Law, Ethics and Jewish Divorce

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If you read the Huffington Post, you likely read the New York Times, and perhaps you saw the article on the case of 34-year-old Aharon Friedman refusing to grant his wife a Jewish divorce.

I thought I would depart from my usual focus on the spiritual dimensions of ending relationships and wear my other hat, and teach a bit about Jewish law, and especially about the relationship between Jewish law and ethics. In this case, especially how law and ethics relate to divorce.

A bit of background: In Deuteronomy 24:1, we are told that a man may divorce his wife if she no longer found favor in his eyes. He must write her a "sefer kritut" -- literally, "a book (or writ) of breakage." By the Talmudic age (roughly 100 CE to 500 CE), the term for the writ of divorce was "get", probably from the Latin "gestus" (think "gesture"), which could refer to any legal act.

While Jewish law has always evolved and developed, in the Orthodox tradition the stricture that only a man could initiate divorce was kept. This was the law. Early on, though, it was apparent that the law, as strictly construed, was not ethical. The wife was also a moral agent, and if she were suffering in the marriage, she ought to have the right to get out. By the middle ages, the rabbis had found a solution. A Jewish court could order a man to issue his wife a writ of divorce. On the other hand, they could not coerce him, because a writ does not have legal standing unless it is issued under free will. The medieval rabbis reasoned that no sensible man would refuse the judgment of a court. Such a man was obviously under the grip of an evil spirit, and he had lost his free will. One solution was to put the recalcitrant husband in a pillory or subject him to lashes until he came to his senses and regained his free will. In Israel today, if a religious court orders a man to issue a divorce, and he refuses, he can be arrested for contempt of court. The theory is that he will rediscover his free will after a few nights in the slammer.

Orthodox religious courts in outside of Israel have, of course, no coercive power. In times past, the Orthodox community felt rather impotent to coerce a man to issue a divorce. Oftentimes, the recalcitrant husband would demand a cash settlement for agreeing issue a divorce writ, effectively committing extortion. Shunning the recalcitrant husband was about all the coercion a typical community could muster up, which had minimal effect on a shameless person (the wife's family might hire thugs, but this is not discussed in polite circles).

Over the past 30 years or so, things have changed. As we see in the Aharon Friedman case, the Orthodox community itself has rallied around the "chained woman" in a very public and vocal way. Shunning has given way to shaming. Whatever disagreements might remain in the case of a divorce, the divorce writ should never be used as a bargaining chip. Orthodox Jews often see using the "get" as leverage to be blasphemy, using God's law as a truncheon.

Clearly, the divorced husband in this case has a grievance. The custody agreement does not appear to take into account that he lives strictly by Orthodox law. Whatever his grievance might be, however, the Orthodox community seems to be saying that using the divorce writ to get one's way is off the table. The law says that only the man may issue the writ, but Jewish ethics says that he must issue the writ if his wife demands it.

What does this have to do with the rest of us? Reform and secular Jews typically ignore the requirement of the divorce writ, and Conservative Judaism has devised a legal workaround. For me, the deeper dimension of his case is how divorce and its attendant issues oftentimes have us lose our moral bearings. An Orthodox Jewish man, who would never have dreamt of defying a Jewish court, feels entitled to do so when it interferes with his seeing his children. I cannot even begin to enumerate the number of people, men and women, who have defied a court order to pay child support if they felt the custody arrangement was not fair.

In divorce, I regularly see law-abiding people ready to take the law into their own hands. Custody agreements, indeed, are often not fair, but it is far better to trust a judge eventually to do the right thing, than to set the norm that we each get to take the law into own hands when we are not satisfied with an outcome.

Imagine how healthy it would be if every time a person decided to take the law into their own hands, that the community would gather around and shun and shame that person? The law is supposed to enforce moral social norms, but oftentimes finds itself unable to do so in a timely and effective way. This news story shows a community not willing to accept the letter of the law, that only the male may issue the writ. They are insisting that the morality-based spirit of the law, i.e., the respect for women's rights, be kept as well, and they are vocal and active in this insistence.

I find this inspiring.

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