Wednesday, January 20, 2016

Dr. Marc Shapiro The Agunah Problem, Part 1; Incarceration and Free Speech- Aguna only if husband refuses to give Get after ordered by Beis Din

This is an important scholarly article and clearly indicates that much of the debate today about aguna revolves around whether one is guided primarily by halacha or by current societal values

As for the problem of women not being able to get a divorce because the man refuses, there are some important points that must be made which I don’t think everyone is aware of. Today, many people assume that a woman who wants out of a marriage, for whatever reason, has that right. After all, a woman is not a prisoner and a husband should not force her to be married to him if she doesn’t want to. However, this viewpoint is very much a modern approach.[6] If you look at the standard halakhic sources you will find that there is no obligation for a man to give his wife a divorce just because she wants it. Ever since R. Gershom, the same situation is also found in reverse, namely, a husband is not allowed to divorce his wife against her will just because he no longer wishes to be married to her. This approach to ending marriage is very much in line with how secular society use to operate before the introduction of no fault divorce.

Significantly, Maimonides does require the husband to give his wife a divorce if she says she no longer wishes to live with him.[7] R. Kafih elaborates on the wisdom of Maimonides’ position, and here are some of his important words[8]: [...]

However, it is the view in opposition to Maimonides that became the standard position, and it is this view that is recorded in the Shulhan Arukh[9] and followed by batei din. According to this approach, even if a woman says she can no longer live with her husband, he is not obligated to give her a get. What this can lead to is most vividly illustrated by the movie Gett, available here to watch for free for Amazon Prime members.

I have been told that the Beth Din of America operates on the principle that if one of the parties wants a divorce, for whatever reason, and there is no chance for reconciliation, then the Beit Din will instruct the other spouse to comply. But this is not how many other batei din operate. We have to be honest and acknowledge that the problem many women face is not because the dayanim are cruel or anti-women, but that it is Jewish law itself, or rather an interpretation of Jewish law, that is preventing them from receiving their divorces.

I feel it is necessary to stress this since we can now better appreciate why certain rabbis have attempted to find solutions within Jewish law to the contemporary agunah problem. Many on the right don’t see why this is necessary and why batei din cannot just follow Jewish law as it has operated until now instead of looking for “solutions”. These people might not realize the difficult situation this puts women in, a situation that might have been tolerable years ago but for more and more Orthodox Jews that is no longer the case. On the other hand, many on the left think that it is a simple matter to solve the agunah problem, and that it is just cruel and insensitive rabbis preventing this. This too is a distortion as the rabbis’ hands are often tied by halakhah, and this remains the case no matter how much of a “rabbinic will” they have.

Let me illustrate what I am talking about. As an example of how sentiments have changed over the centuries, here is a passage from R. Hayyim Benveniste that I have cited in two previous posts. In Keneset ha-Gedolah, Even ha-Ezer 154, Hagahot Beit Yosef no. 59, in discussing when we can force a husband to give a divorce, R. Benveniste writes:

ובעל משפט צדק ח"א סי' נ"ט כתב דאפי' רודף אחריה בסכין להכותה אין כופין אותו לגרש ואפי' לו' לו שחייב להוציא
Can anyone imagine a posek, from even the most right-wing community, advocating such a viewpoint today? The logic behind this position, as can be seen by examining the original responsum in Mishpat Tzedek, is that even if the man is running after her with the knife, we don’t assume that he will actually kill her. He must be doing it just to scare her, and that is not enough of a reason to force him to divorce her, or even to tell him that he is obligated to do so. And if we are wrong, and he really does kill her? I guess the reply would be that this isn’t anything we could have anticipated even if we saw the knife in his hand. This example shows how some poskim from prior generations made it extremely difficult for women to receive a divorce.

Let me give a few examples from more recent years. In 1967 the Supreme Rabbinic Court, consisting of Rabbis Yitzhak Nissim, Betzalel Zolty, and Yosef Shalom Elyashiv, concluded as follows.[10]
כשם שאין כופין בעל לגרש את אשתו בגלל טענת מאיס עלי, כך אין מחייבין את הבעל לגרש עקב טענה זו

This approach, which repeats itself again and again, completely undermines the assumption so many have that a man is obligated to give his wife a get when she no longer wishes to be married to him.

Look again at the conclusion of Rabbis Nissim, Zolty and Elyashiv. It couldn’t be any clearer that this woman is not an agunah. Their conclusion also contradicts the definition of agunah provided by JOFA (see here p. 22).
AGUNAH (pl: AGUNOT) A married woman who may not remarry because the death of her husband has not been verified or because (for whatever reason) she is unable to obtain a get from her husband.
It is simply not true that a woman unable to obtain a get from her husband “for whatever reason” is an agunah. I wish it were different, and I wish Maimonides’ ruling carried the day. But that is not the case, which means that an agunah has to be defined as one whose husband refuses to issue a get after ordered to do so by a beit din. [...]

For another noteworthy example, here is the conclusion of a 1953 Jerusalem Beit Din decision, by the dayanim R. Jacob Ades, R. Bezalel Zolty, and R. Yosef Shalom Elyashiv:[13]

החשש כי האשה תצא לתרבות רעה אם הבעל לא יתן לה גט, אינו משמש יסוד לחייב את הבעל לתת לה גט

This decision from the Jerusalem Beit Din has another passage that is very troubling to me. I find it hard to believe that any Modern Orthodox beit din could conclude in this fashion, and it is precisely attitudes such as this that convinced women that the rabbinic courts in Israel were stacked against them.[14]
הא דברועה זונות יש לחייבו לתת לה גט, היינו היכא שהאשה היתה רוצה לחיות אתו, אלמלא שהבעל הוא רועה זונות, במקרה זה יש מקום לחייבו לגרשה כשהיא דורשת גט, משום שרועה זונות יאבד הון וסופו לא יהיה בידו לפרנסה, וגם משום שעצם היותו רועה זונות נוגע לה שהוא גורע מעונתה, וגם יש חשש של סכנה לחיות אתו, אבל במקרה שהאשה מורדת בבעלה ולא רוצה לחיות אתו בגלל איזו סבה שהיא, ואחרי זה נהיה הבעל רועה זונות אף שיש עבירה בידו, מכל מקום אין לחייבו משום זה לתת לה גט, כיון שהיא מורדת בו הרי הוא פטור ממזונותיה ושוב אין החשש שרועה זונות יאבד הון ולא יהיה בידו לפרנסה, וגם אין הטעם שברועה זונות הדבר נוגע לה שהוא גורע מעונתה וגם יש חשש סכנה לחיות אתו, דהלא היא מורדת בו ולא רוצה בכלל לחיות אתו.
 What is a woman supposed to do in a case like this? After learning that her husband frequented prostitutes she had even more reason not to want to return to him, and yet the beit din held that in such a case the husband did not have to give her a get since her initial reason for wanting to be divorced was something else. Again we see that a man can, if he chooses, prevent his wife from being free.[...]

I think people will be shocked to learn that a woman who wants to divorce her husband because he went to a prostitute is being told by the beit din that she must stay with him if he promises not to do it again. But this only illustrates that the so-called agunah problem is inherent to the halakhic system, which according to the dominant interpretation does not recognize that a woman should be able to exit a marriage if she feels she can no longer live with her husband. There are literally hundreds of examples in the responsa literature and beit din proceedings where a woman is told that even though she wants to be divorced, there is no obligation on her husband to give her a get. Isn’t this where poskim must put their efforts to see if changes can be made? What a woman will tolerate today is not necessarily the same thing as what the Sages and earlier poskim assumed, and this is a point that was already made by halakhic authorities in prior generations.[19]

To further illustrate my point, R. Joseph Karo states that even if a husband is beating his wife he can’t be forced to divorce her.[20] She will obviously live apart from him, but R. Karo does not accept the view of some earlier authorities that the husband can be forced to issue her a divorce. This means that the woman is what we would today call an agunah, but the problem we are facing is not just about an evil man but arises from the halakhah itself. As we have just seen, according to R. Karo it is the halakhah that prevents us from forcing a husband to divorce his wife, even if he beats her.

In this case, R. Moses Isserles strongly rejects R. Karo’s opinion and states that we can force a man beating his wife to divorce her.[21] The passage I have underlined is of particular significance regarding the point I made previously.[22]

ואיני רואה בזב דבריו כלל דכדאי הם הגאונים לסמוך עליהם כל שכן שהרמב"ן ומהר"מ הסכימו בתשובותיהן בענין הכאת אשתו והביאו ראיות ברורות לדבריהם גם הסברא מסכמת עמהן ומה שלא הוזכרו בדברי הפוסקים אפשר לומר שהיה פשוט בעיניהם וקל וחומר הוא מהאומר איני זן וכו'

R. Weinberg was asked about a man who was sent to jail for sexual abuse of young girls. Understandably, his wife wanted a divorce. The rabbi didn’t know what to do and therefore wrote to R. Weinberg. He mentions that he never had to deal with a case of sexual abuse and doesn't know how to relate to it from a Jewish law perspective. He also assumes that there was no actual sexual relations but only fondling.

R. Weinberg, relying on the Hakham Zvi, states that the husband cannot be forced to divorce his wife, since he was never warned and there was no testimony in a beit din. He also says that one cannot rely on testimony given in a secular court, and makes the valid point that during that time, the Nazi era, there was a great deal of anti-Semitism and pleasure in making the Jews look bad.

None of this could have been of much comfort to the woman. We have no idea about her relationship with her husband. She might have already suspected him of being a pervert, or when he was arrested it might have clarified certain things that she wondered about. She might have confronted him after the arrest and seeing his reaction to her questions she knew he was guilty. Whatever the case, she no longer wished to remain married to someone she believed to be a sexual abuser. R. Weinberg was as open-minded a posek as one could imagine, yet even he was of the opinion that the husband could not be compelled to divorce his wife.

Today, if someone accused of sexual abuse refused to issue his wife a get, rabbis in the United States would call for protests in front of his house. Yet R. Weinberg does not see this as warranted. I think one of the most difficult things for people to grasp in his responsum, and in that of the Hakham Zvi, is the need for the husband to be warned. We are not talking about sentencing him in a beit din, where warning is a technical requirement, but whether or not the woman wants to live with him any more. In the two cases we have just seen, the issues of concern to the wives are one man’s visits to a prostitute and the other’s sexual abuse of children. Neither wife cared if her husband was “warned” in beit din since the offense is the same to her either before or after the “warning”. [...]


  1. Thanks for sharing - I was wondering about the case where the husband also does not see a future together with his wife and the refusal to give a get is done to extort money, a better deal or abuse his wife emotionally . Speaking to a recently retired very senior Israeli Dayan - he said he does not allow any side to use the get as weapon to get a better deal, extort etc and is kofeh a get. He said לצערי not all batei din follow this , but the derech of Torah , if you dig deep enough you can find a support and basis for your position. So like any siman in shulchan aruch , there is machlolek , a each beit din follows what they think is right. Back to the original post - I have quoted a dayan friend before - divorce is not about halacha , it is about people having the seichal to find a mutually satisfying solution so that they can get on with their lives and be god fearing and good people'. One can follow the halacha and still be a naval be'reshut ha'torah - Imho the halacha might not be able to force a husband to give a get - assuming he wants to be married , but if it just brings suffering , he is a naval be'reshut ha'torah. The Rambam says that one has to do teshuvah for attitudes and personality traits - I don't wish any one to be in an unwanted and abusive marriage and certainly not subject to extortion and this goes for the parents of the chained person

  2. I would encourage your readers to check the link and read what Rabbi Dr. Shapiro has written in full. I understand that his post is long, and you needed to elide, but your elisions remove much of the balance in his article, and the rabbinic sources that do not support your point of view. For example:

    "Significantly, Maimonides does require the husband to give his wife a divorce if she says she no longer wishes to live with him.[7] R. Kafih elaborates on the wisdom of Maimonides’ position, and here are some of his important words[8]:

    ברוך ה' א-להי ישראל אשר הזריח
    לנו את המאור הגדול הזה אשר במבטו החודר פלש למעמקי הדורות וצפה גם את
    דורנו הפרוץ לבשתינו ולמגנת לבבנו, אוי לעינים שכך רואות ואוי לאזנים שכך
    שומעות, ואלו ראו שאר חכמי הדורות את דורנו היו חותמים על פסקו של רבנו
    בשתי ידים. כי המציאות הוכיחה צדקת רבנו, שכל התובעת ג"פ בימינו וטוענת
    מאיס עלאי, לא רק עיניה נתנה באחר אלא היא כבר בחיק האחר או האחרים וחביטא
    קמייהו כמברכתא, ולפיכך מצוה לכוף את הבעל המעקש בכל כפיה אפשרית כדי
    להפריד בין הדבקים ויפה שעה אחת קודם


    "In fact, Sefer Agudah cites another reason why the court compels a husband visiting prostitutes to divorce his wife.

    פעם אחת בא מעשה לידי לאה טוענת
    על ראובן שהיה רועה זונות והוא כופר. ופסקתי שאם תביא עדים שהוא כן יוציא
    ויתן כתובה. איבעית אימא קרא, איבעית אימא גמרא, איבעית אימא סברא . . . ואיבעית אימא סברא דגרע מכל הנהו דפרק המדיר.

    In the final words just quoted (and underlined), Sefer Agudah is referring to this Mishnah in Ketubot 77a:

    ואלו שכופין אותו להוציא מוכה
    שחין ובעל פוליפוס והמקמץ והמצרף נחושת והבורסי בין שהיו עד שלא נישאו ובין
    משנישאו נולדו ועל כולן אמר רבי מאיר אע"פ שהתנה עמה יכולה היא שתאמר
    סבורה הייתי שאני יכולה לקבל ועכשיו איני יכולה לקבל.

    The following are compelled to divorce
    [their wives]: A man who is afflicted with boils, or has a polypus, or
    gathers [objectionable matter] or is a coppersmith or a tanner, whether
    they were [in such conditions or positions] before they married or
    whether they arose after they had married and concerning all these R.
    Meir said: Although the man made a condition with her [that she
    acquiesces in his defects] she may nevertheless plead, “I thought I
    could endure him, but now I cannot endure him.”
    This final reason given by Sefer Agudah is based on sevara and not on a rabbinic text.[17] I
    don’t know why it was not cited by the dayanim, but it supports the
    point I made that the beit din need not be bound by examples given in
    the Talmud or other rabbinic sources. Rather, it can evaluate the
    current psychology of women and how they regard marriage.."

  3. I recommend a good book which discusses this subject, about
    a married man having a prostitute; The Betrayers by David Bezmozgis, Penguin
    books, 2014. I read this book to my
    Israeli-born wife, Yemima. The wife, in
    the story, wants her man back, so as not to grow old and to live alone. A powerful, Zionistic and moving book.

  4. @kishkeyum , please read Shapiro's linked article. Specifically read his numerous cited sources, including several from Rav Elyashiv, rather than Shapiro's opinions about them. The sources are further strong sources that the husband isn't only not forced (kefia) to give a divorce, but he doesn't even have an obligation to do so.

  5. I agree that it is a good idea to read the whole article but your examples don't validate your point.

    For example you left out the critical point that he makes about the Rambam -

    However, it is the view in opposition to Maimonides that became the standard position, and it is this view that is recorded in the Shulhan Arukh[9] and followed by batei din. According to this approach, even if a woman says she can no longer live with her husband, he is not obligated to give her a get. What this can lead to is most vividly illustrated by the movie Gett, available here to watch for free for Amazon Prime members.

  6. I would like to propose the following idea, perhaps should be in a separate post, but up to blog owner.

    The controversy regarding mekach taus (MT) can perhaps be resolved. It is possible that the objections of those poskim who do not rely on MT base it on the contradicting principle that Isha bchol dehu nicha lah, which follows from tav lmetav tan du mlemeitav armlu. That a woman will accept even the most minimal husband, because she would rather be married and have companionship, than live alone like a widow. That was the presumption in the gemara, although even the gemara recognized that there were still certain limits, and there are mumin by a man that are basis for divorce.

    Some have argued that these chazakas (presumptions) can change over time, and woman would not accept certain things that they once would have. I once tried to bring a proof from laws of heseibah (reclining) on Pesach which states the opinion of the Raaviyah that nowadays women are more distinuguished, and hence do recline, even in presence of husband.

    But whether or not one accepts that, perhaps there is a solution that will work, either way. The laws of mekach taus are often predicated on figuring out what the stam daas of people is. That is what the general business practice is.. The halacha recognizes this can vary by time and place. Hakol kminhag hamedina, it all depends on the custom of the area. (and perhaps that would apply to tav lemeitav, as well).For example, if in a certain area the custom was to provide a spare tire when selling a car, the buyer can expect that, and demand it from the seller, if it arrived without one. But in a different place, it may not normally be included, and he has no claim.

    But be it as it may, this is only where nothing was specified in writing. However, if one writes into the contract that he expects a spare tire, and the seller signs, then the custom of the place is irrelevant, and the written contract definitely overrides any other factors. You can even specify you want a solid 14-karat gold steering wheel, and the seller has to provide.

    So in marriage, if a document is signed by both parties in which a woman states I will not accept somebody who is violent, or morally deficient, or was born in Staten Island, or whose mother does not have blue eyes, or whatever, that may be binding. Then, at any time after the marriage, if these things were found to be untrue, then it may be considered a mekach taus according to all opinions.

    This type of a prenup does not work thru tnai which would have the well-known problems of ein adam oseh beilosav beilas znus, and other issues. It also does not have any chashash of get meuseh, a forced get, since it is based on mekach taus, not a get.

    It is simply a contract stating what is included in the deal. Now, if she finds out that any of these things were untrue, but she didnt walk out right away, then savra vkiblah may apply (meaning, she considered the facts and decided to accept him, anyway). But if he became violent after a year, and she walks out, we do not say during that year it was savra vkibla , as the violence was unknown to her, then. Only if after he was violent one time and she did decide to stay, would there be any possibility to argue savra vkiblah.

    I am just throwing this out as a possibility, and wondering if it could be considered a separate category than tnai, and also whether it would work according to the opinions who do not normally accept mekach taus as grounds for dissolving a marriage.

  7. Barry you seem to still feel that the issue of the Kaminetsky-Greenblatt heter is simply a dispute between poskim or a disagreement as to what type of personality disorders would most modern women not want to live with.
    That is clearly not the issue. I do agree you have raised some important questions regarding the valdity of marriage and what consistutes mekach ta'ous.

    Regarding your proposal - I see two problems 1) difficulty of living with someone is largely a question of perception. A person who has a temper - but has a great sense of humor and great midos in general - could be an acceptable husband while someone who is cold and uncarring with the same anger would be intolerable. So you can 't simply make a laundry list. 2) For mekach ta'us the condition has to precede the marriage and be unknown to the spouse. Anything that developed as a result of the marriage or changes after the wedding - could be unpleasant but they are not mekach ta'us. 3) your proposal sounds like it is simply a conditional marriage which isn't a marriage.

  8. No. You are once again conflating two totally separate issues. These sources talk about whether or not a husband has a pure Even Ha"ezer obligation to grant a divorce. Kishkeyum, and I, elsewhere have disagreed with you as to whether a spouse in a marriage that is effectively over should withhold giving/accepting a get. You seem to argue that if he/she wants to reconcile, they would be justified in withholding the giving of or the acceptance of a get for as long as they want. We both have disagreed with that. This point is not addressed in any of the sources in this article.

  9. I have a riddle - which aveira is impossible to do teshuva for? BY impossible, I mean to seek teshuva, not even whehter it will be accepted!

  10. There are many critical letters against the heter, but I've not yet seen one supporting it!
    Even the Rackman BD had some support, or attempted arguments.
    Why has there not been a single letter or article by a scholar to supprot it?

  11. The thesis of Dr. Shapiro is that halacha is the "problem". I find that very unsettling.

  12. Obviously because it is universally acknowledged to be wrong.

    The only issue is how the Kaminetskys and Rav Greenblatt can retract without acknowledging they were wrong

  13. Consider: social protests do not rise spontaneously but in response to a societal abuse. Let us assume (yes, it's a stretch) that Jews are innately decent people who do things for what they believe are good reasons.
    If women are searching for an easy way to get a get or to avoid needing one there must be a reason, presumably the phenomenon of the man withholding a get out of a desire to torment the woman.
    Similarly, if men are withholding a get there must be a reason, presumably the phenomenon of the woman using the secular court system to strip the man of his possessions and access to his children.
    In short, this whole problem seems to be because otherwise decent people are acting like jerks. If it was the community expectation of the man to give the get when the wife asks nicely and for the woman to use neutral arbitration instead of the courts would this problem exist on such a scale? Perhaps we as a community should be addressing this instead?

  14. Is it unfair to say that this an attitude not uncommon in Modern Orthodox circles?

  15. Maskim

    The silver lining is that at least he is not corrupting and misrepresenting the Halacha.

    Ziyuf hatorah is much worse.

  16. I would like to comment that the opinion of R. Kafih is not as liberal as it might sound, when you read it closely. He says that because of the loose morals of our generation, when a woman requests a get, it is not merely that she may have her eyes on someone else (as gemara was concerned), but that she is already physically involved with him, and therefore it is in the HUSBAND'S best interests to get rid of her as soon as possible.

  17. fedupwithcorruptrabbisJanuary 20, 2016 at 4:23 PM

    I would like to add to Dr Shapiro's article, that Many Bais dins today support the woman going to civil court and dont hold it against her and this is a major problem that we have.If we would do away with ORA and with Batei Din that condone going to court, then we could have a fairer system. I once proposed a central Bais Din system, supported by the community that would operate as follows: At the start the husband deposits a GET in Bais Din. The case is adjudicated in Bais Din. The woman is informed that if she stays in Bais Din for the process, a Get will be given to her at the end of the process. If she enters court w/o permission from Bais Din, then her GET will be null and void retroactively. The man is also reassured that the bais din system will afford him his halachic right, as going to civil court will likely bring him a worse deal, not to mention that they both will save attorneys fees. ABSOLUTELY NO TOANIM ALLOWED! as they spoil the process as attorneys do. This way both parties follow the Torahs ways for divorcing. The woman is assured a GET and the man will get better custody/visitation thanthe civil courts etc...ORA is eliminated so no questions about GET Meusa etc...So why has no one implemented such a plan? Because many Batei din want to operate independent corrupted businesses and dont want central control! I personally know a bais din that asked from a GER $18000 for a test and dunk in the mikva and no torah lessons. This is what happens when individuals operate their own bais din.

  18. It is both fair and very accurate to say that.

  19. Haomer echto veoshiv, shuv ein maspikin beyodo la'asos tshuvo.

  20. Yehoshua Please explain Rabbeinu Gershom's motivation and intention is issuing his takana prohibiting a husband who wants to divorce his wife from actually doing so if the wife does not want to get divorced and insists on reconciliation and shalom bayis despite her husband's desire to divorce her.

    Rabbeinu Gershom's motivation and intention.

  21. For starters, they can tell the couple to separate. Not give him aliyot in shul, close the mikvah to her, give jurisdiction of the case to baltimore bet din.

    Don't bet on it. $$$

  22. R Eidensohn, are you aware of any sources supporting footnote 23 from the kisvei r yechiel Yaakov weinberg? Specifically if there is a dispute amongst earlier authorities we should reject the view that will bring the Torah into disrepute. Is there anywhere where this is put into practice?

  23. If you think about it, the Moder Orthodox are more in line with the Torah Sh'b'al Pe than the Hareidim. This is becasue the Gezeiros, Takkanot instituted by Chachamim were always doing some "tikkun" on the bare Torah Sh'bikhtav - eg consider Prozbul. The Tzedukkim made the same allegation against Chazal, with respect to the Written Torah. And one of the Gedolim of the MO, Rav Eliezer Berkovits, who wrote T'nai Bi'N'suin u'V'Get also made the same alelgation - he claimed that the Hareidi poskim were the Karaites of the Oral Law!

  24. The MO community is quite large. Many claim to speak for it on a variety of subjects. Even while their leader was still alive, many arguments arose what his positions are ranging from Zionism to abortions. The point is that there's no spokesman for them.
    That said, It's not unfair to note that quite a large percentage feels that way.

  25. Eddie have you read Rav Berkovitz writings? They are far from being mainstream

  26. I agree , it boils down to middot - how Hashem would like us to behave

  27. Does he address HdRT in the extended article? RYGB va'adaso (ORA) hold that even if there's no chiyuv to give a get, it's perfectly fine to apply pressure using HdRT. Because feminist.

  28. Rabbeinu Gershom is irrelevant. As I have pointed out before, the fact that he granted this right to woman does not mean she should use it in every circumstance. He wanted the woman to have the tool of get refusal for certain circumstances. I don't know which ones, and neither do you.
    You are again not seeing the point. Those "sources" are discussing the ability of the beis din to have the husband divorce the wife when he is not willing to do so. I don't think that you can infer from any of those piskei halacha what the dayanim would say were the man to ask them what he should do. Please indicate where you see otherwise. Please stop conflating the legal ability to act in a certain way with the moral justification for acting in that way.

  29. It is not really clear what he is referring to. For example it is clear that even though the halacha is like the Gaonim - the Rosh states that it is possible to disagree with them if there is a clear logical basis. Similar Rav Moshe say it is possible to disagree with Rishonim. But Rav Moshe adds - that is only where a particular view has not been accepted. Chazon Ish says each posek needs to decide for himself what to do but if he isn't sure he can always rely on the psak of the Shulchan Aruch. The bottom line the principle makes sense if the halacha has not already been accepted as being according to one view.

    A clear case would be the psak of the Rambam that a husband can be forced to give his wife a Get when she says Ma'os alei. As Dr. Shapiro has noted the view of the Rambam has been rejected almost unanimously including by the Shulchan Aruch. However one can argue that today the values of society are for Get on demand. So according to this principle we should change the mesora of hundreds of years and pasken like the Rambam. Haven't heard anybody cite this principle of Rav Weinberg to do so - even though there are those who say it should be changed because of ais la'asos.

  30. I was zocheh to daven in Rabbi Berkovits's shul as a boy for 6 years. What a gaon and a mensch. He was a talmid muvhak of Rav YY Weinberg.

  31. That's absurd to say that you don't know when R"G wanted it used and neither does anyone else, so you're left with the apparent conclusion that it should rarely or never be used. Totally absurd because R"G's reasoning and intent is known and it is accepted and expected for that takana of R"G to be utilized.

    But the above is really a side point. The point is that the sources clearly and unambiguously and practically - practically meaning as implemented in real actual beis din cases as cited in multiple Shailos U'Teshuvos, some of which are cited by Dr. Shapiro - say that the husband does not have to give a Get, has no obligation to give a Get, and beis din tells the couple to remain married. And reading the sh"ut, including again some cited by Dr. Shapiro, you see the beis din did tell the couple to remain married despite the wife asking for a Get under circumstances such as her husband having cheated, for example.

  32. @Yehoshua Precisely. This is the gist of my disagreement with Moe, the final installment of which I posted today. The Shulchan Aruch and teshuvos he quotes speak within the framework of hilchos gittin and כפייה. They are not discussing the obligation not to be cruel to another human being, even a hated ex-spouse, because there is no hava amina that this bein adam lachaveiro obligation would be grounds for כפייה. Nevertheless, the obligation remains. This means that once a marriage is clearly unfixable, and provided matters of money and custody will be worked out in BD or in halachic arbitration, a husband may not withhold a get, not for Even Ha'ezer reasons, but b/c it is an act of cruelty for one spouse to imprison the other in a failed marriage, and such acts bein adam lachaveiro are forbidden.

  33. On the other hand, if neither of them were acting like jerks, you wouldn't need community expectations - they would remain married happily. Unfortunately people like quick fixes instead of employing effort.

  34. What a bizarre comment.

  35. Why can't they say that they fully believe that they are right, but that they are acceding to the wishes of the Gedolim and Poskim - and seperate the couple? Then they can catch two birds with one strike. 1) They will stop the aduletry. 2) They will be a courageous example of following the opinions of the majority of gedolei Torah and poskim.

  36. I am not saying they are mainstream - even in MO world, he was quite radical - was not allowed to teach Talmud in Skokie. Perhaps Barry can tell us more about him.

  37. I believe there is a question over the halachic distinctions between מצוה לגרש, חיוב לגרש, and כופין לגרש. Sometimes Bais Din will rule that the wife's case is so strong that there it is כופין לגרש. Other times the Bais Din will rule there cannot be any כופין לגרש but that there still is a חיוב לגרש. (And in such a case the husband is rasha if he refuses to divorce, even if Bais Din cannot force him.) Then there are other cases where there isn't any חיוב לגרש but there is a מצוה לגרש. Then he doesn't have to divorce but it is recommended that he do so, and a mitzvah if he does. And finally there are divorce cases where Bais Din says to the person asking for a divorce to go back home and resume your life as husband and wife with your spouse.

  38. Politically IncorrectJanuary 21, 2016 at 12:11 AM

    Or perhaps the MO are apikursim in oral law, doing away with a plethora of generations of poskim with mere sevara ....fitting the halacha into the times. ....something that Bechhofer seems to do....

  39. Politically IncorrectJanuary 21, 2016 at 12:13 AM

    From experience, with other people, social protests evolve from feminist organizations that stand in the way ofwhat otherwise would have been a settlement long ago....

  40. Politically IncorrectJanuary 21, 2016 at 12:20 AM

    Oh, brilliant, let's demonstrate in front of Adam Fleischer's residence and DEMAND that he is withholding a get mid'rabbonon from Tamar Friedman!

  41. Politically IncorrectJanuary 21, 2016 at 12:38 AM

    Fed, I now and then wonder what would happen if any 2 parties with sholom bayis" issues should sign a document that they will adjudicate by so and so who's is rov that they trust, which means no corrupt Bais Din and no Bais Din fees and also no arkaos.

    With these toanim and "rabbis", you are their boss - until you did not pay them because once they have your money their hand, they are boss.

    From experience: the one thing that the more you pay for it, the less it is worth and that's a Bais Din...

  42. I'm inclined to $ay that it $eems$ very po$$ible the rea$on they can't do $o i$ becau$e it would cau$e other problem$.

  43. Eddie - I've thought about it, and I still think that you're off your rocker!

  44. Don't you get that "mesora of hundreds of years" does not mean much to Prof. Shapiro? Contemporary society basing its moral standards on Chazal and Rishonim and Acharonim is unfortunately only a "haredi" idea, at least according to some.

  45. You presumably mean suicide (by gun, not by poison), right?

  46. There is a lot to be said here. There are many valid points of all sorts. I have several. Let me start with this one.

    Suppose 2 people join each other and form a business partnership. They put in all sorts of provisions to provide for many possible scenarios and inevitabilities. then they sign and make a kinyan etc and they are bound. Suppose someone wants to back out for reason that isn't outlined in the contract. He can't. He is bound by the contract. He might be truly miserable and it might be a life long misery but the court doesn't intervene for him against his partner. This person is presented with a challenge that he will need to find resources within himself or within his reach to overcome his challenge. He might grow from the challenge or he might not. He is bound by his actions and it is his fate.

    A marriage is such a partnership. There are previsions and there are chiyuvim from both parties to each other. Bais din should uphold the law if someone is falling short of fulfilling his commitment. But not always (and actually usually not) is there a provision which gives the court the right, authority, and/or obligation to dissolve the union. Both parties are committed to their commitment and are faced with the challenge to do the best for themselves within their being bound to their commitment.

    It's not like there is a rodef and a nirdaf. There is a person who finds them self having made a commitment that they now regret. No one can save him from his own commitment. That's life. The spouse hasn't earned this punishment and we way not administer it. The other party has relied on the partners commitment and you can't renege. Just imagine a person gets married and soon afterwards the spouse changes the mind even though there was no wrong doing. Is it fair to leave this person to be a divorcee and throw out all the preparations and have to adjust to such an adjustment? So we say you can't renege. You can't dupe someone like that. You committed yourself and the spouse relied on your integrity, so now keep your commitment.

  47. Well, since you had already copied that paragraph I didn't need to; you elided R. Kafich's statement. Which, indeed, Barry, is not from a liberal perspective. Nonetheless, it is an interesting statement in light of the history of the halacha regarding the claim of Ma'us alai

  48. fedupwithcorruptrabbisJanuary 21, 2016 at 3:24 AM

    this is why i advocate a central bais din supported by the community at large.It would not be a private business run bais din, no toanim. You just have the shulchan oruch coupled with special circumstances which dictate the outcome. This system would afford the woman a 100% kosher Get provided that she doesnt enter the civil courts after Bais din issues its rulings. Women today who want" to have the cake and eat it" are to blame why they dont have a get.Just look at the AF case and the Meir Kin case, both husbands offered a Get for fair terms but both women decided to use ORA and the civil courts to force their husbands so they lost the chance to receive a GET. Lonna Kin was recently told by the Bais Din Shaar Hamishpot to remove all defamatory statements from the internet and to have her husband reinstated to his local shuis prior to negotiating for a GET, but she and ORA refused to comply. Therefore ORA and the women are to blame for their self imposed aguna status!

  49. Is that in Philly or in NJ? ORA or ORAphA?

  50. Moral Obligation in case of Ma'os Alai. Which is why Levush 134:10 says we do serious Harchakos that would be forbidden to do to your fellow Jew. As Rav Shternbuch explains, not giving the GET by a dead marriage shows that he is a cruel person not following the ways of the Jewish people. So no force. No obligation. Maybe even no Mitzvah. But a person Chazal say is cruel and may be shunned.

    Yitzchok Oratz

  51. Shapiro's politically correct article here is really not so scholarly and not so objective. In fact his article is putting a feminist spin on a lot of the subject matter.

    The article focuses on the so-called "so-called agunah problem", as if to imply that the primary divorce related problem the frum community must deal with is alleged victimization of Jewish women in divorce conflicts.

    The article hardly touches on the real divorce related problem(s) the frum communities must deal with, such as:
    - an anti-family divorce on demand mentality that very much conflicts with Torah values
    - feminist groups (such as ORA) facilitating divorce and persecuting men
    - anti-male prenup agreements that encourage women to divorce their husbands on a whim
    - widespread abuse by Jews of non-Jewish courts
    - rampant mesirah primarily against Jewish fathers
    - rampant financial destruction of Jewish fathers in non-Jewish courts
    - rampant alienation of divorced children from the non-custodial parent (often the father).

  52. Retroactively dissolving a marriage automatically makes Bias znus.

  53. Why shouldn't they acknowledge they were wrong? Rabbi Mordechai Willig did.

  54. Wild guess - this recently retired dayan you were speaking to is Sheinfeld, who is well known (to those who care to know) for his corruption and forcing a get unrelated to anything?

  55. The point you were responding to was whether many MOs see halacha as the "problem". They argue that the Oral Law was always developing to deal with problems, thus the example I gave of prozbul.
    You can say they are wrong etc. but this is what the ideology is of halachic change in MO. however, RYBS was quite strict and not a proponent of halachic change.

  56. Dr. Shapiro's article puts a feminist spin on the subject matter by not accurately quoting the Rambam, and by not applying the Rambam correctly to common situations in many current divorce conflicts.

    The Rambam in Hichos Ishus 14:8, when allowing a Jewish wife to demand divorce, ALSO states: "Aino noteles b'shel baal k'lum". (The wife is not entitled to anything that belongs to her husband, she should return even the shoe on her foot etc.).

    "When any person has a judgment adjudicated by gentile judges and their courts, he is considered a wicked person. It is as if he disgraced, blasphemed, and lifted up his hand against the Torah of Moses our teacher."
    (Rambam, Mishneh Torah, Sanhedrin veha`Onashin haMesurin lahem - Chapter 26)

    In today's divorce conflicts, where many women use non-Jewish courts to commit wholesale halachic robbery of their husbands, can Dr. Shapiro honestly claim that the Rambam would grant those women divorce on demand?

  57. Precisely because it is a scholarly article it ignores the social considerations you raise. It sticks to reporting traditional sources as they are.

  58. Except that the husband can walk out on a whim, while a wife, even if chased by a knife-wielding husband cannot. How do you explain such a contract?

  59. Where do you see about a mesora of hundreds of years not meaning much to Prof. Shapiro ? He just painstakingly gathered a large number of sources to demonstrate that very mesorah.

  60. Rabbi Berkovits was very medakdek on the nusach and meaning of davening. He got up one day and pointed out that certain niggunim for Anim Zemiros misunderstand the words. Can't separate the following dashed words.

    1) Should be Chavash kova-yeshua brosho.
    2) Should be Shis hamon-shirai na alecha.
    3) Should be Tikar shiras-rash b'einecha.

    When our shul, Or Torah, was started, it was in a tiny storefront, and sometimes couldn't get a minyan. he paskened that a boy under Bar Mitzva could hold a chumas and be counted as the tenth man. I know, I was that boy. Now, it is the largest shul in the Midwest.

    Later, when he was a scholar in residence, after we had moved to NY, he was asked whether the Holocaust was a punishment to the victims. He put his hands over his face, and said, What??? These were the finest people in the world. Nobody has any right to say this.

    Gave a weekly gemara shiur on Makos at his house every shabbos after shacharis, where his wife made a beautiful kiddush. He sat me next to him at the table, and I still remember the discussion of Arbaim yakenu lo yosif. When somebody in shiur made a good point that one could read psukim without separating them, he said, Now we're thinking like Amoraim.

    He clearly knew shas, poskim and tanach backwards and forwards.

    During the war, the Nazis summoned him and he could have been in grave danger, but they decided to deport him, giving him 24 hours to pack out, and he escaped to England, I believe.

    Always warm and eidel, but carried himself with a certain regal dignity that I remember clearly. Yehei zichro baruch.

  61. How do you explain such a contract?

    That the contractual terms were set by Hashem.

  62. Yes - to demonstrating that the mesora is NOT to deal with the problem in the enlightened way which he thinks it should be.


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