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Enforced MarginalityJewish Narratives on Abandoned Wives
By Bluma Goldstein
University of California PressCopyright © 2007 The Regents of the University of California
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Chapter OneAbandoned Wives in Jewish Family Law
An Introduction to the Agune
For two millennia, from Talmudic times well into the twentieth century, the agune, a woman "chained" or "anchored" to her husband because she is unable to divorce or remarry, has been regarded as a figure of considerable interest and importance for Jewish religious and legal authorities. Although agunes have suffered mightily because of their marginal position in the largely family-oriented Jewish community, it is perhaps the embarrassment of that community in the face of patent injustice against these women that accounts for the scant attention their plight has received from cultural, social, and literary historians and critics. Despite the fact that the agune is accorded considerable importance in many Jewish writings-rabbinical responsa, treatises on family law, and institutional social documents-she rarely emerges as a figure of central importance in historical or literary texts. Instead, she is often found hovering, silent or silenced, at the margins of those works. Even though, for example, the title of Khayim Grade's novel Die agune (The Agune) heralds the importance of the protagonist, her relevance is substantially diminished by her function as the occasion for an extended narrative about the disastrous confrontation between two generations of rabbinic authorities with opposing views, and for a comprehensive depiction of Vilna's social, religious, and moral tensions. The agune in Grade's novel may be divested of her titular prominence, but her textual marginality nonetheless reflects the reality of her position within the social milieu and religious practices of the traditionally patriarchal Jewish society. The story of a bereft woman who has lost her primary social identity and status-as a wife-is thus transmuted into a narrative about powerful men of the community, rabbis, seeking to control the woman's fate. Paradoxically, however, although the agune is relegated to the margins of traditional society, her situation has for centuries actually garnered significant attention from Jewish legal authorities: the Encyclopedia Judaica notes that "the problem of the agunah is one of the most complex in halakhic [Jewish legal] discussions and is treated in great detail in halakhic literature." Moreover, the extensive concern with the ostensibly halakhically insoluble problem of the abandoned agune does indeed disclose, even acknowledge, the serious consequences of the unalterable gender and power differential operative at the very foundation of the Jewish legal system.
In Jewish law, only the husband has the prerogative of executing and delivering a divorce, or get, and there are essentially four reasons why a woman may be unable to obtain a Jewish divorce: the husband is mentally ill, thus legally incompetent to grant a divorce; the husband has died but there is no legally valid evidence of his death; a recalcitrant husband refuses to divorce his wife; or the husband abandons her and disappears. Of these reasons, the one that has virtually no halakhic solution is that of the abandoned wife, a situation whose considerable repercussions are explored here in this discussion of the relevant aspects of Jewish law. Whereas the extensive halakhic consideration of the problem of the agune in the Talmud, and in the rabbinical responsa literature from the Middle Ages to the present, focuses largely on recalcitrant and deserting husbands, my study concentrates primarily on representations of the abandoned agune in selected texts from early modern Jewish history in the seventeenth century well into the twentieth.
The broad range of writings that I consider in this book includes the diverse social and individual situations of a number of agunes; different genres-autobiographical texts, novels, institutional social documents, and a personal narrative; and texts in German, Yiddish, and English written in Germany, Eastern Europe, and the United States. While the book's structure embraces a range of perspectives on the agune figure and on the religious, social, and political dynamics of aginut, all the agunes in this study-the considerable disparity among the individual texts notwithstanding-share a common experience of marginality. Marginality is evident not only in the subaltern legal status of women within traditional Judaism but also in their marginal positions as agunes in the particular social environments and narratives they inhabit. But in order to engage in a meaningful discourse about the agune and aginut, some relevant knowledge of Jewish family law is necessary, for only then can one comprehend the fundamental issues confronting deserted wives and the consequences of the many futile challenges to any halakhically acceptable resolution.
In Jewish law, marriage creates a contract in which the wife (and all her property) is possessed by the husband, and only he has the prerogative to dispose of his possessions (including his wife), only he-not the courts or the wife-may nullify that contract by divorce. The biblical source for Jewish divorce (get) is Deuteronomy 24:1-2: "A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house; she leaves his household and becomes the wife of another man." Under Jewish law a marriage may be terminated by either the death of a spouse or divorce. Annulment is another possibility, but because sufficient grounds for this decree are difficult to sustain, only in very rare cases did the Orthodox rabbinate recognize legally inappropriate marriages that could be annulled. Thus, a woman had to rely on her husband for a divorce. Yet, in the eleventh century, in a decidedly radical move, Rabbenu Gershom of Mainz, intending to support the rights of women as much as possible within the limitations of halakha, issued a takana (rabbinic directive with the force of law) that required the consent of the woman for a divorce to be legal. This meant that, while the man retained the prerogative to grant a divorce, the woman could now consent to the divorce or refuse it. This liberalizing act was, however, overturned in the twelfth century by an influential French authority, Rabbenu Jacob Tam.
The difficulty in releasing an agune from her marriage derives essentially from the fundamentally unalterable corpus of Jewish law, at whose core is an unequal gender and power differential. Moshe Meiselman explains the reasons for the inflexibility of this law as follows: "The legislative prerogative granted to rabbinic authorities came to an end with the termination of the talmudic period. Among the many reasons the legislative prerogative came to a close is the fact that subsequent to the talmudic period no beth-din [rabbinic court] was universally accepted by all Jews, and universal acceptance is a sine qua non for legislation. Hence, no legislative prerogative to change the basic marriage and divorce laws was granted to any rabbi or group of rabbis subsequent to the talmudic period." Rabbi and religious scholar Boaz Cohen affirmed the inalterability of Jewish divorce law in a 1953 Joint Conference of the Rabbinical Assembly (the international association of Conservative rabbis): "We cannot graft upon the tree of Jewish law a foreign branch, such as the principle of granting to women equal rights with the husband to issue a divorce." In the many hundreds of years since Talmudic times, the inflexibility of the law has not, however, ended serious attempts to "alleviate" the plight of the agune. But Reuven Yaron indicates that, in the sphere of the abandoned agune, "there has been less change, less innovation, than in any other," and that "one encounters again and again the same tendency to strictness, the same horror at going beyond the principles laid down in the Talmud itself." In examining the numerous rabbinical decisions, he takes note of "the anguish and regret of the authors, the conflict between their humane desire to help and the overriding obedience to what they consider their duty," but he also recognizes that "this is poor consolation indeed for the woman whom the decision may condemn to a lifetime of celibacy," not to mention the shame, social ostracism, and loss of self-esteem and status she would suffer.
An oft-repeated explanation of why the rabbis were so reluctant to declare a deserted husband dead even after years of absence and to grant the agune permission to marry was the fear that, should the wife remarry and the former husband reappear, she would be an adulteress and any offspring of her new marriage would be mamzerim. A mamzer, a child of a forbidden union (here marriage with an adulterous woman), is not considered a normative Jew and is permitted to marry only another mamzer or a convert to Judaism. Moreover, the stigma of the mamzer remains with the family for ten generations. In such cases, upon the first husband's return, the new husband must divorce the adulterous woman, who is then not permitted to remarry her first husband. Given the grave consequences of adulterous marriage, the rabbis were loath to verify a death without great certainty, even though, from the Talmudic period onward, rabbis counseled leniency in efforts to release an agune.
One important way in which the early rabbis sought to relieve the plight of an agune whose husband had disappeared was to relax the halakhic rules concerning acceptable witnesses (two Jewish males who were neither slaves nor relatives) for verifying a person's death. In litigation cases involving agunes, one witness (instead of two), slaves, relatives of the married couple, women, non-Jews, and apostates were permitted to testify. Even the agune could bear witness, provided she could prove that she had been on good terms with her husband and that he had not disappeared during wartime. Although Maimonides had ruled that "one does not examine the witnesses thoroughly in agunah cases because the Sages said to be lenient in order to release agunot," Rachel Biale notes that, "while the requirements concerning witnesses are lax because of the danger of aginut (Yevamot 93b), the standards demanding direct evidence of death remain firm, and these were sometimes impossible to meet." The absentee husband's death or his funeral had to have been witnessed or his corpse indisputably identified; and while hearsay testimony was permitted, it had to be substantiated by direct evidence. Yael Levy of the Georgetown University Law Center notes, however, that, "in most situations where the husband is 'missing,' there is not a single witness to his death (or whereabouts), even among women and apostates. Consequently the relaxed evidentiary standards do not alleviate the predicament of most agunot."
Many recommended modern solutions to the agune problem concerned recalcitrant husbands who refused to grant divorces to their wives, but several significant proposals involving abandoned wives are worth noting. In the nineteenth century the Reform Judaism movement declared that, if the laws of a country presumed a person dead after a specific number of years of unexplained absence, its beyt din could decide to release the agune from her marriage and permit her to marry again. This was, however, rejected by both the Conservative and Orthodox rabbinates. Taking up a similar argument about the husband's presumed death, Levy in 1993 submitted to Israel's religious courts a takana that she knew would not resolve problems concerning recalcitrant or mentally incompetent husbands, but which she thought "would at least provide a comprehensive solution to the problem of aginut resulting from a husband's disappearance." Her takana was based on the presumption of death after the passage of a length of time stipulated by the laws of different states in the United States. It required
(1) that any man who disappears from home for a stipulated period of time be declared dead; (2) that if facts and circumstances indicate the probability that he died prior to the expiration of the stipulated period he be declared dead at the earlier time which the facts and circumstances point to as the time of death; and (3) that if the woman has remarried under the assumption that her husband is dead, her second marriage shall be presumed valid and her first marriage dissolved, not to be reinstated even if her first husband reappears.
There is no evidence that this takana was even considered by the Israeli courts. Concluding remarks in her article indicate that Levy's interest in resolving the problem of the deserted Jewish wife is grounded in an issue with significant ramifications for Jews and Judaism. "The problem of the agunah whose husband has disappeared," she writes, "is a compelling one requiring immediate solution. The longer Jewish lawmakers wait to implement a workable solution, the more cases of aginut arise and the more shameful Judaism appears to the rest of the world because of the shoddy way it treats its women.... For halakhah to retain its credibility it needs to be amended by takkanah, to redress this problem completely, not just artfully manipulated to cure bits and pieces of it."
Other important resolutions for the problem of missing husbands were largely prophylactic-that is, intended to prevent a woman from becoming an agune rather than to release an existing agune from her plight. Two such recommended solutions were conditional marriage and conditional divorce, both of which the rabbinate ultimately deemed halakhically unsound. In 1884 the French rabbinate approved a declaration stating that a civil divorce would automatically be acceptable as a get under Jewish law because a rabbi had the power to annul a marriage terminated in civil court. Furthermore, the French Rabbi Michael Weil also suggested that all marriages be made conditional by the groom's promise to his bride during the wedding ceremony that "if the judges of the state shall divorce us and I not give you a Jewish divorce, this marriage will be retroactively invalid." A similar solution had been tendered fifteen years earlier, in 1869, by the Reform movement at a rabbinical conference in Philadelphia, in which Jewish divorce was relegated to the civil courts, making the get altogether obsolete. The Reform movement's proposal was rejected by both the Orthodox and Conservative movements, and at the beginning of the twentieth century the entire European rabbinate opposed the French proposal, therewith dismissing the whole matter. The main objection was that such conditionality undermined the unconditional commitment required for a Jewish marriage.
Proposals for conditional divorce fared no better than those for conditional marriage. Basically, two kinds of conditional divorces were proposed-one written at the time of the marriage would have permitted an agent, selected by the husband, to deliver the divorce to the wife if the husband did not return from a war or long journey; the other was a divorce issued when the husband was about to go to war or to embark on a journey. Both forms of divorce were rejected by the rabbinical authorities. In the former instance, it was argued that a get could not be used to protect against possible impending adversity, and that, once written, a get delivered to a woman would actually end the marriage immediately. In the latter case, the parties were expected to agree to remarry if the husband returned home, but a kohen (priest), for example, could not marry a divorcée even if she had once been his wife. Moreover, there was always the danger that one of the parties might decide not to honor the agreement to remarry. Conditional marriage and conditional divorce were both attempts to prevent the woman from becoming an agune, but for a woman who was already an agune, particularly one who was abandoned, there was virtually no available halakhic solution. "Once a woman has become an agunah," Biale writes, "there are certain circumstances where there is absolutely no valid halakhic way of releasing her and permitting her to remarry. The only possible remedy for such circumstances would be a revolutionary change in the Halakhah, giving women or the Jewish courts the power to divorce a man without his consent."
Excerpted from Enforced Marginality by Bluma Goldstein Copyright © 2007 by The Regents of the University of California. Excerpted by permission.
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