One of the claims made against Orthodox Jewish law is that it is sexist,
because while the husband must grant the wife a bill of divorce in
order to enable her to be legally divorced - and thus, entitled to
remarry - the husband needs no similar document from the wife. This
makes the system open to abuse, by men who wish to keep their wives
legally married, in order to extract money from them (by demmanding
money in exchange for the bill of divorce), or to exact revenge. Such
men, if they took upon themselves second wives while still not having
granted their first wives a bill of divorce, would only be considered to
be violating a rabbinic prohibition by Rabbi Gershom, whereas the wives
they keep legally married would be considered adulteresses on a
Biblical level.****
Today, it is common for communities to ex-communicate men who refuse
to give their wives a bill of divorce, known in Hebrew as a get, but
the man in question can simply move to another community, where his
antics may be unknown, so the ex-communication has a limited effect.
Technically, a woman might move to a place where her
previous-marriage-that-is-
still-legally-binding is unknown, and
marry some hot stud, but most of Orthodox women would consider doing so
to be a direct violation of the Torah commandment against adultery, so
their conscience holds them back.
The Talmud was extremely aware of the system's potential for abuse.
For that reason, it ruled it permissible to physically beat a
recalcicrant husband into submission. Persumably, a good thrashing
managed to bully men into giving their wives a get, in a way that
ex-communication today does not. Also, keep in mind that at the time
ex-communication was devised as a form of punishment, the world was
formed of micro-communities, with each person's health and livelihood
dependent on their community, so ex-communication had very serious
consequences.
As a further safeguard against abuse, the rabbis instituted a legal
mechanism for anulling marriages. The theory went like this: Every
Jewish couple marries with the understanding that they are marrying
according to the rules of the rabbis, thus, if at some point in the
future, the rabbis want to anull the marriage, they technically have the
right to do so. Because the couple is aware of the "This marriage is
only valid as long as the rabbis say it is" clause in the marriage
contract (which Rashi points out, is implied in the language of the
marriage ceremony: "You are betrothed to me according to the laws of
Moses and Israel"), at the time they make the contract, this "The rabbis
can annul this marriage" clause is valid. Thus, rabbinically anulling a
marriage after it's taken place, is simply legally using a clause that
the couple themselves put in their marriage contract on their wedding
day.
The rabbis are clearly not in favor of going around anulling
marriages - as a matter of fact, almost every time it rules that a
marriage anullment is permitted, it makes sure to include Ravina's
(ultimately rejected) objection to the entire concept of rabbinic
marriage anullments. I do not believe this is a mere rhetorical ploy,
but rather, the editor's subtle way of underscoring that while
permissible in certain circumstances, rabbinic marriage annulments are
only to be used sparingly, because yes, the entire concept is
problematic.*****
I plan on bringing two cases in the Talmud when the rabbinic power
of annullment is used in response to inappropriate action by the
husband. There are other cases when the Talmud allows anullments for
different reasons, but my goal is to prove that annullment can be used
in response to the husband's misdeeds, not to prove that it can't be
used for other reasons.
In Baba Batra, 48:1, the Talmud explains that if a woman is forced
into a marriage, the marriage is invalid. "He acted with her improperly,
thus we act with him improperly, and retroactively anull the marriage."
Thus, anullment is seen as something negative, yet necessary. The
anullment prevents the woman from being taken advantage of by a man who
acts improperly. The goal of the law is to protect the women's agency,
her ability to not be forced to stay in a marriage she does not want to
be in.
Tosfot, commenting on the passage, note that the reason the "all
people marry in accordance with rabbinic law, thus the
"rabbis-can-annull-this" clause is built into the marriage contract, is
not given as the reason behind the annullment in this case, is that the
man in question clearly married in full knowledge that he was acting
against the will of the rabbis.* This shows that Tosfot considered a
woman's free choice in the matter to be essential enough to rabbinic
matrimonial values that any man violating them must be one who
consciously flouts the will of the rabbis.
The second case is in Yevamot 110., in the case of a woman in Narsh,
a city notorious for cime, who was betrothed at a young age, and then
kidnapped right before the actual wedding.** The Talmud rules that the
woman does not need a get from her second husband (the kidnapper)
because, "He acted with her improperly, thus we act with him improperly,
and retroactively anull the marriage." Once again, an argument could be
made that the rabbis are worried about a woman being forced to stay in a
marriage she doesn't want to be in, since presumably she did not want
to be kidnapped, and they were living before the discovery of Stockholm
Syndrome.*** In any event, it seems that a husband's improper actions
are grounds for anullment - as Tosfot points out, even if the marriage
was done without the implied clause of "I'm marrying with the permission
of the rabbis and this marriage lasts only as long as they approve".
Based on the above, it is clear that according to the Talmud, one of
the major sources of Orthodox jurisprudence, if "a man acts
improperly", the rabbis may retroactively annul the marriage, thus
obviating the need for the man to give the women a get. Thus, one could
argue: A man refusing to give his wife a get is acting improperly.
Furthermore, it is acting improperly in such a way that it will force
the woman to stay in a marriage she does not want to be in - the very
type of impropriety mentioned in the two cases above. Thus, this
impropriety is grounds to institute the principle of "He acted with her
improperly, thus we act with him improperly, and retroactively anull the
marriage.", thus annulling the marriage, and allowing the woman in
question to be legally single without her husband giving her a get.
If this is the case, then the problem is not the Orthodox law per
se, rather, the unwillingness of the rabbis to properly implement the
law. The rabbis could make it a policy to anull the marriage of any
couple where the man does not give the woman a get (unless he has a good
reason behind his actions) - they certainly have the legal power to do
so, they simply prefer not to use it.
But if anything, the extent to which the rabbis of the Talmud are
willing to extend rabbinic power beyond the limits of what they are
comfortable with, and to rely on all sorts of leniencies in order to
make the laws of divorce more flexible, in a way favorable to women,
shows the importance they placed on the value of protecting women from
abuse within the halachik system - perhaps because they understood that
such abuses violated the halachik principle of "The Torah's ways are
ways of pleasantness and all her paths are paths of peace." Thus, such
annullments would not only be using legal measures sanctioned by the
Talmud, but they would also be upholding the values implied in those
measures. Which begs the question of why the rabbis don't anull - a
question whose answer depends on socio-historical, not religious,
factors.
The question might then be asked: If the rabbis cared about the
rights of women so much, why didn't they simply say that just as a man
must give his wife a bill of divorce, so too, a wife must give one to
her husband?
The answer lies in the verses themselves: Deutoronomy, 24:1: "When a man taketh a wife, and marrieth her, then it cometh to
pass, if she find no favour in his eyes, because he hath found some
unseemly thing in her, that he writeth her a bill of divorcement, and
giveth it in her hand, and sendeth her out of his house,
2 and she departeth out of his house, and goeth and becometh another man's wife,
3 and the latter husband hateth her, and writeth her a bill of
divorcement, and giveth it in her hand, and sendeth her out of his
house; or if the latter husband die, who took her to be his wife;
4 her former husband, who sent her away, may not take her again
to be his wife, after that she is defiled; for that is abomination
before the LORD; and thou shalt not cause the land to sin, which the
LORD thy God giveth thee for an inheritance."
In the verses
above, it is very clear that it is the man, not the woman, giving the
bill of divorce. It is clear that the wife's divorce depends on the
husband's bill of divorce, but that no such condition applies to the
man, for if it did, the verse would mention it. The rabbis saw
themselves bound by the language of the verse. There is some leeway -
namely, the verse can be interpreted either in accordance with a
standing tradition, even if it violates the apparent meaning of the
text, or in accordance with the traditional exegetical tools (such as
Rabbi Yishmael's 13 measures the Torah is expounded by), but here, there
was no long-standing tradition of male divorce being dependent upon
bills of divorce by women, nor did the rabbis feel the exegetical tools
at their disposal justified such a reading. (It should be noted there
are many midrashey halacha about the above verses that are not directly
related to the topic at hand, but that do show the rabbis clearly felt
comfortable expoudning midrashim about said verses.)
I believe
the answer also stands in the way that the Talmudic rabbis saw the
world, a way which determined how they related to the above verses: They
saw it as one of natural, not positive, law. The role of the rabbis was
to uphold the laws passed down through Moses, the written Torah, and
various oral traditions, or to reveal laws using a variety of exegetical
and legal methods - but they did not have the power to create their own
laws. Even the "chiddush", the new learning, is in fact no more than a
revelation of a pre-existing truth, which the learner is privileged to
reveal. Thus, the midrashic story God first looked into the Torah, and
then created the world: The threads of the Torah and the Jewish legal
system was woven into the world, were part of the natural order since
the first moment of creation. The process of the evolution of Jewish law
is a process of ongoing revelation (albeit a more hidden revelation
ever since the exile and the cessation of prophecy, but the relationship
between revelation, prophecy, and the Jewish legal tradition is way too
big to tack right now), not of ongoing creation.
Thus, the rabbis did not have the right to create a law that would
enable a mutual exchanging of divorce bills. The most they could do was
work within the limits they had to reveal ways in which the laws might
be made more empowering of women. I believe that this model of
revelation holds power for current Jewish legal jurisprudence. If I
assume I am bound by the laws, but that I can look at the corpus of
Jewish texts and the values contained therein, and then try to reveal
ways, within the boundaries of the laws in front of me, to minimize any
seeming conflict between the two, then all of a sudden, I have a
plethora of options available to me. Another example of this method of
jurisprudence is that of the rebellious son: The Talmud could not undo
the law, because it is a Biblical passage******, but it did limit the
definition of rebellious son to something so specific, not to mention
impose ridiculous conditions on the parental testimony necessary for the
execution, in such a way that the chances of anyone being executed
under the law were zero. The Talmud itself claims, "A case (fitting all
our criteria) for a rebellious son, never happened", and goes on to ask
why the Torah bothered listing a law involving a case that will never
take place. Conclusion: To give the Jews the benefit of the Torah study
that comes from exploring that law.
So I hope you've benefited
from reading my post exploring a Torah law - a law that I hope will not
be used very often, because the majority of marriages will be
deliriously happy, life-long unions.
*Since the built-in-clause was the way the rabbis justified their
powers of anullment, Tosfot then goes through legal hoola-hoops to
explain why the rabbis can anull in this case, when there was no such
clause. While those hoola-hoops are not directly relevant to this piece,
their commentary does include the sentence "The rabbis can uproot a
Torah law" - which is admittedly much sexier when taken out of context.
** Best Jastro saying: "If a Narshean kisses you, count your teeth".
*** Yes, kidnap marriages in late antiquity are part of a larger topic. Not going to go there right now.
****
The men in question can legally remarry if they get a hundred rabbis to
make them exempt from the prohibition, but getting a hundred rabbis to
agree on anything is pretty hard. Also, worth mentioning for the record:
A man can not force a woman to divorce - she must consent to the
divorce for it to be valid. A different topic, but I couldn't resist.
***** because of the amount of power it grants the rabbis.
******
Yes, there are times the Talmud or a midrashic source will interpret the
text in a way that is the complete opposite of its simple meaning. But I
believe they only do so a) when the interpretation is in accordance
with a long-standing tradition b) when the traditionally accepted ways
of interpreting verses allow for such an interpretation. Presumably, in
both the case of the man giving his wife a bill of divorce and in the
rebellious son case, neither a nor b applied in such a way that would
allow for claiming the verse was promulgating a mutual-bill-exchance
law, or for claiming the verse was in fact not arguing for executing the
rebellious son.