The Jewish Law Annual: Volume 15 (Jewish Law Annual)

THE JEWISH LAW ANNUAL

The Institute of Jewish Law Boston University School of Law 765 Commonwealth Avenue Boston MA 02215 Publication No. 30

THE JEWISH LAW ANNUAL VOLUME FIFTEEN

THE INSTITUTE OF JEWISH LAW BOSTON UNIVERSITY SCHOOL OF LAW

First published 2004 by Routledge 11 New Fetter Lane, London EC4P 4EE Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 Routledge is an imprint of the Taylor & Francis Group This edition published in the Taylor & Francis e-Library, 2004. © 2004 Trustees of Boston University All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN 0-203-46213-0 Master e-book ISBN

ISBN 0-203-67217-8 (Adobe eReader Format) ISBN 0–415–34004–7 (Print Edition)

We express our appreciation to Beatrice, Jay and Judith Espovich, through whose generosity this volume has been published in memory of The Honorable Norman Espovich

The Jewish Law Annual is published under the auspices of the Institute of Jewish Law, Boston University School of Law. Editor BERACHYAHU LIFSHITZ Executive Board HANINA BEN-MENAHEM NEIL S. HECHT BERACHYAHU LIFSHITZ Board of Editors HANINA BEN-MENAHEM, Jerusalem DOV FRIMER, Jerusalem NEIL S. HECHT, Boston BERNARD JACKSON, Liverpool

BERACHYAHU LIFSHITZ, Jerusalem STEPHEN M. PASSAMANECK, Los Angeles DANIEL SINCLAIR, Jerusalem RONALD WARBURG, Teaneck NJ

Manuscript Editor NESSA OLSHANSKY-ASHTAR Editorial communications should be addressed to Prof. Berachyahu Lifshitz, Institute for Research in Jewish Law, Faculty of Law, The Hebrew University of Jerusalem, Mount Scopus, 91905 Jerusalem, Israel. All communications should be clearly marked “Attention: Editor, Jewish Law Annual.” Contributors should consult the style sheet that appears at the end of the volume; it is also available from the editor upon request. Submissions are welcome from all. Neither the editor nor members of the Board of Editors are to be associated with the views expressed by contributors.

This book is part of a series. The publisher will accept continuation orders, which may be canceled at any time, and which provide for automatic billing and shipping of each title in the series upon publication. Please write for details.

CONTENTS

PART ONE

Jonathan BLASS, Halakhic Altruism: A Critique of H. Dagan’s “The Law of Unjust Enrichment: Between Judaism and Liberalism”

3

Shimshon ETTINGER, Can a Witness Serve as Judge?

13

Irwin H. HAUT, z”l, Unjust Enrichment Revisited

41

Yehiel S. KAPLAN, Enforcement of Divorce Judgments by Imprisonment: Principles of Jewish Law

57

Steven H. RESNICOFF, Ends and Means in Jewish Law: Lying to Achieve Financial Justice

147

Yosef TOBI, Caro’s Shulhan Arukh versus Maimonides’ Mishne Torah in Yemen

189

PART TWO

CHRONICLE Martin EDELMAN, The Eruv Wars

219

Daniel B. SINCLAIR, Jewish Law in the State of Israel

229

1 2

Treatment of the Terminally Ill Jewish Heritage as a Source of Natural Law in Israeli Jurisprudence

PART THREE

Survey of Recent Literature

245

Style Sheet

273

PART ONE

The Jewish Law Annual, Vol. XV

HALAKHIC ALTRUISM: A CRITIQUE OF H. DAGAN’S “THE LAW OF UNJUST ENRICHMENT: BETWEEN JUDAISM AND LIBERALISM” JONATHAN BLASS*

Hanoch Dagan’s article, “The law of unjust enrichment: between Judaism and liberalism,”1 advocates a greater role for Jewish law in Israel, so as to give the shapers of Israeli law “a real choice, in the absence of an alternative to the legal tradition offered us by the West,” a tradition, he says, that “rules us instead of serving us.”2 Acceptance of Jewish law as a legitimate alternative would, according to Dagan, require the lawmaker to decide between competing views of society, between “the liberal heritage of the West and the more communal heritage espoused by Judaism.”3 Dagan recommends that Israeli lawmakers first determine the nature of the society they seek to create, and then fashion laws accordingly.4 Dagan analyzes Jewish law in the area of unjust enrichment from a socio-economic perspective to illustrate what he contends is the difference between the Jewish and the liberal attitudes to the property rights of the individual. At the outset, he makes a disclaimer: no direct connection need exist between the social and economic effects of the law and the legal reasoning offered for the law at the time of its enactment. The fact that the law engenders a society of one kind or another, he maintains, suffices to justify the assumption that the nature of the society was at least an implicit consideration on the part of those who molded the law.5

*

1

2 3 4 5

Rabbi Blass, rabbi of Neveh Tzuf in the Shomron and head of Yehuda, the Zionist kollel in Petach Tikva, is the author of Enrichment (Hebrew), (Jerusalem: 1991). H. Dagan, “The law of unjust enrichment: between Judaism and ism” (Hebrew), in M. Mautner and D. Gutwein (eds.), Law and (Hebrew), (Jerusalem: 1999), 165–90. Ibid., 168. Ibid., 167. Ibid., 189. Ibid., 167 n. 10.

Ratzon Unjust liberalHistory

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Is this assumption, as it applies to Jewish law, correct? Did those who “molded” Jewish law have in mind creation of a particular sort of society? It is important to distinguish, here, between legislation and interpretation. Maimonides writes that the Rabbis of the Talmud saw themselves as interpreting Torah law in accordance with principles of interpretation6 laid down by the law itself.7 The law was legislated not by the Rabbis who interpreted it, but by God. Interpretation of the law in accordance with the principles set down by the law would, in the absence of error, guarantee an interpretation consistent with the Legislator’s original intent. On the other hand, were interpreters of the law to base their interpretations on such external criteria as their own ethical or social preferences, the intent of the law would be lost. Post-talmudic decisors are even more restricted. Recognizing that, for various reasons, the ability to accurately determine the Divine intent has diminished, they interpret Torah law by referring to explanations already given in the Talmud,8 while refraining from putting forward novel commentaries on biblical texts. That the Divine wisdom was cognizant of the social effects of Torah legislation goes without saying. Yet the rabbinical interpreters of that legislation were bound by the legislation itself in that they were required to interpret it in accordance with the formal guidelines that had been transmitted as an integral part of the legislation. Social and economic results of precedent-setting halakhic rulings did not, generally, serve as a basis for further rulings. Only the legal material embodied in the rulings constitutes the precedent. When attacked for abandoning what his accusers alleged were “Jewish ideals,” R. Moses Feinstein defended his decision to permit, in special circumstances, artificial insemination using a non-Jewish sperm donor. Only “knowledge of the Torah,” he writes, and not

6

The thirteen exegetical principles (midot) of Rabbi Ishmael, found at the beginning of Torat Kohanim (Sifra). 7 Maimonides’ Introduction to his Commentary on the Mishnah, sections (a) and (b), pp. 28–29 in I. Shilat (ed.), Maimonides’ Introductions to the Mishnah (Jerusalem: 1997). R. Shilat explains the principles of completeness and the “closed-set” character of Jewish law on p. 69. 8 Yad Malakhi, klal 144; Responsa Havot Yair, #172; Responsa Yehave Daat 1:84.

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“perspectives born of external sources of information” or “self-invented rationalizations,” can serve as a basis for deciding halakha.9 Rabbinical interpretation of halakha rests on comparing and contrasting halakhic precedents. Not only are non-Torah considerations invalid, but even the extra-halakhic aspects of the Torah itself are not used to determine the law. Halakhic questions cannot be resolved, for example, through analysis of the kabbalistic underpinnings of the halakha, even though the halakha that eventually emerges reflects, by definition, kabbalistic truth.10 After the law in any given instance is determined by formal halakhic analysis, Jewish philosophy can reflect on the religious and social meaning of that determination.11 But reversing the process, that is, deciding on ethical or social grounds what result the halakha is aiming for, and then using that conclusion to determine what the law is, would pervert the Torah’s ethical and social intent. If halakhic analysis in a specific instance results in a ruling contrary to what would initially12 seem to be the general social direction of Jewish law, then our understanding of Jewish law’s social purpose must be modified to accommodate the exception. The situation is similar to that of the scientist, who must mold his theories to fit the observed facts, and not allow a preconceived hypothesis to distort his perception of reality. The analogy to the scientist is apt: decisors interpret a pre-existing halakhic reality. Except for those instances where rabbinical decrees and injunctions are enacted, they do not legislate halakha. That said, there are examples of rulings based on the spirit of the halakha. These are cases where an action is technically, that is, according to the letter of the law, permitted, but contravenes the spirit of the law. Two examples: Maimonides writes that “the mind of the Sages is ill-disposed” toward a judge who examines too exactingly a witness whose testimony would permit an aguna to remarry, because the Sages’ decrees were issued with the intent of making it easier for the

9 10

Responsa Igrot Moshe, EH 2:11. Responsa Hatam Sofer, OH #51; Responsa Avnei Nezer, OH #12, #32 and YD 469:7. 11 See, e.g., Maimonides’ Guide for the Perplexed, III:39–41. 12 As previously mentioned, post-talmudic decisions must all be founded on talmudic sources. No new ruling can be too radical even in terms of social or economic direction, since there must already be a talmudic precedent for it.

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aguna to remarry.13 R. Abraham Isaac Hakohen Kook encourages a questioner to dissuade a congregant from erecting a bust as a monument, because even when one can find a halakhic loophole allowing the sculpting of a human form, “the spirit of the Sages is ill-disposed toward it. The pure spirit of Judaism opposes statues of people.”14 The spirit of the halakha is not invoked to interpret Jewish law, but to add obligations or restrictions beyond those mandated by the letter of the law. A violation of the halakha itself, as determined by formal halakhic analysis, is more grievous than is causing disquiet to “the mind of the Sages” or “the spirit of the Sages.”15 It is important to note that Dagan’s article, which analyzes Jewish law on the basis of the kind of society it creates, does not purport to issue rulings on Jewish law within the framework of that law. Dagan does not see himself as a decisor.16 In any event, the question of whether the decisors were motivated by a commitment to interpreting the Torah using the prescribed rules, or, as Dagan would have it, by their unique vision of society, is not essential to Dagan’s argument that application of the halakha leads to the creation of a different — and in some ways better — society than that engendered by the Western liberal tradition. Acceptance of the teaching that the Talmud and the decisors are interpreters of Divine legislation entails that the society created by halakha represents the social blueprint of the Creator.17 The question I would like to address is whether Dagan’s understanding of the social and economic implications of Jewish law regarding unjust enrichment stands up under scrutiny. Jewish law on unjust enrichment, writes Dagan — especially with respect to the obligations of one who has benefitted from someone else, the latter having suffered no loss as a result of the benefit conferred ( ) — is an example of how Jewish principles of charity are incorporated into

13

Maimonides so writes in a responsum quoted in Responsa Binyamin Zeev, #1, Responsa Radbaz, 1:201 and 2:657, Responsa Maharibal 3:89, and elsewhere. 14 Responsa Daat Kohen, #65. 15 See Responsa Igrot Moshe, YD 1:37. 16 Dagan is addressing lawmakers, who have the sovereignty to legislate social policies. In Jewish law, however, legislation is not the province of the decisor, but of God. 17 Even if based on eternal theological truths, such legislation’s social and economic ramifications must also be morally significant — see Guide for the Perplexed, II:40 and III:27.

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the body of Jewish law. In his opinion, Jewish law, in this matter as in others, establishes a distribution of wealth that compensates the needy without the full egalitarianism that would negate individual property rights entirely.18 However, this last contention — that in the spirit of “charity,” Jewish monetary law discriminates against the well-to-do in favor of the poor — finds no support in Jewish law on unjust enrichment. Moreover, a policy that takes into account the individual’s economic status would stand in direct contradiction to the spirit of the precept “you shall not favor the poor man in his argument” (Exod. 23:3). Although considerations of wealth are taken into account in the context of extra-legal ethical obligations,19 they play no role in determining the law itself. One might argue that the injunction against favoring the poor man is directed only at the courts administering the law.20 After all, the Torah itself legislates in favor of the poor, requiring, for example, the giving of charity. R. Kook, however, explains that the indifference to class legislated by the precept extends beyond the injunction to the courts. It is a principle of monetary law, where the Torah bases itself on justice, not charity, and does not favor the poor man by transferring to him what by rights is the property of his more affluent fellow.21 In those instances of unjust enrichment where Dagan sees Jewish law as legislating for the alleged benefit of the needy, closer examination reveals that the distinctions made are a result of the benefactor’s having observed the precept of restoring lost property, or that of rescuing persons or property in danger. In these contexts, it is irrelevant who is needier, the benefactor or the beneficiary. What is significant is that the act of beneficence was mandated by the Torah. Someone — rich or poor — who observes a precept that benefits another — rich or poor — is, as a rule, entitled to compensation for his expenses and losses, but not for his time and effort.

18 Dagan, n. 1 above, 168–70. 19 See Rema, HM 259:5. 20 Maimonides, Book of Precepts, negative commandment 277. 21 Responsa Orah Mishpat, #5. See also R. Jonathan Eibeschutz, Urim Vetumim, Tumim 97:8, who explains, referring to R. Shimon’s view in bBaba Metzia 115a, that “regarding monetary law we are enjoined against favoring the poor.”

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The basis for denying reimbursement for time and effort to someone who, in keeping the precept of restoring lost objects, has saved another from loss, is that “observance of any of the precepts must be undertaken gratis.”22 That is, “it is forbidden to take payment for an act that is a mitzva.”23 It is for this reason that “one who sees a lost object is obligated to return it without charge.”24 Rich and poor alike are equally obligated to observe the mitzvot altruistically. Dagan is correct, therefore, when he writes that a policy that limits a benefactor’s compensation to damages suffered expresses “institutionalized altruism designed to encourage people to take the interests of others into account and to provide for them” and that “a legal system that adopts this alternative detracts, in certain circumstances, from the rights of individuals to their property, creating a reservoir of resources from which members of the community other than the owners of the resource can benefit at no cost.”25 He is wrong, however, in identifying the source of this altruism with charity and a built-in bias in favor of the poor.26 In Jewish law, it is the obligation to invest one’s time, energy and property in observance of the precepts that defines this “altruism” and sets limits to the complete sovereignty of the individual over himself and his property. In fact, often it is the wealthier individual — the one with the greater earning capacity — who is entitled to greater compensation for doing a mitzva. This is because his investment of time involves a more substantial loss of expected revenues. A professional who forgoes well-paying appointments while rescuing another or another’s property is entitled to compensation for his losses, while an unemployed individual carrying out the same rescue would receive no compensation at all.27

22 Urim Vetumim, Urim 34, 39. 23 Biur Hagra, YD 336, 7. 24 Shulhan Arukh (henceforth, SA), HM 265, 1. 25 Dagan, n. 1 above, 171–72. 26 There is, of course, an obligation to give charity that infringes — along with other monetary obligations imposed by Jewish law — on the rights of a property owner to spend his wealth as he sees fit. This obligation, however, is neither unlimited nor unstructured: see SA,YD 247–59. One who has fulfilled his obligations as mandated by the laws of charity bears no further onus in the form of a negative bias toward him on the part of the law. 27 See Jonathan Blass with Michael Wygoda, Unjust Enrichment (Hebrew), (Jerusalem: 1991), 131.

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More damaging to Dagan’s argument is the understanding in Jewish law that someone who derives a benefit that is superfluous to him is defined as not having benefitted at all ( ), and as such pays only for the losses incurred by the benefactor even when the beneficiary was the initiator of the benefit. This in contrast to someone who was in need of the benefit, who must pay the benefactor the market value of the benefit derived. Someone who benefits at his own initiative pays the greater of the following two amounts: (a) the benefactor’s loss; (b) his subjective benefit28 as determined by the price he would have had to pay for a suitable alternative.29 Let us examine the example used by the Talmud: someone who dwells in his neighbor’s yard without first obtaining his permission.30 It is he who is not needy, the “important, well-respected person who is invited by all to stay with them at no cost to himself”31 who pays no more than (a), that is, the benefactor’s loss if the beneficiary forgoes the offers of complimentary hospitality, choosing instead to dwell on his neighbor’s property. His subjective benefit, as opposed to that of his less distinguished fellow, who is accustomed to paying for his accommodations, is zero: for him, use of his neighbor’s property was superfluous. Thus, were someone to store equipment on his neighbor’s property, causing minor damage to the neighbor’s lawn but in no other way causing the neighbor monetary loss (for instance, loss of expected income from renting the property), a deciding factor in the amount of compensation owed the neighbor by the owner of the equipment would be whether the said equipment could have been stored equally well on his own property. If the owner of the equipment had no need to use his neighbor’s property, if he put it there out of carelessness or because he thought his neighbor would not mind, Jewish law would 28 SA, HM 363, 7; see Blass, ibid., 18. 29 Subjective benefit takes into account the financial limitations of the beneficiary only in evaluating a benefit not initiated by the beneficiary or, if initiated by him, that resulted from a mistake for which he was not responsible. However, where the benefit was deliberately initiated by the beneficiary, and was objectively no less than the benefit someone else would have enjoyed under the same circumstances, the beneficiary will not pay less because his financial situation would not have allowed him to purchase the benefit at the usual market price. See Blass, 19, 44, 185. 30 bBaba Kama 20a. 31 Rabbenu Hananel, bBaba Kama 20a.

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obligate him to pay only for the damaged lawn. If, however, it was necessary for him to store the equipment on his neighbor’s property, if, for example, he had no property of his own, he would be obligated to pay the neighbor the full market value of his benefit: in other words, he would be required to pay rent. The greater the subjective need of the beneficiary (that is, the less convenient it would have been for him to have stored the equipment at an alternate site), the greater the payment due the benefactor.32 Hardly a doctrine favoring the needy! It is clear that Jewish law here is rooted in a legal definition of “benefit” rather than in considerations of charity. Dagan, trying to find evidence for his theory in halakhic sources, becomes entangled in the untenable conclusions of his socio-halakhic analysis. Consider the following example. A beneficiary who produced tangible profits from the property of the benefactor is obligated to return the profits even if these were produced at no loss to the benefactor. Were the benefit other than tangible profits, the beneficiary would not be similarly obligated. Dagan sees the distinction between the two kinds of benefit as evidence that Jewish law on unjust enrichment favors the poor. A poor beneficiary, he argues, is less likely to be required to pay for his benefit than a rich one. While profit is not, in and of itself, “direct proof” of the “economic status” of the beneficiary, it provides “circumstantial evidence” indicating “the absence of need.”33 Unfortunately, the talmudic example used by Dagan to illustrate the principle that tangible profits must be returned to their source is the determination that the owner of a cow is entitled to all profits deriving from his animal; the cowherd in whose care the cow was left has no right to profit “from his neighbor’s cow.” Is it likely — as Dagan seems to be arguing — that the cowherd’s having made a profit is indicative of financial well-being? The language of the text points to a conclusion — namely, that assets generate profits — quite contrary to that inferred by Dagan. The one who owns the factors of production is entitled to what they produce. Someone indigent, who does not own the factors of production, has no right to what his neighbor’s property has produced. The fundamental error in Dagan’s interpretation of the social philosophy underlying Jewish law on unjust enrichment is his focus on the economic status of the beneficiary rather than on the impact of the 32 Blass, n. 27 above, 14. 33 Dagan, n. 1 above, 185–86.

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benefit on the benefactor. A benefactor who suffers no loss while his fellow benefits from his property is not entitled to payment, regardless of the wealth or need of either the beneficiary or the benefactor. Jewish law seeks to foster an altruism predicated on the reasonableness of sharing one’s resources with one’s fellow when that sharing costs the owner of the resource nothing: if your neighbor, rich or poor, has derived pleasure or comfort from something that is yours, and you have suffered no loss of expected revenue, nor has your property been damaged, why should you demand payment? This communal principle complements the doctrine that precludes one from demanding payment for the time and effort invested in fulfilling a mitzva. The Torah obligated the individual in question to act; on what basis can he insist on remuneration for that which was not his to withhold? Here it is important to emphasize that these two principles — the principle that a benefactor who suffers no loss is not entitled to payment for the comfort or satisfaction afforded another; and the principle that one who fulfills a precept is not reimbursed for the time and effort invested in doing so — are halakhic in nature, and not abstract social guidelines. Their application, determining when the halakha makes exceptions to the general rule, is governed by the traditional mode of interpretation of halakhic sources, and not by a vague sense of where Jewish law seems to be heading and what society it hopes to create. The altruism advocated by Jewish law encourages a greater sense of community and commitment to ethical imperatives than the classconscious altruism described by Dagan as the basis for Jewish law on unjust enrichment. This conclusion, however, only reinforces Dagan’s recommendation that Jewish law be considered a worthy moral and social alternative to Western liberalism. The ideal of a community obligated by absolute ethical imperatives has, after all, been at the root of Jewish nationhood since its inception.

The Jewish Law Annual, Vol. XV

CAN A WITNESS SERVE AS JUDGE? SHIMSHON ETTINGER*

I Introduction: Definition of Witnessing and the Problem of “A Witness who Serves as Judge ( )” Definition of Witnessing – “Two are Like a Hundred” – Consanguine Witnesses – One Found to be a Relative or Unfit II Can Witnesses Serve as Judges? i bRosh Hashana 25b — “If the Court Saw it” ii bKetubot 21b — Verification of Documents iii bBaba Batra 113b–114a — Three who Visited a Sick Man iv bBaba Kama 90b — One who Battered Another v The Jerusalem Talmud III The Development of the “Witnesses cannot Serve as Judges” Law i A De Facto Witness can Serve as Judge ii Witnesses cannot Serve as Judges Rashi and Nahmanides Alfasi and Maimonides IV Conclusion: The Controversy over the Question of Whether Witnesses can Serve as Judges I

Introduction: Definition of Witnessing and the Problem of “A Witness )” who Serves as Judge (

It is well known that Jewish law assigns witnesses a prominent role in evidence law, indeed, a role imbued with special significance.1 But on * 1

Shimshon Ettinger teaches Jewish Law at Bar Ilan University’s Emanuel Rackman Law Center. “Witnessing is the best evidence in our law, and numerous laws were formulated to define the manner of giving testimony, its value, and the arguments that can be brought to counter it,” A Gulak, The Principles of Jewish Law (Hebrew), vol. 4 (Berlin: 1929), 113.

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examination, the laws of witnesses raise queries and difficulties, as it is nearly impossible to reconcile them, using logical reasoning, with the nature and aims of the laws of witnessing as understood in Western jurisprudence. The conclusion that follows from examination of these laws is that the halakhic conception of witnessing is fundamentally different from that of other legal systems.2 The usual concept of testimony in modern legal systems sees it as a means of establishing facts, and similar to other forms of proof. In other words, it is an instrument at the disposal of the judge for investigating factual matters on which there is as yet no agreement. Let us examine some of the halakha’s laws of witnessing from this perspective.

“Two are Like a Hundred” Scripture says: “at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established” (Deut. 19:15), meaning that the required minimum number of witnesses is two.3 But beyond this requirement of two witnesses, the halakha also declares, “two are like a hundred,” that is, the evidentiary weight does not increase with the number of witnesses, and numerous witnesses supporting one party are no more weighty than two witnesses for the other.4 Now this is strange. If witnesses serve as an instrument for the

2

For a comprehensive discussion, see H.S. Hefetz, “The place of witnesses in Jewish law,” 9 Dine Israel (1978/80), 51, and S. Ettinger, “The role of witnesses in Jewish law,” forthcoming in 22 Dine Israel, which is summarized in the present paper. 3 “We have been forewarned to refrain from meting out punishment or exacting payment based on the testimony of a single witness, even of unquestionable integrity. The Exalted One says, “One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sins” (Deut. 19:15),” Maimonides, The Book of Precepts, Kafih edition (Jerusalem: 1971), Negative Commandment 288. 4 “Said R. Huna the son of R. Joshua to R. Papa: When do the Rabbis say that we act in accordance with the majority opinion? Only in the case of estimates, where the more there are, the more experts there are; but in the case of testimony, a hundred are like two, and two are like a hundred” (bShevuot 42a).

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provision of evidence, their number surely ought to be significant, and the more numerous they are, the credibility of the evidence should increase accordingly.5 Consanguine Witnesses According to Jewish law, the evidence given by two witnesses who are related is void.6 We may ask once more: What is the relevance of their relationship to their credibility when testifying against a stranger on a matter in which they have no vested interest? One Found to be a Relative or Unfit One of the most perplexing laws says that one unqualified witness found in a group of witnesses who were present when an incident occurred, though they were at the scene of the event by chance, voids the testimony of the entire group, to exclude any possible collusion. The source of this law is the Mishnah: Just as in the case of two [witnesses], where, if one of them was found to be a relative or [otherwise] disqualified, their evidence is void, so it is in the case of three … how do we know [that this is so even] in the case of a hundred? The scriptural verse teaches “witnesses.”7

In the same Mishnah, R. Jose and R. Judah the Prince debate whether this rule applied only to capital charges or to monetary law as well. On

5

For example, referring to the talmudic case (bShevuot 42a), Maimonides states: “If someone stipulated with his creditor, ‘you are believed by me as [much as] two [witnesses],’ [then] even if the debtor brings a hundred witnesses that he has paid, the creditor nevertheless collects without an oath, since he is trusted like two witnesses” (Code, Laws concerning Creditor and Debtor 15:4). As we said, this calls for explanation. If a hundred witnesses say that he has settled his debt, their testimony ought to be more convincing than that of the creditor alone, even if he is believed “as two.” 6 Maimonides, Code, Laws concerning Witnesses 14:6. For example: two brothers, father and son and so forth, who witnessed a felony and wished to testify — their testimony is not accepted. 7 mMakot 1:8, and see mMakot 1:7.

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the basis of the opinion of R. Nahman in the Talmud,8 the decisors rule in accordance with R. Judah the Prince’s view that the law applies even to monetary cases, and not just to capital charges, which are subject to various strictures.9 On the basis of the talmudic passage,10 Maimonides sets down the law as follows: And how do they investigate this matter? When a great number of witnesses appear in court, the official says to them: “When you saw the man who killed or caused damage, did you intend to testify or to see [the incident]?” All those who say that they intended to testify are set aside. If there was a relative or one unfit to be a witness among them, the testimony of the whole group is void.11

According to Maimonides, when they report to the court, witnesses are questioned about their intentions at the time the incident occurred. If, among them, there is an unfit witness who intended to testify, the whole group is disqualified. Tosafot and Asheri are of another opinion.12 They maintain that the mere intention of the witnesses at the time of the incident is not sufficient to disqualify the group, unless the unfit witness has already 8 bMakot 6a. 9 R. Hananel, Commentary on the Talmud, ad loc. Other Early Authorities concur. 10 “Said Rava: [We ask them] whether they had come as mere onlookers, or to give evidence,” bMakot 6a. This implies that the witness disqualifies the testimony of the others only if he appeared on the scene with the intention of testifying. The commentators differ on the interpretation of this statement; see A. Radziner, “Forewarning of witnesses and the onset of witnessing” (Hebrew), 20–21 Dine Israel (2000/1), 515. His main arguments are as follows: 1. The Mishnah adds, “they took part in the forewarning.” This means that if the witnesses appeared in court to testify as a group and were forewarned together, the unfit witness disqualifies the whole group. But if they were not forewarned together, what makes them into a group? (537). 2. Rava’s statement is not an interpretation of the Mishnah, but refers to attesting witnesses, in which case the witnesses knew that a legally significant act was about to take place. In such cases it makes a difference whether the unqualified witness was a spectator, or intended to join the group of witnesses (542). This is a good explanation of the Mishnah and the talmudic sugya, but it does not help us understand the rationale of the law that one unfit witness disqualifies the whole group, even in a case of attesting witnesses. 11 Code, Laws concerning Evidence 5:5. 12 Tosafot, bMakot 6a s.v. Samuel; Piskei Harosh, Makot 1:11.

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testified. Others impose a further limitation: the testimony of the group is only voided if the other witnesses knew of the testimony of the unfit witness. If not, their testimony is valid.13 To summarize, what is being sought is apparently a common denominator that serves to render the witnesses a single unit, that is, some factor that links together persons who would otherwise be simply a number of discrete individuals. It is clear that the connection between them is formal and accidental, without involving any personal element, and there is no logical or substantive reason to suppose that this connection has any influence on the case. If so, why does the single unfit witness disqualify all other satisfactory witnesses, who wish to report what they saw truly and honestly? This question was addressed by R. Akiva Eger, one of the foremost Later Authorities: The whole group of witnesses is disqualified if one among them was found unfit. We have no reason to question the credibility of the others, because they do not have the impediment of being unfit witnesses, who may be assumed to be dishonest. Rather, it is by scriptural decree that the testimony is voided.14

So the law in question is not a function of the witnesses’ lack of credibility, but a scriptural decree. We can infer from the above laws, all of which appear to be illogical, that the very concept of witnessing in Jewish law differs from that familiar to us from other legal systems. Generally, Western law regards witnesses as an instrument for revealing and ascertaining facts. But in Jewish law this is not the case. Here, witnesses are regarded as an independent institution with the authority to establish the facts of the case. The court accepts and recognizes these facts, and bases its ruling upon them. In other words, the witnesses constitute an official body that, in its role and status, is the equal of the court itself! This conception of the institution of witnesses has had far-reaching consequences for the laws of evidence, as we saw with regard to the laws considered above.

13 14

Alfasi and Nahmanides are quoted by Asheri; see too Tur and Beit Yosef ad loc. Ketav Vehotam, bGitin 9a s.v. ayen.

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It also provides an explanation for these laws, and dispels their seeming lack of logic.15 II

Can Witnesses Serve as Judges?

In light of what was said about the concept of the role of witnesses in Jewish law, the question of whether witnesses can serve as judges assumes greater interest and importance. The relevant question in our context is whether a judge, or a number of judges, who have witnessed an incident that is subsequently brought before the courts, can decide it on the strength of first-hand knowledge, without the testimony of additional witnesses. We might expect that the formal-institutional concept of the role of witnesses would negate the very possibility of the judge fulfilling a dual role, namely, serving as both witness and judge. But is this really the position of the halakha? A number of sugyot in the Babylonian and Jerusalem Talmuds discuss this question. The commentators and halakhic authorities arrive at various, and incompatible, conclusions. Let us examine this in more detail. i

bRosh Hashana 25b — “If the Court Saw it”

The Mishnah refers to a case in which members of the court had seen the rising of the new moon, a case discussed in two sugyot. The Mishnah states: “If the [members of the] court alone have seen it, two of them should stand and testify before them, and then they can say: Sanctified, sanctified.”16 The Mishnah clearly implies that the witnesses and the court are separate entities, for even if the new moon was seen by every member of the court, nevertheless, two of its members must serve as witnesses testifying before the others, who act in their capacity as a court. 15

Cf. Maimonides, Code, Laws concerning the Fundamental Principles of the Torah 7:7; 8:2. Maimonides draws an analogy between the commandment to decide the law on the evidence of two witnesses, and the commandment to obey a prophet, particularly as articulated in Laws concerning the Sanhedrin 24:1: “Why does the Torah require two witnesses? So that when they testify, he [the judge] may rule in accordance with their testimony, even though he does not know whether they were telling the truth or lying.” Maimonides’ remarks seem to reflect the model of the formal, institutional role of witnesses, as opposed to the model on which witnesses are but instruments used by the judge to help him reach determinations as to the facts of the case. 16 mRosh Hashana 3:1.

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The Talmud wonders: “Why so? Here too we can argue that hearing does not carry greater weight than seeing!”17 Why are the witnesses needed at all? After all, all the members of the court had seen the new moon and could sanctify it on the basis of first-hand information. This is a key question for the halakhic authorities. Is it possible to deduce from it a general principle such as ‘seeing by judges is the equivalent of hearing [testimony from] witnesses’ and hence renders the latter redundant? Apparently not. Rashi explains: Why should two of them testify, since all of them had seen it? Let them sanctify it on the basis of their having seen it, because hearing does not carry greater weight than seeing. For Scripture does not require proper witnessing for the sanctification of the new moon. The requirement is to see it: “See [the moon when it is] like this and then sanctify [it].”18

If the court had seen it, why are witnesses needed at all? R. Zera suggests: “[They are needed if] for instance, they saw it at night.” The members of the court had seen the new moon at night, when they are not permitted to convene, so “therefore, on the next day [when they can no longer see it], without the report, on what basis can they sanctify [the new moon]?”19 Hence testimony is required. R. Zera’s solution implies that the query, “Why so? Here too we can argue that hearing does not carry greater weight than seeing!” refers only to the actual sanctifying of the new moon. Otherwise, it could still be argued that if seeing were equivalent to hearing testimony, there should be no impediment to the court’s proclaiming the new month in the morning on the evidence of their own eyes on the previous day. Therefore we must assume that the query is limited to the act of sanctifying the new moon, governed by the rule “See [the moon when it is] like this and then sanctify [it].” So in the morning, when they can no longer see the moon, “without the report, on what basis can they sanctify [the new moon]?”20 17 18 19 20

bRosh Hashana 25b. Ad loc. s.v. veamai. Rashi ad loc. s.v. sherauhu. The same explanation applies even if the question, “Surely hearing does not carry greater weight than seeing?” was added to R. Zera’s statement, “for instance, they saw it at night,” by the editor of the sugya (cf. D Weiss-Halivni, Mekorot Umesorot, Baba Kama (Jerusalem: 1993), 12). Even so, R. Zera’s comment refers only to a particular constraint on sanctifying the new moon — “See [the moon when it is] like this and then sanctify [it],” and does not imply that the court could decide on the basis of what its members saw by day.

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At this point, then, we have no reference to the laws of witnesses in general, and we cannot conclude from the sanctification of the new moon that in other cases as well, the court may reach a judgment by relying on the first-hand evidence of its members. But the talmudic passage goes on: This implies that a witness may serve as judge. Shall we say then that our Mishnah is not in agreement with [the view of] R. Akiva, since it has been taught: If the members of the Sanhedrin saw someone killing another, some of them serve as witnesses and some of them serve as judges: this is the opinion of R. Tarfon. R. Akiva says, All of them are witnesses and a witness cannot serve as judge. But you could say that our Mishnah is in agreement even with [the view of] R. Akiva — R. Akiva meant this rule to apply only to capital cases, in regard to which the All-Merciful enjoined, “the congregation shall judge … and the congregation shall deliver” (Num. 35:24–5) and since they have seen him kill someone, they cannot find any defense for him. But in the case [in question], even R. Akiba would agree [that a witness may serve as a judge].21

What is the relevance of this to our subject? First of all, it should be noted that this passage seems to be an incidental addition to the original sugya. The expression “a witnesses who serves as judge” appears first here. It refers, according to Tosafot, to one who adjudicates a case on the basis of testimony given by others, though he himself was present when the incident occurred. The question is whether this continuation of the passage extends the debate to all cases, and does not limit it to the sanctification of the new moon, which, on this reasoning, is not regarded as a category in itself. This is not impossible, but, bearing in mind that the passage is not an integral part of the sugya, it is not a necessary conclusion either. It could be argued that the discussion here pertains to the case as interpreted by R. Zera, who argued that the court sanctifies the new moon on the testimony of witnesses even though the judges themselves had seen the new moon on the previous evening. The conclusion that could be drawn, therefore, is that “a witness can serve as judge,” since the testimony on the next day is indeed that of witnesses. The premise of the sugya need not be changed, and remains as implied by the question, “Why so? Here too we can argue that hearing does not carry greater weight than seeing!” That is, the sanctification of the new moon does not require witnesses, as seeing it suffices. 21

bRosh Hashana 25b–26a.

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As we said, the continuation of the passage relates to a different matter, and it does not change our conclusion because it does not suggest anything with regard to judging on the basis of first-hand experience alone.22 ii

bKetubot 21b — Verification of Documents

This sugya,23 like the previous one, relates to the Mishnah on the subject of the court whose members had seen the new moon, but its approach and conclusions are completely different. The sugya opens with a discussion about the verification of documents, specifically, about testimony before the court as to identification of the signatory witnesses to a document. “If three sit together to confirm a deed, and two [of them] know the signatures of the witnesses and one does not know, before they sign, they may testify before him, and he [then] signs [with them].” That is, the two who know the signatures testify in front of the third and write the attestation. The Talmud concludes: “We can infer that a witness may serve as judge.” And later in the same passage: R. Abba sat and reported this law, that a witness may serve as judge. R. Safra [then] raised the following objection to R. Abba[’s view]: “If three saw it and they are members of a court, two shall stand and set [two] of their colleagues beside the one, and they shall testify before them, and they will say: Sanctified [is the new moon], sanctified; for one person is not believed by himself.”24 Now, if you assume that a witness may serve as judge, what do we want all this for? Let them sit in their places and sanctify it! He said to him: That was also difficult for me [to understand], and I asked R. Isaac b. Samuel b. Martha. And R. Isaac [asked] R. Huna, and R. Huna [asked] Hiya b. Rav, and Hiya b. Rav [asked] Rav, and he said to them: Leave alone the testimony as to the new moon, [for it is] biblical, and the verification of documents is Rabbinic.

22

23 24

On the contrary, with regard to capital charges both R. Akiva and R. Tarfon reject such a scenario. Their disagreement is over first-hand knowledge reinforced by testimony, which is, according to R. Tarfon, valid: “some of them act as witnesses and some as judges.” That is, evidence must be given by witnesses, and no ruling can be based only on first-hand knowledge. bKetubot 21b. mRosh Hashana 3:3, the continuation of the passage quoted in the sugya in bRosh Hashana.

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R. Safra attacked R. Abba’s view by quoting the Mishnah in Rosh Hashana, which says that the witnesses cannot serve as a court. After presenting this question to a number of scholars, the answer finally arrived at in the name of Rav is: “Leave alone the testimony as to the new moon, [for it is] biblical, and the verification of documents is Rabbinic.” The validation of documents is different, because it is mandated by Rabbinic enactment, but in cases where scriptural law requires witnesses, a witness indeed cannot serve as a judge, as the Mishnah says. In what way does this sugya differ from that in tractate Rosh Hashanah, which discusses the same subject? First, the sugya in Ketubot considers the question of whether witnesses may serve as judges in a broader sense, asking whether a judge can decide a case on the evidence of his own eyes. Furthermore, the sugya in Ketubot initially regards the witnesses to the new moon as though they were witnesses in any other legal proceeding, and for this reason cites the apparently contradictory Mishnah against R. Abba as a basis for the retort, “Now, if you assume that a witness may serve as a judge, what do we want all this for? Let them sit in their places and sanctify it!” Thirdly, the conclusion differs. In the sugya in Rosh Hashana, R. Zera explains that they saw the new moon at night, which prevented them from convening on the spot, while in Ketubot Rav says that the sanctification of the new moon is scripturally mandated, whereas the attestation of documents is merely Rabbinic. In spite of these differences, the sugyot do not differ on the main point, and reach the conclusion that a witness cannot serve as judge. A judge cannot rule on first-hand experience without the testimony of witnesses.25 iii

bBaba Batra 113b–114a — Three who Visited a Sick Man

This sugya26 discusses the distribution of an estate in accordance with the instructions of the testator. This sugya too does not deal directly 25

26

Tosafot, Ketubot ad loc. s.v. hanah, disagree, commenting on the sugya in Rosh Hashana: “we only say that a witness cannot serve as judge if he actually testified . . . but a witness whose testimony is not needed, for example, if there were other witnesses, or if they had seen the moon during the day, when witnesses are not required, for hearing does not carry greater weight than seeing, can serve as judge.” This view will be discussed below. bBaba Batra 113b–114a.

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with the question of whether “a witness may serve as judge.” It is mentioned as an interpretive comment, as will be explained. The sugya is as follows: It was taught: [With the scriptural proclamation] “And it shall be unto the children of Israel a statute of judgment” (Num. 27:11), the whole section [Num. 27:1–11] has been proclaimed to be [of a] judicial [character]. And this is in accordance with the view of R. Judah, for R. Judah said: Three who came to visit a sick man — if they wish, they write down [his instructions as to the disposition of his estate]; if they wish, they render judgment. Two may write down [the instructions] but may not render judgment. And R. Hisda commented: This applies only during the day; at night, however, even three [only] write down [the instructions] but do not render judgment.

According to the baraita, the distribution of the estate is a judicial procedure like any other civil case.27 The editor of the sugya attached to this the law reported by R. Judah concerning three who visited a sick man and heard his testament. They may either write it down or render judgment. That is, they can write down what he said and render a decision on the disposition of the estate sometime later, or if they prefer, render judgment immediately, since “they are three and they can adjudicate and decide that one person gets this part and another, that part.”28 R. Hisda comments on this: “This applies only during the day; at night, however, even three [only] write down [instructions] but do not render judgment.” A court cannot sit at night, therefore they can only take down what was said as a deposition. This is the main part of the sugya. This sugya does not provide information on the question of whether judges can rule on the basis of they saw. R. Judah’s dictum relates to an admission made by the sick man, and states that those

27

“We could have thought that it was a private matter, like partners taking their share, and not a matter to be settled before a court, hence it is said that three must adjudicate it, and may do so only in the daytime” — Rashbam ad loc. s.v. detanya. The Tosafot s.v. oraa explain the meaning of the legal procedure in this context as follows: “regardless of what the sons [might have preferred], those who are present while the bequest is made become judges and pass judgment, and the testator cannot say that he did not want them to be judges.” 28 Rashbam ad loc. s.v. ratzu.

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who hear it may use it as a basis for rendering judgment.29 Hearing the admission is like hearing a witness. But this is not testimony in the ordinary sense, namely, evidence as to an event that is provided to the court, and we cannot infer anything from it with regard to other matters. The sugya elaborates on R. Hisda’s statement: “What is the reason? Because they have become witnesses, and a witness may not serve as judge.” This is the first appearance of the notion of “witnesses serving as judges” in the sugya. It adds that if the event took place at night, when courts cannot convene, the admission of the sick man cannot be regarded as a deposition in court, and the three cannot render judgment on it the next day, but have to hear witnesses attest to it, for “a witness cannot serve as judge.”30 In any case, this addition does not change the conclusion of this sugya with regard to our query. There is no evidence in the sugya that a court may decide on the basis of what its members themselves saw, because the subject of the sugya is a statement declared before them, not the handing down of a ruling on the basis of what the judges themselves saw. iv

bBaba Kama 90b — One who Battered Another

This sugya relates an incident in which someone battered another in the presence of the judge, R. Judah II Nesia. The text implies that he judged the man on the basis of what he had seen. This sugya apparently marks a turning point in the discussion of whether witnesses may serve as judges. We shall discuss its significance and implications below. The case is as follows: A certain person battered another and the case was brought before R. Judah Nesia. He said to him: I am here and here too is R. Jose the Galilean, so that you have to pay the plaintiff a Tyrian mane.

The Talmud examines whether this implies that a witness can serve as judge, since R. Judah II apparently ruled that the man was liable on the basis of what he had seen. But the Talmud objects to this, citing the 29

30

Rashbam, ibid.: “They see the sick man distributing his property, for the admission of the litigant is worth the evidence of a hundred witnesses.” And see too Nahmanides and Ritba ad loc. Rashbam ad loc.; Rashi on the parallel sugya, bSanhedrin 34b s.v aval.

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following baraita, which expresses a contrary view: It was taught: If the members of the Sanhedrin saw someone killing another, some of them serve as witnesses and some of them serve as judges: this is the opinion of R. Tarfon. R. Akiva says, All of them are witnesses and a witness cannot serve as judge. Now, even R. Tarfon surely said only that some of them serve as witnesses and some of them serve as judges, but a witness [also] serving as judge?! — that, he surely did not say. The said teaching refers only to a case where, for instance, they saw [the murder taking place] at night, when they were unable to act in a judicial capacity. Or if you prefer I could say that what [R. Judah II] said to him was, Since I am here, and uphold the view of R. Jose the Galilean, who stated that a Tyrian mane [should be paid], and since there are [also present] here witnesses testifying against you, go and pay [the plaintiff] a Tyrian mane.

The baraita implies that both R. Akiva and R. Tarfon disqualify witnesses from serving as judges. Even in the opinion of R. Tarfon, a witness who was present at the event could only judge upon hearing the testimony of others, but not on the basis of his own first-hand experience. One of the Talmud’s responses to the alleged contradiction is that “they saw it at night.”31 On this reasoning, had they seen it during the day, they would have been able to judge on the basis of first-hand experience without relying on the testimony of others.32 So the conclusion of the sugya in Baba Kama differs from that reached in the other sugyot — namely, that members of a court cannot judge civil suits on the basis of first-hand experience. Furthermore, the conclusion here contradicts the sugya about the verification of documents in Ketubot, which explicitly states: “Leave alone the testimony as to the new moon, [for it is] biblical,” meaning that with regard to scriptural matters a court can never judge on the basis of what its members have seen. 31 32

Another solution is also offered, as we will soon see. Rashi ad loc. s.v. sherau: “but if they saw it during the day they immediately adjudicate in accordance with what they saw, in the opinion of R. Tarfon, and R. Judah II holds the view of R. Tarfon.” Also Tosafot s.v. kegon: “If they saw it during the day, they judge in accordance with what they saw, for hearing does not carry greater weight than seeing, but if they saw it at night, they cannot judge on the basis of what they saw at night, because seeing is like hearing testimony.” According to Rashi, R. Judah II concurs with R. Tarfon, hence he judged the batterer on the basis of what he had seen, since the incident had taken place during the day. Tosafot disagree on this point with Rashi: “There is no need to say this, and it may well be that even R. Akiva only takes this view with respect to capital cases.”

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We must now try to assess the legal-normative weight of the sugya in Baba Kama relative to the others. In other words, if the conclusion of this sugya indeed differs from the others, are there any grounds for giving it precedence, and accepting it as the law? Further scrutiny leads us to reject this possibility. The halakhic significance of the sugya in Baba Kama is not as great as that of the other sugyot, for several reasons. (a) While the other sugyot have Amoraic dicta at the focus of their discussion,33 the sugya in Baba Kama is general in its formulation, and does not quote earlier Amoraic statements. (b) The key phrase, “for instance, they saw it at night,” is an ad hoc reply to a possible contradiction between the view of R. Judah II and the baraita of R. Akiba and R. Tarfon.34 Concurring with R. Abraham, head of the court,35 whom he quotes, Nahmanides comments on this as follows: Even though the sugya in Baba Kama concludes that it was like this . . . 36 it is so stated to preempt a possible objection.37 . . . And another reply is also presented, “or if you prefer I could say,” which enables the contradiction to be harmonized, even if he saw it by day; and it is in accordance with the view of R. Ashi. This is the interpretation proposed by the Master, head of the court, and it is well spoken.38

33

34

35 36 37

38

For example, bRosh Hashana 25b: “Why so? Surely hearing does not carry greater weight than seeing? R. Zera said: for instance, they saw it at night”; bKetubot 21b: “R. Safra [then] raised the following objection to R. Abba[‘s view]. . . . He said to him: That was also difficult for me [to understand]. . . . Leave alone the testimony as to the new moon, [for it is] biblical, and the verification of documents is Rabbinic.” It is well known that a distinction must be made between Amoraic statements and non-attributed general observations that explain or comment on them. Cf. Weiss-Halivni, n. 20 above, introduction. The passage that opens the sugya, quoted above, is immediately followed by the query, “What is the meaning of, ‘I am here and here too is R. Jose the Galilean’? If you say he meant, ‘I, who saw you, am here’ . . . would this not imply that a witness can serve as judge?” R. Abraham b. Isaac of Narbonne (R. Abad), c. 1110–1179. That is, that they saw it at night, but had they seen it during the day they could have judged on the basis of what they had seen. This is the correct text, which is evident from the fact that it fits the context, as opposed to the manuscript version “and it is not so stated to preempt a possible objection”; the version in Shita Mekubetzet is apparently a scribal error. Nahmanides on Ketubot ad loc., Shevet edition (Jerusalem: 1990), 121; also in Shita Mekubetzet.

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(c) As we said, the reply “for instance, they saw it at night,” is somewhat far-fetched, and it is followed by another answer that seems to have better contextual support: “Or if you prefer I could say that what [R. Judah II] said to him was, Since I am here, and concur with R. Jose the Galilean, who stated that a Tyrian mane [should be paid], and since there are [also present] here witnesses testifying against you, go and pay [the plaintiff] a Tyrian mane.” Furthermore, in his commentary, R. Solomon b. Adret (Rashba) regards the first answer (they saw it at night) as very strange. He offers a very different interpretation and concludes his discourse with the following disclosure: I found a text edited at the academies of the Geonim, and there the words, “This teaching refers only to a case where, for instance, they saw [the murder taking place] at night,” are omitted. The text is as follows: “Even R. Tarfon surely said only that some of them serve as witnesses and some of them serve as judges, but a witness serving as judge?! — that, he surely did not say. But he [R. Judah II] said to him, I uphold the view of R. Jose the Galilean, and there are witnesses present.” This is the true version and it is in harmony with what I have written.

According to the version quoted by Rashba, the tentative answer that they saw it at night does not appear in the sugya at all. It was apparently inserted later. All this indicates that it would be very difficult indeed to accept the answer that they saw it at night as halakhically decisive, and conclude from it that witnesses can serve as judges, that is, that had members of the court witnessed an incident during the day, they would have been able to rule on it without hearing any testimony. Nevertheless, numerous authorities and decisors regard the sugya in Baba Kama (the batterer) as authoritative, interpret the other sugyot so as to be in harmony with it, and decide the law accordingly.

v

The Jerusalem Talmud

Like most sugyot in the Babylonian Talmud, the Jerusalem Talmud does not recognize the possibility of a court’s judging on the basis of what its members have seen. This is stated explicitly in jRosh Hashana on the

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Mishnah discussing the court that saw the new moon: If the court saw someone killing another, according to one opinion two of them act as witnesses and they testify before the others. According to another opinion they all testify before another court. R. Judah b. Pazi said in the name of R. Zeira: As they disagree here, so they disagree on testifying about seeing the new moon.39

In discussing the case of a court whose members saw someone killing another, the Jerusalem Talmud quotes a Tannaitic discussion about whether the court could adjudicate the case. The discussion is, obviously, the baraita of R. Akiva and R. Tarfon, familiar to us from the Babylonian Talmud. According to R. Tarfon, some of them serve as witnesses and the others serve as judges, whereas R. Akiva disqualifies all of them from judging the case. But in the Jerusalem Talmud there is a significant addition. R. Judah b. Pazi says, in the name of R. Zeira: “As they disagree here, so they disagree on testifying about seeing the new moon.” On this account, the Tannaitic discussion does not refer only to capital cases, as it does on the interpretation of the Babylonian Talmud, but also to witnessing the new moon; indeed it applies to any case at all. The conclusion drawn is that both Tannaim maintain that witnesses cannot serve as judges, in the sense that they cannot judge a case on the basis of what they themselves have seen, but only on the testimony of witnesses.40 III The Development of the “Witnesses cannot Serve as Judges” Law It is intriguing to examine the development of this law in the works of the Early Authorities and decisors. As we will see, Rashbam and the Tosafot introduced a radical change in the interpretation of the Talmud, while other Early Authorities, Rashi and Nahmanides maintain the original interpretation explicated above. i A De Facto Witness can Serve as Judge In his commentary on the sugya in Baba Batra, Rashbam is the first to put forward the novel interpretation of “a witness who serves as 39 40

jRosh Hashana, 3:1; 58d Leyden MS, AHL edition (Jerusalem: 2001). Cf. Yafe Einayim on the sugya in Rosh Hashana, and Noam Yerushalmi on jRosh Hashana ad loc.

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judge.” The sugya discusses the case of three who visited a sick man and heard him bequeathing his property: “if they wish, they write down [his instructions as to the disposition of his estate]; if they wish, they render judgment.” This is subject to the limitation mentioned by R. Hisda that it applies only during the day, since at night they are not permitted to render judgment. Rashbam explains: “On the next day, [they render judgment] even if they did not write it down, but two others must give testimony before them. We learned this in Rosh Hashana: If three saw it and they are members of a court, two shall stand and set [two] of their colleagues beside the one, and they shall testify before them.”41 According to this explanation, judges who saw an event at night cannot judge the case on the next day on the basis of their own first-hand information, because a witness who was present at an event cannot judge on the basis of his own testimony. But Rashbam adds: “If, for example, he saw the event at a time when he could not render judgment. But if he saw it during the day, when he is able to render judgment, he can do so, because surely hearing does not carry greater weight than seeing — it makes no difference whether he rendered judged immediately or on the next day.” Rashbam’s first premise is that “hearing does not carry greater weight than seeing,” was stated in the Talmud in tractate Rosh Hashana as a general rule governing the laws of witnessing, and was not restricted to the context of seeing the new moon. Therefore, in principle the court can judge on the basis of what its members have seen, without additional witnesses. But if so, what difference does it make whether they witnessed the event by day or by night? Rashbam explains: Seeing at that time [night] cannot be considered testimony. For this it would have to be at a time when they can convene. But when they saw it [at a time] when they could not convene, at night, for instance, it is considered like seeing by ordinary witnesses, because they were not judges at the time. Therefore . . . they cannot judge on the basis of what they saw . . . for a witness cannot serve as judge.

Rashbam adds that this is also the thrust of the sugya of the batterer. Here we can see the development of the halakha. Rashbam first interprets “hearing does not carry greater weight than seeing” as 41

Rashbam on bBaba Batra 114a s.v. afilu.

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a general principle, and then proceeds to construe all the sugyot as a “single sphere,”42 including that of the batterer, which is obviously different. He draws the conclusion that a court can rule on the basis of what the judges have seen, without witnesses. The Tosafists pursue a similar course. They explain the sugyot as reinforcing each other, and reach the same conclusion. For example, the sugya in Ketubot discusses whether a witness can serve as a judge in the context of verification of documents, and its conclusion is: “Leave alone the testimony as to the new moon, for it is biblical, and the verification of documents is Rabbinic.” The meaning is that a witness cannot serve as a judge and decide on the basis of what he has seen with his own eyes, except in the context of verifying documents. Whether the act in question was seen by night or during the day is not mentioned as a relevant distinction. But Tosafot assert: We only say that a witness cannot serve as judge if he actually testified … but if his testimony was not needed, for instance, if there were other witnesses, or if they had seen it during the day, when testimony is not required, for hearing does not carry greater weight than seeing — [in such cases, a witness can] serve as judge.43

The conclusion of Tosafot is identical to that reached by the Rashbam. If the court saw an incident during the day, they can render judgment without witnesses, because “hearing does not carry greater weight than seeing.”44 This opinion was accepted as law by the Tur and the Shulhan Arukh.45 The Tur summarizes it as follows: A witness cannot serve as judge. This applies only if he testified. For example, if one of the judges testified before his colleagues on what he had seen, he cannot join them and judge that case. If he does not testify,

42

This colorful expression was coined by Maharshal to describe the approach of the Tosafists in his foreword to Yam Shel Shlomo, Hulin. 43 bKetubot 21b s.v. hanah. Cf. Tosafot on bRosh Hashana 25b s.v. lo, disagreeing with Rashi, who restricts the “hearing does not carry greater weight than seeing” rule for waiving testimony to the sanctification of the new moon. The Tosafot refer to Baba Kama (the batterer) and argue that even in capital cases, if they saw the act by day, they can render judgment. 44 See too R. Nissim on Alfasi on the said sugya in bKetubot 21b; Piskei Harosh, Baba Batra 8:2, and other Early Authorities. 45 HM 7.

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however, as in a case where the three judges had seen the event, even with the intention of being witnesses, if they saw it at a time when a court could convene, they become judges and decide the case. But if they did not see it at a time when they could convene, they cannot render judgment.46

ii

Witnesses cannot Serve as Judges

In contrast to Rashbam and the Tosafists, who say that a court can render judgment on the basis of what it has seen, without witnesses, other Early Authorities continued to uphold the traditional interpretations of the various talmudic sugyot in question. On this approach, a court cannot judge without hearing witnesses. The principal champion of this opinion is Rashi, who distinguished the sanctification of the new moon from the corpus of the laws of witnessing. Rashi was supported by other Early Authorities, who accepted both his interpretations and the views that followed from them. Rashi and Nahmanides The Mishnah in Rosh Hashana, we saw, discusses the case of a court whose members had seen the new moon, and states: “two shall stand and set [two] of their colleagues beside the one, and they shall testify before them, and they will say: Sanctified [is the new moon], sanctified.” The Talmud wonders: “Why so? Surely hearing does not carry greater weight than seeing? R. Zera said: for instance, they saw it at night.” The concept underlying this question, and its implications, are of great importance to the discussion. Does it mean that the seeing of an event by members of the court is equivalent to their hearing the testimony of other witnesses? Rashbam and others indeed put forward this interpretation, and use it to explain the other sugyot. Rashi, on the other hand, understands it differently: “Hearing does not carry greater weight than seeing. For Scripture does not require proper witnessing for the sanctification of the new moon. The requirement is to see it: ‘See [the moon when it is] like this and then sanctify [it].’ ” Since the sanctification of the new moon does not require witnessing, but only

46

Tur, HM 6, Tur Hashalem edition (Jerusalem: 1993); virtually the same language is found in SA, HM 5. See also Beit Yosef ad loc.

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“seeing,” it makes sense to conclude, Rashi argues, “since all of them have seen it, let them sanctify it on the basis of their having seen it.” But this reasoning does not apply to other cases, where witnesses are needed.47 Rashi’s opinion was fully accepted by Nahmanides. Recall the sugya in Baba Batra about three who visited a sick man and heard his instructions as to how he wished to dispose of his estate. The three, acting as a lay court, could immediately endow the instructions with legal validity. Rashbam concludes, on the basis of the “hearing does not carry greater weight than seeing” principle, that a court can judge what it has seen. Nahmanides, however, disagrees with Rashbam’s view: I do not think so, because there it was only said in the context of sanctifying the new moon, because Scripture does not require anything to be spoken, but rather, “See [the moon when it is] like this and then sanctify.” And this is how Rashi, his grandfather explained it. But with regard to monetary law, the Talmud in Ketubot is not at all certain, and discusses at length whether judges who recognized the signature [nonetheless] need to hear witnesses, and in Baba Kama too there are two alternative solutions. In the present case the litigant agrees [to the arrangements re disposition of his estate], and this is like the testimony of a hundred witnesses.48

Nahmanides thus upholds the opinion of Rashi, who restricts the “hearing does not carry greater weight than seeing” rule to the

47 Cf. Nimukei Yosef on Alfasi, bBaba Kama 90b (32a Alfasi). R. Joseph Habiba explains Rashi’s opinion as follows: “If you ask, why is the Talmud uncertain, while in the sugya in Rosh Hashana the Sages take it for granted that a witness can serve as judge on the basis of what he has seen? — Rashi has already distinguished between the cases. There, Scripture says ‘See [the moon when it is] like this and then sanctify.’ Therefore hearing does not carry greater weight than seeing. But in civil cases Scripture says, “if he does not utter it, then he shall bear his iniquity” (Lev. 5:1).” He concludes, “In civil law we do not say that hearing does not carry greater weight than seeing.” He takes issue with the view of Rabbenu Nissim (n. 44 above), who quotes Rashi but rejects his opinion on the basis of the sugya in Baba Kama, saying, “We can see that during the day witnesses can serve as judges and render judgment on what they have seen.” 48 Nahmanides on bBaba Batra 113b.

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sanctification of the new moon, and does not deem it applicable to all the laws of witnessing.49 Alfasi and Maimonides Apparently Alfasi and Maimonides follow the same course. Courts are not permitted to judge on the basis of first hand knowledge, but must have the testimony of witnesses. Alfasi does not mention the Mishnah in Rosh Hashana (the court that saw the new moon).50 Nor does he mention the sugya in Baba Kama (the batterer). But he does refer to the two other sugyot, Ketubot (verification) and Baba Batra (the sick man), as establishing the law. He quotes the law as it appears in the conclusion of the sugya in Ketubot,51 and states: “It implies three things: a witness can serve as 49

Nahmanides reiterates his opinion in commenting on bKetubot 21b. In the discussion on the verification of documents, R. Ashi says that witnesses have to testify even if the judges recognized the signatures of the signatories. Nahmanides wonders why “hearing should carry more weight than seeing,” and states, as do other Early Authorities who asked the same question, that according to R. Ashi, verbal testimony is required in civil cases because of the scriptural verse, “if he does not utter it, then he shall bear his iniquity” (Lev. 5:1). He comments: Even though in the sugya of the batterer they spoke that way [i.e., suggested that perhaps they saw it at night], implying that by day they could have rendered judgment without hearing witnesses, this does not accord with the view of R. Ashi. And it is so stated to preempt a possible objection. … And another reply is also presented, “or if you prefer I could say,” which enables the contradiction to be harmonized, even if he saw it by day; and it is in accordance with the view of R. Ashi. This is the interpretation proposed by the Master, head of the court, and it is well spoken. Rashi also explained it this way, saying that “hearing does not carry more weight than seeing” applies only to the sanctification of the new moon by scriptural instruction. (Shevat edition [Jerusalem: 1946], 121)

50 51

He rejects the first answer, that the case of the batterer took place at night — and concludes: “It is so even if they have seen it by day. A witness cannot serve as judge, but [in his capacity as judge] must have the testimony of others.” In a citation quoted by R. Joseph Habiba in Nimukei Yosef, n. 47 above, Nahmanides’ most prominent student, R. Aaron Halevi, upholds his view. His commentary on Rosh Hashana starts with the next Mishnah, mRosh Hashana 3:2. “Leave alone the testimony as to the new moon, [for it is] biblical, and the verification of documents is Rabbinic.”

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judge with respect to Rabbinic matters. . . .” His ruling is that with regard to scriptural matters, such as capital and civil cases, witnesses cannot serve as judges. They can only do so in Rabbinic contexts such as the verification of documents. Alfasi quotes the sugya of the sick man: For R. Judah said: Three who came to visit a sick man — if they wish, they write down [his instructions as to the disposition of his estate]; if they wish, they render judgment. Two may write down [the instructions] but may not render judgment. What is the reason? They are witnesses and witnesses cannot serve as judges.52 And R. Hisda commented: This applies only to daytime; at night, however, even three [only] write down the [instructions] but do not render judgment (emphasis added).

We noted above that the central theme of this sugya is not the question of whether witnesses can serve as judges, but rather, whether an admission (as opposed to testimony about an event) can serve as the basis for rendering judgment, as is clear from the statement, “if they wish, they render judgment.”53 We have to conclude that in no way does Alfasi endorse the possibility of one or more witnesses judging a case without the testimony of other witnesses. As we saw, the halakha in Ketubot explicitly rejects this. Maimonides upholds a similar position. He refers to the matter directly in two laws in the Code. One is in Laws concerning the Sanhedrin: Two who visited a sick man, and he made his will before them — they may write it down, but cannot render judgment. If they are three, if they

52

53

R. Joel Sirkes (Bah) comments that this sentence should appear after R. Hisda’s comment, because it is not pertinent where it is. Indeed, in the Constantinople version of Alfasi (1509); reprinted in the Zaks edition (Jerusalem: 1966), the editor notes that in the manuscript this sentence appears in its proper place. The Constantinople edition omits R. Hisda’s remark altogether. It is apparently a printer’s error, resulting from the fact that a number of phrases recur in the text. Furthermore, if we interpreted “if they wish, they render judgment” in the wider sense — that is, as pertaining to all witnessing — it would contradict Alfasi’s other ruling, “a witness can serve as judge on Rabbinic matters.”

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wish they write it down; if they wish they render judgment. This only applies during the day. At night they write it down but do not render judgment.54

As we explained above with regard to Alfasi’s interpretation of the sugya, this law does not address the question of whether witnesses can serve as judges. Maimonides explicitly notes “he made his will before them.” They act on the sick man’s instructions to dispose of his estate, not on the basis of testimony by witnesses. The second law, found in the Laws concerning Evidence, is more relevant to our discussion, and calls for careful examination. In it, Maimonides deems the “witnesses cannot serve as judges” rule applicable to the laws of witnessing in general. Any witness who gave testimony in a capital case cannot render judgment on the accused, nor can he serve as a defender or prosecutor. … In civil cases, he can serve as a defender or prosecutor, but cannot be appointed one of the judges, and cannot serve as judge, because a witness cannot serve as judge even in civil cases.55

It should be noted that Maimonides is speaking of a witness who has testified before the court. He can serve as a defender or prosecutor in civil cases, but cannot be appointed one of the judges. Let us consider what position Maimonides would take with regard to the case where one member of a court had not testified, but had seen the incident take place during the daytime — would these judges be permitted to judge the case on the basis of what they had seen? I do not think that such a conclusion can be drawn from Maimonides’ formulation of this law. Indeed, he speaks of a witness who has testified, but this does not imply that a court may adjudicate on the basis of firsthand experience, a point that is not specifically addressed by this law. All we may conclude is that, according to Maimonides, if the witness has not testified, but was only present at the event, he may be appointed one of the judges in the case, and hear the testimony of others. There is no doubt that if Maimonides really thought that a court could judge on the basis of what its members had seen — without witnesses — he would not 54 55

Code, Laws concerning the Sanhedrin 3:6. Laws concerning Evidence 5:8, Frankel edition. In the next law, Maimonides adds that in a context where witnesses were only needed because of a Rabbinic enactment, a witness may serve as judge.

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have let such an important point be obscured by a law dealing with a different question.56 IV Conclusion: The Controversy over the Question of Whether Witnesses can Serve as Judges The foregoing has revealed the two basic views on the question of “a witness who serves as judge.” The difference of opinion originates in the Talmud, and continues with the interpretations and legal rulings of the Early Authorities. As we saw, most of the talmudic sugyot do not support witnesses serving as judges under any circumstances, and some state this explicitly.57 These sugyot provide the direction for Rashi, Nahmanides, Alfasi and Maimonides, who adopted this view unreservedly. The other position, adopted by Rashbam and the Tosafot, maintains that it is possible, in principle, that a witness could serve as judge in the sense in question. Though the supporters of this view accept the talmudic rule that a witness cannot serve as judge, they distinguish between “a witness who testifies” and “what members of the court have seen.” From this distinction they conclude that if the court — three persons qualified to judge — has seen an incident by day, it can render judgment as to the incident without the testimony of other witnesses, for “hearing does not carry greater weight than seeing.” The first position reflects the view that no justification is needed for the talmudic premise that a separation must be maintained between witnesses to an incident and the court that renders judgment on the incident. It satisfies the halakhic definition of the witnesses’ role as it was explained at the beginning of this paper, and fits in with the other elements of witnessing.

56

57

Laws concerning the Sanhedrin 24:1 states: “A judge may render judgment in civil cases according to what, in his opinion, seems to be true . . . even though it lacks clear evidence.” This well-known law is not relevant to the present discussion. The law deals with the issue of whether a judge may rely on evidence given by an unfit witness, or whether the judge may, if he has personal knowledge of the specific circumstances of the case, rely on his own knowledge. It does not concern evidence given by witnesses in the ordinary sense. Cf. SA, HM 297:1 and Siftei Kohen ad loc. bKetubot 21b in the name of Rav: “Leave alone the testimony as to the new moon, [for it is] biblical, and the verification of documents is Rabbinic.”

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The other position, however, calls for further comment. It was accepted by most of the Early Authorities, and set down as the law in the Tur and the Shulhan Arukh. On this position, a witness can serve as judge because a court can judge what it has seen. This position raises a number of difficulties of various kinds. First, the idea of a court judging what it has seen does not accord with most of the talmudic sugyot. Only in Baba Kama (the batterer) was this possibility mentioned, incidentally, in a tentative effort to harmonize the ruling of R. Judah II with the baraita of R. Akiva and R. Tarfon, with which it conflicts. Nor does this position accord with the halakhic concept of witnesses. The halakha regards witnesses as a formal institution whose authority is parallel to that of the court. This conception, by its very nature, calls for separation between the role of the court and that of the witnesses. The said position, by allowing the court to assume both roles — judging and giving evidence — destroys this separation. The result is a considerable extension of the court’s authority, an extension, it would seem, that is incompatible with the formalistic character of the halakhic laws of evidence, which, overall, tend to limit the court’s discretion by setting down rules governing judicial processing of evidence, deliberations, and decision-making.58 Furthermore, on the accepted halakhic conception of the institution of witnesses, which regards witnesses as an institution for establishing the pertinent facts, it is difficult to entertain the idea that the court can judge on the basis of what its members have seen, without witnesses. A fundamental assumption of this conception is that the role of witnesses is to reveal the truth, and by the nature of things this is not ensured if the body that presents the facts is also responsible for judging them. Tosafot indeed noted this problem — judges who are also serving as witnesses will not be able to accept any “refutation” (hazama) — outside evidence that may undermine their own testimony.59 Tosafot, holding fast to their own viewpoint, note the problem that such undermining testimony would not be possible if witnesses served

58 59

Cf. Gulak, n. 1 above, 110. bBaba Batra 114a s.v. aval. The Talmud, in bRosh Hashana 25b, also points out, with regard to capital cases, “and since they have seen him kill someone, they cannot find any defense for him”; this applies to other cases as well.

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as judges, but do not elaborate on its significance: The reason why a witness cannot serve as judge is that it is like testimony that cannot be refuted. Since the witnesses are themselves the judges, they will not accept any refutation of themselves.60

Clearly, this explanation does constitute a valid argument against permitting a court to judge what it has seen. Without such undermining testimony, the judicial process itself is undermined, since facts are determined without the possibility of external criticism or review of any kind, and the examination and investigation necessary for revealing the truth — which is, as noted, the very purpose of the institution of witnessing — does not take place. Nor is there any possibility of public scrutiny. Thus, although the Tosafot present a cogent and pertinent argument for the principle that “a witness cannot serve as judge,” they essentially overlook this point and persist in putting forward their novel view that a witness can serve as judge because a court can judge what it has seen. Similarly, Rashbam’s position is problematic. Rashbam discusses why a witness cannot serve as judge, giving the following reason: It seems to me that this is a scriptural decree, as it is written: “Then both the men, between whom the controversy is” — Scripture is speaking of witnesses — “shall stand before the Lord” (Deut. 19:17) — that is, before the judges. Scripture tells us that two must testify before the judges, but the witnesses do not [then] return [to the bench] and sit and judge.61

Significantly, Rashbam, the foremost proponent of the novel doctrine allowing a court to judge on the basis of what the judges have seen, does not give a rational legal reason for the rule that “a witness cannot serve as judge,” with which his doctrine seems to conflict. Rather, he construes it as a formal requirement, a scriptural decree! It is not difficult to surmise that this premise makes it easier for Rashbam to

60

61

A distinction could perhaps be made, to the effect that the evidence before the court judging what it has seen is different from the testimony of witnesses, and the law of refutation applies only to the latter. This may be acceptable as a formal distinction, but the fact remains that the court judges without refutable witnesses. Rashbam on bBaba Batra 114a s.v. veein.

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arrive to a limiting interpretation of the rule, namely, an interpretation that excludes “the court that saw.” But the difficulty remains unsolved. If indeed it is a scriptural decree — “then both the men … shall stand before the Lord” — that two witnesses have to testify before the judges, this condition is not met when the court rules without witnesses! In general, the position of the Tosafot and Rashbam basically effaces the distinction between the court and the witnesses, a cornerstone of the classic halakhic doctrine of witnessing. Moreover, we have seen that their position is problematic and difficult to sustain. This being so, the adoption of this view by later halakhic authorities is equally problematic, and makes implementation of the halakha in its widelyaccepted form difficult.

The Jewish Law Annual, Vol. XV

UNJUST ENRICHMENT REVISITED IRWIN H. HAUT, z”l*

Irwin H. Haut, z”l, died while this paper was being edited. A longtime contributor to The Jewish Law Annual, he was driven by a vision of the halakha as a system of law with the capacity to adapt to life’s ever-changing circumstances. He is greatly missed.

Review of Hanoch Dagan, Unjust Enrichment: A Study of Private Law and Public Values. Cambridge University Press, 1997, 195 pp. ISBN: 052158468X 1

Introduction

It was with great interest that I read Professor Dagan’s work on unjust enrichment, particularly since I myself had researched the subject.1 Although to some extent we had covered the same ground, comparing the Jewish and the American legal principles pertaining to unjust enrichment, my focus was different, and I had overlooked Dagan’s valuable insights. As I will explain, although I disagree with some of his conclusions, particularly with regard to the scope of American law, on the whole I believe he has made a vital contribution to the study of unjust enrichment. His theories can well be applied to advance the growth of Jewish law, which has been my primary interest over the years. I will begin by setting forth some of the main areas where we disagree, then proceed to a fuller discussion of Dagan’s contribution. Basically, I take issue with his methodology, and not the substance of his views, except insofar as they impact on his methodology. In comparing Jewish to American law, Dagan focuses on aspects of American law such as defamation and the like. However, he does not * 1

Rabbi Irwin Haut, z”l, an ordained rabbi and practicing attorney in New York City, authored many publications in the field of Jewish law. See Irwin H. Haut, “Abuse of rights and unjust enrichment: a proposed restatement of Jewish law,” 2 Natl’l Jew. L. Rev. (1987), 31.

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address the Jewish law paradigms in these areas. In this review, I supplement his work to a modest extent, and, though my arguments are not definitive, and leave room for further analysis, they do bear out his essential thesis. Let me note that though Dagan has much to say about international law, I have limited my review and analysis to the American and Jewish legal systems, with which I am most familiar. Obviously, anyone embarking on such a venture must confront the danger faced by the proverbial twelve blind men examining an elephant in order to determine its essential nature and characteristics. That is to say, a difficulty will be encountered by anyone attempting to establish what the law of a particular jurisdiction is on a given subject, since this may well depend on which part of the law he touches upon. The difficulty is compounded immeasurably when we have a system, like the United States, of fifty different jurisdictions, each propounding its own set of legal principles, both common law and statutory, as well as a smattering of civil law, as in Louisiana, in addition to the variegated federal law. Perhaps Jewish law, spanning, as it does, millennia, is even more perplexing. Indeed, it has often been said that Jewish law can be made to represent just about any legally sound proposition: in the plenitude of views in the two Talmuds and the rabbinical literature, there is a wide spectrum of views on almost any subject. Nevertheless, with these caveats in mind, it cannot be denied that, generally speaking, a prevailing view can be identified. That such a view may be subject to exceptions does not, in my opinion, detract from the essential correctness of Dagan’s thesis, to which I now turn. 2

Dagan’s Thesis

Dagan’s principal thesis is that the differences between American and Jewish law with respect to unjust enrichment can be explained on the basis of differing attitudes to social conditions and policies thought necessary for an ordered society. As set forth by Dagan, “this book is an inquiry into one important paradigm covered by the law of restitution: an instance where a defendant profits from a plaintiff’s resource.”2 The case considered is that wherein A appropriates B’s interest with respect to a resource without 2

Dagan, p. 2.

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B’s express or implied consent. B then files a complaint against A for his profit-making invasion and asks for monetary recovery in restitution of A’s resultant benefit, which she3 takes to be a result of a wrongful act. A raises no affirmative defenses. The various possible remedies are described by Dagan as consisting of compensation for the harm sustained by B; payment of the fair market value of the resource; and the return of A’s profits. It is his thesis that the degree to which a jurisdiction or legal system will apply one remedy over the other in any given set of circumstances will depend on the degree to which that society espouses and emphasizes the communitarian value of sharing, the utilitarian value of well-being, or the libertarian value of control. Thus, the more a society tends toward control, the more likely it is that it will provide broader and more encompassing remedies in the paradigmatic case, including recovery even for A’s profits or gain. On the other hand, the more a society values sharing, the more likely it is that it will limit recovery to actual loss or market value. According to Dagan, limiting recovery to actual loss or harm reflects a sharing-oriented approach, since it takes into consideration and focuses on the interests of A, as well as of B. Dagan finds the concept of sharing to be predicated on the concept of altruism, in that the proponents of a sharing approach are obviously concerned not merely with the resource holder’s well-being and welfare, but also with other individuals in her legal community, including A. Putting this in terms bordering on the theological and ethical, rather than legal, he asserts: “sharing appeals to the other-regarding standpoint of the agent. It seeks to sustain her other-regarding side, or at least to create ‘an ecological niche’ for altruistic behavior and altruistic motives.”4 That is not to say, however, that sharing demands sacrifice. According to Dagan, it merely means that in certain cases A is required to pay only for actual harm caused, but not for the full market value of the invaded resource. Put another way, sharing “constitutes a certain compromise that requires resource-holders to give the interests of others some weight.”5 Dagan also posits that if the resource is merely considered to be an asset of B, the more likely it is a sharing approach will be adopted. On the other hand, the more a resource is associated with the identity or

3 4 5

Dagan uses the feminine pronoun for B; I shall follow suit. Ibid., 27. Ibid., 37.

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selfhood of B, the more likely it is that a control-oriented, rather than a sharing-oriented, approach will be taken. Recovery of fair market value, he argues, reflects an approach oriented toward the well-being of B, since it takes into account, and compensates her for, the lost opportunity of bargaining with A with a view to selling the use of her resource. For the purposes of Dagan’s paradigm, fair-market value is deemed to be greater than the harm caused. Dagan divides the third measure of recovery, namely, the profits gained by A, into several subcategories: proceeds, profits and proportional profits. Of the three measures, recovery of profits most clearly vindicates the element of control by B of her resource, since when applied, this remedy will best discourage potential invaders from circumventing the bargaining process and appropriating the protected interest without first securing B’s consent. In other words, according to Dagan, “profits are the measure of recovery which vindicates the plaintiff’s liberty to control the entitlement as part of her private sphere.”6 This is the substance of Dagan’s thesis, which he sets forth in chapters 1 and 2. 3

The Socioeconomic Ethos of American Society Compared to that of Judaism

Dagan then turns, in chapter 3, to a comparison of the socioeconomic ethos of American society with that of Judaism. This chapter bespeaks more of sociology than of law, in that, on the basis of very broad generalizations, Dagan attempts to construct an ethos of what is, in effect, his subjective evaluation of social norms. In this regard, this attempt is a bit like comparing apples and oranges, since in the case of America he is able to focus upon a functioning society, alive and well, with all its ills and beauties intact. On the other hand, the thrust of the ethos of Judaism in this area, if such can be ascertained, which is far from certain, is not based on a functioning society, in one place and time, but must be gleaned from a legal system spanning millennia, numerous countries on different continents, and a myriad of social, economic and historical conditions. Can such be compared? I think not, although

6

Dagan, 18.

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some general observations can surely be made regarding similarities and differences; as to such, the effort is, I concede, worthwhile. On the basis of his own very subjective analysis, Dagan concludes that American society tends toward an approach of individualism, libertarianism, self-sufficiency and independence. He finds that “property” is accorded a central place in American life and values, and hence, that control over and pursuit of “property” is elevated to a much-desired goal. In his opinion, “appreciating the place of liberty, property and bourgeois ethics in the American way of life explains the importance that Americans attach to the distributive principle of desert.”7 He loosely defines “desert” as “reward in proportion to contribution,” seeing it as the main criterion for income distribution. In the first place, I do not concede that this analysis is correct today, whatever truth was contained in it, if any, with respect to the “robber barons” who created nineteenth century capitalism in America. Secondly, in my opinion, various elements of the American ethos are found in Judaism, as well. Consider, for example, the view of Hillel, “if I am not for myself, who will be for me, but if I am only for myself, what am I?”8 Thirdly, it would not appear appropriate to base legal conclusions on data that is essentially sociological, a move for which even such a learned body as the Supreme Court of the United States was criticized in its monumental decision in the case of Brown v. Board of Education.9 Thus, whether Dagan is correct or not will depend solely, in my opinion, upon the data reflected by the decided cases and leading legal texts. Dagan distinguishes between the American and the Jewish views of life in that the Torah aims at the construction, not only of a society, but of a community, a community the essential characteristics of which are fellowship, respect, concern, reverence and generosity. But these, traits, I must point out, are generic to a great many other societies, religious and secular. I take strong exception to his view that these very elements are not found, at least to a substantial degree, in American society as well.

7 8 9

Ibid., 54. mAvot 1:14. 347 U.S. 483 (1954). See http://usinfo.state.gov/usa/infousa/facts/democrac/ 36.htm, “Other critics have pointed to what they claim is a lack of judicial neutrality or an over-reliance on allegedly flawed social science findings” (emphasis added).

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He adds, however, that the vision of community does not entail complete benevolence, or sacrifice, in that Judaism gives priority to the self over others — which is, of course, true of most, if not all, societies. He then discusses the ethos of charity, and charitable giving, which he finds exemplified in Judaism, but which, again, I cannot but point out, is shared by many other cultures and societies, including the American, past and present. From this he concludes that American law emphasizes control and well being, whereas Jewish law emphasizes sharing. However, if the history of the last half-century is any guide, it is well-nigh impossible, I submit, not to be persuaded that the American people and government, including its political leaders, are capable of a high degree of altruism. Yet, in my opinion, Dagan is partially correct, since, as will be shown, there are elements in both systems by which the results in a given type of case can be predicted or explained on the basis of one ethos or the other. In addition, I would agree that there is a somewhat greater tendency to sharing in Jewish law than in American law. But this may simply derive from the fact that a religious or theological legal system and society is being compared to a secular one. Nevertheless, such is Dagan’s opinion, to which he is entitled. It remains, therefore, to assess his assessment of the law of unjust enrichment under these two systems, to see whether his opinion is borne out by the evidence, to which I now turn.

4

American Law

As noted above, Dagan views American society as much more controloriented than is the society embodied by Jewish law, which he describes as more sharing-oriented. Thus, taking as his paradigm the unauthorized use by A of B’s property, including real property, chattels, goods, both tangible and intangible, as well as aspects of her personality, including name, reputation and the like, he argues that American law, being more control-oriented, is committed to the concept of absolute ownership and the concomitant right of B to utilize — exclusively, for her sole benefit — her property rights in that property. Dagan finds that American law affords a greater measure of recovery than does Jewish law for the violation or usurpation of these rights, including remedies, not only for the loss or damage actually incurred, but also, in a great many instances, for the lost gain, or lost opportunity

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to B, as the result of that usurpation, as well as, sometimes, even the gain or profit obtained by A. All this, regardless of whether that gain was available to B, as in the leading case of Edwards v. Lee,10 to be discussed below. I do not quarrel with Dagan’s observations as to American law, except to point out that he does not discuss the equitable principles at work in American courts, which can ameliorate to some extent what would seem to be the import of classical rules pointing to an attitude of control, rather than sharing. Indeed, in one instance, he categorically dismisses a decision of an Appellate Court of New York State as inconsistent with his view of control, and as not in accordance with the law.11 The case concerned the question whether, in a claim for defamation, there could be asserted a restitutionary basis for recovery, including gain gleaned from the defamatory publication, or whether the injured party was limited to recovery for harm incurred only. The court of first instance in the case held that recovery was limited to harm incurred, which represents, according to Dagan, a sharing method of recovery. Dagan, in asserting that the appropriate remedy would have been recovery of the defendant’s actual gains, a control-oriented measure of recovery, asserts that the decision rendered is not in accord with American law. But what the law is, in New York, as elsewhere, in this patchwork quilt of jurisdictions, state and federal, by which we are blanketed in this land, is what the highest court in each jurisdiction, which has spoken on an issue, says it is. As Dagan indeed acknowledges, there does exist a startling instance of a sharing approach under American law, namely, private necessity, saving one’s life or property at the expense of another’s property.12 In these circumstances, Dagan is correct in asserting that the remedy is limited to the harm actually incurred. However, what is of

10 11

96 S.W. 2d 1028 (Ky., 1936). See Hart v. E.P. Dutton & Co., 93 N.Y.S 2d 871 (Sup. Ct., Oneida Co., 1949), discussed by Dagan, 90–92. However, as noted by Dagan on p. 94, that case was affirmed on appeal to the Appellate Division of the Fourth Department in New York, 98 N.Y.S. 2d 773 (1950). It may thus still represent the applicable law in New York, Dagan to the contrary notwithstanding. See also, Katz v. Friendly Frost Inc, 33 Misc. 2d 220, 226 N.Y.S. 2d 655 (Sup. Ct, Kings Co., 1962) citing the Hart case. There appear to have been no further cases in New York on this issue. 12 Dagan, 81–82.

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great interest is that this approach is identical to that under Jewish law, a point overlooked by Dagan.13 He takes this to be the sole example of a sharing approach under American law. However, further research in American law is necessary to determine whether this is, indeed, the case. To this writer, it would not appear to be so. Nevertheless, generally speaking he is correct, in that American law appears to be control-oriented rather than sharing-oriented. However, it is unfortunate that Dagan, in his discussion of Jewish law, did not focus on some of the areas of American law he examines, particularly since he may have thereby gained additional support for his thesis; for example, the case of private necessity, mentioned above. Another such area is worthy of note. One of the anomalies of Jewish law has been its somewhat strange concatenation of rules relating to the obtaining of title to another person’s object by effectuating some material change in that object, or some possessory change thereto. Thus, even one who has illegally obtained possession of an object may sometimes be viewed as obtaining title thereto by means of effecting some such change in the object, as by converting lumber, and fashioning it into a household item, or in selling the lumber to another. Jewish law evinces a great deal of compassion for the thief, in attempting to bring him to repentance for his evil ways,14 and fashions rules leading to that end.15 These rules are or can be well-appreciated in light of the approach taken by Dagan, that is, in viewing them from the perspective of a sharing, rather than a control, orientation, the latter being the approach he finds to be prevalent in this area in American courts. A thorough analysis of the rules of Jewish law in this area is beyond the scope of this review,16 but would surely be a worthy undertaking. Dagan points out that as to one who converts property, various approaches are taken by American courts, ranging from payment for

13

See bBaba Kama 60b, 117b, “It is forbidden to save oneself at another’s expense,” which translated into legal terminology results in a rule requiring compensation for the damage, notwithstanding the principle that life is to be elevated over property. See Shulhan Arukh (henceforth SA), HM 380:3 and 359:4. 14 Cf. P.D. James, The Children of Men (NY: 1993), 102, “so in your new world there will be no room for the penitent thief.” 15 See bBaba Kama 93b–94b. And see, generally, SA, HM 361, 366. 16 For further discussion, see S. Albeck, Monetary Law in the Talmud (Hebrew), (Jerusalem–Tel-Aviv: 1983), ch. 15.

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the loss, to recovery of gain or profit, the latter approach, of course, reflecting a control orientation.17 As to chattels, he points out that in cases of sale, recovery ranges from the gain generated by the converter, in the case of a knowing converter, to that of the fair market value in the case of innocent conversion.18 It is interesting to note that, despite the sharing orientation of Jewish law in this area, in a variety of circumstances it too rules in a manner that reflects the latter approach, particularly in cases involving “known thieves.”19 Thus, in the final analysis, that aspect of Dagan’s thesis which is attractive to me is that, though it does not necessarily reflect the totality of the attitudes of American and Jewish law in this area, it is useful as a tool to analyze any given rule in these systems, rather than any differences between the systems as a whole. Another interesting example of the parallel, rather than the disparity between the two systems, is the matter of propriety of personality, including the right to reputation and privacy. Under both systems, the law appears to be absolute and control-oriented, although concededly Jewish law does not always provide a remedy for harm thereto by monetary compensation Nevertheless, Jewish courts were granted the power to curb such abuses, presumably by fine or otherwise.20 This demonstrates, however, nothing more than that the two legal systems sometimes both evince the principles of sharing and control adduced by Dagan. 5

Jewish Law

Turning now to Jewish law, a weakness in Dagan’s approach is that, in analyzing Jewish law, he emphasizes sharing attitudes, but characterizes any aspects thereof that manifest an element of control as mere exceptions to the sharing orientation. This is particularly troubling when it is evident that Jewish law in this area is not monolithic, as in other areas. Thus, in the area under consideration, there is a contrariety of opinion as to whether sharing or control approaches apply, which not

17 Dagan, 73–75. 18 Dagan, 80. 19 See SA, HM 356. 20 SA, HM 420, particularly sec. 38 and gloss of R. Moses Isserles.

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only is not adverted to, but rather, is completely ignored by Dagan. The source I have in mind is, of course, found in the Mishnah, in a passage that affirms both the sharing and the control-oriented approaches. It reads as follows: “He who says, ‘what is mine is mine and what is yours is yours,’ is of average disposition; but some say this is the attitude of the Sodomites.”21 It is quite apparent from the discussion that the control-oriented approach, “what is mine is mine,” is presented as the normative one, yet that very approach is also descried as reflecting the attitude of the residents of Sodom — a dramatic endorsement of the sharing orientation. In all fairness to Dagan, it must be noted that he was surely aware of this Mishnah, and it cannot be supposed that he simply overlooked it, given his extensive research into the vagaries of Jewish law in this area, as reflected in his book. As I pointed out elsewhere, a difference of opinion exists as to whether the Mishnah in question carries with it normative application, or merely furnishes an ethical imperative, and is exhortatory in nature, rather than legally binding.22 Nevertheless, in either event, in my opinion it is reflective of a split or division of opinion on this very issue of whether a sharing or control-oriented approach is to be emphasized under Jewish law. This is further reflected in the undisputed fact that the extreme articulation of the sharing approach under Jewish law is the kofin rule, pursuant to which injunctive relief can sometimes be afforded so as to require adherence to a sharing, rather than a control-oriented approach. This halakhic rule borrows, or rather applies, the metaphor and terminology of the aforementioned Mishnah: “we can use force to prevent [in certain circumstances] B’s acting in accordance with the characteristics of the Sodomites (kofin al midat sdom).” This surely reflects, beyond any shadow of a doubt, the existence and viability of both such approaches under Jewish law, as and where applicable. Dagan commences his analysis of Jewish law by pointing out that Jewish law, at least in comparison to American law, would be expected to exhibit sharing frequently, since sharing corresponds to Judaism’s fundamental maxim of mutual responsibility.23 In so doing, he

21 mAvot 5:10. 22 Haut, n. 1 above, 34 n. 19. 23 Dagan, 109.

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concedes, of course, that there are many disputes and differing, sometimes conflicting views regarding most of the rules associated with the doctrine of mutual responsibility.24 However, in his opinion, with which I generally agree, in Jewish law, just as in a modem federative legal system, we can, despite the range of opinions, single out a dominant view, especially by considering the stature of the advocates of the opposed views. Thus, my disagreement with Dagan is not with respect to his characterization of Jewish law as generally emphasizing sharing, but rather, with respect to the question of whether in so doing Jewish law is totally at variance with the American legal system, as he suggests. I am of the opinion that Dagan is correct in his presentation of the exemptive rule under Jewish law as exemplifying a sharing-oriented approach. This rule holds that where there is no loss whatsoever to B, and there is corresponding benefit or gain to A, from bare use of B’s property by A, there is no requirement of payment therefor. This certainly connotes a sharing approach under Jewish law. However, what is perplexing to me is Dagan’s assertion that such principles of law do not find corresponding parallel in American law as well. Dagan asserts that a restitutionary recovery, including recovery of profits or gain, was prohibited under the older common law approach, as exemplified in the case of Phillips v. Homfray,25 pursuant to which recovery was limited to damages for actual harm caused (a result identical to the exemptive rule under Jewish law), but that the rule was changed under the impact of the Edwards case (76–77),

24 25

Dagan, 111. 24 Ch. Div. 439 (1883). The case involved, in part, the issue of the liability of an estate for the acts of the decedent in utilizing certain passages under the surface of the plaintiffs’ land for the transportation of the decedent’s own coal. In denying recovery, the court pointed out that the plaintiffs’ land had not been damaged by the decedent’s actions, and stated: “the deceased . . . by carrying his coal and ironstone in secret over the plaintiffs’ roads, took nothing from the plaintiffs. The circumstances under which he used the road appear to us to negative the idea that he meant to pay for it. Nor have the assets of the deceased Defendant been necessarily swollen by what he has done. He saved his estate expense, but he did not bring into it any additional property or value belonging to another person.” This, of course, represents a classic example of the exemptive rule under Jewish law, involving gain to A from the bare use of B’s property, with no corresponding harm to her.

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referred to above. However, as I pointed out elsewhere,26 the rule limiting recovery in those circumstances to actual harm incurred by B has been applied in various cases to date.27 Thus, in my opinion, although Dagan may be correct in his characterization of American law as essentially control-oriented, it is also quite clear that, in some instances at least, the results in American courts manifest a sharing orientation, in common with the results that would be reached under Jewish law. As further proof that Jewish law and American law share a common orientation of sharing, or control, as the case may be given the circumstances presented, let me adduce the rule to be applied in situations where a profit has accrued to A as a result of his unauthorized use of the premises of B, although no loss whatsoever accrued

26 Haut, n. 1 above, 52–53. 27 See Granchelli v. Walter S. Johnson Building, Co., 85 A.D. 2d 891, 446 N.Y.S. 2d 755 (4th Dep’t, 1981). Here, the defendant had stored building supplies on the plaintiff’s property. The court held that the latter could recover for actual damage to the property, as well as for the reasonable value of the use of the property. However, the court said, he could not use a theory of unjust enrichment to recover either the value of the benefit reaped by the defendant, or some measure of the profit realized by him on the construction project. See also Don v. Trojan Construction Co., 178 Cal. App.2d 135, 2 Cal. Rptr. 626 (Dist. Ct. App, 1960). That case is also an illustration of the exemptive rule. The plaintiff’s property had been used by the defendant to store dirt and sand that had been excavated by the defendant. The property was vacant at the time, and the plaintiff had no intention of using it for any commercial purpose. The lower court had found that the trespass caused no damage to the property and that the plaintiff owner was entitled only to nominal damages for the technical invasion of his property rights. This result, of course, is parallel to that which a court would have reached under Jewish law as well. However, the appellate court reversed and, utilizing a view reminiscent of one opined under Jewish law, as I discussed elsewhere (n. 1 above, 53), held: “if this subject were open to be debated upon, it could be pointed out that if only nominal damages are awarded, the appropriators of the use of the land could obtain a virtually profitable expense-free use of property for profitable purposes on the single condition that the owner did not presently intend to lease the land or to use it himself.” The decision of the appellate court on this point indeed represents a control-oriented approach, and is, of course, quite at variance with that which is the rule under Jewish law in actual cases, supporting Dagan’s thesis.

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to B as the result thereof. This is the type of situation presented in the Edwards case, referred to above. In that case the question was presented as to whether the unauthorized use of B’s property by A gave rise to a cause of action for the recovery of the profits A gained thereby, where B could not herself have utilized that property. The defendant, A (Edwards), discovered an entrance on his property leading to a cave 300 feet beneath the property of his neighbor, B (Lee). There was absolutely no means of entering the cave from B’s property. A installed walkways and lights in the cave and gained substantial revenue by charging tourists admission. When B discovered A’s unauthorized use of the cave beneath her property, she sought an injunction and an accounting of the profits resulting from use of the cave. A argued that he should not be held liable because the cave was of no practical use to B without an entrance, and in any case, the property had not been injured or damaged. Moreover, he argued, B should not be entitled to damages because even if the injunction were granted, B’s cave would be in the same condition it had always been in, handicapped by no greater degree of uselessness than prevailed before A trespassed on it. Notwithstanding A’s argument, the Kentucky Court of Appeals held B entitled to an injunction prohibiting A from using the cave beneath B’s property, and, in a major advance in the common law, held A obligated to account to B for the share of the profits received from the portion of the cave beneath her property, even though it was of no possible use to her. As I pointed out elsewhere,28 Jewish law is quite parallel in this respect to American law, in that recognized authorities have maintained that the exemptive rule is inapplicable where A has made a profit from his wrongdoing. This position is eloquently set forth by R. Yoav Weingarten, who states: “it therefore appears to me that the [exemptive] concept applies only to simple acts of enjoyment [from another’s property], but where one makes a profit from another’s property [lit., money], then he must pay therefor, even if the other has sustained no loss.”29 Recognizing the halakhic rule regarding the non-applicability of the exemptive rule in circumstances where A has made a profit, which

28 29

Haut, n. 1 above, 55–56. Helkat Yoav, 1950 ed., 87–88.

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clearly reflects a control-oriented approach under Jewish law as well, Dagan attempts to provide a rationale therefor. In his opinion, the rationale for the adoption by Jewish law of the sharing-oriented exemptive rule, is that it is applicable in cases where there is actual need for the use of the property by A, and thus, serves to protect and provide relief to the needy. He asserts: Hence, the application to our paradigm of the communitarian imperative prescribed by the mutual-responsibility maxim has to be limited to cases — like the squatter — in which the defendant’s genuine need of the plaintiff’s resource is at stake. But capturing a positive enrichment through the infringement of another’s entitlement amounts to persuasive (albeit circumstantial) evidence that no such specific need is involved30 (emphasis in original).

In so claiming, Dagan has grafted onto the exemptive rule a condition that is found nowhere in the sources and does not logically flow therefrom. There is not the least bit of evidence that the squatter, A, in the paradigm case for the exemptive rule, was more in need of the residence in Dagan’s sense, than any other person. There is no reflection of that in the talmudic discussion of this matter, nor in any of the commentators on it. The exemptive rule would, accordingly, apply in cases of bare use irrespective of whether the squatter was rich or impoverished, his economic status being rendered totally irrelevant under Jewish law. It thus cannot be said that need is a consideration to be taken into account, whether explicitly, or implicitly, as Dagan claims. The applicability of the exemptive rule appears to rest solely on the following two conditions: that no loss whatsoever is incurred by B, and that no profit accrues to A. This being the case, it follows that, on the sharing approach, where B suffers no loss and A does make a profit from B’s property, a like rule should apply, with recovery being denied. If, as patently appears to be the case, the exemptive rule does not apply in these circumstances under both Jewish and American law, this attests to the fact that neither system is wedded to the sharing-oriented approach, but rather, applies it as and where warranted. Were Judaism and Jewish law as totally devoted to sharing as a sociological motivation as Dagan contends, then what difference

30

Dagan, 123.

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would it make, where no harm was caused to B, if A made a profit from B’s property? Since Jewish law does, indeed, make the distinction, in cases involving no loss to B, between absence of gain and mere benefit or enjoyment from bare use, on the one hand, and accrual of profit to A from B’s property, on the other, it is clear that other factors must at work. I submit that, where profit is involved, the approach taken by Jewish law is precisely that manifested in American law, as in the Edwards case. That is, there is a commonality of approach rather than the diametrically opposed attitudes posited by Dagan. This common approach values both control and sharing. In my opinion, the conclusion to be drawn from Dagan’s own analysis, with which I essentially agree, is that in the area of unjust enrichment, American law and Jewish law have recourse to common approaches, with either, or both, legal systems, at one time or another, applying a sharing-oriented approach or a control-oriented approach. There are no necessarily consistent ideological or sociological underpinnings for this flexibility, but rather, it rests simply on legal and judicial analysis of what is the just or equitable rule in a given case. Thus, in some instances, the two systems may apply different rules, and in others, the systems will apply the same rule, without this ‘correlation’ or lack thereof reflecting any deeper systemic motivations. In conclusion, therefore, in my opinion Dagan has rendered a worthwhile contribution to this area of the law, by opening up new areas of analysis and study with respect to the basis for and characterization of the differing results in the various cases, under American and Jewish law. This ought in turn further analysis of American and Jewish law and comparisons between these systems, both in the areas already touched upon by Dagan, and in this review, as well as in other areas, where analysis may well provide greater insight into the workings of the two legal systems.

The Jewish Law Annual, Vol. XV

ENFORCEMENT OF DIVORCE JUDGMENTS BY IMPRISONMENT: PRINCIPLES OF JEWISH LAW YEHIEL S. KAPLAN*

1 2

3

Introduction Enforced Get (Get meuse) in Jewish Law a Compelling the Husband to Give a Get when there are Grounds for Divorce that Justify Compulsion b Divorcing a Woman Against her Will when there are Grounds for Divorce that Justify Compulsion c Sanctions Against a Husband or Wife who Refuses to Give or Receive a Get i Matching the Level of Enforcement with the Appropriate Sanction ii Rabbenu Tam’s harhakot (“isolating measures”) iii Level of Enforcement d Imprisonment as Punishment for Serious Crimes e Imprisonment and Non-release from Imprisonment for the Purpose of Enforcing a Divorce Judgment i Imprisonment ii Delaying Release from Prison Enforced Get in Israeli Law a Rabbinical Courts Jurisdiction Law (Marriage and Divorce), 5713 — 1953, section 6 b Deficiencies of the Rabbinical Courts Jurisdiction Law, section 6 i The Remedy is not Speedy ii The Remedy can be Implemented only when the Court Decides to “Compel” Divorce iii The Remedy of Imprisonment is Ineffective in Certain Cases iv Exclusion of Other Remedies c Authority Granted by the Contempt of Court Ordinance * Yehiel Kaplan teaches Jewish Law and Family Law at the Faculty of Law of Haifa University. Some of the material on enforced get in Israeli law is expanded on in a Hebrew article forthcoming in Bar-Ilan Law Studies.

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d

4

Rabbinical Courts Law (Enforcement of Divorce Judgments), 5755 — 1995 i Restrictive Orders ii Denying Privileges to an Inmate iii Section 3 — Imprisonment to Compel Compliance iv Restrictive Orders Against Women v The Relationship between the Sanctions in the Rabbinical Courts Law and the Rationale of Rabbenu Tam’s harhakot e Deficiencies of the Rabbinical Courts Law (Enforcement of Divorce Judgments), 5755 — 1995 i Absence of a Hierarchy Governing Imposition of Sanctions ii Absence of an Internal Supervisory Mechanism Conclusion

1

Introduction

Individual liberty and human dignity are important values in the eyes of both halakhic scholars1 and many philosophers.2 According to the Sages, man does not enjoy absolute liberty, being subject to the commandments of the Creator. However, it is inappropriate for him to subjugate himself 1

See Genesis 1:27; Leviticus 25:55; mAvot 4:1; 4:12; M. Elon, Freedom of the Debtor’s Person in Jewish Law (Hebrew), (Jerusalem: 1964), 1–2, 16–37, 255–64 [henceforth Freedom]; idem, Human Dignity and Freedom in the Methods of Enforcement of Judgments: The Values of a Jewish and Democratic State (Hebrew), (Jerusalem: 1999), 1–2, 16–37, 255–64; S. Warhaftig, Jewish Labor Law (Hebrew), (Tel Aviv: 1969), 2–3; C. Povarsky, “Fundamental Notions in the Jewish Law of Obligation: An Analytical Jurisprudential Examination of the Personal Obligation and the Lien on Property in the Halakha” (Hebrew), (PhD Dissertation, Tel Aviv University, 1985), 23–47; H.C. of Justice 5304/92 Perah 1922 Aid to Victims of Laws and Regulations for a Different Israel — Amutah v. Minister of Justice (1993) P.D. 47 (4) 734–37, 742–43; M. Elon, “Human dignity and freedom in the Jewish tradition” (Hebrew), 12 Mahanaim (1996), 19–29; M. Elon, “Criminal law in a Jewish and democratic state” (Hebrew), 13 Bar-Ilan Law Studies (1996), 47–48. 2 Philosophers generally emphasize that the right to liberty is a basic right in human society. See J.S. Mill, On Liberty (Cambridge: 1989), 1–17; T. Hobbes, Leviathan (Oxford: 1960), 84, 136–45. Isaiah Berlin writes: “I am normally said to be free to the degree to which no man or body of men interferes with my activity. . . . If I am prevented by others from doing what I could otherwise do, I am to that degree unfree” (I. Berlin, Four Essays on Liberty [London: 1969], 122).

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to his fellow man.3 The biblical verse, “For unto me the children of Israel are servants”4 is interpreted in a manner that reflects displeasure with one who sells himself into slavery: “ ‘For unto me the children of Israel are servants’ — and not servants to servants.”5 In keeping with this general outlook, the medieval halakhic authorities maintained that one is forbidden to subjugate the “body” of another.6 Therefore, it is forbidden to force him to work in order to repay a debt. This recognition of the value of individual liberty and human dignity also led these scholars to view imprisonment in general,7 and the physical subjugation of debtors by way of imprisonment in particular,8 as undesirable. Nevertheless, when there was no other choice, and the needs of society required the implementation of harsh measures, imprisonment was at times imposed.9 Individual liberty and other important values,

3 Tosefta (Zuckermandel ed.), Baba Kama 7:5, 358. See also bKidushin 22b; E.E. Urbach, The Sages: Their Concepts and Beliefs (Jerusalem: 1969), 365–66; idem, “The halakhot regarding slavery as a source for the social history of the Second Temple and the talmudic period” (Hebrew), in Urbach, The World of the Sages (Hebrew), (Jerusalem: 1988), 184–185. 4 Leviticus 25:55. 5 See jBaba Metzia 6:2 (25b); bKidushin 22b; bBaba Kama 116b; bBaba Metzia 10a; bBaba Batra 10a. The medieval halakhic authorities, however, maintained that one is permitted to hire himself out to serve another, because his master has no ownership rights over him. A Hebrew slave, on the other hand, is enslaved to his master; he cannot retract his consent to the agreement, nor is he set free before the end of the term of his bondage, unless his master writes him a deed of release. See Tosafot, bBaba Metzia 10a s.v. ki li bnei yisrael avadim; Responsa Mahariaz Anzil, #15, s.v. omnam ma shehiksha; Warhaftig, n. 1 above, 88. 6 See Responsa Rosh, 78, #2; Warhaftig, ibid., 89; Freedom, n. 1 above, 140–47. 7 See Elon, ibid., 16–19; 265–69; H.D. Halevi, Devar Hamishpat (Tel Aviv: 1963), vol. 1, 185–86; idem, Ase Lekha Rav (Tel Aviv: 1979), vol. 3, #57, 302–03; idem, Mayim Hayim (Tel Aviv: 1995), vol. 2, #78, 263; M. Elon, “Constitution by legislation: the values of a Jewish and democratic state in light of the Basic Law: Human Dignity and Personal Freedom” (Hebrew), 17 Tel-Aviv University Law Review (1993), 659, 679–81; “Criminal law,” n. 1 above, 27, 35. 8 See Urbach, “Halakhot regarding slavery,” n. 3 above, 180–81; B. Cohen, “Civil bondage in Jewish and Roman law,” Louis Ginzberg Jubilee Volume (NY: 1945), 113ff.; M. Elon, Jewish Law: History, Sources, Principles (Hebrew), ( Jerusalem: 1988), 535–36 [henceforth Jewish Law]. 9 See Elon, ibid., 10–11, 26, 535 n. 35, 575–76, 664–65, 828 n. 87, 1370–75.

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it was understood, had to be balanced against societal needs, and therefore limits sometimes had to be placed on individual liberty. Were everyone free to act as he pleased, chaos would reign, force would be used to acquire rights, and basic human needs would go unmet. Because the legal system must grant due weight to objectives other than individual liberty, such as justice, security, and equality, imposition of limits on individual liberty is justified where appropriate.10 A similar balance must also be found, from the perspective of halakhic scholars, in the context of rulings concerning enforcement of divorce judgments. Their point of view differs from that of the aforementioned liberal philosophers. With regard to the refusal to grant a writ of divorce (get), two evils clash: the evil of depriving an individual of certain rights when coercion is used to enforce divorce judgments, and the evil inherent in the plight of a husband whose wife refuses to accept a get or a wife whose husband refuses to grant a get, both of whom are unable to actualize their desire to be divorced from their spouse. The refused party is not free, but forced to spend the rest of his or her life bound to a spouse by an undesired marriage. The woman who is refused a get may be childless and approaching the end of her childbearing years. If so, her husband’s refusal to release her from her marital bond may interfere with her right to become a parent. Enforcement of divorce judgments by imprisonment deprives the individual in question of his or her liberty. On the other hand, depriving someone of the right to choose how and with whom to spend their life is also a significant infringement of their basic freedom. In this chapter we will begin by considering the fundamental concepts of Jewish divorce law, including get meuse, an enforced get, and Rabbenu Tam’s harhakot, isolating measures. We will attempt to draw conclusions from this discussion as to the position of Jewish law vis-á-vis sanctions that may be imposed, in general, on a spouse who refuses to divorce, and in particular, imprisonment of a recalcitrant spouse. This will be followed by a discussion of the principles of Israeli law with respect to these issues. Our analysis will lead to the conclusion that 10

“Freedom for the wolves has often meant death to the sheep. The bloodstained story of economic individualism and unrestrained capitalist competition does not, I should have thought, today need stressing. . . . Legal liberties are compatible with extremes of exploitation, brutality, and injustice. The case for intervention, by the state or other effective agencies, to secure conditions for both positive, and at least a minimum degree of negative, liberty for individuals, is overwhelmingly strong” (Berlin, n. 2 above, xlv–xlvi).

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imprisonment of a recalcitrant spouse must be a last resort, recourse to which must be carefully limited and controlled. At the same time, we will argue that the need to ameliorate, as much as possible, the plight of the refused spouse — especially women who are refused a get — obligates the halakhic authorities to consider making greater use of sanctions that entail a lesser infringement of the recalcitrant spouse’s free will and human rights. 2 a

Enforced Get (Get Meuse) in Jewish Law Compelling the Husband to Give a Get when there are Grounds for Divorce that Justify Compulsion

In Jewish law, divorce does not follow merely from a decision by the court. Early sources of Jewish law indicate that originally, a woman could be divorced against her will. At that time, a court decision in favor of divorce did not suffice on its own, and the husband’s cooperation was required as well.11 After the husband agreed of his own free 11

Some maintain that originally, during the biblical period, the husband could divorce his wife against her will, and had absolute power with regard to divorce. See E.G. Elinson, “Talmudic restrictions in divorce — their nature and validity” (Hebrew), 5 Dine Israel (1974), 37 n. 1 [henceforth Elinson, “Restrictions”]. According to the medieval authorities, the biblical wording implies that the husband must divorce his wife of his own free will. Deuteronomy 24:1 reads: “And if it shall come to pass that she find no favor in his eyes, because he has found some unseemliness in her, then let him write her a bill of divorce, and give it in her hand, and send her out of his house.” R. Samuel b. Meir (Rashbam), in his commentary on bBaba Batra 48a s.v. vekhen ata omer, explains that the Mishnaic principle (see the following paragraph) is derived from the word venatan (“and give it”) in the verse cited above: “ ‘And give it’ — this implies, of his own free will.” R. Moses b. Maimon (Rambam), in his codification of Jewish law, the Mishne Torah (henceforth, Code), Laws concerning Divorce 1:2, explains that the principle is derived from the words “im lo timtza hen beeinav” (if she find no favor in his eyes): “ ‘if she find no favor in his eyes’ — this teaches that he only divorces of his own free will.” The principle that the husband can give his wife a get when he wishes to give it, of his own free will, but the wife must accept the get “of her own free will or against her will,” is mentioned in the early halakhic literature, in the Mishnah, Tosefta and Talmud: mJebamot 14:1; Tosefta, Ketubot 12:3; bJebamot 113b; bGitin 88b. See also M.A. Friedman, Jewish Marriage in Palestine (Tel Aviv: 1980), vol. 1, 312–13 [henceforth Jewish

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will to divorce his wife, and gave her a writ of divorce — a get — the woman was divorced. Later, a change occurred with respect to the wife’s consent to receive a get. Sources from a later period indicate that, in those Jewish communities where a husband was prohibited from divorcing his wife against her will, the cooperation of both the husband and the wife was required, and without it the get was invalid.12 According to sources from the Mishnaic and talmudic periods, the gap between the capacities of the husband and the wife to sever their marital bond is narrowed by the halakhic principle that de facto entitles a woman to receive a get against the will of her husband, who in prescribed circumstances may be “compelled” (kofin) to give his wife a get.13 The cooperation that is required is sometimes obtained by way

Marriage]. A similar principle is mentioned in Sifre Deuteronomy (Finkelstein ed.), (NY: 1969), sec. 269, p. 290. See also bGitin 77a; bBaba Metzia 10b, 56b. During this period, the gap between the husband and the wife in the area of divorce was narrowed in part by limits set by the Sages regarding the circumstances that justify divorce. Beit Shammai maintained that divorce is only justified if the husband discovers something improper with regard to the marital relationship (ervat davar), that is, if the wife committed adultery, or according to a different interpretation, if she was guilty of immodest behavior. Beit Hillel maintained that divorce was permitted even if the woman merely burned her husband’s food; see mGitin 9:10. See also “Restrictions,” 38–40. The Talmud mentions a limitation set by the Amoraim: they had reservations about one’s divorcing his first wife. See bGitin 90b; bSanhedrin 22a. See also “Restrictions,” 40–45. In part because of the limitations placed on the husband’s prerogative to divorce his wife, relatively few cases of divorce are mentioned in the Mishnah and Talmud. See T. Ilan, “The Jewish Woman in Palestine in the Hellenistic–Roman Period (332 BCE–200 CE)” (Hebrew), (PhD Dissertation, Hebrew University of Jerusalem, 1991), 235–36. 12 See Elinson, ibid., 37 n. 2. R. Bleich explains: “In Judaism both the establishment of the matrimonial bond and its dissolution through divorce have always been seen as flowing from the acts of the parties and not from rabbinic judicial authority” — J.D. Bleich, “Jewish divorce: judicial misconceptions and possible means of enforcement,” 16 Connecticut Law Review (1984), 219. And see the beginning of section 2b below, and nn. 39–42. 13 mKetubot 7:9–10 states: “A man in whom defects arose, we do not compel him to divorce [his wife]. Rabban Shimon b. Gamaliel said: When is this the case? When they are minor. But in the case of major defects, we compel him to divorce [her]. And these are [the defects] for which we compel [a man] to divorce [his wife]: one who is afflicted with skinsores, and one who has a polyp, and one who collects excrement, and the

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of pressure put on the recalcitrant spouse. Not every coercive measure applied to the husband to persuade him to give a get is considered unlawful duress that invalidates the get. The Mishnah and Talmud state that where there are valid grounds for divorce, coercive measures may be exercised against the husband to persuade him to give a get. In such situations, the husband is in practice compelled to divorce his wife against his will.14 The cases in which the husband is forced to

14

copper smelter, and the tanner, and so on.” It follows from the Mishnah that the husband does not always divorce his wife “of his own free will.” Under certain circumstances he may be forced to divorce her against his will, e.g., when he suffers from a major defect, such as skin sores, or works in a profession that involves handling repulsive foul-smelling materials. See also mGitin 9:8. The Talmud mentioned other grounds for compelling the husband to divorce his wife against his will. In addition to defects, illnesses, and problematic professions, certain types of improper conduct justify divorce against the husband’s will, see mKetubot 7:1 (regarding a husband who made a vow forbidding his wife to derive any benefit from him) and bKetubot 70a. See also mKidushin 2:5. In addition to the sources referred to in the previous note, the Mishnah also states: Three women are divorced [against their husband’s will] and receive their ketuba: (1) One who says: ‘I am defiled to you’ [the wife of a priest who claims she was raped and is therefore forbidden to live with her husband]; (2) [One who says:] ‘Heaven is between you and me’ [a woman who claims that it is the husband’s fault that they do not have children, or according to another explanation, a woman who claims that her husband does not cohabit with her]; (3) [One who says:] ‘I have been taken away from Jewish men’ [a woman who took a vow not to have sexual relations with any Jew, including her husband]. (mNedarim 11:12) However, it is stated at the end of that Mishnah that the Sages later greatly reduced a woman’s ability to initiate divorce proceedings against her husband with such claims. Elsewhere, the Mishnah mentions other circumstances in which the husband is compelled to divorce his wife against his will: when she is prohibited to him (mJebamot 3:5; 10:1, mEduyot 4:9, and elsewhere), and when the couple have not had a child after ten years of marriage (mJebamot 6:6). The Babylonian Talmud mentions other cases in which the husband is forced to divorce his wife against his will, including: when he is not ready to maintain his wife, according to the Amora Rav (bKetubot 63a, 77a), or, according to the Amora R. Ami, when he takes a second wife (bJebamot 65a). Sometimes the wife’s conduct justifies forcing the husband to divorce her against his will, e.g., when rumors that she is promiscuous abound, and in other cases mentioned in mJebamot 2:8 and bJebamot 24b.

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divorce his wife are the exception to the rule that a man must divorce his wife of his free will. The court’s recognition of the existence of certain legitimate grounds for divorce makes it possible to force the husband to give a get against his will. In light of the manner in which the principles mentioned in the Mishnah and the Talmud were interpreted in the medieval halakhic literature, a connection exists between certain circumstances or behaviors defined as constituting grounds for divorce (as well as, according to certain halakhic authorities, who will be mentioned below, other grounds for divorce that can be derived by way of the various rules of analogy, such as kal vahomer or hekesh, from identical or similar halakhic rationales) and a court ruling “compelling” divorce. When the circumstances or the husband’s conduct are such that they meet the criteria for a ruling that divorce is compulsory, the court will rule that the husband is “compelled” to divorce his wife, and it will exercise harsh coercive measures, such as flogging, to persuade the recalcitrant husband to give a get.15 The practical result of these harsh coercive 15

A distinct category of cases in which divorce is “compelled” first appears in a clearly-defined fashion in the commentaries of the medieval authorities, e.g., Commentary of Rashbam, bBaba Batra 48a s.v. vekhen ata omer begitei nashim; Tosafot, bKetubot 70a s.v. yotzi; Responsa Or Zarua, #760; Piskei Rosh, Jebamot 6:11; Responsa Rosh, 43, #4; Hidushei Haritba, bBaba Batra 48a s.v. vekhen. The existence of this distinct category is implied by the wording used in Maimonides, Code, Laws concerning Divorce 2:20: “Someone who by law is compelled to divorce his wife.” This special category is mentioned several times in the writings of R. Menahem b. Solomon Hameiri. See the following passages in Beit Habehira: bKidushin 50a s.v. mi: “In the matter of divorce, regarding all those about whom they said: ‘They compel them to divorce’ — they compel him until he says: ‘I agree’ ”; bBaba Batra 40b s.v. get: “If they forced him in a lawful manner, it is a get enforced by Jews in a lawful manner, which is valid, as for example, those whom they compel to divorce”; bBaba Batra 47b s.v. hasikrikon: “Regarding a get, those whom they compel to divorce, they compel until he says: ‘I agree’ ”; bBaba Batra 48a s.v. get: “A get enforced by Jews in a lawful manner — for example, where the law states that he is to be compelled — is valid, even when it was granted after coercion or beating, and even beating by Gentiles, if they forced him to do whatever the Jews tell him, for wherever there is an element of mitzva, he gives his consent through the coercion.” (emphasis added) See also Responsa Rashba, 1, #1192;5, #205; 7, #414; Responsa Rosh, 43, #4; Responsa Maharam Halawa, #53; Responsa Hakhmei Provence, #48, #76–78; Responsa Maharik Hahadashot, #29; Tashbetz, 2, #68, #256; Responsa Yakhin Uboaz, 1, #130; 2, #21.

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measures is that the husband does not divorce his wife purely of his own free will. It can be assumed that the Sages of this period — the Tannaim and Amoraim — were well aware that when the husband is “compelled” to grant a divorce, he may in the end divorce her unwillingly, under the influence of the coercive measures exercised against him. In this context, great importance is ascribed to the discretion of the court. Even when grounds exist for “compelling” divorce, flogging and other harsh coercive measures are only permitted after a rabbinical court rules that the husband is “compelled” to give a get. A get that was given after the exercise of a coercive measure of this sort, without an explicit judicial ruling that grounds exist for “compelling” divorce, is considered an unlawfully (shelo kadin) enforced get (get meuse).16 At some point in the Middle Ages, however, it seems that, according to certain eminent halakhic authorities, the rigid framework of well-defined grounds for “compelled” divorce, grounds that were limited to specific circumstances, no longer existed in practice, because the rabbinic authorities were recognizing a subjective ground for “compelled” divorce, applicable to any woman, namely, the claim that “my husband is repulsive to me” (mais alai). According to the Babylonian Geonim, the talmudic discussion regarding a rebellious wife who refuses to cohabit with her husband implies that a husband whose wife claims that she finds her spouse repulsive is not “compelled” to divorce her. They were apparently 16

If Gentiles use coercive measures to force a husband to give his wife a get, in circumstances where there are lawful grounds for compelling the husband to divorce his wife, but a rabbinical court never actually issued a ruling to that effect, the get is deemed improper (but not altogether invalid, for it disqualifies the woman who received it from marrying a priest). But if the Gentiles acted as agents of a rabbinical court that had ruled that there were lawful grounds to compel a divorce, the get is enforced (meuse), but the enforcement is lawful, and the get is valid: “An enforced get, through Jews — is valid; through Gentiles — is invalid; regarding Gentiles, if they beat him and tell him: ‘Do what the Jews tell you,’ it is valid” (mGitin 9:8). Cf. Mekhilta deRabbi Yishmael (HorowitzRabin ed.), Mishpatim, sec. 1, pp. 21, 246; bBaba Batra 48a; bJebamot 106a; bGitin 88b; jGitin 9:10. For commentary on these sources, see: Code, Laws concerning Divorce 2:20; Responsa Yakhin Uboaz, 2, #21; Responsa Rashbash, #339; A. Cohen, “The question of R. Zalman Katz (Maharzakh) and R. Jacob Weil regarding an enforced get” (Hebrew), Moriah 6 (1975), 11–12; “The responsa of R. Nathan Igra,” 12–13; “The responsa of R. Abraham Hakohen (Maharakh),” 13–14.

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aware that had the Talmud recognized this subjective claim, expressing the wife’s feelings, namely, rejection of and revulsion toward her husband, as grounds for “compelling” the husband to grant a divorce, the floodgates would be opened, and coercive measures would all too easily be exercised against husbands, many of whom would then state that in practice they were divorcing their wives not of their own free will. After the period of the Mishnah and the Talmud, however, during the period of the Geonim, in response to the needs of the hour, an enactment referred to as “the enactment of the yeshiva” (takana demetivta), was passed.17 During this period, Jewish women had been turning, in contravention of the halakha, to the non-Jewish authorities for assistance in obtaining a divorce from their husbands, assistance rendered by the authorities in question by means of sanctions imposed on the husbands. This troubling phenomenon raised serious concern that any get given after the exercise of such sanctions should be considered an unlawfully enforced get. If a woman remarried after receiving such a get, her marriage would be invalid, with two dire results: she herself would be living in sin, and the offspring of the union would be considered mamzerim. The Geonim therefore issued an enactment that when a woman put forward the subjective claim of mais alai, her husband would be compelled to grant her a divorce. In this way, Jewish women would apply to a Jewish court, present the mais alai claim, and, as a result of the new legislation, the court would be able to offer them relief without diminishing the validity of the get.18 17

18

See M. Schapiro, “Divorce on grounds of revulsion” (Hebrew), 2 Dine Israel (1970), 117–23. Y. Weinrot, “The Law of the Rebellious Wife” (Hebrew), (PhD Dissertation, Tel Aviv University, 1981), 25–27; A. Beeri, “The Husband’s Obligation to Support his Wife in Israeli Law: the Rebellious Wife and her Right to Maintenance” (Hebrew), (PhD Dissertation, Bar-Ilan University, 1982), [henceforth Obligation], 6–31; Jewish Marriage, n. 11 above, 323–24; S. Riskin, “The ‘Moredet’: A Study of the Rebellious Wife and her Status in Initiating Divorce in Jewish Law” (PhD Dissertation, New York University, 1982); idem, Women and Jewish Divorce (Hoboken, NJ: 1989), 47–54 [henceforth Women]. See Geonic Responsa, Shaarei Tzedek, part 4, gate 4, #15; Geonic Responsa, Hemda Genuza, #89, #140; Otzar Hageonim, Ketubot, p. 191, #478; H. Tykocinski, The Geonic Ordinances (Hebrew), (Tel Aviv: 1959), 11–29; Schapiro, ibid., 124–30; Obligation, ibid., 31–34, 224–28; Jewish Marriage, ibid., 324–26; Weinrot, ibid., 32–33; Women, ibid., 47–78; Jewish Law, n. 8 above, 541–46; A. Rosen-Zvi, Israeli Family Law — the Sacred and the Secular (Hebrew), (Tel Aviv: 1990), 257–60.

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In addition to the Geonic enactment, there was another medieval halakhic opinion contending that a husband whose wife claimed she found him repulsive might indeed be “compelled” to grant a divorce. Maimonides wrote that the husband may be “compelled” to give his wife a get on the basis of the principle, found in talmudic law, that a woman can only cohabit with her husband of her own free will. If she claims that she finds him repulsive and no longer desires to cohabit with him, her feelings must be respected. The appropriate solution for such a woman is the ruling that her husband is “compelled” to divorce her. Maimonides states: “A woman who refuses to have sexual relations with her husband is called a ‘rebellious wife.’ And they [the court] ask her why she is rebelling. If she says, ‘I find him repulsive, and I cannot willingly engage in sexual relations with him,’ they compel him to divorce her immediately, because she is not like a captive who must have sexual relations with a person whom she hates.”19 The Geonic enactment — legislation that changed the halakhic situation that existed during the talmudic period — and Maimonides’ interpretation of the talmudic law, created a new ground for divorce, a ground that was subjective and readily available. It sufficed for a woman to express feelings of rejection of, and revulsion toward, her husband, claiming “my husband is repulsive to me,” and she would attain her goal — imposition of strong sanctions against her husband, implemented in cases where he is “compelled” to give a divorce. The notion of a subjective ground for divorce that was available to many women was a revolutionary development that contravened the prevailing medieval halakhic doctrine of Jewish divorce law, namely, a circumscribed list of grounds for divorce that exist only in specific, well-defined, circumstances.20

Yerahmiel Brody argued that the essence of the Geonic enactment was that a rebellious wife should not be made to wait a year as was required by talmudic law, but that she should receive a get immediately. In Brody’s opinion, the Geonic enactment did not relate directly to the issue of coercion, but directed that the woman be given her get immediately. The implication is that for this purpose, immediate use may be made of the means which, according to talmudic law, may be used after a year has elapsed. See Y. Brody, “Were the Geonim legislators?” (Hebrew), 11–12 Shenaton Hamishpat Haivri (1984/6), 299–300. 19 Code, Laws concerning Marriage 14:8. 20 Rosen-Zvi, among others, has noted that it might be possible to utilize the position that a husband whose wife claims she finds her husband repulsive is “compelled” to divorce her to ameliorate the plight of women who are refused a get in our day. See Rosen-Zvi, n. 18 above, 257, 267–68.

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The opposition of the twelfth-century northern French sage, Rabbenu Tam (R. Jacob b. Meir), to compelling a get when a woman claimed her husband was repulsive to her, was significant. The prevailing opinion among many medieval authorities who followed Rabbenu Tam was that divorce is not to be compelled when a woman claims she finds her husband repulsive.21 As for the Geonic enactment, the prevailing opinion, from the time of Rabbenu Tam onwards, was that it was enacted in response to social realities that had existed in the Geonic period, when Jewish women acted in an improper manner and resorted to the assistance of non-Jewish authorities in an attempt to obtain their get. Hence, it was no longer applicable in the medieval reality, when that phenomenon did not exist. The enactment had indeed been valid when the special circumstance of the Geonic period justified it. However, circumstances had changed, and it had therefore ceased to have any force.22 These authorities ruled that the husband was only compelled to divorce his wife when in addition to the subjective claim that she found her spouse repulsive, she presented to the court

21

See Responsa Rashba, 1, #573, #1192, #1235, and the parallel responsum, Responsa Rashba attributed to Nachmanides, #134. R. Asher b. Yehiel (Rosh) considered the possibility that the mais alai plea might be used in an improper and manipulative manner: “For on account of our sins, Jewish women of our day are immodest, and there is reason to be apprehensive that she may have set her eyes on another man” (Responsa Rosh, 43, #6); “The Jewish women of our generation are vain” (43, #8). See also Responsa Rosh, 43, #13; 43, #9, and the parallel source (7, #6), as well as what R. Jacob b. Asher wrote in the name of his father in Tur, EH 154. See also Women, n. 17 above, 84–134; E. Westreich, “Judicial decisions of R. Asher b. Yehiel in Spain” (Hebrew), in M. Beer (ed.), Studies in Halakha and Jewish Thought Presented to Professor Emanuel Rackman (Ramat Gan: 1994), 162–68 [henceforth “Judicial”]. 22 See Responsa Rosh, 43, #8; Responsa Hakhmei Provence, #73–74, #79; Responsa Rashba, 1, #573, #1192; 5, #95. See also Weinrot, n. 17 above, 308–10; Obligation, n. 17 above, 241–43; Westreich, ibid., 162–68; B. Schereschewsky, Family Law in Israel (Hebrew), (Jerusalem: 1993), 201–02, and n. 72; Jewish Law, n. 8 above, 544–45; Rosen-Zvi, n. 18 above, 257; H. Isirer, “The obligation to give a get and maintenance to a rebellious wife who claims ‘my husband is repulsive to me’ ” (Hebrew), 2 Shurat Hadin (1994), 64, 78.

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convincing evidence that there were objective grounds for her statement that her husband was repulsive to her.23 Maimonides’ ruling that a get may be compelled in cases when a woman claimed her husband was repulsive to her was not accepted by the major halakhic scholars of later generations.24 Rabbenu Tam’s

23

24

R. Solomon b. Adret (Rashba) explains in one of his responsa: “They only ‘compel’ divorce when she comes with a claim, and makes it explicitly . . . but if not [i.e. if she does not explicitly claim that there are grounds for compelled divorce], they do not” — Responsa Rashba, 1, #1192. In another responsum, he deals with the matter of a woman who does not present a claim that justifies compelled divorce, but merely says: “I do not want him.” He therefore rules: “I do not think that the husband, for this reason alone, is liable for flogging or nidui [being put under a ban as a sanction that will extract his consent to give a get].” But he adds: “But I saw that in the letter of nidui it was written: ‘And because of other things related to his behavior, wherein he did not act in a proper manner.’ I do not know about those things, but perhaps, in imposing a ban on him, they relied on them” — Responsa Rashba, 5, #95. The medieval halakhic literature mentions other grounds for compelled divorce that are based on claims made by the wife, in addition to the claim of mais alai. Some examples: when the woman claims that her husband does not provide her with maintenance, see Tashbetz, 2, #8, Responsa Mabit, 1, #76; when the husband has not fulfilled his obligation to procreate, and the woman claims that she wants to have children [to help her] in her old age, see Responsa Hakhmei Provence, #76, #78; when the husband develops physical defects, and the wife claims she cannot bear them, see Responsa Hakhmei Provence, #76. One of the authorities of southern France, R. Shimon b. Oshaya b. Joseph, writes that when a woman puts forward the subjective claim of mais alai, without claiming that grounds for compelling divorce exist, the husband may only be compelled with words. In his opinion, only when there is a claim that objective grounds justifying a ruling that divorce is to be compelled indeed exist, may use be made of sanctions that are permitted when divorce can be “compelled”; see Responsa Hakhmei Provence, Gitin, #77. See Responsa Rosh, 43, #6, 8; Responsa Rashba, 1, #573, #1192; 7, #414; Responsa Maharik, #63; Beit Yosef, EH 77. In his responsum, R. Asher b. Yehiel attests: “I see that in these countries [i.e. Spain], most of their studies rest on the writings of R. Alfasi . . . and they are accustomed to act in that manner.” R. Solomon b. Adret maintains that if the custom in a certain place is in accordance with the view of Maimonides, namely, that the husband is compelled to divorce his wife when she claims mais alai, “we do not have the authority to disagree with them or disregard what they had to say,” for the authorities in the Geonic period also issued an enactment that the husband is compelled to grant a divorce in such a case — Responsa Rashba, 2, #276.

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apprehension25 about compelling a get in situations where compulsion is not mentioned explicitly in the Mishnah or Talmud was shared by many other halakhic authorities.26 Rabbenu Tam was concerned that in such situations, there was no justification, under the principles of Jewish law, for compelling divorce. Consequently, a get given in such circumstances, even if it followed a court ruling authorizing compulsion, was not free of halakhic uncertainties. There was even apprehension that the get might be viewed as having been unlawfully enforced, given that the coercive measures exercised to induce the husband to grant it — for example, flogging — were measures that are only to be used when the objective circumstances justify a ruling that divorce may be compelled.27 According to Rabbenu Tam, we must, therefore, be apprehensive that the woman might mistakenly believe that with the exercise of the coercive measures and the resultant granting of the get, she was without a doubt lawfully divorced. If she then remarried, the question of whether the children of her second marriage should be considered mamzerim could arise in its most acute form, as well as the question of whether she should be deemed to be living in sin with her second husband, and therefore liable to severe punishment.28 In similar fashion, R. Isaac Or Zarua rejected, in the end, what would have been a significant expansion of the possibility of divorce, namely, addition of a new cause for “compelling” divorce — the husband’s not yet having fulfilled his obligation to beget children. He too feared that recognizing such circumstances as grounds for compelling

25

26

27 28

See also Responsa Radbaz, 2, #700; R. Samuel Halevi Wozner, Responsa Shevet Halevi, #27; R.I.H. Herzog, “Apprehensions about an enforced get” (Hebrew), 1 Hadarom (1957), 4, and his Responsa Heikhal Yitzhak, EH 1, #3; Weinrot, n. 17 above, 335–36. See Sefer Hayashar, Novellae, #4, Responsa, #24; Tosafot, bKetubot 63b s.v. aval; Piskei Harosh, Ketubot 5:34. See also Jewish Law, n. 8 above, 543–44. See Responsa Rosh, 17, #6, and the parallel source: Responsa Rosh, 43, #9 (first one); Piskei Harosh, Jebamot 6:11; Responsa Hakhmei Provence, #79; Responsa Rashba, 1, #1192; Responsa Mahari Bruna, #211. See Gvurat Anashim, #72. See Sefer Hayashar, Responsa, #24. Regarding the concerns that arise when divorce is “compelled” under such circumstances, see also Responsa Hakhmei Provence, #75, #78–79; Tashbetz, 2, #256; Responsa Rosh, 43, #6, #8.

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divorce would open the floodgates that prevented the easy, and at times unjustified, dissolution of the family.29 In conclusion, many medieval authorities regarded the list of cases of “compelled” divorce in the Tannaitic and Amoraic literature as

29 The thirteenth-century authority, R. Isaac Or Zarua, suggested initially that even in situations where other grounds for compelling divorce have not been demonstrated, if the husband has not yet fulfilled his obligation to procreate, he may be “compelled” to divorce his wife, “so that he be able to marry another woman and have children.” A get was necessary because, due to the enactment forbidding polygamy that had been widely accepted in the Ashkenazic (northern French and German) communities of his day, the husband could not marry another woman and fulfill his obligation of procreation before divorcing his first wife. He concludes, however, that while this may be right according to the basic principles of Jewish law, it would be difficult to issue such a ruling in practice, because “if so, we have created a formula for licentious women.” The apprehension is that in a situation where it is relatively easy to obtain a divorce even without demonstrating that other accepted grounds for divorce do indeed obtain, any woman who does not wish to remain with her husband, and who might have set her eyes on another man, will petition for a divorce even in the absence of recognized grounds for “compelling” divorce. Such false representations of their real motives on the part of certain wives seeking divorce might upset the safeguards against overly easy, and possibly unjustified, dissolution of the family. See Responsa Maimoniot, Nashim, #34. See also Responsa Rema, #36 (responsum of R. Barukh Uziel Hezekiah). In another responsum, R. Moses Isserles (Rema) attaches importance to the fact that in the end R. Isaac Or Zarua left the matter to the discretion of the court. He writes: What is there to delegate to the court, given that creating a remedy for licentious women is undesirable? Rather, it is clear that he delegated to the court [the task of] ascertaining whether, from her words, there is fear of licentiousness, and if not, they should compel him [to give a writ of divorce] on account of procreation. It would appear from all this, that wherever we see from her words that there need be no apprehension about licentiousness, and there are grounds to compel him in terms of his legal rights [to be able to meet his obligations], such as the right to fulfill the commandment of procreation — we compel him. (responsum #96 [responsum of R. Eliezer Ashkenazi]) On compelling someone to fulfill his obligation to procreate, see Sefer Or Zarua, 1, Laws of Levirate Marriage, #653. See also E. Westreich, “Grounds for the relaxation of the Rabbenu Gershom ban during the later Middle Ages” (Hebrew), 16 Dine Israel (1991/2), 41–52.

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basically closed.30 This list consists primarily of cases of “compelled” get mentioned in the Mishnah in the seventh chapter of tractate Ketubot, and other cases regarding which the early sources state explicitly that compulsion may be exercised.31 Yet the legitimacy of drawing inferences by way of analogy, and applying the rule of the “compelled” get to cases more severe than those explicitly mentioned in the Tannaitic and Amoraic literature, was also assumed.32 The list of cases of “compelled” divorce was expanded to include other cases that shared a halakhic rationale identical or similar to the grounds for divorce mentioned in the early halakhic literature.33 However, this was

30

See Responsa Rashba, 1, #1192; #573; 5, #95; Responsa Baalei Hatosafot, #75; Responsa Rosh, 17, #6, and the parallel source, Responsa Rosh, 43, #3; 43, #9 (the first one); Tur, EH 154; Responsa Hakhmei Provence, #48; #72–75; #78; New Responsa Maharik, #24, #29; Cohen, n. 16 above, 11–12; 12–13; Tashbetz, 2, #22. 31 See Responsa Yakhin Uboaz, 1, #130; 2, #21. 32 See Piskei Rosh, Ketubot 5:34; Responsa Rosh, 43, #6; Piskei Rosh, Ketubot 4:3; Tur, EH 9; Beit Yosef, ad loc. s.v. uma shekatav beshem; Responsa Ribash, #241; New Responsa Maharik, #2, p. 12; #29; Tashbetz, 2, #8; Responsa Maharam Alashkar, #73. See also Z. Warhaftig, “Coercion to grant a divorce in theory and in practice” (Hebrew), 3–4 Shenaton Hamishpat Haivri (1976/7), 153, 178–83 [⫽ Z. Warhaftig, Studies in Jewish Law (Hebrew), (Ramat Gan: 1985), 148, 171–77] [henceforth “Coercion”]; E. Shochetman, “Women’s status in marriage and divorce law” (Hebrew), in F. Raday, C. Shalev, M. Liban-Kooby (eds.), Women’s Status in Israeli Law and Society (Hebrew), (Tel Aviv: 1995), 380, 417–20 [henceforth “Women’s status”]; idem, “AIDS as grounds for divorce in Jewish law” (Hebrew), 25 Mishpatim (1995), 25–28 [henceforth “AIDS”]. 33 See Tashbetz, 2, #8; New Responsa Maharik, #2, p. 12; Responsa Rosh, 43, #13; Tur, EH 154; Responsa Rashbash, #383 (first one). See also “Women’s status,” ibid. Z. Warhaftig (“Coercion,” ibid., 179–94) lists the grounds for “compelled” divorce that were derived from grounds explicitly mentioned in ancient sources from the period of the Mishnah and the Talmud. These include, among others, the following: a husband who is seriously ill, and endangers the health of his wife and children (Responsa Rosh, 42, #1); a wife-beater, who ought to be treated more severely than someone who beats another person, in part because of the analogy to the law regarding someone who forbids his wife by a vow from deriving benefit from him (Responsa Maharam b. Barukh [Prague], #907); a prisoner, who is unable to fulfill his conjugal obligations, and is regarded as one who forbids his wife by a vow from cohabiting with him and deriving other benefits (Tashbetz, 2, #68); a couple who disagree on where to live, and there are grounds for

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not done as a manner of course. In many cases, the halakhic authorities refrained from ruling in favor of “compelling” divorce because they hesitated to rule against those who maintained that the list of cases where a get may be coerced should not be expanded.34 Even in cases where opinions differed, many refrained from relying on those who ruled in favor of compulsion.35 The extent to which this halakhic reality provides a satisfactory answer to the plight of women denied a get in all cases must be carefully examined. In this context, it should be mentioned that according

compelling divorce due to certain relevant factors: the priority given to Jerusalem and the land of Israel over other places, the couple’s prior agreement on where to live and the circumstances that existed before they married (mKetubot 13:11, and elsewhere); the mais alai plea, according to Maimonides (Code, Laws concerning Marriage 14:8); absence of domestic harmony (Responsa Hahayim Vehashalom, 2, #35; Responsa Yabia Omer, 3, EH #18), though in recent generations, when this argument was the sole ground for divorce, it was not accepted as a decisive factor justifying a compelled get. See Responsa Divrei Shmuel, 3, #145. This list, however, is not closed. For example, divorce is “compelled” when there is a factual or legal doubt regarding the validity of the betrothal, such as when the couple married in secret, as a joke, under duress, or in certain other problematic circumstances. See the sources cited in P. Shifman, Doubtful Marriage in Israel (Hebrew), (Jerusalem: 1975), 59–98. Similarly, a husband who committed adultery may be compelled to divorce his wife, based on, among other things, a kal vahomer argument (application of a rule in cases more severe than those explicitly mentioned) with respect to compelled divorce in the Talmud. See R. Halperin, “Husband’s adultery as a ground for divorce” (Hebrew), 7 Bar-Ilan Law Studies (1989), 304–05; “AIDS,” n. 32 above, 42 (in light of assertions in Sefer Haaguda, Jebamot, 77; Hagahot Harema, SA, EH 154:1). So too in a case where a husband has run away, and there is real concern that his wife might become an aguna, the authorities are inclined to rule in favor of “compelled” divorce, or at least to apply certain restraining measures against him. See Responsa Maharsham 8, #282. Regarding the derivation of new grounds for “compelling” divorce by way of kal vahomer, see “AIDS,” n. 32 above, 19; “Women’s status,” n. 32 above, 380. 34 See Responsa Ribash, #241. 35 See Responsa Rosh, 42, #1; Tur, EH 154, 5; New Responsa Maharik, #24; Responsa Maharit, 1, #113; Responsa Hatam Sofer, EH 1, #116; Responsa Hatan Sofer, #59. The rule is: “The matter is in doubt, and in cases of doubt, they do not compel” — Responsa Ribash, #242. See also SA, EH 11:8, and Beit Shmuel ad loc., #18. Regarding the principle that there is no compulsion in cases of doubt, see also Hidushei Harashba, bKetubot 72b s.v. veasikna.

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to R.I.H. Herzog, the common denominator in all cases of “compelled” divorce is “the injustice done to the woman.”36 When grounds for “compelled” divorce have been clearly demonstrated, and in other cases, when in appropriate circumstances, the rationale of “injustice done to the woman” is relevant, there should be no hesitation about exercising severe sanctions against the recalcitrant husband.37 However, most of the dayanim in Israel’s rabbinical courts do not share this point of view. b

Divorcing a Woman Against her Will when there are Grounds for Divorce that Justify Compulsion

In the Middle Ages, some Jewish communities38 accepted an enactment known as herem derabenu gershom, which prohibits a husband from 36 See Responsa Heikhal Yitzhak, EH 1, #1. 37 See Tosafot, bKetubot 70a s.v. hakha. R. Herzog writes: “Now Tosafot warn there not to compel a person to divorce his wife or take action until clear proof is found. . . . Their intention was to issue a severe warning not to rely on our own judgment, without clear proof from the Talmud” (Herzog, ibid.). Yet R. Herzog was not always very strict about proof from the Talmud. He permitted a financial penalty to be imposed upon the recalcitrant husband in order to pressure him to divorce his wife, justifying his ruling as follows: “Only when they impose upon him something that he cannot bear, or that is excessively difficult for him, is it an [unlawfully] enforced get.” R. Herzog ruled in accordance with the rationales mentioned in the Talmud as grounds for divorce, and did not accept the stringent view of R. Moses Sofer, Responsa Hatam Sofer, EH 1, #116, on which a get cannot be “compelled” in any case where halakhic authorities are not in agreement about imposing a “compelled” divorce. R. Herzog explained that all grounds for divorce that permit “compelling” the husband to give his wife a get rest on the same basic consideration. Wherever the Sages thought that the husband was doing his wife an injustice by withholding her get, they allowed compulsion, just as they would allow compulsion in order to enforce any other judgment. 38 The enactment spread first among the Franco-German Jewish communities, see E. Westreich, “Polygamy and compulsory divorce of the wife in the decisions of the rabbis of Ashkenaz in the 11th and 12th Centuries” (Hebrew), 6 Bar-Ilan Law Studies (1988), 118–64 [henceforth “Polygamy”]. It is attributed to one of the outstanding spiritual leaders of these communities, Rabbenu Gershom Meor Hagola. On the accuracy of this attribution, see Z. Falk, Marriage and Divorce: Reforms in the Family Law of German-French Jewry (Hebrew), (Jerusalem: 1962), 28–31; A. Grossman, The Early

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divorcing his wife against her will.39 Today, it is widely accepted that the prohibition against divorcing a woman against her will applies in the State of Israel to all Jews irrespective of the original traditions of the community of their parents.40 Likewise, it is widely accepted that no time limit was placed on the validity of the enactment. As its validity has never expired, it applies even in our day.41 Therefore, in the State of Israel, the status of women with respect to the matter of consent to divorce, has largely been made equal to the status of men in the period of the Mishnah and Talmud. Both husband and wife may be divorced against their will only when grounds for divorce exist that allow for the use of coercive measures to force the husband to give, or the wife to accept, a writ of divorce.

Sages of Ashkenaz (Hebrew), (Jerusalem: 1981), 147–48. Later, the enactment spread among other Jewish communities. See M.A. Friedman, Jewish Polygamy in the Middle Ages: New Documents from the Cairo Geniza (Hebrew), (Jerusalem: 1986), 1–11; S.Z. Havlin, “The takanot of Rabbenu Gershom Meor Hagola in family law in Spain and Provence (in light of manuscripts of responsa by Rashba and R. Isaac de Molina)” (Hebrew), 2 Shenaton Hamishpat Haivri (1975), 200, 205–10; Obligation, n. 17 above, 34; idem, “New light on the enactments of Rabbenu Gershom Meor Hagola: their authorship, scope and spread” (Hebrew), 11–12 Shenaton Hamishpat Haivri (1984/6), 317, 326–28; Responsa Ran, #48; Rosen-Zvi, n. 18 above, 258–60. 39 On the application of this enactment, attributed to Rabbenu Gershom, in various Jewish communities, see Responsa Rashba, 4, #186; Friedman, ibid.; Westreich, ibid. 40 The rabbinical courts in Israel maintain that the prohibition against divorcing one’s wife against her will — by way of the herem attributed to Rabbenu Gershom, a condition in the ketuba, custom, or the Jerusalem ban — applies today in the State of Israel to all Jews who immigrated from anywhere in the Diaspora. See Schereschewsky, n. 22 above, 63–67, 279; E. Westreich, “The Jewish woman’s marital status in Israel — interactions among various traditions” (Hebrew), 7 Plilim (1998), 308–26. Regarding the application of this enactment to the Yemenite Jews, see R. Arusi, “The ethnic factor in rabbinical decision-making (enforcement of divorce on the grounds of revulsion in the Yemenite community)” (Hebrew), 10–11 Dine Israel (1981/3), 125, 131–48. 41 Some authorities maintained that this enactment, attributed to Rabbenu Gershom, was enacted for a specified period of time only, and as that period has elapsed, is no longer valid. See Havlin, “Takanot,” n. 38 above, 218–19; idem, “New light,” n. 38 above, 324–25; Grossman, n. 38 above, 149. On the validity of this enactment in our day, see Schereschewsky, n. 22 above, 65–67.

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There are, however, exceptions to the general rule prohibiting a husband from divorcing his wife against her will. For example, if she violates biblical prohibitions, or norms of modest comportment, if she becomes an apostate, if the marriage was prohibited, or if she has committed adultery.42 In certain well-defined cases, there may be grounds that would allow the husband to contract an additional marriage. In practice, the situation of a woman whose husband has received a dispensation to marry another wife is similar to that of a woman who may be divorced against her will.43 Even with the enactment of herem derabenu gershom, full equality between husband and wife does not exist. In certain situations, for example, when the husband cannot be located, his wife will remain an aguna, whereas should the husband find himself in similar circumstances, he can obtain permission to contract a second marriage. Likewise, it is sometimes easier for the husband to obtain permission to remarry, and more difficult for the woman to prove that there are grounds for divorce that allow for compulsion of her husband.44 Nevertheless, the enactment of Rabbenu Gershom clearly narrowed the difference in status between husband and wife with regard to divorce. Just as the get must in general be given of the husband’s free will, so too must it in general be received of the wife’s free will. In many cases, just as it is necessary to prove that there is cause for divorce that suffices to permit the husband to be compelled to divorce his wife against his will, so too is it necessary to prove that there is cause for divorce that suffices to permit the wife to be forced to terminate her marriage against her will.

42 43

See Hagahot Harema, EH 114:6; Schereschewsky, ibid., 332. See Westreich, “Polygamy,” n. 38 above, 118–119; idem, “Polygamy and compulsory divorce of the wife in Jewish law in Italy during the 15th and 16th centuries” (Hebrew), 9 Bar-Ilan Law Studies (1991), 227–56; idem, n. 29 above, 39–95. On grounds for allowing a husband to contract a second marriage in Israeli law, see section 79 of the Penal Law, 5737 — 1977; H.C. of Justice 301/63 Streit v. the Chief Rabbis of Israel, (1964) P.D. 18 (1) 598; Additional Appeal 10/69 Boronowski v. the Chief Rabbis of Israel, (1971) P.D. 25 (1) 7; P. Shifman, Family Law in Israel (Hebrew), ( Jerusalem: 1995), vol. 1, 241–44 [henceforth Family Law], Rosen-Zvi, n. 18 above, 72, 79, 308. 44 See Rosen-Zvi, ibid., 41.

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Sanctions Against a Husband or Wife who Refuses to Give or Receive a Get

i

Matching the Level of Enforcement with the Appropriate Sanction

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The medieval halakhic authorities distinguished between two levels of enforcement with respect to divorce judgments: (1) kofin legaresh — “compelling” divorce; and (2) hiyuv legaresh — “obligation” to divorce. In the Mishnah and in certain talmudic passages, the Sages use the expression “yotzi veyiten ketuba” — he must divorce her and pay her ketuba.45 Opinions differ as to the meaning of this expression. One of the Tosafists, R. Isaac b. Samuel (Ri), understood it to mean “that we compel him, for since he acted in an unlawful manner, we compel him to divorce her . . . with whips.”46 His main proof for this interpretation is from a passage in the Babylonian Talmud that cites the opinion of the Amora Rav: “[If the husband said to his wife:] ‘I will not maintain [you] and I will not provide [you with maintenance],’ he must divorce her and pay her ketuba (yotzi veyiten ketuba).” The Talmud then cites the opinion of the Amora Samuel: “Before they compel him to divorce her, let them compel him to maintain her” (emphasis added). Ri concluded from this that when the Amora Rav said, “He must divorce her and pay her ketuba,” he meant that the husband was “compelled” to divorce his wife. However, in the medieval period, it was not this interpretation that became generally accepted, but that of Rabbenu Hananel.47 From the time of Rabbenu Hananel on, many halakhic authorities distinguished

45 See bJebamot 64a, 65a; bKetubot 63a, 71a, 77a. 46 Tosafot, bKetubot 70a s.v. yotzi. See also Tosafot, bJebamot 64a s.v. yotzi; Mordekhai, Ketubot, #194. See also Responsa Hakhmei Provence, #84; Tur, EH 154. Some maintain that the matter in dispute between the Ri and Rabbenu Hananel was already the subject of a Tannaitic and Amoraic controversy. See “Coercion,” n. 32 above, 153, 176. 47 See Mordekhai, Ketubot, #194, #205; Otzar Hageonim, Ketubot, Likutei Peirush Harah, 117–18. Rabbenu Hananel’s reading of Rav’s words in bKetubot 63a, 77a, is as follows: “They compel him [with regard to paying the ketuba], and he divorces her and pays [kofin oto veyotzi veyiten].” See also R. Solomon b. Adret’s interpretation in Hidushei Harashba, bKetubot 77a s.v. ad shekofin.

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between “compelling” divorce and “obligating” divorce. When the cause for divorce is one regarding which it is stated in ancient sources, “he must divorce her and pay her ketuba,” the sanctions imposed on the husband who refuses to give a writ of divorce are more moderate than those imposed when the ground for the divorce is one with regard to which “compulsion” is mentioned.48 When the level of divorce is “obligation” to divorce, the rabbinical court cannot resort to flogging, or any other severe coercive measure, such as pronouncement of a ban (nidui), or excommunication (herem), the use of which is only permitted when the court rules that the husband may be “compelled” to divorce.49 According to Rabbenu Hananel and subsequent authorities, when it is stated, “he must divorce her,” this means that the level of sanctions is lower. No use may be made of the sanctions that may be imposed when the husband is “compelled” to divorce his wife. When the cause of divorce falls under the rule “he must divorce her and pay her ketuba,” we “compel” the husband with regard to the ketuba, but request of him that he grant his wife a divorce. The sanction is weak: verbal persuasion. The recalcitrant husband is asked to give his wife a get. He is told that he is obligated to divorce her, and if he refuses, 48 49

See bKetubot 77a; jKetubot 11:7. Rabbenu Tam emphasized that when the husband is not “compelled” to give a divorce, it is forbidden to coerce him by way of flogging or any other harsh coercive measure, such as herem or nidui. See Sefer Hayashar, Responsa, #24; Mordekhai, Ketubot, #204. The distinction is that between verbal pressure and coercion by means that have a more direct effect on him. See also Responsa Baalei Hatosafot, #75; Tosafot, bKetubot 70a s.v. yotzi; Responsa Rashba, 5, #95; 7, #414; Piskei Harosh, Jebamot, 6:11, 15; Responsa Rosh, 43, #4; #12–1; Responsa Mahari Bruna, #211; Responsa Maharah Or Zarua, #157; Tashbetz, 2, #8, #68, #256; Responsa Yakhin Uboaz, 1, #130; 2, #21; Responsa Rashbash, #383 (first one); Responsa Maharalbah, #33; Gvurat Anashim, #72. However, R. Saul Israeli, in his “On coercion and consent regarding a get” (Hebrew), 12 Torah Shebeal Pe (1970), 33, maintained that according to R. Asher b. Yehiel (Rosh), (Piskei Harosh, Jebamot, 6:11), banning (nidui) may also be used in cases where the husband is “obligated” to divorce his wife. He argues that this follows from a responsum of Rosh (Responsa Rosh, 53, #6) which states that in cases of “compelled” divorce, the coercive measure used is flogging, whereas nidui is the measure used when the court orders divorce, even when the level of enforcement is not that of “compelled” divorce — “and the nidui is for having violated the words of the Sages.”

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the Sages will be displeased with him, and due to his improper behavior the Jewish community will be permitted to refer to him as a “sinner.”50 “Recommended” divorce is not mentioned as a separate category in the early halakhic literature. The medieval halakhic authorities only distinguished between two levels of enforcement: “compelling” divorce and “obligating” divorce. The levels of “mitzva to divorce” and “recommended” divorce, in the sense that these terms are used today in the judgments of the rabbinical courts in Israel, did not exist then. In certain situations there is a mitzva to grant a divorce, but the enforcement level in such cases is that of “compelled” divorce. The halakhic literature prior to the recent generations sometimes mentions that there is a mitzva to divorce, for example, when the woman is “evil”51 — that is, causes her husband to sin. But there is no mention of any special sanction that is to be used in such cases; rather, the sanctions of “compelled” divorce are applicable. One of the aims of a ruling issued by a rabbinical court in Israel recommending divorce may lie outside the confines of Jewish divorce 50

51

See Responsa Hakhmei Provence, #73–74, #84; Responsa Baalei Hatosafot, #75; Sefer Mitzvot Gadol, positive commandments, 48 (end); Mordekhai, Ketubot, #194, #204–05; Responsa Maharik, #29; Sefer Haaguda, Ketubot, #98; Tashbetz, 2, #8, #256; Responsa Yakhin Uboaz, 2, #21; Hagahot Harema, EH 154:21. According to many medieval authorities, the source for the distinction between yotzi veyiten ketuba and kofin is in the Jerusalem Talmud. See jKetubot 11:7; Korban Haeida ad loc., s.v. yater mikan yotzi veyiten ketuba; s.v. umeshani shamanu shemotzi; Amudei Yerushalayim ad loc., s.v. shamanu shemotzi shamanu shekofin. R. Moses of Coucy writes: “We read in the Jerusalem Talmud, at the end of [chapter] Almana nizonet: ‘They only coerce with respect to disqualified women.’ That is to say: for example, [with respect to marriage of] a widow to a High Priest, whom they compel to divorce her [since the marriage is prohibited]. And [the Jerusalem Talmud] asks: But surely we learned in the Mishnah: ‘Someone who forbids his wife, by a vow, to benefit from him — he must divorce her and pay her ketuba’? [emphasis added]. And it answers: ‘We heard that he must divorce her, did we hear that they compel him?’ ” R. Moses of Coucy infers from this: “From this we learn that they only compel divorce in a case regarding which it was taught ‘they compel.‘ But [where it was not stated that ‘they compel’] the Sages say to him: ‘You are obligated to divorce [her], and if you violate [this], you will be called a sinner’ ” — Sefer Mitzvot Gadol, positive commandments, 48 (at the end). See n. 193 below.

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law proper. The intent of the ruling may be to grant the court jurisdiction over a matter that has been linked to the divorce suit. According to Israeli law, during divorce litigation, ancillary matters, such as property of the husband and wife, education of the children, and so on, may be attached by one of the parties, in his/her divorce suit, to the primary matter being litigated: the divorce suit.52 Now if the divorce suit is denied, the jurisdiction of the rabbinical court over the ancillary matters expires. However, even if the rabbinical court merely “recommends” divorce, the ruling is regarded as a divorce judgment for all purposes,53 and the jurisdiction of the rabbinical court over the ancillary matters that were linked to the divorce claim stands. ii

Rabbenu Tam’s harhakot (“isolating measures”)

A possible remedy, used primarily when a judgment is issued “obligating” divorce, and certainly in the case of a ruling “compelling” divorce, is the exercise of Rabbenu Tam’s harhakot (“isolating measures”). Due to the significance of these measures in Israeli law, as will be explained below,54 we shall devote a separate, more comprehensive, discussion to these measures. Rabbenu Tam’s harhakot are first mentioned in the twelfth century, in a responsum by Rabbenu Tam — R. Jacob b. Meir — in his Sefer Hayashar, regarding a woman who claimed that she found her husband repulsive. Rabbenu Tam did not accept the view that the husband of such a woman can be “compelled” to divorce her. He rejected outright the opinion of the rabbis of Paris, who argued that in such a case, “You may use specified means of compulsion until he says that he is willing [to divorce her].”55 All the severe coercive measures, such as flogging or bans, that these authorities maintained could be imposed in a “compelled” divorce, were, in Rabbenu Tam’s opinion, prohibited in the situation considered in his responsum. Yet, since “Rabbenu Tam’s heart went out to the woman who claimed ‘mais alai,’ and he too sought a solution so that Jewish women would not become agunot . . . he

52

See section 3 of the Rabbinical Courts Jurisdiction Law (Marriage and Divorce), 5713 — 1953. 53 See nn. 143, 194 below. 54 See below, section 3d. 55 Sefer Hayashar, Responsa, #24.

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searched for a solution to the problem of revulsion . . . . Had Rabbenu Tam thought that the husband was acting properly, and that a woman had no standing when she claimed revulsion, he would not have troubled to suggest the application of the sophisticated measure of harhaka.”56 Rabbenu Tam contends that a measure that exerts less direct pressure than such measures as flogging, bans and excommunication may be imposed on the husband in order to impel him to grant a divorce. In his opinion, use of these more moderate coercive measure dispels any apprehension that a coercive measure used in a situation where there are no legal grounds for a “compelled” get will result in the granting of a unlawfully coerced get. He writes: “If all of our rabbis agree, you may issue a decree with a severe curse [for violators of the decree]. This decree will state that every man and woman of the house of Israel . . . is forbidden to speak with him [the husband], to do business with him, to host him, to give him food or drink, to escort him, or to visit him when he is ill.” Rabbenu Tam lists specific measures of social isolation that may be inflicted on the husband, but adds that the list of measures mentioned in his responsum is not closed, and other indirect measures, similar to those mentioned, may also be inflicted: “And they may add stringent measures as they please, [to be imposed] on anyone, if that man does not divorce and release this girl [his wife], for there is no compulsion in this, for if he wishes, he will comply, and he will not suffer in his body on account of this ban [the harhakot], but rather, we will separate ourselves from him.”57

56

Weinrot, n. 17 above, 431–32. On p. 439, Weinrot explains that in his opinion, Rabbenu Tam’s harhakot serve as a conceptual bridge between Maimonides’ view that a get may be “compelled” when a woman claims her husband is repulsive to her, and Rabbenu Tam’s view that a get may not be “compelled” in such a case. He held that even Rabbenu Tam recognized the need to spare a woman from being trapped in a marriage when it is clear that she and her husband are incompatible. He and Maimonides disagree only as to what means may be employed to bring the marriage to dissolution. 57 Sefer Hayashar, Responsa, #24. On the scope of the application of Rabbenu Tam’s harhakot, see also “Coercion,” n. 32 above, 162; A. Beeri, “Legal means for enforcing a Jewish divorce (harhakot rabeinu tam)” (Hebrew), 18–19 Shenaton Hamisphat Haivri (1992/4), 65, 73–74.

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A similar distinction between direct and indirect measures is found in another responsum by Rabbenu Tam: “If a man betrothed a woman, but does not want [to marry] her, he cannot be compelled to divorce her, not by Jewish law, nor by way of [coercion by] the non-Jewish authorities. But if he was imprisoned over a tax matter, or something else, they can say to him: ‘We will not help you get out of prison until you divorce her,’ for this is not coercion, for they do not do anything to him [directly], but only refrain from helping him.”58 The rationale in this responsum is thus similar to that found in Rabbenu Tam’s responsum suggesting imposition of harhakot, namely, the rationale of withholding benefit: “For there is no compulsion in this, for if he wishes, he will comply, and he will not suffer in his body on account of this ban [the harhakot], but rather, we will separate ourselves from him.” In contrast to banning, when these harhakot are applied, they have no direct effect on the “body” of the recalcitrant husband.59 They do not share the nature of flogging, excommunication (herem), and banning (nidui), whose effect is unmediated and physical, acting upon the person’s body. Rather, the measure employed is indirect, for the status of a excommunicated or banned individual (muhram or menude) is never affixed to the recalcitrant husband. It is the public at large, who live with him in the same community, who are forbidden to come into contact with him. They may not speak to him, do business with him, host him, give him food or drink, escort him, or visit him when he is ill. Herem and nidui, on the other hand, have a direct effect. A categorical status is assigned to the party who refuses to give or receive a get, a status the excommunicated or banned party cannot evade. The fourteenth century halakhic scholar from Spain, R. Nissim Gerondi, explains that

58

59

Hagahot Mordekhai, Gitin, #468. See also Beeri, ibid., 73–74. Regarding imprisonment imposed for tax debts during the Middle Ages, see Responsa Rosh, 7, #11: “There is a widespread custom throughout the Diaspora that someone who owes taxes to the community is incarcerated in prison. He is not brought before a court, but the city notables judge him according to their custom.” The Talmud explicitly states that herem and nidui act on the person’s body. See bMoed Katan 17a. Subsequent sources also emphasized that herem and nidui impact on the person’s body: “Nidui is a punishment of his body” — Seder Eliahu Rabbah, #13.

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a herem is inflicted on a person’s body, and he carries it with him wherever he goes.60 Rabbenu Tam’s harhakot are not a universal sanction, because they only apply in a specified place. The party upon whom the measures have been imposed may free himself from their burden by uprooting himself from his community and moving to another, whose members are not bound to observe the measures. By remaining in his community, the isolated party attests to his tacit agreement to accept the onus of the harhakot. Some explain that when the party remains in the locale where the measures have been imposed, they are regarded as a sanction that the individual has brought on himself. Therefore, when those measures are put into effect, the divorce that follows is not tainted by compulsion or duress.61 In the late Middle Ages, R. Joseph Colon, citing a slightly different version of Rabbenu Tam’s responsum regarding harhakot, attributes great significance to the fact that the isolated husband can leave the locale in which the measures have been imposed.62

60

See Responsa Ran, #48: “Because this herem is not affected by locality, for it rests on the person’s head.” See also Encyclopedia Talmudit, vol. 17, “herem” (hermei tzibur). 61 This distinction between externally inflicted coercion and coercion that the husband inflicts “upon himself” was noted by R. Moses Feinstein in his Responsa Igrot Moshe, EH 1, #137. Yet R. Feinstein clarified in his responsum that changing one’s place of residence is no small matter. It may be assumed that once a person is settled in a particular place, it is difficult for him to leave. See also Responsa Shevet Halevi, 5, #27. 62 “For here no coercion is exerted upon him, for if he so desires, he can find himself a different place [to live], and he will not be stricken in his body on account of this nidui [the harhakot], but rather we separate ourselves from him” — Responsa Maharik, #102, 135. The court’s order to distance oneself from the isolated party only applies to the members of the community in which he then lived. If the recalcitrant spouse chooses to move to another community, he can extricate himself from the burden of the harhakot. The choice to stay in the community and bear the consequences — the burden of the harhakot — is a decision that the husband reaches freely. Therefore, his granting a get in order to free himself of those measures is also regarded as an action rooted in the original freely-reached decision to remain in his own community.

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Use was sometimes made of the wording found in Rabbenu Tam’s responsum, according to which the harhakot, in contrast to herem and nidui, are not inflicted on the individual’s “body,” nor does he “carry” them “on his body” wherever he goes. This follows what Rabbenu Tam writes in his responsum: “And he is not stricken in his body.”63 However, we should also consider the weakness of the distinction between a direct action, inflicted upon a person’s “body,” and an indirect action. One main argument against the validity of this distinction in contemporary society might be that it does not adequately take into account the effect of the sanction on the recalcitrant non-religious spouse, especially the husband, with regard to his/her free will. An action that in a formal sense is direct might have less effect on the husband’s will than an indirect action that is of greater significance from the husband’s perspective and has greater effect on his free will. This may be the case if the social effects of herem or nidui are less severe than those of Rabbenu Tam’s harhakot. When the harhakot are implemented, the isolated party may agree to divorce his spouse in order to free him(her)self of the oppressive feeling of social isolation, which in contemporary society might sometimes be significantly greater than the social isolation experienced by someone placed under a ban or into excommunication. The heavy social pressure brought to bear on a recalcitrant husband when Rabbenu Tam’s harhakot are imposed

63

In Jewish society of the twelfth century, the great majority of Jews had a profound belief that a herem or nidui penetrated every organ of one’s body, and that the banned party carried the sanction in his body wherever he went. In such a society, a sanction that is “in his body” is very severe, and to a large extent deprives the individual of his free will with regard to giving a get. Therefore, imposition of such a sanction generates the apprehension that the get will not be given of the husband’s free will, but will be an unlawfully coerced get. Rabbenu Tam’s harhakot, on the other hand, only affect someone in his own community, and he does not carry them with him to other locales. R. Elijah, the Vilna Gaon, comments: “For he can save himself from this by moving to another city. As long as no action is taken against his body, it is not called ‘compulsion’ ” — Biur Hagra, EH 154, #64. This is in contrast to the effects of banning, as R. Moses Feinstein remarked, explaining the ubiquity of the effects of nidui: “When the court puts him under nidui . . . he should be concerned that his body will be stricken wherever he is” — Responsa Igrot Moshe, EH 1, #137 (emphasis added). Hence, the harhakot are not considered sanctions that deprive the recalcitrant husband of his free will. See Responsa Binyamin Zeev, #79. See also Beeri, n. 57 above, 84.

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impacts on his/her will to give/receive a get. Under such circumstances, his/her free will to divorce is weaker than that of someone on whom a herem or nidui was pronounced.64 This difficulty is particularly significant given the possibility of adding more harhakot to those listed in Rabbenu Tam’s responsum, intensifying the pressure on the isolated party. Since the list of measures was never closed, several additional such measures of great weight have been added over the generations, significantly impacting the husband’s free will. R. Yomtov of Joigny, a disciple of Rabbenu Tam, wrote that Rabbenu Tam himself added measures that were not included in the list of harhakot mentioned above, found in the version of Sefer Hayashar that has come down to us: . . . to force and expel anyone who violates a decree or enactment decreed or enacted by the Sages. And furthermore, he should be placed under herem and nidui, and nobody may allow him to enjoy any benefit, as a great scholar [Rabbenu Tam] wrote in a responsum beginning with the words mikol mehatzetzim [the first words in the above-mentioned responsum by Rabbenu Tam]. . . . He responded to three of the greatest authorities of the generation, Rabbenu Samuel, Rabbenu Elijah, and Rabbenu Meshulam.65 He wrote that they should apply to him [the husband] all means of coercion: they should neither circumcise his son, nor teach him, nor bury him, if he does not divorce [his wife] of his free will with a valid get, according to the [halakhic ruling of the] sages of his town, for this is not [considered] “compulsion” according to Rabbenu Tam.66

It is possible, however, that R. Yomtov of Joigny meant to say that these sanctions may only be imposed on one who violates a decree or enactment passed by the ancient authorities, who imposed a herem on anyone who violated their decrees. Only if a person acted in an improper manner — for example, if he married his wife without the consent of her relatives — may these strong sanctions be imposed. In such cases it

64 65 66

On the serious consequences for the husband’s free will when Rabbenu Tam’s harhakot are imposed, see Beeri, ibid., 85. See Sefer Hayashar, Responsa, #24. See also Beeri, ibid., 75 n. 33. See Responsa Binyamin Zeev, #88. On the identification of “Rabbenu Yomtov” with R. Yomtov of Joigny, disciple of Rabbenu Tam, see Beeri, ibid., 76–77.

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is possible to impose a herem or a nidui. Elsewhere the words of R. Yomtov of Joigny are cited as follows: And Rabbenu Tam rules that if a person does not want to give his wife [a get], the community can forbid him [by an oath], to enjoy their property, for this is not [unlawful] enforcement. And R. Yomtov ruled that if someone violates an ancient decree, he may be forced to give a writ of divorce, just as we force divorce upon [someone who married] a woman who is [halakhically] disqualified from marriage to him, and similarly, [on] someone who betrothed a woman without the consent of any of her relatives. If he is in the country [that is, has not fled], by rights he should be placed under herem and nidui, and he should be forbidden by oath to enjoy [other people’s property], and he should be punished by the king and his officers. His son should not be circumcised, and he should not be buried, unless he divorces his wife of his own free will with a valid get according to [valid halakhic procedure, supervised by] the sages of his town”67 (emphasis added).

In the sixteenth century, the halakhic authorities added these measures to the list of harhakot of Rabbenu Tam mentioned in the earlier halakhic literature. In his responsa, R. Binyamin Zeev of Arta mentioned the option of implementing the far-reaching measures earlier proposed by R. Yomtov of Joigny; and R. Moses Isserles wrote in his glosses on the Shulhan Arukh that these measures may be imposed on the recalcitrant husband.68 Their wording implies that they maintain that these sanctions may be imposed whenever Rabbenu Tam’s isolating measures are imposed, and not only in the special circumstances mentioned by R. Yomtov of Joigny. iii Level of Enforcement On the understanding of the medieval halakhic authorities, when a divorce judgment is enforced at the highest level, that is, when divorce is “compelled,” even sanctions that impact on the individual’s body, such as flogging, are permitted. The get is indeed “enforced” (meuse), but enforced in a lawful manner. On the other hand, when the enforcement level of the divorce judgment is lower, that is, in the case of “obligation” to divorce, sanctions that affect the individual’s body are forbidden. Should they be implemented nonetheless, the validity of the get is liable 67 Sefer Etz Haim, part 2 ( Jerusalem: 1964), 198. 68 See Responsa Binyamin Zeev, #88; Hagahot Harema, EH 154:21.

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to be adversely effected, because the divorce will have been “enforced” in an unlawful manner. Less severe sanctions that do not affect the individual’s body are permitted in such circumstances, and if they are indeed employed, the get is not regarded as having been unlawfully “enforced.” In the responsum that first mentions the harhakot, Rabbenu Tam refers to a situation in which divorce may not be “compelled.” He states explicitly that when a woman rebels against her husband with the claim that she finds him repulsive, the husband is not “compelled” to give her a get. In these circumstances, the use of harsh coercive measures, such as flogging or bans, is forbidden: “And if you should say that we may not force him with a whip, but we may force him with decrees and bans . . . shamta (a ban) is interpreted as denoting death (sham mita) or utter desolation (shmama). So you see that it [nidui] is harsher than flogging, and there is no greater coercion.”69 Yet though recourse to such coercive measures (which are only permitted in the case of a “compelled” divorce) is forbidden, Rabbenu Tam, responding to the plight of a woman who finds her husband repulsive, allows other coercive measures to be used, namely, the harhakot. The fourteenth-century Ashkenazic authority R. Mordekhai b. Hillel held that Rabbenu Tam’s harhakot are coercive measures that may be employed even when a get may not be “compelled,” and the enforcement level is lower, that is, when there is an “obligation” to grant/receive a get (yotzi veyiten ketuba).70 On R. Mordekhai b. Hillel’s understanding, a new sanction was proposed during the days of Rabbenu Tam, a sanction that may be employed when the court issues a judgment of “obligation” to divorce. Similarly, the formulation of the rule in R. Moses Isserles’ glosses on the Shulhan Arukh implies that Rabbenu Tam’s harhakot may be employed when the enforcement level is that of “obligation” to divorce.71 69 70

Sefer Hayashar, Responsa, #24. See also Responsa Maharik, #102, #135. Mordekhai, Ketubot, #204. Cf. R. Mordekhai Jaffe, Levush, Habutz Vehaargaman, Laws concerning Divorce, 134. 71 Some argue that the responsum in which Rabbenu Tam’s harhakot are first mentioned implies that the harhakot may be imposed even when there is no obligation to divorce. Rather, they may be imposed whenever, in the opinion of the rabbinical authorities, the welfare of Jewish women demands that their emotional distress be addressed by imposing these sanctions. Beeri (Obligation, n. 17 above, 296–97) initially supported this view. At that stage in the evolution of his thinking, he argued that if the halakhic basis for implementing Rabbenu Tam’s harhakot is the husband’s

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In his sixteenth-century codification of Jewish law, the Shulhan Arukh, R. Joseph Caro writes: Wherever they [the early sources] said yotzi (“he must divorce her”), the husband is compelled, even with whips, to divorce his wife. But some say that anyone about whom the Talmud did not state explicitly kofin lehotzi (“he is obligation to divorce his wife, the crucial point is missing from the responsum in which Rabbenu Tam mentions the harhakot. He should have written, that, regarding the case under discussion, “they compel him [to divorce his wife] with words,” the formulation that is usually found in the medieval responsa dealing with the obligation to divorce, and he should have noted that the husband is obligated to divorce his wife. Beeri argued that Rabbenu Tam’s measures, “more than they are based on the husband’s legal obligation to divorce his wife, are based on the welfare of the Jewish woman, or in the words of the author of the Levush [R. Mordekhai Jaffe]: ‘if the court sees that the woman’s welfare may be improved thereby.’ ” In his opinion, at this point, he felt that the halakhic basis for the harhakot was the woman’s distress: “Even those who are stringent about coercion and are worried about an unlawfully enforced get, recognize that consideration must be given to a woman who is filled with feelings of hate and revulsion for her husband. There is no disputing that ‘she is not like a captive who must have sexual relations with a person whom she hates.’ However, this does not suffice . . . as grounds to ‘compel’ [the highest level of enforcement] the husband to divorce his wife.” However, in a later article (“Legal means,” n. 57 above, 68–70), Beeri wrote that the wording and placement of R. Moses Isserles’ gloss on SA, EH 154:21, clearly imply that the harhakot may only be executed against the husband in a case where he is “obligated” by law to divorce his wife. In such a case, even though the husband has the status of a “sinner,” a ruling of “compelled” divorce may not be issued against him, due to the halakhic dispute over whether, under these circumstances, the law permits the use of measures that are permitted in cases of “compelled” divorce. However, it is permitted to impose on him the real — and effective — pressure that results from implementation of the harhakot. Since the husband is obligated to divorce his wife, his disregard for the court’s binding ruling, which turns him into a “sinner,” serves as a firm basis for the court’s action obligating the community to distance itself from the sinning husband. But in cases where the court does not think that the woman’s claim justifies obligating the husband to grant her a divorce, it will not impose the harhakot on him, even if it is convinced that, given the circumstances, the couple should indeed divorce on account of their irreparable incompatibility. In the later article, Beeri maintained that R. Moses Isserles deflected Rabbenu Tam’s rule from its original purpose. The law had originally been intended to help any woman who hated her husband, and who, without imposition of the harhakot, would be left with no recourse. The normative

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compelled to divorce his wife”), but only yotzi veyiten ketuba (“he must divorce her and pay her ketuba”), may not be compelled with whips to divorce his wife, but rather, we say to him: ‘The Sages have obligated you to divorce your wife, and if you do not do so, it will be permissible to call you a sinner.’ ”72

In his glosses on R. Joseph Caro’s remark, R. Moses Isserles writes: Since there is a dispute among the Sages [about whether or not divorce is “compelled” when the sources say “yotzi”], it is proper to rule stringently, and not to compel with whips, so that the get will not be enforced in an unlawful manner.73 But if his wife is forbidden to him, all agree that he may be compelled with whips. And wherever we may not compel with whips [because the enforcement level is not that of “compelled” divorce, which justifies the use of such harsh means against the husband], we also may not put him under a ban (nidui).74 Nevertheless, they may decree on all persons who are members of the nation of Israel not to grant him any benefit, nor to do business with him,75 nor to circumcise his son, nor to bury him, until he gives [her] a writ of divorce.76 The court may impose any stringency like this [any indirect sanction of withholding benefit] that it desires, provided it does not put him under a ban.77

There were halakhic authorities who were inclined to restrict the possibility of imposing this sanction, which they considered harsh, on the recalcitrant husband. Sometimes they argued that whenever divorce cannot be “compelled,” the harhakot cannot be imposed.78 In adopting this

72 73 74 75 76 77 78

law today is that which finds expression in the gloss of R. Moses Isserles. According to R. Moses Isserles, application of the law authorizing harhakot is only possible in a limited number of cases, namely, those in which the husband is “obligated” to divorce his wife. In Beeri’s opinion, imposing the harhakot only when the husband violates a binding ruling of the court that he must divorce his wife unquestionably strengthens the halakhic basis for the imposition of harhakot. SA, EH 154:21. See Tur, EH 154, quoting the view of R. Asher b. Yehiel. See Mordekhai, Ketubot, #204. See responsum attributed to Rabbenu Tam, Sefer Hayashar, Responsa, #24. See too Responsa Maharik, #102, #135. See Responsa Binyamin Zeev, #88. Hagahot Harema, EH 154:21. R. Joseph b. Lev initially held that the sanction of harhaka is harsh, and should not be used in situations where the husband is not “compelled” to divorce his wife: “Harhaka is more difficult for them than nidui. If nidui is regarded as unlawful coercion, all the more so harhaka.” See n. 80 below.

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view, their primary consideration was the opinion that in actual practice the harhakot could constitute a harsher sanction than nidui, or at least one of equal harshness. Indeed, on the view of R. Joseph b. Lev, initially, the only justified halakhic policy is one that permits the use of Rabbenu Tam’s harhakot only in situations where divorce may be “compelled.”79 However, at the concluding stage of his halakhic deliberation, R. Joseph b. Lev inclined — in circumstances where, in his opinion, implementation of the harhakot was justified — toward leniency in the imposition of the harhakot, and was ready to consider the possibility of applying them even where by law divorce could not be “compelled,” provided that he was joined by several other sages of his generation. R. Joseph b. Lev wrote: “Regarding the imposition of Rabbenu Tam’s harhakot, even though we have given reasons to be stringent, I am nonetheless inclined to be lenient. If some of the generation’s halakhic authorities and sages agree to impose Rabbenu Tam’s harhakot in a case like ours, I will concur along with them.” Thus, in certain circumstances,80 he was ready to rule that it was possible to impose Rabbenu Tam’s harhakot when divorce cannot be “compelled.”81 In the responsa literature of recent generations, the view of R. Joseph b. Lev is sometimes mentioned by rabbis who are not sure that the implementation of the harhakot is permitted.82 The isolated party’s decision to remain in his place of residence does not necessarily mean that he tacitly agrees to be placed in a difficult situation, similar to that of a banned or excommunicated party,83 and in some

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80 81 82 83

One halakhic authority, R. Menahem Mendel Schneerson, has argued that the need to move to another community must be considered a severe blow to the recalcitrant husband, which significantly infringes upon his free will to divorce, in much the same manner as does banning, nidui. Thus, the harhakot may only be imposed in those circumstances where banning is permitted, that is, in cases of “compelled” divorce; see New Responsa Tzemah Tzedek, EH #264. Regarding the policy of restricted use of Rabbenu Tam’s harhakot, see also Seder Eliahu Rabbah, #13. See Responsa Mahari b. Lev, 2, #18; see also Gvurat Anashim, #72. See Responsa Mahari b. Lev, 2, #79 (at the end). See R. Ovadiah Yosef, Responsa Yabia Omer, 7, EH #23; 8, EH #25. See also Beeri, n. 57 above, 89. On the status of the excommunicated and banned (muhram and menude), see Encyclopedia Talmudit, vol. 17, “herem.”; G. Libson, “The ban and those under it: Tannaitic and Amoraic perspectives” (Hebrew), 6–7 Shenaton Hamishpat Haivri (1979/80), 177, 184–96.

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situations an even more difficult situation than theirs: “In the closed and restricted Jewish community in the period of Rabbenu Tam, such harhakot meant isolation from the real world, and the husband’s removal from the realm of law and society. He became like an isolated cell.”84 Nevertheless, in the responsa literature of recent generations, there are those who maintain that the strong pressure applied to the husband by way of Rabbenu Tam’s harhakot does not diminish his free will. R. Herzog argues that if the husband agrees to divorce his wife after these measures are applied to him, this means that he is not sufficiently attached to his wife, and that in the end the get is given of his free will: “It is not so harsh that he would divorce his wife if he was deeply attached to her, and if he divorces her, he is not regarded as having acted under duress.”85 According to R. Herzog, the imposition of Rabbenu Tam’s harhakot is permitted when the halakhic authorities have considered the circumstances and concluded that “in order to fulfill his duty to God, it is a mitzva for [the husband] to divorce [his wife],” so that she not remain an aguna, that is, bound to her husband in an undesirable marriage. These were the circumstances, according to R. Herzog, in a case that came before him: “A woman claimed that she found her husband repulsive, and it was the opinion of the court, after clarifying the matter, that her claim had a strong foundation.” R. Herzog decided as follows: In any event, it was fitting to force [the husband] with words, for by rights he is obligated to divorce her. According to Rabbenu Tam . . . they may in any event force him with words, and also with the harhakot, which are much more [severe] than words. This applies when it is clear to the court that the law is that he should divorce her, and not chain her to him and cause her to suffer for no purpose.86

As stated earlier, the category of divorce that is a mitzva, and that of recommended divorce, in the sense found in the halakhic literature of recent generations, are not found in the halakhic literature of the Middle Ages.87 Therefore, no consideration is given in that literature to

84 Weinrot, n. 17 above, 432. 85 Responsa Heikhal Yitzhak, EH 1, #1. 86 See Herzog, “Apprehensions,” n. 24 above, 17; ibid., EH 1, #3. 87 See text at nn. 3 above, 193 below.

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the imposition of Rabbenu Tam’s harhakot at levels of enforcement lower than that of obligation to divorce. Because of the fear that the get will not be free of the taint of unlawful enforcement, in contemporary rulings of rabbinical courts in Israel, the judges do not use these measures to uphold a divorce judgment when the enforcement level does not exceed that of mitzva or recommended divorce. In practice, the rabbinical courts in Israel have imposed Rabbenu Tam’s harhakot in circumstances where divorce could not be “compelled,” but a ruling was issued that the husband is obligated to divorce his wife.88 d

Imprisonment as Punishment for Serious Crimes

Due to the importance attached to the liberty of the individual in Jewish law, particularly in the early periods, Jewish law did not generally approve of imprisonment or detention, whether for the purpose of inquiry, as a means to compel compliance, or as punishment. In the past, imprisonment was used in the Jewish legal system as a punishment for serious crimes as a last resort, when there was no other choice. A punishment of imprisonment until death existed: “If someone was flogged, and then repeated his offense, the court confines him to a cell, and feeds him barley until his stomach bursts. If someone killed another person, but there were no witnesses, they confine him to a cell, and feed him the bread of adversity and water of affliction.”89 This was a punitive sanction imposed in especially serious cases: it was only used when the offender had committed murder or manslaughter.90 In addition, imprisonment as an exceptional punishment could be imposed as an emergency ruling when extraordinary measures to combat criminal

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This has been the policy in numerous unpublished cases; see my forthcoming Hebrew article in Bar-Ilan Law Studies. See too the ruling cited by Beeri, n. 57 above, 93–95; Responsa Yabia Omer, 7, EH #23; 8, EH #25; Responsa Tzitz Eliezer, 17, #51. See also the ruling issued by the Rabbinical Court associated with Kehilat Mahzikei Hadat in Antwerp (and later confirmed by R. Nissim Karelitz, head of a rabbinical court in Bnei Brak), cited in Beeri, 95 n. 99. 89 mSanhedrin 9:5. 90 See Dvar Hamishpat, n. 7 above, 24:4–10, 186; Ase Lekha Rav, #57, 303; Mayim Hayim, #78, 268. See also L.I. Kaminer, “The punishment of imprisonment in Jewish law,” 9 Tehumin (1988), 147–49.

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behavior became necessary: “Whence do we know that we may put [offenders] in stocks, and imprison, and impose confinement? For the verse states: ‘[Let judgment with diligence be imposed upon him], whether it be for death, or for banishment, or for confiscation of goods, or for imprisonment’ (Ezra 7:26).”91 Maimonides mentioned these and other extraordinary punishments in his Mishne Torah. Yet he emphasized that a judge who imposes such a punishment must recognize the importance of human dignity, which includes the right to walk about as a free man: “And in every way his actions should be for the sake of Heaven, and human dignity should not be taken lightly in his eyes.”92 e

Imprisonment and Non-release from Imprisonment for the Purpose of Enforcing a Divorce Judgment

i

Imprisonment

In the early sources, imprisonment for the purpose of enforcing a divorce judgment is mentioned occasionally: A mourner on the day of the death of his relative, someone who is digging among debris [not knowing with certainty that a corpse is buried there], someone who has been promised to be released from prison, and a sick or elderly person who can eat an olive-sized portion [of the Paschal offering] — [regarding each of these people,] they slaughter [the Paschal offering] for them [along with the rest of those invited to eat the Paschal offering in company]. Regarding all of these people, they do not slaughter [the Paschal offering] for them alone, lest they bring the Paschal offering to disqualification.93

In the discussion in the Babylonian Talmud it is stated: “Rabbah bar Huna said in the name of R. Johanan: This only applies to a Gentile 91 92

bMoed Katan 16a. See Code, Laws concerning the Sanhedrin 24:9–10. Following Ezra 7:26, which mentions, among other things, “imprisonment,” Maimonides wrote that imprisonment is one of the measures available to a Jewish judge. However, he mentioned imprisonment in the chapter in which he recorded the punitive measures available to the court in extraordinary circumstances. It might be argued that the rule that “he may bind his arms and legs, and put him in prison” (Laws concerning the Sanhedrin 25:7) also applies only in special circumstances, and that these measures should not be used as a matter of course. 93 mPesahim 8:6.

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prison, but in the case of a Jewish prison, they slaughter for them alone.”94 R. Solomon Yitzhaki (Rashi) explains that “a Jewish prison” is designated to serve, among other things, as a coercive measure against a husband who is obligated to divorce his wife. He is imprisoned in an attempt to extract his consent to give a get: A Jewish prison — for example, to compel [a husband] to divorce a woman who is disqualified [from marrying him], or to pay money. Or else, as it was taught in a baraita: “If he gets up [on his feet] and walks outside, etc.”95 — But would it occur to you that this one walks in the marketplace and that one is killed? Rather, it teaches [us] that we imprison him, until we see what will happen to him.96

According to Rashi, imprisonment was used as a means of compelling a husband to grant a divorce, and also as a means of compelling payment of certain monetary debts, and as an interim measure during the course of deliberations in capital cases. Rashi mentioned a case of “compelled” divorce. Moreover, it is not an ordinary case of divorce, but one where the intention is “to compel [the husband] to divorce a woman who is disqualified [from marrying him].” It is possible that Rashi maintains that only in these special circumstances, when the husband and wife should end their undesirable relationship, is it permissible to impose upon the recalcitrant husband the harsh measure of imprisonment, but not necessarily in every case of “compelled” divorce. However, he does not state explicitly that this is his opinion. This possible interpretation of Rashi — that only in exceptional cases should a Jewish prison be used to persuade a husband to give his wife a get — accords well with real-life conditions in the Jewish communities of the Middle Ages. Jewish prisons did not ordinarily exist in that period. In the course of the centuries when Jews lived in the Diaspora, they generally made use of Gentiles who exercised coercive

94 95

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bPesahim 91a. See Mekhilta deRabbi Yishmael, Mishpatim, 6; Mekhilta deRabbi Shimon bar Yohai, 21:19; Sifre Deuteronomy, 237; Tosefta, Baba Kama 9:7; bKetubot 33b; bSanhedrin 78b; jKetubot 4:4; jNazir 9:5; jSanhedrin 8:8; 9:3. Rashi on bPesahim 91a s.v. beit haasurin shel yisrael. However, in his commentary on Ezra 7:26 s.v. veleesurin, Rashi explains: “to afflict him with suffering”; the punishment of imprisonment is not mentioned. See also Elon, Freedom, n. 1 above, 187; Kaminer, n. 90 above, 140–41.

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measures, such as imprisonment in a Gentile prison,97 to convince the recalcitrant husband to divorce his wife. Imprisonment of a husband or wife who refuses to give or receive a divorce, the aim of which is the granting of a get, or its acceptance, is a direct sanction. Hence many medieval halakhic authorities maintained that when the enforcement level is lower than that of “compelled” divorce, this sanction may not be used. So ruled, among others in the Middle Ages, R. Joseph Colon, who discusses the case of a man who had been imprisoned in order to compel him to divorce his wife, and was later released. It was not a case in which the husband could be “compelled” to give his wife a divorce. Afterwards, he agreed to divorce his wife, because, among other things, he feared being sent back to jail. R. Joseph Colon ruled that the get was invalid, because it was flawed by duress.98 He writes: And all the more so in the case of the stringent prohibition of a married woman, regarding which it is fitting to rule in a stringent manner . . . for 97

The responsa literature indicates that until recently, a recalcitrant husband was usually not imprisoned in a Jewish prison. Over the many generations when imprisonment or the threat of imprisonment is mentioned in the responsa literature as a sanction to be used against the recalcitrant husband, the reference is to imprisonment in a Gentile prison. See, among other sources, Responsa Maharik, #63; Cohen, n. 16 above, 11–12; Responsa Mabit, 1, #76. See, however, Kerem Hemed, 2, p. 6b, takana 34 of the takanot (enactments) passed in 1512 by the community of exiles from Castille in Fez. These enactments might reflect an exception to the rule. Included among them is a drastic course of action that may be taken against a man who betroths a woman in a manner that violates the enactment requiring that every betrothal take place in the presence of at least ten people. The betrothal itself is valid, but severe sanctions may be used to force the husband to divorce his wife: “Besides the punishment that they will receive, involving lashes, afflictions, and imprisonment . . . he will remain in prison until he gives his betrothed bride a valid get, and he will not be set free for the Sabbath or for holidays.” The mention of the Sabbath and holidays suggests that this imprisonment might possibly be in a jail belonging to the local Jewish community. Even so, this would be an exception that does not reflect the usual situation. Due to the gravity of the husband’s conduct in this case — according to an earlier enactment from 1494, the betrothal in such a case is declared invalid — the halakhic authorities were ready to imprison him so that he would give his wife a get. See also Elon, Jewish Law, n. 8 above, 704–05. 98 Responsa Maharik, #63. See also Responsa R. Bezalel Ashkenazi, #15; Responsa Maharalbah, #124; Responsa Raahna, #63.

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YEHIEL S. KAPLAN certainly the original presumption [that the husband did not grant the get willingly] stands until it is proven that the matter has changed, that is to say, that the authority [who had had him imprisoned] is no longer in a position to apply duress as [he was] before. In that case there is no reason to assume that he acted as a result of the original duress.

In the same vein as the opinion that emerges from the writings of this authority, who belongs to the Ashkenazic school of halakhic decisionmaking in the Middle Ages, are the writings of three thirteenth and fourteenth century authorities who belong to the Spanish school— R. Solomon b. Adret (Rashba), R. Asher b. Yehiel (Rosh), and R. Isaac b. Sheshet (Ribash), all of whom mention that imprisonment was used in order to compel a husband to grant his wife a divorce or halitza.99 Their writings imply that this measure was only used in appropriate circumstances, where the cause for divorce justified the use of coercive measures permitted only at the highest enforcement level, that is, in cases of “compelled” divorce. A thirteenth-century responsum by Rashba implies that a distinction must be made between measures that may be activated in ordinary cases and harsh measures permitted only in cases where use of such measures is warranted. Rashba authorized the use of a “herem of imprisonment,” that is, he allowed the employment of the harsh measure of imprisonment, to bring an end to an unfit marriage. According to Rashba, this herem applies in a case where “someone seized an Ishmaelite (Gentile) girl and converted her, and then he betrothed her, and he is with her without a ketuba.”100 In such a case, due to the circumstances — the husband took as a wife a woman whom he should not have married, and living with her without a ketuba is forbidden — the law is that the husband may be “compelled” to divorce his wife. In the fourteenth century, in one of his responsa Ribash mentions exceptional punitive measures, including imprisonment, that may be

99

Sometimes these authorities spoke in vague terms, without offering detailed explanations. Imprisonment was used to force a levir to grant his brother’s widow halitza, or to force a husband to give his wife a get. These matters were mentioned as facts, without entering into any discussion about the halakhic basis for the imprisonment. See Responsa Rosh, 52, #8; Responsa Ribash, #348. 100 Responsa Rashba, 5, #242. See also Elon, Freedom, n. 1 above, 187.

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imposed on a sinner: “Regarding a kohen who remarried his divorced wife [a prohibited marriage], if you are unable to beat him and force him in that manner, and not even by way of [enforcement by] Gentiles, impose upon him different coercive measures, either imprisoning him, or putting him under a ban, or putting him in confinement.”101 Recourse to such measures is probably the exception; they may only have been imposed in unusual circumstances, such as those found in the case discussed by Ribash: the marriage of a kohen and his divorced wife is forbidden, and should such a marriage take place, its continuation must be prevented, in the same way that any other violation of the law must be prevented.102 As for cases in which the circumstances are not exceptional or unusual, in a different responsum Rashba discusses the question of when imprisonment, or the threat of imprisonment, may be employed for the purpose of compelling a husband to give his wife a get. He discusses the validity of a get that a husband gave out of fear he would be imprisoned. The husband agreed to divorce his wife, because he feared he would be “incarcerated in chains” if he failed to do so, or else “thugs” (pritzim), acting on behalf of his wife, would attack him. In the past, these thugs had threatened that if he refused to give a get “they would kill him.”And indeed “they tried to kill him, but he escaped,

101 Responsa Ribash, #348. Ribash relies on the talmudic passage in bJebamot 60b: “He said to him: ‘Go divorce her, and if not, I will force you to divorce her’ ”; and on Rashi’s commentary ad loc. s.v. mafikna lekha: “I will put you under nidui, and you will divorce her against your will.” See also Elon, ibid., 188. Elsewhere (Responsa Ribash, #508), Ribash dealt with a case where the wife’s uncle had acted improperly, bringing about the woman’s marriage against the court’s wishes. Ribash ruled that the uncle be incarcerated, so that the husband and wife could be persuaded to end their unfit marriage with divorce. On the principle that “the court may impose flogging and punishment not prescribed by Torah law,” see Jewish Law, n. 8 above, 421–25; 515–19. See also bSanhedrin 46a; bJebamot 90b; bMoed Katan 16a; Code, Laws concerning the Sanhedrin 24:7–9. 102 When another solution exists, for example, if the husband separates from his wife, and avoids secluding himself with her, no compulsion is used unless the husband is “one of those who may be compelled to divorce” — Tashbetz, 2, #22.

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after having been badly beaten.”103 Rashba ruled the get invalid, because it was tainted with duress: “Whenever they are able to coerce him, and they have threatened to coerce him, he is regarded as having been coerced, for regarding the case where ‘they suspended [tortured] him, and he agreed to sell,’104 he does not have to wait until he is [actually so] suspended.” That is to say, the very fact that the husband could be imprisoned constitutes a threat to him. He acts due to the threat that he will be imprisoned if he does not divorce his wife, and therefore is regarded as one who is forced to perform as act (anus), and does not act of his own free will; the get that he gave her therefore has no validity. Similarly, R. Shimon b. Tzemah Duran (Rashbatz) writes: “Not only when they have actually beaten him, but once they threaten to beat him, and they are able to do so, it is considered duress.” A number of Rashbatz’s contemporaries, who addressed the same issue, expressed a similar opinion. In the same vein, R. Hisdai Crescas writes: “If Gentiles prevented him from leaving town until the judges were selected, even though they later allowed him [to leave] — whenever it is in their power to stop him, it is considered absolute duress, for we say that he acted out of fear.”105 R. Johanan b. Mattathias writes: “He continues to be considered an anus, as long as he had been coerced once before about the matter, and the person who coerced him the first time

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At first, the husband refused to give a get of his own free will: “For at the time of the get, the court threatened that if he did not divorce his wife, they would lock him in chains.” Eventually the husband gave a get, but declared that he was divorcing his wife under duress: “Due to their threats, he ordered that a get be written and signed, and he said: ‘I am ordering the get to be written on account of threats.’ And they said to him: ‘Do not say that. Rather, order the get of your own free will, and not because of the duress.’ ” In the end, the husband agreed to divorce his wife of his own free will: “And then he said: ‘I am ordering the get of my own accord.’ ” Rashba was asked whether a get given under those circumstances should be considered a get that had been unlawfully enforced. See Responsa Rashba, 2, #276. See also Freedom, n. 1 above, 187. Cf. Responsa Rashba, 1, #577. On the disqualification of a get given under duress, see also Responsa Rashba, 4, #40. On a get given out of fear on the husband’s part that he would be imprisoned or put to death if he did not divorce his wife, see Responsa Mahari Berav, #40; Responsa Mahari b. Lev, 2, #77; Responsa Kedushat Beit Yisrael, #38; Responsa Shem Aryei, #93–94. See also bBaba Batra 48a. 104 bBaba Batra 48a. 105 New Responsa Ribash, #27.

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was always able to coerce him again if he did not comply with his request.”106 Many authorities accepted this opinion.107 Only in a case of “compelled” divorce is a direct coercive measure like this permitted. According to Rashba’s above-mentioned responsum, the get in the case brought before him was invalid, among other reasons, because there was no cause for divorce that allowed for compulsion, so the get was enforced in an unlawful manner.108 But had there been a cause for divorce that allowed for compulsion, threatening imprisonment in order to pressure the husband to give a get would have been permitted. Rashba writes, in conclusion, that since the woman is a rebellious wife, if the common practice in the place where the husband was threatened with imprisonment is to follow the halakhic rulings of Maimonides, who maintained that divorce is “compelled” when a woman claims that she finds her husband repulsive,109 we may rely on that practice, because it is also halakhically justified to compel divorce in light of the Geonic enactment according to which divorce is “compelled” in such a case.110 Rashba held that whenever 106 Ibid., #32. 107 Regarding the apprehension that the get will be considered to have been unlawfully enforced if the husband was threatened that his failure to divorce his wife would result in his being harmed, see, among other sources, Responsa Maharik, #63; Responsa Radbaz, 5, #2095; Pithei Teshuva, EH 134, #15. The halakhic authorities were generally of the opinion that such a threat infringed on the husband’s free will, and raised the concern that any get given in consequence of such a threat must be considered unlawfully enforced. For decisions on the matter handed down in recent generations, see, among other sources, Responsa Mayim Tehorim, #15; Responsa Shem Aryei, #93–94; Responsa Kedushat Beit Yisrael, #38. 108 On the validity of a get given in a case where there are no grounds justifying a ruling of “compelled” divorce, but the husband was imprisoned nonetheless, see Responsa Ritba ( Jerusalem: 1959), #13. See also “Freedom,” n. 1 above, 187. 109 See Code, Laws concerning Marriage 14:8; Laws concerning Levirate Marriage and Halitza 2:10; Obligation, n. 17 above, 280–82. 110 See Geonic Responsa, Shaarei Tzedek, part 4, gate 4, #15; Geonic Responsa, Hemda Genuza, #140; Otzar Hageonim, Ketubot, p. 191, #478; Jewish Law, n. 8 above, 541–46; Beeri, ibid., 224–28; and sources cited in n. 18 above. Rashba is indeed of the opinion that the husband is not generally “compelled” to give his wife a get when she rebels and claims that she finds her husband repulsive. See Responsa Rashba, 1, #1192; Responsa Rashba attributed to Nachmanides, #38. However, following Maimonides and the Geonic enactment mentioned above, he rules: “And in places where they are accustomed to follow them, we do not have the authority to disagree with them or disregard what they had to say.”

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there is a halakhic basis for the highest enforcement level, that is, for a “compelled” get, the divorce judgment may be enforced by way of imprisonment or threat of imprisonment. At the beginning of the fourteenth century, the Rosh discussed whether or not imprisonment may be used to pressure a person to grant his brother’s widow halitza.111 He compared the law that applies in this case to that which applies to a husband who was lawfully compelled to give his wife a get, in which case the get is regarded as having been compelled in a lawful manner. It would appear that he compares coercion regarding halitza to coercion regarding divorce, when divorce may indeed be “compelled.” ii

Delaying Release from Prison

Over the centuries, when imprisonment of a recalcitrant husband has been mentioned in the halakhic literature, in most cases the husband had not originally been imprisoned for the purpose of enforcing a divorce judgment, but for some other reason. For example, the husband, or his father, had been imprisoned for a monetary debt, or because they had committed an offense that resulted in a jail sentence.112 According to the medieval authorities, delaying the recalcitrant husband’s release from prison in order to pressure him to give a get, when he had been imprisoned for some reason unrelated to the divorce, is permitted even when it is forbidden to impose imprisonment directly. The compulsion is of the sort referred to in the Ashkenazic halakhic literature as “withholding benefit.” In this context, “withholding benefit” is effected by delaying the release from prison of the husband or his relative, where he had been imprisoned for some other reason. Just as society grants benefits to each of its members, so too may it withhold such benefits from those who pose a threat or cause injury to

111 112

See Responsa Rosh, 52, #8. See Responsa Ribash, #127, #348; Tashbetz, 1, #1; Responsa Yakhin Uboaz, 2, #21; Cohen, n. 16 above, 11–12; 12–13; 13–14; Responsa Mabit, 1, #76; Responsa Maharalbah, #120; Responsa Bezalel Ashkenazi, #15; Responsa Mahari Berav, #40; I. Glickman, “Concerning one who puts himself in a situation of duress with regard to divorce” (Hebrew), Noam 3 (1960), 183.

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other members of that society, or from those who act in a manner deemed improper according to its social code. The action is not direct; the husband is not denied his liberty, nor does his body suffer any physical assault. In contrast, imprisonment of a husband who refuses to give a writ of divorce is a direct sanction. The ruling, according to which a passive measure — “withholding benefit” — does not diminish the validity of a get, is in line with the principal rationale of Rabbenu Tam’s harhakot.113 Rabbenu Tam, in his responsum, rules that delaying the release of a recalcitrant husband who has been imprisoned for some other reason is permitted for the purpose of attaining the desired goal — the granting of a get. This measure is permitted because it is an indirect measure, which is sometimes permitted, even when the direct measure of imprisonment is forbidden. R. Joseph Colon explained that Rabbenu Tam’s ruling in this case is based on the assumption that a passive measure, “withholding benefit,” is not considered duress, which disqualifies a get. He writes: Withholding benefits is not considered duress. And even though it is obvious to all that a person is always obligated to secure the release of his fellow Jew from captivity [the religious obligation to ransom captives], when he is able to do so [when he can afford to pay the ransom], even so, it is not considered duress when he withholds efforts [to release him — withholding benefit]; so too it is not considered duress when he withholds efforts [to seek the prisoner’s release].114

Similarly, he explains: “[The get] is not considered as [having been given under unlawful] duress, because they do nothing bad to him, but rather, they refrain from helping him.”115 Rabbenu Tam’s disciple, R. Yomtov of Joigny, also notes the distinction between a direct action and one that is indirect — withholding benefit.116 Parallel to this, a similar principle prevailed in the halakhic rulings of the Spanish and north African halakhic authorities of the fourteenth

113

114 115 116

See Hagahot Mordekhai, Gitin, #469; Responsa Maharik, #133, #166. On delaying release from prison, see also: Cohen, ibid., 13–14; Responsa Ribash, #127, #348; Tashbetz, 1, #1; Responsa Binyamin Zeev, #88. See Responsa Maharik, #166. Responsa Maharik, #133. See also Responsa Mabit, 1, #22; Responsa Darkhei Noam, EH #53; Responsa Sheerit Yosef, #16. See Responsa Binyamin Zeev, #88. See also “Legal Means,” n. 57 above, 85.

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and fifteenth centuries. R. Isaac b. Sheshet (Ribash) and R. Shimon b. Tzemach (Rashbatz) are inclined to recognize the validity of a get given under indirect duress, when there is no direct compulsion. A divorce cannot be compelled in a direct manner, but the husband can be compelled to do something that he is obligated by law to do, the indirect result of this compulsion being that he divorces his wife. Ribash concludes, from statements in one of the Rosh’s responsa,117 that when the halakhic authorities say to the husband, “Either do what you are obligated to do by law, or divorce your wife” — “this is not considered absolute coercion, but rather, they compel him to do that which he is obligated to do by law, and if he divorces his wife, he is exempt.” Therefore, he writes, we put him under nidui, or flog him until he agrees to cohabit with her. If he, of his own [free will], divorces her, in order to save himself from those [measures], it is not an unlawfully enforced get. For the court did not compel him at all to give the get, but rather, to fulfill his conjugal obligation to the best of his ability, just as he is obligated by law to fulfill the [other] commandments. It is as if he owed people money, and he was in jail for that debt, and his wife’s relatives said to him: ‘If you divorce your wife, we will repay your debt, and you will be released from prison,’ and he agreed and divorced her of his free will. Would anyone say that this is a coerced get, because he did it in order to be released from prison? No, for he was not put in prison so that he might divorce his wife, but rather for his debt, and the get is not unlawfully enforced, but rather given willingly.”118

In another responsum, Ribash discusses the case of a husband who betrothed a woman in a deceptive manner. In so doing he violated 117 118

See Responsa Rosh, 43, #13; Responsa Maharik, #166. Responsa Ribash, #127. According to Ribash, then, the court may force the husband to go back to his wife, just as she or her representative may prevent him from leaving town without her permission, so that he may cohabit with her, in accordance with the obligation that rests upon him by Jewish law. “And if he does not want to go back [to his house] in accordance with the court’s order, they may put him under a ban, just as they may put under a ban anyone who does not obey the law.” See also Responsa Bezalel Ashkenazi, #15; Hagahot Harema, EH 154:21; Glickman, n. 112 above, 178; J.D. Bleich, Contemporary Halakhic Problems (NY: 1983), vol. 2, 96; I. Breitowitz, Between Civil and Religious Law (Westport CT: 1993), 20–26. Cf. Responsa Ribash, #348. On the effect of duress inflicted on one of the husband’s relatives, e.g., his father, on the husband’s free will to grant a divorce, see also Tashbetz, 1, #1; Responsa Mahari b. Lev, 2, #77.

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a communal enactment forbidding a man to betroth a woman unless there are ten people present, and the local rabbi ruled that he be arrested for that transgression. The husband knew that if he agreed to divorce his wife he would be released from prison. The imprisonment had not been intended from the outset to serve as a means of pressuring him to give a divorce, but as a punishment for his having breached the enactment. Ribash considers, among other things, whether a get which the husband knows will secure his release from prison is considered an unlawfully enforced get. In his opinion, since the incarceration was not intended from the outset to cause him to give a get, the get is not considered to have been unlawfully enforced.119 The seventeenth-century authority, R. Mordekhai Halevi, noted the common denominator between the Ribash’s responsum and that of Rabbenu Tam, cited above, regarding someone who was in jail on account of unpaid taxes or some other matter unrelated to the get, and his release from prison was made conditional on his agreement to give a divorce. The recalcitrant husband is already in prison. A benefit — his release — is withheld from him. Since the measure is indirect, it is permitted.120 The same approach is evident in a responsum by the Rashbatz regarding a recalcitrant husband’s father who has been prevented from leaving a certain locale. In his opinion, this is not considered coercion that infringes upon his son’s free will. The son may decide to divorce his wife or not to divorce her. Rashbatz distinguished, among other things, between this prevention of the father’s leaving his place of residence, and imprisonment or flogging: “For even if they had prevented the husband himself from leaving, the way they had stopped his father, it would not be considered coercion, for they did not imprison him, nor did they beat him, and he could come and go as he pleased within the town, and also outside the town, provided that he did not change his place of residence.” Later he added an alternative argument explaining

119

120

See Responsa Ribash, #232. Nevertheless, since the husband had declared before others that he was being compelled to give a get, the responsist held that the get was invalid on account of duress. On this, see also Responsa Kedushat Beit Yisrael, #38; Responsa Heikhal Yitzhak, EH 1, #1; Glickman, ibid., 178, 181–82. See Responsa Darkhei Noam, EH #53.

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why the father’s being prevented from leaving, in the context of this case, is not considered duress: How can this husband be considered to have acted under duress [just] because his father was not allowed to leave that locale? First, they did not prevent him from leaving until his son divorced his wife, but until he appeared before the court. This prevention of his leaving was lawful, for by rights, if someone wishes to make his wife an aguna, or to cause her to become an aguna, he should be prevented from leaving until [the woman’s relatives] submit their claims before the [rabbinical court] judges.121

In other words, when a measure that is permitted by law is used, and as a result, pressure is brought to bear on the husband to divorce his wife, the get is not regarded as having been unlawfully enforced. The problem with imposing imprisonment or flogging in the case dealt with by Rashbatz arises from the fact that the case did not warrant a verdict that the husband is “compelled” to divorce his wife, and therefore the use of direct means of compulsion was forbidden. In another case, Rashbatz ruled that a certain get was not tainted by duress, even though the husband divorced his wife due to his fear of what the authorities would do. The get was valid, because the cause for divorce justified ruling that divorce could be “compelled”: “Even if he divorced his wife on account of fear, it is not an unlawfully enforced get, for by rights he can be compelled.”122 The approach of the Spanish and north African halakhic authorities was also accepted in the rulings of the halakhic authorities in the Ottoman Empire. Releasing the husband from a sanction that had not been imposed from the outset for the purpose of enforcing a divorce judgment, but for some other purpose, in exchange for his agreement to give a get, is mentioned in a responsum by R. Moses of Trani. A man had been put in jail and beaten. Representatives of the community and relatives of his wife offered to pay the money required for his release from jail, in return for which he agreed to give his wife a get. After the get was given, the husband claimed that it was invalid. R. Moses of Trani commented: “A get is only considered unlawfully enforced when [the husband] is coerced with regard to the divorce. But if he is coerced 121

Tashbetz, 1, #1. See also Beit Yosef, EH 134 s.v. harash bar tzemah; Responsa Maharashdam, EH #63; Glickman, n. 112 above, 180; Bleich, n. 118 above, 97; Breitowitz, n. 118 above, 26. 122 Tashbetz, 2, #69.

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with regard to a different matter, and in order to free himself from that coercion he divorces his wife, [the get] is not regarded as unlawfully enforced, provided that the coercion was justified.”123 R. Samuel of Modena also wrote that he accepted the guiding principle in Rashbatz’s responsum, namely: The husband is not coerced, neither physically nor financially. But his wife or others pressure another person, so that when the husband sees his relative or his son in distress, he [too] is distressed, and divorces his wife. Rashbatz wrote of this that it is not an unlawfully enforced get, for it is only considered coercion when [this measure] is applied [to the husband himself], whether physically or financially. . . . But if they coerced him regarding a different matter in an unjustified manner, and as a result of that coercion he divorced his wife, it might be considered an unlawfully enforced get.124

The principle that guided the Spanish and north African halakhic authorities, as well as those in the Ottoman Empire, is as follows: regarding the husband’s consent to divorce, sanctions that work in a direct manner differ from those that work indirectly. The assumption is that when the measure is indirect, as when a life preserver is withheld from a drowning person — and not direct, as when a person who cannot swim is cast into deep water — the get is not regarded as having been unlawfully enforced. This distinction between direct and indirect coercion is not free of halakhic uncertainties, particularly when heavy pressure, social or 123

Responsa Mabit, 1, #22. Moreover, argued R. Moses of Trani, since money was paid in exchange for the husband’s release from prison, and he agreed to the divorce, his consent was valid. This is similar to the case of a person who was tortured until he agreed to sell, where the sale is valid, despite the duress, according to the verdict of Rav Huna in the sugya in bBaba Batra 48a. See also another responsum by R. Moses of Trani, Responsa Mabit, 1, #76, on the matter of a husband against whom a monetary claim had been brought before a non-Jewish court, for which he was put in prison. Eventually, he agreed to divorce his wife. R. Moses of Trani ruled that the get was valid, because, among other reasons, in this particular case there were grounds for divorce that allowed for “compelling” the husband to give a get. There was no problem of duress, because the husband’s debt was waived in exchange for his consent to the divorce, and in exchange for that monetary benefit, he agreed to the divorce. 124 Responsa Maharashdam, EH #63.

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otherwise, is applied against the husband. He finds himself in a difficult situation, and sometimes can only extract himself from it by giving a get — an act he does not carry out of his own free will. Nevertheless, the distinction between a direct and an indirect measure is accepted by many halakhic authorities,125 including authorities of recent generations.126 In their opinion, whenever divorce may not be 125

126

In the past, the issue was discussed by R. Joseph b. Mordekhai Gershon Hakohen and by R. Judah Aszod. R. Joseph b. Mordekhai dealt with a husband who acted out of fear that if he did not so act he would not be released from prison. Following the ruling of R. Joseph Colon in his Responsa (#166), R. Joseph b. Mordekhai ruled that even though the husband acted after he was caused “damage and duress,” that duress did not infringe on his free will, “since there was no intention to do him evil, only to deprive him of benefit” — Responsa Sheerit Yosef, #16. R. Judah Aszod dealt with a husband who mistreated his wife, ran off to America, and left her without a solution to the problem of her status as a married woman. According to R. Aszod, since the husband failed to fulfill his marital obligations, he may be “compelled” to divorce her, even with lashes. Nevertheless, he ruled that the husband should not be compelled in a direct manner, but indirect coercion was permitted. The indirect coercion should be executed as follow: efforts should be made to have the husband arrested in the country in which he now resides, and to ensure that “they do not release him until he agrees to send his wife a get.” R. Aszod explained that even though the woman brings it about that her husband is put in jail, the imprisonment does not detract from the get’s validity, for it is regarded as “withholding benefit.” See Responsa Maharia (Yehuda Yaale), 3, #132. In recent generations, the distinction between direct and indirect coercion has been mentioned in a ruling by Dayan S. Daichovsky; see S. Daichovsky, “Compelling a get by way of recommendation to reduce a prison sentence by a third” (Hebrew), 1 Tehumin (1980), 248–249 [henceforth “Compelling a get”]. It is also mentioned in a responsum by R. Masud Mahadar, who deals with the case of a man who is ready to give his wife a get in order to remove a threat of imprisonment. A judge had told him that he was sentenced to twenty years in prison, but if he gave his wife a get, the document recording that sentence would “be made to disappear.” R. Masud mentions, among other things, the responsa of Rabbenu Tam, R. Joseph Colon, and R. Moses of Trani on non-release from prison (where the husband had been imprisoned for something unrelated), which is considered “withholding benefit.” He holds that if the recalcitrant husband had actually been sentenced to prison (for another reason), withholding benefit is permitted. But if the judge meant to intimidate him so that he would agree to divorce his wife, the get is regarded as having been unlawfully enforced, since “the intention [of the coercion] was [to bring about the] divorce” — Responsa Mayim Tehorim, #15.

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“compelled,” the husband may also not be put in jail, since the direct measure could cause the get to be regarded as having been enforced in an unlawful manner. 3

Enforced Get in Israeli Law

a

Rabbinical Courts Jurisdiction Law (Marriage and Divorce), 5713 — 1953, section 6

The legal arrangement that applied until 1995 regarding the enforcement of divorce judgments in Israel is set down in section 6 of the Rabbinical Courts Jurisdiction Law (Marriage and Divorce), 5713–1953 (henceforth Rabbinical Courts Jurisdiction Law).127 That section states: Where a Rabbinical Court, by final judgment, has ordered that a husband be compelled to grant his wife a letter of divorce or that a wife be compelled to accept a letter of divorce from her husband, a District Court may, upon expiration of six months from the day of the making of the order, on the application of the Attorney General, compel compliance with the order by imprisonment.

Halakhic authorities in Israel have discussed the halakhic basis for the arrangement set down in this law. Following the establishment of the State of Israel, when the possibility of passing a law allowing rabbinical courts to imprison someone who refuses to divorce his wife or to grant his brother’s widow halitza was raised, differences of opinion were expressed among the halakhic authorities. Some were concerned that the sanction of imprisonment might be too severe, and therefore liable to bring about the disqualification of the get or the halitza, because the husband, or relative in the case of halitza, would be acting under duress, and not of his own free will. Rabbis who sought a halakhic anchor for such an arrangement had to contend with the difficulty posed by the rulings of many important halakhic authorities, who over the course of many generations viewed imprisonment as a severe sanction inflicted on the individual’s body, similar, in effect, to flogging. In their opinion, there is no justification for imposing the sanction of imprisonment when there is any uncertainty as to whether the circumstances warrant “compelled” 127

Law Book of the State of Israel, 5713 — 1953, 165.

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divorce. R. Meshulam Ratta argued that legislation that would enable rabbinical courts to enforce divorce judgments by imprisonment is problematic.128 Among the rulings these authorities had to contend with was that of R. David b. Zimra (Radbaz). Dealing with the case of a husband “who beat his wife regularly, and constantly humiliated her,” Radbaz cited the 128

See Responsa Kol Mevaser, 1, #83. According to R. Meshulam Ratta, the imprisonment mentioned in Rashi’s commentary on bPesahim 91a s.v. beit haasurin shel yisrael, and in other places, is a “temporary imprisonment used to compel compliance or to keep the prisoner under guard.” Even the “confinement in a cell” (kipa) of certain murderers, which resembles life imprisonment from which the prisoner will never be released, is an exceptional measure that was only used in cases of murder, “and not for other capital offenses.” Similarly, R. Ratta argued — in light of what is stated in bMoed Katan 15a, “minalan deasrinan,” and what Maimonides wrote in the Code, Laws concerning the Sanhedrin 24:9 — that exile to a city of refuge, which resembles imprisonment, is also an exceptional temporary measure, used only in the case of unintentional murder. So too, R. Ratta argues, we should not rely on the “combining of uncertain points of law” suggested by the Gaon of Kovno, R. Isaac Elhanan Spektor, in his responsum (Responsa Ein Yitzhak, 2, #34, 5), for there he was dealing with a situation that was after the fact, where coercion had already been exercised and a get had already been given, whereas passing a law will bring about ab initio acts: “By passing a law we create a situation of sfeik sfeika with our own hands [that is, cause ourselves to enter into a situation where the halakhic permissibility rests on a conjunction of two uncertain points of law] . . . we have not rid ourselves of apprehension as to an unlawfully enforced get.” See also “Coercion,” n. 32 above, 175. According to Elon, it is not clear from R. Ratta’s ruling whether or not he rejects the possibility of imposing imprisonment even in a case where divorce or halitza may be “compelled.” Elon argues that it stands to reason that R. Ratta refers only to a case where by law the divorce may not be “compelled.” He emphasizes that in any event, it would appear from the writings of many prominent halakhic authorities, such as Rashi, Rashba, Rosh, and Ribash, that when divorce may be “compelled,” compulsion may be exercised by way of imprisonment. Regarding imprisonment, R. Ratta wrote: “And in general I am against giving rabbinical approval to a law that would allow imposing a set prison term of three or five years as a punishment, for we do not find something like that in our halakha, but only temporary imprisonment for the purpose of compelling compliance or keeping the imprisoned party in protective custody.” Elon notes that this is true with respect to early Jewish law, but since the fourteenth century, imprisonment has been recognized as a valid punitive measure in most Jewish communities, with the knowledge and approval of the halakhic authorities, and sometimes even at their initiative; see Freedom, n. 1 above, 188 n. 2.

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position of R. Simha of Speyer that in such a case divorce is “compelled.” But he noted that the early sources do not include the husband’s violent behavior toward his wife among the grounds for “compelled” divorce, and also that there are those who disagree with R. Simha of Speyer. Therefore, Radbaz ruled that divorce judgments should not be enforced by way of severe measures such as flogging: “Granted that coercion by way of words or by way of payment of the ketuba, or [imposition of] a penalty [is permitted]. But coercion by way of flogging, or by way of Gentiles — such a thing was never done.” Still, Radbaz maintains that the indirect use of severe measures, including imprisonment, is permitted: They may imprison [the husband] because he beat [his wife], and they should not mention to him at all that he should divorce his wife. If he stands up on his own [that is, decides to divorce his wife] on account of his punishment, and divorces her, this is not [a case of] duress, for he knowingly brought the duress upon himself. Let him not beat her, and he will not [have to] divorce her. But as for compelling him to give a divorce by way of nidui, or shamta, or some physical punishment — I do not see [a justification], nor do I agree [to it], and all the more so [if it is] by way of Gentiles.129

The Radbaz emphasized in another responsum as well that direct imprisonment of a recalcitrant spouse in a Gentile prison is regarded as a harsh coercive measure, equal in intensity to flogging: “There is no distinction between imprisonment and flogging, for they are both afflictions of the body. It is obvious. And all the more so, imprisonment at the hands of cruel Gentiles, who have no mercy.”130 Furthermore, one who is sent to prison becomes separated from his wife. Separation of this sort must be handled with caution, and is only permitted in special circumstances that justify resorting to this severe measure.131 129 See Responsa Radbaz, 4, #157 (1228). 130 Responsa Radbaz, 4, #108 (1180). In this responsum, Radbaz writes that in his day, non-Jews had a harsh attitude to prisoners, making them feel “like a bison in a net.” The expression refers to a bison caught in a hunting trap; see Isaiah 51:20, and the interpretation of the Sages in bBaba Kama 117a. 131 R. Aryeh Leib Haft writes in Responsa Divrei Taam, #128: “They do not separate him from his wife. ... In my opinion, Rabbenu Tam did not allow such separation, for that is real coercion, for we steal his wife from him. It is also illogical to coerce him in this manner, by separating him from his wife, and stealing conjugal rights from him, and forcing him not to fulfill his conjugal obligations, which are imposed on him by Torah law, according to most halakhic authorities. This is beside the fact that [separating him from his wife] raises the fear of an unlawfully enforced get . . . for they [the Rabbis] do not compel [divorce] with conjugal or monetary obligations.”

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Yet many halakhic scholars of recent generations maintain that when imprisonment is appropriately imposed, there need be no apprehension that the get will be regarded as having been unlawfully enforced. R. Herzog maintained that when a rabbinical court rules that a husband should be “compelled” to divorce his wife, imprisonment may be used as a means of forcing the husband to comply. He held that to avoid any apprehension that imprisonment will be imposed on a person who cannot be “compelled” to divorce his wife, it is important that it be possible to appeal the ruling of the lower rabbinical court to the high rabbinical court. That court can, among other things, overturn the ruling that the husband is “compelled” to give a divorce if it finds that the grounds for divorce do not justify such a ruling. R. Herzog also maintained that it is important that in its ruling the court write explicitly that “the husband should be compelled by way of imprisonment.” In his opinion, were it written in a general way that the husband “should be compelled,” there would be a possibility that the court meant that the husband should be compelled to divorce by ordering a substantial amount of maintenance to be paid to the wife.132 According to R. Herzog, it would appear from analysis of the responsa literature that the determining factor is the degree of pressure that the coercive measure exerts upon the recalcitrant spouse. If the prison conditions are such that they do not exert excessive pressure on the husband to give his wife a divorce, there is room for imposition of imprisonment.133 As stated above, in the past, Jewish courts did not usually imprison Jews, including recalcitrant spouses, in a Jewish prison. But circumstances have changed in recent generations; the number of women denied a get has risen, and the conditions of life in a permissive society have made it more possible, and acceptable, in certain segments of

132

See his letter dated the week the Matot-Mase Torah portion was read in the synagogue, in 5713 (1953), cited in “Coercion,” n. 32 above, 174–75. 133 See Responsa Heikhal Yitzhak, EH 1, #1. See also #2: “Not every imposition of a sum [of money] constitutes absolute duress. . . . Since the monetary payment does not seriously diminish his livelihood, it shows that he is not as closely attached to his wife as he claims he is, and the get is valid. It is not an unlawfully enforced get unless they impose upon him something that is not in his power to bear, such as physical torture, or a huge sum that will destroy him.”

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society, for such women to choose to live with new partners before being released from their marital bond. More effective solutions to the problem of the husband’s refusal to give a get became necessary, so the utilization of imprisonment as a sanction against the recalcitrant spouse was permitted. In one of the rulings of a rabbinical court in Israel, the judges (dayanim) took into account, among other things, the fact that prison conditions are not as harsh today as they used to be in times past. R. Ovadiah Yosef writes: “And all the more so regarding the coercion that is used today, which is not coercion with whips, but rather, sitting in prison. There is no comparison between [the conditions in] the prisons of our day and those of early times.”134 As a direct consequence of this new reality, the rabbinical court, given its authority to do so under Israeli law, ordered the recalcitrant husband imprisoned. Following the precedents in the halakhic literature, R. Shear Yashuv Cohen, present head of the Haifa District Rabbinical Court, asserted: The coercive measure that stands at our disposal in the State of Israel is imprisonment. Even those who oppose coercing with whips would agree to coerce with imprisonment. Rashi explained that Jewish prisons are used ‘to compel [a husband] to divorce a woman who is disqualified [from marrying him].’135 R. Ovadiah Yosef has noted: ‘There is no comparison between the prisons of our day and those of early times.’ In his letter to the rabbis and dayanim of Israel from the fifth of Av, 5713 [1953], R.I.H. Herzog, of blessed memory, accepted the proposal that [recalcitrant parties be] compelled by way of imprisonment.136

Similarly, R. Saul Yisraeli writes that imprisonment in an Israeli jail in our day is less harsh than the imprisonment of a recalcitrant spouse mentioned in the early halakhic literature.137

134

Responsa Yabia Omer, 3, EH #20. See also #18–19, where discussion of the subject begins. 135 Rashi on bPesahim 91a s.v. beit haasurin shel yisrael. 136 S. Cohen, “Compelling a get at present” (Hebrew), 11 Tehumin (1990), 195, 201. On the validity of a get given by a recalcitrant husband after having been put in prison, see also M. Silberg, Personal Status in Israel (Hebrew), ( Jerusalem: 1965), 125–26; Elinson, “Refusal to give a get” (Hebrew), 69 Sinai (1971), 135–36. 137 See Mishpetei Shaul (Jerusalem: 1997), 236.

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b

Deficiencies of the Rabbinical Courts Jurisdiction Law, section 6

i

The Remedy is not Speedy

Much time elapses from the time divorce proceedings begin until the court, “by final judgment, has ordered that a husband be compelled to grant his wife a letter of divorce or that a wife be compelled to accept a letter of divorce from her husband.”138 In general, only after the final date of appeal has passed, or after the appeal has been rejected by the Supreme Rabbinical Court of Appeals, is it possible to compel a recalcitrant spouse to give or accept a get by way of imprisonment.139 Even after a final judgment has been handed down, and assuming that the recalcitrant spouse remains steadfast in his or her refusal to give or accept the get, the partner who is refused the get must wait an additional period of time. This delay stems from the fact that in section 6 of the Rabbinical Courts Jurisdiction Law, the Israeli legislator revealed a clear intention not to let the matter of compelling a get rest solely in the hands of the rabbinical courts.140 The Israeli legislator did not authorize the rabbinical court to impose the sanction by itself. The rabbinical court was authorized to determine that Jewish law allows compulsion, but was not granted the authority of execution at the stage of imposing imprisonment. The law required that the rabbinical court’s ruling be evaluated by two external supervisory authorities, which had to approve it before imprisonment could be imposed on the recalcitrant spouse: the Attorney General must agree to apply to the district court for an order of imprisonment, and the district court must decide to accede to that request. Only after the rabbinical court ruling passed these additional tests set down in the law could its decision to imprison the spouse be carried out. In addition to these two control mechanisms, which invoke the supervision and discretion of external organs, there is also a delaying 138 139

See sec. 8 of the Rabbinical Courts Jurisdiction Law. See S. Daichovsky, “A critique of rabbinical court decisions” (Hebrew), 13–14 Dine Israel (1986/8), 7, 12 [henceforth “Critique”]. 140 See H.C. of Justice 85/54 Zada v. Attorney General, (1954) P.D. 8, 738; H.C. of Justice 54/55 Rosenzweig v. Head of Implementation, Jerusalem, (1955) P.D. 9, 1540; Silberg, n. 136 above, 388–89; C.A. 220/67, 164/67 Attorney General v. Yihye and Ora Avraham, (1968) P.D. 22 (1) 29, 49–50. See also Family Law, n. 43 above, 37 n. 11; 201.

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mechanism, the purpose of which is to prevent hasty action. The rabbinical court’s ruling may only be applied after a specified time has elapsed from the day it was handed down. Before the Rabbinical Courts Law (Enforcing Divorce Judgments) (henceforth, Rabbinical Courts Law) was enacted, this time period was six months from the day that the order of compulsion by imprisonment was given as the final judgment of the rabbinical court.141 All these mechanisms prevented the speedy application of the sanction of imprisonment against the recalcitrant spouse.142 This same deficiency existed with respect to the arrangement set down by the Israeli legislator in section 7 of the Rabbinical Courts Jurisdiction Law, regarding a levir who refuses to grant his brother’s widow halitza, after a rabbinical court has ordered, in a final judgment, that he be compelled to perform halitza. Here, “the District Court is authorized, after three months from the day that the order was issued, in accordance with the Attorney General, to compel compliance with the order by way of imprisonment.” ii

The Remedy can be Implemented only when the Court Decides to “Compel” Divorce

For other reasons as well, this legal arrangement leaves certain needs unsatisfied. Any rabbinical court ruling in which it is stated that the court “compels,” “obligates,” “deems a mitzva” or “recommends” divorce, is regarded as a divorce judgment.143 Yet the Israeli legislator, in section 6 of the Rabbinical Courts Jurisdiction Law, stated that a rabbinical court is authorized “to compel compliance with the order by imprisonment.” The Supreme Court held that the imposition of imprisonment is only possible after the court has ordered that the husband or wife be “compelled” to give or accept a get, but not after it rules that they are “obligated” to divorce or be divorced, or hands down a ruling

141

This period may also extend beyond the six months “from the day the order was issued” mentioned in section 6; see Silberg, ibid., 390–91. 142 See “Coercion,” n. 32 above, 210; “Critique,” n. 139 above, 12. 143 See H.C. of Justice 661/77 Haber v. Supreme Rabbinical Court, (1978) P.D 32 (3) 329; H.C. of Justice 644/79 Guttman v. Tel Aviv-Jaffa District Rabbinical Court, (1980) P.D. 34 (1) 443, 446–48.

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at any level of enforcement lower than “compelled” divorce.144 The Israeli legislator set down this limitation in section 6 of the Rabbinical Courts Jurisdiction Law in order to prevent any possibility of an unlawfully enforced get. When strong measures of enforcement, such as imprisonment, are used to enforce a divorce judgment, in circumstances where the halakha states that divorce may not be compelled, there is concern lest a get be regarded as having been unlawfully enforced. This concern made it difficult to find an effective way to ameliorate the plight of women refused a get. Until 1995, the dayanim serving on panels in rabbinical courts in Israel were fearful of compelling someone to give or receive a get by way of the harsh sanction mentioned in section 6 — imprisonment — when they were not sure that there was a cause for divorce that warranted “compulsion” according to Jewish law. In such a case, the get would be regarded as having been unlawfully enforced, that is, given under pressure, and not of the spouse’s free will. The rabbinical courts in Israel attached great importance to the stringent views of certain halakhic authorities, particularly the Rosh, R. Moses Isserles (Rema), and R. Moses Sofer. According to the Rosh, the list of grounds for divorce mentioned in the Mishnah and Talmud as warranting “compulsion” to divorce is closed, and nothing may be added to it. Only in rare cases has the use of analogy enabled halakhic authorities to

144 See H.C. of Justice 822/88 Rosenzweig (Borokhof ) v. The Attorney General, (1988) P.D. 42 (4) 760. The court decided that the husband is “obligated” to give his wife a get, but did not rule that he can be “compelled” to divorce her. The problematic nature of the situation wherein a sanction can only be imposed when divorce can be “compelled” is clearly evident in this case. A woman was locked into a difficult situation for nine years due to her husband’s refusal to give her a get. The court was powerless to act in the most efficacious manner, that is, to impose the sanction of imprisonment. Elon J. described the predicament thus: “We can only advise the petitioner to continue to present her claims and her troubles before the honorable Rabbinical Court in Haifa, viz., that she has not yet been released from her state of being an abandoned wife. . . . We are confident that the honorable Rabbinical Court will reconsider her case, as was stated in the earlier verdicts of the District Rabbinical Court and the Supreme Rabbinical Court, and find a way to compel the husband to give his wife a get, in order to save the woman from the chains of her marriage” — ibid., 761.

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add new grounds for “compulsion” of divorce. Usually, divorce may be “compelled” only in those cases regarding which the Sages of the Talmud explicitly mentioned “compulsion.”145 As the causes for compelling a get in the early halakhic sources are few and well-defined, this opinion limits the possibility of ruling that a get may be compelled in our day. In his glosses on the Shulhan Arukh, Rema ruled, in accordance with the opinion of the Rosh, that the court may not “compel” divorce if there is any disagreement among the halakhic authorities as to whether or not a get may be compelled in the circumstances in question. He therefore prohibited the use of direct coercive measures, such as flogging, herem, and nidui, when there is no agreement that the divorce may be “compelled.”146 R. Moses Sofer maintained that when the halakhic authorities are not in unanimous agreement that a certain ground for divorce warrants compulsion, use may not be made of direct coercive measures to force the recalcitrant spouse to give or to receive a get.147 For in these circumstances, the recalcitrant spouse can claim that he or she is not in violation of the obligation to obey the Sages, as according to some halakhic authorities, he or she cannot be compelled to give or receive a get. There were those who criticized this stringent tendency regarding the use of imprisonment in the judgments of the rabbinical courts. The tendency to be strict stands in opposition to the viewpoint of R. Herzog, who wrote: “Even though the husband knows that there are authorities who rule against compulsion, if the rabbinical court rules in favor of compulsion, he might give his consent [to divorce], for there is a religious obligation to obey the words of the sages of his generation.”148 Yet R. Herzog’s viewpoint has not been the prevailing opinion in the decisions of the rabbinical courts in Israel. The significant weight accorded by the rabbinical courts to the aforementioned stringent opinions regarding “compulsion” militates against a judgment of “compelled” divorce when the cause for divorce is the subject of controversy. The dayanim of the Rabbinical Courts do not think they have the authority to rule in favor of “compelled” divorce in situations where the law has not been clearly decided, for

145

See Piskei Harosh, Jebamot 6:11; Responsa Rosh, 17, #6; Tur, EH 154, in the name of his father, the Rosh. Consideration of the Rosh’s position is evident in a responsum by the Radbaz, see Responsa Radbaz, 4, #108 (1180). 146 See Hagahot Harema, EH 154:21. 147 See Responsa Hatam Sofer, EH 1, #116. 148 Responsa Heikhal Yitzhak, EH 1, #1.

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uncertainty remains as to whether or not divorce can be “compelled.” Uncertainty as to the validity of a document that ends the marriage bond is uncertainty concerning the biblical prohibition of adultery, and since in cases of uncertainty as to biblical law (sfeika deoraita) we rule stringently, divorce cannot be “compelled” when there is uncertainty. Yet just as these considerations are taken into account, weight should also be given to an opposing consideration, namely, ameliorating the plight of women who are refused a get, for this too is an important value in Jewish law. Before the Rabbinical Courts Law was enacted, not enough was done from the perspective of the spouse who was refused a get, as only on rare occasions did the dayanim issue a ruling with the highest level of enforcement, that is, “compelled” divorce.149 Until 1995 (5755), consideration of the possibility of ruling in favor of “compelled” divorce was generally based on the assumption that it was preferable that the get be given without having to resort to the drastic measure of imprisonment: “The hesitations of the rabbinical courts are many, and the reluctance to use coercive measures is still very great. Sometimes the judgment does not fit the legal arguments, as if at the last minute the court refrained from using the authority granted to it”; “Even in cases where there is justification for considering compelling divorce, the rabbinical courts prefer to exert moral or monetary pressure, for example, ordering a large award of maintenance to the woman. Only in the most extreme cases do they resort to orders of imprisonment.”150 149 See Shifman, Family Law, n. 43 above, 297. See also “Coercion,” n. 32 above, 205. 150 “Coercion,” ibid., 210. See also E. Magen, “Personal liberty and debtors in the Execution Office” (Hebrew), Hapraklit 40 (1992), 390–93; Kaminer, n. 90 above; Shifman, ibid., 297–98. In light of the legal practice with respect to the enforcement of divorce judgments up to 1995, one scholar has concluded: “Divorce is almost never compelled today in the State of Israel, despite the legal authority that rests in the hands of the rabbinical courts” — Shochetman, “Women’s status,” n. 32 above, 421 n. 211. An example of a judgment that does not fit the legal arguments presented is the judgment in 194/5713, P.D.R.1, 77. The court explained that it did not rule that a get may be “compelled” in that case, “because of the fear that it would be an unlawfully enforced get.” See also the criticism voiced by Rosen-Zvi and Frishtik regarding the rabbinical courts’ hesitation, in the period prior to adoption of the new law in 1995, to issue rulings of “compelled” divorce in serious cases of violence against the woman: Rosen-Zvi, n. 18 above, 427–28; M. Frishtik, “Physical abuse by a husband as grounds for divorce in Jewish law” (Hebrew), 17 Dine Israel (1993/4), 99–115.

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iii The Remedy of Imprisonment is Ineffective in Certain Cases The effectiveness of imprisonment was cast in doubt by problematic cases, for example, that of Yihye Avraham, a husband who, despite prolonged incarceration, refused to release his wife from the chains of an unwanted marriage.151 Moreover, the remedy of imprisonment was not effective for cases in which women refused to accept a get. According to talmudic law, in cases of “compelled” divorce, the sanction applied is flogging.152 Yet in the wake of the position expressed in the writings of R. Abraham b. David (Raabad),153 most halakhic authorities maintain that a woman should not be flogged. The rabbinical courts have, to the extent possible, avoided imposing another harsh sanction — imprisonment — on a woman who refuses to accept a get. Even when the situation justified a ruling that the enforcement level was that of “compelled” divorce, the courts refrained from ruling that a woman be “compelled” to accept a get, and so too refrained from imposing the sanction of imprisonment. Instead, they preferred to grant the husband a dispensation to contract a second marriage,154 and exempt 151 See Attorney General v. Yihye and Ora Avraham, n. 140 above, 29. 152 See bKetubot 78a. According to the medieval halakhic authorities, in cases where divorce may be “compelled,” another direct coercive measure — nidui — may also be used. See Sefer Hayashar, Responsa, #24; Hagahat Harema, EH 154:21. 153 See Hasagot Haraabad on Halakhot Rabati of R. Isaac Alfasi, Ketubot, ch. 5, regarding a rebellious wife: “How does he compel? Should you say, with whips — it is not the way of the world to [whip] a woman.” See also Hasagot Haraabad, Laws concerning Marriage 21:10: “I have never heard of punishing a woman with whips.” See also Appeal 5720/89, P.D.R. 3, 369, which states that the woman is obligated to accept a get, but not that she may be “compelled” to do so, for she would be liable to be imprisoned, “and for a woman, that is no less coercive than whips”; Appeal 5716/8, 5716/9, P.D.R. 2, 141–42; “Coercion,” 199–201; Schereschewsky, n. 22 above, 294 n. 7. 154 The consideration in favor of a dispensation to contract a second marriage is that there is apprehension that if a get is compelled in questionable circumstances it will be regarded as having been unlawfully enforced, and should the wife remarry, she will be guilty of adultery and her children will incur mamzerut. But if a man remarries without having been issued a dispensation to contract a second marriage, he only violates the enactment of Rabbenu Gershom, and not the biblical prohibition of adultery, and his offspring from the second marriage do not incur mamzerut.

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him from his obligations toward his first wife, including the obligation to pay her maintenance.155 The Attorney General’s involvement also prevented the imprisonment of women. In a very rare case, in which a rabbinical court ordered a woman imprisoned for having refused to accept a get, in the end she was not sent to prison. The Attorney General did not want to request that the district court approve execution of the rabbinical court’s order to compel the woman to accept a get by way of imprisonment.156 Since one of the conditions for enforcing a divorce judgment by way of imprisonment is the Attorney General’s endorsement, his policy on imprisoning women prevented application of this remedy when a woman refused to accept a get. Concern was sometimes voiced that when the husband is already in prison for criminal offences unrelated to his refusal to give his wife a get, the sanction of imprisonment will have no effect on him, particularly if he is serving a long prison sentence. According to section 47 of the Penal Law, 5737–1977, a criminal prison term is deferred until after

In H.C. of Justice 235/68 R.B. v. the Chief Rabbis of Israel, (1969) P.D. 23 (1) 475, the Supreme Court accepted the position of the rabbinical courts that when a woman refuses to accept a get, the most suitable way to force her to accept it is by granting her husband permission to contract a second marriage, and not by imprisonment. This verdict was affirmed in Boronowski v. the Chief Rabbis of Israel, n. 43 above, 47. There Agranat J. voiced a similar opinion, namely, that with regard to a woman, imprisonment is an excessively harsh coercive sanction. 155 In a responsum regarding a woman suffering from epilepsy, Rosh wrote: “The same measures that are used to compel a man to give a get are used to compel a woman to receive a get. If she refuses [to accept the get], he may withhold her maintenance, clothing, and conjugal rights” — Responsa Rosh, 42, #1. Following Rosh, R. Joseph Caro rules in SA, EH 117:11, that if a woman suffers from epilepsy she may be compelled to accept a get, and if she refuses to do so, her husband may withhold her maintenance, clothing, and conjugal rights. See also Responsa Maharam of Lublin, #1. Following the earlier rulings, the rabbinical courts have ruled that if a woman refuses to accept a get when there are grounds for compelled divorce, the husband is exempt from paying her alimony. See Appeal 147/5722, P.D.R. 5, 131–32; 980/27, P.D.R. 7, 359; 281/29, P.D.R. 8, 21. 156 See Zada v. Attorney General, n. 140 above, 738. See also Warhaftig, “Coercion,” n. 32 above, 200–201. However, on p. 210 n. 39, Warhaftig mentions a ruling by the Petach Tikva District Rabbinical Court, with Dayan R. Solomon Karelitz presiding, in which a woman was compelled to accept a get and was incarcerated. After a short time she agreed to accept the get and was released.

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all civil prison terms, including prison time imposed for refusing to give a get, have been completed. In a case that came up where the husband was serving a long criminal prison sentence, there was apprehension that although he would be sentenced to additional civil imprisonment on account of refusal to grant a get, making his total sentence longer, the very fact of the long criminal sentence would cause him to refuse to give his wife a get.157 iv Exclusion of Other Remedies The legal framework for exerting coercive measures against a recalcitrant spouse was, until 1995, specified in section 6 of the Rabbinical Courts Jurisdiction Law. This arrangement was regarded as exclusive. The prevailing view in the decisions of the Israeli Supreme Court was that a rabbinical court was barred from imposing coercive measures not mentioned in that section, for example, punitive maintenance.158 In light of this view, there was doubt as to the legal authority of the 157

See 329/459, P.D.R. 8, 128, regarding a woman who petitioned the court that her husband be compelled to divorce her. Her husband was serving a fourteen-year prison term for serious criminal offenses unrelated to his refusal to give his wife a get. The husband demanded that in exchange for his agreement to give a get, he be pardoned for the crimes he had committed. The rabbinical court ruled that the grounds for divorce justified the verdict that he be compelled to grant a divorce. The judges were of the opinion that imprisoning him for refusing to give a get would have no effect on him, as he was in any event serving a long prison sentence. Therefore they turned to the Israeli legislator to allow the use of flogging, solitary confinement, or “the like,” against a recalcitrant spouse of this type. Another case, 1208/46, dealt with the petition of a woman, whose husband had been sentenced to life imprisonment for murder, to compel him to give her a get. Since the husband was going to be in prison for an extended period of time anyway, the woman’s attorney asked that he be put in solitary confinement in order to compel him to give the get. The Jerusalem District Rabbinical Court ruled that the husband could be compelled to give his wife a get, and since he was already in jail, could be placed in solitary confinement, as demanded by the woman’s attorney. See S. Raphael, “Halakhic rulings regarding a get” (Hebrew), Collected Articles in Honor of R. Shimon Katz (Bnei Brak: 1987), 65. See also n. 160 below. 158 See Rosenzweig v. Head of Implementation, Jerusalem, n. 140 above, 1559; C.A. 664/82 Salomon v. Salomon, P.D. 38 (4) 365; C.A. 798/82 Noni v. Noni, P.D. 40 (3) 744, 747.

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rabbinical courts in Israel to impose any of the other coercive measures for enforcing divorce judgments mentioned in the rabbinical sources, such as Rabbenu Tam’s harhakot. Moreover, the prevailing opinion was that a rabbinical court did not have the legal authority to impose an additional coercive measure, such as solitary confinement, on a prison inmate159 for the purpose of forcing him or her to give or accept a get.160 Therefore, in such cases, where the remedy of imprisonment is ineffective, the husband or wife who was refused a get was left with no effective solution to his or her distress. In light of the factors mentioned above, the means made available by the Israeli legislator in section 6 of the Rabbinical Courts Jurisdiction Law often did not solve the problems with which the refused spouse was forced to contend.161 Rabbis,162 159 See Rosenzweig (Borokhof) v. Attorney General, n. 144 above. 160 In practice, this view did not always guide Israel’s rabbinical courts, which did, on occasion, make use of the measures mentioned in the halakhic literature, but not expressly mentioned in Israeli law, e.g., special alimony payments or Rabbenu Tam’s harhakot. See Obligation, n. 17 above, 290–307; 350–57; 359–69; “Legal Means,” n. 57 above, 65, 93–95; Salomon v. Salomon, n. 158 above, 370. See also n. 157 above. As will be explained below, the present formulation of the Rabbinical Courts Law (Enforcement of Divorce Judgments), 5755–1995, allows the imposition of solitary confinement and other restrictive orders on the recalcitrant husband/wife. These orders appear to be based on the rationale of “withholding benefit” from the recalcitrant spouse. 161 Z. Falk, in his Divorce Action by the Wife in Jewish Law (Hebrew), ( Jerusalem: 1973), described the typical situation prior to the passing of the law in 1995. He cited statistical conclusions from his examination of the divorce cases in the Jerusalem District Rabbinical Court in 1960. 93 divorce suits initiated by the wife, directly or indirectly, were submitted; 88 of these cases were examined. In 37 cases (42%) the woman succeeded in receiving a get, whereas in 34 cases (39%) the woman did not receive a get, even after ten years. Of the 88 divorce suits, only in 12 of the cases (14%) did the court obligate the husband to give a get. In the rest, the get was either given by mutual consent or not given at all. Of the 12 cases in which the court ruled that the husband was obligated to give a get, in seven cases (58%) the husband obeyed immediately, and in five cases (42%) he did not. In two cases, the woman petitioned the court to issue a compulsion order, but her petition was not accepted, and she was forced to make additional concessions. Of the verdicts “obligating” divorce, 38% were not carried out as set down by the court, and in those cases the woman was forced to make additional concessions in order to receive her get. 162 See S. Raphael, “The problem of coercion regarding a get” (Hebrew), 18 Torah Shebeal Peh (1981), 63; E. Basri, “A divorce given under coercion

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justices,163 and scholars164 turned to the Chief Rabbinate and the legislature, the Knesset, with the request that they come up with another halakhic and legal arrangement to alleviate the distress of the refused spouse. Such a solution was particularly necessary for women denied a get, as they, unlike men refused a get, cannot solve their problem by obtaining a dispensation to contract a second marriage. c

Authority Granted by the Contempt of Court Ordinance

In addition to being authorized to imprison a recalcitrant spouse, as mentioned above, rabbinical courts are also authorized to exercise other measures against a litigant who refuses to obey its rulings. This authority is set out in section 7a (a) of the Religious Courts (Summons) Law, 5716 — 1956 [henceforth Religious Courts Law]: “When hearing a matter within its jurisdiction, a court shall, mutatis mutandis, have all the powers conferred by sections 6 and 7 of the Contempt of Court Ordinance.” Section 6 of the Contempt of Court Ordinance establishes the authority of the court “to enforce by fine or imprisonment obedience to any order.” Section 7 establishes the authority of the court “regarding the person alleged to be disobedient” to “make such order of fine or imprisonment as may seem just,” or “order that a writ of sequestration be issued against his property.”

(get meuse)” (Hebrew), 16–17 Shenaton Hamishpat Haivri (1991), 535, 552–53. See also the judgment in 329/459, P.D.R. 8, 128, mentioned in n. 157 above. 163 See Attorney General v. Yihye and Ora Avraham, n. 140 above, 36–47, where Silberg J. proposes that a condition be attached to every betrothal, to the effect that retroactive nullification of the marriage could ensue should the husband disappear or unlawfully refuse to give his wife a get. 164 Warhaftig, “Coercion,” n. 32 above, 216, writes as follows: “In these times, special attention should be devoted to the negative consequences of inaction, avoiding solutions, and recoiling from bold decision-making. Not all of the Jews in the State of Israel accept the halakha; only a part of them serve God with joy. Rigidity, uncertainty, and recoiling from exploiting all the halakhic possibilities are liable to lead to ruinous situations and other mishaps, in which Jewish women, and a large portion of the community, will come to a bad end.” See also Family Law, n. 43 above, 297–98; Rosen-Zvi, n. 18 above, 184–86.

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As stated above, divorce judgments may be issued by the rabbinical courts at different levels of enforcement: “compelled” divorce, “obligated” divorce, mitzva to divorce, and “recommended” divorce. However, in exercising the authority bestowed on it by the law with regard to compelling compliance, the rabbinical court is subject to halakhic limitations on its ability to impose sanctions, particularly when a divorce judgment is issued at one of the lower enforcement levels. d

Rabbinical Courts Law (Enforcement of Divorce Judgments), 5755 — 1995

i

Restrictive Orders

Due to the shortcomings of the legal arrangement that had been in place in the State of Israel with regard to the enforcement of divorce judgments, particularly when the enforcement level of the divorce judgment was less than that of “compelled” divorce, the Rabbinical Courts Law (Enforcement of Divorce Judgments), 5755 — 1995165 was enacted. The Rabbinical Courts Law widens the scope for exercising coercive measures against a recalcitrant spouse. The draft law that preceded enactment of the Rabbinical Courts Law explicitly noted that the law was aimed at harnessing a halakhic tool — Rabbenu Tam’s harhakot — for the purpose of alleviating the plight of a spouse who was refused a get.166 The Rabbinical Courts Law authorizes the rabbinical courts to issue a variety of restrictive orders against a recalcitrant spouse. If a rabbinical court determines, by final judgment, that a man must give his wife a get, or a wife must receive a get, but the spouse refuses to comply with the judgment, the court may issue restrictive orders for a period, and with conditions, that it sets. Section 1 of the Rabbinical Courts Law states that these restrictive orders may be issued at all levels of enforcement of divorce judgments. A restrictive order may infringe, among other things, upon the recalcitrant spouse’s civil liberties, such as his or her right of mobility, or other rights, in whole or in part, in various areas. 165 Law Book of the State of Israel, 5755 — 1995, 1507, p. 139. 166 See the explanation of the aim of the Draft Law: Proposals of Legislation of the State of Israel — 5754, 2281, p. 493.

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Sections 2(1) to 2(6) of the Rabbinical Courts Law specify restrictive orders against a recalcitrant spouse that restrict his or her rights in the following areas: (1) leaving the country; (2) obtaining an Israeli passport or transit pass as specified in the Passports Law, 5712 — 1952, holding these travel documents or extending their validity (except for their validity for the purpose of returning to Israel); (3) obtaining, maintaining, or renewing a driver’s license; (4) appointment, election, or service in an office regulated by law, or in an office in a supervised authority, as defined in the State Comptroller Law, 5718 — 1958; (5) working in a profession regulated by law, or operation of a business requiring a license or legal permit; (6) opening or maintaining a bank account, or drawing checks from a bank account. For this purpose the individual against whom the restrictive order was issued will be treated as a special restricted customer in the sense specified in the Checks Without Cover Law, 5741 — 1981. Regarding a levir who refuses to grant his brother’s widow halitza, the Israeli legislator set down in this law that when a rabbinical court determines that he must grant his brother’s widow halitza, and he refuses to do so, the rabbinical court may, after thirty days have passed from the day the original decision was taken, issue a restrictive order against him.167 The data made available to me by the administration of the rabbinical courts in Israel suggests that in actual practice, in most cases restrictive orders have been effective, and have led to the recalcitrant husband’s giving his wife a get.168 ii

Denying Privileges to an Inmate

A rabbinical court is also permitted to issue restrictive orders that infringe on the rights of a prison inmate. The purpose of section 2(7)

167 Section 6 of the Rabbinical Courts Law. 168 See also remarks by R.E. Ben-Dahan at a meeting of the Knesset Legislation Committee, Feb. 14, 2000, protocol 83, p. 2: “Since the law was passed about four years ago, nearly 200 verdicts with restrictive orders were given, in consequence of which most of the recalcitrant spouses, almost 120 of them, gave their wives a get. . . . There are about 60–70 recalcitrant spouses against whom the courts issued restrictive orders who have not yet given their wives a get.”

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of the Rabbinical Courts Law is to alleviate the plight of someone denied a get whose spouse was sentenced to a period of imprisonment. The spouse is serving time anyway, so an additional prison sentence might not persuade him or her to give or receive a get. This section sets down other sanctions that could encourage an inmate of this type to comply with the court’s verdict. The restrictive orders specified in this section allow the rabbinical court to issue orders infringing upon the prisoner’s rights to receive permission to walk about freely, to be granted special leaves or early release from prison, and other privileges. An important halakhic idea that is relevant in the context of depriving an inmate of privileges is the concept of “withholding benefit.” When an incarcerated inmate is denied privileges, especially when he is serving time for an offense unrelated to the divorce proceedings, the sanction is indirect — “withholding benefit.” Yet since the inmate undoubtedly loathes being in prison, and longs to be released or given leave, even for only a short while, denying him privileges, in accordance with the authority granted the rabbinical courts in section 2(7) of the Rabbinical Courts Law, constitutes a very serious assault on his human rights, and on his free will to grant a divorce. Is the imposition of sanctions mentioned in section 2(7) of the Rabbinical Courts Law a faithful expression of the idea of “withholding benefit,” which is the main rationale of Rabbenu Tam’s harhakot? Withholding a relatively trivial benefit is not the same as withholding a significant benefit. The rabbinical court must surely consider carefully, in light of the halakhic level of enforcement, whether it is appropriate to withhold a significant benefit. “Withholding benefit” with regard to a prisoner who is already serving a jail term unrelated to his refusal to grant his wife a divorce was considered in a rabbinical court judgment prior to the enactment of the Rabbinical Courts Law in 1995. In that ruling, R. Solomon Daichovsky held that the court could permit denying the prisoner a reduction of a third of his sentence for good behavior so as to encourage him to give his wife a get. This ruling preceded the Rabbinical Courts Law, section 2(7) of which granted the court legal authority to impose such an indirect measure. In the course of the proceedings, the husband had shouted defamatory remarks at the dayanim. R. Daichovsky had, therefore, held that the court could rule that it would not recommend to the prison authorities that they release the prisoner; only “good behavior”

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justifies recommending that an early release be granted.169 However, R. Daichovsky suggested that the court announce its readiness to forgo the contempt of court charge, and not impose the sanction, if the husband would agree to give a get.170 The halakhic basis of the court’s ruling was “withholding benefit.”171 In line with R. Daichovsky’s remarks, this rationale — “withholding benefit” — can be said to apply to certain sanctions in section 2(7) of the Rabbinical Courts Law that deprive an inmate of his rights. These rights can be viewed as privileges society gives the inmate, and can, under certain circumstances, deny him. Rabbenu Tam himself wrote that a recalcitrant husband who wishes to be freed from prison when he has been incarcerated for a matter unrelated to his divorce may be denied assistance.172 The law was amended in 2000. The amended law adds to the sanctions that may be imposed upon the recalcitrant husband who is already in prison.173 Section 2(7), in its current formulation, allows the

169 See Daichovsky, “Compelling a get,” n. 126 above, 248–49. 170 Ibid. The dayan took into account, among other things, the fact that another legal course of action was available to the court: approaching the prison authorities, reporting the prisoner’s conduct during the proceedings, and requesting that, in light of this conduct, his prison term not be reduced by a third. The court could threaten the prisoner with this possibility, and tell him it was willing to forgo the contempt of court charge and not activate the sanction if he would be willing to give his wife a get. 171 R. Daichovsky (ibid., 252–53) explained that this manner of coercing a get is not entirely free of halakhic problems. Yet for him the critical factor was the argument that the court’s recommendation to the prison authorities would constitute acting in an indirect manner — “withholding benefit,” and not a direct act of unlawful coercion. He relied, among other things, on the fact that reduction of a prison term by a third for good behavior is not automatic. 172 See Hagahot Mordekhai, Gitin, #468–69. See also Responsa Maharik, #133, #166; Responsa Mabit, #22; Daichovsky, ibid., 254. 173 Rabbinical Courts Law (Enforcement of Divorce Judgments) (Amendment no. 4) 5760–2000, Law Book of the State of Israel, 1732, p. 133. The purpose of the amendment of the law, in light of the explanations offered by R.E. Ben-Dahan, director of the rabbinical courts in Israel, at a meeting of the Knesset Legislation Committee, February 14, 2000, Protocol no. 83, p. 2, is: “to fill a lacuna that became evident over the course of time that the law existed. There are, on average, about 20 to 30 inmates — the number varies — who [are unwilling to grant their wives a get, and] are in prison for all sorts of reasons, including reasons

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prisoner to be denied the right to purchase articles in the prison canteen, to keep personal possessions, to send and receive letters (except for letters addressed to the court, his attorney or rabbinic pleader, or the State Comptroller), and to receive visitors (except for visits from his attorney or rabbinic pleader, his clergyman, an official inspector, or his minor children). As these sanctions sometimes have a severe impact, the rabbinical courts impose them only where halakhically appropriate, viz., in particularly serious cases. iii Section 3 — Imprisonment to Compel Compliance The legislator set down in section 3 of the Rabbinical Courts Law that a rabbinical court may issue a restrictive order — imprisonment to compel compliance — that infringes on the individual’s right to walk about freely. This drastic remedy is not free of halakhic uncertainties. As noted above, the explanations accompanying the draft proposal of the

unrelated to the granting of a get. Their prison sentence makes it impossible for us to deny them any privileges [by restrictive orders mentioned in sections 2(1)–2(6) of the Rabbinical Courts Law], for a prison inmate cannot, in any event, use his driver’s license. . . . We are herein suggesting a number of restrictions to be placed on such prisoners, and denial of privileges such as the possibility of leave, the possibility of making purchases in the prison canteen, the possibility of watching television. . . . We have also suggested the possibility of putting the person into solitary confinement for fourteen days, with a break each time.” The Deputy Attorney General, Joshua Shofman, offered the following explanation in the aforementioned protocol, p. 3: “The proposal to enact the law followed a number of actual cases. When a rabbinical court compels enforcement of a divorce judgment by way of civil imprisonment . . . in the case of a prisoner serving a life sentence or sentenced to many years [for other offenses], these sanctions hardly have any effect. . . . Nobody takes pleasure in denying prisoners their privileges, and with a great sorrow we, along with the administration of the rabbinical courts, have come to the conclusion that there is justification for imposing these sanctions, which may be imposed upon the prison inmate for misconduct in prison. Here we are dealing with a person against whom there is no complaint regarding his behavior in prison, but rather about a matter no less serious: allowing his wife to remain an aguna . . . we are dealing with a situation in which the key remains in the hand of the prisoner. Whenever he decides to comply with the court order and give a get, he will be freed from the restrictions.”

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law that led to the enactment of the Rabbinical Courts Law mention Rabbenu Tam’s harhakot.174 However, the rationale of those harhakot — to impose an indirect measure, which “withholds benefit” — does not apply to the sanction of imprisonment in section 3 of the Rabbinical Courts Law. This section deals with a direct measure: a spouse who is at liberty is sent to prison so that he or she will give or receive a get. Nevertheless, an important consideration is the fact that this imprisonment is a less severe sanction than the imprisonment mentioned in section 6 of the Rabbinical Courts Jurisdiction Law. The legislator set various limitations to the authority of the rabbinical court. First, when a rabbinical court issues a restrictive order to compel someone, by way of imprisonment, to comply with a ruling, the rules of sections 3(5) and 3(6) of the Contempt of Court Ordinance apply to the rabbinical court that issues the order. According to the rules in these sections, a court that imposes imprisonment to compel compliance is required to notify the Attorney General of its action. The Attorney General, or his proxy, must bring the matter of the prisoner before the rabbinical court that issued the order for reconsideration whenever he deems it necessary, and not less than once every six months from the beginning of his imprisonment. After giving the prisoner and any other party with standing in the case the opportunity to voice their arguments, the rabbinical court may reconfirm the order, change it, attach conditions to it, cancel it, or issue another ruling that it deems appropriate. Similarly, section 3(b) of the Rabbinical Courts Law limits the prison term that the rabbinical court may impose when it issues a restrictive order to compel compliance by way of imprisonment: “The period of imprisonment to compel compliance shall not exceed five years; however, the court may, if it finds it necessary for the purpose of enforcing its judgment, extend the sentence from time to time, provided that the total prison term does not exceed ten years.” This limitation on the prison sentence that may be imposed on a recalcitrant spouse reflects a new approach. It will be recalled that section 6 of the Rabbinical Courts Jurisdiction Law allows imposition of a prison term that is unlimited in time and continues until the desired result is achieved. In addition, the Rabbinical Courts Law demands great caution when the court issues a restrictive order imposing imprisonment to compel compliance or extending a prison term. Section 3(b) of the Rabbinical

174

See n. 166 above.

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Courts Law states that the court is obligated, whenever it imposes or extends imprisonment, to examine whether or not that sanction “is necessary for the enforcement of the judgment.” In light of this section and section 4(b) of the law, it would appear that the court is required to consider whether there are other means, less drastic than denying liberty, that could lead to the same result. This limitation is also new: section 6 of the Rabbinical Courts Jurisdiction Law does not allow the court to exercise its judgment at any stage following the imposition of imprisonment. After the Attorney General and the district court exercise their judgment and decide to imprison the recalcitrant spouse, there is no later stage at which the court is given another opportunity to examine whether it may be possible to exercise a less hurtful measure. With respect to the type of recalcitrant spouse exemplified by Avraham Yihye, who was imprisoned for many years, indeed, until the day he died, it becomes clear at some point that denying such an individual his liberty will not induce him to release his wife from the chains of her marriage. In such circumstances, when it has become clear that the remedy of imprisonment is ineffective, it would appear that the remedy may not be “necessary for the enforcement of the judgment.” The rabbinical court could therefore consider the possibility of ruling that the recalcitrant spouse should no longer be imprisoned. Should the court decide to release him, there is room to consider imposing other restrictive orders, if they are liable to influence his behavior with respect to the granting of a get. In practice, the rabbinical court should probably interpret this exception narrowly, so that even if there is only a small chance that the restrictive order will cause the recalcitrant spouse to give or receive a get, it should still be issued. There is reason to fear that a judicial policy that eases the burden of proof required for releasing the husband or wife from prison on the grounds that there is no chance that it will influence him or her, will cause a recalcitrant spouse to become even more adamant in his or her refusal. In 2000, section 3(a) was added to the Rabbinical Courts Law, stating that prison inmates may be held in solitary confinement for a period of five days, and then held there again after a break of seven days. In my opinion, based on the principles of Jewish law and policies of halakhic authorities and rabbinical courts in recent generations, discussed above, even if imprisonment or solitary confinement is permitted, imprisonment or solitary confinement imposed as a direct measure to

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bring about the granting of a get must only be used as a last resort, after other, less severe, measures have already been tried, with no results. In the past, when imprisonment was imposed in accordance with the Rabbinical Courts Jurisdiction Law, it was only imposed on rare occasions, and only when its implementation was justified, according to the dayanim, due to particularly serious circumstances.175 It can be assumed that since the halakhic principles have not changed, a similar policy should be adopted with regard to imprisonment or solitary confinement imposed by way of the Rabbinical Courts Law. From the perspective of Jewish law, the rabbinical court must take into consideration the fact that sending a prisoner into solitary confinement is a direct measure, and not merely “withholding benefit.” It must be carefully examined whether the use of this sanction raises the concern that the get will be regarded as having been unlawfully enforced, particularly in a case where divorce may not be “compelled.”176 However, occasionally more activistic rabbinical court panels have tended to impose the imprisonment mentioned in the Rabbinical Courts Law more often than imprisonment was imposed in the period prior to 1995, when the only law that authorized imprisonment of a recalcitrant husband was the Rabbinical Courts Jurisdiction Law. iv

Restrictive Orders Against Women

The Rabbinical Courts Law did not initially apply to a woman who refused to accept a get. The law was later amended to allow restrictive orders to be issued against a woman who refuses to accept a get. A rabbinical court may issue a restrictive order against a woman when the head of the Supreme Rabbinical Court gives his confirmation. After a restrictive order is issued against a woman, her husband will not be 175 See text at nn. 143–50 above. 176 The protocol of the Knesset Legislation Committee, n. 168 above, implies that the new sanctions added in sections 2(7) and 3 of the law in 2000 were enacted after consultation with the dayanim. Their implementation usually meets the halakhic requirements for avoiding an unlawfully coerced get. However, due to the severity of the infringement of the recalcitrant spouse’s exercise of free will, every application of the new sanctions requires careful examination in light of the relevant halakhic principles.

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permitted to contract an additional marriage until the expiry of three years from the day the order was issued.177 The legal principle underlying these rules discriminates against the husband. Restrictive orders against him are valid without the approval of the head of the Supreme Rabbinical Court, and the request for a restrictive order applying to his wife prevents him, for a time, from contracting an additional marriage. However, this discrimination is permitted. Israeli Law permits distinctions that are based on relevant factors.178 Here, the legislator took into account the relevant factor — the fact that the husband’s halakhic standing in this matter is stronger. The husband can obtain an allowance to contract an additional marriage, but no similar option is available to a married woman. Therefore, the legislator set down that when a restrictive order is issued against a woman, the approval of an additional party is required. That party will consider all the relevant factors, and also examine the alternative of a dispensation to contract another marriage as a solution for the distress of a husband who is refused a get. In practice, the rules set down by the legislator regarding the use of restrictive orders against a woman, in particular the need for confirmation by the head of the Supreme Rabbinical Court, created a situation that is not egalitarian. The restrictive order is a measure that in actual practice is rarely exercised against a woman. In most of the infrequent cases in which the district rabbinical court issued a restrictive order against a woman, the required confirmation was, in the end, not granted by the head of the Supreme Rabbinical Court.179 v

The Relationship between the Sanctions in the Rabbinical Courts Law and the Rationale of Rabbenu Tam’s harhakot

The dominant rationale permitting the use of Rabbenu Tam’s harhakot in circumstances that do not allow for a ruling of “compelled” divorce is that the harhakot are not a direct measure — taking something away from someone, but rather a passive measure — “withholding benefit.” 177 178

See sections 1(3) and 1(6) of the Rabbinical Courts Law. See H.C. of Justice 4541/94 Miller v. Minister of Defense, (1995) P.D. 49 (4) 94; H.C. of Justice 721/94 El Al Airlines, Ltd. v. Danilowitz, (1994) P.D. 48 (5) 749. 179 I rely primarily on conversations with R. E. Ben-Dahan, director of the Rabbinical Courts in Israel, and R. R. Frank, director of the office of the Chief Rabbi.

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What is considered “withholding benefit” in the contemporary circumstances of the State of Israel? Weinrot argues that the state’s refraining from providing services and allocating resources to a citizen who refuses to give his wife a get falls into the category of “withholding benefit.” The reason is that the right to services and resources is not absolute. In his opinion, the services that the state provides are “all creations of the law and the social outlook, and as such they are conditional by their very nature.”180 According to him, this new type of “withholding benefit” — the state’s refraining from providing services and allocating resources to a citizen — is effective in today’s society in Israel, where many people are not religiously observant and do not accept the authority of Jewish law and the rabbinical courts. The traditional harhakot of Rabbenu Tam are no longer effective sanctions on such individuals, being based entirely on authority and on the vital connection between the individual and the sociological-communal cell, when there is obviously a binding correlative relationship between the two. . . . With respect to the individual’s dependency upon the social cell, the state did indeed replace the community, but the dependency not only did not diminish, but it even increased. One cannot imagine today an individual isolated and detached from social interaction, from the services provided by the state and public bodies, in the areas of welfare, support, work, and similar areas. However, the element of religious authority has disappeared [with regard to nonreligious Jews]. Thus was created a strange circle. The halakha gives up on the permissive, secular community, within which the principal means by which it exercises its authority are no longer effective, and without them, the halakha has no way to actualize [its authority]. The way to break this circle is not by expanding the jurisdiction of the rabbinical courts, but rather by deepening the authority of these courts in spheres where this jurisdiction already exists at present.181

180 Weinrot, n. 17 above, 441. 181 Ibid. The problematic nature of exercising Rabbenu Tam’s harhakot in contemporary Israeli society was also noted by R. Shaul Israeli, “On coercion and consent regarding a get” (Hebrew), 12 Torah Shebeal Pe (1970), 38: “A severe high-pressure tactic exists . . . isolating the individual from society by having no business dealings with him. . . . But it obviously requires that the society be united and disciplined. If the matter is difficult to execute in our day, it is not the halakha’s fault; the blame rests only on the state of our public affairs. [Critics of the halakha], instead of properly identifying the weakness, point to the halakha as if it were the cause of the problem [of injustice to those with recalcitrant spouses].”

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The explanation accompanying the draft proposal that preceded enactment of the Rabbinical Courts Law states that the restrictive orders in the law which deny privileges that the state bestows on its citizens fit in well with the idea embodied in Rabbenu Tam’s harhakot. However, Rabbenu Tam mentioned other sanctions that may be exercised against a recalcitrant husband, and even the sanctions that were added in later generations differ from those utilized in Israeli law. Indeed, in the responsum where his measures are first mentioned, Rabbenu Tam foresaw the possibility of adding more harhakot: “And they may add stringent measures as they please, [to be imposed] on anyone.” Still, the new harhakot must satisfy the rationale of the old, traditional measures. It is thus warranted to examine the degree to which the new restrictive orders that were added by the Israeli legislator satisfy the rationale of the “old” measures. Similarly, thought must be given to the argument raised by Beeri that prior to the enactment of the Rabbinical Courts Law, Rabbenu Tam’s harhakot were rarely implemented in halakhic rulings in general, and in the rulings of the rabbinical courts in Israel in particular. This was due to fear that exercising the measures in question might infringe upon the husband’s exercise of free will in giving a get.182 In addition, as stated above, there is a sound basis for the argument that the harhakot, in their modern Israeli form, should only be implemented when the divorce judgment is at the level of “obligation” to divorce or higher.183 It is therefore desirable that whenever the rabbinical courts issue rulings that include restrictive orders found in the Rabbinical Courts Law, they specify the level of the divorce judgment. This should be done in order to satisfy the authorities who hesitate to implement Rabbenu Tam’s measures, particularly when the circumstances do not justify a judgment by the court that divorce is “compelled” or “obliged.”184

182

183 184

See Beeri, “Legal means,” n. 57 above, 90–95; 96, n. 101. However, Rabbenu Tam’s harhakot were occasionally imposed in judgments of the rabbinical courts. See also Responsa Yabia Omer, 7, EH #23, 8, EH #25; Responsa Tzitz Eliezer, 17, #51. See section 2c iii above. See also Beeri, ibid., 81, 91–92. See the articles by the dayanim Rabbis Haim Gedalia Cymbalist, Uriel Lavi, and Joseph Goldberg in 5 Shurat Hadin (1999), 230–97, which discuss at length the halakhic authority to impose the various restrictive orders

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The rationale of “self-duress” — duress inflicted by the recalcitrant husband himself when he decides of his own free will to remain in the place where the harhakot were activated — does not apply to every case in which the restrictive orders may be issued according to the new Israeli law. In general, remaining in his own place does not always attest to the husband’s true and sincere agreement to assume the burden of the harhakot. This is particularly true with respect to the harhakot in the restrictive orders allowed by the Rabbinical Courts Law. They apply in the State of Israel wherever the recalcitrant husband goes, not just in a specific community. One of the sanctions, which can be applied alone or with other restrictive orders, is the restrictive order specified in section 2(1) of the law, which bars exit from the country. In such a case, even the option of escaping the sanction by going abroad does not exist. This being so, in light of the view that the basis for Rabbenu Tam’s harhakhot is the recalcitrant spouse’s choice to remain in his locale, it would seem necessary to carefully examine to what degree the restrictive orders stand the test of this halakhic rationale. Attempts should be made to avoid a situation in which there is real concern that there will be halakhic doubt as to whether the get given or received as a result of the exercise of a restrictive order is valid.185 e

Deficiencies of the Rabbinical Courts Law (Enforcement of Divorce Judgments), 5755 — 1995

The two main shortcomings in the arrangement set down in the Rabbinical Courts Law are: (i) The absence of a hierarchy regarding the exercise of the sanctions, which has importance in view of the principles of Jewish law. (ii) The absence of an effective supervisory mechanism prior to implementation of the decision to begin or extend the prison term, or place a prisoner in solitary confinement, to prevent

mentioned in the Rabbinical Courts Law, in light of the halakhic principles relevant to Rabbenu Tam’s harhakot and unlawfully enforced divorce. It may be that such discussion should be a matter of course in rabbinical courts judgments in which the court orders the imposition of restrictive orders against a recalcitrant spouse. 185 See the articles mentioned in the previous note on the question of how the restrictive orders can be adjusted to accord with the relevant halakhic principles.

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imposition of unnecessary restrictive orders, especially severe restrictive orders, such as imprisonment. i

Absence of a Hierarchy Governing Imposition of Sanctions

HIERARCHY OF SANCTIONS IN THE PRESENT LAW

An important principle in the arrangement in the draft law that led to enactment of the Rabbinical Courts Law was the establishment of a hierarchy governing the imposition of sanctions against the recalcitrant spouse on the basis of the different halakhic levels of enforced divorce. The arrangement in the draft proposal was meant to preserve the distinction between the highest level of enforcement, “compelled” divorce, and the other levels. The drastic remedy of imprisonment was meant to serve the rabbinical court as a means of enforcement only when it ruled that the husband is “compelled” to give his wife a get or to grant his brother’s widow halitza. It was proposed that the court could have recourse to the other means of enforcement specified in the draft law when the court had issued a divorce judgment at a lower level of enforcement, such as “obliged” divorce. The restrictive orders in section 3 of the law, imposing imprisonment and solitary confinement to compel compliance, and the restrictive orders in section 2(7), which empower the rabbinical court to deprive the prisoner of his rights, did not appear in the draft proposal. The legislator, in the Rabbinical Courts Law, 5755 — 1995, did not accept the principles reflected in the proposal put forward in 1994. He did not revoke sections 6–8 of the Rabbinical Courts Jurisdiction Law.186 The arrangement in the law passed in 1995 differed from that suggested in the proposal in that an alternative arrangement for compelling divorce was set down, alongside an amendment of the prior legal arrangements. Essentially, section 6 of the Rabbinical Courts Jurisdiction Law remained in place. This section allows the imprisonment of a recalcitrant spouse when a rabbinical court rules that he may be “compelled” by way of imprisonment to divorce his wife, in the manner described above. The only change to this arrangement introduced in the 1995 law was a shortening of the waiting period in the process of compelling a get by way of imprisonment from “six months”

186

See Proposals of Law of the State of Israel, 5754 — 1994, 2281, pp. 486–95.

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to “sixty days.”187 Due to the small number of judgments “compelling” divorce, this change is insignificant, because the sanction itself is hardly ever applied, and as noted above, this arrangement is generally unsatisfactory. The sanctions in the Rabbinical Courts Law are applicable in many more cases, because they may be imposed even when the level of enforcement is less than that of “compelled” divorce. A rabbinical court that imposes the sanctions in the Rabbinical Courts Law is permitted, by itself — subject to the limitations of the rules in sections 6(3)–6(5) of the Contempt of Court Ordinance — to issue a restrictive order imposing imprisonment to compel compliance against a husband or wife who refuses to give or accept a get, or other restrictive orders, whether the court “compelled,” “obliged,” deemed it a mitzva or “recommended” that he give his wife a get or that she accept it from him. HIERARCHY OF SANCTIONS IN JEWISH LAW

While there is no hierarchy specified in the law, a halakhic hierarchy exists regarding the exercise of sanctions against a recalcitrant spouse, and rabbinical courts in Israel follow the rules of Jewish law. In those cases where divorce may be “compelled,” the manner of compelling the get is most severe. Divorce may be compelled by way of flogging, herem, nidui, imprisonment, or solitary confinement.188 Financial pressure may also be applied to the recalcitrant spouse. Financial pressure is usually applied by increasing the alimony payments that the husband must make to his wife.189 In less severe cases, which do not rise to the level of cases in which divorce may be “compelled,” a ruling is sometimes issued that a spouse is “obligated” to give/receive a get. In such circumstances, a salient sanction is the original sanction of verbal persuasion, which exerts social and moral pressure on the husband to divorce his wife.190 When a ruling is issued that the husband is 187 Section 11 of the Rabbinical Courts Law. 188 See Responsa Rashba, 1, #1192. 189 See Herzog, n. 24 above, 3–28; Elinson, n. 136 above, 150–58. 190 Some halakhic authorities emphasize that these measures may be used in this situation because they do not impact on the body of the recalcitrant spouse. See, e.g., Responsa Rashba, 7, #414, regarding a husband whose conduct does not justify a verdict of “compelled” divorce: “They ask the husband to give a divorce, and if he refuses, they compel him to pay the ketuba, but they do not compel him to give the get. But the court may issue verbal threats, provided that they do not put him under nidui, or humiliate him, or cause him bodily distress.” See also Responsa Rashba, 5, #95.

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“obligated” to divorce his wife, some authorities permit the imposition of financial pressure, while others forbid it.191 The possibility of imposing Rabbenu Tam’s harhakot also exists.192 There is no unique sanction that has been used when the halakhic authorities of recent generations have ruled that divorce is either deemed to be a mitzva193 or “recommended.” The sanctions used, if any, have been very moderate in comparison with those employed when divorce is “compelled” or “obliged.” The meaning of the expression “mitzva to divorce” has undergone a change in recent generations. It can be argued that the levels of divorce below that of “obligated” divorce — divorce deemed a mitzva and recommended divorce — are a solution that the halakhic authorities of recent generations found for their concern that employment of excessively harsh coercive measures without sufficient halakhic justification would render the get in question unlawfully enforced. In addition to the accepted levels of enforcement that are mentioned frequently in the halakhic literature for many generations — “compelled” and “obliged” divorce — the halakhic literature of recent generations mentions two levels of enforcement considered less severe than “compelled” or “obliged” divorce: “divorce deemed a mitzva,” and “recommended” divorce. The level of “divorce deemed a mitzva,” and the lowest level of enforcement — recommended divorce — do not justify the imposition of harsh sanctions against a recalcitrant spouse. Since the sanctions will not be imposed, there is no concern that a get given after a ruling was issued that it is a mitzva to divorce or that it is recommended to do so will be regarded as unlawfully enforced. Therefore, whenever the halakhic authorities or rabbinical court judges are not convinced that divorce may be “compelled” or

191

See Herzog, n. 24 above, 3–28; Elinson, n. 136 above, 141–58; Rosenzweig v. Head of Implementation, n. 140 above, 1552–58; Silberg, n. 136 above, 389; Schereschewsky, n. 22 above, 328–31. 192 See Rabbenu Tam’s responsum, Sefer Hayashar, Responsa, #24. See also nn. 70–78. 193 R. Solomon b. Shimon (Rashbash) dealt at length with the category of divorce deemed a mitzva. See Responsa Rashbash, #411, and cf. #383 (the first one). However, most of the halakhic authorities who deal with the sanctions directed against a recalcitrant spouse do not relate to divorce that is deemed a mitzva as a separate category. Only in the rulings of recent generations, especially the rulings of the rabbinical courts in Israel, is “divorce deemed a mitzva” clearly recognized as a distinct category.

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“obliged” even according to the more stringent opinions, as a precautionary measure, and to satisfy all doubts, the ruling is issued that divorce is a mitzva or recommended. Sometimes, refraining from ruling in favor of “compelled” divorce in such circumstances itself raises halakhic uncertainties, and at times, this prevents the exercise of an effective remedy against the recalcitrant spouse. Another consequence is that there is occasionally a blurring of the distinction between grounds for divorce that justify a verdict of “compelled” or “obliged” divorce and allow for the use of more severe measures of compulsion, and grounds for divorce that do not allow for the use of such measures. When divorce is recommended, the intent of the halakhic authority or dayan is that only moderate sanctions, if any, may be employed against the recalcitrant spouse. Harsh measures like imprisonment or depriving the prisoner of his rights may certainly not be imposed. When a ruling is issued that it is a mitzva to divorce, the sanction is effective primarily against a religiously observant person, who accepts the authority of the Torah’s commandments and the rabbinical court. Since he wants to observe Jewish law and not violate its prohibitions, when the dayanim instruct him that it is a mitzva to give a get, he feels an obligation to obey and to do as he has been instructed. This feeling of obligation to obey the court’s ruling diminishes when the divorce judgment is formulated as a mere recommendation, even when the recalcitrant spouse defines himself as religiously observant. When a ruling is issued recommending divorce, the ruling is not accompanied by any effective sanction against the recalcitrant spouse.194 In light of the significant difference between “obligation” to divorce and “recommendation” to divorce, R. Ovadiah Yosef ruled that care must be taken to formulate the divorce ruling as a recommendation and

194

However, the jurisdiction of the rabbinical courts over matters connected with the divorce suit remains in place. The Supreme Court has ruled that any rabbinical court judgment that mentions divorce at any level of enforcement, even the most moderate levels — mitzva and recommendation — is considered a divorce judgment. Hence, matters connected with the divorce claim remain within the jurisdiction of the rabbinical court. See Haber v. Supreme Rabbinical Court, n. 143 above; Guttman v. Tel-Aviv–Jaffa District Rabbinical Court, n. 143 above.

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not as an obligation whenever the circumstances of the case fail to justify a ruling of “obligation” to divorce.195 DESIDERATA FOR A HIERARCHY OF SANCTIONS

Some have expressed the opinion that even when the harhakot of Rabbenu Tam are applied by way of implementation of the restrictive orders mentioned in the Rabbinical Courts Law, for example by activating the restrictive orders mentioned in section 2(7) of the law, depriving the prisoner of his rights, this should be done in a reasonable fashion, without going to extremes in withholding benefits, in order to avoid any fear that the get be regarded as having been unlawfully enforced. Restrictive orders that have a dimension of withholding benefit may be implemented as long as a restriction that the recalcitrant spouse cannot withstand is not imposed. This takes into account the fact that some authorities opposed the harhakot, and raised doubts about the validity of a get given after imposition of such measures.196 Depriving the prisoner of privileges is a harsh measure, and in certain circumstances might not pass the said test. It should also be noted that depriving the prisoner of his rights by imposing the restrictive orders of section 2(7) is only possible when the implementation of Rabbenu Tam’s harhakot is possible, and, many halakhic authorities contend, this should be done only in cases where divorce is “compelled,” or at least “obliged.” Therefore, a careful examination of the circumstances of each case should determine which sanction, if any, is to be imposed for the purpose of enforcing the divorce judgment. The imprisonment provided for by section 6 of the Rabbinical Courts Jurisdiction Law (Marriage and Divorce) 5713–1953 was little used as a sanction against a recalcitrant spouse, as it could only be used when a ruling of “compelled” divorce was issued. The scope of the restrictive orders in the 1995 law is wider. The legislator determined 195 Responsa Yabia Omer, 2, EH #10. 196 See “Legal Means,” n. 57 above, 98. Beeri notes that the question of whether the harhakot involve illegitimate pressure that invalidates the get has been raised. According to Beeri, the state authorities may deny the recalcitrant husband privileges — “withholding benefits” as described in the Rabbinical Courts Law — provided that the denial of services and benefits does not prevent the husband from leading a normal life; a range of possibilities of earning a living remain available to him in the private sector; and his social ties are not seriously impaired.

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that they can be exercised even when the level of enforcement is less than “compelled” or “obliged” divorce. While the legal authority to impose the sanctions was given to the rabbinical courts even in cases of divorce that is deemed a mitzva or recommended, most panels of dayanim in the rabbinical courts in Israel seem to refrain from exercising this authority in such cases. As was stated in the draft proposal that preceded the law, the intended purpose of the law was to “harness a halakhic tool as a solution for the plight of women refused a get.” Deprivation of the recalcitrant spouse’s rights was characterized as an appropriate way of “applying the idea of Rabbenu Tam’s harhakot in the Jewish communities of today.” Even the halakhic authorities who do not share the concerns raised by R. Joseph ibn Lev — who maintained, initially, that Rabbenu Tam’s harhakot should not be used, even when divorce is obligatory, because the pressure applied to the recalcitrant spouse is greater than the pressure created by nidui or herem197 — are aware of the power of the harhakot. Since there are important authorities, including R. Mordekhai b. Hillel198 and R. Moses Isserles,199 who write that Rabbenu Tam’s harhakot may be imposed when there is an obligation to divorce, it may be assumed that the rabbinical courts will take that fact into account when they must decide in which circumstances the restrictive orders specified in this law will be exercised against the recalcitrant spouse. In light of the policies adopted by the halakhic authorities and many rabbinical court judges of our day, even though this law allows the imposition of all the restrictive orders even when the enforcement level is less than that of “compelled” divorce, the restrictive order should not, at least with regard to imprisonment or placement into solitary confinement, be imposed as a matter of course. Only in special, unique circumstances, akin to those in which a rabbinical court in the period prior to the enactment of the Rabbinical Courts Law would have been ready to impose the imprisonment specified in section 6 of the Rabbinical Courts Jurisdiction Law, should the imprisonment or solitary confinement specified in section 3 of the Rabbinical Courts Law be imposed. It would also appear that from the perspective of the halakhic authorities who are concerned that the get will be considered to have 197 See Responsa Mahari b. Lev, 3, #102, and 2, #18, #79. 198 See above, n. 71. 199 See above, n. 72.

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been unlawfully enforced, the use of imprisonment, solitary confinement, or a combination of several restrictive orders must be the last means adopted for the purpose of enforcing a divorce judgment. Such imprisonment, like the imprisonment of debtors, which in the end was also allowed because of the pressing needs of society, is not meant to be punitive. It is intended to serve as a coercive measure — to impel a person to fulfill his obligations. Regarding a debt, a certain responsibility exists on the part of the debtor, for he took upon himself an obligation and did not fulfill it. Similarly, when a judgment is issued that, in the opinion of the court, obliges a get to be given or accepted, the spouse who refuses does not fulfill his or her obligation. The following conclusion may be drawn by way of analogy: just as the imprisonment of a debtor is the final option, to be used only after all other means of collection proved to be of no avail, so too the imprisonment of a recalcitrant spouse is a drastic final option, which may only be implemented after less drastic measures have been exercised against him to no effect. The argument is sometimes heard that in the clash between the rights of the recalcitrant spouse against whom the coercive measure of imprisonment is employed, and the rights of the spouse refused a get, it is justified to favor the rights of the latter, who should be able to turn to the authorities to have the other spouse imprisoned, regardless of the circumstances. For an imbalance exists in this context between the recalcitrant spouse and the spouse refused a get. The freedom of the spouse refused a get is infringed upon in a manner that the refused spouse cannot repair, whereas the infringement of the freedom of the recalcitrant spouse can be ended at any moment, when that spouse recognizes his partner’s right to be freed from an unwanted marital bond, and agrees to give or accept a get. Therefore, according to those who put forward this argument, there is justification for imposing a harsh sanction that seriously infringes upon the freedom and dignity of the recalcitrant spouse. The sanction is harsh, but the prison keys are in the hands of the recalcitrant spouse, who may at any time release himself from incarceration.200 We do not accept this argument. A patient may not be given a medication with clearly negative side effects before an attempt has been

200

See Attorney General v. Yihye and Ora Avraham, n. 140 above; H.C. of Justice 631/96, 1803/96 Baruch Even Tzur v. Supreme Rabbinical Court, (1996) Takdim-Elyon, 96(2), 5756/7 — 1996, 61.

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made to cure him with drugs that are less harsh and dangerous. Overly hasty and extensive use of imprisonment for the purpose of alleviating the plight of a spouse who is refused a get significantly infringes upon the right of any individual, including a recalcitrant spouse, to have his dignity and freedom defended, a right that is of great importance in Jewish and Israeli law.201 It should be noted in this context, as stated above, that according to Jewish law, with the exception of special cases that justify the imposition of coercive measures against the recalcitrant spouse, divorce is not forced upon the parties by the court, but depends on the cooperation of the husband and wife.202 It stands to reason that it would be proper to specify, either by law or by a special ruling of the Supreme Rabbinical Court, a hierarchy of the various possible sanctions, or combinations of sanctions. Imprisonment must be used as a last resort, as it deprives the recalcitrant spouse of his rights in the most drastic way. Therefore, an order of imprisonment should not be given before other restrictive orders have been used. In our opinion, with all due respect, it is necessary to amend the law. One of the new rules should state that imprisonment to compel compliance should not be imposed on the recalcitrant spouse before an attempt is made over the course of a specified period of time to impose upon him other, less severe restrictive orders. In addition, a hierarchy among the various alternatives in section 2 of the Rabbinical Courts Law, ranking the sanctions according to their severity, should be determined. Specifying this hierarchy is necessary, because barring someone from leaving the country is not equivalent to preventing him from opening a bank account, and neither of these is the equivalent of revoking a driver’s license. Setting this hierarchy would not be a simple matter, for these sanctions have never previously been invoked in Jewish law against a recalcitrant spouse. Hence there is not always a clear answer as to which sanction is to be preferred over another. To prevent both feelings of discrimination among the public, and halakhic mistakes, there should be, to the degree possible, uniformity in the judicial policies of the various panels of judges in the district rabbinical courts that impose the sanctions in the Rabbinical Courts Law. Therefore, it would be highly beneficial if the Supreme Rabbinical Court directed the district rabbinical courts as to the proper

201 See “Criminal law,” n. 1 above, 47–48. 202 See above, text at nn. 10–11.

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hierarchy of the sanctions specified in the Rabbinical Courts Law according to the principles of Jewish law. While it is true that a ruling of the Supreme Rabbinical Court is not “a binding precedent” from the perspective of the district rabbinical courts, it can be assumed that a reasoned and detailed ruling by the distinguished dayanim of the Supreme Rabbinical Court will carry great weight. At the same time, Israel’s Supreme Court should establish a policy as to the hierarchy of sanctions in the Rabbinical Courts Law, reflecting the hierarchy of infringements of the recalcitrant spouse’s rights. Since the authority to implement the Rabbinical Courts Law was placed in the hands of the rabbinical courts, and the Supreme Court acts as a supervisory body over the rabbinical courts, the Supreme Court should determine its position in this matter, following consultations with the dayanim of the Supreme Rabbinical Court, so that the positions can be coordinated. Since the law in question at present does not specify a hierarchy concerning enforcement of divorce judgments, the Supreme Rabbinical Court in Jerusalem should, in light of the aforementioned hierarchy of sanctions in Jewish law, supervise decisions of district rabbinical courts that issue severe restrictive orders.

ii

Absence of an Internal Supervisory Mechanism

The rules applying to the restrictive order imposing imprisonment to compel compliance and the restrictive order in section 2(7), which deprive the prisoner of his rights, must differ from the rules applying to the restrictive orders specified in sections 2(1)–2(6) of the law, which infringe on other civil rights, such as the rights of movement, ownership, occupation, and the like. When the restrictive orders in sections 2(1)–2(6) of the law are imposed, the degree of infringement does not equal the degree of injury to a prison inmate, who incurs additional deprivation of his rights as well as being unable to realize his rights to exit the country, drive, serve in office, engage in his profession, or enjoy the possibility of having a driver’s license, a passport or a bank account. A rabbinical court that imposes the restrictive orders mentioned in sections 2(1)–2(6) of the law infringes on the individual’s civil rights, but does not deprive the recalcitrant spouse of his liberty, for he continues to walk about freely. While there may thus be justification for the arrangement set down by the legislator, according to which the

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district rabbinical court may impose restrictive orders on its own, in accordance with its judgment and without any internal supervisory mechanisms, in our opinion, there is no justification for equating the restrictive orders set out in sections 2(1)–2(6) with the restrictive order specified in section 2(7) and the restrictive orders imposing imprisonment or solitary confinement set out in section 3 of the law. The district rabbinical court should not, on our view, implement these restrictive orders on its own. An additional internal control mechanism is especially important in light of the fact that until now, in spite of the requirement, explicitly stated in section 4 of the law, that the rabbinical court decisions imposing restrictive orders be reasoned, in practice many decisions are not reasoned in a sufficient manner. Indeed, in the Contempt of Court Ordinance referred to in the Rabbinical Courts Law, there is an external mechanism for monitoring the exercise of sanctions: the Attorney General must be notified. There is also an internal mechanism: the imposition of the sanction must be reconsidered every six months, and the prisoner must be afforded the right to plead his case. The control mechanism is sometimes reactivated, because the Rabbinical Courts Law limits the prison term to an initial term of up to five years, which may be extended to ten years. However, these controls are less significant than those specified in sections 6 and 7 of the Rabbinical Courts Jurisdiction Law, primarily because the Rabbinical Courts Law puts them entirely in the purview of the district rabbinical court. The Contempt of Court Ordinance, referred to in section 3 of the law, involves the Attorney General only after the court rules in favor of imprisonment, but does not invest him with the operative authority to prevent imprisonment from the outset. We therefore suggest that when a district rabbinical court imposes a harsh measure on a recalcitrant spouse, this decision should be approved by the Supreme Rabbinical Court. This suggestion could advance the goal of ensuring that judgments imposing restrictive orders are reasoned. From the perspective of the rabbis and dayanim too, there is a critical need to increase the reasoning adduced in rulings on enforcement of divorce judgments, and not only so that the rabbinical decisions satisfy the condition set by the legislator in section 4 of this law: they must be reasoned. The litigants and the dayan sitting on the Appeals Court must know whether in the circumstances of the case there is cause for “compelled” or “obliged” divorce. They want a judgment in which it is stated explicitly that the level of enforcement is that of compulsion or obligation, and not mitzva or

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recommendation. In recent years I have read many decisions of rabbinical courts in Israel that implemented restrictive orders. These decisions reflect the policy followed by the rabbinical courts in Israel today regarding provision of factual details, the grounds for divorce, the reasoning of the halakhic authorities, special circumstances, the duration of the husband’s refusal to give a get, or the wife’s refusal to receive a get, and so on. Unfortunately, often these decisions are short and do not include details concerning either the facts of the case or the legal reasoning. It is possible that in some cases, before the rabbinical court issued a final judgment imposing restrictive orders, it deliberated the matter and issued its ruling in light of the relevant data. Note also that more detailed articles have been published in which dayanim explain their understanding of the proper policy on the imposition of restrictive orders.203 But it would appear to us, with all due respect, that every judgment imposing restrictive orders should be detailed, and that all the relevant considerations should find full expression. To institute this policy it would be desirable for the Rabbinical Court of Appeal to be granted the authority to approve all decisions of district rabbinical courts that impose severe restrictive orders, such as imprisonment or solitary confinement. 4

Conclusion

The imposition of harsh sanctions, such as imprisonment to compel compliance, solitary confinement, or the imposition of several restrictive orders together, should be undertaken with great caution. The saying of the Sages: “If you take hold of something too large, you will lose your hold,” is often correct. The halakhic authorities tended to employ harsh coercive measures when they regarded the case for divorce as being particularly strong, for example, when the recalcitrant spouse’s behavior was considered especially grave, or after a long period of refusal to give a get. It is impossible to determine with certainty in every case the relative strength of the cause for divorce. In our opinion, the rabbinical courts should consider the circumstances of the case and the grounds for divorce carefully, and choose the appropriate restrictive orders accordingly. An attempt should be made, to the degree possible,

203

See n. 184 above.

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to set a uniform policy, to preclude large discrepancies between different panels of dayanim. Just as caution must be exercised when imposing drastic indirect sanctions, such as depriving the prisoner of his rights, and even greater caution when imposing direct sanctions, such as imprisonment or solitary confinement, consideration must also be given to the severe distress suffered by women who are refused a get. While a man whose wife refuses to accept a get can solve his problem by obtaining a dispensation to contract an additional marriage, such an option does not exist when a man refuses to give his wife a get. Therefore, along with the caution required when imposing harsh sanctions on the recalcitrant husband, serious consideration must also be given to expanding the use of the less drastic sanctions that the law allows, for example, restrictive orders that are directed at the monetary assets of the recalcitrant husband.

The Jewish Law Annual, Vol. XV

ENDS AND MEANS IN JEWISH LAW: LYING TO ACHIEVE FINANCIAL JUSTICE STEVEN H. RESNICOFF*

Can good ends justify what would otherwise be evil means? Various ethical, philosophical and theological approaches to this question, working on different assumptions, yield a range of answers. This article examines the matter principally through the prism of Jewish law, occasionally referring to other traditions for purposes of contrast. To make the study more manageable, it focuses on a single application: using deceit to bring about justice with respect to monetary matters, or for brevity, “financial justice.” By “financial justice,” we mean that which Jewish law regards as “financial justice.” Although Jewish law accords personal autonomy a critical decision-making role,1 it nonetheless regards certain moral values as objectively and absolutely valid. As Wurzburger explains, this recognition of universally-applicable ethical principles was one of the principal innovations of Jewish religious thought: Jewish monotheism represents a radically different approach to religion. Its novelty consisted not primarily in the substitution of the belief in one God for the plurality of gods worshiped in polytheism. What was even more revolutionary in the Jewish conception of monotheism was, as against the pagan emphasis upon divine power, the attribution of moral perfection to God. . . . . Worship of God involves commitment to abide by His will and the ethical norms He demands.2

* Professor of Law, DePaul University College of Law, J.D., Yale Law School, 1978; ordination, Beth Medrash Govoha, 1983; Wicklander Chair for Professional Ethics (2000–01). I am grateful to the DePaul University College of Law for the financial support that enabled me to write this article, and to Prof. Teree Foster for her encouragement. I also thank R. Aaron Small, my study-partner, with whom I studied many of the materials cited, and Ira Kasdan, who commented on an earlier draft. 1 See, e.g., Steven H. Resnicoff, “Professional ethics and autonomy: a theological critique,” in Richard O’Dair and Andrew Lewis, Law and Religion: Current Legal Issues 2001 (London: 2001). 2 Walter Wurzburger, Ethics of Responsibility (Philadelphia: 1994), 4.

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These ethical norms permeate all aspects of Jewish law, including its detailed civil and commercial law provisions. Consequently, vindicating the financial rights that persons have under Jewish law — as opposed, for instance, to their rights under an applicable secular system — is regarded not merely as a technical conflict of laws issue, but a question of achieving justice. The American legal ethics system lacks — for many, and perhaps most, of those it governs — any compelling claim to moral correctness. As a result, individuals may confront ethical dilemmas in which their moral convictions mandate that they lie, in violation of secular law.3 By contrast, the precepts of Jewish law are held, by observant Jews, to be intrinsically correct.4 Thus, an observant Jew should experience “moral” motivation to lie only in instances in which Jewish law prescribes, or at least permits, prevarication for higher purposes. Interestingly, some halakhic doctrines specifically validate secular commercial laws and practices.5 To the extent that such principles are operative, Jewish law would demand, as a matter of ethics, compliance with secular rules, whereas other approaches might not. Section I of this chapter explores halakhic attitudes to truthfulness; section II describes how candor may conflict with other important halakhic values in certain situations, and explains, generally, how such conflicts are resolved; section III analyzes the extent to which Jewish law allows deviation from the truth to achieve financial justice; section IV considers these issues in the context of rabbinical court proceedings; section V makes some concluding observations.

3

See, e.g., Matthew K. Wynia et al., “Physician manipulation of reimbursement rules for patients: between a rock and a hard place,” JAMA 283 (2000), 1858–65. 4 See Deuteronomy 4:8. 5 There are two main doctrines to this effect. The first, dina demalkhuta dina, renders certain types of secular laws binding as a matter of Jewish law. The scope of dina demalkhuta dina, however, is quite controversial. The second doctrine, minhag hasoharim, renders commercial customs effective under Jewish law. See, generally, Steven H. Resnicoff, “Bankruptcy law — a viable halachic option?”, Journal of Halacha & Contemporary Society 24 (1992), available at www.jlaw.com/Articles/ bankruptcy.html and Michael J. Broyde and Steven H. Resnicoff, “Jewish law and modern business structures: the corporate paradigm,” 43 Wayne Law Review (1997), 1685.

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Attitudes to Truthfulness6

I

God is said to have created the world through the attribute of truth.7 The Mishnah reports in the name of R. Shimon b. Gamaliel that truth is one of the three pillars that support the world, the others being justice and peace.8 The Talmud declares that truth is God’s signature.9 Subsequent authorities, citing scriptural sources, declare that God is called “Truth,” that the throne upon which He sits is truth, that all of His words are truth, that all of His judgments are truth, etc.10 Judaism demands of Jews that they emulate God. Indeed, Maimonides11 includes this as one of the 613 fundamental biblical commandments12: He commanded us to emulate Him as much as we can, as the verse says, “And you shall walk in His ways” (Deut. 28:9). And this commandment is repeated and we are told “to walk in all of His ways” (Deut. 10:12, 11:22). And it is explained: “Just as the Holy One, Blessed be He, is called gracious, you, too, should be gracious. Just as the Holy One, Blessed be He, is called merciful, you, too, should be merciful. Just as the Holy One, Blessed be He, is called righteous, you, too, should be righteous.”13 This obligation is repeated in other words when it says, “After God shall you walk” (Deut. 13:5), and it is explained that the message is that we should emulate Him as to His worthy actions and His honorable attributes by which He is described.14

6

7

8

9 10 11 12

13

14

Portions of this article were previously published as part of my “Lying and lawyering: contrasting American and Jewish law,” 77 Notre Dame Law Review (2002), 937. See, e.g., Abraham b. Eliezer Halevi Berukhim (c. 1515–1593), (compiler), Tikunei Zohar, Tikun 63; Abraham Tuvulski (contemporary), Midvar Sheker Tirhak (1988), 13, citing Israel Meir Hakohen Kagan (Hafetz Haim) (1838–1933). mAvot 1:1: “Rabban Shimon b. Gamaliel says: ‘The world stands on three things: on truth, on justice, and on peace .’” See also bShabat 104a. Cf. R. Shimon b. Tzemah Duran (Rashbatz) (1361–1444), Magen Avot, mAvot 1:18. bShabat 55a. Otiot de-Rabbi Akiva 1, cited by Tuvulski, n. 7 above, 11. R. Moses b. Maimon (Rambam) (1135–1204). Rabbinic tradition holds that there are 613 biblical commandments. The halakhic authorities disagree, however, on precisely which rules comprise these 613 commandments. Although Maimonides suggests that this language is from bSota 14, that text does not use these words. It seems that the correct reference is Sifre Deuteronomy 10:12. Book of Precepts, positive commandment 8.

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Consequently, just as God is truthful, Jews are required to be truthful.15 The Hinukh makes this point explicitly, stating: Lying is abominable and disgusting in the eyes of everyone; nothing is more repulsive. Malediction and cursedness is in the homes of all who love it, because God, blessed be He, is a God of truth, and everything that is near Him is truth, and blessing is not found and does not fall upon anyone other than those who emulate Him by their actions.16

The Torah also explicitly directs a person to stay far from falsehood when it states, “Keep thee far from a false matter (midvar sheker tirhak)” (Exod. 23:7).17 Although some authorities suggest that the applicable biblical verse applies only to judges conducting litigation,18 others characterize it as giving rise to a far more sweeping biblical ban against prevarication.19 Even many of those who think this particular verse is directed to judges believe that there is a broad, independent biblical 15 Meir Meiseles (contemporary), Judaism: Thought and Legend (Israel: 1964), 89. 16 Sefer Hahinukh, precept 74. Authorship of this work has historically been attributed to Aaron b. Joseph Halevi (1235–1300), although scholars debate whether this attribution is correct. 17 This verse not only proscribes lying, but requires that one distance himself from falsehood. The commentators point out that this is the only biblical warning that uses such language (see Hafetz Haim, Sfat Tamim, ch. 6), and one of only two places where the Torah does not merely prohibit a particular act or substance, but explicitly erects a “protective fence” around the proscription. (The second is the rule against eating leavened food (hametz). Although the principal prohibition is against eating hametz during Passover, the Torah also forbade the eating of hametz during part of the day immediately preceding Passover.) What constitutes coming too close to a falsehood? R. Moses Sofer (Hatam Sofer) (1762–1839), a leading Torah authority, gives an example. If the Torah had merely forbidden falsehoods, then someone who caused another to utter a lie but did not himself lie would not be violating the rule. Because the Torah requires one to distance oneself from falsehoods, someone who causes another to lie breaches the rule himself. See Responsa Hatam Sofer III, EH:20. 18 See, e.g., Haim b. Isaac Volozhiner (1749–1821), Hut Hameshulash 1:16. 19 See, e.g., Maimonides, n. 13 above, positive commandment 281; R. Eliezer b. Samuel of Metz (Reem) (12th c.), Sefer Yereiim 235; R. Moses b. Jacob of Coucy (13th c.), Sefer Mitzvot Gadol, positive commandment 107; R. Isaac b. Joseph of Corbeil (Semak) (13th c.), Sefer Mitzvot Katan 226; Hahinukh, n. 16 above, commandment 74; Hezekiah de Silva (1659–1695), Pri Hadash, OH 496:16; Eliezer Waldenberg (b. 1917), Tzitz Eliezer 15:12; Moses Feinstein (1895–1986), Igrot Moshe, OH 2:51.

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prohibition against lying generally.20 In fact, the majority view is that even seemingly “harmless” dissembling not intended for any improper purpose is biblically proscribed, unless some specific exception applies.21 Indeed, at least one contemporary authority22 contends that the leading exponent of the minority view23 would agree that such lying is, at the very least, Rabbinically proscribed. Depending on the circumstances, those who lie may also be transgressing additional prohibitions. Deceiving someone, for instance, violates the law against “stealing a person’s consciousness (gneivat daat).”24 This is considered even more blameworthy than stealing someone’s possessions,25 because the injury to the victim is more personal and direct; it is not merely a financial injury that can be rectified through the payment of money. If the fraud wrongfully induces the victim to part with property, 20

21

Citing verses such as “The remnant of Israel shall not do iniquity, nor speak lies, neither shall a deceitful tongue be found in their mouth” (Zeph. 3:13), quoted by, for instance, R. Solomon b. Adret (Rashba) (1235–1310), Responsa Rashba III:81; “They have taught their tongue to speak lies, they weary themselves to commit iniquity” (Jer. 9:4), quoted, e.g., by R. Waldenberg, ibid.; “Speak truthfully each to his fellow . . . ; misfortune for your fellow do not plan in your hearts and a false oath you must not cherish, for these things do I hate . . . .” (Zech. 8:16), quoted by the Hafetz Haim, n. 16 above, ch. 1. See also Leviticus 19:11 (“neither shall ye deal falsely, nor lie one to another”). See, e.g., the position of R. Isaac Aboab (14th c.), cited in Louis Jacobs (ed.), Jewish Ethics, Philosophy and Mysticism (NY: 1969), 33: Even comparatively harmless lies are forbidden. There are people, for example, who tell lies whenever they relate events which happened, without any gain to themselves and without causing harm to others, but they imagine that the telling of untruths is of some benefit to them. … This, too, is forbidden on the grounds of “They have taught their tongue to speak lies, they weary themselves to commit iniquity” (Jer. 9:4) even though the penalty for this is less severe than the penalty to those who tell lies in order to mislead others or to harm them.

See also Aaron Levine, Case Studies in Jewish Business Ethics (Hoboken, NJ: 2000), 5. 22 See Tzitz Eliezer, n. 19 above. 23 Sefer Yereim 235. 24 See, e.g., bHulin 94a; Maimonides, Code, Laws concerning Ethics 2:6. 25 According to many authorities, this prohibition against deception is biblical, derived from the verse “Thou shalt not steal” (Lev. 19:12), and may apply even in some situations in which the theft of money is not necessarily biblically proscribed.

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the deceiver is deemed to have stolen the property as well.26 Similarly, one who lies when testifying before a rabbinical court flouts the biblical injunction not to bear false witness,27 and one who lies when taking an oath violates the prohibition against taking God’s name in vain.28 Countless statements in the Jewish sources underscore the critical importance of truthfulness, the reward for those who are truthful and the punishment awaiting those who are not.29 One who is truthful receives special providential protection,30 is rescued from adversity,31 avoids sin,32 enjoys success33 and long life34 and ushers in the ultimate redemption of the Jewish people.35 On the other hand, it is said that God “hates” someone who thinks one thing, but says another,36 that such a person is like one who commits idolatry,37 and that a liar is like one who is dead.38 II

Resolving Conflicts between Truth and Other Values

In addition to emphasizing the importance of truth, Jewish law recognizes many other values, such as the prevention, amelioration or elimination of suffering and injustice, the promotion of peace, justice and personal dignity, and the preservation of human life. In some situations, deceitful means,39 if permitted, might effectively advance such

26 27 28 29

30 31

32 33 34 35 36 37 38 39

See, e.g., Igrot Moshe, HM 2:30; Menashe Klein (contemporary), Mishne Halakhot 7:275. Hahinukh, n. 16 above, commandment 74. See, e.g., Exodus 20:7, Leviticus 5:4, Deuteronomy 5:11. See, e.g., Tuvulski, n. 7 above; Jacob Fish (contemporary), Titen Emet Leyaakov, 3rd ed.; R. Ezra Joseph Basri, Dinei Mamanot I, 2nd ed., Jerusalem: 1990, 444–47. Moses b. Jacob Cordovero (1522–1570), Tomer Dvora, cited by Tuvulski, n. 7 above, 13. See, e.g., Tuvulski, ibid., 12, citing Elijah b. Moses de Vidas (16th c.), Reishit Hokhma, Kedusha, 12, and Yehiel b. Yekutiel Anav (13th c.), Maalot Hamidot, Tmimut. Judah b. Samuel the Pious (1150–1217), Sefer Hasidim 648. Menorat Hamaor, cited in Tuvulski, n. 7 above, 12. Tomer Devorah, cited in Tuvulski, 13. Nahman of Bratslav, Sefer Hamidot, cited in Tuvulski, 15. bPesahim 113b. bSanhedrin 92a. See, e.g., Fish, n. 29 above, 6, who quotes R. Menahem b. Solomon Meiri. For purposes of this paper, we will define “deceitful means” as the use of words or conduct for the purpose of conveying a message that is untrue.

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values. Ethically, may such means be employed to accomplish laudable goals? One possible response is to reject such means and to treat the obligation to avoid falsehood as morally inviolable. This is the approach favored by the Church. For example, Augustine, Bishop of Hippo (354–430), identifies eight types of lie, all of which he declares wrongful.40 Not only does he forbid lying to save a person’s life in this world, he even proscribes it to save one’s eternal life in the world to come.41 Thomas Aquinas employs a different typology, categorizing lies as either officious (helpful), jocose (jestful)42 or mischievous (malicious), but agrees with Augustine that all lies are sinful.43 Of course, not all Christian theologians have agreed with this position.44 40

“Therefore, it is not true that sometimes we ought to lie” — Augustine, “Against lying,” trans. Harold B. Jaffe, in Roy J. Deferrari (ed.), Saint Augustine: Treatises on Various Subjects (NY: 1952), 174. 41 “Since, therefore, eternal life is lost by lying, a lie may never be told for the preservation of the temporal life of another” — Augustine, “On lying,” trans. Mary S. Muldowney, in Deferrari, ibid., 67. As to eternal life, Augustine declares: Sometimes we are confronted also with danger to eternal welfare itself, which we are importunately told must be averted by our lying if it is not possible otherwise. . . . From this most invidious importunity whereby we are urged to lie not on behalf of anyone’s transitory wealth or honor in this world, not on behalf of this life here below but on behalf of a man’s eternal salvation — from this importunity where shall I take refuge, O Truth, except in Thee? (“Against lying,” in Deferrari, ibid., 176) 42

Interestingly, in “On lying,” ibid., 54, Augustine writes: In this treatise I am excluding the question of jocose lies, which have never been considered as real lies, since both in the verbal expression and in the attitude of the one joking such lies are accompanied by a very evident lack of intention to deceive, even though the person be not speaking the truth.

43

Aquinas, however, contended that only mischievous lies were “mortal sins.” See Sissela Bok, Lying: Moral Choice in Public and Private Life, 2nd ed. (NY: 1999), 34. 44 It is said, for instance, that the Papal envoy in Istanbul, Angelo Guiseppe Ronacalli, later chosen to be Pope John XXIII, agreed to a plan whereby the Catholic church issued false baptismal certificates to Jews in Budapest to protect them from capture by the Nazis during World War II. See L. Elliott, I Will Be Called John, a Biography of Pope John XXIII (NY: 1973), 166. It is possible that Jewish law might not have permitted Jews to make use of such certificates. See, e.g., Irving J. Rosenbaum, The Holocaust and Halakhah (NY: 1976), 44–46.

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Among secular philosophers, Immanuel Kant is perhaps the most well-known for embracing this approach, maintaining that truthfulness is a categorical imperative. He posits a case, for instance, in which a murderer comes to a house seeking a particular person. The murderer asks if his prospective victim is in the home, and he is, in fact, there. Kant concludes that it would be morally wrong to lie to the murderer even if the lie would be believed and the victim’s life thus spared.45 With one (qualified) exception,46 Jewish law rejects this position.47 Despite the importance of truthfulness, Jewish law allows, and in some cases demands, resort to deceit in order to accomplish certain worthwhile ends. The Talmud proves this by reference to the statement made to Joseph by his brothers after the death of their father Jacob: “It is permitted to stray from the truth in order to promote peace, as it is written, “Your father commanded [us before his death], saying: Thus shall you say to Joseph: Please forgive [the evil deed of your brothers and their sin . . . ]” (Gen. 50:16–17).”48 As explained by the traditional commentators, the Talmud assumes that Jacob never issued such a directive.49 When their father died, however, the brothers were afraid that Joseph might seek to take revenge on them. They sought to protect themselves and promote fraternal harmony by lying to him. 45

46

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48 49

See “On a supposed right to lie from altruistic motives,” in I. Kant, Critique of Practical Reason and Other Writings in Moral Philosophy, L. Beck trans. and ed. (Chicago: 1964), 346, excerpt in Bok, n. 43 above, 268. Kant states the general principle thus: “Truthfulness in statements which cannot be avoided is the formal duty of an individual to everyone, however great may be the disadvantage accruing to himself or to another.” The exception being that a Jew, even in an effort to save his life, may not say that he is an idolater. See R. Joseph Caro (the Beit Yosef ) (1488–1575), Shulhan Arukh [henceforth SA], YD 157:2. Nevertheless, to save his life, he may employ ambiguous language that might be misunderstood by his interlocutor. Irving Rosenbaum, n. 44 above, 163–64, n. 31, relates a wellknown story about a Jewish scholar who, when asked in German whether he was a Jew, would reply, “Kein Jude.” The German listener would understand this to mean, “No, [I am not a] Jew,” because the word “kein” in German means “No.” In Hebrew, however, “kein” is the word for “Yes.” In giving this answer, the scholar had in mind, “Yes, I am a Jew.” Such an ambiguous response, in a case of great danger, is permitted. See, e.g., the comments of R. Jacob Kamenetsky (20th c.), reported in Y. Rosenblum, Reb Yaakov: The Life and Times of HaGaon Rabbi Yaakov Kamenetsky (NY: 1993), 334. bJebamot 65b. See, e.g., Solomon b. Isaac (Rashi) (1040–1105), Commentary, Genesis 50:16.

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The Talmud then cites R. Nathan, who contends that lying to promote peace is not merely permitted, but required. R. Nathan bases this conclusion on an exchange between God and the prophet Samuel. God directs Samuel to go to Bethlehem and anoint David King of Israel to replace Saul. Samuel, however, is concerned lest Saul learn the purpose of his mission and kill him. God replies by telling Samuel to take an animal with him and, if questioned about the reason for his trip, to say that he had come to offer a sacrifice to God.50 The Talmud then underscores the importance of promoting peace by citing the conduct of God Himself: Great is peace, because to promote it even God altered the truth. At the beginning, it is written [that Sarah said, upon hearing one of the three visitors tell Abraham that she would give birth to Isaac], “And my husband is old” (Gen. 18:12) and at the end [when God quotes Sarah’s comments to Abraham] it says, “And I [Sarah] have grown old” (Gen. 18:13).51

Commentators explain that God was concerned that had Abraham heard that Sarah had referred to him as old, the relationship between Abraham and Sarah might have suffered.52 While other scriptural verses53 could also be adduced to justify dissembling in particular settings, those identified in the passage from bJebamot are the most commonly cited. Yet these cases suggest possible limitations. For example, it would appear that they fail to prove that 50

See I Samuel 16:2–3. The talmudic passage reads as follows: R. Nathan says: It [i.e., lying to promote peace] is a commandment (mitzva), as it is written: “And Samuel said [to God]: How can I go up [to Bethlehem to anoint David as King]? Saul will hear about it and kill me,” and so on [the biblical verse continues: “And the Lord said, Take a heifer with you, and say, I have come to sacrifice to the Lord”].

51 52 53

bJebamot 65b; see also bBaba Metzia 87a. Rashi on Genesis 18:13. For example, the midwives lie to Pharaoh about the Jews’ birthing process to save the lives of Jewish newborns (Exod. 1:19). Similarly, for purposes of safety, Abraham describes his wife as his sister (Gen. 20:2), as does Isaac of his own wife (Gen. 26:7). When Joseph first sees his brothers in Egypt, he falsely asserts that they are spies (Gen. 42:9, 14). And, in the world’s most famous contested maternity case, King Solomon deceptively announces a decision to cut the baby in half (I Kings 3:25). Eliezer, Avraham’s servant, reverses the order of events when he narrates them to Rebecca’s father and brother to avoid complications in obtaining consent for Rebecca’s marriage to Isaac (Rashi on Gen. 24:47). Jacob masquerades as Esau to receive his father’s blessing (Gen. 27:19). Many more instances

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explicit lies are permitted other than to prevent substantial harm.54 However, normative Jewish law in fact allows express lies for the positive purpose of promoting peaceful interpersonal relations even in the absence of a threat of actual harm. Moreover, a third party can make such statements to promote peace between others. It is, in part, for precisely this practice that the High Priest Aaron, brother of Moses, was highly praised as someone who loved peace.55 When Reuven and Shimon quarreled, Aaron would go to Reuven and tell him that Shimon was terribly sorry for what he had done, but too embarrassed to ask Reuven for forgiveness. Aaron would beseech Reuven to go to Shimon and make amends. Aaron would then go to Shimon, say the same things about Reuven, and ask Shimon to reach out and reconcile with Reuven. In this way, Reuven and Shimon would make peace without either being embarrassed or having to admit his guilt.56

could be adduced. Of course, the halakhic authorities describe some of these cases in ways that preclude their being used as more generalized justifications for deceit. The case of Jacob and the blessing, for instance, is explained as involving a direct prophecy from God to Jacob’s mother Rebecca. See, e.g., Abraham Isaiah Karelitz (Hazon Ish) (1878–1953), Emuna Uvitahon, 4:13; Onkelos (2nd c.), Targum Onkelos, Genesis 27:13. Under Jewish law, prophecies, on an emergency basis, can authoritatively call for isolated acts that would otherwise be impermissible. See, e.g., R. Nissim b. Reuven of Gerona (Ran) (1320–1380) on bNedarim 90b s.v. ika lemeidak. 54 The case of Samuel (and possibly the case of Joseph’s brothers), for instance, could be limited to permitting prevarication to avoid the risk of death or great bodily harm. Although the case involving Sarah’s statement involved much less risk, the degree of deception permitted in that instance was quite small, amounting perhaps only to omission, rather than outright lying. Consequently, one might argue that the three cases do not prove that direct lies can be used to promote peace unless it is necessary to avoid the risk of serious bodily injury. Some authorities contend that there are restrictions, for instance, that unless there are already hostilities, one may not promote peace through an explicit lie, but only by using ambiguous language. Similarly, some think that one may only misrepresent the past or present, but not the future. Nevertheless, it seems that most authorities do not accept these restrictions. See, e.g., Fish, n. 29 above, 66–70. 55 bSanhedrin 6b. 56 See Eisenstein, Otzar Hamidrashim, pp. 78ff.; R. Simha of Vitri (11th–12th c.), Mahzor Vitri 424 s.v. hilel veshamai. This type of behavior helped make Aaron more generally beloved among the people than Moses. See also bSanhedrin 6b.

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The Talmud and later authorities apply an expansive concept of “promoting peace” to permit dishonest means for a variety of objectives,57 including, to make someone feel better,58 to avoid embarrassment,59 to prevent disclosure of a confidence with which one was entrusted,60 to foil an evildoer’s plot,61 to avoid the exploitation of someone’s virtues,62 to persuade someone as to the proper interpretation of the law,63 to cause someone to observe a precept,64 or to enable someone to display personal humility.65 How are these rulings consistent with the obligation to distance oneself from falsehood? Some of these cases can be justified on the basis of general principles of Jewish law, which, while arguably recognizing all lies to be intrinsically evil, find such evil justified in particular situations. For example, Jewish law recognizes human life as of almost paramount importance. Consequently, with a few important exceptions,66 other rules, including the laws against lying, may be violated, if necessary, to preserve life.67 However, these basic principles do not permit relaxation of legal strictures simply to achieve financial justice.

57

58

59 60 61 62 63 64 65 66

67

R. Joseph Haim (Ben Ish Hai) (1832–1909) cites numerous instances throughout the Talmud where misrepresentations are permitted. See Responsa Torah Lishma, #364. See, e.g., bNedarim 50 (to console someone); bKetubot 17 (according to the School of Hillel, to increase the joy of newlyweds). Various examples are cited by Fish, n. 29 above, 62. See, e.g., bBerakhot 43b; Fish, ibid., 182. Fish, ibid., 76–77. See, e.g., bJebamot 106a. bBaba Metzia 23b; Rashi, bBaba Metzia 24a s.v. beushpiza. bEruvin 51a; Ben Ish Hai, n. 57 above, citing Tanna Devei Eliyahu. Fish, n. 29 above, 57–58. bBaba Batra 8a; Rashi, bBaba Metzia 23b s.v. bemasekhet. A discussion of these exceptions exceeds the scope of this paper. See, generally, Steven H. Resnicoff, “Jewish law perspectives on suicide and physician-assisted dying,” 13 J. Law & Religion (1998–9), 308–12. See, generally, SA, YD 157:1; Maimonides, Code, Laws concerning the Fundamental Principles of the Torah 5:2. Jewish law requires that one attempt to prevent a pursuer (rodef ) from killing his intended victim even if one has to kill the pursuer to do so. See Resnicoff, ibid., 314–16; Aaron Kirschenbaum, “The bystander’s duty to rescue in Jewish law,” in Martin P. Golding (ed.), Jewish Law and Legal Theory (NY: 1993). Another example is that the duty to save a life may justify lying to one who is critically ill if telling the truth would imperil his survival. See, e.g., J. David Bleich, Bioethical Dilemmas: A Jewish Perspective (Hoboken, NJ: 1998), 27–60.

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In other instances, lying may be necessary for the fulfillment of a particular affirmative commandment. Jewish law provides that when there is a conflict between an affirmative commandment (usually understood as a commandment that requires commission of an act) and a negative commandment (usually understood as a commandment that forbids commission of an act), precedence is given to the former and the act is to be performed. The obligation to protect people from harm, including non-deadly physical harm as well as financial harm,68 is arguably an affirmative commandment, and accordingly, may justify violation of the prohibition against lying to ensure such protection.69 Still other general principles might explain a number of additional cases.70

68 69

See Resnicoff, n. 66 above, 63; Kirschenbaum, ibid. There is a disagreement among the authorities as to how to classify a commandment as “affirmative” or “negative.” See, generally, Resnicoff, ibid., 300–301. According to some, the key is the relevant language in the Torah. If the applicable verse expresses the obligation in positive language that requires an action, the commandment is affirmative. If the Torah expresses it as a prohibition, then the commandment is negative. Another approach focuses on whether the commandment, in fact, requires action. If it does, it is considered an affirmative commandment. The Torah commands that one “not stand idly by his fellow’s blood” (Lev. 19:16). This is construed as requiring assistance not only when another is in physical danger, but also when he is danger of financial loss. On the first approach, since it is phrased as a prohibition, this commandment is a negative commandment. See, e.g., Igrot Moshe, YD 2:174(4); Zvi Hirsch Shapiro, Darkei Teshuva, YD 157:57 (citing Responsa Zera Emet 2:51). On the second approach, this commandment, which has the effect of requiring action (in that one is told not to stand idly by), is an affirmative commandment. See, e.g., Mordekhai b. Moses Schwadron (1835–1911), Responsa Maharsham 2:54. Hence, Jewish law would generally require violation of a negative commandment so that this affirmative obligation can be fulfilled. Of course, it is also arguably unclear whether the commandment to distance oneself from falsehood (midvar sheker tirhak) is an affirmative commandment or a negative commandment. The obligation is worded in the affirmative, as a duty to actively distance oneself from a false matter — sheker, and one could argue that it obligates a person to take affirmative steps to distance himself from falsehood. Nonetheless, the commandment seems to be understood as a negative one, because, in fact, its function is to tell people not to engage in lying and not to come too close to lying. Accordingly, the functionally affirmative commandment not to stand idly by would trump the functionally passive commandment not to lie. 70 There is an obligation, under certain circumstances at least, for one Jew to prevent another from transgressing Jewish law. See, generally, Resnicoff,

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These various doctrines, however, do not seem sufficient to cover all leniencies as to truth-telling, especially those in which lies are employed simply to help cultivate more peaceful relations rather than to avert some possible harm or transgression. The rule against lying is relaxed under circumstances in which other prohibitions would remain intact. As a result, additional explanation is needed. A bold suggestion is offered by R. Elijah Dessler, who takes a counterintuitive approach to the definition of the terms “truth” and “falsehood.” He contends that statements conducive to that which is “good” (viz., to a result desired by God) are “true,” and those that impede such a result are “false.”71 What is truth and what is falsehood? When we went to school we were taught that truth is to tell the facts as they occurred and falsehood is to deviate from this.

71

n. 66 above, 324–27; idem, “Helping a client violate Jewish law: a Jewish lawyer’s dilemma,” in H.G. Sprecher, Jewish Law Association Studies X (Binghamton: 2000), 213–14. There is debate as to whether this rule has biblical or Rabbinic status. See, e.g., Abraham Samuel Sofer (1815–1871), Ketav Sofer, YD 83 which cites a number of views on this, and Isaac Belzer, Pri Yitzhak 1:53, which contains a responsum by R. Naftali Amsterdam that discusses these views and concludes that the duty is biblical. Many authorities maintain that one may use physical force to fulfill this duty, at least under certain circumstances. See Jacob Isaiah Blau (contemporary), Pithei Hoshen, Nezikin 2:6. If the duty is biblical, then the principle that an affirmative commandment supersedes a negative commandment might explain why a person could lie to save someone from violating Jewish law. If, however, the duty is Rabbinic, another explanation is required. Jewish law gives rabbinical authorities a rarely used right to promulgate duties that would allow, or require, means otherwise forbidden. It is possible that the Rabbis relied on this authority when they established the duty to prevent a fellow Jew from sinning. If so, their enactment may have permitted not only the use of physical force but the use of lies as well. A somewhat similar thought is expressed by the author of Alei Shor: “It is well known that the prohibition against gossip (lashon hara) involves saying something that is true, but said for the purpose of harming [someone]. . . . Therefore, we are compelled to conclude that a wrongful intention makes a true thing false. It turns out that falsehood is not only distortion of facts, but even if the facts are true, but said for an evil purpose, [the statement] is false,” quoted in Fish, n. 29 above, 204. R. Dessler goes further, arguing that a good purpose can transform a distortion of the facts into truth.

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STEVEN H. RESNICOFF This is true in simple cases, but in life many occasions arise when this simple definition no longer holds good. Sometimes it may be wrong to “tell the truth” about our neighbor, unless overriding purpose and necessity require this. And sometimes it may be necessary to change details, when the plain truth would bring not benefit but injury. In such cases what appears to be true is false, since it produces evil effects; and what appears to be false may help to achieve the truth. We had better define truth as that which is conducive to good and in conformity with the will of the Creator, and falsehood as that which furthers the scheme of the Prince of Falsehood, the power of evil in the world.72

Sometimes statements that inaccurately reflect reality are nonetheless conducive to good. According to R. Dessler, such statements are true. R. Eliezer b. Samuel of Metz takes a slightly different position. He does not deny that statements that do not reflect reality are false. Instead, he maintains that the commandment to distance oneself from falsehood only applies to falsehoods that are intended to cause harm.73 Thus, according to R. Dessler and Reem, the fact that it is permissible to lie to achieve a desirable objective is not an exception to the rule against falsehoods. Rather, R. Dessler views such statements as truths, and Reem, while considering the statements to be lies, believes that the duty to distance oneself from lies does nor apply to well-intended lies. Arguably, these views are consistent with the conclusion that falsehoods are not intrinsically evil.74 In discussing the carefully planned measures Jacob took to ensure that his father-in-law, Laban, did not cheat him out of his rightful compensation for many years of labor, the Talmud suggests another approach.75 When Jacob tells his wife, Rachel, that, with regard to 72 Elijah Dessler (1891–1954), Strive for Truth, trans. A. Carmel (NY: 1985) 1, 267. 73 See Sefer Yereiim 235. Isaac Sternhell (20th c.), Kokhvei Yitzhak, #16, and Wurzburger, n. 2 above, 88, are among many who cite, but do not necessarily agree with, the view of the Reem. An interesting difference would arise between R. Dessler and the Reem in a case where someone distorts the truth for a reason neither good nor bad. According to the Reem, the distortion is a falsehood, but the Torah did not prohibit it. According to R. Dessler, the absence of a good purpose might leave the distortion a falsehood, and possibly, prohibited. 74 A variation on the Reem’s view would hold that, while the commandment to distance oneself from falsehood may apply even to some wellintended lies, there are a variety of specific exceptions based on specific sources, and not simply inferred from general principles of Jewish law. 75 bBaba Batra 123a.

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deception, he is “Laban’s brother,” that is, that he is as adept as Laban, she asks, “And are the righteous permitted to engage in deceit?” He answers affirmatively, citing the verse, “With the pure you act purely, with the corrupt you act perversely.”76 The Dutch philosopher Hugo Grotius, more than a 1,000 years after the redaction of the Talmud, echoes this approach when he contends that some people do not deserve the truth, and lying to them is not wrong.77 Having considered the general attitude of Jewish law to truthfulness, and how it deals with situations where truthfulness competes with other important values, we can now turn specifically to the permissibility of lying to bring about financial justice. The next section, III, deals with such situations generally, while IV focuses on conduct in the context of rabbinical court proceedings.

III Prevarication in Contexts Other than Rabbinical Courts Jewish law appears to allow lies, outside the context of the rabbinical court, for the purpose of vindicating one’s rightful financial interests. The Talmud, for instance, discusses a case where R. Judah and R. Jose entrusted their purses to an innkeeper who subsequently denied he had received them.78 From observing the innkeeper, the rabbis deduced he had eaten lentils at his last meal.79 When the innkeeper was away from the inn, the rabbis went to the innkeeper’s wife, and told her that he had sent them to get their purses. As a sign that they were telling the truth, the rabbis said the innkeeper had told them to say that his last meal had consisted of lentils.80 76 II Samuel 22:27. 77 See Bok, n. 43 above, 15. 78 bYoma 83b. 79 Jewish law requires washing of the hands before and after a meal at which bread is eaten. At the end of a meal, it was customary for men to wipe their mustaches clean with their still damp hands. Just as the innkeeper did not observe the law against withholding that which had been entrusted to him, so he did not observe the law of washing after a meal. As a result, a bit of lentils still adhered to his mustache. From this, the rabbis deduced that he had eaten lentils. 80 Similarly, a non-legal source, Pesikta Rabati, parsha 22, states that Elijah the Prophet appeared to someone in a dream and advised him to use this same stratagem to recover money that he had entrusted to another. See also Fish, n. 29 above, 90.

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Similarly, suppose someone hires employees to do a certain project, and the employees threaten to back out. The Talmud states that if the employer would suffer a loss should the employees carry out their threat, the employer may trick them by promising to pay more if they continue to work for him. After the fact, however, he need only pay the original agreed-upon wage.81 Interestingly, traditional common law adopted the same rule.82 Suppose someone has a pre-existing contractual duty to pay money or provide services, but refuses to do so. To induce him to reaffirm his obligation to perform, the obligee promises to pay more money. In most American jurisdictions, even if the obligor reaffirms and fulfills his commitment, the obligee will not be required to fulfill his side of the “new” bargain. Why? The contract was not enforceably modified against the obligee because he did not receive “consideration” for his new promise. The obligor’s promise to do that which he was already

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bBaba Metzia 75b–76a. See also SA, HM 333:5. Blau (n. 70 above, Halvaa Veaveida, 6:1 n. 5), however, suggests that this case might be characterized as one that does not involve deceit. Had the employer been forced to employ alternative employees at a higher wage, he could have sued the original employees for the loss their wrongful withdrawal caused him. This loss would be the difference between the original wage agreed on and the higher wage ultimately paid to the substitutes. Where the original employees agree to continue working for a higher wage, the employer is ultimately only required to pay the original wage. R. Blau argues that this can be construed as the employer’s fulfilling his promise to pay a higher wage but, before doing so, reducing it by the loss the employees caused him, namely, the difference between the original wage and the higher wage. Under traditional common law, in fact, the employer would not have been sanctioned for lying even if he could have hired replacement workers without suffering any financial loss. Some modern American courts, however, may follow a rule, announced in the Restatement of Contracts (2nd), §89, that, in certain circumstances, would bind the obligee to the new terms. This Restatement provision states: A promise modifying a duty under a contract not fully performed on either side is binding (a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; or (b) to the extent provided by statute; or (c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise.

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duty-bound to do is not consideration. Nor is the obligee liable in damages for the tort of “deceit,” because the obligor suffered no damages. The obligor was obligated to carry out his commitment before the obligee’s new promise; performance of a duty is not deemed to constitute damage. In a secular case illustrating these principles, a lender initiated foreclosure proceedings against a debtor who was in default.83 The lender agreed to dismiss its foreclosure action and give the debtor additional time if the debtor would at least pay the overdue interest. Although the debtor paid the interest, the lender proceeded with the foreclosure. When the debtor sued for breach of contract and deceit, he lost. Because the debtor was already obligated to pay the interest (as well as the overdue principal), by promising to do so the debtor did not provide any new “consideration” that would make the lender’s reciprocal promise legally enforceable. Paying the overdue interest was the debtor’s legal obligation, and causing him to do so was not causing him any legal harm. Despite the gravity with which false vows are viewed, the Mishnah even allows one to take a radically misleading vow in order to protect his wealth from wrongdoers. The Mishnah states: Vows may be made to murderers, robbers or tax-gatherers84 that what they have is a heave-offering [i.e., consecrated for priestly consumption and therefore of limited or no use to robbers] even though it is not a heaveoffering; or that they belong to the king’s household [thus robbers should beware] even though they do not belong to the king’s household.85

What about the use of deceit with respect to secular legal proceedings? As a practical matter, secular law recognizes that deceit can be useful to ferret out the truth. Law enforcement agencies, civil rights groups and consumer advocates often use sting operations or moles to uncover illegal conduct, and the fruits of such activities are often admissible in court. Similarly, carefully crafted misrepresentations

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Sinclair v. State Bank of Jerseyville, 207 Ill.App.3d 430, 566 N.E.2d 44, 152 Ill.Dec. 516 (1991). 84 The Talmud makes it clear that the Mishnah is not referring to legitimate tax-collectors who have proper authority under the secular law to levy fixed taxes, but rather, to those who would extort payments they seek to legitimize by referring to them as “taxes.” See bNedarim 27–28. 85 mNedarim 3:4.

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seem to play an important role in the police interrogation of suspects and witnesses. In many cases, the successful utilization of these strategies garners more kudos than censure, though some always decry resort to such tactics.86 Nevertheless, secular law increasingly seems to condemn deceitful practices as the activities approach the courtroom.87 Thus, a court declared that the filing of a fictitious criminal proceeding so that persons testifying falsely in the proceeding could be tried for perjury constituted prosecutorial misconduct.88 Similarly, the courts that have addressed the issue in published opinions have, for various reasons, held that it is improper for an attorney to have someone other than his client sit next to him in court for the purpose of causing witnesses to misidentify the person as the attorney’s client.89 A number of post-talmudic halakhic authorities, however, conclude that, to bring about justice, Jewish law may permit some forms of misrepresentation in a secular proceeding.90 To understand this position, however, it is first necessary to recognize that, as a general rule,

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See, generally, Jesselyn Alicia Radack, “The big chill: negative effects of the McDade Amendment and the conflict between federal statutes,” 14 Georgetown Journal of Legal Ethics (2001), 707; Christopher Slobogin, “Deceit, pretext, and trickery: investigative lies by the police,” 76 Oregon Law Review (1997), 775. For critique of such positions, see, e.g., Deborah Young, “Police lying in interrogations,” 28 Connecticut Law Review (1996), 425. American legal ethics systems actually adopt role-differentiated rules that broadly prohibit lying by lawyers even when the lying is unrelated to the practice of law. For critique of this approach, see, e.g., Resnicoff, n. 6 above. Nigrone v. Murtagh, 369 N.Y.S. 2d 75 (App.Ct. 1975). Each of the few instances in which such conduct triggered a reported decision, however, involved additional complicating variables, such as failing to advise the court of the ploy or dressing the ersatz client in a misleading manner. See, generally, James A. Francque, “Note: People v. Simac: how much is too much advocacy?”, 26 Loyola University of Chicago Law Journal (1995), 793. See, generally, Fish, n. 29 above, 89–91. A similar issue arises as to the permissibility of bribing a judge. It is forbidden to bribe a rabbinical court judge even if the bribe is only given for the judge to reach the right result; see Exodus 23:8; Deuteronomy 16:19. And see J. David Bleich, Contemporary Halakhic Problems IV (Hoboken, NJ: 1995), 99. Whether it is forbidden to bribe a non-Jewish judge to reach the right result is the subject of debate among the authorities, e.g., Yair Bachrach (1638–1702), Havot Yair, 136.

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Jewish law forbids Jews from suing each other in secular court. The Torah states, “And these are the laws that you must set before them” (Exod. 21:1), and proceeds to articulate various laws. The Talmud cites R. Tarfon, who interprets this verse as a directive to Jews to submit their disputes to Jewish courts rather than to secular tribunals. R. Tarfon says that this is true even if the secular court would apply the same rules as the rabbinical court.91 Maimonides, on the basis of this talmudic source, writes as follows: Everyone who litigates according to the laws of Gentiles92 and in their courts, even if their law is the same as Jewish law, is an evildoer, and it is as if he blasphemed, cursed and committed violence against the Torah of Moses our Teacher.93

Nonetheless, once someone has obtained a rabbinical court judgment, he may, in certain circumstances, be allowed to enforce it in secular court. So long as the litigant first avails himself of the Jewish court system, his ultimate resort to the secular system, especially if it is made with the explicit permission of a rabbinical court, is not perceived as a slight to the Torah. R. Sherira Gaon writes: Where one is judged to be liable by a rabbinical court, but it is impossible [through the Jewish court] to exact payment from him, and there is a secular court that does not take bribes and does accept testimony from Jews as to Jews, then the elders [i.e., the rabbinical court judges] and the students

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bGitin 88b. Neither R. Tarfon nor Maimonides speak of “Gentiles.” Instead, they use the word “akum,” an acronym for “ovdei kokhavim umazalot,” literally, starworshipers, a term used for idolaters in general. Nonetheless, virtually all the halakhic authorities explain that in the context in question, the term is intended to refer to all Gentiles and all Gentile courts. See, e.g., Rashbatz, Responsa Tashbetz, II:290; Avraham ibn Tawa (16th c.), Responsa Tashbetz, IV, 3:6; Igrot Moshe, HM 1:58; Simcha Krauss, “Litigation in secular courts,” Journal of Halacha and Contemporary Society 3 (1982), 37–38 n. 6; Mordecai Biser, “Can an observant Jew practice law? A look at some halakhic problems,” 11 Jewish Law Annual (1994), 103 n. 5; Michael Broyde, The Pursuit of Justice (Hoboken, NJ: 1996), 42 n. 5. Indeed, according to most authorities, the prohibition applies to any secular court — even to the secular courts of the state of Israel, and even if all of the judges are Jewish. See, e.g., Ovadia Yosef, Yehave Daat 4:64; Moses Sternbuch (contemporary), Teshuvot Vehanhagot 3:441; Krauss, op. cit. 49–52. 93 Maimonides, Code, Laws concerning the Sanhedrin 26:7.

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In parsing R. Sherira Gaon’s words, R. Joseph b. David ibn Lev states: It is also necessary to consider whether, if the secular court is not satisfied with the [Jewish] witnesses’ conclusory testimony that he [the defendant] is liable, it is permissible for the witnesses to lie in [more specific] testimony. And, if it would be permissible for them to lie in order to bring about a proper and just result, because the defendant is in fact liable as to the debt in question, there is still some doubt as to whether, if the secular court will force them to take an oath as to their testimony, they can take such an oath.95

Most subsequent commentators who have considered R. Sherira Gaon’s statement have assumed that he would allow the witnesses to lie — at least when not under oath — if doing so were necessary for the court to reach the result mandated by Jewish law.96 Some decisors seem to assume that secular courts would not be interested in the conclusions reached by a Jewish court, and would require testimony as to the underlying facts. Since R. Sherira Gaon was aware that rabbinical court judges do not have first-hand knowledge of the underlying facts, these authorities suggest that when R. Sherira Gaon said that the judges could testify, he must have meant that the judges could, if this were necessary for justice to be done, falsely testify as to the facts. A number of authorities also explicitly allow false testimony when a Jewish plaintiff wrongfully sues a Jewish defendant in secular court. 94

This statement by R. Sherira Gaon (968–1006) is cited by many; see, e.g., Samuel b. Isaac Sardi (c. 1185–1255), Sefer Hatrumot, shaar 62. R. Sherira is said to have clarified that he did not mean to restrict his ruling to students, but that in the sort of case in question, anyone could go and testify for the plaintiff. But see Abraham Samuel Alkalai, Yizkor Leavraham, letter 70, 68, who points out that R. Haim Joseph David Azoulay (Hida) (1724–1806) interpreted R. Sherira Gaon differently. 95 Joseph b. David ibn Lev (1505–1580), Responsa Mahari ibn Lev 3:48. 96 Some seem to have believed that this, in fact, was how the Mahari ibn Lev understood R. Sherira Gaon. See, e.g., R. Haim b. Israel Benveniste (1603–1673), Kneset Hagdola, on Beit Yosef, HM 26:9 (citing this for the proposition that the witnesses are allowed to lie). The Talmud often asks, “Is p true, and even if p is true, is q true?” Many authorities invoke a general rule that the Talmud, by using this reasoning, is implicitly asserting that p is true. Applying this rule to the Mahari ibn Lev’s commentary on R. Sherira Gaon would suggest that he believed that R. Sherira Gaon permitted the witnesses to lie to achieve the right result. See, e.g., Jacob Nahmol (18th c.), Ashdot Hapisga, YD 5, who argues that this is how R. Benveniste interpreted Mahari ibn Lev.

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Consider the following case. Reuven borrows money from Shimon, giving Shimon a promissory note. When the loan falls due, Reuven, who has become impoverished, does not have any money with which to repay it. Shimon threatens to sue Reuven in secular court, and Reuven responds by urging that the dispute be resolved in a rabbinical court. Shimon files a secular lawsuit, and Reuven applies to a rabbinical court, which issues a summons to Shimon. Shimon ignores the summons. The rabbinical court then causes Reuven to take an oath stating the extent of his assets (which fall below the threshold exempting debtors from repayment), and issues a ban on any Jew who has property belonging to Reuven and does not bring it to the court. No one brings any such property. Consequently, under Jewish law, Reuven is not at this point in time obligated to make any payment to Shimon. May, or should, any Jews testify in the secular court that Reuven has repaid the loan to Shimon, even though this is untrue? R. Abraham di Boton not only rules that it is permissible for Jews to give such testimony, but states that anyone who so testifies does a meritorious deed (mitzva).97 R. di Boton relies, in part, on R. Sherira Gaon’s position, which, as he interprets it, allows such witnesses to lie. R. di Boton believes that helping the defendant Reuven is at least as worthy a cause as assisting the plaintiff in R. Sherira Gaon’s case. Other authorities, including R. Samuel di Medina, go further, arguing that it would not even matter whether Reuven would prevail in a rabbinical court.98 Shimon, he argues, has no right to sue Reuven in secular court in any event. Consequently, R. di Medina concludes, to save Reuven from this oppression, witnesses may falsely testify that Reuven never borrowed from Shimon.99 97 98 99

Avraham di Boton (1560–1606), Lehem Rav, #90. R. di Boton also authored Lehem Mishne, a leading commentary on Maimonides’ Code. Shimon di Medina (d. 1589), Responsa Maharashdam, HM, #392, also published in di Boton, ibid., #79. See also Benveniste, n. 96 above, sec. 11. R. di Medina’s reasoning can be disputed. Jewish law often distinguishes between obligations that are owed (by virtue of the Creator’s commandments) to another person, and duties that are owed directly to the Creator. The rule against suing in secular court seems to fall into the latter category. Hence, if the result for Reuven would be the same in a rabbinical court as it is in secular court, it is unclear whether Jewish law would regard Shimon as oppressing Reuven. As a practical matter, however, there may well be differences between the decisions rendered by the secular and the rabbinical courts, either because of the differences as to substance or procedure, or because secular proceedings may involve additional expenses (e.g., court costs or legal fees).

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Nonetheless, there is reason to question whether, in particular instances, Jewish law would allow misrepresentations in modern secular courts. First, as a practical matter, there are cases in which Jewish law allows Jews to litigate in secular court and in which Jewish and secular law would reach the same result. If so, there would be no justification for deceit.100 Second, as a theoretical matter, one must carefully consider the position of R. Asher b. Yehiel (Rosh) (1250–1327), whom the Mahari ibn Lev cites. The particular case mentioned by the Mahari ibn Lev involved a Jew who had lent money to a Gentile and had taken collateral. The loan agreement provided that if the Gentile did not repay the debt by a specified date, he would forfeit the collateral, which would automatically become the property of the Jewish lender. Nevertheless, although the borrower did not pay in time, he subsequently sued the lender in secular court, demanding that he be allowed to redeem the collateral by paying the amount due. It seems that under the applicable non-Jewish legal system, the forfeiture provisions would be valid in a transaction between two Gentiles. Nevertheless, at least according to one explanation, that law did not allow a Jewish lender to enforce such a provision against a Gentile borrower.101 The lender, however, believed that he should be entitled to the benefit of his bargain. Realizing that the secular court would require him to take an oath to support whatever position he asserted, he asked the Rosh whether he could take such an oath. The Rosh explained that it depended on the particular oath that was required. The Rosh ruled that one version of the oath — “that I do not have anything of yours in my possession” — would be permitted, stating that this oath was true because, under secular law, the forfeiture provision was technically effective. Consequently, the property in

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To have recourse to secular courts, the Jewish litigant may, as noted above, first be obligated to obtain permission from a rabbinical court. See Resnicoff, “Helping,” n. 70 above, 195 n. 15, 196 n. 18. See Jacob Nahmol, n. 96 above. An alternative explanation is that the non-Jewish legal system required the creditor to prove that the forfeiture terms were agreed to, and the Jewish creditor’s oath as to such agreement was not acceptable. See Eliyahu b. Haim (Ranah) (1530–1610), Responsa Ranah, #3.

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dispute had already become the Jew’s property. Thus, the Jew had nothing in his possession that belonged to his adversary. However, the witness could not take an oath along the lines of “that nothing of yours ever came into my hands”, because this declaration would be false. Commentators question why the Rosh justified allowing the former oath by stating that the forfeiture provision was valid under secular law.102 If he was concerned about the “truth” of the oath, why did he not simply state that such a forfeiture provision in an agreement with a Gentile was valid under Jewish law? Several explain that the Rosh was concerned about the problem of desecration of God’s name (hilul hashem), that is, bringing Judaism into disrepute. They explain that if the Jew took the first oath, his Gentile adversary would understand that the oath was technically true, and would have no valid basis on which to reproach him or his faith. If, however, the Jew took the latter oath, the Gentile adversary would not appreciate the fact that the oath might be permitted under Jewish law. He would see it as a false oath and, concluding that Jews take false oaths, think ill of Judaism.103 But the taking of a false oath is itself a specific biblical violation, and there is no general exception for the purpose of preventing an unjust financial loss. Why, asks R. Bassan, would not the Rosh have been concerned about this violation, rather than about the more general problem of desecration of God’s name? The answer is that in certain cases of economic duress, Jewish law allows one taking an oath to add a “mental reservation” as to what he intends, or to take an oath while whispering additional restrictions such that the oath is not technically false.104 The question put to the Rosh was whether one could take the second version of the oath while making such a mental

102 See, e.g., Yehiel Bassan (18th c.), Responsa, #46. 103 Ibid.; Azaryah Figo (1579–1647), Gidulei Teruma, 62:3. Mahari ibn Lev, n. 95 above, was unsure about this point. 104 See, e.g., Yomtov b. Moses Tzahalon (c. 1559–1638), Responsa Maharitatz I:102; Joseph b. David (1662–1736); Responsa Beit David, #112 (extensive discussion). On reliance on “mental reservations” in other traditions, see Bok, n. 43 above, 14.

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reservation, or it was forbidden because the Gentile litigant105 would believe the oath to have been false.106 Some decisors discuss possible limitations on the Rosh’s view. Most, however, assume that the prohibition against a false oath applies not only to a witness who wants to save another’s money, but also to a litigant himself.107 The Rosh’s position is accepted as authoritative by a number of decisors, including the Mahari ibn Lev.108 If so, even in situations in which Jewish witnesses and litigants might otherwise be permitted to give false testimony, they might not be allowed to take what would appear to the other litigant be a false oath. In United States courts, however, witnesses are not obligated to take an oath. They may, instead, “affirm” that their testimony will be truthful. The question then arises as to whether the Rosh’s concern about desecration of God’s name applies only when a person takes a false oath, or applies even when he does not, but merely gives testimony that his adversary knows to be false. The Rosh did not himself distinguish between a false oath and false testimony. In the case presented to him, it was assumed that the witness would have to take an oath, the only question being its wording. The halakhic authorities who allow well-intended false testimony, as opposed to well-intended false oaths, construe the Rosh’s scruples as applying only to oaths. But why should this be so? After all, the law against desecration of God’s name applies to many different types of 105

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Where the adversary is a religious Jew, however, some authorities state that there would be no problem with hilul hashem, because the adversary would realize that the witnesses are testifying with the permission of the rabbinical court. See, e.g., Bassan, n. 102 above. Others, however, contend that this issue is itself a subject of debate among the authorities. See, e.g., Alkalai, n. 94 above, letter 70, 68; Joseph b. David, ibid. A number of authorities, for instance, cite the position of the Rosh even as regards disputes between Jews. Part of the reason for this may also be concern lest people be led to take oaths too lightly. Furthermore, where the adversary is a non-religious Jew who would not know that the false testimony is rabbinically permitted, everyone would likely agree that desecration of God’s name would be a concern. Indeed, if the adversary is a non-religious Jew, the use of ostensibly false testimony might have the additional negative effect of pushing him further from Judaism. See, e.g., Tzahalon, n. 104 above. But see Joseph b. David, n. 104 above. Mahari ibn Lev, n. 95 above.

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conduct, most of which do not involve oaths. Indeed, some acts that are banned for fear of hilul hashem involve either the offering of false testimony or the making of a false denial that one has no testimony to give. For example, a number of authorities rule that a Jew who falsely denies liability to a non-Jew who knows the denial to be false, violates, among other things, the prohibition against desecration of God’s name. Similarly, if a Jew is designated to serve as a witness regarding a transaction between a Jew and non-Jew in a non-rabbinical court, the Shulhan Arukh rules that it would be a desecration of God’s name for him to refuse to provide truthful testimony that might help the nonJew, and he is obligated to testify.109 Consequently, if these instances of false testimony, or refusal to provide truthful testimony, involve hilul hashem, why is this not also the case with respect to the well-intended false testimony that is the subject of this article? The answer may be that hilul hashem arises in the former cases not solely from the fact that the testimony is false, but from the fact that the false testimony is being used to reach an unjust result, a result that is inconsistent with Jewish law. Thus, when a Jew falsely denies a debt to a non-Jew, the hilul hashem is not that the Jew is lying, but that the nonJew knows the Jew is doing so to avoid a legitimate debt. By contrast, hilul hashem may not be an issue when false testimony is offered to accomplish a just result, especially when the party against whom the testimony is adduced knows it is being used for such a purpose.110 Oaths, however, were regarded as far more momentous than simple testimony. After all, oaths invoke God’s own authority. Hence desecration 109 See SA, HM 28:3. R. Solomon Luria (Maharshal) (1510–1573) rules that even when a Jew is not initially summoned to serve as a potential witness, he would still have to testify to whatever he knows if the Gentile has reason to believe that the Jew has relevant knowledge. See Shabtai Kohen (Shakh) (1621–1662), HM 28:6 (citing the Maharshal). See also Meir b. Barukh of Rothenburg, Responsa Maharam, 2:58; Haim Meir Mizrahi, Ben Harama, Eidut ch. 17 (any conduct that causes Gentiles to believe that Jews are cheats and liars is forbidden, to prevent desecration of God’s name). 110 This argument would explain why well-intended false testimony might not cause hilul hashem when the Gentile adversary knows that his own position is unjust. In fact, even if the Gentile thinks that the law of the secular court is more correct than that of the rabbinical court, he still might understand why a Jewish witness would think otherwise. Nevertheless, it is not clear how this argument would explain why giving false testimony would be permissible when the Gentile thinks he is right and does not know that Jewish law mandates a different result.

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of God’s name, hilul hashem, may well be an issue when a Jew appears to knowingly make a false oath, even if he does so to achieve financial justice. Of course, even if at one time there was a difference, with respect to possible desecration of God’s name, between well-intended false oaths and well-intended false testimony, this difference may no longer be relevant. Suppose, for instance, that contemporary halakhic authorities have concluded that modern mores deem false testimony given in court under “affirmation” to be just as serious as a false oath.111 If so, hilul hashem considerations might indeed render prohibited even well-intended false testimony. In any event, the Rosh was concerned about hilul hashem because the non-Jewish litigant in the case before him would know that the oath was false. However, a number of authorities have explicitly ruled that a false oath may be taken to bring about a just outcome if non-Jews would not know that it was false. Thus, the Ben Ish Hai, who does not cite the Rosh, specifically permitted the use of false evidence in a secular court if it such was necessary to bring about a just result, provided that no one would know the evidence was false.112 The case involved a decedent who was survived by one daughter and several sons. Under secular law, the daughter and sons would inherit equally, but under Jewish law, the daughter would receive less. When the daughter wrongfully filed suit in secular court to enforce her secular rights, R. Haim was asked whether it was permitted to create a forged will or deed that purported to bequeath the decedent’s land in accordance with Jewish law. R. Haim stated that, for the purpose of bringing about the result prescribed by Jewish law, it was permitted to create and use such a document if its falsehood would go undetected.113 The secular legal system prizes due process, even at the possible expense of justice in particular cases. Consequently, it demands that witnesses testify truthfully even if, as a result, the court reaches the wrong result and people are deprived of their financial rights. Not all

111 Of course, it is conceivable that they would conclude that in today’s environment, no desecration of God’s name would result even from a false oath. 112 N. 57 above, #371. 113 The contention that such dissembling would promote financial justice rests, of course, on the fundamental assumption, discussed at the outset of this article, that Jewish law is morally correct.

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ethicists would agree. Jewish law, because of its basic aversion to the secular legal system, may regard the rightful use of deceit in a secular court as little different from that used in the talmudic case of the innkeeper. Nevertheless, as a matter of Jewish law, at least three factors militate against the use of deceit in secular courts in the United States. First, the circumstances of Jewish life differ dramatically from those that prevailed centuries ago, when most of the foregoing responsa were written. No longer an insular community, Jews engage in commercial transactions with non-Jews all the time, and their disagreements are often resolved in secular court. Similarly, religious Jews often conduct business with non-religious Jews. Because contemporary Jewish courts lack the enforcement powers that they enjoyed within the ghetto walls, when disputes arise between parties only one of whom accepts the authority of the rabbinical court, they are also frequently adjudicated in secular forums. Thus the integrity and viability of the secular court system is of considerable importance to the Jewish community. If providing false testimony or evidence in a secular court, even if only when this was necessary to achieve financial justice, would imperil the secular court system, Jewish leaders might want to impose a ban on such conduct.114 There are precedents for the rabbinical restriction of what would otherwise be halakhically permissible conduct to address broader public policy concerns.115 Nevertheless, in light of the

114 A similar issue arises with respect to the laws of confidentiality. Basic Jewish law seems to permit or require disclosures even by professionals, such as doctors or lawyers, when necessary to protect someone from harm. A contemporary writer, R. Alfred S. Cohen, argues that such disclosures might irreparably undermine the confidence prospective patients might have in their psychotherapists, and prevent them from seeking the professional help they need. He contends that this consideration could actually make such disclosures forbidden under Jewish law. See A.S. Cohen, “Privacy: a Jewish perspective,” Journal of Halacha and Contemporary Society 1 (1981), 53–102, and “On maintaining a professional confidence,” Journal of Halacha and Contemporary Society 7 (1984), 73–88. But see Moses Halevi Spero, Handbook of Psychotherapy & Jewish Ethics (NY: 1986), 132–34 (criticizing Cohen’s position). 115 Jewish law permits payment of exorbitant ransoms. Nevertheless, payment of large sums could have encouraged kidnappers to increase their nefarious activity. To prevent this, ancient rabbinic authorities promulgated a decree proscribing the payment of especially large amounts. See, e.g., SA, YD 252:4.

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heterogenous nature of the contemporary observant Jewish community in the United States, and the lack of a centrally recognized rabbinic authority, it seems highly unlikely that any such formal decree or enactment would be agreed upon. Second, the possibility of desecration of God’s name, hilul hashem, may today be more problematic than ever before. Even in ancient times, it was difficult to suspect that a secret would go unrevealed. As stated in Ecclesiastes, “Even in your thoughts do not curse a king, and in your bedchamber do not curse the rich, for a bird of the skies may carry the sound, and some winged creature may betray the matter.”116 In light of modern surveillance techniques — including audio and video recordings — the likelihood that a deception, or a scheme to deceive, will go uncovered may be surprisingly small. Moreover, the scope for hilul hashem may be greater in the United States, because the United States has been welcoming and benevolent to the Jewish people,117 and a perceived lack of gratitude might generate particular resentment. Third, if the deceit is discovered, the dissembler may face significant secular civil or criminal sanctions. Criminal sanctions could include imprisonment, which, given the grim reality of prison life, may pose a serious threat to an inmate’s life. Inasmuch as Jewish law mandates that one guard one’s health,118 it may be prohibited to run the risk of imprisonment by lying in court. Moreover, the extent to which Jewish law might otherwise obligate someone to lie for a good purpose, such as to save someone else from wrongful financial harm, is limited by the prospect of harmful consequences — financial or otherwise — to himself.119 Thus, in many instances, Jewish law would not require — and might not permit — lying in secular court, even for an otherwise laudable purpose. Indeed, the last two factors may, in certain circumstances at least, limit the scope of permitted deception even outside the courtroom, because such conduct may still give rise to desecration of God’s name, as well as criminal liability.

116 Ecclesiastes 10:20. See also bBaba Batra 4a. 117 See, e.g., Igrot Moshe, HM 2:30. 118 See, e.g., Deuteronomy 4:9; Maimonides, Code, Laws concerning Murder and the Preservation of Life 11:4. See, generally, Resnicoff, n. 66 above, 297–98. 119 Ibid., 298–301.

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IV Deceit in the Context of Rabbinical Court Proceedings With respect to rabbinical courts, Jewish law takes much dimmer view of deception. Nevertheless, the authorities disagree as to what the law requires in specific cases. In this paper, we will focus on two questions.120 The first is whether a person who has no relevant knowledge may pretend to be a witness in order to affect an adversary’s testimony or conduct. The second is whether a person may adduce false evidence or make false pleadings in a rabbinical court in order to bring about a just outcome. Pretending to be a Witness Under Jewish law, a civil plaintiff who sues a defendant cannot win on the testimony of only one witness; he needs two witnesses to prevail. The Talmud contains the following discussion: And how do we know that a disciple to whom his master said, ‘You know that if I were given a hundred mane [a coin], I would not tell a lie. So-andso owes me one mane, and I have only one witness against him’ — how do we know that he should not join with him [the one witness]? Because it is said [in the Torah]: “Distance yourself from a false matter” (Exod 23:7). Is this rule really deduced from the verse, “Distance yourself from a false matter”? Surely such conduct involves actual lying, and the Merciful One said: “Thou shalt not bear false witness against thy neighbor” (Exod. 20:13). But [we are talking about] a case in which he said, ‘I definitely have one witness. You should come and stand there and not say or do anything, so that nothing false should come out of your mouth.’ Even so, it is forbidden, because it is said, “Distance yourself from a false matter.”121

This passage appears to focus on the disciple, advising him that he may not accede to his master’s request.122 This also seems to be the 120

Other issues, such as the ways in which “Distance yourself from a false matter” applies to rabbinical judges, are left for another occasion. See Fish, n. 29 above, 184. 121 bShevuot 31a. 122 This is apparent from the fact that the Talmud initially wanted to prove that the contemplated action was forbidden by the injunction against giving false testimony. It is the disciple who would be potentially liable for this violation. Under Jewish law, one who merely entices someone to give false testimony does not himself technically violate that prohibition. But cf. R. Shabtai Hakohen, HM 75:1 (citing this talmudic passage for the proposition that it is impermissible for someone to encourage another to give false testimony).

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view of R. Moses Isserles.123 He writes: It is prohibited for someone to testify about something if he does not have [first-hand] knowledge, even if someone whom he is sure would not lie tells him to. And even if this someone tells him, ‘Come and stand with the one witness that I have and do not say anything, so that the other party will be afraid, will think that I have two witnesses, and will confess’ — do not listen to him.124

Why is it this practice forbidden, that is, why does the Talmud maintain that the commandment of distancing oneself from falsehood applies with respect to feigning that one is a witness? Perhaps the most obvious explanation is that Jewish law does not countenance deceitful conduct, even when no false words are uttered or written, and even when justice would be thereby achieved. Indeed, this reading of the text seems so patently obvious that some commentators, including R. Israel Meir Lau, formerly the chief Ashkenazic rabbi of Israel, cite it without reference to any alternative.125 123 R. Moses Isserles (Rema) (c. 1525–1572), in his addenda to the SA. 124 SA, HM 28:1. This type of trick was used by the character played by Tom Cruise in A Few Good Men when he questioned the character played by Jack Nicholson. Cruise indicated that he had subpoenaed two military men from Andrews Air Force Base and that they were in the courtroom. The implication was that these prospective witnesses would be able to testify to a certain hitherto covered-up flight that had landed at the base. In fact, however, the two men had no knowledge of the flight. Nevertheless, their presence put extra pressure on the Nicholson character to confess. A somewhat similar stratagem was employed in the movie production of A Case of Libel, based on Quentin Reynolds’s successful libel suit against Westbrook Pegler. When cross-examining Pegler, Reynolds’s lawyer, Louis Nizer, pretended to hold in his hand a crumpled piece of legal paper upon which Pegler had written the day before and then thrown out. Certain things written on the real sheet of paper, had it been introduced into evidence, would have substantially undercut Pegler’s credibility. Thinking that Nizer had the paper, Pegler decided to cut his losses by making certain damaging acknowledgments. In fact, although Nizer knew about the piece of paper Pegler had written on, Nizer had been unable to retrieve it from the trash. Instead, he had simply taken another piece of legal paper, crumpled it up and held it in his hand while he interrogated Pegler. 125 See R. Israel Meir Lau, “Truth and untruth — for the purpose of peace” (Hebrew), Kinus Tora Shebeal Pe, 21 (1980), 88–100. See also Basri, n. 29 above, 443–44; Jack Simcha Cohen, “Halakhic parameters of truth,” Tradition 16 (1977), 84.

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Yet there are alternatives, some of which may be surprising. R. Joseph Caro, the Beit Yosef, for example, seems to say that the falsehood is that the ersatz witness causes the rabbinical court to render its judgment as if there were two witnesses, even though there is really only one.126 According to R. Joseph Caro, the fraudulent conduct is not necessarily objectionable per se. If, in fact, the defendant, upon believing that the plaintiff had two witnesses, would not only confess, but actually pay the debt without the necessity of a rabbinical proceeding and judgment, R. Joseph Caro might well conclude that the purported witness’s behavior was not improper. Rather, the problem arises when a judgment is issued, a judgment, he argues, that was indirectly caused — and tainted — by the purported witness’s improper conduct.127 Hence, he rules that the purported witness’s conduct is prohibited by the rule that one must distance oneself from a false matter, viz., the tainted judgment. R. Mordekhai Jaffe upholds the Beit Yosef ’s position.128 The principle that one must distance oneself from a falsehood — midvar sheker tirhak — indeed seems to operate this way in a similar context. The Talmud discusses a case in which two people are available who have first-hand knowledge favoring a particular party. The problem, however, is that one of these two people has committed a transgression that renders him disqualified from testifying as a witness. Although the court is unaware of the wrongdoing and would accept him as a witness, the second person knows of the wrongdoing. This second person is not permitted to testify with the first. Why? Because the rabbinical court would think that both witnesses were legally competent and would render its judgment accordingly, that is, wrongly, since a judgment based on only one competent witness is a “false” decision, a dvar sheker. In helping to bring about this result, the second person violates the prohibition, “Distance yourself from a false matter” — midvar sheker tirhak.129 126 Beit Yosef, HM 28. 127 Interestingly, R. Caro did not state this law in the Shulhan Arukh; it is found only in the Rema’s glosses thereon. 128 Mordekhai Jaffe (c. 1530–1612), Levush Ir Shushan, HM 28:1. 129 See SA, HM 34:1; bShevuot 30b. Some authorities explain that the second witness violates a specific negative commandment, based on Exodus 23:1, namely, the prohibition against causing an evildoer to be accepted as a witness. See, e.g., Hahinukh, n. 16 above, commandment 75; R. Joshua Falk (Sema) (c. 1555–1614), Sefer Meirat Einayim, HM 34:1; Arukh Hashulhan, HM 34:1. Some of these authorities nonetheless seem to think that “Distance yourself from a false matter” applies when a competent witness testifies along with someone who will falsely testify that he has first-hand knowledge of what occurred, even though what he will say occurred did in fact take place.

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By contrast, R. Joshua Falk, a leading commentator on the Shulhan Arukh, disagrees with the Beit Yosef. The Sema emphasizes that the talmudic case is one in which no false testimony is given. Instead, the expectation is that the defendant will confess as soon as he thinks the plaintiff has the necessary two witnesses. Consequently, the rabbinical court will not be taking money away from the defendant on the testimony of only one witness. There is, arguably, some ambiguity in the Sema’s position. The most likely interpretation of the Sema is that he believes that it is irrelevant whether or not a rabbinic judgment is issued after the confession.130 If no judgment is issued, but, instead, the defendant simply pays after his confession, the problem the Beit Yosef cites does not occur. On the other hand, if, after the confession, the rabbinical court does issue a judgment, the Sema’s view is that the judgment is the result of the confession. In issuing the judgment, the members of the rabbinical court do not assume that there would have been two witnesses for the plaintiff, and base their judgment on that, but render judgment on the basis of the confession. The Sema rejects both the argument that the witness’s conduct would be a “false matter,” and R. Joseph Caro’s view that the judgment handed down would be a “false matter.” He offers a third explanation as to why one may not pretend to be a witness even for a party whose credibility he is utterly certain of. The Sema says that it is possible that the defendant will be so frightened when he thinks his opponent has two witnesses that he will confess even though he really is not liable. In other words, despite the fact that the prospective witness has complete confidence in the party who asks for his help, the other party to the case may, in fact, be the one who is in the right according to the

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One might argue that there is no fundamental disagreement between the Sema and the Beit Yosef, and that were a judgment handed down after the confession, the Sema would also believe it to be tainted. Consequently, in such a case, pretending to a witness would lead to a “false matter.” This argument, however, is not persuasive. If it were sound, the Sema, in rejecting the Beit Yosef’s position, should stress that no judgment is being rendered. Instead, the Sema seems to emphasize that the purported witness is not going to be giving false testimony. To the talmudic mind, however, this apparent reading of the Sema is troubling. It tends to suggest that the Sema thought the Beit Yosef believed that the purported witness was going to give false testimony. Because the talmudic passage clearly seems to rule out this possibility, it is difficult to understand how the Sema could have attributed this belief to the Beit Yosef.

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law.131 On this interpretation, the Talmud is not saying that a just outcome would not justify otherwise questionable means. Rather, the point is that one cannot rely on the words of another — no matter how credible that person seems to be — to conclude that a particular outcome is in fact the proper one. On the contrary, the concern here is that an act, albeit well-intentioned, might bring about a “false matter” — not the procedural falsity about which the Beit Yosef is apprehensive, but a substantive falsehood. R. Zechariah Mendel of Belz132 and R. Jonathan Eybeschuetz133 are among those who cite the Sema’s view, and R. Jacob Lorberbaum of Lissa134 expressly agrees with it. On the Sema’s logic, if one actually has decisive first-hand knowledge of the righteousness of a particular litigative outcome, this talmudic passage would not necessarily bar him from engaging in deceitful conduct in an attempt to bring about that outcome. Thus, the Sema’s logic would seem to permit one who witnessed the event in question but was technically disqualified from serving as a witness to pretend he was going to testify as a second witness. Adducing False Evidence or Pleadings The giving of false testimony is explicitly forbidden by the Torah.135 Hiring someone or otherwise convincing someone to testify falsely is also proscribed.136 In a matter that came before the Rosh, for instance, a woman feared that a man who falsely claimed she was his wife would hire perjurious witnesses to that effect. In return, she hired false witnesses to write and sign a bill of divorce, so that, if the purported husband brought false witnesses that he had married the woman, the woman would use the false bill of divorce to show that he had divorced her. Despite the fact that the woman had sought only to protect herself, the Rosh condemned her conduct.137 A clear example of the halakha’s proscription of false evidence in commercial litigation is a responsum written by R. Solomon 131

132 133 134 135 136 137

Although the person trusted may well be completely honest, he may be making a mistake. Indeed, someone may have purposely misled him as to the facts. R. Zechariah Mendel (17th c.), Beer Heitev, HM 28:27. Jonathan Eybeschuetz (c. 1695–1764), Urim Vetumim. R. Jacob Lorberbaum (c. 1760–1832), Netivot Hamishpat, Novellae, 28:7. See Exodus 20:13 and Deuteronomy 5:17. See also Hahinukh, n. 16 above, commandment 37. SA, HM 32:2. Responsa Rosh, rule 35, #4.

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b. Abraham Adret.138 Certain halakhic rules, based on psychological insights, govern the ascription of credibility to a party’s contentions. According to one of these rules, migo, a party who asserts a particular proposition p, even if he lacks proof, is believed as to p if he would be believed as to another proposition, q, that is as legally efficacious as p. The Talmud discusses a case in which someone asserts ownership of a certain piece of land. He produces a deed to buttress his claim, and the court seems likely to rely on that deed. He then admits to the court that his deed is a fake. He explains that he did have a real deed, but it was destroyed. Because the litigant would have been believed as to the phony deed, he is believed when he says that, although the deed is fraudulent, he once had a valid deed. The Rashba was asked whether it would be permissible for someone in a similar situation to follow this example, to create a false deed, present it to the court, and then explain the truth to the court. The Rashba categorically rejects this approach. He says that the Talmud merely provides evidence that the strategy works. By no means, he writes, does it provide any evidence that such a practice would be permissible under Jewish law. R. Elchanan Wasserman is said to agree with the Rashba.139 Nevertheless, some authorities believe that extreme means may be used to effect justice. Thus, R. Jacob Joshua Falk seems to suggest that if one party uses a forged document against another, the other could use a forgery of his own in self-defense.140 At least one commentator maintains that R. Falk did not mean that the second party could present his own forged document as authentic. Instead, all R. Falk meant was that the second party could make a forgery, show it to the court, tell the court that it is a forgery, and then use the aforementioned principle of migo to convince the court of his claim that the opponent’s document is also a forgery, and he owes his opponent nothing.141 Even understood in this way, the view of the Pnei Yehoshua seems inconsistent with the position taken by the Rashba.142 138 R. Solomon b. Abraham Adret (Rashba) (1235-c.1310), Responsa Rashba 3:81. 139 See Fish, n. 29 above, 91. 140 See Jacob Joshua b. Zvi Hirsch Falk (1680–1756), Pnei Yehoshua, bKetubot 28a s.v. kiyum shtarot. 141 Fish, n. 29 above, 90–91 (citing Meishiv Shalom). 142 There is no indication in Rashba’s responsum that the factual difference between the scenario he was queried about, and that discussed by R. Falk, namely, that the other party has already presented a forged document to the court, has any bearing on the matter.

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Parties to a rabbinic proceeding are not deemed competent to give testimony.143 Nevertheless, there are intricate rules regarding the legal significance of the various “pleadings” or arguments they can put forward. Although secular courts often allow parties to enter false or logically inconsistent pleadings,144 a number of authorities indicate that this is absolutely forbidden when it comes to rabbinical court proceedings.145 The Talmud itself makes it clear that one cannot use a false plea simply to gain a procedural advantage. For example, if a defendant admits part, but not all of a claim, he is required to take an oath as to the truth of his denial. If he denies the claim completely, however, he does not have to take an oath.146 Once a defendant is required to take an oath as to one of a particular plaintiff’s causes of action, however, the plaintiff has the right to force the defendant to take an oath as to the others as well. Suppose a person is owed $100 on one matter and $100 on another matter. If the defendant fully admits to the first claim, but completely denies the second, the plaintiff cannot force the defendant to take an oath as to the denial of the second claim. This plaintiff might want to assert that the first claim was really for $200. Why? If the defendant retorts that the first claim was only for $100, the plaintiff could force him to take an oath that the first claim was for only $100, and then force him to take another oath as to the second claim. Given the traditional antipathy towards taking oaths, the defendant might just pay the second claim rather than submit to an oath. The Talmud states explicitly that the plaintiff cannot use such a stratagem, as it violates “Keep thee far from a false matter.”147 Maimonides explains the talmudic discussion: It is forbidden for a person to make a false plea in order to twist the law (din). . . . What does this mean? . . . A creditor is owed 100 and sues [the 143 SA, HM 37. 144 See, e.g., P. Dikstein, “On the dispensation to lie in the courtroom” (Hebrew), Hapraklit 4 (1947), 103–10. 145 See, e.g., Mark Dratch, “Nothing but the truth?” Judaism 14 (1988), 227; Dikstein, ibid.; Basri, n. 29 above, 444; E. Shochetman, Civil Procedure in Jewish Law (Hebrew), (Jerusalem: 1994), 235. 146 As someone may well deny part of a debt in an attempt to gain time to repay it, one who denies part of a debt is compelled to take an oath. The Talmud considers it unlikely that anyone would be so bald-faced as to deny a debt entirely. Accordingly, one who completely denies a debt is not required to take an oath to support his denial. 147 bShevuot 31a. Shneur Zalman of Lyadi (1745–1813), Shulhan Arukh Harav, HM, Halvaa 28.

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If a rabbinical court rules that an oath must be taken, it is forbidden for the party in question to say that he is prepared to take the oath — in order to intimidate his adversary — if, in fact, he is not really ready to take the oath. This is true even if he knows that he is in the right, but, though there would be nothing wrong about his taking the oath, he is simply not prepared to do so.149 There may be an authority who permits a false plea150 in a rabbinic court if it is necessary to thwart an adversary’s lies. Consider, for instance, a case in which a plaintiff has wrongfully introduced into evidence a forged promissory note against an innocent defendant. In some situations, at least, the defendant could successfully avoid liability if he were to enter a “plea” that he has already repaid the loan. At least one Early Authority, R. Isaac b. Abraham of Dampierre, would permit the defendant to enter just such a plea.151 This position is arguably consistent with King Solomon’s advice that, “with the perverse, you should show yourself to be subtle.”152 Other authorities, such as R. Avraham b. Harambam, contend that conduct in the courtroom is different, and maintain that even if one’s adversary lies in court, it is forbidden to lie in return. The severity with which Jewish law views deception in connection with rabbinical court proceedings may arise, in part, from specific biblical commandments regarding the establishment and maintenance of

148

Code, Laws concerning Pleading 16:9. Even though Jewish law frowns on the taking of an “unnecessary” oath, and the plaintiff’s wrongful claim of 200 is forcing the defendant, who tells the truth and admits his liability of 100, to take an oath “unnecessarily,” the defendant is not permitted to avoid this unnecessary oath by lying. Instead, the defendant is to answer truthfully and may take the oath once the court rules it to be “necessary.” See Dikstein, n. 144 above, 46 (on the view of Havot Yair). 149 See, e.g., R. Judah Kahana (18th c.), Terumat Hakari, HM 77:2, citing Rabbenu Jonah b. Abraham Gerondi (1200–1263). 150 As distinct from the view of Pnei Yehoshua, discussed above, that arguably permits even false evidence. 151 R. Isaac b. Abraham (Ritzba) (d. 1205) See Fish, n. 29 above, 91. 152 Psalms 18:27.

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the rabbinical court system153 and the biblical prohibition against perverting that system.154 There has been considerable debate as to whether, in response to a plaintiff’s wrongful claim, an innocent defendant is permitted to enter a plea of “I do not know,” instead of an outright denial of liability. In some cases, a defendant making an express denial is obligated to take an oath, but one who states “I do not know” cannot take an oath. Jewish law strongly discourages the taking of unnecessary oaths. Consequently, some authorities think that, in such situations, the innocent defendant should plead, “I do not know.”155 Although it seems that such a plea would be factually false, it is unclear whether these permissive authorities consider it to have a different status, such as that of a “non-plea,” akin to the secular “nolo contendere plea.” V Final Observations It is important to emphasize the very restricted scope of our discussion. Jewish law does not generally condone the use of deceit in commercial dealings. Quite the contrary. Jewish law clearly and comprehensively condemns commercial fraud.156 Indeed, a merchant may violate Jewish law even by making a relatively innocuous misrepresentation.157 153

See, e.g., Deuteronomy 16:18; bSanhedrin 16b. Interestingly, one of the Noahide laws requires that non-Jews, too, create and maintain a system for the administration of justice. Nevertheless, as discussed in section III above, the rules regarding deception seem historically to have been more permissive with respect to secular law proceedings. Such flexibility, however, seems principally to have been manifested in cases in which, as a matter of Jewish law, the secular system was itself flawed, e.g., by improper procedural or evidentiary rules, had deficient substantive laws, or was applied beyond its proper jurisdiction, e.g., to disputes between Jews (which should have been adjudicated by a rabbinical court). 154 See, e.g., Exodus 23:8; Deuteronomy 16:19. 155 See Shakh, SA, HM 75:57 (citing Sefer Haterumot, 38:1:2). 156 For a sampling of the rich literature on this subject in English, see, e.g., Aaron Levine, Case Studies in Jewish Business Ethics (Hoboken, NJ: 2000); Nahum Rakover, Ethics in the Market Place: A Jewish Perspective (Jerusalem: 2000). 157 Thus, a seller transgresses Jewish law merely by misrepresenting that he has received offers from other prospective buyers. See, e.g., R. Tzvi Spitz (contemporary), Mishpetei Hatora, vol. 2, sec. 13. (Nevertheless, a buyer

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Moreover, even when Jewish law permits prevarication to promote justice, it is to achieve justice in a particular case, where one of the parties will otherwise suffer a miscarriage of justice. Jewish law does not allow deceit for the purpose of generally redistributing wealth. Some religious or ethical perspectives concede that deceit may sometimes be warranted in particular cases, but for four main reasons are reluctant to expressly authorize such conduct. First, some of these perspectives are relativistic and simply have no clear rules regarding the priority of competing values. Indeed, they may not even take a clear position as to which specific values are desirable and worthy of support. By contrast, as discussed in section II above, Jewish law takes a stand — whether by way of its basic principles or by way of particular rules regarding the precept of distancing oneself from a false

cannot rescind his purchase unless he can prove that he reasonably relied on the said misrepresentations). See, e.g., R. David b. Samuel Halevi (Taz) (1586–1667), SA, HM 332; R. Moses Sternbuch, n. 92 above, 1:810. Some types of misrepresentations, however, are so commonplace in negotiations that they may not be said or understood as literal statements of fact and, consequently, may not constitute falsehoods. Consider, for example, the situation in which a seller vows that he will not sell for less than a certain price and a buyer vows that he will not buy for more than a certain price. mNedarim 3:1 states that the rabbis permitted such a seller and buyer leniency with respect to vows of this sort, although there is some dispute as to the extent of such leniency. It is not clear, however, that taking such vows without the intent to fulfill them is proper. The American Bar Association likewise takes a lenient approach to misrepresentation in the context of such negotiations. Rule 4.1 of its Model Rules of Professional Conduct provides: “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person . . . . ” Nevertheless, its Official Comment 2 to this Rule states: This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are in this category . . . . [Stephen Gillers and Roy D. Simon, Regulation of Lawyers: Statutes and Standards 2001 (Gaithersberg, NY: 2001), 256]

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matter — as to many specific values,158 and as to how conflicts between them are to be resolved. A second problem for some ethical systems is the concern that an individual, out of personal bias, would misapply any formula that might be articulated for determining when prevarication is permitted.159 Jewish law also recognizes the possibly pernicious effects of bias, even in applying its relatively specific rules. As the authority of Jewish law encompasses all aspects of life, the always-present concern that bias may enter into the decision-making process cannot be overlooked. There are two principal safeguards against this. The first is the principle expressed in the Mishnaic dictum that one should “make for himself a teacher.”160 This means that one must seek out a pious scholar, learn from him, and be guided by his wisdom. The perspective of such a teacher will be more objective than one’s own. Within the communities that abide by Jewish law, such advice, on all sorts of questions, is in fact very frequently sought out. Nevertheless, it is unclear whether all those who give such advice are sufficiently sensitized to the possibility of desecration of God’s name, hilul hashem, or that of significant civil or criminal sanctions. The second safeguard is that, for those who are committed to Jewish law, there is an awareness of God, a genuine desire to do His will, and apprehensive about possible Divine retribution for wrongdoing. These factors not only encourage Jews to solicit sage advice, but where such guidance is unavailable, also tend to counter any undesirable biases. A third problem that gives rise to reluctance to sanction warranted untruthfulness is the apprehension that deceit will have deleterious psychological effects, which cannot be readily predicted or quantified, on the liar’s own sense of “integrity and self-respect.”161 Such harmful 158

Despite this, Jewish law does leave considerable scope for the exercise of moral autonomy; see, e.g., Resnicoff, n. 1 above. 159 “Bias skews all judgment, but never more so than in the search for good reasons to deceive. Not only does it combine with ignorance and uncertainty so that liars are apt to overestimate their own good will, high motives, and chances to escape detection; it leads also to overconfidence in their own imperviousness to the personal entanglements, worries, and loss of integrity which might so easily beset them.” — Bok, n. 43 above, 26. 160 mAvot 1:6, 16. 161 “The most serious miscalculation people make when weighing lies is to evaluate the cost and benefits of a particular lie in an isolated case, and then to favor lies if the benefits seem to outweigh the costs. In so doing, they risk

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consequences, however, seem most likely when one lies for selfish purposes on the basis of one’s own ad hoc or intuitive decision-making process. The problem appears to be much less significant in the context of Jewish law, where the deceit is perpetrated according to religiously mandated guidelines. Of course, this problem is a concern where the halakhic authorities disagree as to the propriety of prevarication in specific situations. Finally, for some ethical systems there is trepidation that permitting some initial justified lying in specific instances, might open the floodgates to waves of unjustified deceit.162 Jewish law, because of its rich legal literature and reliance on precedent, is somewhat protected from any dilution of its formal rules. Nevertheless, Jewish law recognizes that a person is a product of his actions.163 Indeed, the Talmud states that a person who commits a sin and repeats it no longer feels the same degree of reluctance to engage in the conduct. Habituation makes it seem as though the act is “permitted.”164 The theory of cognitive dissonance from the field of social psychology speaks of this phenomenon as the “induced-compliance” paradigm. Essentially, when a person is engaged in activities that he believes are wrong, he develops unpleasant feelings of guilt. If he cannot change his conduct, then, in order to relieve his guilt, he changes his attitudes and no longer considers the activities to be wrongful.165 Thus, even if someone initially believes that lying is wrong, once he starts lying, he alters that attitude to alleviate his sense of guilt. Numerous writers and philosophers have described this connection between conduct and attitude.166

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blinding themselves to the effect that such lying can have on their integrity and self-respect, and to the jeopardy in which they place others.” — Bok, n. 43 above, xix. Ibid., 25. Hahinukh, n. 16 above, commandment 16. See, e.g., Rashi on bAvoda Zara 6a, bNazir 23b. Davida H. Isaacs, “ ‘It’s nothing personal’ — but should it be? Finding agent liability for violations of the federal employment discrimination statutes,” 2 N.Y.U. Rev. L. & Soc. Change 505, 528 (1996). Thus, Shakespeare has Hamlet make the following plea to his mother: Good night; but go not to my uncle’s bed; Assume a virtue, if you have it not. That monster, custom, who all sense doth eat Of habits evil, is angel yet in this,

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Even the fact that a lie is told for a worthy purpose, such as to fulfill a religious duty, may not always shelter the person from the desensitizing effect of the conduct.167 Consequently, Jewish law encourages the use of deceit only when the positive goal cannot otherwise be accomplished, and permits express deceit only when ambiguity would be ineffective.168 Thus, after citing the various cases in which it is permitted to lie, Orhot Tzadikim asserts: In all of these cases in which the Sages allowed one to lie, if it is possible to accomplish [the worthy objective] without lying, that is better than lying. For instance, if they ask him, ‘Do you know tractate such-and-such [of the Talmud]?’, he should answer, ‘And do you think that [one such as] I would know [it]?’ And if [this does not end the discussion, and] he can elude the questioner in another way without lying, it would be very good.169

Furthermore, many authorities emphasize that even where it is permissible, one may only infrequently use deceit, lest he become

That aptly is put on. Refrain tonight, And that shall lend a kind of easiness To the next abstinence; the next more easy; For use almost can change the stamp of nature And either [tame] the devil or throw him out. Hamlet, act 3, sc. 4, lines 176–87. 167 Consider, for instance, the Torah’s discussion (Deut. 13:13–17) of the possibility that most of the inhabitants of a Jewish city become idolaters. In such a case, God commands that all its inhabitants be executed. Immediately thereafter, God promises the Jewish people that He will bestow mercy upon them (13:18). One commentator explains the juxtaposition of these verses by pointing out that the natural effect of putting to death the inhabitants of the city would be for the executioners to become hardened and cruel themselves. God therefore promises that He will provide special protection against this outcome; see R. Haim b. Moses Attar (1696–1743), Or Hahaim ad loc. It is uncertain whether the same type of protection is afforded in every such case. See Steven H. Resnicoff, “A Jewish look at lawyering ethics,” 15 Touro L. Rev. (1998), 102–03. 168 This preference is arguably reflected in Abraham’s choice in referring to his wife, Sarah, as his “sister,” rather than disclaiming any relationship at all with her. As Abraham explains to Abimelech in Genesis 20:12, there was some justification for this characterization. 169 Anonymous, first published around 1580, gate 22, Shaar Hasheker.

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habituated to it.170 In other words, because repeated deceit can be habit-forming, one who frequently finds himself in situations where untruthfulness would otherwise be permitted is not allowed to resort to it.171 The Talmud gives the following example: Rab was constantly tormented by his wife. If he said to her, Prepare me lentils, she would prepare him small peas; [and if he asked for] small peas, she prepared him lentils. When his son Hiya grew up, he gave her [his father’s instructions] in reverse [i.e., if his father asked for lentils, Hiya told his mother that his father wanted small peas, and vice versa]. Your mother, Rab once remarked to him, has improved! It was I, he replied, who reversed [your orders] to her. This is what people say, [Rab] said to him, ‘Your own offspring teach you reason.’ You, however, must not continue to do this, for it is said, “They have taught their tongue to speak lies, they weary themselves” (Jer. 9:4).172

There are halakhic authorities who, because of the importance of truth, maintain that Jews have discretion, at least in some cases, to choose truth over some competing value.173 Nevertheless, normative Jewish law rejects the notion that lying is always wrong. While treasuring the truth, and, in the ordinary course of things, insisting on it, Jewish law treasures certain other values, including the preservation of human life and the advancement of justice, even more.

170 Fish, n. 29 above, 49; Rashbatz, n. 8 above. 171 In a different context, R.J.S. Eliashiv (contemporary) invoked the fact that someone might constantly repeat an action to rule stringently. In the case he was addressing, the improper act would arise in the context of doing one’s job. Though one might not be required to give up a job to avoid having to engage in misrepresentation just once, R. Eliashiv ruled that one must give up the job if it would entail doing so all the time. See R. Abraham S. Abraham (contemporary), Nishmat Avraham, vol. 4, 95. 172 bJebamot 63a. 173 See, e.g., Fish, n. 29 above, 207.

The Jewish Law Annual, Vol. XV

CARO’S SHULHAN ARUKH VERSUS MAIMONIDES’ MISHNE TORAH IN YEMEN YOSEF TOBI*

I

Historical Background

In recent centuries, the Yemenite community was the sole community in the Jewish world where there was fierce controversy over the source of rabbinical authority. Was it the twelfth century halakhic codex Mishne Torah (also known as Hayad Hahazaka) compiled by R. Moses b. Maimon, or the sixteenth century halakhic codex Shulhan Arukh, compiled by R. Joseph Caro? The latter had been disseminated rapidly, and had achieved complete acceptance — aside from the case of Yemen — as the ultimate, definitive source for Jewish courts, shortly after it first appeared in print (Venice 1564–65), while its compiler was still alive (though in Ashkenazic communities, R. Moses Isserles’ glosses ( ) were appended to it). The inevitable outcome of this process was neglect of Maimonides’ codex, albeit as a result of pragmatic rather than ideological considerations.1 This development did not occur in Yemen, where the Mishne Torah retained its decisive halakhic status. However, in actual practice, during *

Yosef Tobi teaches in the Hebrew and Comparative Literature Department at the University of Haifa. He has written extensively on medieval Hebrew poetry, Yemenite Jewry, the history of the Jews in Muslim countries, and medieval Judeo-Arabic literature. 1 On the acceptance of the Shulhan Arukh in the Sefardic and Eastern communities, see M. Elon, Jewish Law: History, Sources, Principles (Philadelphia: 1994), vol. 3, 1367–422; J. Faur Halevi, “The attitude of the Sefardic scholars to Maran as a decisor” (Hebrew), in Isaac Raphael (ed.), Rabbi Joseph Caro, Studies in Maran’s Doctrine (Hebrew), ( Jerusalem: 1969), henceforth RJC, 189–97; Isaac M. Toledano, “When and where was the Shulhan Arukh accepted as a binding halakhic source?” (Hebrew), in RJC, 184–88; David Ovadiah, “Maran’s doctrine and rules in Morocco” (Hebrew), in RJC, 198–201; Benjamin Lau, “ ’To Return the Crown to its Former Splendor’ — An Examination of the Halakhic Thought of Rav Ovadiah Yosef” (Hebrew), (PhD dissertation, Bar Ilan University, 2002), 113–53.

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the seventeenth and eighteenth centuries the Shulhan Arukh gradually, for a variety of reasons, acquired the status of a binding legal source, and later, even came to be seen as an alternative to the Mishne Torah. As a result, grave tension arose between the followers of these rival halakhic codexes. The complications generated by this tension remained unresolved by Yemenite Jewry even after the community, beginning in the early 1880s, immigrated virtually in its entirety to the land of Israel. From the scarce information we possess — mostly from Genizah documents and a few works by Yemenite scholars — about the Jews of Yemen prior to Maimonides, we know that, like all Eastern communities, they had accepted the halakhic authority of the Geonic spiritual leadership in Baghdad. But at the same time, they studied the Babylonian Talmud and the shorter synopsis of the Talmud compiled by R. Isaac Alfasi of North Africa and Spain.2 Of interest is the tradition, transmitted by R. Yihye Salih (d. 1805) in his short chronicle Megilat Teiman, that after receiving the Talmud from Babylonia, Yemenite scholars wrote commentaries on it and compiled brief manuals of talmudic rules. However, none of these writings are extant, or even mentioned in other sources.3 Nevertheless, from our knowledge of Yemenite Jewry in later generations, we can undoubtedly assert that the community has zealously preserved ancient customs and laws known only from Mishnaic or pre-Mishnaic sources, such as permitting bread baked by Gentiles,4 and observance of the maamadot umoshavot ritual during funeral processions, a custom of the land of Israel.5 The picture is much clearer regarding the period from the twelfth century on. The aforementioned R. Salih writes that after Maimonides had completed his Commentary on the Mishnah and Mishne Torah, he sent copies to San’a, the capital of Yemen. After studying the Mishne

2

An anonymous Yemenite scholar, who lived prior to Maimonides, wrote a commentary on Alfasi on tractate Hulin, published from MS by Kafih: Joseph Kafih (ed.), The Rif on Tractate Hulin with an Arabic Commentary by a Yemenite-Jewish Scholar (Hebrew), ( Jerusalem: 1960). On the status of Alfasi in Yemen, see Yosef Tobi, On the Talmud in Yemen (Hebrew), ( Jerusalem:1973), 15, nn. 34–35. 3 Y. Tobi, Studies in ‘Megillat Teiman’: The community of San’a, Shabbateanism, the Iraqi Family, Mahris (Hebrew), ( Jerusalem: 1984), 35. 4 Amram Korah, Saarat Teiman — The Tempest of Yemen (Hebrew), (Jerusalem: 1954), 94. 5 Y. Tobi, “The maamadot in the funeral and their evolution in custom through the generations to the present” (Hebrew), Yeda Am 19 (1979), 91–108.

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Torah, the monumental halakhic codex, and becoming convinced not only that it was a compilation of the law unprecedented in its comprehensiveness, but also entirely in accordance with their halakhic traditions, the Yemenite rabbis resolved to accept it unquestioningly as their judicial source.6 This tradition is attested to by Maimonides in his epistle to the rabbis of Lunel, in which he reports that certain notables of the community in Yemen had sent emissaries to Egypt, where they purchased three copies of the Mishne Torah, to be copied and distributed all over Yemen.7 But as indicated by recent Yemenite scholars such as R. Amram Korah (d. 1953) and R. Joseph Kafih (d. 2000), Yemenite Jewry felt itself sufficiently independent not to follow Maimonides on all points, and, where his rulings were incompatible with their own ancient traditions, to maintain their traditions.8 Furthermore, a tradition conveyed by R. Kafih, and reinforced by his philological findings regarding the Mishne Torah, holds that the Yemenite rite actually served as Maimonides’ source for the version of the prayerbook (sidur) that he appended to the Sefer Ahava, the second book of the Mishne Torah.9 Nor did Yemenite scholars hesitate to criticize Maimonides when his rules seemed to them wrong or questionable. The best known point on which they queried him was the matter of resurrection. Since Maimonides’ stance on the issue was not completely clear in the Introduction to Perek Helek (ch. 10) of tractate Sanhedrin in his Commentary on the Mishnah, the Yemenites requested clarification, and at the same time, or after receiving his response, appealed to his rival, the Baghdadi Gaon Samuel Ben Eli, for clarification of that very matter.10 Even prior to Maimonides, the Jews of Yemen had appealed to scholars in Egypt when they could not agree on halakhic issues. An example is the question sent to R. Isaac b. Samuel Hasfardi, the prominent Egyptian scholar, in the middle of the twelfth century.11 But their 6 Tobi, 1984, n. 3 above, 38–39. 7 Maimonides, Kovetz Teshuvot Harambam (Lipsae: 1859), Epistles, 44a. 8 Korah, n. 4 above, 99–100; Kafih, Collected Papers (Hebrew), ed. Yosef Tobi, ( Jerusalem: 1989), 677–78. 9 Joseph Kafih (ed.), Mishne Torah, (Jerusalem: 1984–96) (henceforth, Code), vol. 2, 712–34; Tobi, “The Yemenite nusah of the prayer book” (Hebrew), Tema 7 (2001), 29–64, 44 n. 42. 10 Tobi, “A document from Yemen defending Maimonides’ reasoning on resurrection of the dead” (Hebrew), Tema 6 (1998), 29–64. 11 Kafih 1960, n. 2 above, 91–93.

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religious ties with the Egyptian spiritual leadership strengthened and became consistent from the 1170s on, when it was headed by Maimonides and later by his son Abraham and his descendant Joshua.12 Not only were unresolved halakhic issues referred to Maimonides and his descendants, but almost all Yemenite religious literature in the areas of halakha and philosophy from the thirteenth to the fifteenth centuries took the form of commentaries on Maimonides’ works. The Maimonidean influence is also particularly evident in the vast Yemenite interpretive work on the Pentateuch, that is, in the Judeo-Arabic philosophical compositions in which Yemeni scholars suggest allegorical interpretations of the fabulistic stories in the Talmud and the midrashic literature.13 No wonder, then, that for Yemenite Jewry, Maimonides’ Mishne Torah constituted the main halakhic source until the sixteenth century.14 Note also that, in keeping with tradition, save for halakhic compilations on ritual slaughter, no independent halakhic works were written by the scholars of Yemen, who were entirely satisfied with the Mishne Torah. In this regard, Yemenite Jewry did not differ from Jewish communities throughout the Muslim world, for whom the Mishne Torah was the only authoritative halakhic codex. This was not typical of Jewish communities in Christendom, especially Ashkenazic communities, where a number of books of customs (minhagim) were compiled15 documenting binding local religious legal traditions, and there was no commitment to the Mishne Torah. In the second half of the sixteenth century, however, a revolution took place throughout the Jewish world: R. Joseph Caro produced his Shulhan Arukh, a new codification of Jewish law. It was printed during 12

Mordechai A. Friedman, “A dispute between a Yemenite divine and R. Abraham Maimuni concerning the marriage payment and the authority of tradition” (Hebrew), Te’udah 14 (1998), 139–92; Judah Ratzabi (ed.), The Responsa of Rabbi Joshua Hanagid (Hebrew), (Jerusalem: 1989). 13 Y.T. Langermann (ed.), Yemenite Midrash: Philosophical Commentaries on the Torah (Lanham, MD: 1996). 14 Cf. Ratzon Arusi, “The ethnic factor in rabbinical decision-making (enforcement of divorce on the grounds of revulsion in the Yemenite Community)” (Hebrew), Dine Israel 10–11 (1981/3), 135. 15 See Israel Ta-Shma, Early Franco-German Ritual and Custom (Hebrew), ( Jerusalem: 1994); idem, Ritual, Custom and Reality in Franco-Germany, 1000–1350 (Hebrew), ( Jerusalem: 1996); Eric Zimmer, Society and Its Customs: Studies in the History and Metamorphosis of Jewish Customs (Hebrew), ( Jerusalem: 1996).

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his lifetime, in Venice in 1564–65. For many reasons we cannot go into here, this codex was swiftly disseminated throughout the Jewish communities, almost universally supplanting the authority of the Mishne Torah. The Jewish community of Yemen did not embrace this comprehensive change. True, copies of the first edition of the Shulhan Arukh arrived in Yemen soon after it was printed. They were probably brought there by booksellers such as R. Abraham Ashkenazi, who went to Yemen in the 1660s, and R. Zechariah Dahiri, the Yemenite scholar and traveler.16 He visited Safed in the 1660s, where he met R. Joseph Caro at his yeshiva, as well as other learned personalities, whose academies he visited.17 Nevertheless, the Jews of Yemen clung to the Mishne Torah. This adherence was just one element of the fundamental inclination of Yemenite Jewry to maintain its ancient traditions. The Yemenite Jews felt no obligation to act in conformity with the ways of other Jewish communities, however large they might be. Another aspect of this uniqueness is the fact that only the medieval Judeo-Arabic of the Yemenite Jews was still current among them as a literary language well into the twentieth century, while all other Arabic-speaking Jewish communities had abandoned their Judeo-Arabic in favor of the local vernacular or Hebrew.18 Nevertheless, Yemenite Jewry respected — without necessarily adopting — external traditions that were introduced into Yemen, as reflected in works pertaining to various aspects of Judaism. An example is the Kabbalah, which was known in Yemen at least as early as the beginning of the fifteenth century through the Zohar and other kabbalistic works written in Spain prior to the Exile of 1492, and the later Kabbalah of Safed, introduced into Yemen by Dahiri.19 Two additional factors played a crucial role in the eventual adoption by the majority of

16

R. Zechariah al-Dahiri, Sefer Hamusar, ed. Judah Ratzabi (Jerusalem: 1965), 39–40. 17 Dahiri wrote two poems in praise of Caro’s Shulhan Arukh, see Judah Ratzabi, “R. Joseph Caro and the Jews of Yemen” (Hebrew), Otzar Yehudei Sfarad 2 (1959), 86–87 (⫽ Talpiot 7 (1959), 469–77); Joseph Iraqi Hakohen, “A new poem by Rabbi Yihye al-Dahiri in praise of the Shulhan Arukh and its author” (Hebrew), Or Yisrael 2 (1987), 46–49. 18 Joshua Blau, “The linguisitic ideal of Yemenite Jewry in the last centuries” (Hebrew), in Shalom Gamliel et al. (eds.), Orhot Teiman ( Jerusalem: 1984), 23–25. 19 Dani Bar Maoz,“The dissemination of Kabbalah in Yemen” (Hebrew), Tema 7 (2001), 90–91.

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Yemenite Jewry of the new traditions, traditions that originated, for the most part, in the land of Israel and the Sefardic communities of the Diaspora. One was the total absence of printers in Yemen: no works reflecting the local (baladi) liturgical and ritual customs could be printed, and they remained in manuscript. By contrast, printed books, many of which reflected the Sefardic (shami) traditions, were available, and not surprisingly, more and more Yemenite Jews preferred to acquire the less costly and easier to read printed books, notwithstanding the fact that they expressed a different tradition, rather than their own expensive and difficult to read manuscripts.20 The second factor was the relatively rich flow of visitors to Yemen, generally emissaries of the Jewish communities and academies in the land of Israel, but also merchants from the Sefardic communities. The emissaries were recognized in Yemen as bearers of incontestable religious authority. By this slow but continuous process, the shami liturgical and ritual tradition gained ever more sympathy and legitimacy, at the expense of the baladi. It also manifested itself with respect to the community’s chief legal source, that is, in the increasing authority of the shami Shulhan Arukh of Caro as against the baladi Mishne Torah of Maimonides.21 This evolutionary process was more pronounced in small and remote communities than in large centers, which had the communal and spiritual strength to preserve the ancient traditions. The process intensified in the years following the Exile of Mawza’ (1679), when almost all the Jews of Yemen were forced to leave their homes for Mawza’, a small town in the west of Yemen, not far from Mocha, a Yemenite port city on the Red Sea. During the upheaval, they lost many of their old works in manuscript, as well as communal documents. Even when, after about a year and a half, they were allowed to return to their homes, reconstruction of communal life exactly as it had been, in accordance with the ancient traditions, was not possible.

20 21

Abraham Yaari, “Bookselling in Yemen by emissaries from the land of Israel” (Hebrew), Kiryat Sefer 24 (1947/8). For a thorough examination of the dissemination of the Shulhan Arukh in Yemen, see Aharon Gaimani, “The Dissemination of the Shulhan Arukh in Yemen” (Hebrew), (MA thesis, Bar Ilan University, 1986); idem, “The dissemination of R. Joseph Caro’s literary-halakhic work in Yemen” (Hebrew), Pe’amim 49 (1992), 122–34.

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The Controversy with Rabbinical Courts outside Yemen: 1636–1638

The first stages of the tension between the laws set out by Maimonides and those of R. Joseph Caro did not develop within the Yemenite community, but rather, was between Yemenite Jewry and communities outside Yemen. To the best of my knowledge, the first serious controversy arose around 1636–1638, and was well documented in responsa by a number of scholars of the time who were involved in the matter. The issue in question was a bill of divorce (get) drawn up in 1636 for a Jewish merchant from Constantinople by the rabbinical court in Mocha. Twelve years earlier, he had converted to Islam and settled in Mocha, leaving his wife abandoned and, not having received from him a bill of divorce, unable to remarry ( ). The rabbinical court in Constantinople sent a special messenger to find him and obtain a bill of divorce to free his wife. This indeed happened in 1636 with the help of the Mocha rabbinical court. But doubt arose as to the validity of the bill of divorce when the members of the Constantinople court realized that one of the two witnesses who signed the document, as required by the halakha, was the scribe himself. The rabbis in Constantinople, upholding the ruling of Caro and other legal authorities that a get signed by two witnesses, one of whom is the scribe, is invalid, were inclined to invalidate it. The issue, referred to for many years thereafter as “the Mocha get,” was submitted to renowned rabbis in Salonica, Turkey and the land of Israel for review; most opined that the get was invalid. For a year or two these rabbis energetically debated the issue. But in the final decision, rendered by only two rabbis — R. Joseph b. Moses di Trani (Maharit) of Safed, and R. Haim Benveniste of Constantinople — the view of Maimonides, who accepted the validity of the get, was given precedence over Caro’s, though Caro’s view was not dismissed. Their argument was straightforward: since the Jews of Yemen accepted Maimonides as the ultimate rabbinic authority, the ultimate decisor (posek), and since he had ruled, regarding the issue in question, that a get signed by the scribe and one witness was without any question valid, there was no reason to invalidate such a get if written by a Yemenite court. This reasoning was based on the principle that “Yemen is Maimonides’ place” (in Aramaic, teiman atreh deharambam), namely, the principle that the Jews of Yemen are bound by Maimonides’ rules rather than Caro’s. This principle was generally acknowledged by rabbinic authorities outside Yemen, such as rabbis David b. Zimra (Radbaz) (16th c.) and Jacob Faraji (17th c.) of

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Egypt, and even by R. Joseph Caro himself. It played a decisive role in subsequent generations, when rabbis outside Yemen were asked to render opinions on rabbinical issues involving Yemenite Jews.22 Indeed, the courts of Yemenite Jews continued to ratify bills of divorce signed by the scribe and one additional witness. This is attested by R. Yihye Salih in the second half of the eighteenth century,23 by the Jewish court in San’a in 1924 in a responsum signed by R. Yihye Isaac, R.Yihye Kafih and R. Yihye Abyad,24 and by R. Amram Korah, who served as the last chief rabbi in Yemen, immigrating to Israel in 1949.25

III The First Controversy within the Yemenite Community: 1740 The dissemination of the shami liturgical and ritual tradition within the religious praxis of the Jews of Yemen, including the synagogues and the rabbinical courts, did not generate any tension, since it was accepted as a natural part of the process of accommodating developments in Jewish life in the major centers outside Yemen. But a deliberate step taken by Shalom Iraqi, president of the San’ani Jewish community (and consequently of all Jewish communities in Yemen), to enforce the shami rites, led to a bitter dispute between his followers and the rabbis, who could not accept this enforced rejection of their ancient traditions. Iraqi’s act sought to bring about an accelerated culmination of the process by which Maimonides’ Mishne Torah was being gradually superseded by Caro’s Shulhan Arukh as the authoritative source for both study of the law in synagogues and academies, and rulings by the

22

For more on this, see Maimonides, Code, Book of Women, Laws concerning Divorce 2:2 and 9:25, Kafih ed., n. 9 above, vol. 6, 45–46, 231–33; R. Joseph Caro, Beit Yosef, Laws concerning Divorce 130; idem, Responsa Avkat Rokhel (Lipseae: 1859), #32, 35a; Responsa Radbaz (Venice: 1749), vol. 2, #825, 43a; Responsa R. Haim Shabtai (Salonica: 1651), EH, #2–3, 82a–106b; R. Moses Benveniste, Responsa Pnei Moshe (Constantinople: 1719), vol. 3, #40, 70a-73a; Responsa R. Jacob Faraji (Alexandria: 1901), #59, 55b; Tobi, “On the Jews of Yemen: new information from responsa volumes” (Hebrew), Shevet Vaam 7 (1973), 280–84. 23 R. Yihye Salih, Responsa Peulat Tzadik (Tel Aviv: 1946–65), vol. 1, #126, 88. 24 The responsum is included in the Memorial Volume for Rabbi Yihye Yitzhak (Hebrew). I thank the editor, R. Aviran Isaac Halevi, for drawing it to my attention. 25 Korah, n. 4 above, 112.

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rabbinical courts. Iraqi manipulated his protege, R. David Mishriqi, one of the most eminent scholars of the San’ani community, though not a member of its rabbinical court, to gain the religious support that was essential to winning communal acceptance of his move. It should be pointed out that Iraqi was the scion of a family that was not of Yemenite origin, but had migrated from Egypt to Yemen toward the end of the sixteenth century, and it is not hard to understand how he could have believed that his new home would be no different from other Diaspora communities. Moreover, Iraqi’s source of power was his high position in the court of the Zaydi kings of Yemen (the Imams), whom he served for many years as minister in charge of taxation and the treasury. We have no means of determining if it was under Iraqi’s communal aegis, but Mishriqi, who had been provided with a house in Iraqi’s neighborhood and nominated rabbi of his synagogue, taught the Shulhan Arukh instead of the Mishne Torah in his academy. Moreover, he was the first in Yemen to compose a commentary — Shtilei Zeitim — on the Shulhan Arukh. The following is a short excerpt from the lengthy introduction to the volume, in which he explains why he gives precedence to the Shulhan Arukh, and how it came to be accepted in Yemen. Recent halakhic authorities [in every country] call him Maran [our Master], to signify that he is the local Master, and all the more so of this country, the land of Yemen. Due to the pressure of making a living, the yoke of the king and the ministers, and the yoke of the exile, the like of which we have not heard of throughout the world, the works by the authors that have become widespread throughout the settlements of the Jews are absent from this country, and we have not been fortune enough to be enlightened save by our Master and teacher Rabbi Joseph Caro, blessed be his memory. Such was the case after our ancestors had conducted their whole lives in accordance with the composition (hibur) [the Mishne Torah] of Maimonides, blessed be his memory, as they had no access to any works by other authors. They were later enlightened by the volume Beit Yosef,26 yet they had at their disposal only two or three copies in the entire land. But now this shortened book [the Shulhan Arukh] is available to all, thank God, though its price is high due to the distance of the printing house [in Europe], [and] from one merchant to another. Nevertheless, everybody voluntarily spends of his own money to purchase it, and they comport themselves in accordance with it on all matters.27

26 27

Caro’s commentary on R. Jacob b. Asher’s Arbaa Turim. Shtilei Zeitim, vol. 1 (Jerusalem: 1895), introduction, 4a.

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The policy of Yemenite Jewry’s temporal leader, the communal president Shalom Iraqi, backed by the prominent personality of its spiritual leader, R. David Mishriqi, was to impose the shami rite and make the Shulhan Arukh the sole binding source of religious life. All traditions supported by Maimonides’ Mishne Torah were to be excluded. This objective, which might eventually have been achieved by natural progression, sparked spirited and vigorous opposition, led by most of the rabbis of San’a. Some had indeed sanctioned the gradual replacement of the old liturgical and ritual traditions with the new ones introduced from abroad. But it was precisely the aggressive action taken by Iraqi and Mishriqi that revived awareness of the original traditions of the Yemenite Jews and determination to maintain them in face of the new customs. The bitter struggle, not completely free of internal political aspects, resulted in a compromise to appease both sides. The final agreement, as described by R. Amram Korah, contains six clauses.28 The first four regulate prayers in the synagogues, in fact leaving the choice to each synagogue. Far more significant for us here are the two final clauses, which regulate the work of the rabbinical courts: 5. The courts will judge between two parties in accordance with the ruling of Maimonides, blessed be his memory, as was the custom of all previous courts. New issues, not mentioned by Maimonides, which are subject to controversy between more recent halakhic authorities, will be settled in accordance with the ruling of Maran in the Shulhan Arukh. 6. On an issue on which some of the halakhic authorities dispute Maimonides’ ruling prohibiting something, one ought not confirm their opinion, since, like him, they [sometimes] rule to prohibit a matter where others tend to be lenient. The exception is an issue upon which all halakhic authorities dispute the prohibitive ruling, such as the “I detest him” claim,29 when one ought affirm their opinion and rule in accordance with it.

Thus, at least in San’a, the leading community of Yemenite Jewry, the preferred status of the Mishne Torah as a source for rendering judgment

28 Korah, n. 4 above, 17–18. 29 Maimonides ruled that the husband of a woman who claims that she detests him and no longer wishes to live with him is obliged to divorce her. This is discussed in detail below.

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in the courts was maintained, except with respect to new issues to which Maimonides did not refer in his codex. However, as R. Ratzon Arusi has concluded,30 the very attempt by Shalom Iraqi, with the backing of some of the rabbis, to impose the Shulhan Arukh on the Yemenite community, bred the resolve, among the majority of the local spiritual leadership, to observe the ancient traditions on the basis of Maimonides’ Mishne Torah.31 IV The Strengthening of the Shulhan Arukh in the Late Eighteenth and Nineteenth Centuries Despite the unequivocal decision in its favor, the status of the Mishne Torah was eroded as a result of the approach adopted by R. Yihye Salih, the main spiritual figure in the second half of the eighteenth century, who overshadowed all earlier Yemenite authorities. Having been born in 1715, he was most likely too young to have taken an active part in the controversy of 1740. As reflected in his vast literary output, he took a two-track approach to the question of which direction Yemenite religious life should take. On the one hand, he acted to preserve the unique ancient Yemenite tradition in face of the continuously growing influence of the new “imported” customs, particularly those pertaining to the masoretic version of the Bible and the wording of the prayers. But at the same time, he was generally compliant with respect to the Yemenite community’s adjustment to the religious practices of other communities, the most significant being acceptance of Kabbalah as a legitimate, and important, spiritual element. It is by no means merely symbolic that he compiled his halakhic compositions, not in the order of the Mishne Torah, as was the prevailing custom in Yemen before R. David Mishriqi, but in the order of the Shulhan Arukh. R. Salih served as head of the rabbinical court in San’a for almost fifty years, from 1758 until his death in 1805. Indeed, he was in effect the sole leader — temporal as well as spiritual — of the Jews of Yemen, 30

Ratzon Arusi, “The Shulhan Arukh as a factor in the survival of Maimonides in Yemen” (Hebrew), in: Yosef Tobi (ed.), Lerosh Yosef: Texts and Studies in Judaism dedicated to Rabbi Joseph Kafih (Hebrew), ( Jerusalem: 1995), 387–94. 31 For a summary and discussion of R. Yihye Salih’s rules regarding Maimonides versus R. Joseph Caro, see R. Isaac Ratzabi, Kuntres Klalei Maharis, in his Kitzur Shulhan Arukh (Bnei Brak: 1996), 301–20.

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as a result of the dismissal of Shalom Iraqi by the Zaydi imam in 1762 and the much diminished prestige of the communal leadership for many years afterwards. His rulings were accepted in the smaller communities throughout Yemen, whose members submitted hundreds of halakhic questions for him to decide. In a sense, he was a product of the shift from the authority of the Mishne Torah to that of the Shulhan Arukh, a product, not of the revolutionary steps taken by his teacher R. David Mishriqi, but rather, of the more temperate, yet persistent process that had been occurring since the seventeenth century. In the early years of his office, until at least 1769, he seems to have adopted Mishriqi’s approach with regard to the authority of R. Joseph Caro. For instance, in 1769, speaking of the rabbis of the community of Sa’dah in northern Yemen who doubted a ruling set forth by Caro, he wrote the following in a responsum: What person would dare dispute the verdict of the Beit Yosef, and his decision, and all the recent [scholars], none of whom we saw disputing him on this [point]! Therefore, from now on, he who slanders him . . . deserves to be rebuked until he repents and accepts the words of the sages. Whatever Joseph [Caro], the light of the exile, says, you must carry out. Not to mention that according to R. Shimon b. Tzemah, even Maimonides would have assented on this [issue].32

More precisely, whereas R. Salih’s early stance on the Maimonides versus R. Joseph Caro question could, perhaps, be described as vacillation, in his later years he drew nearer to the followers of Maimonides. Thus, when asked about eating butter made by Gentiles during Passover, he decided against it, in accordance with Maimonides’ ruling: My answer was to forbid it, since in these districts the current custom is to be stricter, viz., not to eat [butter] during Passover, in accordance with the opinion of Maimonides and of his disciples. . . . The prohibition against this is clear, according to Maimonides’ opinion, and has been from the time of our ancestors’ ancestors.33

However, the less even-handed tendency, represented by R. David Mishriqi, to accept R. Joseph Caro’s halakhic decisions as binding while rejecting those of Maimonides, did not disappear. His son R. Yihye Mishriqi, one of the leading rabbis of San’a community, who

32 Salih, n. 23 above, vol. 1, #61, 50. 33 Ibid., vol. 2, #180, 195–203.

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sat on the rabbinical court there from 1785 on, continued in his father’s path. When R. Yihye Salih approached him on the aforementioned issue, his answer was unequivocal: And I say that our ancestors’ ancestors were very strict as to eating. We do not have to concern ourselves with those ancestors, since the recent generations and the generations that preceded them for many years and generations, have followed Maran [R. Joseph Caro], blessed be his memory; whatever Joseph tells them, they do. Although Yemen is under the jurisdiction of Maimonides . . . still, the custom of ruling in accordance with [the views of] Maran, blessed be his memory, has become widespread. And just as the custom is widespread in Egypt and in the holy land and in the west [North Africa], which were all under the jurisdiction of Maimonides, blessed be his memory, yet nonetheless they follow the rulings of Maran, the mentor of all exiles, so too in our places we follow Maran’s rules and his decisions, and we do not have to pay attention to our ancestors.34

Although vacillation on the issue persisted into the nineteenth century, during which time most of the rabbis in San’a, the leading Jewish community, were the descendants or disciples of R. Yihye Salih, overall, the balance steadily shifted in favor of the primacy of the Shulhan Arukh, at the expense of the authority of the Mishne Torah. The followers of R. Caro and the shami rite centered around two large synagogues in San’a, that of the Iraqi family (kanis bayt al-’usta) and that of Alsheikh family (kanis bayt al-shaykh). Their leader was R. Abraham Alsheikh, who, until his death in 1829, served as president of the community. He was resolved to win over the community to the shami rite in its entirety, encompassing not just the primacy of the Shulhan Arukh, but also extending to the customs and the version (nusah) of the prayers, the Bible, and the Torah reading. One of his most ardent supporters was R. Shalom Korah (d. 1850), who spared no effort in his long treatise to prove that some of the ancient customs of the Yemenites were simply wrong, and should be changed to accord with the law set out in the Shulhan Arukh. The other side, that is, opponents of this broad application of the shami rite, remained loyal to the compromise worked out by R. Yihye Salih, and in so doing, preserved the ancient customs and rulings that were in accordance with the view of Maimonides. They were led by R. Joseph Karah, who served as president and rabbi of the

34

R. David and R. Yihye Mishriqi, Responsa Revid Hazahav (Tel Aviv: 1955), #26, 37.

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community (1812–1849), and his son R. Solomon (Slayman) Karah, who succeeded him in both positions (1849–1889).35

V

The 1890 Controversy over the “I Detest Him” Claim

The tension between the followers of Maimonides and Caro at the turn of the nineteenth century was principally reflected in the divergence between the leading community of San’a and its environs, and the more remote communities. This divergence is well attested in the findings of a study tour that took place in 1910. At the end of that year, the Jaffa office of the Zionist Movement sent Samuel Yavneeli to Yemen as an emissary, to encourage immigration to the land of Israel. To evade the disapproving Turkish authorities who then governed the land of Israel, as well as Yemen, this nationalistic mission was disguised as a religious one. It purported to be an investigation initiated by the Chief Rabbi of the land of Israel, R. Abraham Kook, with a view to ascertaining the special religious rules and customs of the Jews of Yemen as compared to those of other Jewish communities. The responses provided by most of the Yemenite communities attested to allegiance to the Shulhan Arukh, though some stressed obedience to the rulings of the

35

On the halakhic disputes during the nineteenth century and the chief rabbinical figures involved, see R. Itamar Cohen, Otzrot Teiman: Responsa and Judgments (Hebrew), (Bnei Brak: 1985); R. Yihye b. Shalom Hakohen, Hayei Shalom (Union City, NJ: 1993), #3, 134–63; Ratzon Arusi and Menashe Lehmann, “The dispute on the pre-meal blessing in public” (Hebrew), in Judah Levi Nahum, A Window onto the Hidden Treasures of Yemen (Hebrew), (Tel Aviv: 1986), 297–360; Ratzon Arusi, “The contemporary rabbinical authorities in face of communal diversity” (Hebrew), in S. Deshen (ed.), Half of the Nation: Studies in the Culture and the Status of Eastern Jews in Israel (Hebrew), (Ramat Gan: 1986), 65–105. In 1812 a halakhic controversy engendered a contentious dispute, lasting several decades, between the rabbinical court of Aden, backed by courts in other communities, and that of San’a. Some of the scores of documents pertaining to the dispute have been published; see David M. Schmidel, “The rabbinical court of Aden” (Hebrew), in Judah Levi Nahum (ed.), Fragments of Literary Works from Yemen (Hebrew), (Holon: 1981), 75–107. The case has not been thoroughly clarified, and it may be that it too was connected to the tension between the Maimonidean camp and advocates of the primacy of R. Joseph Caro.

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court of the San’ani community.36 That institution, headed by R. Yihye Kafih, responded in detail, including a lengthy depiction of the history of the tension between the rules of the Mishne Torah and those of the Shulhan Arukh.37 Consider the following excerpt from the response of the San’ani rabbinical court: We declare what we have received from our forefathers, that copies of the Talmud were very rare (as is known, before the invention of the printing), and there existed only two or three in the towns of Yemen. Then, the rules of the Geonim were widespread among them, and they followed them. And then the works of Maimonides, the Arabic Commentary on the Mishnah, Dalalat al-Ha’irin [Guide of the Perplexed] and Mishne Torah [Hayad Hahazaka] became widespread as well. At that time, they accepted him [Maimonides] as their mentor, and sent scribes to Egypt to emend their copies in accordance with his manuscript. . . . They carried out all their deeds in accordance with his Mishne Torah, without straying from his words, neither to the right nor to the left. . . . Then the works of Maran, the Shulhan Arukh and Beit Yosef,38 became widespread, so they started to be more lenient on some issues, and stricter on others, in accordance with the Shulhan Arukh. Nevertheless, most of them are still committed to the codex of Maimonides.39

But the most vivid expression of the tension between the San’ani court, which followed the Mishne Torah, and courts outside San’a, which followed the Shulhan Arukh, was the controversy on the issue of meis alai (“I detest him”). This is the declaration made by a woman who finds her husband so objectionable that she can no longer live with him. The rabbinical court is then authorized to compel the husband to give his wife a bill of divorce (get). Note that Jewish tradition is very strict about the husband’s independence and free will in all that pertains to divorce. Nevertheless, when a wife declares, “I detest him,” Maimonides, following the Geonim and R. Isaac Alfasi, ruled decisively that the rabbinical court was allowed to compel the husband to

36 On the communal and religious deference of the communities in Yemen to the leading community of San’a, the capital city of Yemen, see Tobi, “The emissaries of the Jewish court in San’a to the communities of Yemen” (Hebrew), Peamim 14 (1983), 92–106; idem, The Jews of Yemen: Studies in Their History and Culture (Leiden: 1999), 128–41. 37 For the entire relevant correspondence, see Samuel Yavneeli, A Journey to Yemen (Hebrew), (Tel Aviv: 1952), 187–200. 38 Caro’s commentary on the Arbaa Turim. 39 Yavneeli, n. 37 above, 196–97.

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divorce his wife.40 This approach was the minority opinion among the medieval authorities, which explains why Caro rejected it.41 Following the rabbis of medieval France and Germany, he ruled that the “I detest him” argument was not proper grounds for compelling a divorce.42 Now in 1890, it happened that woman from a community not far from San’a requested a divorce from her husband, who was afflicted with carbuncles, adducing the “I detest him” argument. The local rabbinical court approved the request, but the husband, who was dissatisfied with this decision, applied to the San’a rabbinical court. When, to his disappointment, the ruling of the outlying court was ratified there on the basis of Maimonides’ approach, the husband tried to win the support of rabbis from other outlying communities. The latter protested against the San’ani judgment on the grounds that in communities outside San’a, the authoritative source for deciding the law was Caro’s Shulhan Arukh and not Maimonides’ Mishne Torah. Once again, the rabbis in San’a overruled them. The rabbis from the outlying communities then made a submission on the matter to the Chief Rabbi of the land of Israel, the Rishon Letzion Jacob Saul Elyashar. They were confident that, as a Sefardic scholar, he would support Caro’s ruling, namely, that the “I detest him” claim was unacceptable. But in this case, just as in the case of the seventeenth-century Mocha get discussed above, the external rabbinic authority affirmed the decision of the San’ani court. He applied the well-known argument that “Yemen is Maimonides’ place,” though everywhere outside Yemen, the law is not in accordance with Maimonides’ views, which have been superseded by those of R. Joseph Caro.43 It is of interest to note that rabbinical courts of the State of Israel recognize this claim when a Yemenite couple is involved in a case of this sort. The administration of these courts is careful to include at least one Yemenite judge on the bench, so as to

40

Code, Kafih ed., n. 9 above, vol. 5, Book of Women, Laws concerning Marriage 14:12, 305–06. 41 Beit Yosef, Laws of Ketubot 77, 115a–b. 42 For the different opinions on this case, see R. Yomtov Tzahalon, New Responsa of Yom Tov Tzahalon (Jerusalem: 1981), vol. 1, #172, 124–27; Kafih, n. 40 above, 306–10; Yabia Omer, #56, 289–94. 43 R. Jacob Saul Elyashar, Responsa Maase Ish (Jerusalem: 1892), EH #11–12, 60a–63a; Tobi, n. 2 above, 286–89.

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allow the Maimonidean ruling to be utilized.44 (This is related, it would seem, to the general process of finding ways to maximize women’s rights within the family relationship on the basis of the halakha.45) R. Elyashar applied the same rule, namely teiman atreh deharambam, in reference to another issue, levirate marriage (yibum). In 1893 he was asked by the court of the Rada’ community (southeast Yemen) about the issue. Mamonides rules that yibum is the first choice, and only if the man (or the woman) does not consent to the marriage is the halitza ceremony, which releases the widow from the levirate bond, performed as a second choice.46 R. Joseph Caro reversed this order of priority, following the rulings of medieval Ashkenazic rabbis.47 R. Elyashar was very clear in his answer, favoring the local custom in Yemen: There is no doubt regarding the issue under discussion as well, viz., that since the case took place in the towns of Yemen, where they follow Maimonides, and it is the locality of that Master, and the nusah of all their prayers is in accordance with the view of Maimonides, and regarding the majority of the laws they rule as he does, and so on.48

The San’ani community and other Yemeni communities apparently did not differ on the issue of yibum; we can deduce as much from the fact that the question was sent from an outlying community.49 44

45

46 47 48 49

However, a Yemenite rabbi who lived in Israel (d. 1980), R. Zechariah Avigad Sharabi, did not accept Maimonides’ ruling on this issue, since in general he followed R. Joseph Caro; see his Kitzur Even Haezer (Tel Aviv: 1959), 114–15. This trend has characterized the halakha since the Geonic period. For example, although R. Menahem Serero (Fez, Morocco, d. 1701) sided with R. Joseph Caro on the issue under discussion, namely, that the court was not entitled to force a husband to divorce his wife if she put forward the “I detest him” plea, he concluded a responsum with the following recommendation: “You, who seek peace, talk leniently and gently to the husband, in order that he go and appease her immediately, for a woman’s mind is gentle. The more he offends her with his words and tells her that she will be forced to live with him, the more he strengthens her anger, and her detestation of him grows stronger and stronger” — R. Saul Joshua Abitbol, Responsa Avnei Shayish (Jerusalem: 1930), 91a. Code, Kafih ed., vol. 6, Book of Women, Laws concerning Levirate Marriage and Halitza 1:2, 363–64. Beit Yosef, EH 65, 89b–91a. R. Jacob Saul Elyashar, Responsa Yisa Ish (Jerusalem: 1896), EH #18, 66a–b. Similarly, R. Avigad (n. 44 above, 248–49), who usually follows the law as set out by Caro, in this case adopted Maimonides’ ruling. However, Caro

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VI Tension between the Mishne Torah and the Shulhan Arukh Engendered by Emissaries from the Land of Israel Emissaries and merchants who took up residence in Yemen believed it imperative for the Jews of Yemen to adapt themselves to the ways of Jewish communities in other lands. They felt the Yemenite Jews ought to sever their connection with Maimonides’ Mishne Torah and conduct themselves in accordance with the Shulhan Arukh, particularly with respect to liturgy and daily life. The Jews of Yemen, who were noted for the esteem in which they held the emissaries from the land of Israel, were perplexed when the latter recommended or insisted on their changing their customs. Nor did they find it easy to ignore the emissaries’ opinions. In addition, the wealthy Egyptian Jewish bookseller, Nissim Noah Suwaysi, had visited Yemen several times during the first half of the eighteenth century, and energetically set about persuading the local communities to alter their customs. His goal, presumably, was to enlarge the local market for his books, which were based on the shami rite and the Shulhan Arukh, but did not suit the ancient local baladi rite, which was compatible with Maimonides’ Mishne Torah. Not surprisingly, he was supported by the communal president, Shalom Iraqi.50

50

did not rule out the option of yibum, as do Ashkenazic rabbis, which explains its rather notable presence within the Sefardic and Eastern Jewish communities. See S.D. Goitein, “Zum heutigen Praxis der Leviratsehe bei orientalischen Jude,” Journal of the Palestine Oriental Society 13 (1933), 159–66 (for a Hebrew version see S.D. Goitein, The Yemenites (Hebrew), (Jerusalem: 1983), 306–12). The issue of yibum in the State of Israel is discussed in Arusi, n. 35 above, 82–87. For a detailed study of the issue, and the differing views on it that have been put forward by the rabbinical courts in Israel, see Arusi, n. 14 above, 126–31, 149–71. Tobi 1984, n. 3 above, 196–98. On the meddling of other emissaries in the internal life of the San’ani Jewish community in 1829 and in 1888, urging it to reject its ancient traditions or adapt them to conform to the law as set down by R. Joseph Caro, see Cohen, n. 35 above, 26–27; Tobi, “The dispute about the eulogies at the funeral of R. Yihye Badihi on the second day of Sukot in 1887” (Hebrew), in Joseph Dahuh Halevi (ed.), Afikim Springs Jubilee Volume: Studies in the Heritage of Yemenite Jewry and its Culture (Hebrew), (Tel Aviv: 1995), 237–54.

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Let us examine two of the numerous issues where the differences were pronounced: a

Mourning Customs During the Fifty Days of the Omer (from Passover to Shavuot)

These customs are not found in the Mishne Torah, as they were introduced later in the Middle Ages. They gained the status of obligatory commandments when R. Joseph Caro included them in his Shulhan Arukh. Accordingly, they were not known in Yemen until the arrival there of visitors, who, astonished by this situation, tried to convince the local communities to follow all the mourning customs as observed in every other Jewish community. For example, an emissary from the land of Israel who visited San’a several times around 1740 rebuked the local Jewish community because they did not observe the prohibition against shaving and cutting one’s hair during the Omer period. He tried to sway the community president Shalom Iraqi, who eventually, after being sharply criticized by the aforementioned merchant Suwaysi, used his political power to coerce his fellow Jews, punishing transgressors with fines and prison terms. Somewhat surprisingly, he could not get his decisions ratified either by the rabbis who generally sided with him, such as R. David Mishriqi, or, of course, those who opposed his religious policy.51 Nevertheless, the mourning customs slowly became absorbed by a considerable number of the communities of Yemen as a part of the general strengthening of the shami rite there. b

Text of the Pentateuch and Writing Style in Torah Scrolls

The Jews of Yemen have their own tradition regarding Torah scrolls, a tradition explicitly based on the text and writing style laid down by Maimonides in accordance with the famous Ben Asher manuscript.52 Yet the ancient tradition, as preserved in the handwritten copies of the Pentateuch or other parts of the Bible, was not easy to maintain, given the import of printed copies by booksellers, on the one hand, and

51 52

Tobi 1984, n. 3 above, 198–99. Code, Kafih ed., vol. 2, Book of Adoration, 399; Kafih, n. 8 above, 934.

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the discrepancies between the rules governing the writing style of the Torah scrolls set out by Maimonides, and those in the Shulhan Arukh, on the other. The result was total confusion, which impelled R. Yihye Salih to compose his Helek Hadikduk, an anthology of local traditions concerning the text of the Bible. But his decisions were not universally accepted, and questions occasionally arose regarding certain customs of the Yemenite scribes of Torah scrolls that departed from the rulings of R. Joseph Caro. One such custom was to mark some of the main cantillation signs (teamim), especially etnahta (caesura) and sof pasuk (end of the verse), or other indications regarding the reading of the text, by non-inked impressions in the parchment. The issue was raised for the first time in a responsum sent to R. David Mishriqi or to his son R. Yihye, in the answer to which he tried to prove that even according to R. Joseph Caro it might be done.53 However, when the Yemenite immigrants brought their Torah scrolls to the land of Israel, Sefardic rabbinical scholars (such as R. Ovadiah Yosef) as well as Ashkenazic tended to deem them invalid. This was because Caro ruled that a pointed Torah scroll was unfit.54 But Yemenite scholars proved the validity of their distinctive tradition, in particular, by adducing the simple fact that Maimonides did not include it among the twenty disqualifying characteristics that invalidated Torah scrolls.55 Note that in this case the Yemeni tradition was supported by R. Moses Feinstein, the highest Ashkenazi decisor in the United States in the last generation.56 The involvement of emissaries from the land of Israel57 in stirring up tension between the ancient local traditions and the newer ones is also attested by an event that took place in Yemen in the first or the second decade of the twentieth century. Some individuals who moved

53 Mishriqi, n. 34 above, #29, 46. 54 YD 274:7. 55 Yabia Omer, #54, 280–86; R. Zechariah Avigad Sharabi, Yavo Shilo, Tokheha Megula, Reiah Nihoah (Tel Aviv: 1976), 474–75; R. Haim Kessar, Responsa Hahayim Vehashalom ( Jerusalem: 1982), #15, 68; Code, Kafih ed., vol. 2, Book of Adoration, 418–19. 56 Igrot Moshe, OH, 1 (Bnei Brak: 1981), #117, 365–69. 57 The scholar in the incident to be described is referred to with the term hakham, the usual word in the Jewish–Yemenite vernacular for an emissary from the land of Israel.

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from one place to another within Yemen took with them Torah scrolls written in accordance with the rules of the Rosh (R. Asher b. Yehiel), which differed from those of Maimonides, which were current in their new place of residence. An emissary who visited there later opined that all the Jews of Yemen should amend their scrolls to accord with the rules of the Rosh. Since the local rabbis greatly respected scholars from the land of Israel, they applied to the Chief Rabbi there, the Rishon Letzion Haim Moses Elyashar, asking him if they really had to comply. R. Elyashar answered that they certainly did not, not only because they were observing their own authentic traditions, but also because of Caro’s ruling that Torah scrolls written by either method were approved.58 R. Elyashar did not specify the peculiarities of the Yemenite Torah scrolls compared with those of other communities. The significant differences, about twenty, mostly having to do with the spellings of various words, were detailed by R. Amram Korah.59 These differences had been noted by non-Yemenite scholars after the immigration of Yemenite Jews to the land of Israel in the 1880s.60 Because of these discrepancies, in the course of the twentieth century some of these scholars disqualified the Yemenite Torah scrolls for use by non-Yemenite Jews, ignoring the principle formulated by R. Joseph di Trani, to which I have referred several times above, that teiman atreh deharambam. The same issue arose in Jewish communities outside the land of Israel where Yemenite immigrants happened to live alongside Jewish immigrants from other places, for example, in Bombay around 1910.61 This approach was, however, rejected by both Yemenite62 and non-Yemenite authorities.63

58 59 60 61 62

63

R. Haim Moses Elyashar, Responsa Moshe Haish ( Jerusalem: 1921), YD #37, 83a–84a. N. 4 above, 103–05. R. Jacob Sofer, Shulhan Arukh with Kaf Hahaim Commentary (Jerusalem: 1910), 143:34; Yabia Omer, #56, 289–94. R. Abraham Nadaf, Responsa Anaf Hahaim (Jerusalem: 1981), #50, 201. Ibid., 200–10; R. Shalom Isaac Halevi, Helek Hadikduk, accompanied by the Commentary Divrei Shalom. Jerusalem (Hebrew), 8–11; idem, Responsa Divrei Hakhamim (Jerusalem: 1972), 19, 98–106; Kessar, n. 54 above, #98, 39–40; #182, 60; #11, 67; R. Joseph Korah, Imrei Yosef, #25–26, #62, #64, in R. Pinhas Korah (ed.), Anaf Etz Avot (Bnei Brak: 1994), 551–54, 585–87. Avraham Shalem, Eshed Hanehalim (Jerusalem: 1998), vol. 2, 5.

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VII The Dispute between those who Accepted and those who Rejected the Kabbalah The growing acceptance, for various reasons, of the Shulhan Arukh among Yemenite Jewry in the course of the nineteenth century, as depicted above, provoked the relentless resistance of an elite, although small, group within the San’ani community. The group was composed of enlightened scholars led by R. Yihye Kafih (1845–1932), whose chief goal was to improve the social and spiritual life of Yemenite Jewry. The most important reason for the grave state in which it found itself, they believed, was the rejection of the old traditions, as embodied in the Talmud, in Maimonides’ writings, and in the medieval philosophical works, in favor of the new rites as established by R. Joseph Caro under the strong influence of the Kabbalah. R. Kafih engaged in an uncompromising battle against any custom deriving from the Kabbalah or R. Caro’s rulings. To give a typical example of a minor such point, he criticized the custom of taking off one’s phylacteries during the morning prayer of the first day of the month right before the musaf (additional service), as established by R. Caro on the basis of kabbalistic considerations and in opposition to Maimonides and the customary practice in Yemen until recent generations.64 Still, R. Kafih and his friends and disciples did not directly attack R. Caro. This was not the case with respect to the Kabbalah, however: they attacked it ferociously, reviling the author of the Zohar as a heathen forger. And with respect to rulings on legal matters, they simply ignored the Shulhan Arukh as an irrelevant legal source. The dispute regarding the Kabbalah broke out in 1913 and reached its peak in 1931 with the publication of R. Kafih’s Milhamot Hashem (The Wars of the Lord), in which he vigorously presented his views on the Kabbalah and its followers. As a result of his work, study of the Mishne Torah indeed underwent a revival, and there has been a distinct tendency to renew and reaffirm the status of the ancient traditions. This tendency has been especially marked in the more modern and enlightened circles, and to some extent has been embraced as symbolizing a proud communal identity. But in recent years this has become counterbalanced by another trend, particularly in the circles under the influence of the Shas political party and R. Ovadiah Yosef, its spiritual 64

R. Yihye Kafih, Milhamot Hashem (Jerusalem: 1931), 102. See also R. Joseph Korah, Imrei Yosef, #33, in Korah, n. 62 above, 560–61.

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leader, who ceaselessly promotes the status of R. Caro as the sole ultimate halakhic authority.65 VIII Controversies over the Yemenite Rites in the Land of Israel All the Jews who migrated from Yemen to the land of Israel up to the 1880s were eventually absorbed within the mainstream, that is, the Sefardic, community. Consequently, they had to abandon their unique rites and adopt the Sefardic tradition, as determined by the Shulhan Arukh. By contrast, the Yemenite immigrants to the land of Israel after the 1880s established an independent community, retaining their original rites and customs. Many of these accord with the decisions of Maimonides and run counter to the law as specified in the Shulhan Arukh and to the prevailing local Sefardic and Ashkenazic customs.66 This new reality drew very sharp criticism, especially by the spiritual leaders of the monolithic Sefardic community, who could not tolerate the idea that newcomers to Jerusalem from a small and insignificant Diaspora community might threaten its uniformity. However, R. Abraham Nadaf, leader of the Yemenite community in Jerusalem and himself a prominent rabbinical figure, sided with the opinion that Maimonides was the ultimate decisor for the Yemenite Jews, and roundly attacked those who adopted the position of R. David Mishriqi, 65

66

The contemporary dispute within Yemenite Jewry, and particularly, within the Yemenite community in Israel, over the place of the Kabbalah and the standing of Maimonides as a legal source as against R. Caro, is too broad to elaborate on here. For a recent study, see Tobi, “Echoes of the dispute about the Kabbalah in Etz Haim by R. Saadiah Nadaf (San’a 1925)” (Hebrew), in Aaron Ben-David and Isaac Gluska (eds.), Hebrew Language and Jewish Studies (Hebrew), (Jerusalem: 2001), 105–18; idem, “The contribution of Rabbi Joseph Kafih to research on the Jews of Yemen” (Hebrew), in Zohar Amar and Hananel Seri (eds.), Rabbi Joseph Kafih Memorial Volume (Hebrew), (Ramat Gan: 2001), 117–31. On the waves of immigration from Yemen to the land of Israel and the formation of the independent Yemenite community in Jerusalem in the 1880s, see Tobi, “Yemen and Jerusalem: the connection of Yemenite Jewry to the land of Israel from the 7th to the 19th centuries” (Hebrew), Tema 2 (1991), 5–28; idem, “The political, social, and economic setting of the emigration from Yemen to Jerusalem in 1881–1918” (Hebrew), Tema 3 (1993), 67–69; idem, The Yemenite Community in Jerusalem, 1882–1921: A Collection of Documents from the Archive of the Communal Yemenite Committee (Hebrew), (Jerusalem: 1994).

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who accorded primacy to R. Joseph Caro.67 Nadaf based his argument on the position taken by Caro himself, who had dismissed the recommendation that Jewish communities whose way of life was based on Maimonides’ Mishne Torah be forced to accept any other decisor as their authoritative legal source.68 This approach was compatible with that taken by the rabbis in San’a, when consulted by their brethren in the land of Israel.69 However, one of the first rank of the Yemenite community in Jerusalem, R. Yihye Sarum, took the position that the Yemenite newcomers should have adopted the standing local customs as established by R. Joseph Caro.70 Some of the main issues were the following: a. In 1883, about a year after the first Yemenite immigrants arrived in Jerusalem, a wedding ceremony was conducted in which the formulations used in the ketuba (marriage document) were in accordance with the views of Maimonides. The Sefardic rabbis of Jerusalem ordered the groom to bring them the ketuba, and proceeded to tear it up. They even threatened the small group of newcomers that if they did not conform to the Sefardic ways, they would be excommunicated from the community, which, it should be noted, saw to the needs of the Yemenites and paid their government taxes.71 b. On 11 Kislev 5645 (December 1884), a Yemenite immigrant performed the ritual of erusin (becoming legally engaged to be married) with a pruta (a penny) in the presence of only two witnesses, as was usual in Yemen. This act scandalized the rabbis in Jerusalem, who observed the long-standing local regulation that the ritual of erusin must be performed just before the nisuin (wedding) ceremony, in the presence of a rabbi and ten men. In this case too, the Yemenite immigrants were threatened with excommunication.72 After the Yemenites of Jerusalem were incorporated as an independent communal entity in 1908, they felt more confident about upholding their traditions. However, tension still existed between the Yemenite community and the rabbis of the larger and stronger Sefardic and Ashkenazic communities.

67 Nadaf, n. 61 above, 155. 68 Avkat Rokhel, #32, 35a. 69 Nadaf, n. 61 above, 171. 70 Ibid., 172. 71 Tobi 1994, n. 66 above, 30. 72 Jacob Goldmann, “The community of our Yemenite brethren in Jerusalem” (Hebrew), Ha-Asif 2 (1886), 198.

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c. The Jews of Yemen, like those of some other communities, such as Tunisia, used to bake matzot for Passover even during the days of the festival; consequently, their matzot were soft. This was contrary to local custom in Jerusalem, where the matzot were baked prior to the festival, and hence were hard. The Yemenite Jews in Jerusalem, who wished to continue their tradition, were sharply criticized by members of the other communities, and by some of their own as well. Distressed, in 1910 they appealed to the rabbis in Yemen, their motherland. These rabbis encouraged them to preserve their independence and to observe the old traditions in keeping with the Talmud and Maimonides. Because of the profound significance of that counsel, we cite here part of the responsum from Yemen: Concerning your question as to whether you are allowed to knead and to bake during Passover in Jerusalem in accordance with your good and right custom in the towns of Yemen founded on our sacred Torah. In earlier times you were few, and clung to the Sefardic community, who allowed you to bake matza only before Passover. . . . But now that many people have emigrated from Yemen and have settled in Jerusalem and its neighborhoods, and it has transpired that you have become separate from the community of our brethren the Sefardim; and a large Yemenite community is independent and wishes to act once again in accordance with our forefathers’ customs and rites in Yemen with respect to kneading and baking, and to cook, soak and roast various kinds of legumes. But there are those who discourage you, saying that you will be punished, God forbid, because you change the customs. Is this right or not?73 Answer The issue is quite clear and there is no need to elaborate, as we honor and respect the customs of our forefathers . . . that were founded on the pure words of the sacred Talmud and in accordance with the great eagle Maimonides and other Geonim, and a few of them, in accordance with Maran, the author of the Shulhan Arukh, customs that are still untainted with the omissions and additions of the prohibitions of recent scholars. … Therefore, if you wish . . . to knead and to bake, you are allowed to do as you wish during Passover. . . . Ignore those who discourage you.

The question of the degree to which the Yemenite community in the land of Israel adapts itself to the more general practices has still not been settled. R. Shalom Isaac Halevi (San’a 1890–Jerusalem 1973), leader of the adherents of the Kabbalah among the Yemenite community in Israel, rejected the demand that in Israel the Yemenite community adopt Caro’s Shulhan Arukh.74 Similarly, answering an undated question 73 Nahum, n. 35 above, 273–77; Tobi 1994, n. 66 above, 31–32. 74 Halevi 1972, n. 62 above, 75.

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submitted to him, R. Haim Kessar (San’a 1908–Jerusalem 1997), another leader of the adherents of the Kabbalah within the Yemeni community in Israel, rebuffed the pressure on this community to abandon its commitment to the Mishne Torah as the authoritative legal source and uphold instead Caro’s Shulhan Arukh. Again, the profound significance of the matter justifies quoting the relevant passage in full: It is known that Maimonides is the local mentor in Yemen (harambam mare deatrin beteiman), as R. Yihye Salih wrote in his book of responsa Peulat Tzadik, vol. 2, #160. Now that we have been fortunate enough to ascend to the land of Israel, the rabbis of the land of Israel offend us, saying that here in the land of Israel one should act in accordance with the rules of Maran the Beit Yosef, of blessed memory, who is the local mentor (mare deatrin). They “struck us on the crown of our head,” using Maimonides’ own ruling in Laws concerning Idolatry 12[:17],75 namely, “There shall not be two courts in one locality, one person adopting a certain custom and another adopting another custom, since it results in fierce disputation. And it is written: “Do not form factions (lo titgodedu)” (Deut. 14:1).76

R. Kessar, however, rejects this argument on the grounds that in any case there is no single universally binding halakhic source in the land of Israel. Yet R. Kessar was not himself consistent in upholding this straightforward stance, which only goes to show that it is not so easy to ignore the majority halakhic preference. When asked if shaving was allowed during the Omer period,77 as was the custom in Yemen, in accordance with the view of Maimonides and in contradiction to the common custom in the land of Israel, where Caro’s rulings predominated, he replied that members of the Israeli Yemenite community should follow the local custom, namely, should not shave. Indeed, in his answer, he does not hesitate to criticize R. Yihye Salih, who permitted it. It is impossible to reconcile this argument with the claims voiced against the rabbis of the State of Israel who pushed the Yemenites living there to follow the unanimous custom. IX Conclusion Tension existed between two natural trends in Yemenite Jewry, namely, the desire to retain the old Maimonidean traditions, and the belief that 75 Code, Kafih ed., vol. 1, 566. 76 Kessar, n. 55 above, #2, 76. 77 See sec. VI (a) above.

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it was preferable to adopt the “new” customs formulated by R. Joseph Caro, these being close to a common denominator for Jewish communities the world over. This controversy was carried from Yemen to the land of Israel. Today, the heavy pressure exerted by the Israeli religious leadership plays a very substantial role in this dialectic. This pressure is principally embodied in the personality of R. Ovadiah Yosef, who is both the most venerated rabbi in the State of Israel since its establishment, and at the same time, has long been one of the most powerful political figures in the State’s history. His philosophy cannot be misunderstood: the Sefardic customs, as determined by R. Joseph Caro, have been for many generations, and remain, the binding rite in the land of Israel. The stronger Ashkenazic communities can easily oppose this stance, but this is not the case for individual Sefardic, North African, and Eastern communities. But within some communities, primarily the Yemenite, enough spiritual and social forces are present to preserve the old Maimonidean traditions. In addition, it must be kept in mind that some eminent rabbininic authorities, such as R. David Haim Shlush, sharply reject not only the unequivocal approach of R. Yosef, but even the totality and comprehensiveness ascribed to Caro’s Shulhan Arukh, and the determination that it constitutes the comprehensive and ultimate halakhic source. R. Shlush’s conclusion regarding the religious conduct of the different communities in the State of Israel is straightforward: Needless to say, with respect to a community that ascended from the Diaspora to the land of Israel and settled in a new settlement, and has a communal rabbi, it is unanimously opined that this community should act as they used to in their original place. There are no grounds for the claim that this [Israel] is the locale of Maran, since the people living in a certain place determine its customs, and not the trees and the stones found there.78 78

R. David Haim Shlush, Hemda Genuza ( Jerusalem: 1978), 289. For a comprehensive discussion of the conflicts between the different halakhic traditions as reflected in the decisions of the rabbinical courts in the State of Israel, see R. Arusi, “Incompatibilities between different communal halakhic traditions in rabbinical court rulings in the State of Israel” (Hebrew), (PhD dissertation, Tel Aviv University, 1987); Arusi, n. 14 above, 173, concurs with the approach of R. Shlush, relying on the precedence of tranquility (shalom) over subjective truth (emet). For a comprehensive discussion of the tension between R. Yosef’s convictions as to the ultimate supremacy of Caro’s rulings vis-á-vis the traditions of those who immigrated to Israel from Middle Eastern and North African countries, see Lau, n. 1 above, 219–62.

PART TWO CHRONICLE

The Jewish Law Annual, Vol. XV

THE ERUV WARS MARTIN EDELMAN*

In the basically tolerant and permissive culture of contemporary America, it is hard to believe that an eruv could be the source of communal conflict. The vast majority of Americans, including most American Jews, do not even know what an eruv is. They would not know one were they to see one.1 And almost certainly, they would not see one. Given the way eruvim [pl.] are currently constructed, few Americans are likely to know of the existence of an eruv in their community. Why, then, have these virtually invisible symbolic enclosures generated so much heated controversy? An eruv, in Jewish law (halakha), is an unbroken physical demarcation of an area. Jewish law prohibits lifting, carrying or pushing objects from a private domain (such as a house) to a public domain (such as a sidewalk) on the Sabbath and on Yom Kippur. The demarcation of an eruv boundary permits halakhically observant Jews to treat the symbolically enclosed area as if it were a private domain. By creating this legal fiction, observant Jews are free to engage in a number of otherwise forbidden activities. As long as they stay within the eruv, they can push baby carriages and wheelchairs, and carry infants, books and food, from their homes to the synagogue and to other homes. In short, establishing an eruv enables an observant Jewish community within the demarcated area to live a more “normal” life on the Sabbath and on Yom Kippur. In contemporary urban America, the demarcation of an eruv boundary is usually created by utilizing existing telephone poles and fences. Horizontal wires are strung across these structures high above the street traffic. To create symbolic doorways, vertical black rubber casings (lehi’s) are attached to the sides of the poles and fences. Thus an * 1

Political Science, Rockefeller College of Public Affairs and Policy, The University at Albany. To paraphrase Justice Potter Stewart’s famous comment in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

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eruv in contemporary America never creates a physical obstruction, and it is virtually invisible to the uninitiated. Because it is difficult to see, the community that erects an eruv also creates a mechanism to ensure that the boundary wires remain unbroken. Members of the observant community can call an information number before the Sabbath to learn if the eruv is operative, that is, if the wires remain unbroken. Since an eruv is a halakhically-created legal fiction to treat a demarcated public area as if it were a private domain, the Rabbis developed a procedure whereby the enclosed public property could be symbolically “transferred” to private “control.” In contemporary America, this is customarily accomplished by two related acts. The local government issues a ceremonial proclamation recognizing the area encompassed by the eruv, and agrees to accept a nominal rental fee (usually $1.00) from the Jewish community that erects the eruv. The tangible demarcation of the area involved, the governmental proclamation (seen as a type of “contract” symbolically transferring control of the area), and the payment of a rental fee (seen as constituting “acceptance” of the “contract” by both parties), permits the Jewish community to halakhically treat the public area as if it were private. The need for government involvement in this exchange is the focal point for political and legal conflicts that arise over the establishment of eruvim. In the American democratic political system, elected public officials, such as mayors and city council members, respond to groups and individuals supporting and opposing establishment of an eruv. In the American legal system, governmental involvement makes it possible to raise constitutional issues about the eruv, for the First Amendment does not apply to private action.2 These institutional features of the American political system explain the battlefields on which the eruv wars are being fought. They do not explain why something as seemingly innocuous as an eruv engenders such heated conflict.

2

The First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . ” In 1940 (Cantwell v. Connecticut, 310 U.S. 296), the Free Exercise Clause, and in 1947 (Everson v. Board of Education, 330 U.S. 1), the Establishment Clause, were incorporated into the Due Process Clause of the Fourteenth Amendment by the Supreme Court. Since local governments are considered to be agencies of the States, these cases made the religion clauses applicable to all governmental bodies in the United States.

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Two New Jersey cases capture the legal and political forces at play. In American Civil Liberties Union v. City of Long Branch (1987),3 the ACLU, on behalf of a Jewish resident of Long Branch, sought to block the erection of an eruv. The organization argued that the city’s actions permitting the construction of an eruv violated the Establishment Clause of the First Amendment. In Tenafly Eruv Association v. Borough of Tenafly (2002),4 the Jewish group claimed that the municipality’s refusal to permit the construction of an eruv was unconstitutional under the Free Exercise Clause of the First Amendment. In each case, the Federal courts sustained construction of an eruv. In Long Branch, the Federal District Court utilized the criteria set forth in the Supreme Court’s Lemon v. Kurtzman (1971)5 decision. Although much disputed,6 the three-part Lemon test has yet to be replaced as the applicable standard for resolving Establishment Clause disputes. Under Lemon, a state action must (1) have a secular purpose; (2) have a principal effect that neither advances nor inhibits religion; and (3) not foster excessive governmental entanglement with religion. For the District Court, the essential point was that Long Branch had a secular purpose in permitting the (Orthodox) Congregation of Israel synagogue to construct an eruv: it allowed a large group of residents access to public property. “Providing equal access to public facilities to people of all religions and enabling individuals to go to and from their chosen places of worship safely are permissible accommodations by government.”7 “The city allowed the eruv simply to enable observant Jews to engage in secular activities on the Sabbath.”8 Nor did the court find that the construction of an eruv constituted an excessive entanglement of government and religion. The aid provided by the city’s proclamation and enabling resolution was certainly de minimus. All the real work and expenses involved would be handled by the congregation.9 3 4 5 6

7 8 9

670 F. Supp. 1293 (D.N.J. 2001). 309 F. 3d 144 (C.A. 3 2002); cert. denied, 123 S. Ct. 2609 (2003). 403 U.S. 602. See M. Edelman and C.M. McMahon, “Grumet v. Board of Education of Kiryas Joel: towards a Lemon-aid theory of the First Amendment’s religious clauses,” 11 Jewish Law Annual (1994), 207–20; and M. Edelman and C.M. McMahon, “Lemon peels: the unraveling of a constitutional doctrine,” 13 Jewish Law Annual (2000), 241–65. ACLU v. Long Branch, 670 F. Supp. 1293, 1295 (D.N.J. 1987). Ibid., 1296. Ibid., 1296–97.

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Only the second prong of the Lemon test — whether the principal effect of the government’s action is to advance religion — caused the court any hesitation. After all, the sole reason for an eruv is to facilitate the religious observance of those Jews who feel bound by halakhic norms. But compared to previously resolved cases, the court did not believe that permitting an eruv was a constitutionally unacceptable advancement of religion. “Since it is permissible to construct houses of religious worship on public land at a [publicly owned and operated] airport to enable travelers and airport employees to practice their religions, it is certainly permissible to unobtrusively demarcate an area as an eruv to permit observant Jews to engage in secular activities while they practice their religion.”10 An eruv is not a religious symbol; it is only a series of wires and lehi’s. Because an eruv is all but invisible, it sends no message to the general community. The government can hardly be said to putting its imprimatur on religion in permitting a “structure” that is barely discernible even to its users.11 In Tenafly, the U.S. Court of Appeals for the Third Circuit held that the Borough’s refusal to permit lehi’s on utility poles was a selective enforcement of a municipal ordinance that violated the Free Exercise Clause.12 Because of political opposition within the Borough, the Orthodox community seeking to erect an eruv had obtained the requisite proclamation from the Bergen County Executive. (Tenafly is a political subdivision within that county.) When the elected officials in Tenafly became aware that an eruv was being constructed without their permission, they held hearings, after which the Borough Council voted 5–0 to deny the Eruv Association access to utility poles within their community. The Federal District Court upheld that decision on the grounds that it violated neither the Free Speech Clause nor the Free Exercise Clause of the First Amendment.13 The Court of Appeals reversed. For reasons similar to those articulated in Long Branch, the Appellate judges held that the District Court’s lengthy analysis of the free speech claim was unnecessary. An

10

11 12 13

ACLU v. Long Branch, 670 F. Supp. 1296. The cases involving airports are Brashich v. Port Authority of New York and New Jersey, 484 F. Supp. 697 (1979) and O’Hair v. Andrus, 613 F. 2d 931 (D.C. Cir. 1979). Ibid. Tenafly Eruv Association v. Borough of Tenafly, 309 F. 3d 144 (C.A. 3 2002). Tenafly Eruv Association v. Borough of Tenafly, 155 F. Supp. 2d 142 (D.N.J. 2001).

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“eruv — like a fence around a house or the walls forming a synagogue — serves the purely functional purpose of delineating an area within which certain activities are permitted.”14 Because of the way an eruv is constructed in contemporary America, even “Orthodox Jews learn the eruv’s boundaries by word of mouth from the persons charged with erecting and inspecting it.”15 The Court of Appeals thus held that an eruv is not a form of symbolic speech. The District Court had upheld Tenafly’s refusal to permit the eruv under the prevailing interpretation of the Free Exercise Clause. In Employment Division v. Smith (1990),16 the Supreme Court held that if a law is “neutral” and “generally applicable,” and burdens religious conduct only incidentally, the Free Exercise Clause offers no protection.17 The Appellate judges agreed that Tenafly Ordinance 691 — which required the Borough’s permission to place any matter on any pole, tree, etc. within its jurisdiction — was a neutral and generally applicable regulation.18 Had the Borough enforced it uniformly, Smith would control and the Eruv Association’s claim would, accordingly, fail. But the Court of Appeals found that the Borough had “tacitly or expressly granted exemptions from the ordinance’s unyielding language for various secular and religious — though never Orthodox Jewish — purposes.”19 “Apart from their religious nature, the lechis are comparable to the postings the Borough has left in place. If anything, the lechis are less of a problem because they are so unobtrusive; even observant Jews are often unable to distinguish them from ordinary utility wires.”20 Utilizing facially neutral laws and ordinances of general applicability against only one religious practice had been expressly forbidden by the Supreme Court.21

14 Ibid., 164. 15 Ibid., 162. 16 494 U.S. 872. 17 For a fuller discussion of the Smith standard, see M. Edelman, “Limits without walls: constricting religious freedom in the United States,” 10 Jewish Law Annual (1992), 247–58. 18 Tenafly Eruv Association v. Borough of Tenafly, 309 F. 3d 144, 165 (3rd Cir. 2002). 19 Ibid., 167. 20 Ibid. The court cited the more obtrusive church directional signs and holiday displays as the type of postings that the Borough had routinely left in place on the utility polls. 21 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

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Nor would the court accept Tenafly’s argument that its action did not impose a substantial burden on the religious practices of halakhically observant Jews. The Borough had maintained, correctly, that no Jew was prevented from living and worshiping in Tenafly in the absence of an eruv. But the Court of Appeals insisted that the government, including the courts, was precluded from determining the “centrality” of a particular practice in any religion.22 To do otherwise would entail an inquiry into the significance of words and practices to different religious faiths, and such inquiries are precisely the type of government involvement in religion that the First Amendment was designed to prevent.23 Finally, the court rejected Tenafly’s argument that its decision to remove the eruv was justified by its “compelling” interest in avoiding “an Establishment Clause controversy.”24 Tenafly claimed that it could not, under the second prong of the Lemon test, take an action — permitting erection of an eruv — whose primary effect was to advance religion — facilitating observance of halakhic norms. The judges recognized that there was a potential conflict between the religion clauses: an official recognition of a practice protected by the Free Exercise Clause might constitute an Establishment Clause violation. As they understood the trend of current Supreme Court opinions, however, that conflict was not present in Tenafly. In Long Branch, the District Court had rejected a comparable claim, essentially by finding that the governmental action was de minimis. In Tenafly, the Court of Appeals decided that recent Supreme Court decisions had effectively replaced the Lemon test with Sandra Day O’Connor’s “endorsement” standard: “would a reasonable, informed observer, i.e., one familiar with the history and context of private individuals’ access to the public money or property at issue, perceive the challenged government action as endorsing religion?”25 In this case,

22 N. 18 above, 170. 23 Ibid., 171. For an extended discussion of this point, see M. Edelman, “Answering to a higher authority: kashrut and American constitutional law,” 12 Jewish Law Annual (1997), 267–82; M. Edelman, “Entangling alliances: the aguna problem in light of Avitzur v. Avitzur,” 8 Jewish Law Annual (1989), 193–210. 24 Ibid., 172. 25 Ibid., 174. For a fuller discussion of the endorsement standard see M. Edelman and C.M. McMahon, “Lemon peels,” n. 6 above.

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the court held that “the reasonable, informed observer would know that the lechis are items with religious significance and that they enable Orthodox Jews to engage in activities otherwise off limits on the Sabbath, but would also know that the Borough was allowing them to remain on the utility poles only because its selective application of Ordinance 691 renders removing the lechis a free exercise violation.”26 The opinions in the Long Branch and the Tenafly cases bespeak the generally high quality of the lower federal courts. Both are squarely based upon the relevant Supreme Court decisions, soundly reasoned, and well and clearly written. Yet each is more than a summary application of binding precedent. Judge Thompson’s opinion in Long Branch utilizes a nuanced description of the actual features of an eruv to dispose of the central issue in these cases: a symbolic enclosure that is barely visible even to those who use it cannot plausibly entail the government’s imprimatur or endorsement. The Court of Appeals, in Tenafly, might well have made this point when applying the “endorsement” standard it took from Justice O’Connor’s opinions. Judge Ambro’s opinion for the Court of Appeals in Tenafly is especially strong in its doctrinal analysis. It contains, for example, a thorough discussion of the confusion generated by the Supreme Court’s use and non-use of the Lemon test.27 More importantly, its persuasive argument that the Supreme Court appears to be following Justice O’Connor’s “endorsement” standard helps clarify an otherwise bewildering doctrinal situation. In short, not only should halakhically observant Jews take comfort from these decisions, but so also should the American public. From a socio-political perspective, however, these cases are troubling in the extreme for American Jewry. The extended struggles to erect eruvim in two small New Jersey communities are concrete examples of the basic division bedeviling American Jews at the dawn of the new millennium. As Samuel G. Freedman has so cogently demonstrated in a recent study,28 it is little less than a war over the future nature of the largest Jewish community in the Diaspora. For most of the twentieth century, the primary concern of American Jews was their place in American society. Hence Jews and 26 Ibid., 176. 27 To explain why the free speech claim is irrelevant to the eruv issue, the opinion also provides a trenchant analysis of the Supreme Court cases dealing with symbolic speech, see ibid., 158–65. 28 Jew v. Jew (NY: 2000).

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Jewish communal organizations fought energetically to make the United States a more tolerant society. They were in the forefront in the fight against discrimination, in the political and legal struggles to have Americans accept — and rejoice in — the fact that they lived in a pluralistic society of bewildering diversity. And at least as far as American Jews were concerned, they were spectacularly successful. In the years following World War II, anti-Semitism became a marginal issue as Jews became accepted as equals in the organizations and institutions of American society. For their part, most Jews responded to this societal acceptance by shedding most of their particularistic, traditional behavior patterns and beliefs. By the end of the century, 90% of American Jews belonged to Reform, Conservative or Reconstructionist congregations, or were non-affiliated. They accepted the basic, essentially secular, lifestyle of their fellow Americans. The basic lifestyle of most American Jews is unacceptable to the roughly 10% who belong to various Orthodox communities. They perceive the departure from traditional halakhic practices as threatening the very survival of Judaism and the Jewish people. To preserve (and hopefully enlarge) this “saving remnant,” Orthodox Jewry in America (and elsewhere) has adopted an increasingly stringent interpretation of halakha, and has sought an ever-increasing self-segregation from the normative behavior and values of the larger society, the very values and behaviors that have become part and parcel of the lifestyle of most American Jews. This culture clash explains why seemingly-innocuous eruvim engender such heated conflicts. For wherever they occur, “eruv wars” are fought by Orthodox Jews against non-Orthodox Jews; Gentiles could not care less. Their activities are not affected by eruvim, and they don’t even notice them. The non-Jewish majority has no reason not to extend the general, tolerant American norms to the erection of eruvim in their communities. Originally, non-Orthodox Jews took the same tolerant approach, for much the same reasons — they did not see the eruv as affecting their lives. In fact, in many communities they had given their Orthodox brethren political assistance in obtaining official permission to erect an eruv; this is why Orthodox Jews frequently moved into “Jewish” suburban communities or “Jewish” neighborhoods in larger cities. But the larger, non-Orthodox segment of American Jewry came to detest the presence of an eruv. Being designed to facilitate Orthodox practices, the existence of an eruv encourages Orthodox Jews to move into the community. In turn, the presence of a large number of

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Orthodox Jews, with their distinctive, separatist culture, affects the general community. Orthodox Jews educate their children in yeshivot; support for the public schools attended by the non-Orthodox children diminishes. Orthodox Jews require certain clothes, food and so on to maintain their lifestyle; local merchants cater to those needs, and increasingly close on the Jewish Sabbath, making it more difficult for the non-Orthodox to maintain their own lifestyle. Most importantly, the Orthodox make the non-Orthodox feel inferior. The Orthodox maintain, and really believe, that only they are continuing the Jewish religious tradition, that only they are authentic Jews. The non-Orthodox resent the insinuation that they are in any way inferior. Non-Orthodox American Jews have learned that the presence of a large Orthodox community in their midst will disturb their chosen lifestyle, and upset their sense of what it means to be Jewish in the modern world. In both Long Branch and Tenafly, the communal opposition to an eruv came from non-Orthodox Jews. The factual background accounts in both District Court opinions are replete with statements reflecting non-Orthodox fears about maintaining their way of life. Since these were, largely, communities with only small numbers of Orthodox residents, they sought, through political organs, to prevent erection of an eruv. The Federal courts blocked those efforts at religious discrimination by correctly applying the basic principles of the American Constitution. But courts, by those same principles, cannot resolve the basic conflict within American Jewry. The price of religious freedom, American style, is that only American Jews can do that. Updates 1 A previous article in this journal, “Something There is that Doesn’t Love a Wall,”29 discussed the case of the “Yale Four.” These undergraduates had sued Yale university because it had refused to grant them an exemption from its requirement that unmarried first and second year students live in the dormitories. The students claimed that the university’s housing policy burdened their religious convictions and obligations as Orthodox Jews. Yale’s dormitories are all co-educational. Since even single sex floors — and their bathrooms — are fully accessible 29

14 Jewish Law Annual (2000), 353–65.

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24 hours a day to other dormitory residents, the students claimed that Yale’s housing policy violated Orthodox Judaism’s strict code of sexual modesty. The article explained why the Federal District Court had dismissed this claim. In Hack v. President and Fellows of Yale College,30 the Court of Appeals affirmed that decision. Like the District Court, the Appellate judges found that Yale University was not a state actor, and therefore neither the First Amendment nor the Federal Civil Rights statutes could be utilized by the students to sustain their claims. Since all the students had graduated or were about to graduate, no appeal was taken to the U.S. Supreme Court. 2 Another article, “Answering to a Higher Authority: Kashrut and American Constitutional Law,”31 discussed the problematic status of traditional state laws designed to police the kosher food market. These laws were typically enforced by government inspectors who, almost invariably, were Orthodox rabbis. The article argued that such laws violated the Establishment Clause because they were designed to advance the religious tenets of a particular religious group, and, more importantly, would entangle the Government in religious disputes about the correct standards of kashrut. When the article was published, a Federal District Court and the New Jersey Supreme Court had utilized that reasoning to invalidate the kashrut ordinances of the city of Baltimore32 and the state of New Jersey.33 On appeal, both decisions were sustained.34 More recently, the U.S. Court of Appeals for the Second Circuit invalidated New York State’s kashrut law35 on the same grounds, and the Supreme Court again denied certiorari review.36 The nineteen remaining kashrut laws plainly have a limited shelf-life. As the original article suggested, if the government cannot delineate or guarantee religious standards, it can require truth in labeling and marketing. Such laws would make kashrut standards dependent upon truthful labeling and consumer information. 30 237 F. 3d 81 (2nd Cir. 2000). 31 N. 23 above. 32 Barghout v. Mayor and City Council of Baltimore, 833 F. Supp. 540 (D.Md. 1993). 33 Ran-Dav’s County Kosher, Inc. v. State, 608 A 2d 1353 (NJ 1992). 34 Barghout v. Bureau of Kosher Meat and Food Control, 66 F. 3d 1337 (4th Cir. 1995). In the New Jersy case, the U.S. Supreme Court denied certiorari, 507 U.S. 952 (1993). 35 Commack Self-Service Kosher Meats, Inc. v. Rabbi Luzer Weiss, 294 F. 3d 415 (2nd Cir. 2002). 36 123 S. Ct. 1250 (2003).

The Jewish Law Annual, Vol. XV

JEWISH LAW IN THE STATE OF ISRAEL DANIEL B. SINCLAIR*

1

Treatment of the Terminally Ill

i

The Public Committee on the Terminally Ill Patient1

In February 2000, the Minister of Health established a Public Committee for the purpose of drawing up draft legislation regarding the medical treatment of the terminally ill in Israel. Prof. A. Steinberg, a pediatric neurologist, professor of medical ethics and author of The Encyclopedia of Jewish Medical Ethics, was appointed chair of the Committee. The Committee was eventually divided into four subcommittees in the following areas of specialization: medicine, law, philosophy and halakha. Each sub-committee was headed by a noted authority in its area of responsibility, and consisted of a number of experts in the area. The full Committee had fifty-nine members. The Committee was asked to produce a draft law as quickly as possible, and did so in January 2002. The draft law was accompanied by a short report, the brevity of which was the result of the need to formulate the proposed law with minimal delay. In its report, the Committee stated that it intended to publish, at some point in the future, a lengthy volume containing written contributions by the individual members and important source material on which the Committee had relied. The first part of this note provides a summary of the report; the second outlines the major features of the draft law, and comments on the background to some of its provisions. The Report opens with a list of reasons for the emergence of treatment of the terminally ill patient as one of the most pressing bioethical issues in recent times. These reasons include the existence of medical * 1

Professor of Jewish and Comparative Biomedical Law, Law School, College of Management, Rishon Lezion. A. Steinberg, “Report of the Public Committee on the Terminally Ill Patient” (Hebrew), Assia 69–70 (2002), 5–23.

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technology capable of keeping people alive though their physical and mental quality of life is negligible; the rejection of medical paternalism and the rise of patient autonomy; the wide divergence of moral positions with regard to treatment of the terminally ill within both society at large and the medical profession; the growing public interest in the treatment of these patients; and the problem of allocating scarce medical resources to the terminally ill. The next section of the Report outlines briefly the medical and legal background to the treatment of the terminally ill in Israel. Notwithstanding the lack of definitive documented evidence, it is clear that in the medical context, there is no uniform approach to the issue. The treatment of these patients varies from medical center to medical center, from department to department within the same center, and, on occasion, from doctor to doctor within the same department. This state of affairs is unsatisfactory, and indeed, the development of a uniform medical approach in this area was a major factor in the Minister of Health’s decision to convene the Committee. In terms of the case law, it was noted that there was just one Supreme Court decision expressing an opinion on this issue, and it tended to favor the sanctity of life principle over that of patient autonomy.2 There have been a number of decisions at the district court level; they generally tend to favor patient autonomy over the sanctity of life principle.3 The feature common to all the decisions is the struggle to find the balance between the principles of human dignity and freedom, and the values of Judaism, including that of human life, on which the State of Israel is based.4 The search for this balance also underlies the provisions of the proposed draft law. As far as legislation is concerned, a draft law on the issue of advance medical directives is currently before the Law and Constitution Committee of the Knesset. This draft law, however, is still in the very earliest stages of discussion by that committee, and is, in any case, 2

Yael Sheffer v. Sate of Israel, C.A. 506/88, P.D. 48(1) 87. Also see D. Sinclair, “Jewish law in the State of Israel,” Jewish Law Annual 12 (1997), 259. 3 See: Eyal v. Willenski, P.M. 1141/90, P.M. 51(3) 187; Zadok v. Beth Haelah, P.M. 759/92, P.M. 52 (2) 485; Arad v. General Health Fund, P.M. 2349/95, P.M. 55 (2) 253; Gilad v. Soroka, P.M. 1030/95, P.M. 56(1) 441. There are approximately twenty district court decisions in this area, but the more recent are still unpublished. And see Sinclair, ibid., 263. 4 See Human Dignity and Freedom Act, 1992, section 8, and Sinclair, n. 2 above, 260.

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much narrower in scope than the law drafted by the Steinberg committee. It is noteworthy that a section stating that “a terminal patient has a right to die with dignity, and is entitled, whenever possible, to medical support in order to help him realize that right,” was deleted from the final version of the Patient’s Rights Law, 1996, on the grounds that it did not offer any definition of the terminal condition, or specify the type of treatment which could be withheld or withdrawn. Clearly, there is a pressing need for comprehensive and detailed legislation that strikes a balance between the sanctity of life and patient autonomy. The Committee’s goal in the legal area was to achieve as broad a consensus as possible between opposing views within Israeli society regarding treatment of the terminally ill, and have it reflected in a draft law tailored to the special needs of the State of Israel. The Committee did not neglect the comparative aspect, and reviewed the legal arrangements adopted in this area by a number of different countries. It also considered the positions of the major non-Jewish religious groups in Israel, that is, the Moslem, Druze and Catholic positions. In the final analysis, however, the Committee sought to forge its consensus within the legislative framework of the basic values of the State of Israel — Judaism and democracy, and the draft law reflects this uniquely Israeli approach to the issues raised by the terminally ill patient. In terms of moral issues, the Report states that the Committee reflected on the value of human life, quality of life, patients’ rights, the principle of beneficence, avoidance of harm and the just allocation of scarce medical resources. Secondary issues included the slippery slope argument, the question of who should make the decision on withholding or withdrawing treatment, the issue of decision-making in cases where the medical outcome is highly uncertain, and the role of the physician. Detailed discussion of these issues is reserved for the planned volume. ii

Draft Law: The Terminally Ill Patient, 5762 — 20025

Under this draft law, there is a presumption that every person wishes to live. The presumption of life may, however, be rebutted in the case of a terminal patient, defined as a person suffering from an incurable 5

Assia 69–70 (2002), 24–58.

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medical condition whose life expectancy does not exceed six months.6 If the terminal patient is competent, then the presumption of life may be rebutted by his most recent statement to the effect that he wishes to die. In relation to an incompetent patient, the presumption may be rebutted by valid advance medical directives, or on the instructions of a duly-appointed medical surrogate. In addition, the physician responsible for the incompetent terminal patient may conclude, on the basis of clear evidence given by family or friends, or the view of the patient’s guardian, that there is no longer any presumption in favor of continued survival. Any doubts as to the rebuttal of the presumption are to be resolved in favor of the preservation of life. In a case in which there is a disparity between any of the above-mentioned methods for rebutting the presumption, or if the treating physician finds himself in disagreement with any of them, the matter is to be resolved by the hospital ethics committee. Every person over the age of seventeen years is presumed competent, unless there is a qualified and documented medical opinion to the contrary. If the patient is unwilling to accept the treating physician’s decision regarding his lack of competence, the issue is to be resolved by the hospital ethics committee. The ethics committee is also empowered to resolve disputes between parents and physicians with regard to the medical treatment of terminal minors. The draft law provides that a competent terminal patient’s request to have life-prolonging medical treatment beyond that offered by the medical staff must be honored. The only exceptions are procedures which, from a medical point of view, will not, in fact, prolong the patient’s life, or are likely to do him damage. In the absence of a presumption of life, no medical treatment may be administered to a competent terminal patient without his informed consent.7 At the same time, the draft law provides that the medical staff

6 7

Six months is also the time-frame in the definition of a terminally ill person in Oregon’s Death With Dignity Act, 1997. In the case of a non-terminal patient, coercive life-saving therapy may be administered under section 15(2) of the Patients’ Rights Law, 1996. The conditions for the administration of such therapy are: approval by the hospital ethics committee; full disclosure to the patient of the medical situation and proposed treatment; unanimous medical opinion as to the need to carry out the proposed procedure; a reasonable basis for assuming that the patient will, in fact, consent retroactively to the procedure.

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is obliged to make every effort to encourage such a patient to agree to receive medically-indicated oxygen, nutrition, hydration, (standard) medication and palliative care. This provision reflects a balance between the halakhic obligation to save life, and the democratic right to refuse all forms of medical treatment, including procedures aimed at maintaining basic physical functions. Although coercive life-preserving treatment is, in principle, mandated by Jewish law, there is a view that it does not apply to the terminally ill, on the grounds that the trauma induced by physical coercion is itself likely to hasten death.8 The use of physical force in this context is also undignified and impractical.9 A directive to the medical staff to strongly encourage the patient to accept basic life-preserving procedures is the appropriate halakhic response to a competent terminal patient who no longer wishes to live. The democratic right to refuse treatment in this context is entirely compatible with a strong medical recommendation to accept such basic necessities as oxygen and nutrition. The withholding of treatment from an incompetent terminal patient is governed by the provisions relating to the rebuttal of the presumption in favor of life outlined above. In addition, a physician is permitted to withhold extraordinary medical treatment in the case of an end-stage incompetent patient, that is, someone suffering from the failure of more than one vital physical system, who has less than two weeks to live. Extraordinary medical treatment is defined by the draft law as any procedure with a low success rate, or experimental in nature, or likely to cause suffering to the patient or significant damage to his health. With respect to the withdrawing of medical treatment from both the competent and the incompetent patient, the draft law makes a basic distinction between continuous medical treatment, which is not designed to be administered at specific intervals or stopped so that the patient can be examined between treatment cycles, and periodic treatment, which is designed to be administered at intervals and renewed on the basis of diagnostic evaluation between cycles. It is forbidden to withdraw continuous medical treatment in circumstances under which such withdrawal is likely to lead to the patient’s death, unless 8 9

Responsa Igrot Moshe, HM 2, #73–74. On the obligation to heal in Jewish law and exceptions to it, see D. Sinclair, Jewish Biomedical Law: Legal and Extra-Legal Dimensions (Oxford: 2003), ch. 4.

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the withdrawal is justified on grounds of a purely medical nature. On the other hand, periodic treatment aimed at treating the patient’s terminal condition may be withdrawn to prevent significant suffering. Notes to the draft law point out that continuous treatment is basically confined to artificial respiration, while periodic treatment includes most of the other procedures commonly used for terminally ill patients, such as chemotherapy, radiotherapy and dialysis. Resuscitation is also regarded as a periodic treatment. The notes also mention the possibility, currently being investigated by experts in halakha and technology, of an appropriately designed “time-clock,” use of which transforms continuous into periodic treatment.10 The sections dealing with this distinction and its application to the terminally ill were the most controversial in the draft law. On the one hand, supporters of the halakhic approach and the sanctity of life principle rejected any distinction between different types of treatment, insisting that it was forbidden to discontinue any life-maintaining procedure until death was established. On the other hand, advocates of patient autonomy rejected the distinction on the grounds that the autonomy principle ought to predominate, and the fact that the treatment was continuous ought not stand in the way of it being terminated should the patient so desire. The overwhelming majority of the Committee, however, felt that the distinction between continuous and periodic treatment was the best way of balancing the two competing principles and fulfilling the requirements of both Judaism and democracy in this highly controversial area of contemporary law and bioethics. It should be pointed out that the national ethics committee is empowered to make specific recommendations with regard to exceptional cases, and presumably, to provide solutions unavailable under the draft law. The draft law also deals with the administration of analgesics, and asserts that life-shortening palliative treatment is to be administered to all terminal patients, provided that the degree of danger to the patient’s life posed by the treatment is not unduly serious. The basis for this provision, cited in the notes to the draft law, is the double-effect doctrine, according to which it is permitted to perform an act leading to both 10

This possibility was raised by R. Eliezer Waldenberg in his leading responsum on the treatment of the terminally ill in Jewish law, see Responsa Tzitz Eliezer 13, #89. Also see Sinclair, ibid., ch. 5, sec. 1(b).

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a positive effect and a deleterious one, provided that the sole intention of the person performing the act is to bring about the positive effect.11 The draft law explicitly forbids both active euthanasia by physicians, and physician-assisted suicide. It also deals with a number of procedural issues, including: documentation of decisions regarding the treatment of terminal patients; the drawing up and implementation of advance medical directives; the appointment and powers of a health proxy; the procedure for appealing the proxy’s decision; combining advance directives and a health proxy; canceling and amending advance directives; and exemption of physicians and ethics committee members from legal liability for acts performed or omitted in accordance with the draft law.12 Noteworthy among these procedural issues are the membership, appointment, powers and procedures of ethics committees. All institutional committees are to include medical experts, a rabbi (or in the case of a non-Jew, an appropriate religious authority) and a lawyer. A novel feature of the draft law is the provision for a national ethics committee for the purpose of resolving disputes between institutional ethics committees, hearing appeals, and dealing with exceptional cases. The national committee is to include an ethicist, a nursing sister, and a social worker or clinical psychologist, in addition to the standard panel of medical specialists, a rabbi or other religious authority, and a lawyer. All members of the national committee are to be senior personnel in their respective areas of specialization. Appeals from the national committee will go to a three-judge bench of the district court. The final section of the draft law deals with physicians who object, on grounds of conscience, values or medical discretion, to providing or withholding treatment under this law. In these circumstances, the physician may refer the patient to another doctor, in accordance with hospital regulations. In conclusion, it should be noted that the draft law received the unqualified approval of forty-eight members of the Committee. This is certainly a significant majority — eighty one per cent — and indicates the general feeling among the Committee members that the draft 11 12

See J. Mason and R. McCall Smith, Law and Medical Ethics (London: 1999), 437–38. The legal liabilities of physicians are covered in the 1996 Patient’s Rights Law. The proposed law will not affect these liabilities, nor those of ethics committee members under that law.

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proposal is the best balance that could be achieved at the present time between the demands of Judaism and democracy in this area. The dissenting opinions attached to the Report related mainly to the distinction between withholding and withdrawing treatment, and the distinction between continuous and periodic procedures. Only one Committee member rejected the absolute prohibition against physicianassisted suicide. Among the dissenting opinions, there was no support whatsoever for active euthanasia by physicians. The draft law represents the most liberal interpretation of contemporary mainstream Israeli halakhic thinking on the treatment of the terminally ill, and in this respect, it is significant that the chair of the Committee, Prof. Steinberg, is a highly respected commentator on biomedical halakha in the Orthodox world. Although there are concepts and analyses in biomedical halakha that do not appear to have been taken into account by the Committee, and might have yielded a more generous concession to autonomy had they been considered,13 the provisions laid down in the draft constitute a significant attempt to bridge the gap between traditional halakha and modern bioethical trends with respect to the treatment of the terminally ill patient in Israel. 2

Jewish Heritage as a Source of Natural Law in Israeli Jurisprudence

In the case of A v. B,14 the appellant and his wife had been trying to have children for several years. Their efforts, however, were not crowned with success. The appellant, who was thirty-five years old, then decided to seduce the fifteen year old daughter of his next-door neighbor in order to produce the desired offspring. She had recently lost her mother to cancer, and was in a particularly vulnerable emotional state. The plan succeeded. The girl found the love and warmth she needed in the arms of the appellant, and became pregnant. When she informed the appellant of her condition, he did not suggest an abortion. Instead, he made contradictory promises. On one occasion he told her that he would divorce his wife and marry her. On another occasion, he told her that he and his wife would take the child and raise it. By the time the girl’s family discovered that she was pregnant, it was

13

For example, the law regarding the killing of a treifa; see Sinclair, n. 9 above, ch. 5, sec. 5. 14 C.A. 3798/94, P.D. 50(3) 133.

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too late to abort the fetus, and she gave birth to a baby boy. Her decision to put the baby up for adoption and on no account to allow the natural father to bring up his son gave rise to the present case. The district court found in favor of the mother, and refused to allow the father custody of his son. The court’s decision was based mainly on section 13(7) of the Adoption Law, 5741 — 1981, according to which a natural parent may be deprived of his right to bring up his child if he is found to be unfit, by virtue of his “behavior or situation,” to fulfill that role. The court held, on the basis of expert psychological testimony, that the immoral nature of the appellant’s conduct in the course of bringing about his son’s birth, together with the psychological damage to the son that would, in all likelihood, accrue as a result of discovering that his father had been found guilty of the statutory rape of his mother, did, indeed, make the appellant unfit to be a parent under the above-mentioned section. The Supreme Court also ruled in favor of the mother. The majority (Bach J., Zamir J., Dorner J.) held that in this type of case the operative principle is the welfare of the child, notwithstanding the fact that the phrase is not found in the text of the Adoption Law itself. The majority judges did point out that the position traditionally adopted by the court is that the words “behavior” and “situation” in section 13(7) of the Adoption Law are confined to present and ongoing physical, mental and economic problems, the effect of which is to render the natural parent unfit or unable to fulfill the child’s emotional and economic needs. Past conduct of an illegal or immoral nature has not, therefore, been deemed a good reason to deprive a natural parent of his or her child under the law.15 However, this approach is too narrow, and section 13(7) has to be interpreted in light of the “welfare of the child” principle. Parental unfitness may, therefore, also be determined on the basis of past illegal or immoral conduct. In the present case, the majority set much store by the expert evidence to the effect that once he became aware of the circumstances surrounding his birth, the boy would very likely suffer significant psychological damage as a result of being brought up by his father. The psychological pressure of living with the man who had, in effect, raped his mother, would undoubtedly lead to severe psychological problems in both the social and the educational spheres. In addition, living with 15

A v. Attorney General, C.A. 549/79, P.D. 30(1) 459; A v. Attorney General, C.A. 232/85; A v. Attorney General, C.A. 211/89, P.D. 43(2) 777.

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his father would make it difficult to keep the circumstances of his conception and birth concealed from him. There would be far less damage were he to be brought up by adoptive parents. In terms of his future welfare, therefore, the best course was to put him up for adoption in accordance with the mother’s decision. It was emphasized by the majority that not all acts of illegal intercourse make a father unfit to bring up his child. There may well be cases in which the welfare of the child is, on balance, best served by placing him or her with a natural father who had acted illegally or immorally with respect to the way in which that child was conceived. Nevertheless, in this particular case, the natural father’s past behavior was such that it directly affected his ability to provide his son with a healthy upbringing, and he was, indeed, unfit to be a parent under section 13(7) of the Adoption Law. The minority (S. Levine J., Heshin J.) also found for the mother, but disagreed with the way in which the majority interpreted and applied the Adoption Law. In their view, section 13(7) is clearly confined to the present and ongoing “behavior or situation” of the natural parent, and does not apply to past misdeeds. The right to be a parent is a natural one,16 and ought to be overridden only for very clearly defined reasons. The Adoption Law specifies these reasons, and it is inappropriate to read into them a general principle of “the welfare of the child.” In the present case, however, justice militates against giving the son to his natural father. The father’s grossly immoral and illegal behavior must be penalized by depriving him of his natural right to his son. The answer, therefore, does not lie in the Adoption Law, but outside it. According to Heshin J., to achieve a just result in this case it is necessary to go beyond the positive law into the realm of natural law. The natural right of a parent to his or her child is counter-balanced by the principle of natural law that no man should profit by his own wrongdoing. A well-known illustration of this principle in the Common Law is the case of Riggs v. Palmer,17 in which a New York court addressed the question of an heir inheriting under his grandfather’s will, though he had killed his grandfather in order to do so. The court began by observing that nothing in the statutes governing wills in New York State indicated that the killing of the testator by a beneficiary invalidated the latter’s right to inherit under an otherwise valid will. Nevertheless, 16 17

Attorney General v. A, F.H. 7015/94, P.D. 50(1) 48. 22N.E. 188 (1889).

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the court ruled that the murderer would not receive his inheritance. The basis for this finding lay in “the general maxim of the Common Law” that “no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.”18 According to Heshin J., this principle of natural law informs all legal systems,19 including that of the State of Israel.20 In Heshin J.’s view, it is this type of natural law approach that underlies the Basic Law: Human Dignity and Freedom Act, 5752 — 1992. This Act, which formalizes the legal status of a number of basic rights in Israeli law, simply gives more concrete expression to rights inherited directly from nature. The rights protected under the Basic Law continue, in his view, to draw their fundamental moral and social legitimacy from the principles of natural law.21 In fact, the principle that no man should be allowed to profit from his own wrongdoing is found in the Bible. In the Book of Kings, the story is told of Ahab, king of Israel, who wished to purchase the vineyard of a certain Naboth of Jezreel, a private citizen, whose ancestral vineyard abutted the royal palace. Naboth, however, was unwilling to sell. Ahab’s wife, Jezebel, then hatched a plot to hire false witnesses to accuse Naboth of cursing God and the king, and in due course, he was tried, found guilty and stoned to death. The property of the dead man passed to the king, who promptly proceeded to the vineyard to enjoy the fruits of his crime. God then instructed the prophet Elijah to confront Ahab, and speak as follows: “Thus says the Lord: Have you killed and also taken possession? . . . In the place where dogs licked the blood of Naboth, shall dogs lick your blood. . . . The dogs shall eat Jezebel in the moat of Jezreel” (I Kings 21:19, 23). Elijah’s cry, “Have you killed and also taken possession?” is the biblical precursor of the Common Law principle applied in Riggs v. Palmer. In Heshin J.’s view, it also reflects the natural law principle that no man may profit from his own wrong. Heshin J. went on to cite the passage in the Book of Kings in which Jezebel’s death is described in gruesome detail. The passage concludes with the laconic observation that, “This is the word of the Lord which He spoke by His servant 18 19

Ibid. 190. See the general jurisprudential analysis of this case in R. Dworkin, Taking Rights Seriously (London: 1977), ch. 2. 20 See M. Minervi, “Jus naturale” (Hebrew), Hamishpat 3 (1996), 403. 21 A v. B, C.A. 3077/90, P.D. 49(2) 578.

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Elijah the Tishbite, saying: In the portion of Jezreel shall the dogs eat the flesh of Jezebel” (II Kings 9:36). There is no doubt that the Bible strongly disapproves of profiting from one’s own wrong!22 Another biblical passage cited by Heshin J. pertains to King David’s affair with Bath-Sheba. David caused the death of Uriah, BathSheba’s husband, and a soldier in his army, by sending secret instructions to his commander to deliberately leave Uriah in the line of fire. Uriah was killed, and David promptly took Bath-Sheba to be his wife. She bore him a son, but “the thing that David had done displeased the Lord” (II Sam. 11:27). God’s displeasure then manifested itself in the death of the baby boy.23 According to Heshin J., an analogy can be drawn between the death of David’s son, and the appellant’s baby’s being put up for adoption. In both cases the fathers acted badly with respect to the way in which they brought their offspring into the world, and as a result, they are not allowed to enjoy the fruits of their evil deed. In David’s case, the boy died. In the present case, the appellant is deprived of his son’s custody. In both cases the relevant principle is the non-enjoyment of the fruits of sin — “Have you killed and also taken possession!”? In explaining his disagreement with the reasoning of the majority regarding the application of the Adoption Act, Heshin J. argued that there was no interpretive mechanism which could legitimately justify reading that Act in such a way that the appellant was unfit to be a parent under section 13(7). The Act was confined to present and ongoing unfitness of a physical, mental or economic nature, and did not relate to past misconduct. The present case did not raise a particularly difficult question of statutory interpretation, nor did it constitute a lacuna in the law.24 It was simply a hard case in terms of the conflict between natural justice and formal law, and the correct answer lay in the application of natural law principles anchored in the Bible and the heritage of Israel. He also criticized the heavy reliance of the majority judges on the expert psychological evidence upon which they based their decision.

22

Note that Ahab was, in fact, only an accomplice to the crime. It was Jezebel who actually brought about Naboth’s death. Nevertheless, he was treated as a criminal, and punished accordingly; see Maimonides, Code, Laws concerning Murder 4:9. 23 Ibid., 12:15–22. 24 See D. Sinclair, “Kupat Am Bank v. Hendeles,” 5 Jewish Law Annual (1985), 54.

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Not only did this reliance offend against the principle of judicial independence in relation to expert testimony, it also shifted the focus from the real issue in the case, namely, the moral guilt of the father, to a tangential issue, viz., the possible psychological effects on the boy of being brought up by his mother’s statutory rapist. The true source of the decision in favor of the mother, he stated, lay in the principles of natural and biblical justice, and it was important to declare this truth, even if came at the expense of positivist legal doctrine. According to Heshin J., the application of natural law principles derived from the Jewish tradition to “hard cases” such as the present one is anchored in Israeli legislation. In the Foundations of Law Act, 5740 — 1980, the legislator provided that if a judge finds that “a question requiring a decision cannot be answered by reference to a statute, or a judicial precedent, or by way of analogy,” he is to turn to the “principles of freedom, justice, equity and peace of the heritage of Israel.”25 The type of question to which the legislator refers is none other than that which arose in the present case. In such a “hard case,” where the demands of justice and formal law are clearly not in harmony, the judge must adopt a moral stance, and apply the said principles. Heshin J. concluded his opinion with a discussion of the relationship between morality and law. In his view, there are instances when a judge must not only be a judge, but a moralist as well. Law and morality are related, and denying this relationship does a disservice to both realms. In the words of Silberg J., in his book on talmudic jurisprudence: The realms of law and morality are two concentric circles which only partially overlap. As the line dividing them fades, so the moral content of the law grows in significance. The ideal situation is one in which the two circles cover each other entirely — “like the waters cover the sea” [Isaiah 11:9].26

25

See N. Rakover, “The Foundations of Law Act, 1980 and its implementation,” 5 Jewish Law Annual (1985), 80; Sinclair, ibid. 26 Principia Talmudica (Hebrew), (Jerusalem: 1964), 67.

PART THREE SURVEY OF RECENT LITERATURE

The Jewish Law Annual, Vol. XV

SURVEY OF RECENT LITERATURE Contributors: Bernard S. Jackson (BSJ), Stephen M. Passamaneck (SMP), John W. Welch (JWW), and the following students from the J. Reuben Clark Law School, Brigham Young University, who provided abstracts: Nathan Andersen, Aaron S. Bartholomew, RoseAnn Benson, Carol Bradley, Carolynn Clark, Donlu DeWitt Thayer, Micah Echols, John Fowles, Christian A. Fox, Mark Hales, Robert Hunt, Darrin K. Johns, Benji McMurray, Philip M. Nelson, Joseph Olsen, William Perkins, Derek A. Rowe. BIBLICAL LAW Harold V. Bennett, Injustice Made Legal. Deuteronomic Law and the Plight of Widows, Strangers, and Orphans in Ancient Israel (Grand Rapids MI: 2002). — The desire of Deuteronomy to advance the interests of widows, strangers and orphans in Deuteronomy 14:22–29, 16:9–12, 13–25, 24:17–18, 19–22 and 26:12–15, is here turned on its head. Proceeding from the theoretical standpoint of Critical Legal Studies, the author argues that even such “altruistic” laws were designed to favor the interests of the cultic establishment, and in fact caused a deterioration in the interests of these “protected” groups. The author argues that the widow and orphan, in particular, were previously better supported by the extended family, and that the laws of tithing, in the context of Deuteronomy’s cultic centralization, actually benefitted the cultic officials of the “Yahweh-alone” cult in the period of the Omride dynasty in the North. A great deal of the evidence, as the author’s formulations often indicate, is speculative. BSJ Georg Braulik, “Das Deuteronomium und die Bücher Ijob, Sprichwörter, Rut: zur Frage früher Kanonizität des Deuteronomiums,” in E. Zenger (ed.), Die Tora als Kanon für Juden und Christen, HBS 10 (Freiburg: 1996), 61–138. — Braulik investigates Deuteronomy’s “canon consciousness” through its interaction with later biblical writings. Contrary to other authorities’ reliance on the formula “as it is written” (e.g., Joshua 8:31) as a “canonical indicator” [“kanonsiche Hinweisformel”: H. Donner, “Wie geschrieben steht,”

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1994], Braulik uses other means to establish more credibly the early canonicity of Deuteronomy, including a rigorously intertextual approach: “That which is accepted as ‘canonical’ in the Bible and that which is called ‘canonical’ must be taken from concrete interaction of the writings with Deuteronomy.” Braulik posits two levels of canonicity: a pre-Pentateuch level, and a “participating-Pentateuchcanonicity.” Braulik focuses on writings from the Persian period: Job, Proverbs and Ruth, which reflect a “many-sided canon consciousness of Deuteronomy” and contain numerous intertextual allusions to Deuteronomy, implicitly utilizing it as a valid book of the law. Job 24 expands the law into ethos; Proverbs 1–9 individualizes, personifies and identifies it as wisdom; Ruth sets it in narrative prose. In Job 24, Job inverts the legal order of Deuteronomy’s socio-legal provisions to accuse God of visiting on the helpless poor the punishments listed there for the evil-doer. Proverbs 1–9 is a midrash on Deuteronomy that presupposes an understanding of Deuteronomy as canonical. Through thematics, formulation and stylistic elements, intertextuality reveals that the Book of Ruth contains numerous allusions to Deuteronomy, evidencing Deuteronomy’s early canonicity. In particular, the “groups of seven” in Ruth reflect the very structure of Deuteronomy, and provide a pointed “counter-history to the so-called law of the community of Deuteronomy 23:4–7” as expressed in Ezra and Nehemiah. John Fowles C.M. Carmichael, “The origin of the scapegoat ritual,” Vetus Testamentum 50 (2000), 167–82. — Carmichael disputes popular notions about the origin of the scapegoat ritual described in Leviticus 16. While many scholars have maintained that the biblical rite exhibits an ancient Near Eastern genealogy, Carmichael argues that the scapegoat ritual is rooted in Israel’s own “narrative history and moral reflection.” The Levitical lawgiver devised Israelite laws and rites by drawing analogies to events in Israelite history, particularly the story of Joseph in Genesis 37. The scapegoat ritual mirrors both the factual and the fictional dimensions of that story. Factually, Joseph’s brothers killed a goat to deceive their father; likewise one goat is ritually slaughtered. Joseph’s brothers devised a fictional account, telling their father that Joseph had been devoured by a wild beast in the wilderness; likewise, the ritual requires that a live goat be sent into the wilderness to the imaginary demon Azazel. The ritual thus plays

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a role in the confession of sin: just as Joseph’s brothers ask his forgiveness, so the ritual requires that each individual confess his sins. In light of these and other parallels, Carmichael concludes that the scapegoat ritual is principally a “rite of remembrance” whereby Israelites, in mirroring the penitence of their ancestors, seek and obtain forgiveness themselves. Carolynn Clark Maria Dass, “The divorce (?) formula in Hosea 2:4a,” Indian Theological Studies 34 (1997), 56–88. — Dass weighs in on the debate as to whether the language of Hosea 2:4a (“for she is not my wife and I am not her husband”) constitutes a divorce formula between Yahweh and adulterous Israel, concluding that it does not. Comparing marriage contract formulas and divorce formulas from the ancient Near East with the language of Hosea 2:4a, Dass finds it to be an extralegal declaration of temporary separation, not a divorce formula. Those who claim that it does constitute a divorce formula point to Hosea 2:18–25, where a new marriage between Yahweh and Israel is described. Further purported evidence of a divorce is found by comparing Hosea 2:18–25 to Jeremiah 31:31–34, where Israel is promised a new covenant with Yahweh. These arguments are defeated by the literary history of Hosea. The author of Hosea 2:4–17 (probably Hosea) is not the author of Hosea 18–25 (probably disciples of Hosea). The author of verses 4–17 did not contemplate the remarriage referred to in verses 18–25, thus the mention of remarriage cannot stand as evidence that Hosea 2:4a is a divorce formula. William Perkins Ze’ev W. Falk, Hebrew Law in Biblical Times, 2nd ed., ed. John W. Welch (Provo UT and Winona Lake IN: 2001). — This new edition of Falk’s 1964 introduction to the main areas, both substantive and procedural, of law in biblical times, contains a modernized presentation of the text and footnotes, a survey of the reviews of the first edition, new illustrations, Falk’s 1977 addenda, and a complete bibliography of Falk’s published works from 1947 to 1999. Topics include legal sources, social institutions, judicial procedure, crime and punishment, personal rights and status, and family relationships from betrothal to inheritance. JWW

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Anne Fitzpatrick-McKinley, The Transformation of Torah from Scribal Advice to Law ( JSOT Supplement Series, 287) (Sheffield: 1999). — The author adopts a highly diffusionist model, taken from Alan Watson, for the history of biblical law, viewing the ancient Near Eastern documents as the source of comparable literary activity on the part of biblical court scribes, and seeks to integrate within it perspectives from scholars in the field (including Westbrook, Carmichael and Jackson) who have been sceptical of any strictly “positivistic” account of the material. BSJ A.C. Hagedorn, “Guarding the parents’ honor — Deuteronomy 21:18–21,” JSOT 88 (2000), 101–21. — Hagedorn sees the law of the unruly son as “a public issue, [because] his behavior undermines social peace, and thus the relationship to Yahweh.” Hagedorn argues further that “honor and shame were pivotal values of Mediterranean societies.” Two types of honor are discussed: ascribed honor, which is gained by inheritance and based on sex and birth order; and acquired honor, which is earned by military or social accomplishments. Both types of honor are a public matter, hence the loss of honor is also a public matter, involving the entire family. Hagedorn looks at how parenting styles focused on the distrust of children, the importance of loyalty to the family, and reasons for father-son conflicts. He concludes that “rebellion of sons against fathers was an indication of the rotten condition of Israel . . . if sons no longer obey their fathers, the end of the whole nation is near.” Mark Hales B.S. Jackson, “Exodus 21:18–19 and the origins of the casuistic form,” 33 Israel Law Review (1999) (Falk memorial issue), 798–820. — A detailed analysis of this text and the debates it has prompted leads to the conclusion that it contains a misplaced apodosis. “He shall only pay for the loss of his time, and shall have him thoroughly healed” should form the apodosis to v. 18, not 19; the former deals with the permanent invalid, the latter, with limiting establishment of causation should the victim subsequently die. This analysis sheds light on the general character of the norms known as mishpatim, and leads to rejection of the view that they are either based on precedents or intended for judicial application. Rather, they fall within the category of “wisdom-laws.” [Author]

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B.S. Jackson, “Law, wisdom and narrative,” in G.W. Brooke and J.D. Kaestli (eds.), Narrativity in Biblical and Related Texts (Bibliotheca Ephemeridum Theologicarum Lovaniensium, 149) (Louvain: 2000), 31–51. — The author has previously argued for a concept of “wisdomlaws” — laws based on orally transmitted, sometimes “arbitrary” rules that can be used for immediate, rough-and-ready dispute resolution, without the need to involve third parties or formal institutions — at the beginning of the Israelite legal tradition. This paper seeks to place that claim within the wider debate on the relationship between law and wisdom in the Bible. Stressing the importance of the role of narrative in both, he argues for parallel developments from orality to literacy in both the legal and wisdom literature, as well as reflections within the wisdom literature of the pre-institutional approach to law. Both, indeed, may originate in domestic instruction. [Author] B.S. Jackson, “The original oral law,” in G.W. Brooke (ed.), Jewish Ways of Reading the Bible ( Journal of Semitic Studies Supplement 11) (Oxford: 2000), 3–19. — Proceeding from understandings of sense construction processes within orality provided by Ong, Goody and Bernstein (particularly the latter’s notion of “restricted code”), this paper argues that there must have existed in biblical times something that could be called an “oral law.” A series of examples is taken from the mishpatim of Exodus 21–22, including the lex talionis, and comparison is made with the rabbinic conception of oral law (including E. Berkovits’s unusual account of it). The paper briefly explores the Bible’s own conception of the role of orality in revelation. [Author] Douglas A. Knight, “Whose agony? Whose ecstasy? The politics of Deuteronomic law,” in D. Penchansky and P. Redditt (eds.), Shall Not the Judge of All the Earth Do What is Right? Studies on the Nature of God in Tribute to James L. Crenshaw (Winona Lake IN: 2000), 97–112. — Traditional textual analysis of the Hebrew Bible is inadequate because it fails to account for the social and political factors that arguably influenced the inclusion of certain laws and the exclusion of others. Knight calls for a “hermeneutics of suspicion” that would view ancient texts with the same skepticism that is applied to modern texts, asking questions about the social and political status of the authors/compilers of the Hebrew Bible. Starting from the assumption that the Hebrew Bible

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is the record of an agrarian society, Knight concludes that the authors/ compilers would have been members of an elite, educated stratum whose editorial choices had to both satisfy the interests of the rich and powerful, and resonate with the sentiments of the masses. The distinction between Israelite laws (which governed daily living) and biblical laws (which were primarily literary in form and function) allowed the authors/compilers to craft a legal system that would serve both purposes. Knight shows how three Deuteronomic texts (the law of the king; the laws dealing with priests, Levites and cults; and the laws of release) served to appease the masses while entrenching a powerful governing elite. Knight emphasizes that while this hermeneutic will not answer all questions about the Hebrew Bible, in helping us perceive “the unfair and unfortunate effects of self-interest” as well as the moral values that “can still be affirmed today in the effort to establish a just world,” it is nonetheless edifying. Benji McMurray G.N. Knoppers, “The Deuteronomist and the Deuteronomic law of the king: a reexamination of a relationship,” Zeitschrift Für Die Alttestamentliche Wissenschaft 108 (1996), 329–46. — Using King Solomon’s reign as a model, Knoppers critiques the view that “the Deuteronomic stance toward kingship should be aligned with the stance of the Deuteronomist.” Knoppers identifies three aspects of Solomon’s reign in which there is distance between the two: Solomon’s wealth, horses, and wives. Despite the warnings and somewhat negative stance on kings in Deuteronomy 17:14–20, the Deuteronomist presents David and Solomon in a positive light, which indicates that “the relationship between the authors of Deuteronomy and the Deuteronomistic historian is much more complex” than often thought. Robert Hunt G.N. Knoppers, “The preferential status of the eldest son revoked?” in S. McKenzie and T. Romer (eds.), Rethinking the Foundations — Historiography in the Ancient World and in the Bible (Berlin: 2000), 115 –26. — Knoppers rebuts the hypothesis that primogeniture never existed in ancient Israel, arguing that “the firstborn . . . occupies a privileged place in biblical law,” and that the principal exceptions to that norm — cases where the firstborn loses his birthright, such as those of the central figures Jacob, Joseph and Solomon — are justified in light of divine intent, grievous sin, and so on. The Pentateuch firmly establishes the

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position of the firstborn son in ancient Israel, according the first-born preference in inheritance, social standing and leadership of the family. Through a case study of Chronicles, Knoppers illustrates the flexibility of primogeniture in determining rights and inheritances of sons. Aaron S. Bartholomew Etan Levine, “On Exodus 21:10: onah and biblical marriage,” Zeitschrift fur Altorientalische und Biblische Rechtsgeschichte 5 (1999), 133–64. — Levine calls for a long-overdue reexamination of women in biblical antiquity, arguing that studies are most effective when they do not allow the many similarities between biblical literature and other ancient Near Eastern texts to obscure the distinctions between them. He examines Exodus 21:10, in which the basic rights of a wife are identified. Food and clothing being universally recognized as the first two rights, Levine discusses the third right, onah, and its possible meanings — oil, domicile, cake, ointment, answer and period — dismissing each in turn. In his view, onah refers to a woman’s sexual rights in marriage, with Exodus 21:10 proving that this was “no less integral to marriage than was material support.” Levine suggests that this interpretation reflects “a singular recognition in the laws of the ancient Near East that a wife is entitled to sexual gratification.” Levine does not deny women’s overall subservience, but sees in biblical law a marital ideal according to which both sexes are equal. Carol Bradley and Donlu De Witt Thayer Anthony Phillips, Essays on Biblical Law (London: 2002). — The articles in this collection are largely taken from readily available journals, dating from between 1966 and 1986. They are here reprinted with only minor alterations, though indexes and a bibliography have been added. Their range extends beyond substantive law (particularly murder, adultery, slavery and family law), to the compositional problem of the Sinai pericope, animals and the Torah, the Torah’s attitude to wealth, and other subjects. Despite the passage of time, many of the issues discussed remain unresolved, and the collection as a whole is a stimulating assemblage of views on the said legal, literary and theological issues. BSJ A. Schenker, “The biblical legislation on the release of slaves: the road from Exodus to Leviticus,” Journal for the Study of the Old Testament

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78 (1998), 23–41. — Schenker argues that the law of the Jubilee found in Leviticus 25 does not supersede earlier biblical legislation on debt slaves, such as the Covenant Code (Exod. 21:2–11) and the Deuteronomic law (Deut. 15:12–18), but merely “supplements” and “completes it.” Schenker argues that the loss of personal freedom detailed in Leviticus 25 “concerns the head of a family,” whereas “manumission of an Israelite father [in the Covenant Code] is not considered,” and, that unlike the Covenant Code or Deuteronomic law, Leviticus 25 simply fills legislative gaps in prior debt-slave legislation. After briefly discussing the overall structure of Leviticus 25:2–34 (on the Sabbatical year, the Jubilee, and the integrity of the family property), Schenker analyzes verses 35–55, which deal with manumission laws for debt-slaves, concluding that these laws were differently applied to alien residents and Israelite citizens. This duality gave alien residents the right to own Israelite debtors, whereas Israelite creditors could only hold Israelite debtors as hired workers. The author asserts that this legislative asymmetry between Israelite and foreign creditors may be the result of political pressure on Israelite lawgivers to acknowledge and uphold the customary rights of non-Israelites living within Israelite jurisdiction — a situation that “corresponds well with post-exilic society in the land of Judah.” Nathan Andersen A. Schenker, “La plus ancienne formulation de la peine avec sursis dans l’histoire du droit: la notion de peine avec sursis dans la Bible?” Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 6 (2000), 113–26. — Schenker finds the concept of peine avec sursis (probation, or suspended punishment) in Exodus 34:6–7, 20:5–6, Numbers 14:18, and Deuteronomy 5:9–10. In these passages, God describes His own merciful nature, but also says He will visit “the iniquity of the fathers upon the children unto the third and fourth generation.” Schenker rejects the modern interpretation of these passages, namely, that the punishment is inflicted on four generations simultaneously, and embraces the older interpretation that the children’s punishment is only potential, being conditioned on the conduct of the probationary generations. Two kinds of probation are set out in these passages: a punishment may be delayed or cancelled before its onset, or may begin but be suspended or cancelled altogether later on. Schenker argues that his interpretation, where punishment is conditioned on hating the Lord, reveals a symmetry with the passages stating that blessings are conditioned on

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loving the Lord. The article points to three ways in which probation enhances retributive justice: it insulates the accused from irrational anger, mitigates the effect of punishment on the guilty and society, and safeguards against hasty errors of judgment. Schenker maintains that probation is an enlightened concept, and concludes that if his interpretation is correct, the Bible, containing the oldest known formulation of the principle, is unique among ancient law codes. Philip M. Nelson Andrew G. Shead, The Open and the Sealed Book: Jeremiah 32 in its Hebrew and Greek Recensions (Sheffield: 2002). — A detailed treatment of the Masoretic and Septuagint versions of Jeremiah 32 and their textual variants. The section on deeds of purchase in Jeremiah 32:10–14 offers a careful review of the textual and philological analyses of the various versions of this passage, sometimes speaking of one and sometimes of two scrolls. Shead concludes, “while archaeology [the finding of tied deeds or Doppelurkunden] has made possible a basically unemended reading of [the Masoretic version] in theory, such a reading tends only to be put into practice when there is no prior commitment to the ubiquitous superiority of G [LXX], and when a certain flexibility of expression (and also legal jargon) is allowed the author of the passage.” JWW Kenton L. Sparks, The Pentateuch: An Annotated Bibliography (Grand Rapids MI: 2002). — This useful bibliography lists over seven hundred books and articles on the Pentateuch, and has very helpful annotations. Covering a wide range of literature, it contains sections on Hebrew law, the Book of the Covenant, the Holiness Code, votive laws, and Deuteronomic law. JWW Joe M. Sprinkle,“The rationale of the laws of clean and unclean in the Old Testament,”Journal of the Evangelical Theological Society 43 (2001), 637–57. — This article offers an evangelical Christian’s explanation of the theological motivations behind the laws of purity in the biblical system. After discussing four ways of contracting uncleanness, and the steps to be taken in removing it, Sprinkle examines seven possible motives or purposes served by these regulations, ranking them in order of importance. While recognizing that some are not mutually exclusive, he sees as most significant the teaching of the concept of

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holiness, allowing humans to ritually and morally stand before a holy God, and avoid desecrating the sanctuary or holy land. JWW John Van Seters, “Cultic laws in the Covenant Code (Exodus 20, 22–23, 33) and their relationship to Deuteronomy and the Holiness Code,” in Mark Vervenne (ed.), Studies in the Book of Exodus (Leuven: 1996), 319–45. — Van Seters challenges the consensus that the Covenant Code is older than the Deuteronomic Code. Further, he disagrees with the assumption that the Covenant Code was composed in multiple stages over a long period of time, and that it was subjected to constant revision and additions by numerous redactors. While Van Seters concedes that redactional activity is evident within the law codes, he does not believe that the problems of compositional history should be resolved by relying on the existence of redactors. Hence, he argues, the priority of every parallel law in CC or DC or HC must be considered with an open mind; “the CC cannot be used as a firm body of evidence for the social and religious life of Israel/Judah in the early or middle monarchy period;” and the CC is “the composition of the Yahwist.” Micah Echols John W. Welch,“Biblical law in America: historical perspectives and potential for reform,” Brigham Young University Law Review 2002 (2002), 611–42. — This article reviews the prevalence and importance of biblical law provisions incorporated wholesale into American colonial laws in the seventeenth century, particularly in the laws of Massachusetts, Connecticut, Rhode Island, and Pennsylvania. In these colonial regulations, biblical law was expanded and adapted. Biblical principles also guided the American development of church-state relations, treatment of legal authority, restatement of legal principles, and unification of law into a single efficient system. As a foundation of American law, biblical law continues to offer coherent potential for modern reforms. JWW John W. Welch, David Daube Bibliography, presented at the Biblical Law Section of the Society for Biblical Literature, 2001, 23 pp., available at www.biblicallaw.org. — This register lists all 315 titles published by David Daube, scholar of biblical, Roman and talmudic law. Full entries are listed chronologically, along with cross-references for works

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published more than once, sometimes under different titles or in various collections. An alphabetical index of titles is also provided. JWW Ida Zatelli, “The origin of the biblical scapegoat ritual: the evidence of two Eblaite texts,” Vetus Testamentum 48 (1998), 254–63. — Two texts from Ebla point to parallels with Leviticus 16. The ceremony described in the Ebla texts, involving a live goat sent towards the steppe as an offering, is similar to other ancient Near Eastern purification rites of an eliminatory type. These rituals presumably served a purifying purpose, purging the place or community of evil. With some exceptions, the biblical rite mirrors these ancient rituals in practice and purpose. While Zatelli asserts no specific connection between the Eblaite texts and the Bible, she states that such texts are strong evidence that “certain cultural factors and certain traditions covered a wider area than many had thought,” which would support the premise of the ancient Near Eastern origins of biblical laws and rites. Carolynn Clark

HALAKHIC LITERATURE a

Medical/Bioethics

J. David Bleich, “Survey of recent halakhic periodical literature — Palliation of pain,” Tradition 36:1 (2002), 89–114. — The author reviews the Jewish legal and ethical literature on the relief of pain in medical procedures and in the end-of-life context. He discusses three questions: the obligation to relieve pain, palliation of pain in the terminally ill, and risk-taking for pain palliation. The author stresses the classic position that Jewish law obligates one to relieve pain and control suffering whenever possible. He supports taking risks with regard to control of pain even when such risks may possibly cause the patient’s eventual demise, but not when the pain medication will certainly be the eventual cause of death, arguing that the preservation of life itself, irrespective of its quality, is weightier than any other consideration. SMP J. David Bleich, “Survey of recent halakhic periodical literature — Stem cell research,” Tradition 36:2 (2002), 56–83. — The author reviews the

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halakhic literature relevant to the vexing question of stem cell research using stem cells from human embryos (stem cells from placenta or adult cells do not raise moral or halakhic problems). For the author, the salient issue arising from stem cell research is the same as that raised by abortion. He declares the basic halakhic view on the legality of abortion to be the following: “For Jews, feticide is a form of non-capital homicide, at least according to Rambam; other authorities regard destruction of a fetus as an infraction of Jewish law but regard it as . . . a less serious infraction. For Rambam, an abortion can be considered only for the purpose of preserving the life of the mother from a threat posed by the fetus; for other authorities, an abortion may be performed for somewhat less compelling reasons.” One of the many topics covered is public policy on stem cell research. The author considers the issue of stem cell research in light of the separation of church and state under the U.S. Federal Constitution. He poses the question of whether it is proper to use tax dollars in a manner that may offend the religious sensibilities of some citizens. Deference to religious sensibilities, he holds, is inherent in the First Amendment. The question is not a matter of the permissibility of stem cell research as such, but rather, that of the destruction of human embryos in order to pursue stem cell research. The author also invokes the concept of the social contract underlying American democracy as a reason for deference to opposition views when there is a question involving expenditure of public money. On the whole, he approves of the recommendations of the National Bioethics Advisory Commission regarding stem cell research. The author concludes with the observation that since there is no halakhic imperative to engage in stem cell research, and the destruction of embryos raises serious halakhic questions, the present policy of the U.S. government on stem cell research deserves the support of the Jewish community. SMP Elliot Dorff, Matters of Life And Death: A Jewish Approach to Modern Medical Ethics (Philadelphia: 1998). — The author presents a Jewish approach to medical ethics that is informed by the general scholarly orientation of the Conservative Movement, which is strong on history and ethics, and seeks to bring to bear upon the halakha critical insights

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from other elements of the Jewish tradition and outside sources. The book is divided into three parts: “Matters of Method and Belief,” “Moral Issues at the Beginning of Life,” and “Matters at the End of Life,” concluding with “The Philosophical Foundations of My Approach to Bioethics,” Specific topics addressed include artificial insemination, genetic engineering, cloning, surrogate motherhood, birth control, living wills, hospice care, euthanasia, organ donation, and autopsies. This is an important work deserving of attention from all students of Jewish medical ethics, whatever their denominational affiliation. BSJ Aryeh Yehuda Warburg, “Solomonic decisions in frozen preembryo disposition: unscrambling the halakhic conundrum,” Tradition 36:2 (2002), 31–44. — The preembryo is a fertilized egg that has not yet become implanted in the uterine wall. The author considers the halakhic status of the preembryo in terms of its ownership, comparability to a fetus, and disposal. He concludes, on the basis of monetary law (dinei mamonot), that some form of property right is indeed enjoyed by the preembryo’s progenitors. Further, given that it is permissible to abort a fetus that is under 40 days old, the preembryo may also be destroyed; and as the preembryo is an extra-corporeal entity, being as yet unimplanted in the uterine wall, its destruction is not an act of homicide. The conclusion is that, under certain conditions, surplus preembryos may be destroyed. SMP b

Marriage and Divorce

Michael S. Berger, “Two models of medieval Jewish marriage: a preliminary study,” Journal of Jewish Studies 52 (2001), 59–84. — In the context of modern debate on the aguna problem, the author argues that differences regarding divorce reflect wider differences as to the very conception of marriage, and that these in turn are not immune from the influence of the particular cultural context, Muslim or Christian, in which they emerged. He reviews, in this light, the talmudic principles on betrothal and marriage, monogyny v. polygyny, and the dissolution of marriage; the dina demetivta of the Babylonian Geonim and the Genizah documents; and the 11th–12th c. Ashkenazic response (Rabbenu Gershom and Rabbenu Tam). The general thrust of the article

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is in line with the account in Michael Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law (Hoboken, NJ: 2001). BSJ J. David Bleich, “Survey of recent halakhic periodical literature — Constructive agency in religious divorce: an examination of get zikkuy,” Tradition 35:4 (2001), 44–73. — The author presents an extensive discussion of the problems, both philosophical and legal, of “constructive agency.” The notion has been employed to support issuance of a bill of divorce by a rabbinical court so as to ameliorate the plight of an aguna even though such a bill of divorce has not been authorized, either explicitly or implicitly, by the woman’s husband. The halakha requires that the divorcing husband must have formed the intent to divorce, and implicitly or explicitly given others to understand the nature of his intent. The author forcefully counters the idea that any past halakhic authorities can be understood as offering support for divorce through ‘constructive agency’; the husband’s consent to the procedure remains crucial to its legality in Jewish law. SMP M.D.A. Freeman (ed.), Jewish Family Law in the State of Israel ( Jewish Law Association Studies, XIII) (Binghamton NY: 2002). — The complexities of the issues arising from exclusive rabbinical court jurisdiction in marriage and divorce in the State of Israel are made accessible to the English-reading public through the translations in this volume. Michael Freeman, one of England’s leading academic family lawyers, provides an Introduction, which sets the issues in comparative context. A long extract from the new edition of Pinhas Shifman’s Civil Marriage in Israel: The Case for Reform, makes the case, even from a religious standpoint, for civil marriage. This approach is rejected by Eliav Shochetman in “On the introduction of civil marriage in the State of Israel.” Ruth Halperin-Kaddari places the controversy in the theoretical framework of legal pluralism in her “Expressions of legal pluralism in Israel: the interaction between the High Court of Justice and rabbinical courts in family matters and beyond.” Other papers include Michael Corinaldi, “The remedy of temporary separation between husband and wife, as reflected in the decisions of rabbinical courts”; Menashe Shawa, “Maintenance of minor children in Jewish and positive law”; and R. Shear-Yashuv Cohen, “A violent and recalcitrant husband’s obligation to pay ketubah and maintenance.” BSJ

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c Technology J. David Bleich, “Survey of recent halakhic periodical literature — Use of automatic telephone answering and fax machines on Shabbat,” Tradition 35:2 (2001), 45–67. — In the author’s opinion, the use of automatic telephone answering and fax machines on the Sabbath is, on the view of competent modern authorities, permitted. The author examines conflicting views on the subject. He considers problems connection of such devices raises in terms of forbidden labor and the stricture against placing a stumbling block before the blind, and the matter of the pre-recorded voice message employed by the machine. Other matters considered include transmission of a fax across time zones, the possible muktze status of fax paper, reading the fax, and delayed transmission. SMP J. David Bleich, “Survey of recent halakhic periodical literature — Use of surveillance systems on Shabbat,” Tradition 35:3 (2001), 52–79. — The author discusses closed circuit television, video cameras and motion detectors. After a careful survey of the arguments pertaining to each, he concludes that all three types of surveillance devices are permissible for use on the Sabbath. SMP J. David Bleich, “Survey of recent halakhic periodical literature — Mitzvot in the polar regions and in Earth orbit,” Tradition 36:3 (2002), 60–102. — The author points out that the matter of precept observance at the poles of the earth is not new. The eighteenth-century authority Jacob Emden addressed the matter, as did the nineteenth-century authority Israel Lipschutz. The astronaut in earth orbit faces a different problem than that faced by the polar explorer, however: at any given time he or she may be above a spot on earth where it is the Sabbath, and only moments later, above a different spot, where it is not. The crucial factor here is that for halakhic purposes, calculations of the onset of day or night are made at ground level, whatever the elevation, not at an artificial height, such as atop a tower. The author reviews the various suggestions for calculating the length of a day so that the Sabbath may be observed at its proper time. He expresses approval of a rather radical thesis that whenever alternating periods of daylight and darkness (each daylight/darkness pair totaling approx. 24 hours) do not occur, time, in effect, does not exist. He finds some support for this

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unusual approach, which dictates that where there are no “days” there is no Sabbath and hence no Sabbath observance, in a responsum by R. Joseph Mashash, who considered, but rejected, the idea, though without, the author maintains, due justification. The author argues that if there is no obligation with regard to time-dependent mitzvot in polar regions because time has, so to speak, been transcended, the same is true for someone in outer space. Outer space is ‘above’ time. Therefore personal mitzvot remain incumbent upon the observant astronaut, but those dependent on time do not. SMP

d Theory of Halakha H. Ben-Menahem and N.S. Hecht (eds.), Authority, Process and Method; Studies in Jewish Law ( Jewish Law in Context, vol. 2) (Amsterdam: 1998). — This volume presents translations of seven articles from Shenaton Hamishpat Haivri, all addressing the systematics of halakhic jurisprudence, and written, for the most part, by former pupils of Menachem Elon. The articles are: “Precedent in Jewish law” (Zerah Warhaftig); “The judge-agent analogy in the Talmud” (Hanina BenMenahem); “The legal status of the responsa literature” (Berachyahu Lifshitz); “ ’The law is in accord with the later authority — hilkhata kebatrai: historical observations on a legal rule” (Israel Ta-Shma); “On the place of logic (svara) in Maimonides’ Code” (Shimshon Ettinger); “Evasion of the law in the Talmud” (Shmuel Shilo); “Inadvertent adultery (shgaga) in Jewish law: mistake of law and mistake of fact” (Moshe Drori). This is a most valuable collection, the first, one hopes, of many thematic compilations from the pages of the Shenaton, bringing some of the best of Jewish law scholarship to an English-reading audience. BSJ B.S. Jackson, with B. Lifshitz, A. Gray and D.B. Sinclair, “Halakha and law,” in M.D. Goodman (ed.), Oxford Handbook of Jewish Studies (Oxford: 2002), 643–79. — The Oxford Handbook of Jewish Studies seeks to provide an overview of the methodologies and approaches currently deployed in academic Jewish Studies. In this context — without neglecting the relationship between traditional rabbinic and academic approaches — this article reviews the history of halakhic scholarship; historical (in particular, medieval) approaches to Jewish law; dogmatic

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approaches and the ideological issues arising from the application of Jewish law in the State of Israel; comparative approaches; and philosophical approaches. [Author] Jacob Katz, Divine Law in Human Hands. Case Studies in Halakhic Flexibility (Jerusalem: 1998). — This is an invaluable collection of articles, most translated from Hebrew. In the Preface, the late Professor Katz emphasizes the importance of socio-critical inquiry into the history of the halakha, taking account, inter alia, of economic developments, on the one hand, and religious movements, on the other. A constant theme is the flexibility of the halakha. The essays cover medieval and early modern times, and there are some biographical studies (notably on the Hatam Sofer). Two essays are devoted to the relationship between halakha and Kabbalah. Particularly important are “Rabbinical authority and authorization in the Middle Ages” and “The rule of halakha in traditional Jewish society: theory and praxis.” Several case studies focus on the history of aspects of ritual law, such as the time of the evening service, the second day of the festivals, and circumcision. BSJ Aharon Lichtenstein, “The human and social factor in halakha,” Tradition 36:1 (2002), 1–25. — The author explores the philosophical problems and practical impact of sensitivity to human and social considerations in the formulation and implementation of the halakha. For many decisors of the past and the present, the legitimacy of an approach to halakha that explicitly recognizes the “human factor” as cogent and legitimate, in either halakhic theory or practice, poses severe problems. The author skillfully allays such concerns, citing the writings of R. Haim of Volozhin, and arguing for the acceptability of flexible application of the law on the basis of the internal dynamics of the halakhic system. The halakha, he argues, is pluralistic, and decisors do have latitude to make divergent decisions even when two cases are “formally and technically even.” Nevertheless, a decisor’s invocation of human and social factors must be critical and controlled, and even the most compassionate decisor must recognize boundaries that cannot be breached. Decisors must “[walk] the extra mile” in attempting to maintain the integrity of Torah when faced with a problem brimming with human anguish. The author concludes with remarks on human

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and social problems in the public rather than the personal sphere. He points out that some matters must of necessity be approached differently when the community faces a problem. Indeed, human and social concerns that might lead to a lenient decision at the personal level may mandate ruling strictly where the welfare of the public is involved. SMP Daniel Sperber, “Paralysis in contemporary halakha?” Tradition 36:3 (2002), 1–13. — The author argues that halakhic activity in the present day has lost some of its vitality relative to former centuries, when outstanding authorities engaged in creative halakhic interpretation. Seeking to explain this phenomenon, he asks why is it so important, today, that halakhic doubt be avoided at all costs. This reluctance to be innovative is traced to the opinions of the Hatam Sofer and other notable authorities of the late nineteenth and early twentieth centuries, particularly the Hazon Ish. Furthermore, formerly, a halakhic decision was often a more or less private matter involving individuals, not a matter of public knowledge. Today, rapid communications and the ubiquitousness of the media can easily turn a local rabbinical decision into a widely-familiar public statement. After a detailed review of the factors encouraging contemporary reluctance to be halakhically creative, in the last paragraph the author asserts that despite everything, the halakha still changes and adapts to modern conditions. SMP David Weiss Halivni, Revelation Restored. Divine Writ and Critical Responses (Boulder CO: 2001). — This work continues the argument of Halivni’s earlier Peshat and Derash. Halivni seeks to reconcile Pentateuchal criticism with faith in divine revelation. The persistent sinning of the generations from Moses to the end of the first Temple, he argues, resulted in loss of the original text revealed to Moses, of which there remained only fragments, which became corrupted over time. The text, in short, had become “maculate.” Only in the generation of Ezra were the people willing to commit completely to observance of the Torah, thus meriting a new prophet, Ezra, who was inspired to re-assemble the texts so as to reflect the original revelation as closely as possible. As Ezra recognized, the resulting text fell short of the original textual perfection. Ezra was therefore also entrusted with an oral law designed to resolve the imperfections, without interfering with the bythen canonical text. This is an innovative and important theological

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theory, not least for the link Weiss-Halivni posits between divine revelation and human behavior. The second part of the book presents an account of the theological implications of changes in the rabbinic concept of oral law over the generations. BSJ

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Norman Lamm, “Holocaust compensation from the viewpoint of Jewish law and morality,” Tradition 35:2 (2001), 4–13. — The author sets himself the daunting task of developing a Jewish view on Holocaust compensation, particularly, a halakhically-informed response to two major questions: the responsibility of governments that seized Jewish property during the Holocaust, and the priorities for proper distribution of compensation to the victims and their heirs. According to the author, the entire issue hinges on whether past historical situations that have mandated that Jews act even beyond the demands of the law constitute a decisive precedent. The author articulates six demands Jewish law presents in terms of restitution to be made to survivors or their heirs, and to the Jewish people as a whole, with respect to the value of seized or destroyed Jewish public institutions. The article concludes with a plea to eschew bitterness and polemics and to approach this somber matter with courage and wisdom. SMP Joseph A. Polak, “Exhuming their neighbors: a halakhic inquiry,” Tradition 35:4 (2001), 23–43. — In July 1941, the Gentiles of Jedwabne, Poland, herded most of their Jewish neighbors into a barn, sealed them in, and burned them to death. The bodies were interred in a mass grave. The President of Poland, in a ceremony in Jedwabne on July 10, 2001, accepted Polish responsibility for the gruesome massacre, and offered an apology. Polak examines the halakha on exhumation and reinterment of bodies with respect to the bodies found at Jedwabne. In response to an inquiry by Physicians for Human Rights, Polish rabbinic authorities rejected the idea of exhumation and re-interment, but after carefully examining each argument on the subject, Polak comes to the opposite conclusion, offering compelling halakhic arguments in support of reburial of the martyrs of Jedwabne. SMP

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f Other Jonathan Cohen, “Charitable contributions, communal welfare organizations, and allegiance to the community according to Rashba,” Hebrew Union College Annual 72 (2001), 85–100. — This article presents a responsum by R. Solomon b. Abraham Adret (Rashba) that addresses community tensions engendered by an attempt to institute a welfare tax. The dispute arose during a period that saw considerable development of Jewish welfare institutions in northern Spain. Rashba supports a communally-administered welfare fund that operates in accordance with halakhic requirements. His ruling emphasizes the difference between compulsory and voluntary charitable giving, and expresses displeasure with the wealthy members of the community who oppose the new tax. Insightful as to the aims and functions of welfare, the responsum sends a strong message to opponents of communal welfare policies. SMP Hillel Gamoran, “Investing for profit — a study of ‘iska’ up to the time of R. Abraham b. David of Posquieres,” Hebrew Union College Annual 70–71 (1999–2000), 153–65. — Up to the time of R. Abraham b. David of Posquieres, the talmudic mechanism of iska allowed investors and managers to share the profit or loss on an investment. The Geonim and early Rishonim maintained the talmudic institution strictly so as to preclude investment for profit. R. Abraham b. David reinterpreted the laws of iska so that investment for profit became possible. The author sees the reason for this reinterpretation in the changing economic conditions of R. Abraham’s time and the pressures exerted by the business community for an easing of the restriction against profiting from an investment, as well as in R. Abraham’s spirit of independence and halakhic creativity. SMP Hillel Gamoran (ed.), The Zutphen Conference Volume (Jewish Law Association Studies, XII) (Binghamton NY: 2002). — Papers from the 2000 conference of the Jewish Law Association: Jacob Bazak, “Compromise vs. adjudication in Jewish law”; J.D. Bleich, “Constructive agency in religious divorce: an examination of get zikkuy”; Sherman L. Cohn, “Teaching Jewish law in a secular American law school”; Jonathan Fisher, “Entrapment in Jewish law”; Joseph Fleishman, “A father’s

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v. a husband’s authority to annul a vow (Num. 30:4–17)”; Hillel Gamoran, “Lending — no, investing — yes: development of the iska law from the 12th to the 15th centuries”; Moshe Ish-Horowicz, “Some aspects of theodicy: the Flood and the Holocaust”; Bernard S. Jackson, “Moredet: problems of history and authority”; Stephen M. Passamaneck, “The shoter”; Nahum Rakover, “Should transgression disqualify one from public office?”; Steven H. Resnicoff, “Jewish fraudulent transfer law”; Joseph Rivlin, “Incarceration for non-payment of debts”; Elimelech Westreich, “The rise and decline of the law of the rebellious wife in medieval Jewish law”; Samuel Wolfman, “Mental disease in divorce law in the responsa literature and in rabbinical court rulings in Israel.” BSJ Benjamin Gesundheit, “Suicide — a halakhic and moral analysis of Masekhet Semahot, chapter 2, laws 1–6,” Tradition 35:3 (2001), 34–51. — The author provides a brief analysis of the halakhic understanding of suicide, namely, that it is a clearly volitional act of self-destruction. He notes the psychological factors, such as despair and shame, that may mitigate the volitional element of the act, paying special attention to texts that provide examples of children who took their own lives. He argues that the strong condemnation of suicide in these texts, and the movement toward a more compassionate view of some suicides, reflect the principle, “the left hand holds off . . . the right hand draws closer,” which is explicit at the end of Masekhet Semahot 2:6. This principle allows for condemnation of the act itself, where such condemnation is warranted, as well as a more considerate attitude toward family members of one who takes his life. SMP B.S. Jackson, “Comparing Jewish and Islamic law,” Journal of Semitic Studies 48 (2003), 109–21 — This article reviews Jacob Neusner and Tamara Sonn, Comparing Religions Through Law: Judaism and Islam (London and NY: Routledge, 1999), and Jacob Neusner, Tamara Sonn and Jonathan E. Brockopp, Judaism and Islam in Practice. A Sourcebook (London and NY: Routledge, 2000). It highlights the methodological choice between an “external” approach, imposing a clear tertium comparationis, but at the risk of violating understandings within each tradition, and an “internal” approach, where the comparison might lack a common analytical basis. In jurisprudence, a “moderate external point of view” has come into favor, and this broadly accords with the

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approach in these volumes. In this context, the authors’ approach to “disproportions” between the two traditions and their respective “unique categories” (“enlandisement,” jihad), and their relationship to political history (viewed primarily internally), is discussed, as is the use of the orality/literacy spectrum as an external criterion. This leads to consideration of the nature of authority within the respective systems, and to the “religious” character of the content of the rules. [Author] Stephen M. Passamaneck, “Mayhem, homicide, pardon and forgiveness,” Hebrew Union College Annual 70–71 (1999–2000), 303–27. — Jewish law distinguishes capital offenses from offenses punishable by some sort of pecuniary payment. With respect to the former, the standard of evidence is exceedingly high, so high that it was all but impossible to get a conviction under the classic rules governing murder. Yet the tradition indeed emphasizes that the murderer deserves death, and developed alternate mechanisms to deal with such cases. On the author’s view, this harshness may have to do with the fact that mayhem and lesser batteries required the batterer to seek the victim’s pardon in addition to paying monetary damages. In cases of murder, however, where the victim is no longer alive, and his pardon cannot be sought, the confession, remorse and death of the offender provide the necessary atonement for the offense, so that divine pardon and eternal life may be granted the offender; the balance in heaven and on earth is thus restored. SMP Daniel B. Sinclair (ed.), Law, Judicial Policy and Jewish Identity in the State of Israel ( Jewish Law Association Studies, XI) (Binghamton: 2000). — The 1970 Amendment to the Law of Return, following the Rufeisen and Shalit cases, failed to put an end to the controversy over the definition of a “Jew” in the law of the State of Israel. This volume provides the English-reading public with translations of four subsequent Supreme Court judgments (Beresford, Shas, Miller and Pessaro), focusing on the problems presented by converts and apostates. It also includes translations of scholarly analyses of these problems by Amnon Rubinstein, Z. Warhaftig, Pinhas Shifman, Asher Maoz and R. Avraham Shapira. A valuable introduction by the Editor provides an overview of the history of the controversy and the legal issues involved. BSJ

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HELLENISTIC AND ROMAN PERIOD Christopher Begg, “The Ai-Achan story (Joshua 7–8) according to Josephus,” Jian Dao 16 (2000), 1–20. — Begg analyzes the differences between Josephus’ account of the Ai-Achan story, as found in Antiquitates Judaicae, and the biblical account in Joshua 7–8. Josephus omits elements which would seem contrary to biblical law, such as the execution of Achan’s family for his offense. Josephus also significantly diminishes the role of the deity in the story, by omitting God’s detailed directions to Joshua on how to identify the culprit, and excluding the reference to God’s anger having been kindled by the theft. The author concludes that Josephus attempted to streamline the story, removing elements that may have been offensive to contemporary Greco-Roman readers. In addition to the omissions, Josephus supplements motivations with elements not found in the biblical account, such as the reasoning that prompted Achan’s theft — to provide for his family or prevent waste — again making the story more acceptable to a secular audience. Joseph Olsen and Derek A. Rowe Serge Frolov, “ ’King’s Law’ of the Temple Scroll: Mishnaic aspects,” Journal of Jewish Studies 50 (1999), 298–307. — In the context of debate regarding the dating of the Temple Scroll by reference to its section on the Law of the King, the author examines the passage at 57:2–58:21, arguing that the text is “cognate with the Mishnah” (mSanhedrin 2:2–5) in that it could not have been produced exclusively by biblical exegesis and must be dated between 164 and 153 B.C.E. BSJ Alfredo Mordechai Rabello, The Jews in the Roman Empire: Legal Problems, from Herod to Justinian (Variorum Collected Studies Series) (Aldershot, U.K.: 2000). — Here reprinted are fifteen of the author’s articles (though not including “The legal condition of the Jews in the Roman Empire,” ANRW II, 13 (1980), 662–762, with its useful “Chronological table of Roman laws on Jews”). There is a strong emphasis on issues pertaining to public law, particularly jurisdiction, including studies of Herod’s Domestic Court; the ban on Gentiles entering the Temple; the ban on circumcision as a cause of Bar Kochba’s revolt; the regulation by Theodosius II of the celebration of Purim; divorce of Jews in the Roman Empire; Jewish–Christian marriages in

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imperial and Christian law; Rome’s attitude to conversions to Judaism; and a review of the work of Juster. There are also articles on the relations between Diocletian and the Jews (particularly the Patriarch; the situation of the Jews in Roman Spain; and the Samaritans in Justinian’s Corpus Iuris Civilis). BSJ L.H. Schiffman, “The prohibition of judicial corruption in the Dead Sea Scrolls, Philo, Josephus and talmudic law,” in J. Magness and S. Gitin (eds.), Hesed Ve-Emet: Studies in Honor of Ernest S. Frerichs (Atlanta: 1998), 155–75. — Schiffman compares four expositions of biblical legislation, found primarily in Exodus and Deuteronomy, regarding judicial honesty. All four sources understand the Torah to explicitly prohibit judicial corruption, including bribing judges and showing favoritism in judgment, though they differ as to the reason for the prohibition and the penalty associated with such corruption. Some of the sources interpret the biblical law against judicial corruption broadly to also prohibit the taking of fees for administering judgments and the showing of favoritism when appointing new judges. Schiffman concludes that the four interpretative texts are indirectly connected by certain “exegetical traditions,” and that each insists on “the highest standards of judicial honesty.” Christian A. Fox A. Shemesh, “4Q271.3: a key to sectarian matrimonial law,” Journal of Jewish Studies 49 (1998), 244–63. — Shemesh asserts that the underlying principle for the sectarian matrimonial laws of Qumran is that an unbreakable bond between a man and a woman is created by physical union. If a man and woman divorce, remarriage is prohibited because the initial matrimonial relationship is legally in force as long as both spouses are still living. Under this interpretation of marriage, strict laws of purity were enforced for all men, not just priests. A woman who had engaged in sexual intercourse outside marriage was not fit for any man. In cases of seduction or rape, the father’s right of refusal was eliminated. Sexual intercourse, consensual or forced, was marriage. For non-Jews, sexual intercourse with a betrothed woman was not considered adultery, since betrothal was irrelevant. Marriage was institutionalized by intercourse, not the legal act of acquisition. A young woman who lied about her virginity, was accused by her husband, and subsequently found guilty by the “cloth” and physical examination, was

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stoned, as sexual intercourse with another man made her an adulteress. Shemesh interprets the halakha proscribing plowing a field with two different animals yoked together as a metaphor for a woman having sexual intercourse with two individuals: the one to whom she had been promised, and the one to whom her father now wished to give her. RoseAnn Benson NEW TESTAMENT B.S. Jackson, “Historical observations on the relationship between letter and spirit,” in R.D. O’Dair and A.D.E. Lewis (eds.), Law and Religion (Oxford: 2001). — The dictum of Paul, famously rendered by the King James Version: “For the letter killeth, but the spirit giveth life,” has been appropriated in different ways by lawyers and theologians. The former have often seen it as a piece of hermeneutic advice, the latter as Paul’s own endorsement of justification by faith (‘spirit’ ⫽ the Holy Spirit) rather than works (‘letter’ ⫽ the Written Law). The historical background, however, indicates that the real dispute was over the semiotics of revelation: through what means (text or inspiration) was the divine will made manifest, and to what extent was that form of communication both effective and accessible to human reason? This is reflected in the history of conceptions of adjudication from early biblical sources to the New Testament and Rabbinic Judaism. [Author] H.-W. Kuhn, “A legal issue in 1 Corinthians 5 and in Qumran,” in M. Bernstein et al. (eds.), Legal Texts and Legal Issues (Leiden: 1995), 489–99. — Kuhn compares intragroup regulations in 1 Corinthians 5 with Qumran texts that also require exile as punishment for certain infractions. There appear to be parallels in four areas: (1) expulsion from the community, (2) preserving the holiness of the community, (3) destruction of the sinner, and (4) prohibitions against dealing with the sinner. Kuhn suggests two reasons why these communities dealt with transgressors in a similar manner, namely, the “related sociological situation of the two closed groups,” and the fact that they shared the same Jewish background. Darrin K. Johns

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Names should be spelled according to accepted usage, and not transliterated or otherwise altered, thus R. Moses Isserles (Rema), R. Elijah b. Solomon, Mizrachi Organization, Kiryas Joel. Authorized Version abbreviations for books of the Bible, listed in dictionaries and style guides such as The Chicago Manual of Style, should be used. In referring to the Talmud, tractate names should not be abbreviated. m, b or j prefixed to the tractate name should be used to indicate whether the Mishnah, the Babylonian Talmud or the Jerusalem Talmud is being referred to. CITATION STYLE Hebrew titles should be translated into English. Where an English translation of the title is given in the original, please provide it. If no English title is given, please provide both the (transliterated) Hebrew title and a translation, and indicate to us that the translation is yours. HALAKHIC LITERATURE Beit Yosef, OH 156, YD 147. Maimonides, Code, Laws concerning Robbery and Lost Property 11:1. Rashi on bBaba Kama 27a s.v. lemikah umimkar. Responsa Beit Shlomo, OH #57. Responsa Mabit, #37. BOOKS W.C. Kaiser, Toward Old Testament Ethics (Grand Rapids, MI: 1978), 99. E. Urbach, The Sages: Their Concepts and Beliefs, trans. I. Abrahams, (Jerusalem: 1987), vol. 1, 343. JOURNAL ARTICLES A. Shaffer, “Cuneiform tablets from Palestine I: the letter from Shechem” (Hebrew), Beer-Sheva 3 (1988), 163–69. Joseph Raz, “Legal principles and the limits of law,” 81 Yale L.J. (1972), 823–34.

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ARTICLES IN EDITED VOLUMES B.S. Jackson, “Legalism and spirituality,” in E.B. Firmage, B.G. Weiss and J.W. Welch (eds.), Religion and Laws: Biblical, Judaic and Islamic Perspectives (Winona Lake, IN: 1990), 243–61. D. Sinclair, “Defending the lives of the mortally ill, the embryo and the non-Jew” (Hebrew) in G. Frishtick (ed.), Human Rights in Judaism (Hebrew), (Jerusalem: 1992), 37 n. 19. CROSS-REFERENCES IN NOTES 23

A. Sagi and D. Statman, Religion and Morality (Amsterdam: 1995); henceforth, Sagi and Statman 1995. 24 See Englard 1991, n. 11 above, 67. 25 Ibid., 121. 26 See Sagi and Statman 1995, n. 23 above, chs. 6–7.