Issues in Jewish Ethics: Agunot - A Different Kind of Hostage
by Robert Gordis
The most agonizing moral challenge confronting Jewish law in modern times is nearly 2,000 years old. It is the plight of the agunah, "the chained wife," which has troubled Jews through the centuries. No one who has read Chaim Grade's powerful novel The Agunah will soon forget its tragic heroine, whose husband has left her and refuses to give her a get (Jewish divorce), so that she can never remarry.
A Problem Since Biblical Times
Actually, the novel describes only one of several categories of agunah. Fundamentally, the pathetic situation of these women stems from the fact that the rabbinic interpretation of Deuteronomy 24:1-4 places the initiative for the issuance of a get solely in the hands of the husband. The tragedy has been immeasurably compounded in modern times by the erosion of authority in the Jewish community, so that the community itself is now powerless to compel the husband's obedience.
The problem has a long and painful history. The ancient and medieval rabbis were highly sensitive to the woman's undeserved suffering and sought every conceivable method of freeing the agunah from her chains. Thus, the Talmud went so far as to rule that if the woman herself had evidence that her husband had died, her unsubstantiated testimony would be acceptable and she would be declared a widow, free to remarry.
The radical character of this decision becomes clear if it is recalled that this ruling sets aside three fundamental principles of halakhah [Jewish law] — first, the rabbinic rule that a woman is ineligible to testify as a witness; second, the biblical law that two witnesses are required to establish valid evidence; third, the rabbinic principle "adam karov etzel atzmo" — "every person is close and partial to himself" — and, therefore, his testimony on a case in which he is involved is invalid. Nonetheless, the rabbis accepted the woman's sole testimony as a witness.
Furthermore, the rabbis in medieval and modern times left no stone unturned in searching for the missing husband and in the effort to persuade him to issue a Jewish divorce to his abandoned wife.
It is clear from the sources that customary law, as practiced over a period of 10 centuries in Egypt and Palestine, employed far-reaching procedures to compensate for the women's legal inability to dissolve a marriage. These provisions dealt not only with the problem of abandonment; they also made it possible for the woman to demand and receive a divorce when she found her marriage intolerable. In fact, documents have survived that indicate that in some cases it was sufficient for the wife to come to the court and declare, "Lo erhemeh" — "I do not love him" — in order for the judges to compel the husband to issue a divorce.
Problem Becomes Insoluble as Jewish Community Loses Power
The problem of the agunah was relatively soluble as long as Jewish tradition retained its authority and the Jewish community had the power to enforce its decisions. This condition prevailed everywhere during the Middle Ages and, until our own century, in Eastern Europe. And because it did, there were extralegal procedures, such as public opinion and social ostracism, that could be used to secure the husband's compliance. In addition, the court could impose a herem (excommunication), which meant total isolation for the offender. Generally, the threat sufficed to bring the husband into line.
Nevertheless, the responsa — the legal decisions of the great rabbinic authorities of the Middle Ages — include many cases of unfortunate women chained to a recalcitrant or nonexistent spouse.
The breakdown of the Babylonian center about the year 1000 C.E., and its replacement by a multiplicity of independent communities in North Africa, Spain, France, Germany, Italy, and Eastern Europe, led to a general fragmentation of authority that created many areas of local jurisdiction. The power of individual rabbinic leaders to compel obedience was now correspondingly reduced. The frequent uprooting of Jewish communities, the mass migrations and the transplantation of individuals, accompanied by the deaths of countless individuals through natural disaster, famine, or massacre, substantially increased the number of agunot. In spite of all ameliorative efforts, the lot of the agunah remained an unhappy one.
Beginning with the second half of the 18th century, the Enlightenment and the Emancipation wrought havoc with the traditional pattern of Jewish life. The admission of Jews into political citizenship, civic equality, and economic opportunity was directly and explicitly linked to the surrender of the authority of Jewish traditional law and to the loss of the legal status of the Jewish community, which now became in effect a voluntary association with no coercive power.
In some quarters today, both the Emancipation and the Enlightenment are decried as totally evil, though one sees little evidence of a wholesale stampede to turn in citizenship papers and return to the ghetto. (The only possible exceptions are some Hasidic groups that have never left it.) The fact is that both modern movements brought substantial benefits to Jews and Judaism — but they exacted a heavy price, in the form of assimilation and alienation.
The rapid growth of secularism and the establishment of civil marriage and divorce in nearly all Western countries coincided with the mass migration of millions of individuals from one country to another. These factors gave rise to a large increase in the number of agunot. Women loyal to Jewish tradition were, of course, the chief victims.
Categories of Agunot
In sum, four principal categories of the agunah have emerged in modern times and are on the increase:
1. A man divorces his wife in the civil courts and possibly even remarries, but refuses to give his wife a get, either because of malice or greed. All too often the husband tries to extort money from his wife in exchange for the get.
2. A man disappears without leaving a trace, so that he is not available to issue the divorce that halakhah demands. During the early decades of the 20th century , when mass Jewish immigration to the United States from Eastern Europe reached its height, Yiddish newspapers published a regular feature, "The Gallery of Missing Husbands," asking readers to help locate the errant spouses. Together with photographs, there would appear pathetic pleas for help from the deserted wives.
3. The man is lost in military action or dies in a mass explosion. In modern war, combatants are often blown to bits. Where there is no hard evidence that the soldier is dead, the wife becomes an agunah, since halakhah has no such category as "declared" or "legally" dead.
During the Russo-Japanese war of 1905, some great Russian rabbis visited the troops before they left for the front and persuaded the Jewish soldiers to issue a get al tenai, a "conditional divorce," so as to free their wives from the status of agunah should the men fail to return. But obviously this temporary procedure, however helpful in individual cases, did not meet the growing dimensions of the problem.
4. Not strictly a case of "desertion" but similar to it is the rarer case of a childless widow who, according to halakhah, requires halitzah (release) from her husband's brother before she can remarry. [Biblical law requires her brother-in-law to marry her to perpetuate the dead husband's "name" by providing his wife with a child. The ceremony of halitzah releases the widow from this obligation.] This situation has also served as an occasion for extortion.
Sources: MyJewishLearning.com, Reprinted with permission from the estate of Robert Gordis. The above article is excerpted from "A Different Kind of Hostage," originally published in Moment magazine.
Dr. Robert Gordis (1908-1992) taught for over half a century at the Jewish Theological Seminary of America as Professor of Bible and Rapoport Professor in the Philosophies of Religion. He served as a congregational rabbi and as editor of Judaism: A Quarterly Journal. Among his many books are Love and Sex and Dynamics of Judaism: A Study in Jewish Law.