Thursday, April 19, 2012

Halachic impact of psychological/social reality

In the recent discussion of divorce and whether it is permitted or even desirable to force a man to give a get when the Torah doesn't require it - the question is whether the social and psychological consequences should be considered. In particular if adhering to the Torah laws causes a woman to give up yiddishkeit or to engage in immoral behavior or it increases mamzerim - should we be concerned enough to force the husband to give up on his Torah rights in marriage?

Similarly my recent post about establishing who is the boss in marriage from the Chesed l'Avraham - elicited some strong responses - that this material was not only irrelevant but was highly embarrassing to us modern enlightened folk. In other words it is far from being politically and socially correct. One anonymous commenter even criticized me for publicizing this material since he said it was a chillul haShem [I didn't publish his comment solely because he didn't bother giving himself a name]. I was also asked rhetorically if I would publish the comments of the Pele Yoetz regarding wife beating? In fact I am finishing up the translation of that section and will  soon post it. It is a good example of social reality altering halachic practice. In reality the issue is whether we should be learning from the Torah what to do - and do it without concern for consequences or whether there are specific goals we want to accomplish and therefore we need to modify the halacha - even nullify Torah laws - in order to achieve the metagoals - is a very important issue. In other words does Torah have an agenda - or is simply to observe the mitzvos. A related question is whether there is in fact a Torah true marriage or Torah true chinuch or Torah true mental health or psychotherapy? Or are all these institutions determined by the time and age a person lives in?

[From Daas Torah 2nd edition page 49]
Rav Dov Katz(Pulmos HaMusar page 337): There are two views concerning the purpose of observing mitzvos. 1) It is an end in itself which is to fulfill the will of G‑d. 2) It is a means to educate and develop man to spiritual perfection - which he is obligated to achieve. Many of the opponents of Mussar hold the first view that man’s primary obligation in the world is simply to fulfill G‑d’s will and to keep His commandments. Their focus is to clarify the commandants so that they are done as precisely as possible. They are not concerned with investigating and clarifying the hidden aspects of man. They don’t value being involved in clarification of hashkofa issues. They are not curious about the psychological forces and the depths of the heart. They don’t examine their personality traits and their manifestations. They have no interest in seclusion and mediation. They serve G‑d purely and simply. On the other hand, they are fully aware that the Torah requires spiritual development and personality development. However, they view these as commandments that are no different than the other commandments of the Torah. While some of them accept that they require preparation and others see these commandments as an end in themselves - none of this group require a special program to achieve this personal perfection. Instead they assert that one should be totally devoted to an in depth study of Torah - which is superior to all else - and are very concerned with exacting observance of mitzvos. They are concerned with extra stringencies according to their clarification of the nature of the Halacha and view this approach as the way to achieve personal perfection and the perfection of the world. In contrast to this group, those who require Mussar belong to the second group that the prime focus of man is his obligation for spiritual perfection. This second group asserts that G‑d’s will is not fulfilled simply by keeping His commandments as expressions of G‑d’s authority. They require that the focus be on the commandments as the means to achieve spiritual and personal perfection. The consequence of this perspective is that commandments are seen, as means - not ends in themselves. Therefore, it is not sufficient to simply physically perform the mitzva. They seek means and strategies to involve the inner person, as well as his thoughts and his emotions. They view that the primary impact of the mitzva does not come from a mechanical performance - though they don’t denigrate that is produced by it - but only that which penetrates and influences the inner being.

87 comments:

  1. We are all familiar with the midrash that HKBH originally wanted to create the world only with Emes, then saw it could not exist, and so created it with an admixture of Emes and Shalom.

    IMO this midrash is very underrated. It is not just a cute little proverb showing how nice and peaceful Hashem is, or how frail and weak we humans are that we couldn't stand up to a world of pure Truth. It is a very practical rule-of-thumb guide as to how to behave in this world: it's not only about Truth; it's just as much about Shalom. If Truth is going to cause a violation in Shalom, as it would have been if HKBH had told Avraham Avinu that his wife was laughing at his age and perceived inability to father a child, then Truth can be gently pushed aside, as Hashem Himself showed by altering the truth when reporting Sarah Imeinu's indiscretion to her husband.

    Similarly relating to this discussion. I do not think it is a good idea to come out with the whole, pure and unadulterated Truth, if that is going to cause a p'gam in Shalom.

    I realize what I'm saying can be dangerous, because anyone can come up with any kind of rationalization that some given Emes will violate some interpretation of Shalom, and they will take license from there to any kind of transgression. You have to be intellectually honest and sincere in your Avodas Hashem to make such judgment calls.

    Bottom line: ultimately Emes must always be the main guiding principle, but you have to take Shalom into account, and this is not a trivial consideration.

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  2. If you force the husband to give a get not required by the Torah, it is a get meusa i.e. a non-valjd get. So you simply cant.

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  3. "One anonymous commenter even criticized me for publicizing this material since he said it was a chillul haShem"

    I think he is right.

    By the way: what I have read here about some halachical considerations on marriage and divorce (especially from Rav Elyashiv and Dovid Eidensohn) really disgusted me from jewish matrimonial law.

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    1. And therefore you want the Torah rewritten to suit you?

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  4. The problem is, that the opinions published here protects "navalim be darchei torah" and even navalim who do not go according to darchei torah.

    In my opinion, this is against the spirit of the Torah, because seeking justice is one of the fundamentals.

    But if I am mistaken and what Rav Elyashiv & co say is the true spirit of the torah, than I think it is ethecally reprehensable and I cannot adhere to it.

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    1. Batmelech, you're in luck, because not everyone holds by Rav Elyashiv! I suggest you read articles by Modern Orthodox Rabbis involved in the agunah issue, like Shlomo Riskin and Mark Dratch. I think you will no longer be repulsed by Jewish matrimonial law. This relates to the larger issues Rav Eidensohn is raising, which I will address in another comment on this thread.

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    2. Batmelech you are simply cherry picking quotes and ideas to create Torah in your image. If you don't accept the authority of Torah and the fact that the understanding of Torah through the ages of rabbis - then you simply rejecting Orthodox Judaism. The purpose of this blog is how to know and understand the application of Torah according to the views of rabbis through the generation. You seem to be concerned with showing how that this understanding of Torah is wrong or deserving of contempt - c.v.

      The obvious conclusion is that your comments don't serve any purpose here. If you want to ask questions - I think that is great and I'd like to here them - but setting yourself up as judge over what is legitimate is simply not acceptable and will not get posted here anymore.

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  5. Daat Torah, can you please comment regarding when a man has already deposited a GET, but the wife refuses to pick it up because she doesnt want to subject herself to that Bais Din, does forcing the husband to give another GET still apply or do we say in that situation that all Poskim would agree that the since the husband has already prepared a GET, that he's halachacally compliant and we dont force another GET?

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  6. Ephraim,
    I know of a case like this. The husband deposited a GET with a Beth Din that is not recognized in general, and the Beth Din demanded the power to rule on the woman and in fact make her miserable, so she never showed up. The suffering was intense, and there will be a Din Torah between that man and that woman, in a world where nobody makes mistakes.

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  7. Ephraim,
    A major point in all of this is the situation of a Beth Din today as opposed to yesterday. That is, in early generations, even in the exile, the communities had independent Beth Dins representing each city or subsection of the city. Everyone knew who the authority was, the Rov and the Beth Din, therefore, it had power. If it coerced someone to give a GET, for instance, the man accepted the coercion because it was his rabbis giving the coercion and he wanted to be part of the Torah community. But today, Beth Dins pop up here and there without any communal authority, often because rabbi so and so wants to make a living. This has led to a sad situation where people do not respect the Beth Dins, sometimes for good reasons. Therefore, in our time, when some Beth Dins operate in ways not recognized by Chazal, we have a very serious situation, such as when one of these coerces a husband and the husband does not recognize it as his authority.
    Keep in mind also that the entire situation with Beth Din or a Rov charging money is in variance with the Mishneh in Bechorose: He who takes money to adjudicate negates the adjudication. Of course, there are various answers to this, even in the Talmud, but these answers do no serve the present realities. Of course, the solution would be for the leaders of the community to establish courts, as is done in Hassidic communities, and this saves a lot of trouble.

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    1. Mechila Kvodo, but Rav Moshe Feinstein(in truth the Shulchan Arukh) gave a solution to this problem. The relevant Sh"A is C"M 13. Rav Moshe Feinstein was posek thus:


      שו"ת אגרות משה חושן משפט חלק ב סימן ג

      בענין בעל דין שרוצה דווקא בזבל"א =בזה בורר לו אחד= ולא בב"ד קבוע.

      כ"ה אדר א' תשל"ו. לרב אחד.

      הנה ברור ופשוט שכל בע"ד יכול לומר שרוצה דוקא בזבל"א, וכמפורש בתוס' ורא"ש סנהדרין דף ה' ע"א דהא דמומחה לרבים תניא שדן אפילו יחידי שפירושו אפילו בעל כרחו וכמו כן למדו משם דסתם דיינים שדנין בשלשה הוא נמי שיכולין לדון אפילו בעל כרחם דהוא דוקא כשאינו רוצה לבא לב"ד כלל, אבל כשרוצה לבא לב"ד אבל רוצה בזבל"א =בזה בורר לו אחד= אין יכולין לכופו שילך לב"ד בלא זבל"א אף שהוא מומחה, ומסתבר דהוא אף לפני שלשה מומחין אין יכולין לכופו לדונו בעל כרחו דהא לרש"י מומחה לרבים שדן יחידי הוא למ"ד דא"צ שלשה מקרא דבצדק תשפוט וגם עליו כתבו התוס' שאינו יכול לדון בע"כ אלא כשלא רצה כלל לילך לב"ד אף שלדידיה הוי מומחה אחד כמו שלשה מומחין, ודוחק לומר שבתוס' שמשמע שאף במומחה אינו יכול לכופו אלא כשאינו רוצה לבא כלל לפני ב"ד הוא רק לשיטתייהו שיחיד מומחה שתניא שדן הוא רק מתקנתא דרבנן דלכן לא תיקנו אלא בכה"ג שאין רוצה כלל לילך לב"ד דהי"ל לפרושי זה. וגם הרא"ש הא מפרש הברייתא לתרוייהו למאן דלית ליה עירוב פרשיות הוא מדאורייתא ולמאן דאית ליה עירוב פרשיות הוא מדרבנן ולא הזכיר שיהיה חלוק בינייהו לענין בע"כ אף כשרוצה לילך לב"ד דזבל"א אלמא דליכא חלוק ביניהם לדינא דלתרוייהו הוא מה שמסיק דכשרוצה בזבל"א אין יכולין לכופו וא"כ גם תלתא מומחין אין יכולין לכופו אלא כשאינו רוצה לילך לב"ד כלל. אבל לדינא אינו נוגע זה דבזמננו ליכא דין מומחה שלכן לא שייך לדון כלל בזה כי כן איפסק גם בש"ע /חו"מ/ סימן ג' סעי' א'. ומשמע שליכא בזה חולק. ורק במומחה פליג הטור /חו"מ/ בסימן י"ג שהוא נגד אביו הרא"ש וכמעט כל הראשונים ועיי"ש בב"ח וצ"ע אבל בזמננו שליכא מומחה לכו"ע יכול לומר שרוצה לפני ב"ד דזבל"א.

      והא דכתב הרמ"א דאם דיינים קבועים בעיר לא יכול לומר לא אדון לפניהם אלא בזה בורר היה זה רק בעיירות שבמדינותינו שהיו מתמנים מהעיר שאף הרב האב"ד לבדו נמי היה יכול לכופו מאחר שקבלוהו אבל בנוא יארק ליכא דיינים קבועים שנתמנו מהעיר ובפרט שאיכא עוד אגודות וחבורות של רבנים שליכא אף מינוי מכל הרבנים שבעיר ולכן כשרוצה אחד מהן בזבל"א מוכרחין לילך בזבל"א דוקא.

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  8. DT: " should we be concerned enough to force the husband to give up on his Torah rights in marriage?"

    No. Because if you force him against the Torah to issue her a divorce, it is a get meusa (invalid get), and she remains married to him anyways. And if she remarries with that, it is adultery and results in halachic bastards being born to her.

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    1. you need to read the multiple postings that I have made on this. Not all force makes it a get me'usa. As is seen in Rav Eliashiv's posting a husband does not need to give his wife a divorce just because she doesn't like him. However there other other considerations such as the fear of her leaving yiddishkeit which impel some rabbis to insist and to pressure husbands if they don't give a get. There are clearly two views - see the post regarding Rabbeinu Yonah versus Rabbeinu Tam and the commments of Rav Ovadiah Yosef

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  9. Does the Torah notice social or psychological matters? The Torah does, as Chazal tell us, "The Torah was concerned about the loss of money someone has." There is something called "In the situation where there is pain the rabbis sometimes did not issue decrees." But the important thing to keep in mind here is that the Torah is perfect and the Torah contains within it the ability and will to recognize pain and exceptions. But, and here is the key, the exceptions may only proceed from the Torah and the Oral Law rabbis themselves. When we have rabbis issuing inventions that create mamzerim because of social or psychological issues, we have not Torah but the opposite.

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    1. "When we have rabbis issuing inventions that create mamzerim"

      I wholeheartedly agree. This whole inyan that the get was not voluntary enough IS an invention creating mamzerim.

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    2. kroll, please look up the rambam gerushin 1:1 and 1:2, and then let us know what you consider an invention.

      Also, please define the oxymoron ”voluntary enough”

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    3. Binyamin,

      Funny that you quote the Rambam because he was for forcing a Get in Maos Ali.

      I really don't think the was suggesting that we do something that he knew would create mamzerim.

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    4. Just for some perspective Halakhot Ishut 14:8
      האשה שמנעה בעלה מתשמיש המטה היא נקראת מורדת ושואלין אותה מפני מה מרדה, אם אמרה מאסתיהו ואיני יכולה להבעל לו מדעתי כופין אותו לשעתו לגרשה לפי שאינה כשבויה שתבעל לשנוי לה ותצא בלא כתובה כלל} עכ"ל. מקור הלכה זו בכתובות דף ס"ג ע"ב אבל אמרה מאיס עלי לא כייפינן לה, ופי' הרמב"ם כדעת הי"מ שהביאו שם בתו' ד"ה אבל דמה דאמרו בגמרא לא כייפינן לה היינו דכופין אותו להוציא עיי"ש, ובתו' שם כתבו ואין נראה לר"ת דניחוש שמא עיניה נתנה באחר, כי ההיא דתנן בפ' בתרא דנדרים גבי שלש נשים יוצאות ונוטלות כתובה, ותרצו ויש לדחות דהתם נוטלות כתובה דוקא איכא למיחש שמא עיניה נתנה באחר אבל הכא דיוצאה בלא כתובה לא עיי"ש, וצ"ל דכן הוא דעת הרמב"ם דיש חילוק אם נוטלות כתובה או לא, אולם בשעה"מ בפ"ט מה' אישות הט"ו תמה מהא דכתב הרמב"ם בפכ"ד מה' אישות הי"ח וז"ל אמרה לו אשתו שזינתה תחתיו ברצונה אין משגיחין לדבריה שמא עיניה נתנה באחר, אבל אבדה כתובתה עיקר ותוספת ואבדה הבלאות שהרי הודת בזנות עיי"ש, הרי מבואר בדעת הרמב"ם דאפילו באשת ישראל דאין לה כתובה ואפי"ה חיישינן שמא עיניה נתנה באחר, וא"כ צ"ע איך פסק הרמב"ם דבאומרת מאיס עלי כופין להוציא ניחוש שמא עיניה נתנה באחר וצ"ע, וגם בעיקר סברת הי"מ דדוקא בנוטלות כתובה חיישינן שמא עיניה נתנה באחר, למד הרא"ש בכתובות פ"ה סי' ל"ג דהטעם הוא דלא חיישינן שתאבד כתובתה כדי ליתן עיניה באחר, וע"ז תמה הרא"ש וז"ל ולאו דיחויא הוא דאם נתנה עיניה באחר אינה חוששת על מנה ומאתיים שלו כי תתן עיניה בבעל ממון עיי"ש, ובק"נ שם הביא בשם הרא"ה שתמה דאי נימא דחוששת על מנה ומאתים, א"כ במשנה אחרונה לימרו דתהא יוצאת בלא כתובה ובהכי סגי לן ולמה התירוה בדבר שעשתה לעצמה חתיכא דאיסורא עיי"ש וצ"ע.

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  10. "In fact I am finishing up the translation of that section and will soon post it. It is a good example of social reality altering halachic practice. In reality the issue is whether we should be learning from the Torah what to do - and do it without concern for consequences or whether there are specific goals we want to accomplish and therefore we need to modify the halacha - even nullify Torah laws - in order to achieve the metagoals - is a very important issue."

    These are very interesting and far reaching comments.

    Some great Modern Orthodox figures developed halachic systems along these lines, but were shunned by Right wing haredi, and even right wing MO for doing so. I am thinking particularly of R' Rackman ztl, R Eeliezer bervits Ztl, and R walter Wurburger ztl. R' Wurburger actually used a simialr term - metahalachic goals. Rackman essentially said the same, in his Teleological halacha.

    I met R' Rackman a couple of times in the 90s, and he said that these views would be more acceptable if a Rav with beard would say them. It seems he was correct.

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    1. R' Eddie,
      R' D Shatz has a chapter on R'WW in Jewish Thought in Dialog. imho every rav does the meta thing-it's only a question of how much and how self aware.
      KT
      Joel RIch

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    2. R' Joel,

      thank you very much.

      In essence, a Rav and a beth Din have to apply Halacha with fear of Hashem, and to do Tzedek.

      I am not authorised ot say what is best halachic practice, but in previous generations, Gedolim found solutions to problems, which today are not so easy to come by.

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  11. "to force the husband to give up on his Torah rights in marriage?"

    What are a husband's Torah rights in marriage?

    I am only aware of obligations (Feed her, clothe her, provide for the children, etc)

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    1. did you ever ask yourself why a man would marry, if he had only obligations and no rights?

      You seem to think that it is fair for women to have all rights and no obligations - and you still think that traditional marriage is unfair to women.

      There is something very wrong with how you look at marriage, and how you look at social roles.

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    2. I understand that marriage means, before the age of paternity tests, that a man will take on responsibility for the children he fathers.

      Before having sexual intercourse, he declares "I will have intercourse with this woman" and she promises that she won't with anybody else, so her children will be his and he will have to take responsibility for them.

      This is the deeper meaning of marriage to me.

      Unfortunately, men love to take advantage and avoiding their responsibilities, and until the invention of paternity tests, they got off the hook quite easily.

      So I aknoledge that sexual intercourse should occur at least once to make a marriage valid. But I do not agree that because the wife agreed once to have sexual intercourse with her husband, she has to do so ever after.

      I am quite astonished that you do not take as a given that sexual intercourse can only occur when both sides want it and that you consider it a possibility that your wife should have intercourse with you against her will.

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    3. So back in the olden days men were able to avoid taking responsibility for children that they had no way of knowing if they were theirs? Must have been hard to be a responsible woman back then, knowing you had responsibility for what you did.

      When you say that part of marriage is that the children will be his, does that mean you support paternal custody? Because that's what we should have if the children are his.

      What you really want is that the children are yours, but the responsibility is his. The children are biologically his, but legally yours.

      So marriage means one time sex in exchange for supporting some princesses' kids for 18 years (which might not be yours, and even if they are, she is raising them, not you), plus a host of other commitments. Sorry, princess, no takers here.

      (yes, there are other nice things about marriage, but they are only dependent on her goodwill, so don't give her any binding commitments in exchange for them....)

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    4. The prerequiste for sex is consense. Do we agree so far? So if sex is enjoyable for both sides, I suppose there will be consense to have sex. However, it there is no enjoyment, for some reason or another, there is no reason to engage in it. It is an important part of personality rights that sex cannot be forced. I am thankfull to Rabbi Michael Tzadok for stating unequivocally that this is a basic tenet of judaism (as well as western society).

      Even if Sex is an obligation of the husband towards his wife, he cannot be forced to have sex with her. Rather, if he neglects his duty, he will have to pay a fine.

      On the other had, the duties of wives towards husbands, according to the jewish religion, include fidelity (no sex with anyone but husband) and 7 domestic chores, most of which are not relevant today (like spinning and weaving).

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  12. Rav Daniel Eidensohn: You raised some wonderful questions. I think it's clear that Torah *does* have an agenda. The root of the Torah is to love one another as onesself (Rav Akiva) or not to do to others what you wouldn't like to be done to yourself (Rav Hillel). The Torah's ways are pleasantness and its paths are peace. G-d does not rule over his creatures with tyranny. Etc, etc. We should clearly be interpreting and applying Jewish law with these goals in mind, although without abrogating laws or changing them using methodology unprecedented in the history of halachic decision-making (as the Conservative movement has done, for example.) I glanced briefly in a bookstore of a recent book by the prolific and very ethics-focused Modern Orthodox Rabbi Joseph Telushkin about Rabbi Hillel, which makes a similar point point.

    When rabbis apply Jewish law without regarding to the harsh consequences its (thoughtless? robotic?) application creates, this is arguably a chillul Hashem, which distances people from the Torah and makes the Torah seem unethical, Heaven forbid. Yet we are supposed to love peace and pursue peace, loving all creatures and bring them closer to the Torah (Pirkei Avot). I find it quite remarkable that someone can write a ruling on the agunah issue that completely ignores the obvious fact that refusing a woman a get when there is no chance of reconciliation is cruel and will create a lot of needless suffering. It is hard to have any respect for a rabbi who would ignore that fact and not try to do anything about it. The fact is completely obvious. Halacha should not be like a set of blinders or shackles that keeps us from considering obvious injustices and ethical dilemmas, and responding to them with vigor.

    Social and psychological realities -- such as whether people are going to go off the derech -- are also a reasonable consideration in making halachic rulings.

    Social circumstances, and even the inner psychological make-up of people, change over time. I think one of the great mussar Rabbis from the 19th century wrote that although corporal punishment was useful in antiquity, today it only makes children rebel and thus should not be used. A core of human nature remains the same, but the zeitgeist changes people's personalities. It is not a matter of foreign ideological influences that should be rejected, because there have always been such influences and we can't say in the past people had customs which did not have any such influences. On the topic of gender relations, in the times of the Tanakh there were women leaders (Devorah) and Prophets (Matriarchs, Chulda, etc.), yet since then there have been very few great recognized women leaders in Torah. Perhaps this is a product of foreign influence and not how things are supposed to be? Perhaps the modern increase in opportunities for women's Torah study and leadership positions is in fact a return to the original Torah-true gender relations of the Tanakh era?

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  13. Whether a given model of therapy works is an empirical question and, to a certain extent, can be scientifically measured. A mode of therapy that is effective can be "Torah-true" along as it is interpreted and applied in ways consistent with the Torah. However, it is possible that secular methods are not as effective as purely religious forms of counseling (as chassidic therapist Zev Ballen seems to argue) or that secular methods would be most effective if combined with religious ideas.

    A considerable amount of sociological and psychological research has demonstrated that religious belief has profound positive effects on people's psychological well-being. Some of the findings are quite remarkable. One study, for example, found that those told to meditate with a simple phrase about G-d (like G-d is love) could (immediately after meditation) hold their arm in a bucket of ice water for twice as long as those told to meditate on a secular phrase (like I am love). One argument could be that the task of the Torah-true therapist is to integrate Torah knowledge (the importance of emuna, bitachon, hitbodedut, devekut, simcha, kindness) with the secular methods available, and try to determine experimentally what is most effective.

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  14. batmelech (today) "if I am mistaken and what Rav Elyashiv & co say is the true spirit of the torah, than I think it is ethecally reprehensable and I cannot adhere to it."
    (this thread)

    batmelech (yesterday) "If Giurim, marriages, gittin, etc can be revoked any time, legal certainty is gone, and the whole "Din torah" system becomes a mascarade." (http://daattorah.blogspot.com/2012/04/otzer-haposkimkuntres-maus-alei-forced.html?showComment=1334756650235#c978844159299685489)

    so batmelech wants certainty in marriage which cannot be revoked at any time, but she would not be Jewish if R' Elyashiv is correct, and a husband cannot be forced to give a get.
    Batmelech, it seems that what you really want is that the legal system should be a masquerade. You want courts to violate the halacha so that it fits better with your preconceived notions, and then you want to force that to be recognized by others, using the legal process as a cover for the non-legal outcome you desire.

    I will offer to respond to your problem. You say that if withholding a get is the spirit of Judaism, it is morally reprehensible.
    I have already suggested earlier that it is morally desirable since it protects the social stability provided by marriage. Making divorce expensive is morally correct, while easy and profitable divorces are reprehensible.

    So I need to ask you, can you explain why it is reprehensible to not give a divorce on demand? Can you explain why a free divorce is a moral value?

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    1. The pro-agunah camp is not arguing for free divorce on demand. They are not saying that a woman should be able to say "I divorce you, I divorce you, I divorce you" and the man has to give a get at that moment no matter what. What they are saying is that once there is no chance of reconciliation and the marriage is definitely over as a real relationship, then the man must give the get and if he doesn't he needs to be pressured (or according to some, like the Rabbanut or Rambam, forced). A man can withhold a get for at least a short while in order to try to repair the relationship -- no one's saying he can't do that.

      What is reprehensible is not the failure to give a free divorce on demand. What is reprehensible is not giving a get for no good reason -- just because he wants to prevent her from remarrying, torment her, get a large monetary sum from her (which commonly happens, despite the opposite intention of the ketubah), or "just because he can." It is reprehensible because it is causing suffering for no good reason, which is the very definition of cruelty. See a few posts back for Rav Moshe Sternbuch's brief explanation of why this is immoral.

      It withholding a get to negotiate for greater custody/visitation rights reprehensible? Perhaps it depends upon the situation. Perhaps it is always unethical to use it as a bargaining chip in monetary/child-related negotiations. I'm not sure.

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    2. I will only give a very partial response here since this is not the main topic of this thread.
      Most if not all aguna organizations will give a woman legal help immediately, which seems to be supporting divorce on demand. They also explicitly consider requests for shalom bayis to be objectionable and abusive. If you look at how they define aguna - you might be able to find some of their responses to the revalation that there are 200 agunas in Israel and not thousands - you will see they define an aguna as somewhere begween someone who has asked for divorce and it is not yet finalized, to someone who feels like an aguna.

      They do prefer to make it sound like they are only supporting women in dead marriages, but that is a blatant lie for public consumption.

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    3. I think for social stability it would be important that rabbinical acts like Giur, marriage, get cannot be delegitimised after they took place.

      For example, it seems strange to me that a get should be declared invalid retroactively when the ex-wife seeks alimony in court.

      But unlike the catholic religion, judaism has a concept of dissolving marriage vows, aka divorce/get, so why should it not be used?

      The catholics do not recognise divorce. It came from a good intention (protecting women) but led to many undesirable effects, like:

      - ample adultery over history
      - dead whishes/threats/killing attempts from desperate spouses
      - complete loss of credibility in our day and age.

      Now if you were to adapt this to judaism, the results would not be that different. If the husband can unilaterally withhold the get, either the unhappy wife will pray for his rapid dismise (since this is the only way of freeing her), or she will just move on with her life and ignore the fact that she has no get.

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  15. I haven't read all the comments here, but there's an interesting new article in Ha'mayaan showing how R Kook (the great lover of humanity) was also a rigid halachist, and actually came under fire for not being 'flexible' enough.

    http://www.shaalvim.co.il/uploads/files/12-C-3%2069-82.pdf

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  16. >In reality the issue is whether we should be learning from the Torah what to do - and do it without concern for consequences or whether there are specific goals we want to accomplish and therefore we need to modify the halacha - even nullify Torah laws - in order to achieve the metagoals - is a very important issue. <
    Nu, so where in the Torah is wife-beating (or anything remotely similar) mentioned?

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    1. Dovy,
      Rabbi Yehuda HaChosid says that one who torments an animal is punished by working like an animal in the Future World. This applies to one who uses his strength and power to afflict humans or even animals. (Reb Yehuda HaChosid 169) One who whips a horse badly is punished in the Future World (ibid. 44) See 666 One receives heavenly mercy only by being merciful. One who causes pain to another even an animal is punished. ibid 668 "One must appreciate his animal and not hurt it, surely humans and surely his wife."

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  17. more relevant to the current discussion, let's look at it like this. The torah clearly gives the man the ability to withhold a get for any reason, as long as he is not the one who violated the marriage.
    Modern sensibilities are offended at this idea, and today people feel that once either side wants to leave a settlement should be imposed on them by an external body and the separation should likewise be authorized by the society, even without the approval or goodwill of both sides. (forcing/pressuring a man to give a get simply means that the court decided on the divorce and the man's giving the get is merely a formality.)

    we can now look at this a few ways. Those who support interpreting halacha through modern sensibilities will say we should, as much as possible within halachic constraints, apply the modern approach. They see the halacha as a formality, and as independant of psychological and social reality. They do not see this approach as a slight to the halacha, since in their view the halacha is only meant as a formal framework and not as reflection of human and social nature.

    The second approach is to elevate the formality of the halacha above all. The halacha is seen as primary over all other considerations. Morever, the halacha is seen as defining social reality, so if this is what it says, the only moral way is to act accordingly. They do not even feel any need to address the modern sensibilities since they are so clearly wrong.

    I would say the first approach is the modern orthodox approach, and the second is the chareidi approach. The noteworthy detail is that both assign a purely formal value to the halacha.

    Halacha - Torah - is instructive, not formal. Both approaches above are wrong, since niether takes instruction from the Torah about the human condition. The proper response is to ask why the Torah gives a man this right, why modern man thinks his approach is ideal, and why they are wrong. The formality of the Torah instructs us on the social reality. We can only claim to understand the Torah and to appreciate social interaction when we can make sense of both of them, together.

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    1. Binyamin: Interesting analysis. But is it really true that "the Torah" gives a man to withhold the get for any reasons? Rambam and several other major rishonim dispute this and say he should be forced, or in the least he is sinning by not giving the get (see Rav Sternbuch's teshuvah posted on this blog for a few of the rishonim and others who support this point of view). The "he is not forced" view more or less prevailed in the Shulchan Aruch. However, while the Shulchan Aruch has a special status, is it always the final word on everything, or synonymous with "the Torah?" I don't think so.

      Alternatively, if the man does in fact have a right to withhold the get permanently, perhaps this is "instructional" because it gives the man an opportunity to relieve someone of her suffering voluntarily, transcending any tendencies toward spite and cruelty that he may have within his personality. After all, to paraphrase the Gemara, "Just as Hashem is gracious and merciful, may you be gracious and merciful, bestowing free gifts to all." Also, note that we read two passages from the Gemara each morning about the importance of gemilut chasadim, noting that is has no fixed measure and it has rewards in this world but principally in the world to come. This should tell us to do as many acts of kindness as we can, and do one whenever we have the opportunity, because it benefits us in this world but even more so in the next. Freeing someone (an agunah) although it is not required is surely an act of kindness, just as it would be an act of kindness to free a wild animal entangled in a branch.

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    2. Modern sensibilities are offended at this idea, and today people feel that once either side wants to leave a settlement should be imposed on them by an external body and the separation should likewise be authorized by the society, even without the approval or goodwill of both sides... Those who support interpreting halacha through modern sensibilities will say we should, as much as possible within halachic constraints, apply the modern approach.

      What exactly do you consider mondern? Rabbeinu Yonah and the Rambam? Because they saw it that way. Haim Palaggi? There is a constant chain of Rabbanim who felt this way, it can hardly be marked down to modern sensibilities.

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    3. "The torah clearly gives the man the ability to withhold a get for any reason, as long as he is not the one who violated the marriage."

      The responsum by Rav Elyashiv says exately the contrary: if she violates the marriage by committing adultery, she is forbidden to her husband and he is forced by the rabbinate to give a get (even with makkot).

      Therefore, dear agunot, this is your solution: as long as you stay faithfull, he can withhold the get. But as soon as you have relationships with another men, rabbis will force him to give it.

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    4. Actually when a woman has committed adultery she has destroyed the marriage. So your advice to destroy marriages and do spiritual suicide is rather strange and warped. As I told you before we are concerned here with working within the halachic system. If you want to advise people to sin and/or leave yiddishkeit - it has not place here

      In general the modification on the laws of putting pressure on the husband have come from either women giving up Yiddishkeit or committing adultery.

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    5. I want to point out the warped logic of halachic responsa when they do not consider "lifney iver al tassim michshol" i.e. R. Elyashiv vs. Rabbi Jonah.

      Honestly, I am not really in favour of coercive methods of any kind, and to some extend I understand that R. Elyashiv wants to be carefull not to abuse them.

      On the other hand, I think that the combination of the man being able to withhold the get unilaterally and the woman not being able to remarry in this case is problematic.

      If it were the contrary, the problem would be less acute: since a man, theoretically, is allowed to have several wives or a wife and a concubine, it would be more logic that the power of withholding a get lies with the woman: If she wants to stay married (with the material benefits and obligations that come with it), she could, even if the husband wants to move on to a different wife (which he can still do, as long as he can provide for both). If she is ready to renounce material benefits she gets from marriage, she could divorce any time she wants, thus liberating her to seek another marriage.

      What I find even more problematic is that the get is often used as a means of extortion, and that the batey din play along, for obvious reasons.

      Since the paramount condition is that the husband has to be happy to give the get, he can demand anything he wants (large sums of money, loans, exemption from child support, etc). The Beit Din won't object.

      Seeing this from the outside looks like a serious miscarriage of justice. Therefore, this kind of abuse becoming more and more common constitutes a major Chillul hashem, since Batey Din are seen promoting injustice.

      Therefore, a solution must be found.

      By being so picky about what constitutes a coerced get, people like Dovid Eidensohn block more or less all available solutions.

      Of course, I am entirely on his side about mutual respect and reciprocity, I command him for finding peacefull solutions even in complicated cases. However, the disbalance of power is so strong against the woman, that she will likely agree to any kind of extortion, just to obtain the get.

      And the paradox: her only solution to escape extortion is to renounce the get - either by renouncing sexual relationships for the rest of her husband's life, or by killing him, or by moving on without a get.

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    6. Why would a woman willing to have extra-marital relations want a get?

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    7. See? That's the paradox inherent in the system:

      If she does not care, the beit din will look to it that she gets her get.

      If she does care, the beith din will do nothing.

      ERgo: Those who are good are punished for being good.

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  18. "monetary/child-related negotiations"
    See, I don't think money and child are issues that are similar enough to be grouped like that. If an agunah (that I was never married to) had stolen my money and I had her get in my hand (I was a shliach of the husband who is in some prison in Afghanistan), I'd probably give her the get. But there's no way I'd give it to her if she stole my child.

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  19. "did you ever ask yourself why a man would marry, if he had only obligations and no rights?"

    Binyamin- People don't get married with the intent of getting divorced later on. (If they knew it was going to end with maus alei/moredes/get me'usa do you think they'd tie the knot in the first place?) In a happy marriage (and I am NOT married, but have siblings that are,) there are shared resposbilities that are understood and no one needs any of these Teshuvos- not from Maran Harav Elyashiv, not from Maran Harav Yosef and hopefully not from the Pele Yo'etz- to tell them what to do. Divorce is by defintion a less than ideal situation and gives rise to difficult questions that don't neccesarily have easy clear answers.

    Bat Melech- You really do think you're a princess, don't you? Are you married? What does your lesser half think about his obligations only role?

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  20. Yeshaya - the Rambam was a daas yachid even among the rishonim, which is why the Shulchan Aruch does not pasken like him. More importantly, the Rambam only says we force him to give a get when she is not asking for anything else and she wants to leave it all behind - "not him, and nothing that belongs to him".

    So let me rephrase what I was saying like this: what is it about the institution of marriage that says the wife cannot leave while still getting any benefit from having been married. What is it about marriage that says the husband cannot leave without paying a ketuba, and whatever the reason is, why does the wife not pay a ketuba when she is the one who wants a divorce?

    The formal rules of marriage and divorce should tell us something about the nature of men, women, and what is between them. We should be able to present an understanding of human nature where the laws make sense according to the straightforward reading of the halacha.

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  21. Shaul - it would be easy to try to dismiss your argument by saying no one buys a car planning on being in a crash, but we still get insurance. This is correct, but does not really explain the issue.

    I asked why a man would marry if he has only obligations and no rights, and you answered that even though rights are not guaranteed, he is expecting the various benefits of marriage and is not planning on divorce. So look at it this way - why would someone enter a relationship where they are legally bound to the other side with very heavy committments, while what they might get depends entirely on the goodwill of the other side. We often hear how men today do not want to commit, while ignoring the fact that marriage involves no committment from the women.
    We have goodwill relationships with our freinds, and legal relationships with our business partners. Both make sense since they are mutual - our freind can walk away from us, and we can walk away from them. We cannot walk away from our partners, but they cannot walk away from us, either.

    Marriage 2.0 which is found in all Western countries, and which many people are either claiming to be halacha or trying to integrate into halacha, is not mutual. One side accepts heavy legal obligations, but gets only goodwill in return. Saying that no one expects to get divorced cannot justify binding yourself to such an imbalanced partnership.

    There is a more important issue which your comment raises. You say that marriage is built on the mutual goodwill of the couple. This romantic ideal is very popular. We are all taught to look at marriage this way, and almost all marriage counseling sells this idea. But there is one fundamental problem with it - what happens when the other side does not play along? How can you build a relationship which requires you to assume the other side will invest in your happiness even when they do not?

    While a mutual partnership is ideal, and is a real possibility, can it be assumed? Can we really get married knowing that the success of the marriage does not depend on us, but on the goodwill of the otherside - and knowing that many people will not show the goodwill expected of them?

    Socialism assumes the goodwill of all parties involved, and that is why it fails. Applying socialism to marriage will also fail, since it allows one side to not honor the expectations, and then it does not penalize them, since the failure of the relationship is assumed to be mutual.

    Marriage must have an additional layer - a legal committment on both sides - which serves as the foundation for the expectation of mutual goodwill. If there is no committment on one side it does not make sense to risk everything on the elective cooperation of the other side.

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    1. It is an interesting argument, but can you back it up with any halakhic sources? Since there are Rabbis going back over a thousand years that say we demand/force/coerce a husband, within some halakhic contraints to give a Get when the marriage is irreperable and the wife wants out. Can you provide sources saying otherwise? You can claim that the Rambam was a Daat Yachid, but clearly he wasn't Rabbeinu Yonah ruled that we forc a husband.

      Second question, since you seem to like hypotheticals, and since you seem to think all men are Tzadikim while all women are conniving wenches simply seeking there own comforts, here is a a case with which I am familiar.
      A woman shows up to B"D with 8 broken ribs and an arm broken in two places. Her husband beat her a metal bar. At first the husband, and his Rosh Yeshiva try to deny the violence, but she produces three kosher witnesses, all neighbors of theirs who came to her screams thinking she was being attacked by a muslim. She also produces medical records of prior abuse, and correspondence between her and the Rosh Yeshiva, in which the Rosh Yeshiva told her the beatings she recieved were her fault, and she needed to consider what she did to provoke him to such extreme actions.
      Furthermore she is not his first wife, nor his second, she is the third. The previous two also divorced him over the issue of marital abuse. She was unfortunate to get into this marriage, and really only did because she went through a conversion program run by the afore mentioned Rosh Yeshiva, who also made the shidduch and assured her(again she had correspondence to prove this) that man in question was tzadik and any claims otherwise were simply motzei shem ra by his previous wife(she wasn't informed of the first) who was a bitter woman.
      So she is claming Maos Ali. She has no children and wants no support, she simply wants to be able to move on with her life and marry someone who will hopefully treat her with the barest human dignity. Should her husband be forced to give her a Get?
      What if the husband is an adulterer? What if he is a beatnick that refuses to get a job and will not support his family? What if the husband is emotionally abusive?
      Is there a point where you think that the husband would have violated his obligations in marriage to the point where he is required to give his wife a Get, even though she would still be in the category of a woman claiming Maos Ali?

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    2. רבינו ירוחם מתיר לכוף במאוס עלי בספר מישרים נתיב כג' חלק ח' וז"ל וכתב מורי ה"ר אברהם בן אשמעאל כי נראה לו שאשה שאמרה לא בעינא ליה ליתן לי גט וכתובה והוא אומר אנא נמי לא בעינא לך אבל איני רוצה ליתן גט מסתברא דאין דנין אותה במורדת להפסידה כלום מעיקר כתובה ונדוינא אלא מיהו משהינן לה תריסר ירחי אגיטא דילמא הדרי בהו לאחר שנה כופין אותון לגרש והפסידה תוספת וכל מאי דיהיב לה מדיליה כו' עכ"ל

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  22. "while what they might get depends entirely on the goodwill of the other side."

    Here is a jewish man (I suppose) who has not understood that sexual relations ALWAYS have to be consensual. If they are not, it is called RAPE.

    If the husband is not satisfied with the benefits he obtains from his marriage, he always has the possibility of divorce. No-one is contesting that.

    By the way, sex is not the only benefit of marriage (something our man Binyamin apparently fails to understand).

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  23. Flinch throws out the "you can always get a divorce" line without acknowledging what is involved in a divorce. Yes, a man can always get a divorce if he does not mind losing his kids, child support and alimony.

    Flinch clearly thinks marriage should not involve children, otherwise the "you can always get a divorce" argument is incredibly obtuse. This makes sense, since Flinch also thinks that marriage is not a sexual commitment. Modern marriage is not a long-term commitment, not a sexual relationship, and not a reproductive institution.

    Flinch has reinforced my question, by clearly rejecting sex, children, and commitment as elements of marriage.

    So what is marriage, and why should a man sign up for it?

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    1. Binyamin,

      Are you being intentionally obtuse or do you honestly have some sort of learning disorder?

      Flinch states a few things about sex:
      1) It is not the ONLY benefit of marriage. Considering that you take issue with this, even after the blog owner has posted a sefer dealing with all of the benefits of marriage actually baffles the mind. However, just in case you missed it, http://daattorah.blogspot.com/2012/04/was-downloaded-from-hebrew-books-see.html

      2) Sexual relations always have to be consensual. That is pshat halakha(again see above sefer). That you are arguing this is actually quite absurd.

      Now as to a man being able to leave the marriage whenever he wants, yes that is his right, as codified in the Gemarra(it is the position of Beit Hillel in case you didn't realize). Now you have made some claims about that:
      1)if he does not mind losing his kids Not so see the Teshuva(its even in English in case Hebrew is a problem for you) of Rav Shternbuch on this.
      2) child support This is a somewhat valid point. Whether his children are with him or not, he is chayev to support them from the Torah. However, that support cannot exceed the limits set by Torah(again see several of the Teshuvot of Rav Shternbuch that have been brought).
      3) Alimony Absolutely false. If the wife sues for Alimony(assuming he has given her a get) her Get is posul. See the Teshuva on this, again that the blog owner brought, http://daattorah.blogspot.com/2012/04/minchas-yitzchok-going-to-court.html

      The primary reason that a man has to sign up for marriage as is brought in the Shulhan Arukh Even HaEzer 1:1
      It is the obligation of each and every man to marry a woman in order to “Be fruitful and multiply.” Anyone who does not involve himself in [the Mitzvah] of “piryah v’rivyah” – fathering children – is considered as if he sheds blood, and he diminishes the Divine Image, and he causes the Divine Presence to depart from Israel. Rama: And anyone who does not have a wife remains without blessing, without Torah etc. and is not called a man. And once he takes a wife in marriage his sins are uprooted, as is written: “Whoever finds
      a wife finds a good thing, and obtains favor from Hashem.” (Mishlei 18, 22) (Tur)

      Then again seif 3
      It is a Mitzvah for every man to marry a woman at the age of 18, and one who married earlier fulfills the Mitzvah in its choicest manner. However, before the age of 13 one should not get married as this is considered immoral [z’nus]. In any
      event, one should not go past 20 years of age without a wife. And one for whom 20 years passed and he does not want to get married, the Beis Din forces him to marry in order to fulfill the Mitzvah of piryah v’rivya.


      So it is the same question with Tefillin, or buying an overpriced fruit at Sukkot ect. Why do it? Because it is a mitzvah d'orraitta, and even if it is unappealing to you, it is your obligation.

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  24. Child support is a fairly late institution, not a dioraissa. (Unrelated, I would say that child support as understood today is based on serious misunderstandings of the sources. You do not have to start quoting contemporary poskim - I know that what you wrote is fully accepted today.)

    Your response to my response to Flinch shows that you did not follow the conversation. You do not add anything new there, and do not respond to my argument.

    Your final point, however, is interesting. I have been asking why a man would possibly agree to marry, and you answer it is only because he is required to. In other words, you acknowledge that marriage is a raw deal for men, and that what you understand as the Jewish approach to marriage is not a viable institution without the force of religious authority requiring people to participate.

    You say that marriage is a 'chok' - a torah-instructed behavior which cannot be explained.

    This brings us back to the topic of this thread - if marriage is a chok, it cannot possibly be affected by changes in our understanding of psychology and sociology, since it is unrelated to those fields, just as we would not stop keeping kosher because of social changes.

    I presented earlier three approaches to the intersection of halachic formalism and sociological understanding. You are know saying that the two are completely unrelated, since we only participate in marriage because we are religiously required to do so. I know that you will not support the conclusion I draw from your words, but the only possible conclusion is that we should support full formalism without any regard for the social implications, since marriage is anyway not justifiable as a social institution, and only as a religious behavior.

    If you do not believe this - and from what you wrote all along I am sure you do not - then the question comes back: as a social institution, how can men be expected to participate in marriage, without the force of religious law?

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    1. you have been raising a very solid question - which is related the question of why rabbonim would annul a marriage or would force a man to give a get when and only when their is a danger of women going off the derech and/or producing mamzerim. The Torah gives very little leeway or freedom to the wife while the rabbinic insitutions including kesuba, Geonim, rabbeinu Gershom etc are undermining the Torah position to create equality.

      It is also interesting that there is a dispute between the Yerushalmi and Bavli whether a moredes is her refusal to do work or is only in sexual matters.

      Related to is the issue of pilegesh or the idea that a man should have a wife - even if it means marrying and divorcing everytime he moves to a different city.

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    2. Daas Torah,

      These are very interesting comments. R' Rackman wrote an essay called the Dialectic of Halacha, and it addressed issues like the ones you mention. It is perhaps his best ever work. One of the points he raises is that there was a view amongst Chazal, that child (perhaps a foundling) could not be mamzer, since a mother would rather see the child die than to allow it to be a mamzer! So the Halacha enforces certain goals, by its own presumptions. Now, practical halacha that is accepted by Rov (majority) of Gedolim, that is a much bigger step!

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    3. Rackman is a very problematic figure. Ironically in his book while praising the courage of Rav Moshe Feinstein regarding kiddushei ta'os - noted that such a position threatened the sanctity of marriage. But it was through his own actions years later than the sanctity of marriage was threatened by his beis din handing out marriage annulments wholesale.

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    4. Binyamin,

      Likewise you didn't respond to my questions above. However, to actually respond to your argument about needing a legal layer guaranteeing that obligations are met, beyond good will.

      Yes absolutely. However, it is not, as you would seem to argue a one way street. As the sefer which the blog owner put up demonstrates, men have certain obligations to their wives and wives have certain obligations to their husbands. However, for any of that to be enforceable there also needs to be legal recourse.

      By denying women that right, by denying them an exit from a marriage in which a husband frankly refuses to meet his own obligations, you would have to ask, why would a woman, who has no Torah obligation to marriage, marry?

      The Torah invests the man with the ultimate ability to walk away from a marriage, for any reason. At least according to Beit Hillel(which is the halakha) if a wife does anything to displease her husband, including burning his meal, he has the right to divorce her. Where is the comittment there?

      Chazal in their wisdom saw that this was a problem. So they instituted the Ketubah, now a man had to pay a fine to divorce his wife. As socieity continued to change and as the institute of marriage as you would call it, continued to suffer from those changes, the Geonim, Rabbeinu Gershom ect effected necessary decrees, all of which admittedly benefiting a woman in her legal recourse over a recalcitrant husband.

      Liewise when a woman can claim Maos Ali with clear justification the majority of Rishonim, and many Acharonim have said that it right to force a man to give a Get. You would like to label this as "pro-divorce". First you would have to make the argument that the Torah is by necessity "anti-divorce" and considering the ability that it invested with a man to simply walk away from a marriage at a whim, that is not the case.

      Yes I know you will quote alimony ect. However, if you want to talk about the "Torah" institution that is obfuscation. As you deny that the Torah even invested a man with an obligation to support his own children, then let us stay only within the four amot of Torah and not the institutions of modern western society.

      So the Torah gave a man the ability to walk away from a marriage at a whim. Where then is the comittment on the part of a man? As I have already said, it was for this reason that Chazal instituted Ketubah ect.

      To be continued...

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    5. Now it can be claimed that these Rabbinic institutions(Chas V'Shalom) are undermining the Torah position, as the Blog owner did just a couple of comments above. Such a statement however, would in my mind, deny any sort of Emunat Hakhamim, and comes close to Kefira, in that all of these things are part of the Torah Sh'Baal Peh.

      So yes Chazal saw marriage as an institution with committment and obligation from both sides. However, whether it was that society fundamentally changed from Matan Torah 3000yrs ago(and it has, we are no longer a primarily agrarian society living in family courtyards where 3 and 4 generations eat from the same table, live and work in close proximity). Whether it was because, as Rav Yehoshua Kohen likes to say, that we have lost as a people our basic moral compass and thus our middot are no longer anywhere near the level they were... whatever, Chazal saw fit to take action to protect marriage.

      The protection came in the form of legal recourse for women. Granted no man should be forced to give a Get because his wife got bored with him, or as in the famous case that started this whole line of discussion, the wife decided after a mere three months of married life that her marriage was untenable. Yet there is a term for that, Maos Ali without clear justification.

      However, you cannot deny that there is Maos Ali with clear justification. What of the wife who is beaten by her husband? What of the wife who suffers PTSD because of the verbal and emotional abuse she receives from her husband? What of the wife who is infected by an STD from her philandering husband? What of the wife whose husband refuses his obligations to support her and the family in anyway?
      If you do not see the necessity of legal recourse for a woman then you want to foist the same raw deal that you claim men get onto women.
      Now it should also be stated that said legal recourse need not necessarily lead to divorce. In a rather comical tale, one of my own Rabbanim told me that his own wife, years ago, felt that he wasn't fulfilling his obligation to supply her with the proper level of Kavod being that she was the daughter and grand-dauther of Rabbis. She went to Rav Neventzal who convened a B"D which ordered the man to either obtain Semikha or give his wife a Get. They are still happily married. Yet it was still legal recourse.

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    6. Now it can be claimed that these Rabbinic institutions(Chas V'Shalom) are undermining the Torah position, as the Blog owner did just a couple of comments above. Such a statement however, would in my mind, deny any sort of Emunat Hakhamim, and comes close to Kefira, in that all of these things are part of the Torah Sh'Baal Peh.
      ---------------
      Interesting claim - considering that is the way Chazal themselves describe it e.g., BM 59b where G-d Himself describes the rejection by the Sages of His halachic views as "My children have defeated me" This is the simple pshat of "Torah is not in Heaven"

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    7. You are again mixing in justified complaints with unjustified divorces. Please stick to the topic - here we are discussing women who want a divorce without presenting a legitimate claim. (btw, your story with R' Nebenzal is a nice story, but obviously that is not a justifiable reason for divorce - R' Nebenzal was just trying to get the guy to move on with his life. He would not have forced a get, since there was not excuse for that.)

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    8. שם נצחוני בני נצחוני בני נ"ל בס"ד כפל הלשון, חד על אשר לא השגיחו באותות של חרוב ואמת המים וכותלי בית המדרש, וחד שלא השגיחו גם בבת קול. ודע, כי אע"ג דכתבתי לעיל כי מעיקרא לא היה רוצה השי"ת שיבטלו דבריהם כנגד דברי ר' אליעזר שהיה יחיד, ועשה כל האותות, וגם בת קול, כדי שיהיה בזה יסוד אמיץ וחזק לדורות, וכאמור, עם כל זה אמר לשון זה של נצחוני בני, באהבתו בחכמים ליקרם ולכבדם, וחן וכבוד נתן להם השי"ת בדברים אלו, על אשר עשו רצונו, ולא השגיחו, שבזה נעשה יסוד חזק לקיום דברי תורה ולביטול המחלוקות
      Ben Yehoid Ad Loc.
      For those who would prefer English(forgive me this translation is on the fly)
      My children have overcome me, my children have overcome me It appears to me, with the help of heaven, that the language is doubled, once on account of them giving no heed to the Charob tree, or the aquaduct, or the wall of the Beit HaMidrash, and once because they gave no heed to the Bat Kol. Therefore know, that even though I wrote above that in the first place Hashem would did not want to nullify the words of the sages in face of the words of R' Eliezer who was a Yachid, and he did all of these signs, and even a Bat Kol, in order that there would be in this a bold and strong foundation for all the generations, as has been mentioned, with that being said, this language of my children have overcome me, in his love of the sages to esteem and to honor them, and grace and honor Hashem gave them with these words, on account that they did his will, and did not give heed, that in this they made a strong foundation to uphold the words of Torah and to nullify arguments.
      We can argue at length over whether there is ever such a thing a pshat when dealing with aggadata, however, this is essentially how I have learned this piece in every Yeshiva I have been in. Which is essentially that this was a test of the sages to see if they would be turned aside from the truth of the Torah, even by signs, they passed the test. Far from undermining the Torah, or Hashem's halakhic views, it establishes emunat hakhamim, in that the Rov of the sages will arrive at Hashem's halakhic views, no matter how appealing a Yachid may be.
      Far from being able to say that Rabbinic institutions undermine the Torah position, one would have to say that the accepted Rabbinic institutions are the only place one will find the Torah position.

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    9. Jewish law provides that a man can go philandering, divorce his wife for his mistress and marry the mistress.

      And if you say that philandering is not allowed, he still can fall in love, divorce, and remarry.

      Even if the wife refuses the get, she just gains time, but in the long run, he has the upper hand (considering that he can always start an affair and wait till he has his get, or even depose a get with the beith din and remarry)

      So why should women not have the right to say: the love is gone, he is disgusting to me, I want to divorce?

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    10. You are again mixing in justified complaints with unjustified divorces. Please stick to the topic - here we are discussing women who want a divorce without presenting a legitimate claim.

      Wrong. We are talking about Maos Ali, which is not necessarily an unjustified claim. A woman can claim Maos Ali for any of the reasons that I gave. If you would actually read any of the Teshuvot that I have posted, you would see that in some of them, the claim of the battered wife is Maos Ali, on account of being beaten.
      So when you want to say that the woman has no legal recourse, and say that the B"D can never force a Get on account of Maos Ali, even though for all of the above that is the halakhic claim the woman would have to make, you must mix justified complaints with unjustified ones. This is the facet of this that you fail to grasp. One can possibly say that woman would have another claim if she were beaten, but based on the Teshuva of the Benei Binyamin brought by Rav Ovadia Yosef, even then that would not seem to be the case.

      So the question is whether or not we can force a Get in the case of Maos Ali. Unfortunately Maos Ali covers everything from a Battered wife to a woman who is bored with her husband. So please refrain from making non-halakhic distinctions.

      My problem with saying that we never force a Get for Maos Ali, instead of leaving it in the hands of the Beit Din to decide, is that in doing so you condemn all of those cases that I brought above to be forced into a state of Agunah, even though they have, what you finally admit, is a legitimate claim.

      As far as Rav Neventzal(and coincidentally Rav Scheinberg who was also on that particular B"D), both claimed that they would have forced the Get when the Rav in question told the story by way of introduction of them in his own Yeshiva. Whether they were... changing their words... I don't know, but I see no reason to doubt them, and a very good halakhic reason to believe them(that a husband is required to support his wife at the same level of honor that she had in her father's home).

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  25. the ben yohada is nice drash - but the simple pshat is not that way. The ultimate authority is for man to decide what is good for society both in understanding the doreissa and creating takanas which sometimes undermine the doreissa.

    Rambam (Moreh Nevuchim3:34): It is important for you to know that the Torah does not concern itself with issues which rarely happen. All that it wishes to teach concerning an idea or moral quality or meaningful act are concerned with the majority. It does not attend to something that rarely happens or the harm that comes to only a single individual because of a particular way of evaluation or approach. That is because the Torah is a Divine thing. You have the responsibility to anticipate those things included in the Torah which according to the natural flow of events can be expected to harm certain individuals. … From this perspective you should not be surprise that the intent of the Torah is not fulfilled perfectly for every person. In fact there are some individuals who are not perfected by the Torah…


    קובץ שעורים קונטרס דברי סופרים סימן ד

    ה) ונראה לפי מ"ש בדרשות הר"ן דרוש חמישי שנתן רשות לחכמי הדורות להכריע במחלוקת החכמים כפי הנראה להם ואפילו אם הקודמים היו גדולים ורבים מהם שכן נצטוינו ללכת אחרי חכמי הדורות שיסכימו לאמת או להפכו עכ"ל וכן כתב הרמב"ן בפירוש החומש פ' שופטים ז"ל ועל משמעות דעתם נתן לנו התורה אפילו יטעו עיין שם וכן כתב בהשגותיו לס' המצות שורש א' ז"ל כי התורה ניתנה לנו ע"י מרע"ה בכתב וגלוי הוא שלא ישתוו הדעות בכל העיקרים הנולדים וחתך לנו יתעלה הדין שנשמע לב"ד הגדול בכל מה שיאמרו בין שקבלו פירושו ממנו או שיאמרו כך ממשמעות התורה וכונתה לפי דעתם כי על המשמעות שלהם הוא מצוה ונותן לנו התורה וזהו מה שאמרו (ספרי) אפילו אומרים לך על שמאל שהוא ימין ועל ימין שהוא שמאל לכך הוא המצוה לנו מאדון התורה יתעלה שלא יאמר בעל המחלוקת האיך אתיר לעצמי זה ואנכי יודע בודאי שהם טועים והנה נאמר לו בכך אתה מצווה וכענין שנהג ר' יהושע עם ר"ג ביוהכ"פ שחל להיות בחשבונו כמו שהוזכר במס' ר"ה [דכ"ה] עכ"ל [וזהו כונת המאמר בירושלמי אילו ניתנה התורה חתוכה לא היתה לרגל עמידה וכו'] ובס' החינוך ביאר בזה הא דאיתא בב"מ דנ"ט גבי תנורו של עכנאי נצחוני בני עיין שם.

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    1. The underminine of the Torahi.e., emes is expressed here by the Chinuch

      ספר החינוך מצוה תצו

      ועל דרך ענין זה שעוררתיך בני עליו אפרש לך אגדה אחת שהיא בבבא מציעא בסוף פרק הזהב [נ"ט ע"ב] גבי ההוא מעשה דרבי אליעזר בתנורו של עכנאי המתמהת כל שומעה. אמרו שם, אשכחיה רבי נתן לאליהו וכו'. אמר ליה מה עביד הקדוש ברוך הוא בההיא שעתא, אמר ליה חייך ואמר נצחוני בני, שהיה שמח הקדוש ברוך הוא על שהיו בניו הולכים בדרך התורה ובמצותה להטות אחרי רבים. ומה שאמר נצחוני בני, חלילה להיות נצחון לפניו ברוך הוא, אבל פירוש הדבר הוא על ענין זה. שבמחלוקת הזה שהיה לרבי אליעזר עם חבריו האמת היה כרבי אליעזר וכדברי הבת קול שהכריעה כמותו, ואף על פי שהיה האמת אתו בזה, ביתרון פלפולו על חבריו לא ירדו לסוף דעתו ולא רצו להודות לדבריו אפילו אחר בת קול, והביאו ראיה מן הדין הקבוע בתורה שציותנו ללכת אחרי הרבים לעולם בין יאמרו אמת או אפילו טועים, ועל זה השיב הבורא ברוך הוא נצחוני בני, כלומר אחר שהם נוטים מדרך האמת שרבי אליעזר הוא היה מכוין בזה את האמת ולא הם, והם באים עליו מכח מצות התורה שצויתים לשמוע אל הרוב לעולם, אם כן על כל פנים יש להודות בפעם הזאת כדבריהם שתהיה האמת נעדרת, והרי זה כאילו בעל האמת נצוח.

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    2. ר' צדוק הכהן מלובלין - דברי סופרים אות לו

      ויעקב העיקר עמל תורה שהוא מדריגת האמת ליעקב והתפילה נמשכת ממנה ובאה בכח התורה, ועל ידי זה גוזר על ידי כח התורה והקב"ה כביכול מוכרח לקיים גזירה שעל פי התורה דלא בשמים היא, ומצינו (בבא מציעא נ"ט ב) נצחוני בני כי בכח התורה יכולים לנצחו כביכול והקב"ה שמח בזה כמו שאמרו ז"ל (עיין שם ובפסחים קי"ט א):

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    3. First a Definition:
      Undermine: transitive verb: to weaken or subvert secretly or insidiously.

      So you claim that the sages are secretly or insidiously subverting the Torah?

      First I'm not sure where you get your supposed pshat from. Regarding the Gemarra on B"M 59b Rashi says nothing, and Tosefos is essentially what the Ben Ish Hai quoted, except with some embellishments on why the language was doubled. So it would seem that according to the Tosefos the pshat is as the Ben Ish Hai understands it.

      The Moreh Nevuchim that you quote says nothing about subverting the Torah, rather it says that HaShem left it to the Hakhamim to extrapolate the general principles found in the Torah to meet the needs to individuals and specific situations. That is interpretive authority, claiming it is undermining(i.e. subversive) is quite problematic. This is essentially the same authority with which the US Constitution vested the US Supreme Court, and no Constitutional Scholar would claim that the Supreme Court is subverting the Constitution. Also since there seem to be so many people citing the opinions Posek Hador Maran Hagoan HaGodol HaRav Yosef Sholom Elyashev shlit"a, it should also be mentioned that has said that the Moreh should be banned. ;?)

      The Sefer HaChinukh that you quote also doesn't say that the sages have the ability to eliminate a D'oraitta or in ohter ways subvert the Torah. Rather what it does say is that they are invested with ultimate interpretative authority, even if their interpretation contradicts that of a former generation, and even if it seems wrong to our eyes(hence telling you that the left is right ect.) That ultimately their words are Truth, and thus Torah.

      Rabbi Tzadok M'Lublin, is also a drash. It is an interesting drash especially left in its context. Essentially he is trying to build the foundation for the saying, "a Tzadik decrees and Hashem(so to speak) does." His basic point left in context is that the reason that Hashem hears the prayers of Israel(and no one else) is that they merit it through their study of Torah. He also makes the interesting claim that prior to the Avot no prayers are mentioned in the Torah, and that even Avraham Avinu's one recorded prayer went unanswered because he did not cleave to Torah in the manner that Yitzhak Avinu did.
      I don't think that you can really build an argument that the sages are subverting Torah based on a drash that argues that prayers are only answered in the merit of Torah study.

      So in the end I see no reason to depart from the words of Tosefot and the Ben Ish Hai.

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    4. By the fact that rabbis have the final say on the halacha - even when it goes against what the Torah actually says - weakens the absolute authority of the Torah

      Makkos (22b): How foolish most people are. They stand for the honor of a Torah scroll but not before a great Talmid Chachom. Whereas in the Torah it states that corporal punishment is 40 lashes, the Rabbis said the Torah only meant 39 and that is the accepted Halacha. [Thus those who are the source of understanding what the Torah means should be accorded the honor of the Torah]

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  26. batmelech said:
    Jewish law provides that a man can go philandering, divorce his wife for his mistress and marry the mistress. And if you say that philandering is not allowed, he still can fall in love, divorce, and remarry.


    Ok let's look at the possibilities here:
    1) If it goes down exactly as you say, I would say that woman is better off without him. If he is willing to pay her her Ketubah, great. Do you know a lady who wants to have a philandering husband? I don't.

    2) The husband is a philanderer in which case the wife can go to the B"D and claim Maos Ali -depending on which poskim the B"D follows the B"D may be permitted to force the giving of a Get(for this reason I will ensure that my daughters marry Sephardim). She won't get her Ketubah(sad but true), but at least she won't have to worry about what diseases her husband may be infecting her with.

    3) On the flip side the wife could just as well "fall in love" have an affair, confess it to her husband, in which case, according to most opinions that I am aware of, the husband would be forced to divorce her. She wouldn't get her Ketubah(nor should she), but she would be free to follow her taavot(Chas V'Shalom).

    I don't see the inequality that you speak of.

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  27. "for this reason I will ensure that my daughters marry Sephardim"

    That might backfire, since some sefardim are allowed polygamy. Actually, we have one Sefardi here (not Israel) who left his wife an agunah, remarried and refuses to give her a get on the grounds that he is a Sefardi (don't konw from where exactely) and can have sevral wives-

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  28. "If it goes down exactly as you say, I would say that woman is better off without him."

    Personally, I agree with you. But still, there are women in this world who feel very humiliated by being thrown away, or who feel they cannot live without him, or want to keep their financial security, etc...

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  29. What I was pointing out was in order to address the inequality polygamy vs. strong prohibition of polyandre, the only reasonable thing would be to lay the decision of giving a get into the hands of the wife.

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  30. That might backfire, since some sefardim are allowed polygamy. Actually, we have one Sefardi here (not Israel) who left his wife an agunah, remarried and refuses to give her a get on the grounds that he is a Sefardi (don't konw from where exactely) and can have sevral wives-
    Most Sephardim have written into their Ketuba that they can only take a second wife with the permission of their first and of the B"D. I know I am Sephardi. However Sephardim also allow Gittin to be forced, where apparently many Ashkenazim are more queasy about that.

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  31. tzadok, you have been claiming support from the Rambam, for your position, but the Rambam does not require any justification for maus alai.
    Now you say that a woman can only claim maus alai if she claims some justification, so you are not going with the Rambam.
    Are you with the Rambam, or not? Does she need to justify her maus alai, or not?

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    1. you have been claiming support from the Rambam Wrong. I have been claiming support from Rov Rishonim. The Beit Yosef, the Rema, the Chida, the Ben Ish Hai, the Yaskil Avdei, and Rav Ovadia Yosef as well as the various sources that they rely upon. It is becoming increasingly clear that you are not actually reading what is being posted as much as simply trying to argue non-issues while trying to make a case for your supposed point.

      Now you say that a woman can only claim maus alai if she claims some justification, so you are not going with the Rambam. Wrong again. I said Maos Ali, is a halakhic claim that may or may not include a justification. It is up to the B"D to evaluate her claim and to see if her reason for the claim from the extreme of being Battered as brought by the Benei Benyamin to being bored with her husband and desiring another man(i.e. no justification) is a valid reason.
      I argue that there are cases of Maos Ali where the B"D should be able to force a Get. That when a husband has neglected or willfully transgressed his obligations.
      What you refuse to grasp is that Maos Ali is an unfortunately broad catch all for a number of issues. A woman claiming Maos Ali could have a very valid justification. She could also have no justification. However both the battered wife, the verbally abused wife who now needs treatment for PTSD, and the woman who has her eyes set on another man, are all forced to claim Maos Ali.
      So please stop assuming you know what I am saying, and actually read what I am saying. Because while you obviously understand what you think I am saying you have no clue as to what I am actually saying.

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    2. Far be it from me to pretend I know what you are saying. Rest assured, I have no idea anymore what you are saying.

      I do know, and have demonstrated early on, that you really do not know the relevant material, despite your repeated quoting of your favorite sources. Most of what you have written on the subject is wrong. Your argument here is likewise meaningless and fails to answer the question I put to you, but I see no reason to engage in the discussion anymore, and I will allow any other readers to reach their own conclusions.

      I will not continuing arguing with you.

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    3. I will not continuing arguing with you.

      Thank you, your intention obtuseness was starting to give me a migraine.
      you really do not know the relevant material Just don't tell my Rosh Yeshiva or those in charge of Semikha at Rabbinut. They don't seem to have cottoned on yet, as my high test scores on the Dayyanut exams shows. Please whatever you do, don't inform Rav Shknazi, I really have him duped, Av Beit Din of the Eidah HaHareidit Sephardit or not.

      Your argument here is likewise meaningless and fails to answer the question I put to you More obfuscation and obtuseness. So let's see you asked:
      Are you with the Rambam, or not?
      Now I take it that "?" at the end of that sentence implies a question so I answered:
      I have been claiming support from Rov Rishonim. The Beit Yosef, the Rema, the Chida, the Ben Ish Hai, the Yaskil Avdei, and Rav Ovadia Yosef as well as the various sources that they rely upon.
      Did you miss that answer? Oh I get it you didn't like it, so you ignored it as has been your MO to date.
      Then you asked(again assuming that in keeping with the general rules of grammar that "?" at the end of your sentence indicates a question):
      Does she need to justify her maus alai, or not?
      To which I answered:
      I said Maos Ali, is a halakhic claim that may or may not include a justification... Maos Ali is an unfortunately broad catch all for a number of issues. A woman claiming Maos Ali could have a very valid justification. She could also have no justification. However both the battered wife, the verbally abused wife who now needs treatment for PTSD, and the woman who has her eyes set on another man, are all forced to claim Maos Ali.
      Yet you again chose to ignore the answer because you don't like where it leads you. Which is that the B"D needs be able to decide whether the woman's claim is valid, and whether pressure should or should not be applied to force a Get.

      So you instead resort your typical ad hominem and walking away from the discussion.

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  32. batmelech, I will give you a challenging response to consider:

    You have been arguing that no one should be forced to stay in a marriage that they are no longer happy with.
    You also stated that the function of marriage is only for the man to acknowledge responsibility for his children, in return for which the wife promises her fidelity, so he knows the children are his.
    You do not believe that marriage is a sexual commitment, except for the individual acts which consummate the marriage or leads to conception.

    You see, you have already provided the answer to your next question.
    You are bothered by a philandering husband who then divorces his wife. But according to your view of marriage, there is nothing wrong with that.

    The philanderer is still responsible for the children he had with his wife. So he has not violated any commitments there. There is nothing wrong with divorce, if marriage is not any sort of long-term commitment.

    So if we see marriage as you defined it, there is nothing morally wrong with a man finding a mistress and then divorcing his wife to marry his mistress.

    Since you do find this morally objectionable, perhaps you can rethink how you define marriage.

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    1. 1) Do you still fail to understand that sexual relationships can only happen if they are consensual? The wife commits to fidelity, but not to the duty to have sexual relations!!!

      In theory, the man commits to the duty to have sexual relations, but if he does not want, no-one forces him, he just has to pay a fine!!!

      So I find it very, very strange that some people suddenly come up with the notion that it should be allowed to coerce a wife into sexual relations.

      2) From the get-go, the marriage is only stable as long as the man wants to stay in it, since the concept of divorce exists.

      If a man decides to go philandering, Rabbis might wag the finger, but they 'encourage' his wife to stay with him. So, in truth, there is nothing a wife can do about it.

      The Torah & Sefardi tradition even allow a man to take multiple wifes. Since the opposite is not true, I think that the power to divorce should lie with the wife and not with the husband.

      The fact that the husband can have extramarital affairs and still keep his wife chained to him gives him an excess of power that was amply abused in the last decades. And the rabbis did nothing about it.

      By the way, laying divorce into the hands of women would also solve the problem of the true agunot, wives whose husbands disappeared for some reason or other.

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    2. batmelech, you are the one who keeps bringing up marital duties. (you also ignored my last question - why is it immoral for a man to philander or divorce, given your concept of marriage?)

      And you have not yet answered my simple question - why would any man be willing to sign up for your concept of marriage? what does it offer him?

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    3. http://requiemforcivilization.blogspot.com/

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    4. "why would any man be willing to sign up for your concept of marriage? what does it offer him?"

      Well, the theory would be that women will not allow them to have sexual relationships untill he marries them. Which, of course, does not mean that he is ENTITLED to sexual relations once he is married.

      It is just a public statement: I am the one having sexual relations with this woman, so I will take on responsibility for the children she is going to bear, since I will assume they are mine.

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    5. In response to the catholic post you linked:

      It is true that a stable family with work division - man goes to work and brings money, woman stays home - has advantages and might be very productive in bringing up children.

      However, the system has flaws that can be abused.

      For example, if women are denied education and access to public space and economic transactions because "they do not have to feed a family", as has been the case over centuries in Europe and is still the case in many muslim countries. (So you have an ample enough sample to see what really happens).

      Or take, for example, the discrimination against single mothers and their children.

      Or take the fact that men can go philandering and infect their wives with std, while the wife is forbidden extramarital relationships.

      So the inequality, the imbalance of power, has been abused by the side who had more power. This caused a counter-movement, that has been quite successfull over the last 120 years.

      Had the men not abused the system so recklessly, the counter-movement might never have arisen.

      Therefore, I cannot understand why anyone would back up a man who spitefully refuses his wife a get.

      This just is a further contribution to undermine the credibility of the sytem.

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    6. batmelech wrote:
      "Well, the theory would be that women will not allow them to have sexual relationships untill he marries them. Which, of course, does not mean that he is ENTITLED to sexual relations once he is married."

      You reminded me of one of my favorite blog posts (and it is only slightly offensive) http://dalrock.wordpress.com/2010/09/03/sex-cartel/

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    7. Well, you just saved the honor of religious jewish men. I was really getting angry at the fact that someone I took for a religious jew would not get the concept that sexual relations have to be consensual. But no religious jew would send links like the two last ones you posted.

      So I am reassured that you are just someone who poses in order to make religious men look bad.

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  33. By the way, laying divorce into the hands of women would also solve the problem of the true agunot, wives whose husbands disappeared for some reason or other.

    What exactly are you advocating?

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  34. Going back to the original point in this post, wasn't this question explicitly addressed in a recent post about the Chazon Ish's approach to electricity on shabbos, where he basically says that the "metagoals" are what drive things - he had to search for a reason to prohibit electricity because of the "sanctity of shabbos." I.e., there is more to the halachic system than merely the individual halachos.

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