’ Australian Journal of Jewish Studies XXII (2008) 52–74. Yehuda Henkin, Understanding Tzniut: Modern Controversies in the Jewish Community (Jerusalem: Urim Publications, 2008), 79. Susan Aranoff, ‘Two Views of Marriage’, 199–227. J. D. Bleich, ‘Survey of Recent Halakhic Literature: Kiddushei Ta’ut: Annulment as a Solution to the Agunah Problem’, Tradition 33:1 (1998) 124–5 n.28, quotes a (more general) assertion (in a lecture) by R. Soloveitchik, that such presumptions posited by the Gemara do not represent ‘transient psychological behavioural patterns, but are permanent ontological principles rooted in the very depths of metaphysical human personality.’ See ARU Draft Final Report, §1.40, 25, fn. 137.

Chapter 5 1 2

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Meir S. Feldblum, ‘The Problem of Agunot and Mamzerim’, 203–16. This chapter produces the first English language examination and analysis of derekh kiddushin from Meir Simcha Hacohen Feldblum’s (in Hebrew) ‘The Problem of Agunot and Mamzerim – A Suggested Overall and General Solution’. It is particularly problematic when scholars romanticize the oppressive nature of limiting women’s exit from marriages by using the argument that more free exit for women from relationships will make them more unstable. This argument may even be extended to include the claim that more exit rights could pose a danger to the sanctity of marriage. See Jackson, ARU Draft Final Report, 22 where, he shows his own equation of the two issues in a reference to ETB. He says: ‘Opposition to conditional marriage, as expressed in Eyn Tnai beNissu’in , emphasized the threat it was thought to pose to the exclusivity (and thus sanctity) of the marital relationship’. In fn. 109, he expands the point: ‘A somewhat different version of this argument, leading to a pluralistic conclusion, is advanced by Hadari in ARU 17, arguing (at 124) that the “absolute unapproachability” of

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the betrothed/married woman (and thus her immunity from any attempt by another man to seduce her) is something both husband and wife feel is required for them to feel absolutely secure in the relationship, and that this requires maintenance of traditional qidddushin , without interference with the power of veto by the husband alone on divorce.’ I need to believe there is another way to build trust in relationships than having to abide in non-reciprocal relationships. See Zohar, Zugiyut . Shmuel Ariel, ‘Concubinage is not “friendship”’, Responses to Zohar, Zugiyut , Academot 17 (2006) 41–66. See for example, Helkat Mehokek , 26:3. Also Freiman, Nissuin , 360. Getsel Ellinson, ‘Civil Marriage in Israel: Halakhic and Social Implications’ Tradition , 13 (1973) 24–34 at 27. This is also ostensibly related to the concept of ein adam oseh be’ilato zenut although I show above that all the examples of that principle as given in the Talmud all refer to people who had previously been married or in an established relationship. Thus the principle may be more relevant to avoid a man from arguing that he did not intend to get married, as opposed to being used in opposition to people who do not want their relationship to be considered marriage and require a divorce. The question is interesting because it comes back to what is considered by different scholars as the basic constituent of marriage, such that once it is present, divorce would even be necessary even if no halakhic marriage took place. Note that some argue that the presumption only applies to ksherim (kosher people) who care about licentiousness such as Responsa Ribash, 6; Maggid Mishneh at Maimonides, Mishneh Torah, Laws of Divorce 10:19. Also see Mishpetei Uzziel , EH, 59 where he argues that there is no divorce necessary for a woman married in a civil ceremony only. See Andrew Strum, ‘Getting a gett in Australian Courts’, http://www.jlaw. com/Articles/getaus.html (24/05/11); Michelle Greenberg-Kobrin, ‘Civil Enforceability of Religious Prenuptial Agreements’ Columbia Journal of Law and Social Problems 32:4 (Summer 1999) 359–99. See ARU Draft Final Report, which is the most recent fine example of an attempt for a global solution to aginut which entails a ‘set of solutions which solves the problem for all, though not necessarily by the same means’, 7. Shlomo Aviner, Gan Naul: Pirkei Tsniut , Beit El 5363, 248 quoted in Yossi Greiber, ‘Beino le Beina, bein halakha le maaseh’ , Deot 20, Adar B, 5365 in Zohar, Zugiyut , 12. The Aviner–Zohar distinction can also represent the different ways of understanding the halakhic process as referred to in the introductory chapter in the distinction between Soloveitchik and Hartman. It can also be seen as an indication to the extent to which a scholar is prepared to value the elements of halakha as a dynamic, living and changing process over the elements of its preservation and maintenance. See Joel Roth, The Halakhic Process: A Systemic Analysis (New York: Jewish Theological Seminary of America, 1986) esp. 83–7. In a discussion on conditional marriage, Rabbi David Kimche (the Radakh – 1160–1235 France) argues that Maimonides does not include someone who has an exclusive relationship with a concubine in the prohibition of ‘do not become a prostitute’. See Villa, Pilagshut , 205–34 at 218 in Susskind and Villa, Zaakat Dalot.

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182 13 14

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Notes to pages 130–8

Michael L. Satlow, Jewish Marriage in Antiquity, 12. Responsa of the Rashba, attributed to Nahmanides 284, also brought in full in Abudarham in the section on Birkat Erusin ve Nissuin in Zohar, Zugiyut , 13, fn. 8. Zohar, Ibid., 14. Villa, Pilagshut , 211. Ibid. Ibid. Ibid. Ibid., 216. See fn. 436 in Villa, Ibid., 216, where Villa argues that according to the Maharsha, the Baal Haturim does not agree exactly with Rabbenu Asher but rather that he adds the idea that she would be ashamed to have a mikveh , not just because there is something wrong with the being alone (yihud ) in itself. Zohar, Zugiyut , 19. Ibid., 25. The heading of one of Henkin’s paragraphs is ‘Danger to Family’ in which among others, he makes the point about the problems of marriage being replaced and about people delaying their decision to get married, Ariel, Responses to Zohar, 35. Avot de Rebbe Natan, 1 (The Fathers According to Rabbi Nathan) has a wonderful critique by the rabbis of their own practice of precaution or building a fence around the Torah. In this account, Adam is blamed for saying that if Eve touched the Tree of Knowledge of Good and Evil she would die however because it was only if she ate, the midrash says that when she touched it and saw she did not die it caused her to doubt the consequences of eating it too. Thus Adam’s adding of an extra precaution is seen to be the cause of Eve’s transgression of the original prohibition. This is relevant because through insisting on the lesser prohibition against pre-marital sex the rabbis will be causing many people to transgress the greater biblical prohibition against having sexual intercourse without the woman’s prior immersion in the mikveh (ritual bath). Zohar, Zugiyut , 28. Ibid., 37. Haberman, ‘Divorcing Ba’al’, 44–5. The redemptive tone Haberman employs about Jewish statehood is premature and I am similarly uncomfortable with her description of the contemporary Zionist period as an ‘unfathomable reunion with the divine presence in land of Israel’ (56). Ariel, Responses to Zohar, 41–66 at 41. Michael Tikochinsky and Rahel Shprecher-Fraenkel, ‘Beware of the Concubine’: Responses to Zvi Zohar (in Hebrew), Zugiyut , 67–75 at 75.Their statement reflects a certain kind of thinking about religion that pre-supposes that there is some concept of an authentic Judaism in comparison to an approach that we may call more constitutive where there is an acknowledgement that Judaism is constantly changing and developing and can be reflected in a variety of ways in its dynamic relationship with contemporary modes of being and understanding. Broyde and Ausubel, Marriage, Sex and Family, 95. Ibid.

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Michael Broyde, Review Essay ‘An Unsuccessful Defence of the Beit Din of Rabbi Emmanuel Rackman: Tears of the Oppressed by Aviad Hacohen’ The Edah Journal 4:2 (November 2004) 1–28 at 15. Broyde and Ausubel, Marriage, Sex and Family, 106. Meir S. Feldblum, ‘The Problem of Agunot and Mamzerim , 203–16. Deuteronomy 23:3: ‘No one misbegotten shall be admitted into the congregation of the LORD; none of his descendants, even in the tenth generation, shall be admitted into the congregation of the LORD.’ (NJPS) Feldblum, ‘The Problem of Agunot and Mamzerim’, 108. Ibid. Hacohen, Tears of the Oppressed . See ARU Draft Report, §6.30, 175 for further elaboration on the question of retroactive determination of marriage. Ibid., 108. Elisha Ancelevits, ‘An Explanation of Divorce Law’, 27. There are certain rabbis who are purposefully creating rabbinic marriages to ensure that should the marriage break down it may be easier to arrange a divorce because some of the usual strictures in relationship to marriage and divorce may be waived because it is on the rabbinic and not biblical level. BT Yevamot 112b. Susskind and Villa, Zaakat Dalot , 238. Ibid. Sefer Halakhot Gedolot , 82. Acknowledgement to Rabbi Mark Koschovsky for his explanation about how every debate in practical halakha is also a philosophical debate and a contestation about how the rabbis see the world. Chovot Halevavot explains, (Sha’ar Avodat Elohim , chap. 4) ‘We find that all human activities, without exception, are classified as either a mitzvah or aveirah . . . every action is either good or bad, as King Solomon said (Kohelet 12:14) “For God will judge every deed – even everything hidden – whether good or evil”’. See for reference Fyvel Shuster, ‘Unmasking the Purim Pesach Connection’ http://www. ou.org/publications/ja/5763/5763spring/PURIM-PE.PDF (11/11/08). For a more detailed review of the sources see Zohar, Zugiyut , 5–7. Feldblum, ‘The Problem of Agunot and Mamzerim’, 203. Ibid., 207. Ibid., 209. Ibid., 210. Ibid. Ibid. Ibid., 211. This may also be representative of the Sephardi stance of not saying blessings for mitzvot that one is not obligated for in that this is changing the usual form of this mitzvah even though some people say it is not a mitzvah in itself but rather belongs to the mitzvah of procreation. Yehudah Abel, ‘A critique of Zaakat Dalot ’, September 2006, http://www.art. man.ac.uk/RELTHEOL/JEWISH/ZD.pdf (2/1/07) 1–28 at 6.

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Notes to pages 151–6

184 60 61

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See ARU Draft Final report, §1.7, 7. J. David Bleich, ‘Survey of Recent Periodic Literature: Can There Be Marriage without Marriage?’ Tradition 33:2 (1999) 39–49 at 47. There is a range of different approaches that contemporary thinkers have developed in relationship to conceptual models of the ideal relationship between secular Jews and the religious establishment in Israel. See David Hartman, Israelis and the Jewish Tradition: An Ancient People Debating Its Future (Newhaven, CT: Yale University Press, 2000). Feldblum, ‘The Problem of Agunot and Mamzerim’, 215.

Towards Tradition and Equality in Jewish Marriage 1

Suzanne Last Stone, ‘In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory’ Harvard Law Review 106:4 (1993) 813–94 at 831.

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Primary Texts Aruch Hashulchan , Yehiel Michel ben Aharon Yitzhak haLevi Epstein, Warsaw, 1931. Meil Tsedakah , Eliyahu ben Avraham Shlomoha Cohen, Lvov, 1859. Mishnah Mishnah Brurah , Yisrael Meir ben Aryeh Zev Cohen, Jerusalem, 1973. Mishneh Torah, hi ha-Yad ha-Hazakahshel Rabbi Moshe ben Maimon , standard editions (Hebrew). Noda Biyehudah , Yehezkel Halevi Landau, Prague, 1776. Sefer Halakhot Gedolot , Simeon Kayyara, Venice, 1548. Sheilat Yabetz , Yacov Embden, Altona, 1739. Shevut Yaacov, Hayim ben Yacov Abulafia, Izmir, 1734. Shisha Sidrei Mishnah , with commentary and additional notes by H. Albeck, vocalized by H. Yalon, 6 vols, based on MS. Kaufmann A50, Jerusalem, 1953. Shulchan Aruch (and Rema), standard editions (Hebrew). Ta’alumot Lev, Yacov ben Yosef Reisher, Offenbach, 1719. Talmud Bavli , 20 vols, standard editions. Talmud Yerushalmi, according to MS. Or. 4720 (Scal. 3) of the Leiden University Library with Restorations and Corrections, ed., J. Sussman, The Academy of the Hebrew Language, Jerusalem, 2001. Tenai be’Nissuin uv’Get , Yehuda Lubetsky, Vilna, 1930. Torah Temimah , Boruch ben Yehiel Michel haLevi Epstein, Vilna, 1904.

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Abel, Yehuda 151, 165n. 99, 176nn. 6–9, 11, 178n. 35, 184n. 59 Abudarham, Rabbi David Sefer Abudarham 28 acquisition and Jewish marriage alternatives 30 annulment and undermining of tav le metav presumption 32–3 Brit Ahuvim (Covenant of Lovers) 30–2 traditional marriage adaptation 34–5 feminist scholarship and 13–21 legal categories and 21 rabbinic construction of gender and 26 exemption from time-sensitive commandments 27–30 women exclusion from learning Torah 26–7 and survey of modern literature 22–6 see also individual entries Aderet, Rabbi Shlomo ben (Rashba) 22 Adler, Rachel 13, 30–1, 114, 162n. 52, 164n. 88 Brit Ahuvim 6 Engendering Judaism: An Inclusive Theology and Ethics 21, 31 adultery 27, 43, 70, 95, 168n. 49, 175n. 53 biblical views on 69 see also licentiousness (beilat zenut) agency 114, 161n. 27 moral 110 of women 4, 16, 17, 83

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denial of 15, 49 Agunah Inc., the Centre for Women’s Justice and ICAR (The International Coalition for Agunah Rights) 162n. 46 Agunah Research Unit (ARU), Manchester University Agunah: The Manchester Analysis 18 , 20, 163n. 68 , 166n. 21, 168n. 45, 176n. 11, 177nn. 22, 27, 178nn. 28, 34, 52 , 179n. 65, 180n. 89, 181n. 9, 183nn. 40–1, 184n. 60 agunot (chained women) 13, 18, 19, 21, 64, 106, 113, 147, 156, 157, 175n. 3 aharonim 129, 153 Ahmadi, Feresteh 166n. 25 Akiva, Rabbi 64–5, 69, 71, 112, 116 Albeck, H. 167n. 42 Alexander, Rabbi 111 Alter, Robert 167n. 27 Ancelevits Rabbi, Elisha 24, 140, 163n. 69, 183n. 42 annulment, and undermining of tav le metav presumption 32–3 antiformalism 134 Aranoff, Susan 13, 162n. 49, 164n. 94, 180n. 88 Two views of marriage – Two views of women 125 Ariel, Rabbi Shmuel 136, 137, 181n. 5, 182nn. 24, 29 Austin, J. L. 165n. 14 How to Do Things with Words 41 Ausubel, Michael 163nn. 77–8, 183n. 31–4 authenticity 13, 114, 155, 182n. 30

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authority 20, 28, 32, 76, 112, 157, 169n. 61 and interpretation 9–13 rabbinic 33 and revelation 116 autonomy 1, 4, 5, 16, 17, 24, 27, 62, 64, 89, 90, 153, 171n. 2 Aviner, Rabbi Shlomo 128, 181n. 10 Babylonian Geonim 127 Babylonian Talmud 75, 81, 88, 96, 99, 106, 177n. 17 baraita 53, 65, 90, 166n. 19, 167n. 31 Batei Din (Religious Courts) 21 beilat zenut (licentiousness) see licentiousness Beit Din 48, 64, 99–100, 102, 162n. 51 Beit Hillel 44, 45, 46, 48, 64 Beit Shammai 44, 45, 48, 64 Berkovits, Rabbi Eliezer 5, 7, 44, 107–10, 159n. 2 (Chapter 1), 166n. 17, 176n. 5, 178nn. 36–49, 179nn. 67–73, 76, 180n. 81–3 ‘Tenai be Nisuin uv’Get ’ 97, 106, 118, 119–24 betrothal/marriage see kiddushin (betrothal/marriage) Biale, Rachel 170n. 72 biblical references Deuteronomy 21:10-14 167n. 28 Deuteronomy 23:3 183n. 36 Deutronomy 25:5-10 70 Deuteronomy 29:14 115 Exodus 21:10 87 Ezekiel 16:14 52 Leviticus 20:10 69 Leviticus 21:7 43 Numbers 32:29 176n. 13 Numbers 32:29–30 98 Proverbs 19:2 87 Proverbs 29:19 81 Psalm 119:126 180n. 84 Bird, Phyllis 166n. 16 Bleich, Rabbi J. David 151–2, 175n. 1, 180n. 89, 184n. 61 ‘Survey of Recent Halakhic Periodical Literature’ 151

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Boyarin, Daniel 13–14, 27, 37–8, 87, 160nn. 19–23, 163n. 80, 165n. 5, 173n. 32, 174n. 38, 174n. 49 Unheroic Conduct: The rise of Heterosexuality and the Invention of the Jewish Man 14 Breitowitz, Irving 170n. 71 Brit Ahuvim (Covenant of Lovers) 30–2 Brody, Yerahmiel 177n. 17 Brouda, Rabbi Abraham 176n. 5 Brown, Erica 114, 178n. 53 Broyde, Rabbi Michael 20, 25, 137–8, 162n. 50, 163nn. 70, 77, 165nn. 99–100, 180n. 84, 183n. 31–4 An Unsuccessful Defense of the Beit Din of Rabbi Emanuel Rackman 138 Buckmaster, Anne 168n. 49 canonization and hermeneutic openness, of text 7–8 Caro, Rabbi Joseph Kesef Mishneh 100 Shulchan Aruch 100, 132–4 chores, for married women 29–30 Chovot Halevavot 183n. 49 chuppah (wedding canopy) 35, 47, 84, 103, 104, 140 chutzpah 61 coercion, for divorce 78–9, 81 Cohen, Rabbi Aryeh 15, 63, 66, 83, 159nn. 1, 3, 160n. 25, 169n. 58, 170nn. 65–7, 173nn. 24, 26–9, 178n. 51, 180n. 84 ‘The Patriarchy Which Is Not One’ 15 Cohen of Dvinsk, Rabbi Meir Simcha 118 collectivity 15, 40, 115, 121 community meaning-making, capacity for 2 concubinage 39, 126, 134–9 and sexual intercourse 128–33 and wife and prostitute, differences between 50–4 see also derekh kiddushin (quasi-marriage)

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Index conditional marriage 5, 95 debates, interpretation, and moral agency 110–24 presumption as description 124–7 divorce and 95–108, 110 conflict 3, 22, 28, 33, 115 of commitments 14–15 contract, marriage as 23–4 see also individual entries Cover, Robert M. 27, 163n. 83, 170n. 66 David, Rabbi Abraham ben (the Raavad) 92, 129, 174n. 50 Denishevsky, Rabbi Moses 100, 176n. 16 derekh kiddushin (quasi-marriage) 5, 7, 124, 126, 139 as alternative to marriage 139–41 from rabbinic phrase to practical application 141–54 see also concubinage Derrida, Jacques 168n. 46 divorce 4, 5, 11, 13, 16–20, 26, 33, 44, 48, 49, 50, 152, 170n. 68, 176n. 10 coercion for 78–9, 81 concubinage and 127–8, 132–3 conditional marriage and 95–108, 110, 114, 115, 117, 119, 120, 123 death of husband and 71–2 doubtful marriage requiring 41–2 for levirate marriage 37, 96, 102, 103, 105, 140, 148 male-prerogative in one-sided husband’s one-sided capacity to initiate divorce 55–7 opportunity reduction for women to leave marriage 57–9 women’s credibility 59–62 rebellious woman and 73, 75, 76–85 will importance, in male 62–8 Dorff, Rabbi Eliott 177n. 24 ein adam 46, 48, 49–50, 166n. 19 Eisenberg, Avigail 159nn. 3-4 (Chapter 1) Elazar, Rabbi 66 Eliezer, Rabbi 27, 30, 71, 172n. 11 Ellenson, Rabbi David Henry 179n. 64

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Ellinson, Getsel 181n. 7 Elman, Yaacov 167n. 34 Emden, Rabbi Jacob 134 Sheilat Yabetz 102, 134, 177n. 23 Epstein, Baruch 28 Epstein, Louis M. 25, 162n. 53, 163nn. 72, 74, 164n. 89, 166n. 16 eshet ish (wife of a man) 23, 68, 69, 120, 131 see also individual entries Even Ha’Ezer 26, 131, 133 exit, quid pro quo of 11, 160n. 6 see also divorce Faibesh, Rabbi Shmuel ben Uri Shraga The Beit Shmuel 134 Feinstein, Rav Moshe 151 Feldblum, Rabbi Meir Simcha 5, 7, 33, 139–41, 147–51, 152–4, 178n. 32, 180nn. 1–2, 183nn. 35, 37–8, 51–7, 184n. 63 ‘The Problem of Agunot and Mamzerim’ 139 Feldman, Rabbi David 174n. 37 feminist scholarship, on Jewish marriage 13–21 see also individual feminists Fish, Stanley 9, 159n. 1 Fishman, Sylvia Barack 175n. 3 flexibility 24, 66, 71, 85, 116, 119, 122, 154 Fonrobert, Charlotte Elisheva 159n. 2, 160n. 24, 174n. 43 Menstrual Purity: Rabbinic and Christian Reconstructions of Biblical Gender 14 Fraade, Steven D. 170n. 66 Franco-German Jews, medieval 12 Freiman, Abraham Hayyim 114, 176n. 7, 181n. 6 Friedman, Mordechai Akivah 31, 114, 162n. 47, 164n. 90, 171nn. 4–5, 172n. 6, 173n. 20 ‘Developments in Jewish Marriage and Family Law as reflected in the Cairo Geniza documents’ 31 Frishtik, Mordechai 173n. 35 Fuchs, Esther 168n. 50

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Gamaliel, R. Simon ben 67 Gamliel, Rabban ben 30, 172n. 11 Gaon, Rav Paltoy 76 Gaon, Rav Sherira 76, 77, 79, 80 Gardner, Jane F. 168n. 49 Geertz, Clifford 171n. 2 gender asymmetry, by rabbis 50 Goitein, S. D. 162n. 47, 164n. 90 Gordon, Rabbi Eliezer 178n. 40 Goren, Rav Shlomo 175n. 1 Gracer, Bonnie L. 167n. 40 Graetz, Naomi 164n. 96, 168n. 47, 174n. 44 Grodszanski, Rabbi Chaim Ozer 113 Grossman, Avraham 178n. 53 Gunzberg, Aryeh Leib ben Asher (Turei Even) 28–9 Haberman, Devora Bonna 136, 137, 170nn. 68, 73, 178n. 29, 182n. 28 habituation 125 Hacohen, Rabbi Aviad 13, 20, 161n. 35, 164n. 94, 170n. 70, 171n. 76, 183n. 39 hafka’at kiddushin (uprooting of marriage) 33, 64 hafkaah (annulment) see annulment, and undermining of tav le metav presumption Hakatzav, ben Zechariah 69 halakha (Jewish law) 6, 12, 18, 19, 26, 29, 31, 32, 33, 50, 54, 57, 90, 100, 105, 115, 118, 119, 121, 124, 126, 127, 128, 130, 133, 135, 139, 141, 147, 151, 153, 156, 157, 159n. 6, 165n. 1, 175n. 53, 177n. 18, 181n. 11, 183n. 48 Halbertal, Moshe 8, 114, 159n. 7, 161n. 32, 170n. 73 Interpretative Revolutions 17 halitzah (a form of divorce for the levirate marriage) 37, 96, 102, 103, 105, 140, 148 Halivni, David Weiss 24, 163nn. 70–1 Hama, Rami Bar 87 Hamnuna, Rav 60 Hananel, Rabbenu 81

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Haperin-Kaddari, Ruth 13, 160n. 18, 175n. 3, 176n. 4 ‘Tav Lemeitav Tan Du Mi-Lemeitav Armalu : An Analysis of the Presumption’ 32 Hartman, Rabbi David 184n. 62 Haturim, Ba’al (Rabbi Jacob ben Asher) 131–2 Hauptman, Rabbi Judith 114, 161nn. 29–31, 174n. 39 Rereading the Rabbis: A Woman’s Voice 16 Hazzan, Rabbi Eliyahu 96–7 Hebrew Bible 56 Heidegger, Martin 168n. 46 Henkin, Rabbanit Chana 164n. 87 Henkin, Rabbi Yehuda 136, 180n. 87 Understanding Tzniut: Modern Controversies in the Jewish Community 125 Heschel, Rabbi Abraham Joshua 79n. 57 heteronomy 27 heterosexual couple and male supremacy 91 Hirschman, Albert O. 55, 167n. 37 Hoffman, Rabbi David Zvi 116 holiness, of marriage 114 Horowitz, Rabbi Aryeh Leibush Halevi 117 husband, death of 71–2 interpretation and authority 9–13 inurement 125 Isaac of Dampierre, Rabbi 80 ishut (wifehood) 25 Israel of Bruna, Rabbi (Mahari Bruna) 96, 166n. 17 Isserles, Rabbi Moses (the Rema) 133 Jackson, Bernard 18, 19, 161nn. 36–8, 40, 42–4, 167n. 41, 172n. 14, 180n. 3 ‘The Agunah and the Problem of Authority’ 20 Jankowiak, William 168n. 49 Jeffreys, Sheila 91, 174nn. 45–6

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Index Johanan, R. 45 Jose, R. 74 Joseph, Norma Baumel 180n. 86 Joshua, R. 69 Judah, R. 74 Judah, Rav 51, 52 Kahane, Kopel 22–3, 25, 162nn. 53, 59–63, 65 The Theory of Marriage in Jewish law 21 Kanafogel, Ephraim 174n. 42 kedesha 129–30 Kehati 176n. 12 ketubah/ ketubot (marriage contract) 20, 30, 36, 47, 51, 57, 58, 83, 103, 136, 137, 151 see also kiddushin; legal effects of marriage kiddusheita’ut (mistaken marraige) 21 Kiddushei Taut 170n. 70 kiddushin (betrothal/marriage) 5, 6, 7–8, 19, 25, 32, 36, 44, 47, 48, 51, 71, 86, 103, 104, 110, 123, 131, 137, 141, 178n. 38 non-reciprocity of 39–40 see also ketubah; legal effects of marriage Kimche, Rabbi David 182n. 12 kinyan (acquisition) 22 , 24, 25, 172n. 6 Koren, Irit 11, 13, 159n. 5 (Chapter 1), 165n. 98 ‘The Bride’s Voice: Religious Women Challenge the Wedding Ritual’ 34 Korn, Eugene 177n. 18 Koschovsky, Rav Mark 183n. 48 Kraemer, David C. 166n. 27, 176n. 15 Labovitz, Gail 49, 166nn. 20, 23, 174n. 40, 175n. 52 Landau, Melanie 161n. 41, 165n. 2, 171n. 2, 180n. 86 Landau, Rabbi Yehezkel ben Yehudah 110, 166n. 17, 178n. 38

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legal categories, and Jewish marriage 21 legal effects, of marriage 36–9 death of husband 71–2 establishment of relationship 39 acquiring many women with one statement 40–1 differences between wife and concubine and prostitute 50–4 doubtful marriage requiring divorce 41–2 non-reciprocity of kiddushin process 39–40 sexual intercourse 42–50 far-reaching consequences, of kiddushin 68–70 male prerogative in one-sided divorce 55 husband’s one-sided capacity to initiate divorce 55–7 opportunity reduction for women to leave marriage 57–9 women’s credibility 59–62 will importance, in male divorce 62–8 Levi, Rabbi Yehoshua ben 87 levirate marriage 37, 68, 70, 84, 96, 98, 100–1, 102–3, 176n. 5 Lewittes, Mendell 162n. 55 liberal philosophy 11 licentiousness (beilat zenut) 5, 106–7, 124, 159n. 2, 174n. 50, 177n. 23, 181n. 7 concubinage and 126, 128–39 derekh kiddushin (quasi-marriage) and 139–54 retroactive 105, 109 sexual intercourse not leading to 42–50, 101, 102 see also zonah (licentious woman) Lieberman, Saul 162n. 51 Lima, Rabbi, Moses ben Isaac Judah (the Helkat Mehokek) 134 Lorberbaum, Yair 170n. 66 Lubetsky, Yehudah 5, 108, 114–15, 119, 122, 176n. 10 Ein Tenai be’Nissuin 19, 97, 109, 110, 111, 122

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Mahmoud, Saba 15, 161n. 27 Maimonides 22, 79, 92, 127, 129, 130, 132, 134, 141, 144, 146, 147, 153, 167n. 35, 171n. 75, 177n. 24, 182n. 12 Laws of Divorce 63, 78 , 99, 132 , 177n. 20 Laws of Forbidden Intercourse 91–2, 142, 167n. 31 Laws of Kings 129 Laws of Personal Status 14:8–9 78, 129, 142, 145, 165n. 13 male prerogative, in one-sided divorce 55 husband’s one-sided capacity to initiate divorce and 55–7 opportunity reduction for women to leave marriage in 57–9 women’s credibility and 59–62 male sex right 86–8, 171n. 2 mamzerut/mamzerim/mamzer (illegitimate offspring) 53, 95, 97, 112, 117, 139, 147, 148, 173n. 23, 175nn. 1–2 marriage contracts see ketubah/ ketubot (marriage contract) Mavoi Satum 161n. 46 Meir, Rabbi 65, 97 Meiri, Rabbi Menachem (Meiri) 22 mekadesh (sanctification) 24 Meshiv Davar 4:35 93 mesuravot get (Jewish divorce) 13 see also divorce meyuhedet (sex outside of marriage but committed) 177n. 23 Michel, Rabbi Yechiel Aruch Hashulchan 102, 103, 104–5, 107 mikveh (ritual bath) 131 Miller, Beth C. 173nn. 32–4 Mir-Hosseini, Ziba 166n. 25 mistaken marriage 33 mitzvah/mitzvot (commandments) 28–9, 39, 79, 127, 164n. 87 modesty 114, 124, 125, 163n. 79 moral compass 3 moral responsibility 9, 177n. 18 moral sensibilities 114

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Nahmanides 130 Nell, M. Diane 168n. 49 Netziv 93–4 Neusner, Rabbi Jacob 167n. 44 Nissim, Rabbenu (The Ran) 22, 92, 174n. 47 non-reciprocity 4, 5, 6, 7, 9, 13, 26, 36, 42, 86, 97, 125, 141, 157, 181n. 3 of kiddushin process 39–40 see also divorce Nuri, R. Jochanan ben 56 Nussbaum, Martha 161n. 26 obligation 11, 15, 27, 29, 63, 84, 144, 173n. 22 conditional and levirate marriage and 102–3 of husband 75, 87, 92 ritual 26, 38–9, 70, 172n. 7 of wife 93 Okin, Susan Moller 55, 167n. 36 Ortner, Sherry B. 168n. 49 Palestinian Talmud 25–6, 62, 74, 81, 99, 108, 116, 172n. 7, 177nn. 17 patriarchy 9, 15, 62, 65, 83, 84, 137, 155 rabbinic 14, 16, 26 Paul, Shalom M. 174n. 36 Peskowitz, Miriam B. 17, 61, 161n. 33, 162n. 57, 169n. 55 Pfeffer, Alan 170n. 71 Pfeffer, Leo 170n. 71 pilagesh (concubinage) see concubinage Pinchuk, Rav Moshe 164n. 86 Plaskow, Judith 26 Platt, Maria 161n. 27 pre-nuptial agreements 121, 127 qiddushin see kiddushin (betrothal/ marriage) Rabbenu Asher 78, 79, 85, 169n. 62 see also The Rosh rabbinic anxiety 65 rabbinic construction of gender and marriage 26

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Index rabbinic literature Book of Numbers (chapter 5) 69 BT Baba Kama 87a 164n. 87 BT Baba Metzia 37b 165n. 11 BT Eruvin 100b 87 BT Gittin 33a 169n. 59 BT Gittin 34b-35a 83 BT Gittin 81a-b 44–5, 167n. 33 BT Gittin 89b 60, 168n. 52 BT Gittin 90a 65 BT Ketubot 22b 60, 168n. 52 BT Ketubot 62b 166n. 20 BT Ketubot 63b 168n. 48 BT Ketubot 63b 172n. 13 BT Ketubot 70a 80, 81, 173n. 22 BT Ketubot 73a 47–8 BT Ketubot 77a 80, 81 BT Ketubot 82b 171n. 75 BT Kiddushin 2a 171n. 74 BT Kiddushin 2b 165n. 11 BT Kiddushin 5b 165n. 12 BT Megillah 23a 164n. 87 BT Menahot 29b 116 BT Nedarim 15b 93 BT Nedarim 20a-b 91 BT Nedarim 20b 89, 92, 93, 166n. 20 BT Nedarim 74a 171n. 75 BT Nedarim 81b 88 BT Nedarim 91a 60, 168n. 52 BT Niddah 12a 89 BT Pesachim 49b 90, 167n. 31 BT Sanhedrin 21a 167n. 29 BT Tractate Gittin 66 BT Yevamot 8b 84 BT Yevamot 29b 84 BT Yevamot 39a 70 BT Yevamot 52a 165n. 10 BT Yevamot 62b 142 BT Yevamot 96b 142 BT Yevamot 107a 48–50 BT Yevamot 112b 183n. 44 BT Yevamot 116a 60, 168n. 52, 169n. 54 Exodus Rabbah 28:4 115 Hosea 4:14 70 Ketubot 1:12 144

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Ketuboth 5:8(30b) 99 Kiddushin 1:2 172n. 7 Kiddushin 59a 172n. 7 Leviticus Rabbah 111 Mishnah Baba Batra 8:5 176n. 14 Mishnah Baba Metzia 7:11 176n. 14 Mishnah Gittin 4:2 63 Mishnah Gittin 8:9 44 Mishnah Gittin 9:8 62, 68 Mishnah Gittin 9:10 64 Mishnah Ketubot 5:5 29, 75, 172nn. 7, 11 Mishnah Ketubot 5:7 74, 172n. 12 Mishnah Ketubot 7:5 172n. 6 Mishnah Ketubot 7:9 67 Mishnah Ketubot 7:9-10 81 Mishnah Kiddushin 1:1 37, 165n. 15 Mishnah Kiddushin 1:7 38, 163n. 84 Mishnah Kiddushin 2:7 40 Mishnah Kiddushin 3:12 41 Mishnah Kiddushin 3:2 101 Mishnah Kiddushin 3:4 97 Mishnah Kiddushin 4:12 61 Mishnah Kiddushin 4:9 42 Mishnah Nedarim 10:6 171n. 75 Mishnah Nedarim 11:12 57 Mishnah Rosh Hashanah 3:8 29 Mishnah Sanhedrin 2:4 51 Mishnah Shabbat 2:6 28 Mishnah Sotah1:5 170n. 73 Mishnah Sotah 3:4 27 Mishnah Sotah 5:1 69 Mishnah Sotah 9, 180n. 80 Mishnah Sotah 9:9 69 Mishnah Yevamot 4:4 70 Mishnah Yevamot 6:5 43 Mishnah Yevamot 14:1 56 Mishnah Yevamot 16:7 71 Nedarim 11:12 65 Nedarim 20b 174nn. 40, 47 Nedarim 74a 171n. 75 Tosefta Ketubot 5:7 74 Tosefta Kiddushin 3:7-8 98 Tosefta Nedarim 7:1 87–8 Yerushalmi Gittin 9:9 169n. 56 Yevamot 32b 166n. 20 rabbinic patriarchy 14, 16, 26

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rabbis 7, 8, 10, 14, 16, 17, 53, 54, 58, 61, 66, 67, 68, 69–70, 71, 77, 89, 92, 173n. 30, 174n. 51, 175n. 4, 182n. 25, 183n. 43 on conditional marriage 98, 101–2, 116–17 European 96–7, 107, 113, 120, 122–3 gender asymmetry by 50 on ignoramus marrying woman 90 Orthodox 18, 121, 128 Rackman, Emmanuel 24, 163nn. 66–7 ‘Ethical Norms in the Jewish Law of Marriage’ 23 Rackman Beit Din 20, 140 Radbaz, The 150 Rambam 54, 79, 93, 165n. 2, 177n. 17, 178n. 33 rape, in marriage 21 as reflection of acquisition 86–94 rebellious woman 4, 73–85, 172n. 12 rape in marriage, as reflection of acquisition 86–94 Reitman, Oonagh 11, 160nn. 7–9, 11 retroactive licentiousness 105 Rich, Adrienne 168n. 50 Rishonim 128, 153, 167nn. 30, 42, 177n. 17 Riskin, Rav Shlomo 20, 33, 164nn. 95–6, 165n. 3 ritual obligation 26, 38–9, 70, 96 Rosenthal, Rachel Sara 164n. 96 Rosen-Zvi, Ishai 170–1n. 73 Rosh, The 85, 131, 134, 143, 144, 145, 146–7, 169n. 62, 178n. 32 see also Rabbenu Asher Ross, Tamar 159n. 6 Roth, Joel 181n. 11 Ryan, Rebecca M. 173n. 31 sanctity 19, 23, 24, 30, 90, 92, 95, 113, 119, 127, 142, 150, 180–1n. 3 Sanhedrin 21a-b 167n. 30 Satlow, Michael L. 170n. 64, 177n. 25, 182n. 13 savoraim 76, 77 Schachter, Rabbi Hershel 163n. 79 Schneider, Susan Weidman 174n. 37 Schreiber, Moses 166n. 17

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Sefer Halakhot Gedolot 143 sexual intercourse 3, 39, 42–50, 75, 79, 84, 88–9, 96, 169n. 63, 174nn. 49–50, 177n. 23, 182n. 25 BT Ketubot 73a 47–8 BT Yevamot 107a 48–50 concubinage and 128–33, 145, 151 conditional marriage and 101, 103–7, 109 as duty and privilege 87 with kedesha 129–30, 134 rape in marriage as reflection of acquisition and 86–94 ritual purity and 89–90 sexuality 169n. 57, 173n. 32 of man 47 see also individual entries of woman 23, 31, 38, 56, 75, 88, 168n. 49 see also concubinage; derekh kiddushin (quasimarriage); licentiousness Shachar, Ayelet 160n. 12 Shanley, Mary Lyndon 162n. 56 Shifman, Pinhas 12, 118, 160nn. 13–14, 165n. 1, 179n. 66 Shilo, Samuel 167n. 43 Shimon, Rabbi 51 Shita Mekubetzet 93 Shochetman, Eliav 160n. 13, 161n. 39, 169n. 60 Shprecher-Fraenkel, Rachel 136, 137, 182n. 30 Shuster, Fyvel 183n. 49 silence, as consent to marriage 39–40 Sinai approach 116 social change 1, 82, 121, 125 social contract 16, 27 social injustice 9 Sokol, Moshe 177n. 18 Solomon, Norman 162n. 51 Soloveitchik, Haym 12, 13, 160nn. 15–17 Soloveitchik, Rav Joseph B. 125, 164n. 93, 180n. 89 Sperber, Daniel 179n. 79 Spinner-Halev, Jeff 159nn. 3-4 (Chapter 1) stability 24, 25, 148, 163n. 68 status, marriage as change of 23 Stone, Suzanne Last 159n. 4, 184n. 1

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Index Strum, Andrew 181n. 8 Susskind Goldberg, Monique 161n. 45, 166n. 26, 182n. 12, 183nn. 45–6 Zaakat Dalot (The Cry of the Wretched) 20, 151, 176n. 11 Sussman, Yaacov 177n. 17 Talmud 14, 26, 27, 32, 33, 43, 44, 50, 51, 52, 53, 59–61, 62, 63, 74, 83, 88, 109 Jerusalem 62, 74, 81, 99, 108, 116, 172n. 7, 177nn. 17, 25–6 Palestinian 90 see also rabbinic literature; Torah Tam, Rabbenu 29, 85 textual collectivity 15 Thomas, Keith 169n. 63 Tikochinsky, Michal 136, 137, 182n. 30 time-sensitive commandments, exemption from 27–30 Torah 4, 9, 14, 29, 30, 85, 90, 96, 98, 111–12, 114–16, 130, 139, 140, 141, 145 women exclusion from learning 26–7, 37 see also rabbinic literature; Talmud Torah Temimah , Shemot, 13:42 164n. 86 Tosafists 80, 81–5, 89, 110, 123, 142, 166n. 22, 178n. 40 traditional marriage adaptation 34–5 Tucker, Judith E. 15, 161n. 28 Tur 132, 134 Varanowsky, Rabbi Aharon Dov Alter 111, 112 Vicziany, Marika 161n. 34 Villa, Rabbi Diana 131, 161n. 45, 182nn. 12, 16–21, 183nn. 45–6 Zaakat Dalot (The Cry of the Wretched) 20, 151, 176n. 11 Walzer, Michael 173nn. 18–19, 177n. 18 Warhaftig, Rabbi Zerach 170n. 69 Webber, George J. 163nn. 75–6 ‘Principles of the Jewish Law of Property’ 25 Wegner, Judith Romney 23, 25, 38, 56, 75, 162n. 64, 163n. 75, 164n. 91,

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203

165nn. 5–6, 167nn. 38–40, 172n. 12, 174n. 39, 175n. 52 Chattel or Person: The Status of Women in the Mishnah 31 Weinberg, Rav Yehiel Yakov 118–19 Weiss, Susan 161n. 46 Westreich, Avishalom 164n. 97, 168n. 48, 171n. 1, 172nn. 8–10, 15–17 Westreich, Elimelech 168n. 48, 171n. 1, 178n. 31 wife and concubine and prostitute, differences between 50–1 BT Sanhedrin 21a-b 51–3 BT Yoma 18b 53–4 will importance, in male divorce 62–8 Wimpfheimer, Barry 170n. 66 Witte, John Jnr. 162n. 55 Yaacov, Eliezer ben 53 Yabetz 134–5 Yad L’Isha 161n. 46 yefat to’ar (female captive) 51–2 Yehoshua, Rabbi 71 yevamah (woman widowed who is obligated in the levirate marriage) 84 yihud (man being alone with a married or unmarried woman), prohibition of 52–3, 61 Yitzhak, Rabbenu 142 Yitzhak, Rabbi 115 Yitzhaki, Shlomo (Rashi) 22, 83, 84, 171n. 75, 172n. 15 Yomah 18b 166n. 20 Yosef, Rav Ovadia 150 Yoseh, R. 99 Zakkai, R. Jochanan ben 69 Zohar, Rabbi Noam 37, 38, 165nn. 4, 7–9 Zohar, Zvi 128, 136, 178n. 32, 181n. 4, 182nn. 14–15, 22–3, 26–7, 183n. 50 Zugiyut al pi halakha le-lo huppah ve-kiddushin 126 zonah (licentious woman) 43–4, 49, 132 see also licentiousness

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