The Agunah Dilemma, #3

One theme of the Agunah Summit was the need for a “systemic solution”.  However, different speakers used the term to mean and exclude different things, and this led to frequent and unfortunate misunderstandings and failures of communication.  I will therefore try here to develop a rigorous analysis of the term.

Systemic can mean:

  1. Comprehensive (antonym “ad hoc”)
  2. Internal (antonym “external”)
  3. Automatic (antonym “dependent”)

These three translations generate five specific uses:

a)     internal to the Halakhic system, rather than reliant on external forces, such as the secular courts

b)    capable of resolving all cases

c)     capable of resolving all cases without requiring any rabbi to  exercise any form of halakhic discretion

d)    capable of resolving all cases without requiring specific men or women to exercise any form of discretion

e)     capable of resolving all cases without requiring any human being, rabbi or otherwise, to exercise any form of discretion

Each of these definitions likely represents a distinct values position.  For example:

a)     the desire for an “internal solution” may stem from a concern for the moral reputation of Halakhah, and lead someone to prefer such a solution even if it is less effective than a solution that involves extrahalakhic forces or agencies;

b)    the desire for a comprehensive solution may reflect a belief that ad hoc solutions cannot be relied upon in advance, and so reliance on such solutions will leave women vulnerable to get-refusal blackmail or anxiety;

c)     the desire for a solution not dependent on rabbinic discretion may reflect a lack of trust that the rabbinic court system will properly use any new powers it might be given, or a general aversion to increasing rabbinic power;

d)    the desire for a solution not dependent on the discretion of non-rabbis may reflect a lack of trust that couples will take proper prudential measures before marriage, or a sense that accepting such a solution in principle will in practice enable rabbis to avoid their responsibility to fix the matter.

e)     The desire for a solution independent of any human discretion may reflect either a combination of c) and d) or else a sense that vulnerable people should not, if possible, be required to put their trust in others.

Furthermore, the contemporary agunah issue (see also the four manifestations discussed last post) affects three distinct groups of women:

1)       Women who are currently in the midst of or have completed civil divorce proceedings

2)       Women who are currently married but not considering divorce

3)       Women who are not currently married.

A solution may be comprehensive for one or two but not all three of these groups.  For example:

prenuptial agreements only help group 3;

postnuptial agreements might extend a similar solution to group 2;

but any solution requiring the husband to voluntarily accept new obligations cannot help group 1.

Furthermore, some solutions may work comprehensively, internally, or automatically in Israel but not in the United States, or vice versa.  More on that in a forthcoming installment.

 

Rabbi Aryeh Klapper
Dean, The Center for Modern Torah Leadership

www.torahleadership.org

 

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