AN ACADEMICIAN'S VIEW OF JEWISH LAW

Bernard S. Jackson
 
Inaugural Lecture as Alliance Professor of Modern Jewish Studies, University of Manchester, November 18th 1998
 
1. A Dilemma at Auschwitz

The following incident is recounted by the Hungarian Rabbi, Zvi Hirsch Meisels, an Auschwitz survivor, in the Foreword to his book of responsa, Mekadshei Hashem. It was the eve of Rosh Hashanah, 1944. The commander in Auschwitz had decided to keep alive only those boys between the ages of 14 and 18 who were strong enough to work. A selection was made. The condemned boys were assigned to a special cell block, under the guard of the Jewish Kapos, to await their turn in the crematorium the following night. The day of Rosh Hashanah thus turned out to be one of bargaining for the lives of some of these boys – not with God, but rather with the Kapos. Some of the parents still had concealed valuables; the Kapos were willing to release some boys, provided that they were able to complete the required numbers by bringing in others to replace them.
 

Bernard S. JacksonAn Academician’s View of Jewish Law(unannotated version)Inaugural Lecture as Alliance Professor of Modern Jewish Studies, University of Manchester November 18th 1998 1. A Dilemma at AuschwitzThe following incident is recounted by the Hungarian Rabbi, Zvi Hirsch Meisels, an Auschwitz survivor, in the Foreword to his book of responsa, Mekadshei Hashem. It was the eve of Rosh Hashanah, 1944. The commander in Auschwitz had decided to keep alive only those boys between the ages of 14 and 18 who were strong enough to work. A selection was made. The condemned boys were assigned to a special cell block, under the guard of the Jewish Kapos, to await their turn in the crematorium the following night. The day of Rosh Hashanah thus turned out to be one of bargaining for the lives of some of these boys –not with God, but rather with the Kapos. Some of the parents still had concealed valuables; the Kapos were willing to release some boys, provided that they were able to complete the required numbers by bringing in others to replace them.

A father of one of the originally selected boys approached Rabbi Meisels and posed the following she’elah: “Rabbi, my only son is in that cell block. I have enough money to ransom him. But I know for certain that if he is released, the Kapos will take another in his place to be killed. So, Rabbi, I ask of you a she’elah lehalakhah ulema’aseh. Render a judgement in accordance with the Torah. May I save his life at the expense of another? Whatever your ruling, I will obey it.” The Rabbi was in a dilemma: the Kapos were willing to accept ransom only after they had already seized another victim. Rabbi Meisels was not, therefore, able to rely upon any possibility that a substitute might not in fact be killed. Yet he felt unable to prohibit the father from his proposed course of action. He tried to persuade him not to persist with the she’elah, but rather to decide for himself.

But the father was not readily put off. “Rabbi, you must give me a definite answer while there is still time to save my son’s life.” The Rabbi replied: “My dear and Beloved Jew, please, I beg you, desist from asking me this she’elah. I cannot give you any kind of answer without consulting sources, especially under such fearful and terrible circumstances.” The father responded, “Rabbi, this means that you can find no heter permission – for me to ransom my only son. So be it. I accept this judgement in love.” The Rabbi continued to implore the man not to rely upon him: “Beloved Jew, I did not say that you could not ransom your child. I cannot rule either yes or no. Do what you wish as though you had never asked me.” But the father was still not satisfied. He insisted on interpreting the response of the Rabbi as if it were an implied answer to his question. He reasoned: “... if you cannot tell me that I may ransom my child, it is a sign in your own mind that you are not certain that the Halakhah permits it ... your evasion is tantamount to a pesak din – a clear decision – that I am forbidden to do so by the Halakhah. So my only son will lose 2 his life according to the Torah and the Halakhah. I accept God’s decree with love and with joy. I will do nothing to ransom him at the cost of another innocent life, for so the Torah has commanded!” All that day of Rosh Hashanah, Rabbi Meisels writes, the father went about murmuring joyfully that he had the merit of giving his only son’s life in obedience to the will of the Creator and his Torah. He prayed that his act might be as acceptable in the sight of the Almighty as Abraham’s binding of Isaac, a theme of the Rosh Hashanah Torah reading and prayers.

How should we view this incident? In purely psychological terms, perhaps? The father is relieved at not having to take personal responsibility for resolving his moral dilemma; indeed, at the same time, he can take satisfaction from the fulfilment of a divine command. Rabbi Meisels, on the other hand, has avoided the interpersonal trauma of telling an observant Jew what, on balance, he believes: namely that he is forbidden from ransoming his own son’s life at the expense of the life of another. Clearly, he does not anticipate the relief which the father derives from such an answer. Perhaps he feels: for a father in this situation to ask me the question shows exceptional religious devotion; how can I reward him by passing a death sentence on his son? Or perhaps Rabbi Meisels is simply overtaken by the enormity of the situation: he, too, wishes to avoid personal responsibility for what is to happen.

Such, perhaps, might be the answers which would emerge were we able to put the participants “in the psychiatrist’s chair”. But there are also theoretical issues at stake regarding the assumptions made by the participants regarding the nature and operation of Jewish law itself. The first is whether Jewish law is applicable at all in these circumstances. The father has no doubt whatsoever that despite the breakdown of those conditions which many secular legal philosophers would regard as a precondition for the operation of law at all, the Halakhah remains the operative guide to human conduct. There is no question in his mind of any breach of the covenant between God and Israel. If God himself were absent from Auschwitz, the Halakhah certainly was not. Rabbi Meisels, on the other hand, might, on one interpretation, be thought to harbour doubts. Does he think that conditions have reverted to something like a “state of nature”, comparable to that before the flood? Though we may ponder such questions, I doubt that they prompted the response of Rabbi Meisels. Rather, his response may be associated with a long-standing tradition within Jewish law, one which says that the law is directed to the conscience of every individual; Rabbis and courts may render assistance, but at the end of the day cannot relieve the individual of his or her moral responsibility.

 

2. Internal and External Questions

I present this incident, and my observations on it, as a first example through which we may ponder the question raised by the title of my lecture: “An Academician’s View of Jewish Law”. We can distinguish “internal” from “external” questions.

Internal questions are those posed explicitly from within the tradition itself. To a large extent, they are “dogmatic” questions (in the lawyer’s sense of that word), questions about the content and application of the existing rules of Jewish law. Here, for example: what is the father allowed to do? In cases of doubt, do we say that action is permitted unless it is clearly prohibited, or that it is prohibited unless it is clearly permitted?

External questions come in a variety of forms. Many are factual/causal rather than normative: academics might very well raise historical, sociological and psychological issues (such as the ones I have suggested). They would also be interested in comparative and philosophical issues: how would other systems of law and systems of thought address or analyse the issue?

The suggestion I wish to offer in this lecture is that there is also a range of questions which forms a bridge between traditional learning and the academic approach. We can look not only at what Jewish law says 3 (its content or semantics) but also at how it is used (its processes or pragmatics). And in studying the latter, even with non-traditional methods, we may uncover important aspects of the internal logic of the system.

 

3. External Influences on the Development of Jewish Law and its Authority Systems

The history of Jewish law is very much the history of the Jewish people. From Abraham to Ezra, the history told by the Bible is that of a relationship between God and the people mediated by law. Throughout the centuries of exile, Jews took their halakhah with them – sometimes into benign, sometimes into hostile environments. Within those environments, they encountered different legal systems.

Naturally, the history of Jewish-gentile relations is very much reflected in the history of the relationship between the halakhah and non-Jewish legal systems. Sometimes, that relationship has involved substantive influence exercised by one legal system on the other. This might be regarded as a purely “external” question. Yet I shall suggest that even such external questions raise “process” issues which are relevant to classical Jewish thought.

Take the crucial period for the development of Jewish law, the transition from Second Commonwealth sectarianism to Rabbinic Judaism. Within this period, the Canon is finalised and with it conventions of interpretation of the biblical text begin to develop; there is an enormous change in authority systems, resulting in part (but only in part) from the destruction of the Second Temple and its institutions; and the crucial doctrine of the Oral Law becomes a central tenet of belief, and a vital source for the development of Jewish law in the future.

Coincidentally, this is also the period of the emergence of Christianity. Of course, from the internal point in view, such an historical coincidence is hardly relevant to Jewish law. Yet there are strong reasons to believe that the manner in which the authority system of Jewish law changed in this period is not unconnected with the Jewish perception of how authority systems were used (or, from the Jewish point of view, misused) in the New Testament and by the early Christians. On the one hand, Jesus is depicted quite often as a prophet; indeed, Vermes has argued that this is the closest we can get to the selfperception of the historical Jesus. Nor, it seems, was this any ordinary claim to prophecy; rather, Jesus appears to have been regarded as the fulfilment of the prophecy in Deuteronomy 18 that God would raise a prophet “like Moses”, with a special degree of authority to reveal new law or at least, as the Rabbis came to view it, to authorise deviations and suspensions from the law. The Jewish experience in dealing with such claims seems to have prompted the Rabbis to adopt, for the future, a conceptual solution to this problem, rather than have to grapple with each claim on empirical grounds. Thus, they ruled, prophecy had come to an end; indeed, that it came to an end shortly after the destruction of the first temple. The Rabbis themselves assumed the authority over the law of the former prophets, and even Moses, described in the Hebrew Bible as the greatest of the prophets, became, to them, a Rabbi (moshe rabbenu).

A second authority problem, for the Rabbis, was the bat kol: the heavenly voice which sometimes intervened in human affairs, providing instruction or adjudication. That, too, for the Rabbis, was a rather un-disciplined source of authority. The phone ek tou ouranou had also made appearances in the New Testament, on the occasions of the baptism and transfiguration of Jesus. So the Rabbis decided, ultimately, that no attention was henceforth to be paid to heavenly voices (even though the editors of the Talmud left several significant instances of them in place). The famous source for this is the talmudic passage regarding the dispute over the ritual purity of an oven, the “oven of Akhnai”. R. Eliezer tried to prove that his view was correct, by performing a series of miracles. When these did not impress: 

... Again he said to them “If the halakhah agrees with me, let it be proved from Heaven!” 

Whereupon a Heavenly Voice cried out: “Why do ye dispute with R. Eliezer, seeing that in all 

matters the halakhah agrees with him!” But R. Joshua arose and exclaimed: “It is not in heaven”. 

What did he mean by this? – Said R. Jeremiah: “The Torah had already been given at Mount 

Sinai; we pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah

at Mount Sinai: After the majority must one incline.” (BM 59b)

This passage is sometimes held up as an expression of the democratic principle within Judaism: God is said to have laughed in pleasure at being “defeated” by his children. But two points need to be remembered, before we conclude that there is some process of secularisation at work here. First, the assertion of the majority principle is not itself based upon the will of the majority but rather upon the citation of a biblical proof-text. Majority decision is thus adopted for the future, not because of some democratic political theory but rather because it has been divinely ordained. Secondly, the constituency from which the majority is to be derived is not here revealed. Who counts for such purposes? In the context of the talmudic story, the majority presumably is that of the Rabbis participating in the debate.

Claims such as these, namely that the development of the Jewish authority system, at a crucial period, was influenced by reaction to the contemporary theological environment, might be regarded as a classically “external” claim. Yet there is an implicit theological issue here, to which an internal response might be anticipated. If the content of the oral law is regarded as divine, are we really to conclude that the historical process by which successive elements of that law have entered the system is theologically unimportant? A theological history of Jewish law would thus appear to be a desideratum, even from a traditional point of view.

The argument, then, is that we are entitled to view theologically not only the content of Jewish law, but also the process of its creation. If so, some other phenomena from the history of Jewish law may take on a new interest. What does it mean, for example, if we conclude that the structure of the Code of Maimonides was based upon Islamic models? Or that the great reforms in Jewish marriage law effected in Germany in the eleventh century – the ban on polygamy and on unilateral divorce without the wife’s consent, except for serious cause – reflect the influence of the Christian environment? Indeed, Falk argued that these reforms in Jewish marriage law were prompted by the concern of the Jewish authorities to prevent a hillul hashem – on the grounds that Judaism, by tolerating both polygamy and unilateral divorce, appeared to the Christian world to present a low standard of family morality. Should we not consider the theological implications of development by response – positive or negative – to foreign influence? The Bible itself, after all, is not averse to making just such claims. Recall the source of the reorganisation of the legal system by Moses in Exodus 18: he takes advice from Jethro, his Midianite father-in-law. Jewish law does not have to be exclusively Jewish.

 

4. The Character of Jewish Law in the Modern State of Israel

I turn now to the character of Jewish law in the modern State of Israel. Israel inherited, in 1948, a jurisdictional compromise which dates back to the Ottoman Empire: the religious courts (Jewish, Muslim, and Christian) had exclusive jurisdiction in some matters of personal status, notably, marriage and divorce; the law of the religious community to which the person belonged was applied in those courts. In other matters of personal status, the religious courts had concurrent jurisdiction with the civil courts. In a large range of other civil matters, there was also, in effect, a form of concurrent jurisdiction, in that the status of the religious courts would be recognised as arbitral bodies (the batei mishpat hashalom): commercial disputes between Jews, for example, could be dealt with by Rabbinic batei din, under Jewish law. And finally, there were matters which, necessarily, were reserved to the state courts, such as criminal law.

Under the British mandate, there was also a so-called “lacuna clause”, according to which “the substance of the common law and doctrines of equity in force in England” should apply, in the absence of both Ottoman law and mandatory legislation. It was because of this, I may add, that an earlier generation of Israeli – more accurately, at that time, Palestinian – law students made their way to study law in England. 

Though the jurisdictional compromise dating back to the Ottoman empire remained in place in 1948, and has only been modified at the margins since then, the situation has in fact profoundly changed. The “Jewish National home” has become a “Jewish state”. But if a state is sufficiently like a person to have a religion at all, what was to be the Jewish character of the State, and how was this to be reflected in its legal system? The “Declaration of Independence” opted for the following formulation: “the State of Israel ... will be based on freedom, justice and peace as envisaged by the prophets of Israel.” Was Israel, then, to be based upon prophetic rather than Rabbinic Judaism? And if so, should experts in prophetic literature be placed upon the Israel Supreme Court in order to decide what exactly were the principles of freedom, justice and peace envisaged in that literature?

In fact, what might be regarded as a nice rhetorical phrase, serving also to avoid some very difficult political problems, was indeed taken up in a famous case some years later. In the Brother Daniel case, as many of you will recall, Oswald Rufeisin, born to Jewish parents, with an extraordinarily heroic record of helping fellow Jews during the second world war, sought entry to Israel as a “Jew” under the Law of Return, despite the fact that he had converted to Christianity and sought to join the Carmelite monastery. 

The Supreme Court denied his petition by a majority of 4 to 1. However, in his dissenting judgement, Justice Haim Cohn argued precisely from his understanding of prophetic values, as against those which he took to be a reflection of Jewish reaction to centuries of persecution:

Times have changed and the wheel has turned full circle. There comes now to the State of Israel a man who regards Israel as his motherland and craves to find fulfilment within its borders, but his religion is Christian. Shall we therefore close the gates? Does the turning wheel of history indeed demand that we deal out measure for measure? Should the State of Israel, “based on freedom, justice and peace as envisaged by the prophets of Israel”, act towards its inhabitants and those who return as did the evil rulers of some Catholic kingdoms in the past?

This was the vision of the prophets of Israel: “Open ye the gates that the righteous gentile which keepeth the truth may enter in” (Isaiah xxvi, 2). Isaiah speaks of the righteous gentile, and not of priests, levites or of the people of Israel. Almighty God does not disqualify anyone; all are acceptable to Him; the gates are always open and whoever wishes may enter (Sifra, Aharei Mot; Shmot Raba, ch. 17).

The approach of Justice Cohn, it must be said, has not been typical. The Israel Supreme Court has tended to divide between a majority of “secularists” (in the sense that they view Israeli law as a purely secular system, comparable to the legal systems of other modern democratic states) and a “Jewish lawyer”, who is able to use the classical Jewish sources where appropriate, and who (usually) personally endorses the programme of the mishpat ivri movement, which seeks to incorporate Jewish law into the law of the Israeli State to the maximum degree possible. Proponents of prophetic Judaism (the heirs of Ahad Ha‘am) have not been in great supply within the Israeli legal profession. Nevertheless, when in 1980 the Knesset finally got around to replacing the ideologically unsatisfactory “lacuna clause” which Israel had inherited from the British mandate, the formulation it adopted was not far removed from this tradition:

Where the court, faced with a legal question requiring decision, finds no answer to it in statute law or case-law or by analogy, it shall decide it in the light of the principles of freedom, justice, equity and peace of Israel’s heritage.

Once again, we have reference to the principles of freedom, justice and peace (with the addition, now, of “equity”, yosher), but these principles are not ascribed here to the prophets, but rather to the “heritage” of Israel (moreshet yisrael). Despite the urgings of the religious parties, the Knesset did not adopt a rule which said: in the absence of other law, recourse should be had to Jewish law (whether halakhah or mishpat ivri).

Yet despite this, there has been a strong movement since the foundation of the state, amongst “modern orthodox” lawyers, to incorporate – even, we might say, to infiltrate – elements of Jewish law into the Israeli legal system. We may take, as an example, a very ordinary torts case, Kitan v. Weiss, which came to court 1977. A lawyer had represented a watchman (a security guard) in a case arising from the death of the watchman’s son in a car accident. The driver of the car had been acquitted, and the compensation paid by his insurance company fell well below the amount expected. The father, who blamed the lawyer for this outcome, fell into a state of mental depression and also took to drink. Instead of suing the lawyer for professional negligence, or filing a complaint with the Israel Bar Association, he took the gun with which he had been provided by his employer and shot the lawyer. The lawyer’s widow then sued the watchman’s employer for damages for the loss of life of her husband. In the district court, she succeeded, but on appeal the Supreme Court found for the employer, on the grounds that there was no sufficiently direct causal link between the act of the employer, in allowing the watchman to keep his gun, and the death of the lawyer.

What has this got to do with Jewish law? For most people, the answer would be: nothing. This was not a case involving questions of personal status; it was a straightforward torts case, to which Israeli law rather than Jewish law applied. Moreover, the case arose in 1977, before the change in the “lacuna law”, to which I have already referred. However, Justice Menachem Elon was sitting on the bench, and Elon has done more than any other individual, as both professor and judge, to promote the cause of the incorporation of Jewish law into the law of the State of Israel. He seized upon the fact that the employer had made an offer to pay a further voluntary amount of compensation to the widow and her family. He strongly commended this offer. He noted that traditional Jewish law, going back to the period of the Talmud itself, had distinguished between direct and indirect causation, but in the latter case had imposed a moral (rather than a legal) obligation, colourfully expressed by saying that the defendant in a case of indirect causation, though exempt by the laws of man, was liable by the laws of heaven. He associated the offer of the employer, moreover, with the talmudic concept of going “beyond the letter of the law” (lifnim mishurat hadin).

These remarks of Justice Elon, though not altering in any way the legal decision, provoked a hostile reaction from one of Elon’s fellow judges, Justice Shamgar. Elon’s view involved, argued Shamgar, a blurring of the borderline between law and morality, which was unacceptable in a system of positive law such as that of Israel. The result, he suggested, could only be inequality and unfairness. To this, Elon responded that he did not seek any systematic introduction of moral obligation into the judicial process. 

He merely thought that the judge ought, in special circumstances, to use his discretion in order to request the parties to act in accordance with moral principles, as in contractual disputes, where the legislator himself had required the parties to act in “good faith”.

In fact, the issue reflects an even deeper tension between the religious character of Jewish law on the one hand and the secular character of Israeli law on the other. For what is a stake here is not simply the separation of law from morality, and the degree to which the judge has a discretion to interpret the law in accordance with prevailing notions of morality – for these are live questions even within secular law. It reflects also the very role and function of the judge. In secular law, the judge is there to apply the law, no more and no less. In Jewish law, by contrast, the role of the judge is to get the parties to do the just thing. 

 

That will normally involve following the rules of law, but not necessarily so. The earliest instructions we find in the Jewish tradition given to judges tell them to do justice and avoid corruption, but make no reference to the application of a body of written law. They imply, moreover, that the judge will receive some degree of divine guidance in performing his function. That is one reason why the proceedings of 7 Jewish courts, batei din, are traditionally conducted in private, rather than in public. It explains also why there is a tradition, going back to the Talmud itself, which accepts that the court may on occasion make decisions not in accordance with Torah law. And it further explains why we find in the responsa literature examples of Rabbis responding to disputes not simply with some dry analysis of the halakhic issues involved, but rather with moral advice, and sometimes strong language, addressed to the parties themselves, designed to encourage them to behave in a proper manner. The culture of the traditional dayan is thus quite different from that of the secular judge. In commenting on the offer of the employer to make a further additional payment, Justice Elon was reverting, in some degree, to that tradition, however much he sought to express it in the language of secular law, which speaks about rules on the one hand and rule-conferred discretion on the other.

Elon’s approach, in fact, has been attacked from both sides of the Israeli Kulturkampf. A part of the haredi (extreme Orthodox) community has it that the State of Israel has no theological legitimacy. Not having been brought about by direct divine intervention, it cannot count even as the “beginning of redemption” and indeed may have set back the coming of the Messiah. It follows that not only the secular courts but even the Rabbinical courts set up under the authority of the Israeli State lack theological legitimacy. Their democratic credentials are incompatible with the theocracy which this form of thought identifies with the messianic age. These are the extremists of Neturei Karta. Though few, within the mainstream orthodox community, agree with them, such a stance does at least have this interest, for the purposes of my argument: they are seeking to attach a theological meaning (however much we may disagree with it) to the process by which Jewish law is brought to bear in the state of Israel. [For a modern orthodox view, see Yaacov Bazak, “The Halachic Status of The Israeli Court System“]

 

5. The Agunah

It is in the context of such questions, about authority systems and their theological legitimation, that I wish to address one final issue: that of the agunah. The problem is well-known: divorce in Jewish law is not effected by decree of the court, but by act of the parties, and the (normally, uncoerced) delivery by the husband of a “bill of divorce” (a get) is a necessary condition. Nowadays, it is not uncommon for a husband to refuse altogether to grant such a document, or to demand money in exchange for the document, even if a civil divorce has already been granted. This effectively prevents any observant Jewess from re-marrying; hence, the name “chained wife”.

It is a problem which, in various forms, has exercised the halakhic authorities for many centuries. The last 20 years has witnessed intense activity in this area, fuelled by the availability of modern communications and by the growing self-confidence of the Jewish women’s movement. The problem is hardly that no one has been able to suggest a solution: quite the contrary, the problem is that there are too many potential solutions, each one being shot down in turn by the proponents of the alternatives. Coercion, in the form of imprisonment, is indeed available in the State of Israel, but, as we know, it does not always work, and there is the fear that not everyone will accept the sincerity of a husband when he ultimately says: “I am now genuinely willing to divorce my wife; I am not doing so simply in order to avoid or terminate the coercion.” Coercion may also be financial, “inducements”, as they have been euphemistically called: a pre-marital promise to pay $100 a day maintenance (even after a civil divorce), or to fund a credit accountat Maceys, until such time as a get is delivered. Another possibility is agency: constituting the bet din as the agent of a husband for the purposes of delivery of a document of divorce. Retrospective confiscation of the wedding ring has even been suggested: the function of the ring within the Jewish wedding ceremony is not that of a symbolic token of love; rather, it is the “money” (kesef) by which the woman is (depending upon the tannaitic text one chooses) either “acquired” or “sanctified”.

Very recently, a bet din has been established in New York, consisting of three Rabbis (of whom one is a distinguished academic, Professor Emanuel Rackman) who have taken the route of retrospective 8annulment of the marriage (hafka‘at kiddushin). Their reasoning appears to be this. If the woman had known, at the time of entering into the marriage, that the character of the husband was so flawed that he was capable of denying her a divorce despite the decision of a bet din that he should grant one, she would not have entered into the marriage at all. This strategy has been fiercely attacked by other orthodox Rabbis. Irrespective of the merits of the issue, the very fact that such annulments are regarded as invalid by other batei din is sufficient to undermine the value of the work done by Rackman and his colleagues, since the fear that any subsequent marriage by the woman will produce children who are regarded in other orthodox circles as mamzerim is sufficient to undermine the value of the divorce. Nevertheless, the work of this new bet din may prove useful at least in advancing the debate.

The opponents of the New York bet din argue for a much narrower interpretation of the Jewish institution of annulment of marriage. According to the Talmud, they say, annulment is available only where either the ceremony itself was defective or there was no consummation, or, in later sources, where the mistake related to facts which existed at the very time of the marriage [kiddushe ta‘ut]. If the marriage were to be set aside on the basis of facts which occurred after the time of the marriage, this could only be if those facts constituted a breach of a condition of the marriage. In short, this critique of the reasoning of the New York bet din takes a narrow view of annulment, but leaves open the possibility of achieving the same result through a relatively liberal approach to the concept of a “conditional marriage” [kiddushe al tnai].

If one adopts such a view, I would suggest, we already have a structure available for use. The pre-nuptial agreement (PNA) now recommended, and widely used, within the United Synagogue (which commits the parties to submit any matrimonial dispute to the London Bet Din and to comply with its instructions), concludes with the clause: “The bride and bridegroom confirm that they have made this agreement freely and in full knowledge and understanding of the meaning of its terms.” Suppose this were redrafted to add: 

“The bride and bridegroom confirm... that their continuing willingness to abide by it is a condition of their having entered into the marriage.” This would make the marriage conditional upon, inter alia, the husband’s willingness to comply with the instructions of the London Bet Din. On breach of such a condition – and it is not unknown in this area of law for what starts as express (voluntary) conditions to be transformed into implied (legally required) terms – the Beth Din could declare the marriage terminated (or not commenced), without requiring a get. I am told that some such clause was actually considered in the process of determining the content of the pre-nuptial agreement, but was rejected. Sadly, the reasons for such rejection appear not to have been made public.

I have little doubt that the suggestion I have made will attract criticism. At root, the problem with which we are faced is again that of the authority system within Jewish law. I noted a few moments ago that several different solutions have been proposed to the problem of the agunah, but none have achieved a consensus. But since when has consensus been the test of halakhic development? We saw, earlier in this lecture, that direct forms of divine revelation were replaced, in the early Rabbinic period, by the notion of majority decision: that, precisely, is the message of the talmudic story of the oven of Akhnai. So why all this talk of consensus? Consensus gives a veto to any significant minority. The story of how majority decision was replaced in Jewish law by the notion of consensus cannot be told this evening; suffice it to say that the Islamic notion of ijma, the consensus of the scholars, may well have played a part. It is, of course, understandable that, through most of the history of the Diaspora, when the halakhic authorities no longer sit together in a single academy, but rather are dispersed worldwide, the means of determining the majority (even assuming that one has clear criteria as to whose vote counts) have not been available. 

Today, however, we do have the technical means at our disposal, should we to choose to use them. Perhaps we should ponder the theological meaning of the availability, today, of the internet: the halakhic materials can be provided there, debate can take place, and even a system of electronic voting could be instituted! And if hillul hashem was a reason for reform in eleventh century Germany, kal vahomer today, when there is an immediate, worldwide audience, Jewish and gentile for every use – and abuse – of Jewish law.