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Response
to R. Shmuel Kamenetzky
on the Methodology of Resolving Cases of
Iggun
Shalom C. Spira
12 Menachem Av, 5778
INTRODUCTION
The Ha-Ma’or journal of Shevat-Adar 5776, p. 35, contains a letter to
the editor by R. Shmuel Tsarch followed by an article by R. Shmuel Yehudah Leib
Landesman – both of Monsey, New York, USA – both professing that a certain
[anonymous] agunah case cannot be
resolved on the basis of mekach ta‘ut
to nullify the original kiddushin,
and instead that the wife remains married to her original husband.[1]
Because neither R. Tsarch nor R. Landesman identify the principals of the case,
it is impossible to draw any practical conclusion from their contribution to Ha-Ma’or. On the other hand, R.
Landesman’s article appears almost verbatim in the quarterly Kovetz Ginat Veradim published by “disciples
and chassidim of Satmar” (R. Binyamin
Berkovitz, ed.).[2]
That Kovetz Ginat Veradim includes several
other articles devoted to the same case, and which identify the principals of
the case as Ms. Tamar Epstein vs. Mr. Aharon Friedman.
To that effect, in a documented telephone
conversation, R. Shmuel Kamenetzky – member of the Mo‘etzet Gedolei ha-Torah of the Agudath Israel of America –
elucidates his personal understanding of the case of Epstein vs. Friedman.[3]
Namely, R. Kamenetzky points to the fact that R. Nota Zvi Greenblatt ruled that
the original kiddushin between
Epstein and Friedman were nullified by virtue of mekach ta‘ut (mistaken acquisition) occasioned by the husband’s mental
illness. Accordingly, continues R. Kamenetzky, despite that fact that R. David
Feinstein – also a member of the Mo‘etzet
Gedolei ha-Torah of the Agudath Israel of America – ruled (quite the
contrary) that the original kiddushin between
Epstein and Friedman still remains, nevertheless the opinion of R. Greenblatt
is sufficiently authoritative to exempt R. Kamenetzky from any obligation to intervene.
Similarly, R. Shalom Kamenetzky (son of R. Shmuel Kamenetzky) has written that
he spoke with his father R. Shmuel Kamanetzky, and that R. Shmuel Kamenetzky
responded “kedai Ha-Rav Rabbeinu Nota
shlit”a li-smokh alav le-hatir ishah
zu mi-kavlei iggunah,” viz. R. Nota Zvi Greenblatt is sufficiently
authoritative that we can rely upon him to rescue this lady from her agunah situation.[4]
In the following essay, this writer will analyze R. Shmuel
Kamenetzky’s methodology, hypothesizing that – be-mechilat Kevod Torato – R. Kamenetzky’s methodology might be
based on an innocent misinterpretation of a responsum of R. Moshe Feinstein, an
innocent misinterpretation that was generated by three writers prior to R.
Kamenetzky: R. Yom Tov ha-Levi Schwartz, R. Isaac Liebes and R. Michael J. Broyde.
This student undertakes the enterprise by announcing
in advance two caveats, as follows. Firstly, already three year ago, this
author published an essay containing a footnote recognizing both Ms. Epstein
and Mr. Friedman as tzaddikim gemurim to
whose credit redounds that their case has caused an expansion of Torah study,
analogous to the comment of Rashi to Numbers 27:5.[5]
That certainly remains the case now three years later. Accordingly, both Ms.
Epstein and Mr. Friedman are hereby honoured by the publication of the present
essay. Secondly, in no way is there any disrespect (chas ve-chalilah) intended toward R. Shmuel Kamenetzky by the
present essay. On the contrary, this student is already on the record as honouring
and congratulating R. Shmuel Kamenetzky for rescuing brain dead patients,[6]
and – regarding that particular issue of brain death – this is true even though
it conflicts with the position of R. David Feinstein.[7]
Nevertheless, the Epstein vs. Friedman case may hypothetically be different, because
R. Feivel Cohen [viz. R. Shmuel Kamenetzky’s partner in fulfilling the mitzvah
of rescuing brain dead patients] himself published a responsum stating that Ms.
Epstein remains married to Mr. Friedman.[8]
In other words, whereas in the case of brain death it was R. Cohen and R.
Kamenetzky vs. R. David Feinstein, in the case of mekach ta‘ut it is R. Cohen and R. David Feinstein vs. R.
Kamenetzky.
A. THE RESPONSUM OF
IGGEROT MOSHEH
In a series of sequential responsa, R. Moshe
Feinstein, Iggerot Mosheh, Yoreh De‘ah I, nos. 98-103 addresses the
conundrum of a married lady who has been instructed by her physicians that she
cannot allow her inner ear to be moistened with water, such that the only way
she can safely immerse in a mikveh is
with a vasaline-coated cotton plug. R. Feinstein recognizes the gravity of the
problem in the opening paragraph of his analysis by remarking that if no
halakhic license is found to allow this lady to immerse with the earplug, then
the lady will remain an “agunah,”
viz. unable to return to shelom bayit with
her husband. Fortuitously, R. Feinstein is able to proceed to argue that the
lady may indeed permissibly immerse with the earplug, thus rescuing shelom bayit between husband and wife.
As posthumously chronicled by R. Moshe David
Tendler,[9]
R. Feinstein’s earplug responsum/responsa[10]
(written during the years 5694-5695 when R. Feinstein resided in Luban) was/were[11]
at odds with the countervailing responsum of R. Yechezkel Abramsky (who then
resided in Slutzk). Accordingly, the report goes, these competing responsa of
R. Feinstein and R. Abramsky were sent to R. Chaim Ozer Grodzinsky for
adjudication. R. Grodzinsky concurred with R. Feinstein, and added the
compliment that R. Feinstein had formulated an analysis more brilliant than
that of which he [R. Grodzinsky] was personally capable.[12]
Of key interest within those responsa of R.
Feinstein is the following passage in Yoreh
De‘ah I, no. 101, found on p.186
of that volume of Iggerot Mosheh:
“And regarding that
which my beloved friend wrote [in protest against me] ‘how are we authorized to
rely on chiddushim – like these that
I clarified – for a practical [halakhic] purpose, especially when it
contradicts certain Acharonim?’
Behold I say [in response]: has there been an end and a limit to the Torah, chas ve-chalilah, that we can only rule
based on that which is found in books, and when questions materialize that are
not found in books we will not adjudicate them even when it is within our hands
to adjudicate them? Certainly, in my humble opinion, it is forbidden to say so,
because certainly “He will aggrandize Torah” [(Isaiah 60:21)] now, also, in our
time. And [so] it is obligatory for everyone in whose hands is the capacity to
adjudicate every law that comes before him according to his ability with
rigorous investigation and interrogation in Shas
and poskim with straightforward
understanding and with correct proofs, even when it is a new law that is not
addressed in the books. And even regarding a law found in the books, certainly
the [halakhic] decisor must also understand it and adjudicate with his
knowledge before he rules, and not to rule simply because it is found [printed
in the books] as such, for such would constitute the equivalent of issuing a
halakhic ruling from a Mishnah [without genuine comprehension of Gemara and apprenticeship
of senior decisors], concerning which it is stated that the [so-called] ‘Tanna’im’ destroy the world, [referring
not to actual Tanna’im but rather to
pseudo-scholars] who issue halakhic rulings based on the Mishnah alone, [as
explained] in Sotah 22a, see there in
Rashi’s commentary. And even if [a qualified halakhic authority’s] ruling is
against certain geniuses from our rabbis the Acharonim, what of it, behold certainly even we are authorized to
argue on the Acharonim, and sometimes
even on a few Rishonim, when there
are correct proofs and [where] the principle [can be upheld] with correct
reasons, and regarding this kind of situation [the Sages of the Gemara] said ‘a
judge has only what his eyes see,’ as elucidated in Bava Batra 131a, see there in Rashbam, so long as it is not against
the famous poskim, the masters of the
Shulchan Arukh who are accepted in
all our countries, and regarding this kind of situation it is stated [in the
Gemara, Chullin 7a] ‘a place was left
for me to be aggrandized’, and like the majority of the responsa of Acharonim that adjudicate with chiddushim a number of laws for
practical [halakhic] purposes. Howbeit, he [the qualified halakhic authority of
our era] may not be arrogant in decision-making, and he must avoid [decision-making]
wherever possible, but in a place of great necessity, and all the more so in a
case of iggun like this case, for
sure even we are obligated to issue a ruling, [even] if it only seems to us
[correct] to permit, and it is forbidden for us to be [excessively] humble and
to chain a daughter of Israel or to cause a stumbling block with prohibitions
or even to just cause [gratuitous] loss of the money of Israel. And see Gittin 56a [which records Rabbi Yochanan
as remarking] ‘the humility of Rabbi Zechariah ben Avkulus destroyed our Beit ha-Mikdash,’ which is [a] difficult
[statement]; why does he [Rabbi Yochanan] say ‘the humility of’? How is this
relevant to humility? And see in Maharatz
Chiyot a correct matter [of insight on this Gemara]. And [so] this [case of
immersing with the cotton plug] is literally of the same nature, and we are
required to issue a halakhic decision even in a practical sense when it appears
to us with proofs and with straightforward understanding, and especially in a
place of iggun like this, and to
rescue from a stumbling block like this.”
In employing
the term iggun in this passage – just
as in employing the term agunah in
the opening paragraph of the first responsum – R. Feinstein is obviously deviating
from the classic terminology of agunah/iggun. The classic terminology of agunah/iggun refers to a lady who seeks to remarry but is unable to do so,
either because her long missing husband cannot be proven dead, or because her
long estranged husband refuses to grant a get.
Here, by contradistinction, R. Feinstein uses the term agunah/iggun in a
fundamentally different way. Here, both the husband and wife are on the same
wavelength; both husband and wife seek to return to shelom bayit, but there is a ritual question of Hilkhot Mikva’ot that is interfering
with that quest. The iggun or
“chaining” is the hindrance from the wife returning to her own husband and the
husband returning to his own wife, as they both reciprocally seek.
As students of R. Feinstein, we can readily grasp
why this case of aguanh/iggun – where
the husband and wife are both on the same wavelength, and it is simply a
question of ritual prohibition that is hindering their return to shelom bayit – should be markedly
different than the classic case of agunah/iggun where the wife seeks to be freed
from her original husband without that husband’s expressed consent. When the
husband and wife are both on the same wavelength and the problem involves a
halakhic question of ritual prohibition, one can sometimes argue that a
minority view among the poskim to be
lenient is sufficiently authoritative to serve as a basis for reliance in a
time of duress (she‘at ha-dechak), as
per the Gemara, Niddah 6b that “Rabbi
Elazar is worthy for reliance in a time of duress.”[13]
By contradistinction, in the classic case of agunah/iggun, when there
is a contest between wife vs. husband, under no circumstances can one rely on a
minority view among the poskim to [ostensibly]
“rescue” the wife from her agunah condition.
After all, the same way there is a she‘at
ha-dechak for the wife, there is a countervailing she‘at ha-dechak for the husband.
Indeed, this principle is included within the Torah commandment “thou
shall not favour a pauper in his dispute [with another litigant]” (Exodus
23:3). Viz., although the pauper is in a state of distress, the countervailing
litigant is also in a state of distress, and so we cannot invoke Niddah 6b to favour one litigant over
the other. Ergo, R. Feinstein never intended that his words in Iggerot Mosheh, Yoreh De‘ah I, no. 101 would apply to the classic agunah/iggun scenario.
B. CRITIQUE BY MA‘ANEH LA-IGGEROT
In 5734, four decades after R. Moshe Feinstein originally
composed his earplug responsa [presented in the previous section], R. Yom Tov
ha-Levi Schwarz published Ma‘aneh
la-Iggerot, a wide-ranging critique of numerous responsa of R. Feinstein.[14]
To that effect, R. Schwarz, Ma‘aneh
la-Iggerot nos. 122-124, challenges R. Feinstein’s earplug analysis.
Interestingly, R. Schwarz actually concurs with R. Feinstein’s practical
conclusion that the lady may indeed immerse in the mikveh; R. Schwarz’ only grievance against R. Feinstein is that he
argues on the academic methodology of how to reach that same conclusion. [R.
Schwarz does not relate to R. Grodzinsky’s reported congratulatory remarks for
R. Feinstein’s responsum/responsa.[15]]
In Ma‘aneh
la-Iggerot no. 123, R. Schwarz specifically targets the passage in Iggerot Mosheh, Yoreh De‘ah I, no. 101
where R. Feinstein allows resolving iggun
problems using novel reasoning (viz. the same passage translated in full in
Section A above). R. Schwarz remonstrates by citing R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Even ha-Ezer II,
no. 75, who addresses a case of a lady where a question has arisen that she
might have accidentally received kiddushin,
thereby potentially rendering her an agunah.
R. Landau responds by enumerating seven (sic!) independent reasons why there
was no kiddushin in this particular
case. R. Landau concludes his responsum with the declaration: “And based on
these seven heterim, even if a problem
will be found with one of them, in any event based on the others – and how much
more so with the combination of them all – this betulah is permitted, and behold she is an unmarried betulah as she was before, and is
permitted [to marry] any gentleman.” Ergo, argues R. Schwarz, we see from Noda bi-Yehudah that – contrary to R.
Feinstein – we cannot resolve agunah problems based on novel
reasoning, but rather only based on solid, time-honoured, unassailable
reasoning.
R. Schwarz then continues his attack on R. Feinstein
by citing a subsequent responsum of R. Landau, Teshuvot Noda bi-Yehudah, Even ha-Ezer II, no. 129, which address a
case of a contested get. There [in a
mathematically similar manner], R. Landau enumerates seven (sic!) independent
reasons to validate the get, and
concludes with the declaration:
“In the end of
the matter, when all is considered, this lady is completely divorced, and she
is permitted to marry any gentleman she wishes except a kohen. However, although her permission is clear for me, I do not
want others to rely on me unless his honour, my father-in-law, the great
genius, our master and teacher, Rabbi Yosef, chief rabbi and yeshivah teacher of Posen will agree
with this heter, and likewise his
honour the rabbi who is mesader[16]
[will agree with this heter]. And
then the lady can marry without someone protesting. And anyone who subsequently
will question the validity of the get
will know that the net of fence of Rabbeinu Tam [who pronounced an ostracism on
those who gratuitously question the validity of gittin] is spread under his feet. And therefore everyone should be
careful and listen to voice of halakhic decisors.”
So we see, argues R. Schwarz, that even with seven
independent reasons to permit an agunah,
in this latest case R. Landau refused to allow others to rely on his responsum
unless two other Gedolim would agree
in advance. Thus, continues R. Schwarz, once again contrary to R. Feinstein, we
cannot resolve agunah problems based on novel reasoning, but rather only based on solid,
time-honoured, unassailable reasoning.
R. Schwarz then proceeds to attack R. Feinstein from
two different responsa published within Teshuvot
Rabbi Akiva Eger, Vol. 1. In the first, viz. no. 105, final paragraph, R.
Akiva Eger writes “we are orphans of orphans, [such that] because of a question
we are not capable of overriding the words of the Rishonim whose waters we drink.” In the second, viz. no. 117, a
response of R. Meir Posner to R. Akiva Eger, R. Posner writes: “This is my
humble opinion [to be lenient]. However, it is nevertheless not intended for
practice, for I am not worthy to argue on the Tzemach Tzedek [who is strict].” Ergo, claims R. Schwarz, we see
from the words of R. Akiva Eger and R. Meir Posner – yet again contrary to R.
Feinstein – that we cannot resolve agunah problems based on novel
reasoning, but rather only based on solid, time-honoured, unassailable
reasoning.
Alas, R. Schwarz has misunderstood R. Feinstein’s
invocation of the terminology agunah/iggun
in Iggerot Mosheh, Yoreh De‘ah I, no.
101. As we saw above, Section A, R. Feinstein never claimed that one can
resolve classic agunah/iggun scenarios based on novel
reasoning. Rather, R. Feinstein employed novel reasoning to address the case of
a husband and wife who are both on the same wavelength and who both wish to
return to shelom bayit yet are being
hindered by a ritual prohibition. Thus, neither of R. Landau’s responsa (which grapple with classic agunah/iggun problems, where there is a contest between wife vs. husband)
are relevant to R. Feinstein’s fact pattern. Likewise, R. Meir Posner’s
responsum (which grapples with a classic agunah/iggun problem, where there is a contest
between wife vs. husband) is not relevant to R. Feinstein’s fact pattern.
At the same time, a more formidable difficulty with
R. Feinstein is posed by the responsum of R. Akiva Eger cited by R. Schwarz,
because R. Akiva Eger does not address the classic agunah/iggun scenario.
Nevertheless, it seems to this student that even here – with some degree of careful
distinction-drawing – we can rescue it with R. Feinstein by positing that R.
Akiva Eger addresses a special case which is different than R. Feinstein’s
focus. Namely, R. Akiva Eger addresses a situation where a question had arisen
based on flimsy testimony that perhaps a lady had committed adultery such that
perhaps a child subsequently born to her would be a mamzer. Regarding this special case, R. Akiva Eger is answering
that since there is a Teshuvat ha-Rashba
[what R. Akiva Eger calls “the words of the Rishonim
whose waters we drink”] which is lenient to uphold the innocence of the
wife and hence the legitimacy of the born child, here we are required to follow
the traditional approach of Rashba, and we are forbidden to innovate a
stringency [contrary to Rashba] to delegitimize the newborn son. On this
exceptional case described by Rashba and R. Akiva Eger, R. Feinstein never intended
to argue. In other words, granted that novel reasoning can indeed sometimes be appropriate
in reaching halakhic conclusions regarding ritual prohibitions [as explained
above, Section A], nevertheless R. Feinstein will be forced to concede that this
is not so if the novel reasoning will delegitimize a newborn child as a mamzer contrary to the traditional
approach of one of the Rishonim [such
as Teshuvot ha-Rashba].
In summary, then, R. Schwarz misunderstood R.
Feinstein’s invocation of the terminology agunah/iggun
in Iggerot Mosheh, Yoreh De‘ah I, no.
101, such that R. Feinstein is not contradicted by the two responsa of R.
Landau and the one responsum sources
that R. Schwarz marshals. Furthermore, while the responsum of R. Akiva Eger
cited by R. Schwarz poses a greater difficulty against R. Feinstein, even there
we can answer on behalf of R. Feinstein that he will not agree to employ novel
reasoning when it delegitimizes a child as a mamzer contrary to the traditional approach of one of the Rishonim [such as Teshuvot ha-Rashba].
C. RESPONSUM OF BEIT AVI
As we saw in the
previous section, in 5734, Ma‘aneh
la-Iggerot misinterpreted a responsum of R. Feinstein as claiming that
classic agunah/iggun problems can be resolved on the basis of novel reasoning. In
the following section, we will argue that the same misinterpretation of R.
Feinstein was propagated a decade later, in 5745, with the publication of Teshuvot Beit Avi Vol. 4, by R. Yitzchak
Isaac Liebes.
R. Liebes, Teshuvot Beit Avi IV, no. 169, addresses the question of whether a get granted by a husband to avoid money
being seized by a secular judge is a valid get.[17]
R. Liebes acknowledges that the majority of Rishonim
consider financial coercion to be coercion that would disqualify a get, but also points to a minority of Rishonim – viz. Rabbeinu Yerucham and
possibly also Tashbetz – whom R.
Liebes claims do not consider financial coercion to be coercion.[18]
Therefore, continues R. Liebes, because the agunah/iggun crisis in the USA is an emergency,
in a time of emergency we can rely on the minority opinion of Rabbeinu Yerucham
[and possibly also Tashbetz] to
validate the get.
While R. Liebes does not reference
R. Feinstein ever in this responsum, it would appear that R. Liebes’ argument
is essentially predicated upon a misunderstanding of R. Feinstein, Iggerot Mosheh, Yoreh De‘ah no. 101 –
the very same misunderstanding that had first been propagated by Ma‘aneh la-Iggerot. Namely, R. Liebes erroneously
believes that R. Feinstein ruled that one can rely on a minority view to
resolve a classic agunah/iggun scenario which classifies as a she‘at ha-dechak. Alas, R. Feinstein never
intended such, and was only addressing a case of mikveh immersion. By contradistinction, when it comes to the
classic agunah/iggun scenario, the same way there is a she‘at ha-dechak for the wife, so too there is a countervailing she‘at ha-dechak for the husband, such
that Exodus 23:3 prohibits us from arbitrarily favouring the wife, as already
explained above, Section A.
Quite possibly, R. Liebes corrects
for his own misunderstanding [of R. Feinstein] by adding two key limitations on
R. Liebes’ own responsum: (a) R. Liebes will only validate the financially
coerced get where a qualified Beth
Din had previously ruled that the husband is obligated to deliver a get to the wife, and (b) even then, R.
Liebes considers his responsum to only be theoretical until “two rabbis who are
outstanding in halakhic decision-making who names are renowned will concur with
me.” Nevertheless, even with these stated two limitations, the publication of
R. Liebes’ fourth volume of Beit Avi may
have reinforced the misperception of Iggerot
Mosheh first professed by Ma‘aneh
la-Iggerot.
D. ARTICLE BY RABBI BROYDE
Three decades after the publication
of the responsum of Beit Avi
[analyzed in the previous section], R. Michael J. Broyde published an article
“Plonit v. Ploni: The Get from the Man in a Permanent Vegetative State” in Ḥakirah Vol. 18 (Winter 2014). R. Broyde carefully introduces
his article – which argues to validate a get
from a PVS husband in a particular situation – with the caveat (p. 60) that “the author considers his English
analysis tentative, as the literature continues to grow.” R. Broyde’s caveat
would prove prescient, because several months later R. J. David Bleich would
publish a countervailing article “The Get
of Ẓefat” in Tradition 48:1 (Spring 2015), arguing to disqualify the same get.[19] [A comprehensive survey of
the overall debate between R. Broyde vs. R. Bleich is beyond the scope of the
present essay.]
As a
postscript to R. Broyde’s own article (p. 88), R. Broyde cites a letter of R.
Moshe Mordekhai Farbstein in response to the Beth Din that arranged the get from a PVS husband. The letter reads
as follows, as excellently translated by R. Broyde:
“It
appears that you did not understand the purpose of my public statement on the
matter. The intent was not to discuss the halakhic details with you but to
express my anguish and protest on the great wrong of the three rabbinical
judges who are not among the leading scholars of our generation and arrogantly
decided to rely on their own judgment to permit a married woman [to marry
another man] in a way that none of our great rabbis have ever done, and to
publicize the matter only after the fact. Realize that even great leaders of
the generation, like R. Akiva Eger, and others, did not rely on themselves–they
made their rulings conditional on the approval of other Torah authorities.
Before you actually issued the get,
you should have written your conclusions and reasoning, and sent them to some
of the leading halakhic authorities of the generation for approval.”[20]
Then, as a
counter-response to R. Farbstein, R. Broyde (p. 89) posits that “it is clear
that R. Farbstein’s view is not the only view on such serious questions, and
that R. Moshe Feinstein adopted a more liberal view of who is qualified to
voice an opinion as a matter of normative halakhah in cases of iggun.” As evidence of this, R. Broyde
cites Iggerot Mosheh, Yoreh De‘ah I,
no. 101 [presented in Section A of this essay], inferring from R. Feinstein
that novel reasoning can indeed be employed to resolve classic agunah/iggun scenarios.
Alas, like his predecessors Ma‘aneh la-Iggerot and Beit Avi, R. Broyde (be-mechilat Kevod Torato) has misunderstood
R. Feinstein. Iggerot Mosheh refers
to using novel reasoning to resolve a ritual prohibition where the wife and
husband are both on the same wavelength and wish to return to shelom bayit. At no time does Iggerot Mosheh intend to employ novel
reasoning to resolve a classic agunah/iggun situation involving a contest
between wife vs. husband. [Hence, we can appreciate the cogency of R.
Farbstein’s letter regarding the PVS get,
as well as the cogency of R. Bleich’s subsequently published article arguing to
disqualify the same get.[21]]
E. CUMULATIVE SUMMARY
AND APPLICATION TO EPSTEIN VS. FRIEDMAN
We have seen in the previous three
sections that Ma‘aneh la-Iggerot, Beit Avi and R. Broyde all misunderstood
Iggerot Mosheh, Yoreh De‘ah I, no.
101 as authorizing novel reasoning to resolve classic agunah/iggun scenarios.
In fact, Iggerot Mosheh never
intended this. Accordingly, we might hypothesize that when R. Shmuel Kamenetzky
commented that R. Greenblatt is a sufficiently great authority for leniency in
freeing Ms. Epstein from her iggun,
R. Kamenetzky (be-mechilat Kevod Torato)
may have been innocently misled by the above misinterpretation of those three
scholars in how they read Iggerot Mosheh.
Indeed, addressing the case of
Epstein vs. Friedman, R. Landesman (sec. 10 of his article) seems to comment to
a parallel effect, as follows:
“One who
examines the responsa of the great respondents in all the generations will find
conclusively that even rabbis or batei
din of great Ge’onim did not
allow themselves to rely upon their own reasoning in laws of this nature, but
rather only issued permissive rulings after the other giants of the generation
concurred with them.”
In a footnote to substantiate his
thesis, R. Landesman points to the examples of Teshuvot Maharsham III, no. 16; VI, no. 159; and VIII, no. 133.
Admittedly, R. Landesman himself (be-mechilat Kevod Torato) has a
chequered record on matters of gittin
ve-kiddushin. On the one hand, R. Landesman opposition to R. Jacob
Kamenetzky’s hypothetically proposed prenup was a demonstration of good
judgement by R. Landesman, which paved the way for this student’s diamond-polished
edition which corrected R. Jacob Kamenetzky’s oversight.[22]
On the other hand, R. Landesman’s service as a Dayan on the Beth Din that granted R. Aryeh Malkiel Kotler a heter me’ah Rabbanim might benefit from
correction [and this notwithstanding the fact that R. Kotler (be-mechilat Kevod Torato) has himself
since been promoted to the Mo‘etzet
Gedolei ha-Torah of Agudath Israel of America] – the correction for which
has already been outlined in a footnote in a previous essay of this student.[23]
Ergo, just because R. Landesman renders a judgement on gittin ve-kiddushin, it does not mean it is automatically normative.
[Sometimes it is, and sometimes it is not.] But the cited responsa of Maharsham
do prima facie appear to methodologically
support R. Landesman regarding Epstein vs. Friedman. Likewise, R. Landesman prima facie seems to be methodologically
supported [regarding Epstein vs. Friedman] by the two responsa of R. Landau and
the one responsum of R. Posner cited by R. Schwarz [presented above, Section B].
In the end, it is not the place of this student [who
lacks ordination in Shulchan Arukh
Choshen Mishpat, and hence in matters of adjudicating mekach ta‘ut] to offer a
verdict on Epstein vs. Friedman. In the hypothetical event that the halakhah follows
the position of R. Cohen and R. David Feinstein that there was no mekach ta‘ut, it may also be hypothetically
plausible to argue that the righteous Ms. Epstein has been anoosah pursuant to the Gemara, Shevu‘ot
26a,[24]
for she was following the Beth Din of R. Nota Zvi Greenblatt in good conscience,
and thus she should be allowed to return to shelom
bayit with her righteous original husband Mr. Friedman.[25]
As for the righteous second husband, since the RCA now converts 3 times as many
ladies as gentlemen,[26]
there should be no hypothetical difficulty swiftly finding him an excellent
replacement shiddukh. Thus, all the
righteous protagonists in this episode can be honoured and live happily ever
after. Obviously, a practical question of this nature should optimally be referred
to posek ha-dor, R. J. David Bleich. Until
then, this unworthy student is satisfied that the present essay has clarified
the meaning of Iggerot Mosheh, Yoreh
De‘ah I, no. 101 regarding the methodology of resolving cases of iggun.
[2] I am
grateful to R. Daniel Eidensohn and R. David Eidensohn for bringing this Kovetz Ginat Veradim to my attention.
[5] See
Shalom C. Spira, “A Combination of Two Halakhically Kosher Prenuptial
Agreements to Benefit the Jewish Wife,” footnote 3 (of that essay), available
at .
[6] See
Shalom C. Spira, “The Halakhic Definition of Life in a Bioethical Context,”
available at
. Whereas R.
Shmuel Kamenetzky is not explicitly identified by name in that essay, it is
well known that R. Shmuel Kamenetzky [together with R. Feivel Cohen] asked R.
Shlomo Zalman Auerbach and R. Joseph Shalom Eliashiv to issue a statement on 18
Menachem Av, 5751 that considers brain dead patients to be potentially alive.
See R. David Shabtai, Defining the
Moment: Understanding Brain Death in Halakhah (Shoresh Press, 2012), pp.
309-310.
[7] See “The
Halakhic Definition of Life in a Bioethical Context,” op. cit., footnote 217 (of that essay) and accompanying text.
[8] <http://daattorah.blogspot.com/2016/01/rav-feivel-cohen-rules-heter-is.html>
Furthermore, as can be seen there, R, Cohen’s ruling is countersigned by R.
Shlomo Eliyahu Miller. This writer [who presently resides in Montreal, Canada]
recalls how in early 5766, when R. Yonatan Binyamin Weiss (of Bnei Brak) immigrated
to Canada and was formally “crowned” at a reception (se‘udat hakhtarah) in honour of his being appointed as a Dayan on the Beth Din of the Jewish
Community Council of Montreal, a videotape containing congratulatory remarks by
R. Shlomo Eliyahu Miller was played in order to demonstrate that R. Weiss is
worthy to serve the Montreal community. Thus, R. Miller seems to be entitled to
an opinion on matters of this nature (-were it not so, R. Miller’s endorsement
of R. Weiss would be meaningless).
[9] R. Moshe
David Tendler, Responsa of Rav Moshe
Feinstein: Translation and Commentary (KTAV Publishing, 1996), p. 6.
[10] It is not
clear from R. Tendler’s report whether the reference is to R. Feinstein’s initial
responsum alone (i.e. Yoreh De‘ah I, no. 98) or to all of R. Feinstein’s
sequential responsa on the same topic (i.e. Yoreh
De‘ah I, nos. 98-103). For this reason, the main text presently adored by
the footnotes is careful to specify “responsum/responsa”, in order to
accommodate both hypothetical possibilities.
[12] Cf.,
however, the alternate version of this episode posthumously recounted by R.
Shimon Finkelman, Reb Moshe: The Life and
Ideals of HaGaon Rabbi Moshe Feinstein (Mesorah Publications, revised and
expanded edition, 2011), p. 61, which does not identify the subject of dispute
between R. Feinstein vs. R. Abramsky, and which instead claims that the dispute
occurred during “the five years from 1925 to 1930” [corresponding to 5684/5-5689/90
on the Jewish calendar], in which case it could not have chronologically
coincided with the composition of Iggerot
Mosheh, Yoreh De‘ah I, nos. 98-103. It is unclear to this student whether
this discrepancy between R. Tendler vs. R. Finkelman is due to a typographical
error on R. Finkelman’s part (be-mechilat
Kevod Torato), or due to other considerations.
[13] See R.
Ovadiah Yosef, Teshuvot Yabi‘a Omer X,
Yoreh De‘ah no. 43, for an
elucidation of the parameters when this principle may be employed.
[15] See also
R. Simchah Bunim Lazerson, Shulchan
Shelomoh, Erkei Refu’ah III (Jerusalem, 5766), pp. 12-13, who cites R.
Shlomo Zalman Auerbach as allowing a lady with a cotton earplug to immerse in
the mikveh (at least under certain
circumstances). Neither R. Feinstein nor R. Schwarz nor R. Grodzinsky are cited
there as having preceded R. Auerbach on this matter.
[16] Presumably,
R. Landau means the future rabbi who will serve as the mesader kiddushin when the lady attempts to remarry. [It is also
hypothetically possible, though much less likely, that R. Landau means the
rabbi who was mesader the contested get.]
[17] As
already mentioned in the main text, the Beit
Avi volume in which this responsum appears was published in 5745
(corresponding on the secular calendar to 1984/5), several years before the
1992 New York Get Law was legislated. Furthermore, even the subsequent Beit Avi volume (i.e. Vol. 5) published
by R. Liebes – the very final volume that R. Liebes would ever publish in his
physical lifetime – was published in 5750 (corresponding on the secular
calendar to 1989/1990), a couple of years prior to the legislation of the 1992
New York Get Law. Thus, at no time did R. Liebes ever publish any responsum halakhah le-ma‘aseh validating gittin granted as a consequence of the
1992 New York Get Law.
Nevertheless, because the issues that R.
Liebes raises are conceptually relevant to the future 1992 New York Get Law,
some have attempted to argue that R. Liebes’ responsum in Beit Avi IV, no. 169 de facto
validates gittin granted following
the future passage of the 1992 New York Get Law. That attempted argument is refuted
by this student in “A Combination of Two Halakhically Kosher Prenuptial
Agreements to Benefit the Jewish Wife,” available at
.
[18] See,
however, “A Combination of Two Halakhically Kosher Prenuptial Agreements to
Benefit the Jewish Wife,” op. cit.,
Section B (of that essay), for evidence that even Rabbeinu Yerucham and Tashbetz might consider financial
coercion to constitute coercion which would disqualify a get.
[19] R.
Bleich’s article would benefit from two typographical corrections. On p. 36,
the reference in footnote 9 should read “Yated
Ne’eman, 19 Sivan 5774” (not 5744). On p. 75, the reference in line 5
should read “Tosafot, Zevaḥim 2b” (not 2a).
More conceptually, an objection can be raised against
the distinction R. Bleich (be-mechilat
Kevod Torato) draws on pp. 60-61 between patients who are mentally ill due
to physiological reasons vs. due to trauma. R. Bleich writes that
“physiological illness is curable by medication; destroyed neural tissue is
irreplaceable.” Yet, R. Moshe Feinstein, Iggerot
Mosheh, Yoreh De‘ah II, no. 146, p. 248, right-hand column, lines 12-18,
surmises that patients who are mentally ill – even due to destroyed neural
tissue by trauma – might be healed through medical therapy that has not yet
been discovered, as well as through prayer. [How paradoxically ironic, then,
that R. Feinstein takes a more optimistic approach to the prognosis of mentally
ill patients than R. Bleich, when in fact – on the matter of defining brain
death – it is R. Bleich who is more optimistic (in the sense that he deems
brain dead patients to be alive) than R. Feinstein (who – according to a
substantial school of reporters within the oral record – deems brain dead
patients to be dead; see “The Halakhic Definition of Life in a Bioethical
Context,” op. cit.)] In any event,
this more conceptual objection to R. Bleich’s article does not necessarily
detract from R. Bleich’s overall thesis to disqualify the PVS get. After all, R. Bleich’s thesis is
based on nine distinct sfekot le-chumra (tabulated
on pp. 101-102 of his article). The conceptual objection that this student is
raising would negate only one of those nine sfekot
le-chumra (viz. safek le-chumra no.
6 on R. Bleich’s list).
[20] In a
footnote adorning his translation [-the same translation which has been
adapted, with appropriate credit given to R. Broyde, in the main text of the
present essay], R. Broyde remarks:
“Of
course, R. Farbstein’s criticism presumes that R. Zalman Nehemiah Goldberg’s
approbation was inauthentic. But if R. Goldberg’s approval was in fact validly
given (or not completely retracted; see previous note), then criticism of the
judges for failing to consult with any gedolim
is inapt.”
Alas,
R. Broyde (be-mechilat Kevod Torato)
has not read R. Farbstein’s letter with sufficient care. R. Farbstein did not
criticize the judges for failing to consult with any gedolim. Rather, R.
Farbstein criticized the judges for failing to consult with a number of gedolim [-in the original Hebrew, itself
cited by R. Broyde in his article, R. Farbstein’s expression is “kamah ve-khamah mi-gedolei ha-poskim
she-bi-zmanenu.”] Thus, even consulting with R. Goldberg alone would not
satisfy R. Farbstein.
[21] A
comprehensive survey of the overall debate between R. Broyde vs. R. Bleich is
beyond the scope of this essay. However, if one were to hypothetically
accept R. Bleich’s conclusion, then one would have to grapple with an urgent
bioethical problem that R. Broyde raises in his article. Viz., R.
Broyde (p.83) quotes the suggestion of R. Yitzchak Yosef that medical attention
be withdrawn from the PVS husband so that he can die and the agunah be freed. Now, R. Broyde –
refusing to authorize such passive euthanasia – infers from R. Yosef’s passive
euthanasia suggestion that it is actually a benefit to the PVS husband for us
to deliver a get on his behalf to his
agunah wife, so that no one will
actually contemplate following R. Yosef’s passive euthanasia proposal. Since,
however, R. Bleich rejects in principle [contrary to R. Broyde] the possibility
of a get in this situation, if one
were to hypothetically accept R. Bleich conclusion, then one would then need to
grapple that we are left with R. Yosef’s proposal for passive euthanasia. Should
R. Yosef’s proposal then be followed?
It
seems to this student that the answer has already been provided by R. Eliezer
Yehudah Waldenberg, Teshuvot Tzitz
Eliezer XVIII, no.19. Viz., R. Waldenberg rules that heroic medical
measures must be employed to resuscitate a PVS patient, even though this will
prolong the agunah plight
of his wife, concluding as follows:
“…It is clear,
therefore, that since to resuscitate him is encompassed within piku’ach nefesh, that one cannot take into account in this case that which
on the other side the lady will continue through this [resuscitation] to be an agunah many years, with all the pain and
suffering and sympathy for her travail, because piku’acḥ nefesh overrides everything, and it is incumbent upon her
to accept the judgement of Heaven with love.”
In
truth, R. Waldenberg’s words require qualification. One certainly cannot demand
of the agunah wife herself to
resuscitate (or otherwise provide medical care for) her PVS husband with her
own hands. After all, her doing so [thereby prolonging her husband’s life,
thereby ipso facto prolonging her own
agunah status] imposes intense emotional
suffering upon herself, and she could plausibly argue that she is not required
to endure such suffering in order to fulfill the mitzvah of piku’ach nefesh. As R. J. David Bleich, Be-Netivot ha-Halakhah III (KTAV
Publishing, 2000), pp. 171-175 demonstrates, no bystander is required to
experience suffering worth more that the entire value of his/her wealth in
order to fulfill the mitzvah of piku’ach
nefesh. The agunah wife is thus
entitled to say, “I can’t be expected to impose such iggun suffering upon myself by prolonging my PVS husband’s life. I
would be willing more than all of my wealth to be freed from my iggun.” By contradistinction, all other
bystanders (not being the agunah
wife) experience no such suffering in resuscitating (and/or medically treating)
the PVS husband [or at least they cannot be said to be experiencing suffering
the magnitude of which exceeds their entire wealth], and so those other
bystanders are indeed obligated to resuscitate and/or medically treat the PVS
husband by virtue of piku’ach nefesh.
This
paradox, viz. the fact that the wife is exempt from saving her husband’s life
but that no one else is, raises an intriguing corollary question. Would the
wife be halakhically allowed to use force (e.g. a mandatory police-enforced DNR
order) to prevent all other bystanders from saving her husband’s life, thereby
optimizing her chances of being freed from her agunah status? At first glance, one might creatively justify such a
course of action, pursuant to the following precedent. Shakh on Shulchan Arukh, Choshen Mishpat 163, se‘if katan 18 [as elaborated by Gilyon Yad Avraham to Shulchan Arukh, Yoreh De‘ah 157:1] rules (together with several other poskim) – based on the Gemara, Yevamot 79a – that when a Jew is
captured by a gentile ruler, then he/she can rescue himself even though it will
cause the gentile ruler to capture someone else in his/her place. So, if a wife
is trapped in functionally dead marriage to a PVS patient, one could creatively
argue that Shakh et al. authorize the
wife to free herself by using force to prevent anyone from saving her husband’s
life. Nevertheless, this creative argument – while praiseworthy in an academic
sense for expanding the horizons of our Torah study – is unsuccessful halakhah le-ma‘aseh. This is because, as
explained by Shalom C. Spira and Mark A. Wainberg, “HIV Vaccine Triage:
Halakhic Considerations,” Jewish Law
Annual XX (2013), pp. 237-243, Shakh et al.’s approach is disputed by Rema
to Shulḥan Arukh, Ḥoshen Mishpat 388:2 and other poskim. Thus, the principle
that safek de-Oraita le-chumra
dictates that the agunah wife may not
follow Shakh et al. in practice.
[22] See “A
Combination of Two Halakhically Kosher Prenuptial Agreements to Benefit the
Jewish Wife,” op. cit., footnote 85
(of that essay).
It may be noted that neither R. Jacob Kamenetzky nor any
other mesader kiddushin has ever
attempted to employ the original draft of the prenup, such that no mishap actually
arose from R. Jacob Kamenetzky’s oversight. [N.B. According to the testimony of
R. J. David Bleich, personally recounted to this student in a telephone
conversation, R. Jacob Kamenetzky did not concur with R. Landesman’s objection,
calling the objection “gibberish.” However, this student humbly disagrees with
R. Jacob Kamenetzky, and does believe that R. Landesman’s objection is
appropriate, for the reasoning explained in the aforementioned footnote 85 of
“A Combination of Two Halakhically Kosher Prenuptial Agreements to Benefit the
Jewish Wife,” op. cit.]
[23] See “The
Halakhic Definition of Life in a Bioethical Context,” op. cit., footnote 238 (of that essay).
[24] That
Gemara expounds upon Leviticus 5:4 to exculpate a person who becomes confused by honest emotions beyond
his/her control. Or Zaru'a,
Hilkhot Yibbum ve-Kiddushin no. 637, employs this
very exposition to exonerate from all sacrificial liability a gentleman
who waits the statutory three months of clarification after his (apparently)
childless brother died to wed the widow through levirate marriage, and then
some time later discovers that the widow had been pregnant all along from her
original husband, with the fetus being concealed. Since the brother acted in
good faith, his unlawful incest is deemed to be anoose (an innocent
accident for which no atonement is required),
as opposed to shogeg (an inadvertent transgression for which atonement is required).
[25] Indeed, if this is
hypothetically the case, then it is a mitzvah to encourage this practical
solution. After all, the Gemara, Yoma 9a-b,
derives from I Samuel 2:22 that because Chofni and Pinchas (the two kohanim officiating at Shiloh, sons of
the High Priest) delayed from bringing shelom
bayit between wives and husbands, Scripture regards Chofni and Pinchas as
though they (chas ve-chalilah)
committed gilui arayot. [See also R. Yitzchak Zilberstein, Chashukei
Chemed al Mesekhet Ketubot (5767), pp. 349-351, who rules that a person is
obligated to spend up to a fifth of his wealth in order to fulfill the mitzvah
of bringing peace between a husband and wife.]
[26] See Shalom
C. Spira, “A Census of Sherbrooke Street for Purposes of Hilkhot Eiruvin,” footnote 4 (of that essay), available at .
