Did Rabbi Slolveitchik make a mistake?

              

One of the great tragedies of Judaism is the way that it handles divorces. The rabbis
interpreted the Torah to state that only men can initiate marriages and
divorces. Thus if a woman wants a divorce but her husband refuses to give it to
her, she is chained (Hebrew, aguna)
to her husband forever. The couple can obtain a civil divorce but the husband
may refuse to give her a Jewish divorce unless she gives him $100,000, as I saw
a husband who was a rabbi do, or refuse to grant the divorce under any
circumstance, as I and many rabbi saw frequently. While the woman is unable to
remarry without the Jewish divorce, Jewish law allows the husband to do so
under certain conditions. He is unhurt by his outrageous behavior.

 

Rabbi David Hartman addresses this problem in his new book The God Who Hates Lies: Confronting and Rethinking Jewish Tradition,
Jewish Lights Publishing, especially in chapter 5, “The Mistaken Halakhic
Presumptions of Rabbi Soloveitchik.”

 

Hartman points out that the problem has remained unresolved because even in modern
times, “the Orthodox Jewish community, broadly speaking, has coalesced around a
conviction that change per se is destructive to the halakhic (legal) system,
which must be preserved in the greatest extent possible” even when “moral
intuition, logical argument, or observed realities serve as valid bases for
critiquing inherited halakhah.” This “God of Halakhic Permanence demands the
sacrifice of human moral and logical faculties. In exchange for the stability
of an eternal dimension removed from history, the needs of the present and
concerns of the future always play a secondary, sacrificial role in halakhic
consideration.” The vicissitudes of nature, history, and morality are ignored.

 

Hartman states that Rabbi Emanuel Rackman offered a sensible solution to the aguna problem that complied with halakhah. “The solution Rackman proposed was a form of retroactive marital
annulment, based on the model of the ‘mistaken sale’ – monetary transactions
annulled for lack of full disclosure by one of the parties. Since in marriage,
as in sales, full consent is required by both parties, the withholding of
information by one is considered to compromise the other’s consent. ‘Concealing
an important fact in selling a piece of property can justify the annulment of
the sale. The same argument can be applied with regard to a marriage.’” The
Talmud recognized the logic of this argument and would have allowed it to be
the basis of annulments and saving an aguna,
but disallowed it on another ground: “the general presumption that women prefer
any marriage at all to being alone,” even to a leper or an abusive husband.

 

“Rackman proposed an appropriation of this logic of annulment, with a critical amendment
in its application based on an updated presumption about women’s preferences.”
Rackman “acknowledged that the mind-set of preferring a bad marriage to no
marriage may have been common among Talmudic women” for the woman who was left
alone was lost in the society of the times and perhaps even in danger. But,
Rackman “concluded simply, ‘In our day it is no longer true.’” A presumption,
called hazaka in Hebrew, is in the
Jewish legal system a prediction about nature, in this case, human nature.
However, this presumption is outdated and should be ignored and the “mistaken
purchase” annulment should stand as the solution to the terrible problem of the
“chained wife”

 

Unfortunately, Rabbi Joseph B. Soloveitchik nixed Rabbi Rackman’s argument in 1975 and
thereby, Rabbi Hartman writes, not only harmed the all-to-many chained wives
but also placed Judaism in suspended animation. Rabbi Soloveitchik was then and
is still today considered an accepted authority on Jewish law among Modern
Orthodox Jews. He was, of course, entitled to his opinion, and his view should
be respected, but should Judaism follow it when it does so much harm? Aren’t
Jews today violating the Torah laws of love and respect of others when they
fail to act? Can’t a solution be found that complies with halakha?

 

Rabbi Soloveitchik insisted that the ancient presumption still applies today. He
claimed that once Judaism recognizes a presumption it never changes. Women
today and women 8,000 years from today, would prefer to live with a husband who
is a leper and abusive rather than live alone. He stressed that, in his
opinion, Torah requires Jews to passively surrender to God all “mercantile
logic, or the logic of the businessman. Or the logic of the utilitarian
person…. And secondly, we (must) also surrender the everyday will.”

 

He stressed that it is wrong to suppose that modern people can “discover an
interpretation of Torah which is completely new. It’s ridiculous.” He stressed
the need for faith over logic, even if it is, as he and the Protestant
theologian called “a leap of faith,” a jump far beyond reason. He said that the
“acceptance of the infallibility of Talmudic Rabbis (is) a Halakhically
ordained leap of faith.”

 

Hartman questioned the logic of this approach with a story of a yeshiva student who put
on a heavy wool coat at Lakewood Yeshiva when the outside weather was over one
hundred degrees. When asked why he did so, the boy explained that this was the
practice in his home town in Europe. He refused to acknowledge that the
European Jews in that town were suffering from the cold while he was sweltering
in heat. Similarly, to imagine that a female CEO with a PhD, earning millions
would prefer to be tied to an abusive husband is absurd. This is not only true
of such a woman; it is true of most women today. Thus Rabbi Rackman’s solution
should be revisited. Judaism must not remain in frozen suspended animation and
the chained wives should be released.

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