Reflecting on Judaism

A woman bound or ‘chained’ either to a missing husband
or to one who refuses to divorce her.

The problem of the Agunah was discussed as long ago as Talmudic times. When Chief Rabbi Hertz published his Chumash in 1936, seventy years ago, he wrote ‘Learned rabbis are today seeking a radical solution of this urgent problem’. I doubt whether this information will be of much comfort to the women caught up in these tragic circumstances. They may well ask, ‘how urgent is urgent?’

We can perhaps gauge how urgent the matter is by looking at the non-event scheduled for the end of 2006. A meeting, to be held in Jerusalem, had been arranged by the Chief Rabbinate of Israel to discuss the problem of the Agunah. Leading rabbis from many countries had been invited and many had accepted. A week or so before the meeting was due to be held it was cancelled. No public statement was issued but it is alleged that the meeting was cancelled at the bequest of one of the ‘Gedolim’ rabbis of the Charedi community who thought that the meeting was inappropriate. Is this really the reason?

The Agunah problem arises from the fact that a Jewish divorce is only valid if given by the husband voluntarily, without coercion. I have read that in Talmudic times, and later in areas where Jews had autonomy in respect of matters Jewish, the rabbis introduced certain devices such as coercion to obtain the Get which they explained away saying that it had been given voluntarily by the husband’s freewill decision. Or they admitted testimony that normally would have no validity, in order to find reasons to annul the marriage retroactively. I understand that our current religious authorities consider such tactics to be inappropriate or invalid today. I wonder why?

At the core of the problem lies the fact that the principles of Jewish divorce procedure are set out in the Torah and the rabbis submit that they are therefore inviolable. This submission deserves closer attention and will be discussed below.

In his book Hillel the Elder, Prof. Nahum N. Glatzer shows that Hillel was motivated by social concerns and introduced several reforms, including the Prosbul, which virtually abolished the Written Law which provided for the cancelling of debts.

Support for the view that the Rabbis both took and have such powers and authority might be found in a Paper delivered by a prominent United Synagogue rabbi to the Limmud conference 1999. He is reported to have said that a solution to the problem of the Agunah was available to the Bet Din by them acting unilaterally and that there was justification for such action with precedents set by Hillel the Great.

A few years ago, Rabbi Dr. Emanuel Rackman, former president of the religious Bar Ilan University in Israel, together with two other prominent rabbis made suggestions for overcoming the problem but, from newspaper reports, the Powers-that-be would not give them serious attention.

If Hillel the Elder, for social reasons, virtually abolished some Written Laws for urgent social reasons why cannot our current religious leaders, in situations where they have a precedent, behave in a similar manner?

I would like at this stage, in support of the rabbis mentioned in the previous three paragraphs, to refer to a slim book written by Rabbi Eliezer Berkovits called ‘Not in Heaven’ ‘The nature and function of Halakha.’

The late Rabbi Berkovits was a leading philosopher-theologian and Talmudic scholar. He studied with Rabbi Yehiel Weinberg at the Hildesheimer Rabbinical Seminary in Berlin and was for many years Professor of Philosophy at the Hebrew Theological College in Illinois. During the course of his career he held prestigious positions in other orthodox institutions.
For people interested in the subject, or who wish to look for ways of easing the plight of the Aguna, his book is a must. He discusses the importance of common sense, the s’bara, in establishing the principles of the Halakha as well as determining specific legal decisions. He gives a number of examples where the rabbis have ‘uprooted’ biblical law and ruled contrary to it when common sense, or when the remedying of social injustice, demanded it.

I will now examine the rabbi’s statement mentioned above, namely, that since the laws concerning the Agunah are Torah Laws they are inviolable, and see whether the rabbis are being consistent.

Deut. 17 v,s 8-12,
and I abbreviate, discusses what to do if a difficult personal problem arises. The people are advised to go to the Priests, the Levites, and they will judge and whatever they tell you, you shall do.

Deut. 31 V 9.
tells that Moses wrote the Torah and committed it to the keeping of the Priests and Elders so that they may teach the people. Logically, when Moses gave the Torah Law to the priests, the Oral Law must have been given to them at the same time

Some 700 years later, circa 600 BCE, the prophet Ezekiel writes: ‘But the Priests the Levites, the sons of Zadok (hence the name Sadducces), that kept the charge of my sanctuary when the children of Israel went astray from Me, they shall come near to me to minister unto Me’.

Ben Sira, whose wisdom book Ecclesiasticus is dated mid 2nd century BCE, mentions only the priests as the then leaders of the community.

These four references show that the priests filled the role of religions leaders and teachers continuously for over 1000 years, as the Torah had commanded them.

Circa 150 BCE things began to go wrong for the priests. Some became corrupt. High priests were politically appointed instead of being appointed by entitlement. They became associated, in the minds of the people, with the upper classes and with Hellenism.

A detailed history would be inappropriate here and anyway it depends on which historian you read. Briefly, the scribes and the more religiously minded, a group that became known as the Pharisees, the forerunners of the rabbis, became disillusioned with the priests, led a revolt against the them and eventually usurped their status as the teachers and leaders of the Jewish religion. Their reasons are understandable but they were clearly acting contrary to the plain commands of the Torah, namely, that it was the priests who should be the teachers. They not only usurped the position and status of the priests but also denigrated them. They wrote them out of our history by claiming that they, the Pharisees, were the true inheritors of the Oral Law and that the priests had no Oral Law tradition, a claim that, as can be seen above, is obviously wrong.

A second example showing the rabbis acting contrary to the Torah’s commandments is to do with the shofar and lulav. The Torah explicitly commands that on the first day of the seventh month we should blow the shofar and on the fifteenth day we should take hold of the lulav. When the first and fifteenth days fall on shabbat the rabbis cancel the commandments just in case, maybe, people carry the shofar and lulav to synagogue. Not carrying on shabbbat is a rabbinical decree only, but nevertheless the rabbis gave it priority over the Torah decree.

A third example shows that where the rabbis disapproved of a commandment for the sake of justice, but could not overturn it, they tried to ignore it. Deut. 23 v 3 states, ‘A bastard shall not enter into the congregation of the eternal one’. A bastard in Jewish law is not as in English usage but means the offspring of a forbidden union. The rabbis thought that this law was unfair to an innocent child and would cause it very severe consequences. However, they recognized that the law was intended to discourage such unions. So what they did was to try to not notice them.

First came a decision by a Rabbi Yizhak who ruled that where a bastard is sub-merged into a family, we let him remain submerged and not investigate to discover which child it is. Rabbi Yohanan, as reported in the Jerusalem Talmud, took an oath that he could prove of bastards in some families but would not do so. As a result of such sentiments it was decided that it is forbidden for anyone to reveal that someone is a bastard. I recall such a situation arising in Holland after the Second World War, reported in the Jewish press, where a person reported bastard children to the rabbinate but they refused to investigate the matter.

Two questions arise from all this. The first question is, why did the Pharisees and early rabbis ‘uproot’ so many Torah’s commandments which they consider to be inviolate? The second question is, by what authority
did they exercise such audacity?

One possible answer to the first question might be, that they saw many personal problems arising from the strict application of the Torah laws that they said to themselves ‘this can’t really be what God wants’.

A second possible answer to the first question might be found in a book ‘ A hidden revolution’ written by Professor Dr. Ellis Rivkin to which I have referred in another of my essays. Dr. Rivkin received his doctorates from the John Hopkins University and the Baltimore Hebrew College and went on to become a professor of Jewish history. The thrust of his book is to show that the Pharisees took away the leadership of the Jewish people from its’29/01/2007 rightful owners, i.e. the High Priests.

Why did they take the Priest’s authority? Dr. Rivkin gives two reasons. The first is that at the time the priesthood had become corrupt. Jason was improperly appointed and then Meneleas was corruptly appointed as High Priests although neither was eligible. Secondly, the Written Law was bogged down in a commitment to immutable laws administered by a priestly class which was tied to preserving the interests of only the priests and peasants. It was not geared to the fast-paced urbanisation and commercialisation, which was then developing. People became frustrated and the time for revolution had arrived. The Pharisees were there and took their opportunity to seize power.

Dr. Rivkin gives several reasons of which I will mention just two. (a) They showed that perhaps the ultimate authority did not lie with the priesthood. (b) That there were various ambiguities in the Torah, which enabled them to draw their own inferences.

The second question that I asked above was, ‘by what authority did they (the rabbis) exercise such audacity?’ An answer might be that having realised that the Torah’s commandments were causing undue personal problems they found verses in the Torah and elsewhere such as Deut 6 v18, Which says ‘And thou shalt do that which is right and good in the sight of the Eternal One’. From such sentences they assumed that they could introduce the humane amendments.

One final question is, if the early rabbis could show such concern, and solve the problems for so many people, in such a variety of circumstances, why cannot today’s rabbis show the same concern for today’s Aguna? For the answer to this question I refer to the e-mail letter circulated by well known orthodox rabbi. He recently wrote,

‘We live in an era in which Judaism is being re-cast in an almost unrecognisable straightjacket. One of the pieces of this new paradigm is the use of the term ‘Gadol’ Great’ of certain rabbis who alone, it now appears, are the sole arbiters of Jewish Law. The Ultra Orthodox world declares that one can only rely on the Gadol (The Great Authority), for a true and authentic view and opinion on Torah. In theory only someone of great knowledge, wisdom and spirituality, divested of personal ambition, political aspirations and mundane, physical concerns can fathom the depths of Torah as the vehicle of Divine communication with humanity. Most Jews and non-Jews only hear of Chief Rabbis or other appointees. Rarely do they hear of the true leader, the real Gadol. But never over the past two thousand years has the law been the exclusive domain of one or two men alone even when, on occasion, one has been head and shoulders above the rest.’

I think that the rabbinate will not resolve the problem of the Aguna for two reasons in spite of their continual expressions of regret.

The first reason. Why should we now think that they would agree to act in unison on the matter of Aguna? Let us compare this matter with that of conversion. The principles of the laws of conversion of non-Jews into Judaism, by biblical standards, are very simple. When the situation recently arose that the London Beth Din refused to accept conversions carried out by the Israeli Beth Din people were very shocked. There was then a report that the Israeli Beth Din might not accept conversions from overseas Battai Din. One now realises how difficult it will be to get rabbis to agree on this rather more difficult matter of Aguna.

The second reason why I think that the rabbinate will be unable to resolve the problem is because too many of them have surrendered their authority, as has been suggested by the e-mails which I have quoted elsewhere in this essay.

But this whole story does not add up. Chief Rabbi Hertz said that Learned Rabbis were seeking a radical solution. The Israeli Rabbinate set up, and then cancelled a meeting to discuss the problem. This appears to suggest that a solution could be available. What is holding it up? Is there a hidden agenda? To see whether this might be the case I will quote selected sentences from another of the aforementioned rabbi’s e-mail letters which discusses Aguna.

‘Jewish Law allowed for the annulment of marriages where circumstances permit’. ‘Sadly, over time attitudes began to harden.’ ‘As women began to assert their rights, the predictable response of all religious authorities was and is to resist change.’ ‘And of course the pressure of the Enlightenment simply drove Orthodoxy further into its protective mindset and against any accommodation with modern conditions’. ‘I personally believe that were the males to be the primary losers in this matter it would have been dealt with within the framework of the Halacha a long time ago’.

‘Over the years, a brave few rabbis have tried to change opinions or, as in the case of Rabbi Emanuel Rackman, actually do something about it. But in the end they have been rejected and humiliated and the status quo has remained’. ‘The only explanation I have is that they (the rabbis) are fearful of being accused of leniency in an era where leniency is almost akin to apostasy’. ‘But now it seems that, as in Britain and America, the Charedi rabbis are exercising pressure and the moderates are capitulating. ‘Moderate rabbinical leadership has given up the struggle’.

If we combine my thoughts with those contained in the rabbi’s e-mails, it would appear that where there is a will there is a way. Unfortunately the ‘Powers That Be’ still seem reluctant to find that way.

Woolf Abrahams.

January 2007.