Ki Tetzei(Deuteronomy 21:10-25:19)
Ties That Bind
"If a man marries a woman and lives with her, and it will be that she will not find favor in his eyes, for he found in her a matter of immorality, and he wrote her a bill of divorce and presented it into her hand, and sent her from his house." (Deut. 24:1)
From this verse our rabbis derive the rules of Jewish divorce in the Tractate Gitin of the Babylonian Talmud.
The basic rules are familiar to most people. The husband must write a bill of divorce and hand it to the wife in order for her to be considered single once again in the eyes of the Torah. If his whereabouts are unknown, or if he is mentally incompetent or simply unwilling to hand her the bill of divorce or get, the woman is stuck in the special status called aguna, much publicized in recent times.
How could the Torah so discriminate against women as to leave them helpless and defenseless, at the mercy of their husbands in situations of divorce, which tend to bring the cruelest and least desirable traits in human nature out of the closet? The unfortunate result of this law is that low-life husbands, unwilling to release their wives, can keep them imprisoned in intolerable marriage situations indefinitely, while others can use their leverage unscrupulously and hold their wives up to ransom in exchange for the get, a Jewish wife's only passport to freedom.
[We should point out at the outset that both of these horrendous scenarios result from the fact that Torah courts have no power to implement their rulings today. According to Torah rules a wife is always entitled to a get if she wants out of her marriage. She isn't always entitled to a marriage settlement, but cannot be imprisoned or held up for ransom. A Jewish court is duty bound to physically force the husband to give his wife a get. If he refuses the court order, he is lashed till he agrees.
Nevertheless, the Torah is eternal. God, who gave it to us, certainly foresaw our situation in the modern world. We cannot avoid the difficulty involved on technical grounds.]
Modern Jews are all familiar with this scenario, no matter what 'stream' of Judaism they are affiliated with. The aguna problem is one of the most common arguments put forward to discredit Orthodox Judaism and to portray it as medieval and chauvinistic. So, let us confront the question head on. Can we relate to a law of marriage that contains a built in aguna problem?
The key to being able to accept the rules of Torah divorce with an open mind is the test of arbitrariness versus inevitability. We automatically reconcile ourselves to things we consider inevitable no matter how harsh and cruel they may be. We do not rail against cancer or Aids; they are terrible but beyond our power to amend. On the other hand we justly rebel against problems whose source is caprice or cruelty whether it be human or Divine in origin. We cannot eliminate the tragedy of the aguna problem in today's world but we can demonstrate that it is not a product of caprice or the result of a negative or patronizing attitude towards women.
MARRIAGE: THE PARTNERSHIP MODEL
Let us begin by analyzing the way we perceive marriage in the modern world. Before we begin, it is worthwhile to note that the survival rate of modern marriages is low. In our modern world people tend to marry later, if at all, and more than 50% of marriages end in divorce. While divorce is on the rise even among the Orthodox, young people in the Orthodox world still get married in very high percentages, still tend to marry in their early twenties, and an overwhelming percentage of Orthodox marriages still last for a lifetime. There are obviously many factors behind these diverging statistics, but there is little doubt that how you define the institution of marriage is one of the more important causes of the difference.
A modern marriage is a co-operative enterprise formed to accomplish certain common goals: the establishment of a home, the conception and rearing of children, the elimination of loneliness. Due to a greater degree of flexibility in defining 'moral' behavior love and romance are no longer essential factors in the decision to marry; although they obviously remain crucial in the selection of a suitable marriage partner. In this modern conception of marriage, each partner retains his or her own identity. Co-operation is a matter of choice and is based on utilitarian considerations. The existential merging of identities may occur but such blending is definitely not a specific aim of modern marriages and goes against the grain of the search for self-fulfillment that is so precious to modern man.
The reasons for the formation of modern marriages establish the parameters of their survival. If either of the parties decides that the aims of the partnership are not being met; the type of home they dreamed of failed to materialize; there is a failure in the area of child bearing or child rearing; there is no adequate solution to the problem of loneliness; then that party will naturally demand the dissolution of the partnership. Marriage is a utilitarian enterprise; if it fails to fulfill the purpose of its formation it is non-functional.
In this type of marriage model, to keep people trapped in the married state would be unthinkable. This partnership type of marriage is given recognition by the Torah under the Noachide laws:
"Therefore a man shall leave his father and his mother and cling to his wife and they shall become one flesh." (Genesis 2:24)
The rabbis derive the Noahide laws governing marriage relationships from this verse. The Noahide laws are the seven commandments given to Noah after the flood; they apply universally to all human beings. A Noahide marriage is one where the couple "becomes one flesh" as described in the verse.
The concept of "becoming one flesh" is not meant to denigrate the quality of the relationship formed. The Torah considers such a relationship sacrosanct and offers it serious legal protection. Committing adultery in violation of a Noahide marriage is just as serious an offence as committing adultery in violation of a Jewish marriage.
BECOMING ONE SOUL
But the "becoming one flesh" of the Noachide marriage must be viewed in juxtaposition to becoming one soul, the Torah conception of a Jewish marriage - the spiritual fusion of two separate individuals into a single entity.
Rabbi Elazar said: A person who does not have a wife is not an Adam, [a human being]. It is written: "He created them male and female. He blessed them and called their name Adam on the day they were created." (Genesis 5:2) (Talmud, Yevomat, 63a)
The Torah conception of Jewish marriage goes far beyond the partnership model. God gave the name Adam only to a married couple. Neither the male or the female of the human species is an Adam; you have to combine a human male and a human female in marriage to constitute a single Adam.
The couple joined in a Jewish marriage becomes a single spiritual entity in the eyes of God, a composite individual with two bodies but possessing one common soul. Such a union is essentially spiritual rather than physical. It has more to do with sharing a soul than the pooling of physical resources. But such a bond can only be forged with God's help. It is within our power as human beings to forge physical unions and co-operative alliances, but it is beyond our power to fuse two souls together. This only God can do.
FORMING THE SPIRITUAL BOND
Let us trace the way such a bond is formed by consulting the Halacha:
Once the Torah was given, Jews were commanded that when a man wants to marry a woman, he should first make a formal contract in front of witnesses and only after such an act should she be considered his wife ... Once such a formal contract has taken place and the woman becomes sanctified, although he never had relations with her, and although she never entered his house, she is a married woman; whoever has relations with her is liable to the death penalty, and if he wants to divorce her she needs a document of divorce.(Maimonides, Women 1:3)
The need for a get to end the Jewish marriage is related to the way such a marriage begins. A Jewish marriage originates in a public act of sanctification, and it is this act of sanctification that can only be dissolved by a get.
A secular marriage is the result of the decision of the parties to pool their resources, physical and spiritual. Noahide marriage only begins in the eyes of the Torah when the parties actually begin to cohabit, and can be dissolved by either party's determination that cohabitation is no longer desirable. The agreement to cohabit has no significance. The union is formed by actually becoming 'one flesh' and is dissolved in the same way: by ceasing to be 'one flesh'; either party can end it. (See Maimonides, Women 1:1, and Kings 9:8)
But a Jewish marriage bond is totally disassociated from the pooling of physical resources. The public act of sanctification already creates the marriage bond even if cohabitation never takes place. In short, a Jewish marriage is a spiritual union, a union of souls more than a union of bodies, a union that only God can form, while the Noahide marriage is a sublime partnership formed by people who decide to share all the resources, material and spiritual that are under their joint control. God recognizes both as holy, but He is actively involved in the formation of the Jewish marriage bond.
In other words, when the Torah was given to the Jewish people, a part of their sanctification involved the introduction of an entirely new sort of marriage bond, a bond that is separate and apart from the decision to share your life and cohabit with another individual.
A HOLY UNION
The common aspects of marriage that are associated with cohabitation are defined as Nesuin; even these laws were a radical departure from the accepted view of marriage when they were introduced. Most people are aware that Jewish marriage laws were far ahead of their time in terms of recognizing women's rights; women were always treated as equal partners in Jewish family law. But these laws relate to the second stage of the Jewish marriage: alimony, child support, property entitlements etc.; fortunately the secular world has since caught up and recognizes most of the provisions of the Nesuin laws.
Getting married is governed by an entirely different set of Torah laws: the laws of Kiddushin. The Talmud devotes an entire tractate, Ketubot, to the laws of Nesuin; but there are two tractates devoted to the formation of the marriage bond and its dissolution: Kidushin and Gitin. The status of being married stems from a purely symbolic act. The married state is something separate and apart from its outward manifestation in the real world, the sharing of the practical and intimate aspects of life.
Indeed the very word for this act of marriage is Kidushin, a word that means sanctification or holiness. Under the canopy, as the groom puts the ring on the bride's finger, he says to her, "Behold, you are consecrated to me by means of this ring, according to the ritual laws of Moses and Israel." It is the sanctity of the Jewish marriage that is the source of the aguna problem.
Relationships in which the parties retain their individual separate identities are relatively easy to undo. The decision to separate is all that is required. All that was involved in the relationship was a pooling of resources, and all that is required is a fair division of the shared assets. That is not to say that there is not a great deal of pain involved. However, despite all the mental anguish that accompanies a typical divorce, the parties to a secular marriage never fused into a single spiritual entity. But what about a marriage where people themselves have fused? How do you break up a single soul and divide it back into two separate souls each free to go on its way?
This is the background to the need for a get.
HALF WAY POINT
But this gets us only half way. We now understand the need for a get, but we still do not have a solution to the aguna problem.
Why should the man be in the position of giving this get. Why not the woman, or both?
In fact, this problem crops up in the marriage ceremony as well. The Talmud at the beginning of Tractate Kidushin stresses repeatedly that it is only the male who can initiate the Torah marriage. If the female is the initiator, the ceremony has no validity and the marriage does not go into effect. Why should the male have a lock on the marriage process at both ends?
THE NAME OF GOD
To appreciate how this is related to the nature of spiritual reality and is not the result of some arbitrary policy decision, we have to comprehend the essential qualities of maleness versus femaleness from a spiritual point of view. Only then can we comprehend the nature of the spiritual connection formed by the Jewish marriage. A man is an ish in Hebrew, spelled aleph, yud, shin; a woman an ishah, spelled aleph, shin, heh. The letter yud represents the quality of maleness while femaleness is portrayed by the letter heh. Except for this difference males and females are spiritually identical. They are both esh, a word that means fire in Hebrew. When they marry, he contributes a yud to the union, she a heh, forming between them the word yud heh, one of the holy names of God - Yah. (Talmud, Kalo 1:7)
We know something about the significance of this Divine name formed by the male-female bond. The Talmud informs us that this world was created with the letter heh, whereas the next world was created with the letter yud ( Menachot, 39b). The combination of the spiritual with the physical is accomplished by joining these two letters to form the holy name Yah. In the commandment to reproduce and multiply, the Jewish male, who contributes the yud, brings the new Jewish soul from the next world, and implants it in the Jewish female who supplies the heh that gives it expression in this one.
The significance of this is the following. Souls, being holy, can enter this world only if they have a holy place in which to reside. But this is not an inherently holy world. In our world all holiness is a result of consecration, dedication and hard work. The Jewish man must place his treasure, the soul he brings down from the next world, in a consecrated place. The only suitable location in our world for depositing such a treasure is the womb of the Jewish woman.
In fact, so powerful is her influence, that any human soul that is placed in her keeping automatically acquires the trait of holiness. Even when a Jewish woman conceives the child of a non-Jew, the child that emerges is considered Jewish according to Torah law. Needless to say, there is an infinite difference between such a child, whose holiness originates only from the heh of the Divine Name, and the child that results from a Jewish marriage whose holiness encompasses both the yud and the heh, which combines the holiness of this world with the next.
The deeper implications of the difference are shrouded in mysticism and are beyond the reach of this author to penetrate or to explain. But there are some outward indications that we can identify which help to clarify the point. According to the dictates of Halacha, although Jewish status is entirely dependent on the mother, a person's tribal connection and familial status are determined by his patrimony. In other words, the route to the origin of the soul in the world to come, where the soul originates in the connection to God, the realm of the yud, leads through the father. The expression of this origin in this world is dependant on the heh, supplied by the mother.
A CHILD OF A JEWISH MOTHER
If we translate this idea into everyday concepts, this means that a child of a Jewish mother from a non-Jewish father is a spiritual orphan. He or she has no pre-established route laid out for him or her through the chain of ancestry that leads back to the spiritual origins of all Jewish souls in the world to come. Just as an orphan must make his own way in the physical world without the aid and support of family, such a soul must make his or her own way in the spiritual world.
A clear illustration of these ideas can be found in the words of the Midrash quoted by Rashi (Bamidbar 26,5):
Chanoch of the Chanochite family. The Torah portion lists the children of the Jewish families; each family name is preceded by the letter heh and ends with the letter yud; because the nations reviled the Jews saying, "How can the Jews trace their genealogy according to their tribes? If the Egyptians controlled their bodies, surely they had the power to violate their wives!" To this God replied, in effect, that He would append His own name to their family names to attest to their chastity in Egypt.
Thus, the Divine Name that attests to the purity of the Jewish family is the name Yah - yud heh - by the logic described above. Note the precedence of the letter heh.
The object of the Jewish marriage is to create a spiritual union between the yud and the heh, between the holiness of this world and the holiness of the next that is so powerful, that even the yud of the next world can find its physical expression in the heh of this one.
The yud alone cannot be expressed without the help of the heh. That is why a union between a Jew and a gentile woman will not produce a Jewish soul. On the other hand the heh by itself produces a Jewish soul who has no definite place in Israel.
UNIONS MADE BY GOD
Spiritual unions, although only God can formulate them, nevertheless require acts of spiritual dedication by human beings as a condition of their formation. A Jewish marriage is precisely such a vehicle of spiritual dedication; it is perfectly understandable that it can only be brought into being by an act of sanctification. The yud provides the extra degree of sanctity required to complete the full name of God in the heh.
The manner in which God, in His wisdom, chose to create the world, the heh cannot be placed inside the yud - men do not bear children. Only the yud can be placed in the heh. It is the man, the bearer of the yud that must initiate the process of arranging for a heh into which to insert his yud.
This follows closely the pattern of the relationship between this world, represented by the heh, and the next world represented by the yud set up by the Torah. All the commandments of the Torah are about introducing the activities that properly originate in the next world into this one. We always join the two in all our spiritual activities by inserting the yud into the heh rather than the other way around.
The sacrifice that is the prerequisite of spiritual dedication is thus required of the Jewish woman. It is her heh that is co-opted by his yud. It is the male that must initiate the spiritual union in the Jewish marriage, and therefore it is also he who must sever it. But while it is he who originates, she is the one who gains most. Through her dedication, she is able to contain both the yud and the heh - the full name of God - in her own person, whereas the Jewish male can only be attached to the heh when he is in actual union with his mate. He may initiate the process of the joining of the two worlds, but the actual union takes place in her.
It is a common misconception in the secular world that rabbis have the power to amend Torah laws when they see fit. After all Jewish law - Halacha - is an unfolding process. There were no refrigerators or telephones at Mount Sinai and the rabbis still found methods to deal with such new technologies in the context of Halacha. Why can't they solve the aguna problem then, using the same sort of creative approach?
The rules of the Torah resemble the rules of nature. Jewish tradition maintains that God consulted the Torah when He created the world (Zohar, Truma). The laws of nature can be understood and employed in all sorts of creative ways, but they cannot be amended. If we understand Bernouli's principle, we can fly airplanes, but we cannot amend the laws of gravity so that apples fly up instead of falling down. Reality is structured around the Torah. In the Jewish view of things it is easier to amend reality than alter the rules of Torah.
The commitment to the observance of an eternal Torah that is beyond human power to amend is at the very heart of Judaism and is the secret of its longevity. The world changes, but the Torah is eternal. It is the anchor that preserved our attachment to God through all the storms that have battered us through history.
Nevertheless, whoever is at all familiar with the "Responsa" of the great sages of Israel throughout history cannot fail to take note of the enormous importance they attached to the aguna problem. A major portion of all such "Responsa" is devoted to finding ingenious solutions within the framework allowed by Jewish law to allow an aguna to remarry.
An unprecedented number of aguna problems were created by the Holocaust. It was often difficult to determine conclusively whether husbands or wives had perished. Rabbi Moshe Feinstein, the great Torah authority in America after the Holocaust, was personally responsible for permitting tens of thousands of such women to remarry. His disciples relate that aguna problems took precedence in his eyes over all others. When an aguna came to him for help, he would drop all other matters and devote all his attention and genius in attempting to solve her problem.
The ingenious solutions that the sages have come up with through the ages are applied in turn by modern Halacha authorities who are faced with aguna problems. The fact that in spite of everything situations arise when Halacha does not have a solution stems from the fact that the rules of the Torah are beyond our power to amend.
The attitude of the sages of Israel can best be exemplified by a famous story about Rabbi Akiva Eiger, a Torah sage who lived in the late 1700s.
A certain Jew who lived in Warsaw left his Jewish wife and family and converted to Christianity. He refused to give his Jewish wife a get on principle even in return for a large ransom. Rabbi Akiva Eiger was in Warsaw attending a conference when the matter was brought to his attention. He arranged a meeting with the recalcitrant husband and pleaded with him to give his wife a get. Upon his refusal, Rabbi Eiger recited the first Mishna in the Tractate Kiddushin to the husband: the Mishna states that a Jewish woman returns to single status in one of two ways, through receiving a get, or through the death of her husband. He asked the husband to make his choice. The husband scoffed and left in a huff. He collapsed dead on the stairs leaving the building.
It is unfortunate that we no longer possess holy men with such great spiritual powers, but the attitude of Rabbi Akiva Eiger reflects the attitude of all Orthodox Rabbinic authority. It is not that the rabbis won't help, it's that they can't.
Sanctity is a foreign implant in our secular world; it can only be maintained at the cost of self-sacrifice. The sanctity of Jewish marriage is no exception.