Chapter 3 of One Man's Judaism
In contemporary Halachic creativity Rabbis are rarely daring. This complaint is often heard whenever Jews meet to discuss the present plight of Jewish Law. It is, therefore, an event joyously to be hailed when so renowned a scholar as Rabbi Moshe Feinstein publishes a volume of responsa1 which reveals not only erudition of exceptional breadth and depth but also courage worthy of a Gadol in an age of unprecedented challenge to our cherished Halachah.
It is well known that in no area of Jewish Law is there now so keen and pressing a need for liberalism as in the area of family law. No other area involves hardships comparable to those which arise when a man or a woman cannot remarry because of the intransigence, insanity, or disappearance of a spouse. This is called the Agunah problem. It involves loneliness, and loneliness is a curse second to none. Our Rabbis explicitly rate it as worse than death. For most American Jews the loneliness that is the consequence of commitment to Jewish Law is no problem. They simply ignore the law. Enough Conservative and Reform Rabbis are available to remarry them even when their first marriage is not duly dissolved by a Get (divorce) or without proof of death adequate according to Halachic standards. Only the devout and observant now pay the price of loyalty to the law. And Orthodox Rabbis are less able to help them today than ever before in Jewish history.
In the State of Israel at least some relief is afforded by the exercise of coercion against spouses who capriciously block the remarriage of another. What, however, can be done in a Jewish community such as America has - the largest in the world and completely voluntary! Persuasion often fails. Sometimes spouses even enjoy the exploitation of Jewish Law for their own nefarious purposes and taunt their victims for their concern about a Get. No rabbi of experience has ever been spared the heartache resulting from his helplessness in the face of situations which beg for resolution. Rarely, however, does one undertake to do what Rabbi Feinstein has done. He has opened the door to relief in countless cases. Many will undoubtedly seek to close the door, but perhaps some will undertake to open it even wider.
This review will describe what Rabbi Feinstein has done and will also essay to describe why he is halachically as well as philosophically to be sustained and encouraged. His effort, and that of Israel's Chief Rabbi Yitzhak Nissim in connection with the personal status of the Jews of India, are the first major breakthroughs for the exponents of a truly visible Halachah. Neither, alas, will be enthusiastically hailed by reactionary colleagues. Indeed the emasculation of their decisions may come instead.
About one hundred fifty responsa are included in Rabbi Feinstein's volume. The overwhelming majority of them deal with family. One important exception is that responsum in which the author permits the purchase and ownership of shares of stock in a corporation whose activities involve desecration of the Sabbath. If the stockholder does not acquire control of the corporation and his power is limited to insignificant participation in the election of officers and directors, then he is not to be regarded as an owner of, or partner in, the business but rather as a potential claimant to profits, and no more. This is Jewish Law accommodating itself to the modem economy and the desire of Orthodox Jews to invest in securities. A moral philosopher might well question whether, on the basis of cherished Biblical and Talmudic economic perspectives, Jewish Law might not do better to curb the growth of corporations, the lack of social responsibility of their managers, and the speculative propensities of their shareholders. However, such a voice would be too visionary for our times, and, alas, even the religious parties in Israel are not ready for genuine Torah guideposts for the economic development of the new state.
In the area of family law, Rabbi Feinstein's accommodation to the facts of modem life is very much to be applauded. Liberalism in this sphere advances the objective of the Halachah, which always sought to prevent the suffering of spouses who, for no fault of theirs, were denied the right to remarry. For that reason several responsa hold the wives of Nazi victims to be widows even though proof of death of the husbands does not meet the standards heretofore prevailing. The same ruling applied also to one widowed by an airplane crash.
Similarly, a definite ruling is given with regard to artificial insemination from a donor other than the husband: the child is held legitimate, and the wife is not regarded as an adulteress. Furthermore, she and her husband are permitted to continue their marital status.
The responsa that are of greatest importance are those which permit husband or wife to remarry without giving or receiving a Get. Orthodox Rabbis have heretofore hesitated to suspend this requirement no matter how the marriage was first contracted - whether civilly or by an invalid religious ceremony. It was assumed that, since the two spouses lived as husband and wife and represented themselves to be such in the eyes of society and state, their marriage could not be dissolved without a Get. Rabbi Feinstein dissents. If the marriage was solemnized by a judge or even a rabbi who is not meticulous in his concern for the requirements of the Halachah, the marriage is nullity, and either spouse can subsequently remarry without the Jewish bill of divorce. This decision is sound. Most Reform Rabbis, for example, have suspended the need for a Get. They assign divorce exclusively to the secular authorities. Thus Jews who enter into marriages according to Reform rituals are, from the very outset, creating the presumption that theirs is not a marriage according to the Halachah, and from the point of view of the Halachah their marriage should not be regarded as one that must be dissolved according to the Halachah. The State of Israel may one day have need of this decision. If the secularists succeed in introducing civil marriage and divorce in Israel, then the rabbinate would do well to proclaim in advance that such marriages are not to be regarded as involving Kiddushin (consecration) but rather an exclusively non-Halachic status for the purpose of support and inheritance, and that consequently no Traditional Get will be required for their dissolution.
There is abundant authority in earlier responsa of great scholars for all thus far reported from Rabbi Feinstein's volume. However, he deserves our approbation for reaffirming the rulings in our contemporary situation when Orthodox Rabbis have become so panicky about liberalism that they have "frozen" the law beyond the wildest expectations of more saintly forebears. But there is one area in which Rabbi Feinstein forges ahead of predecessors. He permits husband or wife to remarry without a Get when there is reasonable assurance that if either had known some important fact about the other in advance of the marriage they would not have entered upon the marriage. Rabbi Feinstein has revived the Talmudic notion of "marriage by mistake," and he does not limit it, as the Tosafists of the Middle Ages did, to the period intervening between betrothal and consummation of the nuptials. According to Rabbi Feinstein, the spouse may avail himself or herself of the fraud or concealment at any time after the marriage. Thus a husband may remarry without a Get if he discovered that his wife could not bear him children because of an affliction that existed prior to the marriage. Similarly, the wife may remarry without a Get if she discovers that her husband is incapable of sexual intercourse or that he was committed to a mental hospital for a period prior to his marriage and became ill again during the marriage. The presumption is simple: She would not have married him had she knows all the facts.
What is especially noteworthy about Feinstein's desire to relieve anguish and pain is his readiness to ignore prior authorities when their conclusions are antithetical to his. Thus, with the zeal of a great humanitarian he cites the Ein Yitzhak who permitted a widow to remarry without Halitzah because he held the marriage of the widow to be a nullity, but he fails to cite the Shevut Yaakov whom the Ein Yitzhak cites and who unequivocally arrived at a conclusion opposite to that of Rabbi Feinstein in an almost identical case. Such is the power of Heterah (leniency) in the hands of a Talmudic giant! And we thought our generation was altogether bereft of them!
It is also noteworthy that the eminent Rabbi Weinberg of Montrieux ended one of his responsa, published in Noam, with a prayer that one day some rabbi will be bold enough to rule as Rabbi Feinstein has. He lived to see his prayer fulfilled.
There is no doubt but that the liberalization of Jewish family law can best be done through the broader exercise of the inherent power of a Bet Din to annul marriages for fraud or mistake. Of course, the consequence will be that the issue of marriages subsequently annulled will be regarded as born out of wedlock. But in Jewish Law this does not mean illegitimacy - or even serious consequential stigma. Altogether, to solve the Agunah problem without annulling marriages is impossible. Even in Israel, where coercion against the recalcitrant spouse is feasible, the court may be helpless if the recalcitrant spouse is in another jurisdiction or escapes there before the court's relief is sought. Furthermore, in the event of the husband's insanity the wife is absolutely without a remedy even in Israel unless the marriage can be annulled. An insane husband is not competent to delegate his authority or power to the Bet Din. For these reasons, as well as others, the abortive attempt of the Conservative movement in the United States to solve the problem with an eye exclusively on the Get was unfortunate. It seized upon the least progressive alternative (as did some American Jewish journalists) and placed in jeopardy the course Rabbi Feinstein is pursumg.
The Talmud assumes in many of its tractates that marriages by mistake are void or voidable. Indeed, such marriages can be annulled not only because of facts known to one of the spouses before the marriage and concealed from the other, but also because of facts that no one could possibly have known in advance. Thus the Talmud queries why a widow who is childless cannot annul her marriage to her deceased husband on the assumption that she would not have consented to wed him had she known in advance that she would one day require Halitzah.1
The answer is that we legally presume acquiescence on the theory that a woman prefers to be married even to a bad risk than remain spinster. Yet this is a presumption as to a state of mind. And this state of mind is subject to change. Indeed, it has changed in our day. Most Jewish women today would never acquiesce to marriage which would ultimately involve them in an Agunah situation because of the husband's insanity, lack of masculinity, or recalcitrance to give a religious divorce. These are conditions which often exist potentially in advance of the marriage, albeit unknown to either spouse in advance. Certainly they are as much potential facts as is the subsequent death of the husband without children when Halitzah is required, and but for the presumption with regard to an older generation of females who preferred any kind of marriage to none, our Sages would have waived the requirements of Halitzah. Now, however, women feel quite differently. The lot of the spinster is not as pathetic as it once was and is preferred to that of the Agunah. The Agunah is far more miserable, and her lot is far less enviable. Ours is the duty to reckon with the change.
Rabbi Feinstein hesitates to go so far. He did annul the marriage of a woman whose husband became insane after the marriage because he had been similarly ill prior to the marriage, and he so ruled even though the husband appeared sane at the time of the marriage and thereafter served for two years in the military establishment of the United States. Nonetheless, the subsequent development of the malady was enough to warrant annulment of the marriage. Insanity - actual or potential - is sufficient cause for either spouse not to want the marriage Incompatibility, however, is not adequate. Sadism - even sadism in refusing to give a Get - is also not adequate. Why? We know now that almost all neurotic behavior and the circumstances that evoke it cannot be foretold. Insanity is only an extreme form.
Yet if a marriage may be annulled because a woman does not want to cope with an insane husband, and therefore, the presumption that she would prefer a bad marriage to no marriage no longer holds because the marriage is so bad, then in every case where it subsequently appears that latent neuroses make it impossible for the spouses to relate to each other as they should there ought also be a basis for decreeing that the marriage is annulled because of mistake.
The obvious reply is that if one adopts this position one is making virtually all marriages easily annullable and such liberalism might destroy the sanctity of marriage - one of Judaism's most cherished values and desiderata. Rabbis and laymen would raise a hue and a cry that marriage bonds in Judaism are made of straw. The stability of marriages would be adversely affected. Instead of being regarded as indestructible, marriages would be regarded as ephemeral. That is why our Rabbis in the past so hesitated to suspend the requirement of a Get. That is why they so formalized the procedure for a Get. This is also why they forbade conditions and the inclusion of capricious agreements in the original marriage contract.
However, there is another consideration to be reckoned with. The overwhelming majority of marriages will not be affected. Where the spouses continue to be decent, normal and humane, the Get is always available. The problem arises principally when one spouse becomes sadistic, vicious, or vengeful. And when we insist on the Get in such a case - despite the discovery of indecent, abnormal or inhumane behavior in the intransigent one - are we promoting respect for the sanctity of marriage or undermining respect for Jewish Law altogether? This is the issue. Which end are we to safeguard? This brings one to a consideration of means and ends in Halachah generally. Respectfully it is submitted that more Halachic experts of our day ought ponder this problem.
From a philosophical point of view, can it ever be said that correct ends do not justify wrong means? It would appear that there can be no such thing as an ethical objection to the use of so-called wrong means for correct ends, because nothing can be regarded as evil except for reference to the ends involved. If we refuse to adopt a course which we regard as evil - even to achieve a worthy objective - it is because the means are evil with reference to still another end which ranks higher than the end for which we are considering the controversial means.
This can be illustrated from the writings of two philosophers - one nonJewish and the other Jewish. The former is identified with villainy of the first order; the latter, with saintliness of the highest degree. They are Machiavelli, on the one hand, and Bachya, on the other.
In the history of political thought Machiavelli is regarded as the exponent of the notion that sovereigns may do anything - steal, murder, cheat and betray - in order to keep themselves in power. He is, therefore, often called the prophet of immorality - or amorality. However, this is not true. Machiavelli simply held that there were two ends that ranked higher than all other ends - the life and liberty of the country. Since there are no ends worthier than these, when these ends must be served one cannot be deterred by considerations of justice or injustice, humanity or cruelty, glory or shame. If Machiavelli had maintained that the life of an individual is as important as the life of the nation, a position very much supported by the Halachah, he might not have urged his Prince to be so "knife-happy" or "poison-happy." One must take issue with him not as to whether the use of foul means is proper or improper, but rather as to what are the highest ends. For that reason the philosophy of Halachah is so much sounder.
Halachic discussions are always with respect to ends. One asks: "Which end, which mitzvah, ranks higher, so that a lesser one gives way or is even altogether disregarded?" We do not speak of ends justifying or not justifying means. Every deed and every thing serves some end. Even our involuntary breathing is related to an end - the mitzvah of self-preservation. This end, however, may yield in one case to a higher end - as in the case of martyrdom for the sanctification of God's name - or it may not yield to that end as in the many instances when it is permitted to violate the law and save one's life.
Bachya makes this clear in a passage of his Duties of the Heart in connection with that incident in Samuel's life when God told him to lie to Saul in order to save his life (1 Samuel 16:2). When Samuel hesitated to go to Saul lest Saul kill him, God did not tell him to place his trust in the Lord; instead, He directed him to use a subterfuge. Thereby, says Bachya, God gave His approval to the abuse of truth in self-defense, even though He could have admonished the prophet for
his lack of faith in Him Who has the ultimate power of life and death over all of us.
The pursuit of truth is also a mitzvah. Nonetheless, there are other mitzvot to which it yields. In a similar vein one might interpret the two dissimilar prohibitions in the Torah not to lie. In Exodus the command is to keep one's distance from falsehood. In Leviticus the command is simply not to lie. It appears from numerous commentators that the Levitical command is a relative one; it yields in the interest of peace. God Himself lied to Abraham when he reported to the husband about Sarah's statement that her husband was old. In Exodus, on the other hand, the command is part of a code pertaining to courts of law. In courts of law there can be no compromise with truth. Witnesses must not conceal or doctor their testimony, no matter what the consequences.
The Torah's interest in justice is an interest so high in the hierarchy of interests that it would be defeated if witnesses could take liberties and revise their stories in the interest of good will or domestic tranquility. To such an extent is unequivocal, absolute truth the desideratum in a court of justice that the ingenious author of the Meshech Hochmah explains that the reference to in the ninth commandment of the Decalogue is to a false witness, and not to false testimony, because even if what the witness is telling is the truth, but the witness knows the truth only by hearsay and not because he saw the facts, he is a false witness: the testimony itself may be true, but the witness is a liar, for he is making himself appear as a competent witness when he is not.
Thus the Halachah never approved of the extreme attributed to Immanuel Kant that one may never lie. There are times even in a court of law, for example, when the obligation to tell the truth may be suspended - when the court of law is not one in which justice is really meted out. Indeed, there is one responsum among the many written by R. Meir of Rothenburg to the effect that a Jew may not tell the truth in a non-Jewish court which is given to the persecution of Jews, when thereby, damage would result to a co-religionist. For telling the truth, the Jew in such a case is held accountable to the aggrieved party: his obligation is to lie.
Professors Dewey and Tufts in their textbook on Ethics define moral experience as "that kind of conduct in which there are ends so discrepant, so incompatible, as to require selection of one and rejection of the other.. .. It is incompatibility of ends which necessitates consideration of the true worth of a given end and such consideration it is which brings the experience into the moral sphere."
Thus, almost every time that a Jew exercises free will - Behirah - with regard to his performance of an overt act, he is having a moral experience. He is choosing between incompatible ends. Sometimes the ends are incompatible because one is God-given and the other Satan-inspired. Sometimes both ends are God-given, and the choice is dictated by Halachah. Sometimes the ends are God-given, and the Halachah enjoins one to make one's own choice.
This brings us to a further point. Does the Halachah ever bid one to exercise one's own moral consciousness to ignore one of its own norms because of an end also halachically approved but for which there is no special rule calling for its possible violation - unlike the case of a positive commandment which is to be obeyed even if it involves a violation of a prohibition? There is authority for an affirmative answer.
Two such general instances are known to the Halachah. The first is based on the verse "When the time has come to act for the Lord, they violate Thy Torah." True, the authority given in this verse is dangerously broad. One should never exercise it without the greatest caution. However, the two historic instances cited in Talmud when this authority was exercised are revealing. Rashi cites Elijah's sacrifice outside of Jerusalem on Mt. Carmel as a Biblical precedent. But this instance could have been a Hora 'at Sha 'ah, a crisis or emergency decision. The two historic instances were: First, to permit the use of God's name when we greet one another: for the end of peace - for the end of brotherhood - we violate the commandment in the Decalogue not to make needless mention of the Creator. Second, to permit the writing of the Oral Law, or more correctly as Prof. Czemowitz interprets the matter, to permit the use of written materials to teach the Oral Law. If this permission had not been granted, who knowwhether Judaism would have survived except among a handful in ev generation. The revolutionary character of this decision can only be fathome
the light of the text that compares one who commits Halachic precedents to writing to one who bums the Torah (B. t. Temurah 14b)! Nonetheless, the final ruling was that one may commit the Oral Law to writing.
One dare not spell out what powers are vested in Rabbis of every generation in the light of these precedents. Of interest it must be that there was not always unanimity as to what type of conduct was called for by the mandate that one violate God's law when the time has come to act for God. There were differences of opinion among the Rabbis both as to when and as to how the prerogative should be exercised. One very timely illustration is found in the Babylonian Talmud (Berachot 63a): Hillel the Elder said that "at a time of withdrawing one should scatter, and at a time of scattering one should withdraw." Rashi interprets this to mean that when Torah is being taught by Gedolim, lesser scholars should make themselves inconspicuous and not teach Torah; the value they are to conserve is that of personal humility. However, according to the Palestinian Talmud - as the Maharsha indicates - the lesser scholars are never under such a disability. They must always teach Torah. Their mandate to violate the law and avoid the teaching of Torah is only applicable when their superiors are similarly restrained - because Torah is held in low esteem. Perhaps this illustration is relevant to our day far beyond the scope of the problem of Jewish family law. It is cited only to indicate that policy differences there were with regard to the broad prerogative of the Rabbis. Apparently the Yerushalmi felt that when Torah is well received, all of us, even young Rabbis should not go into retirement but instead should take advantage of the opportunity and multiply scholars everywhere. Rashi, in his interpretation of the Babylonian Talmud, gives the young a more modest role. They can only teach when their elders have ghettoized themselves. Again, this instance is cited only to demonstrate that there have been, and will continue to be, until the Messianic era, differences of opinion as to politics and programs that properly come within the scope of the broad Rabbinic prerogative to vitiate one law for the advancement of another.
When Rabbis as a group want to make decisions that are quite revolutionary and do so in the name of their historic prerogative, there is another principle that can also help them. This is a principle that constitutes an exception to the general rule that we do not ask one man to sin in order that another may thereby have a mitzvah.
