Rosh(43:6): Question: A woman has been married for many year and has children. Now she is saying that he disgusts her (ma’us alei). Do we force the husband to give a get? Answer: Even though the Rambam writes, When the wife says ma’us alei we force the husband to give her a get – but Rabbeinu Tam and the Ri disagree. Since this is a dispute amongst rabbinic authorities why should we stick our heads amongst the great mountains and to make a forced get which is not required by the halacha and to permit a married woman to remarry? Furthermore due to our sins, Jewish women today have loose morality. Therefore there is concern that the wife might be interested in another man. Whoever forces a husband to give a get when the wife says ma’us alei is simply multiplying mamzerim. All of this is in regard to what to do if asked. However if the get has been forced already – if they relied on the view of the Rambam – what has been done has been done.
Question: What is the Rosh doing here in regards to deciding between the Rambam and Rabbeinu Tam?
Answer: In fact he isn't deciding between them and doesn't want to. It seems therefore he is following the assertion found in the introduction to Ohr LeTzion of Rav Bentzion Abba Shaul that psak is a not a clear categorization of what is true and what is false but rather it is a strategy to minimize error and harm. He says only in the case of the Shulchan Aruch because it was accepted by clall Yisroel and the Arizal because he spoke with ruach hakodesh - are their rulings absolute decisions of truth. While it seems clear that the Rosh is doing a cost benefits analysis - other poskim such as Rabbeinu Tam, Ramban Shulchan Aruch etc are clearly rejecting the Rambam and saying that he is wrong!
It would seem that in our time - after the Rambam has been rejected and Rabbeinu Tam accepted - that the ambivalent view of the Rosh would not be relevant. However it is cited by contemporary poskim such as Rav Ovadia Yosef to explain why the wife can remain married to her second husband - despite receiving an inappropriately forced get from the first.
An explanation might be that contemporary poskim are also doing a cost benefits analysis rather than deciding what is true. Thus they take the conservative approach of Rabbeinu Tam and don't allow the husband to be forced because they are worried about the possibility of mamzerim if Rambam is wrong. They would also say that a wife divorced by a forced get could not get married with that get.
However if she does get married we have a different problem. There is now a marriage and possibly children. Thus we would definitely have adultery and mamzerim if we had absolutely rejected the Rambam. Therefore we turn around and say - we didn't absolutely reject the Rambam but that he is not the normative lchatchila position. However when faced with the disaster of adultery and mamzerim we say the Rambam can be relied upon bedieved.
To get back to our problem of using force in ma'us alei. The guiding principle that we seem to be using is that we need to avoid the possibility of an invalid get and thus mamzerim if Rambam is wrong. Therefore all our actions need to be based on the rejection of the Rambam and thus we avoid any appearance of forcing the get. However if there is a forced get - then bedieved we would rely on the Rambam that there is no problem of aishis ish and mamzerim - because there is no other way.
Assuming that is really the halachic dynamic - what would be the practical status of children resulting from remarriage? If you had a choice between a possible zivug with a person for whom there was never a question of yichus versus one for whom the valid is solely because there was a pesak that bedieved the child is kosher - which would you chose? In other words which would you chose - glatt kosher in which there has never been a sofek or regular kosher which had a number of questions that were resolved by a rabbi's heter that took 10 pages of reasoning to justify and that other rabbis don't accept?
This issue of perceived quality of yichus is also a consideration - at least l'chatchila - in how we conduct ourselves. In other words we should avoid doing anything which raises halachic questions of yichus - unless there are other issues which are more important.
In addition there are contemporary poskim who view the Rambam has rejected totally and they problably would require that the wife not only not remarry after a forced get but that if she did then she could not stay in the marriage and that children from the second marriage would be mamzerim.
In addition there are contemporary poskim who view the Rambam has rejected totally and they problably would require that the wife not only not remarry after a forced get but that if she did then she could not stay in the marriage and that children from the second marriage would be mamzerim.
There are modern day poskim who say Chabad are idol worshipers and tht drinking chalav STam is like eating treifus. There are modern poskim who hold that many converts are not good converts. What we should care about is what rav Moshe Feinstein said, what Solomon Zalman said and what rav elyashiv says and what rav Obadiah Yosef says. These anonymous generic rabbis don't really get to have an opinion just because they have some form of semicha. This is an issue that really should have been decided by great men that world Jewry respect. Unfortunately, there are very few of those left, so we must look to the recent past. That's just how I see it. Have you looked at igros Moshe yet?
ReplyDeleteExactly. And Rav Elyashev says that many so-called converts are in gact gentiles. And RYSE also says that a forced Get results in mamzeirim.
DeleteI don't believe anything that "came from rav elyashiv " in the past ten years. I went to a Gemara Shiir he had seven years ago and it was clear when he issues a psak it was coming from someone else. So find me the opinions in sefarim they wrote yers ago
DeleteAlso, I said all of these great poskim, not just the one you like
DeleteYou wrote Rav Elyashev. Now that you hear what RYSE actually paskened, you suddenly don't like him anymore. So you start limiting things to "years ago". And you don't want to believe what he said anyways.
DeleteWhat you are practicing is called Reform "Judaism".
Frappy,
DeleteActually he said the majority of the poskim mentioned. Which means we don't follow a Daat Yachid. That is codefied in the Gemarra.
Second to that Rav Eliashiv didn't write Kovetz Teshuvot, it was redacted by another, unnamed editor, from his written opinions found in Piskei Din. Rav Eliahsiv(as has been demonstrated here, if you read back through the Tropper/Eisenstein gerut posts) himself will often be posek contrary to what is written in Kovetz Teshuvot. Second to that, Rav Eliashiv used to say at each of his weekly Gemarra Shiurim(you can listen to them online to verify) that one should not rely upon anything written in his name, as he has not actually written Teshuvot, and unless it comes from his lips it should be viewed with suspicion.
If you want to call that Reform Judaism... I guess Reform has come a long way back to being genuine Yiddishkeit.
Rav Eliashev may have not compiled Kovetz Teshuvos in its form, but the teshuvos in the sefer were written by Rav Elyashev.
DeleteThen why has he consistenly ruled contrary to what is written there? Why when asked does he say not to rely upon them?
DeleteThere is a known and famous letter signed by Rav Elyashiv together with the Steipler and Rav SZ Aurbach from 5744 that invalidates conversion bedieved when the prospect didn't contemplate to keep torah and mitzvot. The letter was written and disseminated around 28 years ago. No one contested to the veracity of that letter then (he was quite younger).
Deleteהגאונים הגרי״י קניבסקי והגרש״ז אויערבך זצ״ל
ויבל״ח הגרי״ש אלישיב שליט״א במכתבם מיום
ט״ו סיון תשד״ם ת״ל היות ולצערנו הגדול נתרבו
לאחרונה מקרים של קבלת גרים ומתברר שאחוז
גדול מהם לא לא חשב לקבל על עצמו שמירת
תורה ומצות בעת מעשה הגירות הננו מזהירים
בזה שהוא איסור חמור מאד לקבל גרים מבלי
להיות משוכנעים שאכן דעתם באמת לקבל
עליהם עול תורה ומצות הדבר פשוט וברור שגיור
ללא קבלת תורה ומצוות אינו גיור כלל אפילו
בדיעבד עכ״ל
To head off the profanities that I am sure to be coming let me just say it first so that we can move on with the actual discussion:
ReplyDeleteFENCE-SITTER!!!!
I probably should have included a couple of racial epithets against Sephardim, but I have never gone in for self-hate, and wouldn't want to take away all the fun for those who have nothing better to do.
>Therefore there is concern that the wife might be interested in another man. Whoever forces a husband to give a get when the wife says ma’us alei is simply multiplying mamzerim. All of this is in regard to what to do if asked. However if the get has been forced already – if they relied on the view of the Rambam – what has been done has been done.<
ReplyDeleteA few comments from my perspective as a layman:
1) I don't understand the whole issue really. Of course I get how serious mamzerus is, but given the facts of life (not just nowadays) of various kehillas, various interpretations, corrupt Bais Dins, rabbis, and litigants, and other factors as well, wouldn't it be common sense to just draw a line in the sand and say that once a Get is produced (as long as it passes a sniff test), it must be taken at face value? Otherwise there is no end to the accusations that can be made after the fact.
And who is to say that a husband, years later, can't come up with all kinds of claims or even proofs as to why the get he gave wasn't valid?
And how can anyone ever hope to uncover the thoughts in the heart of another -- many times the person in question doesn't even recognize their innermost cheshbonos and calculations.
Especially in light of the fact that even if only 1 out of 100 women in each generation gave birth to mamzerim, due to to the crossing of ancestry that takes place (see Rabbi Aryeh Kaplan's intro to his book, 'The Jewish Wedding'), there is a very good chance that many -- perhaps MOST -- of us are mamzerim.
In summary, it would seem that all Hashem wants us to do is to do our hishtadlus (without going overboard and ruining lives in the process on the flimsiest of reasoning or second-guessing people's motives) and leave the rest up to Him and to Eliyahu HaNavi.
Furthermore, it is not logical why a forced marriage should be considered valid and require a divorce (as in the ovadiya yosef case), but a forced get should be considered invalid and make children from later marriages mamzerim.
DeleteIn this context I have a different question:
ReplyDeleteIs a paternity test a recognised proof for Mamzerut?
Let's take this case:
A men suspects that his wife cheats on him, but he has no proof of her going with someone else.
Upon his suspicions, he does a paternity test with his child and the paternity test is negative: he is not the father.
Will the child be considered a mamzer?
Or will rabbonim argue that a paternity test is not a proof, since it did not exist in the past?
http://ohr.edu/ask_db/ask_main.php/42/Q1/
DeleteAn additional problem would be if the wife used artificial insemination without the husband's knowledge. According to Rav Moshe Feinstein that would not constitute adultery and the child would not be a mamzer - and the paternity test would indicate the husband is not the father.
So the results of paternity tests are not acceptable to determin mamzer status.
DeleteIsn't this a problem?
Isn't it a deviation of halacha when on the one hand, people argue that child is considered a mamzer by your brother and other when the mother remarried after a get.
On the other hand, in a case of true mamzerut, where the wife cheated on the husband, (or even incest) that can be revealed through genetic testing, the rabbanim close their eyes as hard as they can.
That means: administrative procedure becomes the ikkar, the facts are left aside.
I think that this is a dangerour evolution
"If you had a choice between a possible zivug with a person for whom there was never a question of yichus versus one for whom the valid is solely because there was a pesak that bedieved the child is kosher - which would you chose?"
Deletethe way this question is phrased is a very good sum-up of the fundamental flaw and inhumanity of the frum shidduch system as it is practices today.
No two human beings are equal, not even identical twins. So the mere idea of comparing them to two peaces of meat - one glatt-kosher and one just kosher - is very disturbing to me.
The problem is that this question is not purely hypothetical: people do really make their decisions to reject shidduchim on such bases.
do you have a problem with the use of any screening factors?
DeleteFor example if you have 100 offers would you feel it legitimate to to eliminate those who come from divorced homes, those who had cancer, those whose families had a history of mental illness, those who are currently on psychiatric medicine etc etc? Or would you insist that a person go out with everyone who is offered because after all no two human beings are equal?
Once you allow some factors to sort out choices - then it is hard for you to argue that a particular factor can not be used by others. choicing a mate does require disciminating against those you don't choose - for what ever reasons you want to say no.
"do you have a problem with the use of any screening factors?"
DeleteAbsolutely. For a nation who claims to be rachmanim bney rachmanim, any of the screening factors you cited above is unacceptable. It is pure achzariut to reject a person because they come from divorced homes, had cancer or a history of mental illness in the family.
The fact that you find it perfectly normal shows how deeply the disease of achzariut is ingrained in hareidim.
They should all be ashamed.
This has nothing to cue with cruelty - this has to do with being able to marry someone that you think will be most compatible with the vision you have for a spouse and/or family.
DeleteAssuming you are married - you went out with everybody who expressed interest in you?
You would marrry a mentally ill person because it would hurt his feelings that you rejected him? You would give equal weighting to two people - one coming from a broken home with an unstable mother and the other from a stable warm supportive home?
If you are married - how did you make up your mind - without hurting the feelings of others?
It is clear that you can marry just one person and all the others are "excluded". That is not what I'm talking about.
DeleteThe "screening factors" you cite - and they are commonly applied in the shidduch system - are discrimination in the sense that a person can be the best suited spouse for X, but X will not choose him/her, because of the divorced parents, brother off the derech, crazy sister, brother with diabetes, down syndrome nephew, you name it.
Those screening factors are inappropriate because they have nothing to do with the person, and nothing allows to predict that a person will be a worse spouse because the parents are divorced, the brother went off the derech, the sister is crazy and nephew has down syndrome, etc.
Yes, this is cruelty and makes a cruel society. That this is the standart shidduch procedure for those who claim to be the most faithfull representatives of Rachmanim bney rachmanim is a shame or a mockery.
By the way: this is exactely the Point Rav Steinman makes in the video you posted recently on this blog, when he says: in my school, there were thugs and sons of thugs, and still it brought forward the brisker and myself. That parents would want to exclude x and y because they are "not suited" is pure Gaavah.
DeleteYour screening factors are exactely the same, applied to shidduchim.
First wife:
DeleteFFB
Good Yichus
No history of mental illness
No history of divorce in her family for at least 4 generations
Was not on psychiatric medication
No history of cancer in her family...
Marriage lasted less then three years before she went off the Derekh and had an affair. Had to deal with a messy divorce ect.
Second wife:
B"T
History of divorce in the family(one of her sets of grandparents)
Not so great a Yichus
History of mental illness and was on psychiatric medication
Had a history of cancer, and was told that she would probably never be able to have children.
But she had great middot(which was now my prime concern after my first marriage).
Seven years and four healthy children later, I am glad I ignored the advice of so many Rabbanim who told me I was making a mistake and headed for a second divorce(many of whom have said that they were wrong).
Personally I think if you make those things which people cannot control your criteria for passing them over, you are more likely to set yourself up for failure.
People can control their middot and their interpersonal relationships, but for some reason that didn't make your list.
Batmelech Rav Steinman's advice concerning schools you approve of does not give such advice for shidduchim. Even with schools if it is reasonable that a child will be a bad influence on others - he is not accepted - even though that seems cruel to the child.
ReplyDeleteI would agree with your objection only if the selection critia were not related to successful marriages. If they are arbitrary then I would agree with you - but they are not.
Rabbi Tzadok - every once in a while we hear of a person who fell out of an airplane - and lived or who became a millionaire by buying a lottery ticket. However if you are giving advice to people the odds are you do better by selecting factors associated with success.
ReplyDeleteWe have a general principle of not relying on miracles - you clearly benefited by not following the sound advice of your rabbis - but for every story like yours there are many others that give the expected result.
The woman I know who found out her chasan had terminal cancer - and decided to marry him anyway - he died a month after the chasana. the friend who married a girl who was biopolar - and the marriage died a horrible death after 2 children. The client who suffered a horrible 20 year marriage to a sex pervert - after a major rabbi told her to ignore his offensive and twisted behavior.
It is not cruelty to use your commonsense to maximize success. I do agree with you that midos are amongst the most important things to consider and one should not marry someone with bad middos. Of course that is also being cruel- because maybe their spouse will straighten them out.
You mistake me. I'm not saying that selecting factors shouldn't be employed. I'm just saying that middot should be closer to the top of the list then they often are.
DeleteHaving a rich father in law does not a happy marriage guarantee, but it seems to be a prime selecting factor for many. Whereas most people don't worry about middot until the third or fourth date.
Just because there was a history of cancer in the family ect, does not mean that it will manifest in the spouse. So it seems that often we are betting against things that may or may not occur, while ignoring what is before us.
I'm not advocating necessarily going into a marriage with a clear and present chance of failure. I am suggesting that those sorts of things be further clarified before someone is simply possuled.
You are a mental health professional. Would you think that a marriage to someone who is bipolar has an equal chance of failure as a marriage with someone who suffered PTSD from an early childhood trauma and who has, over the course of 10yrs of therapy shown exceptional progress in recovery(to the point that the docs are weaning them off their meds)? Yet for many in our community what the problem is, is never even checked.
"The client who suffered a horrible 20 year marriage to a sex pervert - after a major rabbi told her to ignore his offensive and twisted behavior."
DeleteWhat were the indicators that he was a sex pervert? What could she know before marriage that she ignored? Divorced parents? Grandparents with diabetes? A brother off the derech?
I think that the blog autor is not aware what discrimination means.
DeleteDiscrimination is when a majority systematically excludes a minority, thereby keeping the minority from participating in the life of the society.
Your screening factors are a typical example of discrimination: As long as the shidduch candidates with divorced parents etc are a minority, it is very easy for the majority to forgo them and keep them from participating in majority culture. Of course, it could be that some majority candidates do not find their best bashert (who has divorced parents and was excluded by "screening", but only the second best (whose parents did not divorce and seemed acceptable). However, this is not a drama, he can live with second best instead of best.
For the excluded minority it is a drama, because they will be systematically rejected for facts that have nothing to do with their person.
You studied psychology, so I suppose it is important to you that Jews not be excluded from the University system as they often were in Europe.
So why do you want to do to your fellow Jew something you would not accept if a non-jew were to do it to you?
I am only writing to note that my mecho'oh against this entire crusade is alive, well, and ever more flourishing.
ReplyDeleteHere my distinguished bar plugta resorts to argument by innuendo - i.e., women should continue to be prevented from following legitimate Halachic positions when pursuing salvation from a problematic spouse, on a account of the bogeyman of their eventual children's shidduchim. This is not how the Halachic system functions. Were it do so, then the most extreme position would always triumph. There have always been "Poskim" who have adopted that approach, and Am Yisroel has intuitively regarded them as beyond the standard Halachic mesorah.
I agree 100% that women should be able to follow legitimate Halachic positions - the whole questions was and is whether ORA is an acceptable Halachic position. According to you they should have no contact with beis din. Apparently Rabbi Stern is not aware of your chiddush and says that ORA should be following the directives of a beis din. Why don't you contact him and explain to him that it is preferrable for him to cut off ties with a beis din and even with a posek - and just do what they think is best.
DeleteQuite honestly Rav Bechhofer I find your pronouncements without any type of sourcing whatsoever any more convincing than that of the kanoim that pop in and make pronouncements.
DeleteIt behooves you to actually engage the issue. Provide the sources that you rely upon and the reasoning.
The Gemora speaks about machlokes between Beis Hillel and Beia Shammai as to whether a child is a mamzer. A child from BH that BS considers a mamzer, BH would advise people from BS not to marry him/her since they consider that child a mamzer.
DeleteHere too, if you don't consider it a Get Me'usa and resulting children mamzeirim, fine. Marry them. But tell those that do consider them mamzeirim their status, so that they don't marry them.
The same courtesy BH extended to BS.
that was relevant when there were clearly defined communities. Today it is best to maintain practices which don't create two groups or arouse questions.
DeleteInnovations that come to solve problems but create others - should be avoided unless widely accepted
I agree with you, RDE. My point is to people like RYGB who say we shouldn't declare children from a Get Meusa as mamzeirim since they have a shitta saying it isn't mamzeirus -- okay, but honor our position. Just like BH kept track of which of their own children BS considered mamzeirim -- even though they did not -- and even told BS dont marry this kid since you consider him a mamzer... so to should the MO and RYGB keep track pof these disputed mamzeirim, and tell the rest of us not to marry those kids. Just like Beis Hillel did.
DeleteThe parallel to the BH/BS case is fallacious. There is no "school of thought" en bloc that passels certain gittin. Just yechidim issuing screeds.
DeleteRMT: One rarely convinces anyone of anything in the blogging world. For that, and other reasons, it is not a viable - nor legitimate - Halachic forum. My intent is not to convince, but to protest.
DeleteRDE: I have stated clearly that it is appropriate for "vigilantes" to have rabbinic authorization for their activities - not because that renders the get kosher or passul necessarily, but because it would be immoral and unethical to deploy and form of persuasion against an innocent party.
RYGB: There most certainly IS a "school of thought" that declares many of these "gittin" to be a Get Me'usa. RDE has amply demonstrated and cited this school of thought. Including, but mot limited to, RYSE and the many others RDE previously cited on the many threads on this discussion.
DeleteRabbi Bechhofer - am still waiting for you to produce support for your amazing chidush concerning the inablity of vigilante justice to produce a get me'usa
ReplyDeleteThree types of vigilante justice do produce get me'useh. These are specified by the Poskim: Violence, monetary sanctions and niddui. There is no precedent to ban any other form of persuasion, and the Harchokos in fact encourage other forms of persuasion. No one here has brought any definitive legitimate proof that demonstrations, petitions, and ostracism create a situation of get me'useh.
ReplyDeleteRYGB: And ORA's tactic of trying to get a man fired from his job is a "monetary sanction". So by your own admission they are creating Get Meusas. You should be fighting alongside, and as hard as, Rav Eidensohn in stopping them from creating additional mamzeirim.
DeleteWhile I agree that the issue is very murky, the harchakos of rabbeyno Tam not to engage in massoh and matan with him also involves and results in monetary sanctions.
DeleteReuven,
DeleteThe B"Y 134 is very clear that any monetary sanction results in a Get meusa. This is complicated by the problem that he goes on to say that a kosher Get can only be given once it is no longer in the power of those who afflicted him to do so again.
That makes some of ORA's actions extremely problematic.
I don't know about the legislation in the US, but in many coutries, it is not legitimate to fire an employee because he does not give a get or because people protest in front of a business.
Deletei.e. the husband could go to court against his employer and would have good chances to win his case.
Furthermore, the decision to fire or not is taken by the employer, not by the activists. The employer could well ask for an order of protection and remove activists from his place.
Therefore, those activities are not coercion, since the husband and his employer have enough possibilities to prevent them within the framework of the law.
RAbbi Michael Tzadok,
DeleteI have read the Beis Yossef and don't see what you see there: Of course an issuy of mamon is a problem. But the same Beis Yossef (who quotes the maharik you mention) cigtes (another Maharik who cites and rules about the permissibility of) Harchakos Rabbeyno tam (the one who is adamant machmir on forcing a get on "maus alay" and yet) who is very strong about the permission of insituting many harchakos, some of which AFFECT THE PERSON MONETARILY!:
בית יוסף אבן העזר סימן קלד
אך כל רבותינו שוו בדבר תגזרו באלה חמורה על כל איש ואשה שלא יהיו רשאים לדבר עמו ולישא וליתן ולהרויחו ולהאכילו ולהשקותו וללוותו ולבקרו בחליו ועוד יוסיפו חומר כרצונם על כל אדם אם לא יגרש אותו האיש
Note: 1) we are allowed to impose a "gezera" via "Alah chamurah" (a severe curse of an oath) 2) that ALL 3) be prohibited to interact with him, 4) to do business with him and to profit him, 5) and even to be mevaker choleh (which includes care for him and help cure him, 6) And they are ALLOWED TO ADD AS THEY WISH as long as they do not drive him away from his place (exile). Many of these provisions cause his loss of sustenance and YET are not included in halachik "oness mamon". It seems that we do not have a clear source that humiliating is "opness mamon". Likewise, getting him fired by asking the employer not to hold him as an employee not seem to more "oness mamon" than making a GEZERA OF ALAH to all not do business with him and thereby depriving him from his livelihood (and yet is not oness mamon).
Rabbi Bechhofer Shlitta has publicly come out with tremendous chiddushim in matters of Gitten based on pure svaras and no sources. Everyone must agree that he is a lamdan and can hold his own in svaras, but he can't seem to produce actual sources especially any achronim that hold like him. He has also publicly been m'lamed zchus on woman who run to secular court in order to gain child custody and monetary settlements even if this is against halacha. Check out his blog to see his own words:(http://rygb.blogspot.com/2012/04/mechooh-continued.html) Contrast Rabbi Bechhofers approach with the approach of these 70 Rabbonim: http://www.mishpattsedek.com/Docs/KOLKOREH-ERKAOT-70GADOLIM-SEALS.pdf) Look especially at warning Vuv,(6), Zayin (7),ches (8), and tes (9)to see the obvious disagreement between being malemud zchus and demanding teshuva and getting out of secular court or no help at all. I think this is the biggest underlining problem in these cases. Should Rabbonim be malamud zchus on men or woman who sin or should Rabbonim tell them to repent and no GET until repentance and getting out of secular court and having the case tried in beis din (even after the secular courts have awarded one side)? Is it immoral for a Beis din to tell the husband to deposit a GET on condition that the woman drops the secular court case. The above Rabbonim seem not to think this is immoral. However, from the view of Modern Orthodox Rabbonim these Beis Dins are considered criminals. The Modern Orthodox say the case has had a "fair judgement" and now the man must give an unconditional GET or because of chillul hashem the man must give a GET, etc. This seems to be the biggest underlining debate in my eyes. In the end, this blog has hosted a debate about forced gitten in contemporary times, and I am waiting to see in writing from great Rabbis whether or not the actions of the ORA are considered potential problems of forced gitten or not. (L'kavod Rabbi Dr. Eidonsohn: you claimed at the beginning of the debate that you planned on getting in writing the oppinions of great Rabbis. Are you attempting to fulfill this statement?) However, one thing is for certain, and that is that running to secular court and demanding an unconditional GET at the same time is certainly not acceptable according to most Rabbonim outside the world of Modern Orthodoxy.
ReplyDeleteRabbi Bechhofer: Please clarify your view. You noted that Rambam(Hilchos Gerushin 2:20) says that a beis din that errs or a beis din of hedyotos that force a get shelo kadin - the get is posul derabbonin. You made the diyuk that therefore if it is not beis din but individuals who force a get shelo kadin it is kosher. Obviously the Rambam was not referring to passive social withdrawal since that is not considered to be kefiya according to the poskim. It can only be dealing with issues such as financial or physical forces - and yet you said from the diyuk that vigilante justice can't posul the get.
ReplyDeleteNow you are stating that vigilanted justic can in fact produce a get me'usa? So what is your true position.
"Three types of vigilante justice do produce get me'useh. These are specified by the Poskim: Violence, monetary sanctions and niddui. There is no precedent to ban any other form of persuasion, and the Harchokos in fact encourage other forms of persuasion. No one here has brought any definitive legitimate proof that demonstrations, petitions, and ostracism create a situation of get me'useh."
You can't have it both ways. The above statement contradicts the diyuk you made from the Rambam. If you always intended the above then you don't need a diyuk in the Rambam to permit someone not to speak to another person. However the case of the mother in law who yells at her son in law to give a get or the case of the father in law who takes his son in laws money to force him to give a get - you said were valid pressure when not done through beis din. You rejected the Lechem Mishna that rejected your diyuk.
Rabbi Bechhofer's previous comment on this issue
ReplyDeleteI have already explained the lomdus of the Rambam, based on the fundamental principle of להיות מישראל, as I wrote in a comment to
http://rygb.blogspot.com/2012/05/mechooh-contd-ii-james-gets-it.html:
The Rambam's shittah is that a person really wants to do whatever it takes להיות מישראל. That's why even where a mistaken BD compels a get, the Rambam holds that me'd'orysa it is a valid get, but is pasul d'Rabbanan because the compelling was done by mistake or by incompetence. This is also why, OTOH, a get unilaterally compelled by non-Jews is batel me'd'orysa - because the להיות מישראל is inapplicable.
Now, a BD must act according to procedure and protocol, and has no carte blanche to compel a get just because it feels like it. Therefore, even though להיות מישראל a person will submit even to the compelling of a improperly constituted BD, and even to an incorrect ruling - the Rabbanan passeled the Get.
But where other Yisraelim - not purporting to be a BD, and not issuing rulings - compel someone to give a get, להיות מישראל would be applicable and the get valid.
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And therefore vigilante justic involving force, money or nidoi would be valid!
Rabbi Bechhofer explicity rejected the Chazon Ish's problem with the father in law stealing his son in laws money as not being a problem for the Rambam.:
ReplyDeleteThe CI has nothing to do with the Rambam. He is following in the footsteps of the Rishonim who hold that Kefi'as BD works because of mitzvah lishmo'a divrei chachomim. As I wrote in another comment to http://rygb.blogspot.com/2012/05/mechooh-contd-ii-james-gets-it.html:
The Shulchan Aruch (134:7) does not follow the Rambam, but rather passels a get compelled by Kefi'ah of public minded citizenry. This is in line with the other Rishonim in BB 48a who learn that Kefi'ah k'din works because of מצוה לשמוע דברי חכמים - which of course is never applicable to private citizens.
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Thus you are claiming that the monetary pressure which the Chazon Ish invalidates is not a problem for the Rambam - based on your diyuk!
Then you wrote the following. Is this to be understand as retracting your chidush from the Rambam as being incorrect. And simply saying that it wasn't necessary to justify ORA since the harchakos are not kefiya and they are only doing the harchakos?
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Be that as it may, as I note in the excerpt RDE cites here, we do not need to come on to the Rambam, because even the Machmirim only passel Kefi'ah by the citizenry, which does not include the Harchakos. וז"פ
As to why the Harchokos are not mentioned that often throughout history, to me it is pashut that in the old days, when the Rav told the man to divorce, he divorced. It is b'avonoseinu ho'rabbim that niskayem banu the Mishnah at the end of Sotah that we need to specifically invoke the Harchokos.
As to ROY's statement that caution be used in exercising the Harchokos - that too is true, as it would be unjust - and worse - to deploy the Harchokos if they were unwarranted.
But when a BD sanctions the use of the Harchokos, they are not issuing a psak din. They are giving a haskomo to the use of the Harchokos. Accordingly, even a Rav who is not a part of a BD can serve as the basis for deploying the Harchakos. For example, if Reb Shmuel Kamenetzky said Harchokos were warranted in a certain case, then he is more than enough of a bar samcha for people to assume that their deployed was just and justified. No BD necessary.
Again, as James has said, were a BD essential to deploying the Harchokos, that would indicate that they were a form of Kefi'ah, and - according to the accepted psak - inappropriate in cased of Ma'us Alai. But the BD is not essential to the process, serving only to verify that the deployment would be justified and just. That is because they are not a form of Kefi'ah, and therefore would never passel a get. ותו לא מידי
It is not a retraction. I believe that my pshat in the Rambam is emes. Nevertheless, since it is clear that many Gedolei HaPoskim either do not accept my pshat, or do not rule like the Rambam, I go on to clarify that my position stands independently of the Rambam, the distinction being that according to the Rambam any form of persuasion not initiated by BD would be valid, while the consensus of the Poskim (which I, of course, accept) is to exclude three forms of persuasion as kinds of Kefi'ah no matter how they are initiated. I believe this is pashut k'bei'ah b'kutcha.
DeleteThank you for the clarification. That means on a l'maaseh level the distance between our positions have been considerably narrowed. In fact the issue becomes whether the non-passive activities of ORA can be viewed as included in the harchakos of Rabbeinu Tam - when the poskim clearly state that these are referring to the tzibur acting passively - not to socialize, not to do business. Haven't found a single source which allows yelling at the husband, public demonstation, harrasing the family or employer.
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