	The Agunot Campaign
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Jackson Text of lecture delivered on March 13th 2001 under the auspices of the Institute of Advanced Legal Studies, the Oxford Centre for Hebrew and Jewish Studies and the Jewish Law Publication Fund Trustees. e-mail: bernard.jackson@man.ac.uk Note: if you cannot see the Hebrew font in the article below, please download Bwhebb.ttf from www.bibledoctrine.net/fonts/ and install it in your Fonts Folder. ‘It is not your duty to complete the work, but neither are you free to desist from it’ (*Pirkei Avot* 2:20) 1.0 Introductory 1.1 History and Authority Not infrequently, the problem of agunah is approached by appeals to history, whether by simple reference to an earlier stage in the development of the halakhah, or to the dynamic processes of Jewish law: major historical changes, it is argued, have been made in Jewish law (not least, in the areas of marriage and divorce) in the past; why, then, can we not make the necessary changes to meet the problem of agunah today? Against this, a halakhist might reply: it is not a question of history, but rather of authority. The mere fact that changes were made in the past does not in itself entail the view that we have authority to make such changes today. At this point, however, the history of the matter re-enters the debate. The question of authority itself sometimes depends upon historical claims. If the Talmud ranks as the highest authority, we need to establish the text of the Talmud. One talmudic text vital to our question has, as we shall see, a problematic text. Is the establishment of the text itself to be determined by historical scholarship or by recourse to authority? Again, the questions “what did the Gaonim actually do, and on the basis of what authority did they do it?” are historical questions, but the normative value of Rabbenu Tam’s rejection of the Gaonic approach may be premised upon the answers given to them. Authority systems, moreover, themselves have a history. If we are not entitled to argue: “just because changes have been effected in the past, the authority must exist to make further changes today”, it must follow that we cannot argue either: “just because changes have been not been effected in the past, the authority cannot exist to make changes today.” 1.2 A New Problem? In discussing this problem, the impression is often given that the agunah problem is a relatively recent one — a product of the era of Emancipation, when (i) both marital breakdown and abuse by the husband of his rights in relation to a get are more common and (ii) the halakhic authorities themselves (deprived by both internal and external factors of some of their traditional powers) have suffered a loss of nerve and have become more reluctant than their predecessors both to innovate and even to exercise powers which the halakhah gives them. In fact, these features of the “modern” period are already well attested from an early stage in the halakhic tradition. Mishnah Nedarim 11:12 already records a tightening in the rules regarding the wife’s entitlement (in defined circumstances) to demand a get against the will of her husband, the motivation being stated explicitly as “a woman must not be [so easily given the opportunity] to look at another man and destroy her relationship with her husband.” Indeed, even the strategy of rabbinic encouragement to the family of the agunah to “pay off” the husband in order to achieve a “voluntary” get is attested at least as early as the twelfth century (e.g. a responsum of Raban, §4.2, below). Other than the parallel existence of civil marriage and divorce, I believe that there is little in our present difficulties which is inherently modern or new. Contrary to some contemporary voices, the present difficulties already existed long before the introduction of civil marriage and divorce. Nor can we blame our present predicament on inhibitions against beating the husband deriving from secular criminal law: the halakhic problem of when kefiyah is permissible is quite independent of such external constraints. 1.3 Criteria I shall review some aspects of the history of three of the principal strategies which have been used to try to alleviate the problem of the agunah, in order to highlight the problems of authority which, respectively, afflict them. The agunah problem is, I believe, primarily a problem of authority. If we were able to resolve the various authority issues which arise, we would rapidly achieve a solution to the agunah problem (and much else, besides). Of course, we have to define what we mean by a “solution”. I do not demean the sincere efforts of those who have sought to provide case-by-case alleviation, or limited solutions, halakhic or secular (such as the inherently “parochial” measures involving inhibitions on divorce in secular law or the range of civil disabilities now available as sanctions in Israel). But the problem will continue to plague us — as one of morality, of reputation (hillul hashem) and of social/gender values — until and unless we find a universal solution, either one which prevents the situation of agunah from arising at all [I refer throughout to the victim of a recalcitrant husband, not the wife whose husband has disappeared] or provides a universal remedy when it does arise. So let me proceed to the three principal strategies: conditions, coercion and annulment. Continue onto page 2

The Agunot Campaign

Agunot Campaign - Lecture - Page1

Professor B. Jackson

Co-Director, Centre for Jewish Studies, University of Manchester

'Agunah and the Problem of Authority' © Bernard S. Jackson

Text of lecture delivered on March 13th 2001 under the auspices of the Institute of Advanced Legal Studies, the Oxford Centre for Hebrew and Jewish Studies and the Jewish Law Publication Fund Trustees.

e-mail: bernard.jackson@man.ac.uk

Note: if you cannot see the Hebrew font in the article below, please download Bwhebb.ttf from www.bibledoctrine.net/fonts/ and install it in your Fonts Folder.

‘It is not your duty to complete the work,
but neither are you free to desist from it’ (Pirkei Avot 2:20)

1.0 Introductory

1.1 History and Authority

Not infrequently, the problem of agunah is approached by appeals to history, whether by simple reference to an earlier stage in the development of the halakhah, or to the dynamic processes of Jewish law: major historical changes, it is argued, have been made in Jewish law (not least, in the areas of marriage and divorce) in the past; why, then, can we not make the necessary changes to meet the problem of agunah today? Against this, a halakhist might reply: it is not a question of history, but rather of authority. The mere fact that changes were made in the past does not in itself entail the view that we have authority to make such changes today. At this point, however, the history of the matter re-enters the debate. The question of authority itself sometimes depends upon historical claims. If the Talmud ranks as the highest authority, we need to establish the text of the Talmud. One talmudic text vital to our question has, as we shall see, a problematic text. Is the establishment of the text itself to be determined by historical scholarship or by recourse to authority? Again, the questions “what did the Gaonim actually do, and on the basis of what authority did they do it?” are historical questions, but the normative value of Rabbenu Tam’s rejection of the Gaonic approach may be premised upon the answers given to them. Authority systems, moreover, themselves have a history. If we are not entitled to argue: “just because changes have been effected in the past, the authority must exist to make further changes today”, it must follow that we cannot argue either: “just because changes have been not been effected in the past, the authority cannot exist to make changes today.”

1.2 A New Problem?

In discussing this problem, the impression is often given that the agunah problem is a relatively recent one — a product of the era of Emancipation, when (i) both marital breakdown and abuse by the husband of his rights in relation to a get are more common and (ii) the halakhic authorities themselves (deprived by both internal and external factors of some of their traditional powers) have suffered a loss of nerve and have become more reluctant than their predecessors both to innovate and even to exercise powers which the halakhah gives them. In fact, these features of the “modern” period are already well attested from an early stage in the halakhic tradition. Mishnah Nedarim 11:12 already records a tightening in the rules regarding the wife’s entitlement (in defined circumstances) to demand a get against the will of her husband, the motivation being stated explicitly as “a woman must not be [so easily given the opportunity] to look at another man and destroy her relationship with her husband.” Indeed, even the strategy of rabbinic encouragement to the family of the agunah to “pay off” the husband in order to achieve a “voluntary” get is attested at least as early as the twelfth century (e.g. a responsum of Raban, §4.2, below). Other than the parallel existence of civil marriage and divorce, I believe that there is little in our present difficulties which is inherently modern or new. Contrary to some contemporary voices, the present difficulties already existed long before the introduction of civil marriage and divorce. Nor can we blame our present predicament on inhibitions against beating the husband deriving from secular criminal law: the halakhic problem of when kefiyah is permissible is quite independent of such external constraints.

1.3 Criteria

I shall review some aspects of the history of three of the principal strategies which have been used to try to alleviate the problem of the agunah, in order to highlight the problems of authority which, respectively, afflict them. The agunah problem is, I believe, primarily a problem of authority. If we were able to resolve the various authority issues which arise, we would rapidly achieve a solution to the agunah problem (and much else, besides). Of course, we have to define what we mean by a “solution”. I do not demean the sincere efforts of those who have sought to provide case-by-case alleviation, or limited solutions, halakhic or secular (such as the inherently “parochial” measures involving inhibitions on divorce in secular law or the range of civil disabilities now available as sanctions in Israel). But the problem will continue to plague us — as one of morality, of reputation (hillul hashem) and of social/gender values — until and unless we find a universal solution, either one which prevents the situation of agunah from arising at all [I refer throughout to the victim of a recalcitrant husband, not the wife whose husband has disappeared] or provides a universal remedy when it does arise. So let me proceed to the three principal strategies: conditions, coercion and annulment.

Continue onto page 2

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