more on recent reading

[cellio]

More long-winded thoughts inspired by The Struggle Over Reform in Rabbinic Literature.

I mentioned before that one approach used in rabbinic Judaism to avoid an unpleasant problem is to interpret around it. One example that Guttmann brings up is as follows (in highly-distilled form): a Catholic converted to Judaism and married a Jew; later they divorced (without a get), and she re-married and had children. Under Jewish law, those children are mamzerim ("bastards", though the term does not have the same connotation as in English), and they are restricted in who they can marry. Said children wanted to marry outside those restrictions, and the Orthodox rabbi who ultimately ruled on the case did so by invalidating the man's conversion -- thus the first marriage was not recognized under Jewish law, so it didn't need to be terminated with a get. End of problem.

This editing of history seems dangerous to me. And yes, the decision was controversial. Guttmann asserts that if the rabbi in question had said anything about doing this for humanitarian reasons, the ruling would have been widely rejected -- but because he could construct a halachic argument, no matter how weak, it was ok.

If they are going to use such reasoning, though, why don't they go and do something useful like solving the agunah problem? (An agunah is a woman who cannot remarry because her husband hasn't given her a divorce decree -- a get. If he's mentally incapacitated, or missing and presumed dead, she's screwed.) I read once of a method that a beit din had used to invalidate a marriage after the fact by -- get this -- confiscating the ring used in the wedding retroactively. (According to the rabbi I learned this from, a beit din can confiscate property under a principle called "hefker bet din hefker".) If the husband didn't own the ring, then he wasn't really giving it to the wife -- and the wedding depends, in part, on this transfer of property. (The rabbi cited the Gemara to Gittin 33a, which I have not chased down.)

So, I ask, why can't we solve the agunah problem the same way? Retroactively confiscate the ring, and thus invalidate the marriage? I've asked this question of a few fairly-learned Orthodox (one rabbi and a couple laymen), and the answered can be summed up as "this argument is flawed and we can't do that". So I guess it will remain a mystery for me for now, though Guttmann seems to document interpretations at least as major as what I'm suggesting.

Onward. Guttmann mentions another interpretation I found interesting. Halacha is concerned with who does or does not count in a minyan (quorum for public prayer). Jews who are publicly unobservant -- the typical case is those who publicly violate Shabbat -- are not counted under a strict ruling. However, a case was made that Jews who are otherwise sinners are, at least temporarily, not sinners if they are actually present for that prayer service; they can be presumed to have repented, and God is concerned with present state, not past state. We get all of this from the Hagar story in Genesis -- Avraham expels Hagar and Yishmael into the desert, Hagar leaves Yishmael because she can't bear to see him die of thirst, Yishmael cries out, and God shows Hagar a well. The Talmud asks: how could God save Yishmael when he's going to grow up to be wicked and father a wicked nation? he answer is that God is concerned with Yishmael's present state (as a dying child), not his future state.

The book documents many cases where the Orthodox first objected to a Reform innovation and then, later, quietly adopted it. These include the bat mitzvah for girls (tradition says only the bar mitzvah -- for boys -- is relevant), using the vernacular in services (particularly sermons), the acceptability of translating and publishing the Talmud (the issue was that it was supposed to be off-limits to gentiles), and the acceptability of secular learning. I presume that a halachic case was made for each of these, though sometimes that case seems to rely on custom and not law. Certainly we can't generalize and conclude that some of the currently-controversial Reform decisions would be accepted, though; for example, patrilinial descent (which post-dates this book) would probably never be accepted by Orthodox (or probably even Conservative).

It's an interesting read, even though my thoughts are still kind of disjointed.

Comments

Orthodox halacha...

[goljerp]

It seems to me that the Orthodox world hasn't done anything about the problem of Agunah, because they ultimately don't really want to do anything. This is incredibly frustrating for me. There are plenty of ways around the Agunah problem if people really wanted. One which I like is to say that any man who refuses the request of a Bet Din to appear before them and give his wife a Get (Divorce) is insane, and so therefore the Bet Din can act on his behalf and issue a Get for him. (I don't have any sources in front of me, so this might not be totally correct, but you ought to be able to do something similar to this if you really wanted. In my opinion, of course.)

On the other hand, the problem of Mamzerim(sp?) is important to the Orthodox, so they have traditionally fond ways to get around that problem. Unfortunately, this is changing... there are some groups who are keeping lists of mamzerim, and performing pre-marriage checking of these lists. That is, I think, a horrible thing to do.