Abstracts

DIVORCE

Ratson Arussi, "The Ethnic Factor in Rabbinical Decision-Making (Enforcement of Divorce on the Grounds of Revulsion in the Yemenite Community), Diné Israel 10/11 (1984), 125-177.

J. David Bleich, "Survey of Recent Halakhic Periodical Literature", Tradition 22/3 (1986), 77-87. - The author discusses the device of "The Sages of Spain" as a solution to the problem of the modern day Agunah. He describes in detail the halakhic considerations, e.g., the removal of Asmakhta, in the development of a suitable instrument to require a husband to execute an unimpeachable document of divorce. The instrument draws heavily on a medieval Spanish-Jewish procedure. (S.M.P.)

Judah Dick, "Is An Agreement to Deliver or Accept a get in the Event of a Civil Divorce Halakhically Feasible?", Tradition 2l/2 (l983), 91-106. - The author explores various halakhic problems attendant upon the preparation of a universal document to be executed at or prior to a marriage. This document would constitute an agreement of the parties to cooperate to achieve a halakhically valid dissolution of the marriage by the delivery and acceptance of a get. The author argues in favour of such an instrument and provides a sample text for it. (S.M.P.)

Harry B. Hunt, Jr., "Attitudes Toward Divorce in Post-Exilic Judaism", Biblical Illustrator 12 (1986), 62-65; see OTA 110/1 (1987), no.276.

L. Kahan, "Jewish Divorce and Secular Courts: The Promise of Avitzur", Georgetown Law Journal 73 (1984), 193-224. - In 1983, New York's highest court upheld under contract principles a clause in a conservative ketubah which required a couple to appear before a rabbinical court after obtaining a civil divorce. This, of course, could help women whose ex-husbands refuse to deliver a get. This lengthy student casenote compares the court's decision with the New York "Jewish divorce law," a statute aimed at that same problem. The author finds constitutional defects in each approach, but argues that carefully-worded and carefully-explained clauses in a ketubah would be superior to the statutory approach, both in avoiding equal protection difficulties under the Fourteenth Amendment, and Establishment Clause and Free Exercise Clause obstacles under the First Amendment. Exhaustive footnotes provide citations to a number of articles on the New York statute, the Avitzur decision, and the agunah problem appearing in Jewish newspapers and magazines, as well as law review articles dealing with the judicial enforcement of religious marriage contracts. (D.H.P.)

Bernard H. Mehlman and Rifat Sonsino, "A Reform get: A Proposal", JRJ 30/3 (l983), 3l-36. - The authors present the rationale for a bill of divorce for the Reform Movement and present a proposed form for it, introduced by a discussion of its points of difference from the traditional bill of divorce. (S.M.P.)

Shlomo Riskin, Women and Jewish Divorce: The Rebellious Wife, the aguna, and the right of women to initiate divorce in Jewish law, a halakhic solution (New York: Ktav, 1988). - R. Shlomo Riskin's monograph, Women and Jewish Divorce, offers a readable, timely study to the learned and lay community. His study is unique because he combines the passion of the clergyman with the historical methodology of the university scholar, all the while retaining the conceptual methods of his yeshiva mentors. By combining the historical approach with "yeshiva" conceptualization, R. Riskin creates a uniquely important document, which expresses a modern orthodox halakhic sensibility that speaks to the contemporary temper while remaining unflinchingly faithful to the letter and spirit of the Jewish legal tradition. When dealing with positions, people, and programs with which he disagrees or demurs, R. Riskin maintains a gentlemanly posture that ought to serve as a model for contemporary secular scholarship. R. Riskin finds that classical Jewish legal precedent provides ample evidence for coercive pressure in order to "pursuade" a recalcitrant husband to present a get, or Jewish writ of divorce, to a woman who cannot suffer to live with her spouse. By documenting the developments of halakhic principles, R. Riskin discovers that the text of the Talmud offered sufficient flexibility to enable the Babylonian Gaonate to define the situations wherein a woman may initiate divorce proceedings. R. Riskin argues, with convincing conviction, that in its time, this Gaonic enactment was justified on the grounds that Islamic society would absorb desperately unhappy Jewish women, while the restrictive approach of Rabbeinu Tam fits well within a Jewish world that emphasized the stability of the marriage institution (within a Catholic world that did not recognize divorce in any case). Consequently, R. Riskin contends that the weight of historical precedent favours those who would coerce recalcitrant husbands in certain circumstances to commission the writing of a get, and the times in which contemporary Jewry finds itself are more similar to the conditions of the Gaonate, when this procedure was first initiated, than the conditions which obtained in the sociological environment of R. Tam. Indeed, R. Tam formally opposes the lenient Gaonate ruling because he finds no explicit basis for it in the Talmud, but he nevertheless allows the abolition of the explicit Talmudic rule requiring a woman to see her intended before the wedding. It is therefore clear that R. Tam was applying halakhic principles, with appropriate juridic reasoning, to the social realia of his day, and that he was not functioning as a mere "strict constructionist" in his applications of Talmudic statute.

Although R. Riskin studies Talmudic materials historically, he never succumbs to historical relativism. He correctly, vigorously, and yet politely opposes those who argue that Islamic law was more understanding than Jewish law concerning women's rights, while avoiding the tempting but inappropriate polemic that Wissenschaft des Judentems scholarship was wedded to religious "reform" and assimilation. While recognizing that there was editorial activity on the part of the Saboraim, he does not engage in "higher critical" reconstruction, the results of which often follow the ideological biases of the scholar. R. Riskin employs "lower" or textual criticism when considering the reliability of variant readings; but there is more than ample precedent for this scholarly procedure from the times of the Rishonim to our own age.

On occasion, R. Riskin's arguments and demonstrations are unconvincing. Law is a normative order. The legal weight of opinions have to be considered, no less than the normative quality of the documents in which they are found. On one hand, R. Riskin correctly states the principles that Ravina and Rav Ashi are sof hora'ah, the end of the Talmudic legislators, and that their successors, the Saboraim, had less legal authority. Nevertheless, R. Riskin treats the textus receptus of the Amoraic/Saboraic Babylonian Talmud as a unified text with uniformly binding authority. This difficulty requires further explanation. It is also unclear whether R. Riskin regards this Saboraic material to be Talmud or post-Talmudic. Another unclear matter is R. Riskin's treatment of precedent. He argues that the "halakhic precedent (for conditional marriages) ... was a decision of Rabbi Israel Brunn, who concluded that a man whose brother is an apostate may stipulate at the time of his marriage that if he should die childless, his marriage will be nullified retroactively." The merits of R. Brunn's position are not within the scope of this review or the expertise of this reviewer, but R. Riskin's claim that the mere existence of an opinion makes that opinion legitimate assumes that legal authority resides in the charismatic personality. Now, R. Riskin's entire argument is based upon principle and precedent, rather than personality. If one argues that the very person of the "great sage" can make law, one is hard pressed to take issue with R. Tam, a most creative and convincing jurist.

While Rabbi Riskin has mastered the tools of "Brisker" conceptualization and historical analysis, he does not formulate his position in strictly legal, or normative terms. After all, R. Tam is an important authority, and the Toraitic prohibition against adultery and consequential taints of legitimacy require weighty concerns. As a jurist, R. Riskin should argue that Talmudic statute does not formally restrict certain kinds of coercion, and the Talmud was so understood by the Babylonian Gaonim and by Maimonides, who both claimed to possess the continuous Talmudic tradition The Gaonic willingness to exercise power or force to insure compliance was a function of a right that was authorized, but not commanded or forbidden. Given the circumstances surrounding Jewry the orbit of Islam, the Gaonic activation of coercive power was appropriate; given the closed society, the small communities, and the need for family stability, one can understand R. Tam's opposition to and indeed, unwillingness to activate this rabbinic power. In other words, in the absence of command or prohibition, laws authorize. The court has a monopoly on a coercive power. It uses this power at its discretion. Since this power is authorized it may be used. Since "our times" require the use of this power, R. Riskin advocates a change in Jewish public policy, but not a change or reform of Jewish law.

By calling for the exercise of coercive power, R. Riskin distinguishes himself from non-orthodox secularity on one hand and parochial orthodoxy on the other. The parochial orthodox, who oppose the integration of Torah with a secular world, see modernity as too threatening and themselves as too impotent to confront the challenge before them. By advocating the use of coercive power, Rabbi Riskin is asking that Jewish law be realistically applied to a real world, for Torah is not merely the pious discipline of the self-elect. Unwillingness to accept Jewish power is a rejection of Jewish communal discipline.

By asking his question, by applying his particular methodologies, and by finding the results that he did, Rabbi S. Riskin has not only written a responsum, he created a paradigm for those in the traditional Jewish community who believe in the synthesis of halakha and modernity. (A.J.Y.)

 

M. Zipor, "The Biblical Law of the Remarriage of a Divorced Couple - Some Observations" (Heb.), Diné Israel 13-14 (1986-1988), 153. - This article analyses the reason for the prohibition on remarrying one's ex-wife, if in the meantime she married another man and is now widowed or divorced from him (Deut. 24:1-4). The explanation appears to be that the remarrying of an ex-wife is not considered to be a new marriage, but rather, the restoration of the original marriage. If, after her divorce, the woman marries another man - which in itself is perfectly legitimate - this second marriage will, in the event of restoration of the first marriage, retroactively constitute a sinful union, a tum'ah (as a forbidden union is designated in several other places). (D.B.S.)

 

 

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