Illustration by Denis Shifrin
The problem of the Agunah was discussed in Talmudic times. When Chief Rabbi Hertz published his Chumash in 1936, seventy years ago, he wrote 'Learned rabbis are today seeking a radical solution of this urgent problem.' How urgent is urgent? A meeting was arranged in Israel for 2006 to discuss 'Agunah'. Leading rabbis from many countries were invited and many accepted. Days before the meeting it was cancelled.
The Agunah problem lies in the fact that a Jewish divorce is only valid if given voluntarily by the husband. The principles of Jewish divorce procedure are set out in the Torah and the rabbis submit that they are therefore inviolable. This submission will be discussed below.
Prof. Nahum N. Glatzer wrote that Hillel was motivated by social concerns and introduced the Prosbul which virtually abolished the Written Law which provides for the cancelling of debts.
Support for the view that the Rabbis have such authority will be found in a paper delivered by a United Synagogue rabbi to the Limmud conference in 1999.
A few years ago, Rabbi Dr. Emanuel Rackman together with two other prominent rabbis made suggestions for overcoming the problem.
Why cannot our current religious leaders, in situations where they have a precedent, act accordingly?
I refer to a slim book written by Rabbi Eliezer Berkovits called 'Not in Heaven: The nature and function of Halacha.' For people looking for ways of easing the plight of the Agunah, his book is a must. He discusses the importance of common sense, the s'bara, in establishing the principles of the Halacha as well as determining specific legal decisions. He gives examples where the rabbis have 'uprooted' biblical law and ruled contrary to it when common sense or the remedying of social injustice, demanded it.
Let us examine the Rabbi's statement that since the laws concerning the Agunah are Torah Laws they are inviolable.
Deut. 17 v's 8-12, discusses what to do if difficult personal problems arise. The people are advised to go to the priests and whatever they tell you, you shall do. Deut. 31 v 9 tells that Moses wrote the Torah and committed it to the keeping of the Priests so that they may teach the people. Logically, when Moses gave the Torah Law to the priests, the Oral Law must have been given to them at the same time.
Circa 600 BCE, the prophet Ezekiel writes: 'But the Priests that kept the charge of My sanctuary when the children of Israel went astray from Me, they shall come near to Me to minister unto Me'. Ben Sira, in his Ecclesiaticus, mid 2nd century BCE, mentions only the priests as the then leaders.
These four references show that the priests filled the role of religions teachers continuously for over 1000 years, as the Torah had commanded them.
Circa 150 BCE, things began to go wrong for the priests. Some became corrupt. High priests were politically appointed instead of being appointed by entitlement. Some say that they associated with the upper classes and with Hellenism.
The scribes and the more religiously minded, 'the Pharisees', the forerunners of the rabbis, became disillusioned with the priests, led a revolt against them and eventually usurped their status as the teachers of the Jewish religion. Their reasons are understandable but they were clearly acting contrary to the plain commands of the Torah, namely, that it was the priests who should be the teachers. They not only usurped the status of the priests but also denigrated them. They wrote them out of our history by claiming that they, the Pharisees, were the true inheritors of the Oral Law and that the priests had no Oral Law tradition, a claim that is obviously wrong.
Again, the rabbis uprooted the Torah's commandments in connection with the shofar and lulav. The Torah commands that on the first day of the seventh month we blow the shofar and on the fifteenth day we take hold of the lulav. When the first and fifteenth days fall on Shabbat the rabbis uproot the commandments in case people carry the shofar and lulav to synagogue. Not carrying on Shabbat is a rabbinical decree but the rabbis give it priority of the Torah decree.
A third example shows that where the rabbis disapproved of a commandment for the sake of justice but could not overturn it, they tried to ignore it. Deut. 23 v 3 states 'a bastard shall not enter into the congregation of the eternal one.' A bastard in Jewish law is the offspring or a forbidden union. The rabbis thought that this law was unfair to an innocent child. However, they recognized that the law was intended to discourage such unions. So they tried not to notice them.
First came a decision by a Rabbi Yizhak who ruled that where a bastard is submerged into a family, we do not investigate to discover which child it is. Rabbi Yohanan, as quoted in the Jerusalem Talmud, took an oath that he could prove of bastards, but would not do so. It was decided that it is forbidden to reveal a bastard.
Two questions arise from all this. The first is why did the Pharisees and early rabbis 'uproot' so many of the Torah's commandments if they considered them to be inviolate? The second is by what authority did they exercise such audacity?
One possible answer to the first question might be that they saw so many personal problems arising from the strict application of the Torah laws that they said to themselves 'this can't really be what God wants'.
A second possible answer might be found in a book called 'A Hidden Revolution' by Professor Dr. Ellis Rivkin, a professor Jewish history. The book argues that the Pharisees usurped the leadership from its rightful owners, the High Priests.
Why did they take the priest's authority? Dr. Rivkin gives two reasons: (1) That at the time the priesthood had become corrupt. (2) The Written Law was bogged down in a commitment to immutable laws administered by a priestly class. It was not geared to the fast-paced urbanization and commercialization then developing. People became frustrated and the time for revolution had arrived. The Pharisees were there and took their opportunity to seize power.
How did they seize power? Dr. Rivkin gives several reasons but I will mention just two: (a)They showed that the ultimate authority did not lie with the priesthood. (b) That there were various ambiguities in the Torah, which enabled them to draw their own inferences.
The second question I asked above was, 'by what authority did they (the rabbis) exercise such audacity?' An answer might be that they realized that as the Torah's commandments were causing undue personal problems they found verses in the Torah such as Deut. 6 v 18, 'And thou shalt do that which is right and good in the sight of the Eternal One.' From such sentences they assumed that they could introduce humane amendments.
One final question is if the early rabbis uprooted so many Laws for so many people in a variety of circumstances, why cannot today's rabbis do the same for today's Agunah? For the answer to this question I refer to a letter written by a well-known orthodox rabbi.
'We live in an era in which Judaism is being recast in an almost unrecognizable straitjacket. One of the pieces of this new paradigm is the use to the term 'Gadol' or 'Great" of certain rabbis who alone, it now appears, are the sole arbiters of Jewish Law. But never over the past two thousand years has the law been the exclusive domain of one or two men alone even when, on occasion, one has been head and shoulders above the rest'.
I think that the rabbinate will not resolve the problem of the Aganuh in spite of their continual expressions of regret for two reasons:
- Why should we now think that they would agree to act in unison on the matter of Agunah? Let us compare this with the principles of conversion, which, by biblical standards, are very simple. Recently the London Beth Din refused to accept conversations carried out by the Israeli Beth Din. There was then a report that the Israeli Beth Din might not accept conversations from overseas Battai Din. This shows how difficult it will be to get rabbis to agree on the Agunah.
- Too many of them have surrendered their authority.
But this whole story does not add up. Chief Rabbi Hertz said that learned rabbis were seeking a radical solution. The Israeli Rabbinate cancelled a meeting to discuss the problem. This appears to suggest that a solution could be available. What is holding it up? Is there a hidden agenda? To see whether this might be the case I will quote selected sentences from another of the aforementioned rabbi's letters:
'Jewish Law allowed for the annulment of marriages where circumstances permit.' 'Sadly, over time attitudes began to harden'. 'As women began to assert their rights, the predicable response of all religious authorities was and is to resist change.'
'I personally believe that were the males to be the primary losers in this matter, it would have been dealt with within the framework of the Halakha a long time ago.'
'The only explanation I have is that they (the rabbis) are fearful of being accused of lenience in an era where leniency is almost akin to apostasy. 'But now it seems that, as in Britain and America, the Haredi rabbis are exercising pressure and the moderates are capitulating.' 'Moderate rabbinical leadership has given up the struggle.'
If we combine my thought with those contained in the rabbi's emails, it would appear that where there is a will there is a way. Unfortunately the 'Powers That Be' still seem reluctant to find that way.