"Safa Ahat Udvarim Ahadim: Iyyunim Bemishpat Vehevra" ("One Language and One Set of Words – Studies in Law, Halachah and Society"), by Pinhas Shifman. Shalom Hartman Institute, Bar-Ilan University and Keter Publishing House, 336 pages
At the beginning of his (failed) campaign for the position of the next Ashkenazi chief rabbi, Rabbi David Stav published a large paid advertisement in the national-religious daily Makor Rishon. In it, he cited some "shocking facts," as he put it: In recent years, about one-third of all secular couples got married abroad so as not to come in contact with the Chief Rabbinate of Israel. Among them are people who do not accept or do not like the rabbinate’s marriage procedures, and also members of quite a large group of citizens (about 400,000 ) who are not allowed by law to marry in this country, as the Jewish bona fides of at least one member of the couple are questionable in the eyes of the rabbinate.
Forcing certain procedures based on Halakha (traditional Jewish law ) upon the citizens of Israel is therefore ineffective in two respects: It distances Jews who for various reasons are interested in a civil or different type of religious ceremony, and it is not available to citizens whom the rabbinate does not recognize as Jews. On the other hand, there is concern among the religious authorities that various types of civil marriage agreements will lead to a split among the Jewish population, as the religiously observant will not be prepared to enter into marriages with nonobservant Jews or their descendants.
In his new book, Pinhas Shifman attempts to suggest solutions to this complex situation. Shifman, a professor emeritus at the Hebrew University faculty of law, has written numerous books and articles about family law in Israel. A special report he prepared (together with Avishalom Westreich ) for the Metzilah Center for Zionist, Jewish, Liberal and Humanist Thought on the issue of the possibility of civil marriage in the country was, for example, published (in Hebrew ) in March. He is, therefore, exactly the right person to confront this subject.
In the second part of the book in question, Shifman goes into what could be called the "intra-religious" issue because, in his opinion, it is necessary to deal with the difficult problems created vis-a-vis the wedding ceremony due to Orthodox Halakha. Even if secular Israeli Jews are given the opportunity to marry as they see fit, the religiously observant will still have a problem because they have no other options because of their beliefs. Shifman fears that enabling civil marriage would in fact encourage rabbis and rabbinical court judges to ignore the moral difficulties inherent in the halakhic wedding ceremony as it stands today – that is, "anyone who doesn’t want to [get married this way] doesn’t have to and anyone who sees himself as obligated [to do so] can suffer in silence."
Not Just a Civic Matter
Specifically, Shifman is worried about this tendency because it leaves in place certain injustices that exist in Halakha. Issues like agunot (wives whose husbands will not grant them a get, or bill of divorce ), extortion on the part of husbands in delaying the get, and in general the inequity in traditional Jewish marriage rituals which are being ignored and remain unresolved. Even among poskim (rabbinical arbiters ) who are actually concerned about agunot and other women who suffer ill treatment by their husbands – dealing with such problems for the most part boils down to attempts to circumvent them by finding flaws in the particular ceremony from the halakhic perspective and nullifying it retrospectively.
Such ploys demonstrate the problematic nature of the Orthodox marriage ceremony, which turns out to be a stumbling block for the Jewish woman. This is a terrible reality, in the author’s opinion, because it leads to the conclusion that "the more people refrain from behaving in accordance with Halakha, the better off they will be and the less they will suffer." When Shifman moves on to various suggestions for changing nuptial arrangements for couples, he tries to take into account not only the suffering of secular Jews who are subjected to religious laws in which they have no interest, but also the pain of men and women who are religiously observant and are subjected to a rabbinical law in which they are interested, but which is also characterized by a cruel and insulting lack of justice.
The Possible Solutions
He brings up various possibilities for altering the existing situation, each with its own inherent problems. In addition to the most meager of the possibilities, which would in general permit marriages only between two people who are not presently allowed to marry each other under Halakha – Shifman examines the possibility of allowing civil marriage alongside marriage as per religious law, so that each couple would be able to decide in which manner, via which establishment, they want to seal their marital covenant. The disadvantage would be open competition between these two establishments, which is liable to lead to alienation on the part of the religious public. Moreover, this approach would exacerbate the problem of agunot and women whose receipt of a get is being delayed, since religiously observant couples who marry under the auspices of the rabbinate would be subject to Halakha and thus not be able to seek help from the civil court.
Another possibility Shifman mentions, which prevails in some European countries, is a uniform civil law for everyone. In this case the state is perceived as responsible for proper civic order and marriage by means of state authorities is the only valid marriage. Citizens who are interested in marrying in a special ceremony are respected and are married by, for example, their rabbi, minister, spiritual leader etc. In a situation like this, ostensibly there is no competition between civil and religious law, and divorce is also egalitarian because even religious women are in general protected by the state.
The Malicious Combination of Halakha and Bureaucracy
If a woman who has been married in a Halakhic ceremony gets divorced only via a civil procedure and then remarries – her children from her latest marriage become mamzerim (or, bastards; in Halakha, that is what a child is called who is born to a woman who is still married ac cording to religious law, and fathered by another man who is not her husband ). This possibility might precipitate the usual threat by Orthodox Jewry to construct lists (or "family trees" ) of names, in order to ensure that all those who marry by civil law and their descendants would be prohibited from marrying anyone who is religiously observant.
However, Shifman notes that even today millions of nonreligious Jews in the United States, for example, choose to marry according to civil law and, of course, also divorce that way, and no one is talking about shunning all American Jews – i.e., not marrying them. In the author’s opinion, this problem, like others, requires "broad emendation of regulations in Halakha that will provide a universal and principled solution." And once again he criticizes the lack of interest on the part of today’s halakhic arbiters in investigating thoroughly and eventually changing what needs to be changed in traditional Jewish law.
The matter of bastardy demonstrates a problem unique to our times, which has not been accorded a solution by that law. In the past, a Jew suspected of bastardy, or an aguna or a woman whose bill of divorcement is being delayed, could possibly, in their distress, move to another Jewish community where nobody knew them and build a new life. But our era, in which when everything is registered, documented and computerized, does not allow for reasonable doubt as to an individual’s identity, doubt that in other periods sufficed to qualify a person for marriage (from "a family that has been accepted … is accepted," Tractate Kiddushin 70-A ).
Rabbi Joseph di Trani (1538-1639 ), known as the Maharit, also ruled to the effect that, "Anyone who knows of a flaw [vis-a-vis] someone’s marital eligability is not permitted to reveal it, but will leave it as if it were kosher." This points to the malicious combination of Halakha and bureaucracy that is unique to the modern era.
Nor does Shifman spare criticism when it comes to secular Israeli Jews who seek to institutionalize civil marriage. His treatment of court rulings that equate single-sex couple relationships to marriage is fascinating, and dwells on the question of the secular insistence on using the term "marriage," which he says expresses a definite religious and traditional institution, while attempting to foment a radical change – via the courts – in its original meaning.
Morality, Religious and Natural
Finally, Shifman examines local rulings that have led to equating the rights of common-law partners to those of married people. He discusses in detail three rulings by former Supreme Court President Aharon Barak, who, in a sophisticated way helped to wage a quiet revolution with respect to personal status in Israeli law. Thanks to his efforts, the court recognized and legitimized marriages undertaken by Israeli citizens abroad – initially with respect to couples who in any case could have married in the country, and subsequently with respect to couples who could not have married here legally (one case involved a Jewish man who married a Christian woman ) – and finally marriages involving single-sex couples. In this way marriage abroad finally became the semi-official (if expensive ) way of entering into a civil marriage in Israel.
The first part of Shifman’s book deals with an artificial distinction between Halakha and morality, based on the idea that God’s commandments should be the sole basis for understanding what is good and what is evil, and any consideration external to Halakha constitutes a surrender to the liberal fashions of our times. The clinging to a specific religious precept, even if it may be illogical or in direct contradiction to one’s conscience, is considered by the believer to be a courageous effort to abide by the word of God and creates the desired experience of "authenticity." But Shifman shows that such a perception itself quite a new phenomenon and its primary framer in Israel was none other than the late Prof. Yeshayahu Leibowitz (and in the United States, Rabbi Joseph Ber Soloveitchik ). He reminds readers that without an independent sense of morality, which is not connected to Halakha per se, lofty concepts of the sages like lifnim meshurat hadin (beyond the letter of the law ), derekh eretz (common courtesy ) and darkei shalom ([toward] a peaceful way ) become meaningless.
The same holds for the concept of naval bereshut hatorah (roughly, "a Torah pedant but a scoundrel" ), attributed to Nachmanides in the 13th century, and comments by Rabbi Naphtali Zevi Judah Berlin (1817-1893 ) condemning "righteous men and hasids" who are not "honest in the ways of the world." The halakhic tradition itself is full of examples of the influence of natural morality on the law.
Shifman criticizes Leibowitz’s approach, which aims to protect the primacy of Halakha by disengaging its precepts from the daily, transient world, that also disconnects it from reason and the heart. According to Shifman, this approach has trickled down, in fact, into the ranks of Gush Emunim (the religious movement for settlement in the territories ), Leibowitz’s major ideological rivals: Shifman quotes remarks by settler Rabbi Shlomo Aviner that purport to be based on the views of Rabbi Abraham Isaac Hacohen Kook (1865-1935 ), but are really very similar to those of Leibowitz. In fact, it was Kook who said fear of heaven that ignores natural morality "is no longer pure fear of heaven."
Shifman’s criticism is also rooted in principle since it holds that "the existing richness of a plethora of sources and opinions in Halakha sharpens even further the conclusion that it is impossible to imagine a ruling in which the arbiter discounts the personal element – that is, a ruling that is not affected by the arbiter’s own value judgment."
In other words, there is no rabbinical law that is not born out of a certain moral position. From within this insight Shifman attacks the imperviousness of many rabbis toward women who are unable to receive a get, people who are deemed bastards and other individuals whose "credentials" as Jews are in question. He accuses such authorities of doing nothing, and writes: "A claim that a rabbinical sage is unable to be of help because it is not within his reach is very often a political decision in disguise that allows him to avoid dealing with the difficult questions of values underlying that decision."
Shifman’s book is a sharp indictment of the dissembling sanctimony of the Orthodox rabbis of our day and the fact that they cling to so-called Halakha as an excuse for standing still and stagnating. It’s not that they can’t do anything, they simply don’t want to. It’s not a matter of impotence, but rather a values-based stance. In a reality in which many couples shun the offices of the rabbinate, Shifman’s book is timely. His treatment of issues in family law in Israel is learned and profound, and his criticism of the situation of rabbinical rulings in our day, criticism that comes from within the world of Torah and Halakha, is sharp and precise. The associates of the new chief rabbi who will be selected in a few months’ time would do well to bring Shifman’s book as a gift on the occasion of his appointment.
Published in Haaretz on 29.3.13