Friday, September 12, 2008

Ki Tetzei (Mitzvot)

For more teachings on this parashah, see the archives to my blog at August 2006.

In loving memory of my father, Avigdor ben ha-Rav Simhah Eliyahu & Sheina Git’tl (William Chipman) who departed this world 24 years ago, on 10 Elul 5744. And in honor of my dear wife, Randy, upon the occasion of our tenth anniversary. May we have many more good, happy and productive years together.

The Holiness of Marriage

This week’s parasha deals with a mélange of mitzvot, probably the largest collection found in any single parasha, covering a wide variety of subjects—74 in all. If there is a single organizing theme, it is that of marriage, family and sexuality and, more generally, private life. Many of the mitzvot here relate in one way or another to this subject, including such basic mitzvot as marriage, divorce, levirate marriage, the ban on sacred prostitution and homosexuality, etc.

The concepts of both marriage and divorce are derived from the same verse, Deuteronomy 24:1, where they are mentioned almost in passing, in relation to the rule against a man remarrying his ex-wife who had remarried and was subsequently either divorced or widowed. The verse begins with the words “When a man takes a wife…” and continues “if he does not like her… then he writes her a sefer keritut (lit., “writ of cutting off”; i.e., a get) and places it in her hands and sends her away….” Thus, this verse conveys, in a nutshell, the halakhic essence of the institutions of marriage—kiddushin—and its termination—gerushin.

Both of these are based upon an act performed by the man—and there lies the rub. The fact that both marriage and, especially, divorce, are under the exclusive aegis of the husband has caused no end of trouble in the event of marital breakdown. This factor can, and often does, leave the woman at the mercy of a vindictive or avaricious husband, on the one hand, and of an often impotent or indifferent Rabbinic Court, on the other—the well-known problem of the so-called agunah. I have devoted a special supplement to this subject in honor of my father’s Yahrzeit, including discussion of various suggestions that have been made in recent years for correcting this problem, or even restructuring Jewish marriage altogether; the shiur will be sent out/posted, with God’s help, very early next week, and will also include a brief discussion of another sexuality-related issue that has aroused much controversy in recent years—the status of homosexuals and homosexuality.

But so as not to leave this wedding anniversary issue on a note of the bleak side of marriage, I will quote a brief insight from Sefer ha-Hinukh—a 13th century compendium of the laws and rationales of each of the 613 mitzvot. The Hinukh defines the act of kiddushin as follows: “The Torah commanded us to perform an act with the woman indicative of their union, prior to him lying with her, so that he not go to her as one goes to a harlot, without any other prior act between them… and that she take to heart that she is connected permanently to that man, and not behave promiscuously… so that their sitting down and rising up be in peace and harmony forever…” In short, Hinukh sees the idea of a wedding ceremony—a publicly acknowledged, formal act uniting the couple—as conveying dignity and gravity to their union, as distinct from casual sexual relations, thereby conveying , as implied by the word kiddushin, sanctity upon their relations. Interestingly—a point to which I will return in my longer essay—this understanding of the basic rationale for this mitzvah is not dependent upon the specific form of kiddushin.


One of my readers took umbrage at a passing comment I made last week as to the “often exaggerated hopes the masses may place in a charismatic leader as being somehow able to resolve all the problems of the country (is this at least part of the Obama phenomenon?).” His point is well taken. The comment was inserted rather hastily, as a last-minute thought and, as an expatriate American, perhaps without the awareness of the passions and sensitivities this presidential campaign arouses in many.

Truth is, I had originally thought of drawing an analogy between Israel and the US viz. Obama and Tzipi Livni. The latter is seen by some as the “great white hope” of Israeli politics precisely because she is a woman, because she’s 10-15 years younger than the current crop of politicians, and because she seems to conveys at least the image of honesty and principle and the possibility of “change,” in a body politic that is at least as disillusioned in its leadership as many Americans are with Bush (though perhaps not polarized in quite the same way). In point of fact, her world view is hardly radical, but seems basically moderate Likud (she is from the “fighting family”: her parents were in Etzel).

But my real point, which perhaps I didn’t articulate all that well, was that the excitement a politician generates is as much a reflection of the crowd’s desire to believe in a leader as it is about whom he or she is in fact; in other words, the impulse “we want a king” is as much alive today as it was in the days of Samuel and Saul (see Elias Canetti’s Crowds). At times the person the crowd loves may in fact be decent, intelligent, capable, etc.—as I believe Obama to be, and as Shaul evidently was—but the crowd’s admiration generally has little to do with the facts.

I might add that Obama’s candidacy has excited attention as symbolizing, not only a new America, but a new world—one in which the white races no longer assume themselves to be superior and destined for rule, but in which the white man will take his place as one among many strains (or “stains,” per Philip Roth) within the panoply of humanity. As Jews, who though (predominantly) white, have often been regarded as belonging to a pariah ethnic group, this development can only be applauded. As for whether McCain or Obama is “good for Israel” and even what is meant by “good for Israel”—one can talk till the cows come home and never reach a conclusion.


The halakhic concepts of both marriage and divorce are derived from the same verse in Parasha Ki Teitzei, Deuteronomy 24:1, where they are mentioned almost in passing. The verse begins with the words “When a man takes a wife…” and continues “if he does not like her… then he writes her a sefer keritut (lit., “writ of cutting off”; i.e., a get) and places it in her hands and sends her away….” This verse thus conveys, with graet brevity, the halakhic essence of the institutions of marriage—kiddushin—and its termination—gerushin.

Both of these acts are performed by the man, the woman, even if her consent is required, being a passive recipient—and there lies the rub. In the event of marital breakdown, the man has tremendous power over the woman to either grant or withhold a divorce. This has been given rise to what is popularly known as ‘iggun or the problem of the ‘agunah, (lit., “the anchored woman”: technically speaking, the term refers to a woman whose husband’s whereabouts are unknown). This situation can, and does, give rise to the potential for real abuse. An avaricious or vindictive husband may cynically exploit this situation to blackmail the woman for money in exchange for his agreement to a get, or extract far-reaching concessions in matters of child support or equitable division of common property, overruling prior court decisions.

I know personally of three women who have suffered greatly, over a period of many years, because of halakhic power their estranged husbands held over them. One such woman, a good friend of my ex-wife, was only able to remarry, and to so while still in her child-bearing years, because her father was sufficiently wealthy to meet the husband’s “ransom” demands. The other two, to the best of my knowledge, are still agunot. Notwithstanding the purple prose in Orthodox apologetic literature celebrating the beauty of Jewish marriage, this problem serves as a stain on the institution. I find it difficult to think of a system that not only provides an opening for such abuse, but is virtually an “opening that calls out to the thief,” as holy. Perhaps in ages past, when Jewish communities were more cohesive and the Rabbinic Courts enjoyed real political and moral authority things were different. In today’s world, it is clearly a hillul hashem—a desecration of the Holy Name.

A second consequence of the male–initiated and male–terminated nature of marriage is that of agunot in the classical sense: i.e., women whose husbands have disappeared, and may even be suspected or presumed to be dead, but whose whereabouts are in fact unknown; no one knows for sure what has become of him. This happened not infrequently in the medieval world, where many Jews engaged in trade and traveled long distances, by sea or land, and there were only ineffective means of communication. But there may also be agunot in the modern world, as a result of war or terrorism or other mishap: among survivors of the Holocaust, when couples were often separated; following the sinking of the Israeli submarine Dakar, and following the Twin Towers attack, when numerous bodies were never recovered, rabbis worked hard to free these men’s widows to remarry. Nevertheless, there are situations where women remain agunot: Tami Arad, wife of Ron Arad, the best known Israeli MIA, has been an agunah for a quarter of a century, not knowing whether her husband is alive or dead.

Moreover, in the event where the woman did not have any children with her husband (such as Karnit Goldwasser, whose husband’s body was just returned after two years of uncertainty), and there is a brother, she is required, in lieu of levirate marriage, to undergo the procedure of halitzah. Many women find this ceremony humiliating, although ironically its original intent was to humiliate the brother-in-law who refused to perform his duty. More important, this institution again provides an opportunity for blackmail and extortion—and has been exploited to those ends.

But over and beyond the specific evils of a system which gives unjust power to unscrupulous men, and the crying need for technical solutions to the agunah problem, there is another issue involved here, one of principle. Put quite simply: the unilateral nature of halakhic marriage and divorce rankles against our own conception of marriage. The woman seems to be treated as a passive object, to be “acquired” or “sent away” (not unlike the slaves, livestock, real estate, and mobilia discussed in the subsequent mishnayot in Mishnah Kiddushin Ch. 1) at the fiat of her husband. Modern couples are more likely to think of marriage as a partnership of equals, freely entered into by both partners, and to be dissolved either by mutual agreement, or upon the fulfillment of certain pre-agreed conditions. The woman is not chattel of either her father or her husband.

Have we, then, reached a point of crisis in Jewish marriage? I have been mulling over this question for the past few weeks, in the wake of several conversations with my friend Harry Fox about a paper he wrote on this subject—appropriately enough, in partnership with his wife (see below). Is it possible to rethink the halakhic parameters of marriage? Is it at all possible or permissible to alter them? And, if so, how could such a thing be done?

1. How Does Halakah Change?

This issue relates to a much larger question: how does halakhah change? The objection is often raised, even in more modern Orthodox circles, that the Torah is eternal, unchangeable or, as in the title of the popular anthology by Dayan Grunfeld, “timeless Torah.”

Yet in truth the Torah is flexible. When a given law becomes untenable, as the result of changes in social reality; when it becomes totally out of tune with the reality in which people live, a solution is inevitably found, which typically involves keeping the law itself “on the books” while effectively turning it into a dead letter, and inventing a new halakhic institution to take its place. Indeed, certain halakhot were treated that way by the Sages ab initio: thus, the law of ben sorer umoreh, “the rebellious son,” was explained as something which “never was and never existed,” whose sole raison d’etre was “expound it and receive reward.” The best-known example is one that will go into effect in a very few days: shemitat kesaafim. Torah law stipulates that all debts are automatically cancelled every seven years, at the end of the sabbatical year. As economic life became more complex, this law became untenable—nobody wanted to lend money to those in need, out of fear of their debts being cancelled. Thus, Hillel introduced the prozbol, essentially a legal fiction in which debts were formally turned over to the Beit Din, a corporate body to which the law did not apply, as a way of bypassing this law and enabling the economy to function.

There are numerous other examples. In the final chapter of Mishnah Sotah we read that the eglah arufah and mei sotah where abolished once murderers and adulterers, respectively, became common. Other examples include: the sale of hametz, to alleviate the need to physically destroy valuable stores of hametz every year before Pesah; heter mekhirah, the nominal sale of all of Eretz Yisrael to a non-Jew as a (controversial) solution to the requirement of ceasing all agricultural labor one year out of seven; heter iska, permitting commercial and financial institutions to loan money on interest; various modern technological solutions to Shabbat prohibitions; etc., etc.

Today, many people in the observant community are reluctant to introduce new and radical solutions to even the most pressing halakhic problems, out of fear of being labeled “Reformers.” Historically, Orthodoxy’s reaction to modernity was to adopt a fortress mentality, bolstering up the letter of the law. (In my opinion, this is based on an incorrect reading of the causes for the failure of Reform and Conservative Judaism—but that is another discussion, that will take us too far afield.) But a believe that the time has come for Orthodoxy to emerge into a new phase; the Orthodox community has successfully moved into the modern world, and its image today is largely of educated, successful professional and business people. Hence, the bastion mentality s no longer appropriate. Rather than the rigid notion of an “eternal, unchangeable Torah,” it seems to me that a truer model of the working of halakhah is one of constant tension between the fixed mitzvot of the Written Torah and an Oral Torah, in the broadest sense, that will serve as an instrument sensitive to social reality and to changes in society and human environment.

I should add that the areas of marriage and sexuality are ones in which halakhists are particularly conservative and reluctant to entertain change, due to the serious nature of sexual transgressions. An error in halakhic judgment regarding marital status may have very grave consequences, viz. mamzerut, issurei karet, etc. Traditionally, this is one of the reasons why poskim have been reluctant to even entertain the idea of various proposals for change or “reform” in this area. Clearly, any proposed solution must be examined carefully from all sides—but that does not mean that they should be dismissed out of hand, and not adopted by the community in the end.

2. Value Questions: Partnership vs. Chattel

But before turning to the practical questions of how to do this, a few comments about some of the principled issue involved. As I see it, these factors make change all the more urgent. Family life and marriage are in trouble, generally, in the Western world; I have written about this problem in the past, and hope to do so at greater length in the future. The changing sexual norms and expectations that have become common within the lifetime of my generation, based upon a highly individualistic approach to life, present a great challenge to Judaism, with its concept of relations between men and women being based upon sanctity, dignity and mutual respect; with the family conceived as the kernel, the elemental building block of the larger community—a concept absolutely central to any kind of Jewish life. I have become convinced that the solution to the problem of Jewish marriage law as presently constituted lies, not in fanatical conservatism and rigid adherence to a literalist reading of the law, but in making Jewish marriage an attractive option, in which modern men and women can feel safe and secure. (Let me add that, as the father of three unmarried daughters, I feel this problem particularly keenly.)

At a conference of unmarried Orthodox young people in Jerusalem, not a few people said that they don’t plan to marry—i.e., with huppah and kiddushin—because of the unwanted power it gives the husband in event of marital breakdown. Even if they do in time establish stable, loving, potentially life-long relationships, many are seriously considering what used to be quaintly referred to as “living in sin,” in protest against the Rabbinic establishment’s failure to solve the agunah problem.

But the problem is not only a practical one. People today think of marriage in terms of relationship freely entered into by both partners as equals, based upon the full personhood of both man and woman. From this perspective, the concept of kinyan, however much it may be dressed up in spiritualistic reinterpretation, is objectionable. I would like to draw an analogy to Rambam’s approach to korbanot, animal sacrifices, as set forward in Guide III.32 (I am of course aware of the contradictions between the Rambam’s position here and in the Yad; see HY V [Rambam]: Vayikra). Maimonides describes sacrifices as being commanded to the Israelites after the Exodus from Egypt because this was customary manner of serving God in the ancient world. Between the lines, he seems to imply that the Torah’s intent was to ultimately wean Jews away from sacrifice towards verbal prayer, and eventually maybe even towards silent mediation. Is it too far–fetched to suggest something analogous about the issue at hand? The Torah was given at a time when women were universally viewed in a manner very much like chattel, because that was the way in the ancient world; the Torah’s main concern was to insure sexual modesty and the stability of the family, by creating a formal, publicly recognized structure for marital relations. But, arguably, human thought regarding these matters has evolved to a higher consciousness. Hence the time has come to rethink Jewish marriage, relegating traditional kiddushin to desuetude, and substituting for it a new structure, based on equality and mutuality, and defined in terms of binding Rabbinic or communal edicts. If ever there was a situation of עת לעשות לה' הפרו תורתיך (“it is a time to act for the sake of the Lord; they have violated your Torah”—Ps 119:126; read by the Rabbis as “even to violate your Torah”!), surely this is it!

Moreover, a basis may be found for these conceptions in classical Jewish sources. I have written in the past as to how the motif of the creation of the first human being as an androgynous points towards both the equality and the mutual interdependence of the two sexes (see Genesis Rabbah 8.1 and parallels; for my translation and discussion see HY VIII [Rashi]: Shabbat Hol ha-Moed Pesah). Similar ideas, relating specifically to marriage, may be found in an impressive group of medieval Torah commentators, including Ramban, Sforno, Radak, Hizkuni, Rashbam, and many others. For them, the ideal of monogamy and partnership are inferred from Adam and Eve. This entire group interpret the verse והיו לבשר אחד(“and they shall be as one flesh”—Gen 2:24) in terms of spiritual union and partnership.

Thus Ramban: “Because of this Scripture says that the female of Adam was bone of his bone and flesh of his flesh, and he cleaved to her, and she was in his bosom like his own flesh. And he desired that she be with him always, as was the case with Adam, so is it placed in his nature in his offspring, that the males cling to their wives, leaving father and mother and seeing their wives as if they are with them as one flesh…”

Sforno is more succinct: “A man shall leave his father and mother and cling to his wife. It is fitting that a man undertake to marry a woman suitable for him, and to whom it is fitting that he cleave. He shall also need to leave his parents, for there cannot be true attachment between those who are unalike. But only among those who are similar, for then they are directed to one opinion mind. And they shall be one flesh. He intends in all his activities to acquire that perfection intended in the creation of man, as if both of them were only one.”

In brief, the idea of monogamy and a strong emotional, psychological and spiritual bond at the basis of the union between man and woman runs like a crimson thread through all major commentators (with the exception of Rashi, who takes this verse in a different direction; see HY VIII: Bereshit). Notwithstanding the formal permission for bigamy or polygamy, and even its concrete practice in the cases of the patriarch Jacob and kings David and Solomon, the Edenic ideal clearly seems that of one man and one woman.

Interestingly, there is a trend today, specifically among some strictly Orthodox women, to invoke ancient Kabbalistic traditions describing the messianic age as one in which the imbalances between man and woman will be rectified. See on this, for example, Sarah Yehudit Schneider’s Kabbalistic Writings on the Nature of Masculine and Feminine.

It seems to me that on this point there is something to be learned from certain contemporary trends among non-Jewish religious thinkers. Thus, that section of the 1992 Catechism of the Catholic Church dealing with holy matrimony begins by stating: “The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered towards the good of the spouses and the procreation and education of offspring…. (II,7: §1601). And: “The initial community of life and love which constitutes the Married state… is written in the very nature of man and woman…. “ (§1603).

A few paragraphs later, the Catechism discusses the problematic aspect of relations between the sexes, suggesting that “domination” [i.e., male supremacy and power imbalance between the sexes] is a major source of discord: “Their union has always been threatened by discord, a spirit of domination, infidelity, jealousy and conflicts… the original communion between man and woman… that mutual attraction, the Creator’s own gift, changed into a relationship of domination and lust…” (§1606-07). (I would of course demur from the heading “marriage under the regime of sin.”)

Needless to say, As a Jew I read these words, not as religious teachings, but as words of wisdom, written by thoughtful human beings (in this case, largely by Josef Cardinal Ratzinger, now Pope Benedict XVI) confronting the eternal issues of human nature and the riddle of our existence. In particular, for purposes of the present discussion, I find a beautiful eloquence in the initial formulation, “a partnership of the whole of life.”

3. Practical Solutions

The issue of agunot is one that has plagued the halakhic world, particularly since the Emancipation and the option of civil marriage in the Western Diasporas made it possible for Jews to remarry without gittin. It is told that Prof. Saul Lieberman of JTS and Rav Soloveitchik held unofficial conversations about possible joint solutions to the problems of Jewish marriage and divorce in the US during the 1950s, but nothing came of them. Prof. Lieberman did, however, did introduce a clause into the Conservative ketubah, in which the husband agrees in advance to appear before a Rabbinic court as an adjunct condition of civil divorce.

One of the solutions battered around was that of tenai beget—a prenuptial agreement, in which the husband consented in advance to provide his wife with a divorce upon the fulfillment of certain conditions, such as separation for a certain given period of time. Rabbi Eliezer Berkowitz discussed the halakhic ramifications of this idea (one already mentioned in the Talmud, in Shabbat 51a) in his book Tenai benisuin uva-get. A similar idea has been promulgated by the rabbis of Tzohar as a solution for the Israeli public; a version of such a pre-nuptial agreement is distributed as a supplement to a book on marriage by Rav Eliashiv Knohl.

A recent book (in Hebrew) by Monique Susskind Goldberg, Za’akat Dalot, provides what is perhaps the most comprehensive survey of the whole subject to date, and inter alia presents a number of new ideas.

Turning to more radical proposals, in which the very nature of the halakhic relationship between the couple is restructured or reconstructed, one must begin with Zvi Zohar’s article about pilagshut in Akdamot 13. The context of his argument is really that of premarital sex, which has become increasingly common even within certain religious circles, but could be equally well applied to an alternative type of Jewish marriage. In brief, he asserts that there is no prohibition against sexual relations without huppah and kiddushin, provided only that the relationship is not licentious—i.e., that there is some sort of consensual, agreed monogamous relationship between the couple, whether for a longer or shorter term—and that the woman observes the laws of niddah and mikveh. This position is based upon a distinguished group of rishinim—Ramban, Rabad, Rashba—as well as, most famously in the age of the Polish aharonim, R. Yaakov Emden; it is, however, opposed by Rambam, who at very least sees such actions as violation of a mitzvah aseh. (see my own tripartite discussion of this issue in HY V (Rambam]: Vayeshev, Mishpatim, Vayakhel).

While this solution as such lacks the dignity and seriousness of marriage—indeed, the very term pilagesh (“concubine”) has rather sleezy connotations—it seems to me that he lays down some important groundwork: the institution of pilagesh may serve as the bottom storey for the edifice of an alternative, different halakhic structure of marriage; a second, parallel track for establishing man-woman relations.

Dr. Rachel Adler, in the final chapter of her book Engendering Judaism, proposes an alternative model for establishing marital partnership, based upon Talmudic models of business partnership. The two partners each place an article of personal significance in a bag, which they then lift up together, in a kind of joint kinyan sudar, declaring that they are beginning a new phase in life in which they are sharing their property and their lives. This model, like the others to be mentioned below, specifies that the marriage established is not based upon kinyan or traditional kiddushin, with its above-mentioned drawbacks, but rather upon egalitarian principles.

A scholarly couple from the University of Toronto, Professors Harry Fox and Tirzah Meacham (le-Beit Yoreh), recently published, in the Fourth Kolekh Volume, an article entitled “Kedusha be-Kiddushin” (the title is best translated as “Restoring the Holiness to Marriage”; i.e., restoring true holiness to the institution of kiddushin), in which they present their idea of a new kind of Shetar nisuim. This document, which they used at their own wedding some 35 years ago, establishes marriage on the basis of signing and giving one another a document (one of the three options mentioned in the opening mishnah of Kiddushin), but differs from kinyan shetar in that this shtar spells out the basic terms of the marriage, including its differences from standard kiddushin. First and foremost, kiddushin is not conceived as an act of “acquisition”; there is full equality of partners; divorce may be initiated by either partner, or upon fulfillment of certain pre-determined conditions (e.g. separation or the absence of one partner for a fixed period of time); the obligation of yibbum is specifically excluded by this pre-nuptial agreement; adultery is equally prohibited to husband and wife, and is defined as a “deal breaker” from either party.

Rabbi David Greenstein, head of the non-denominational Academy for Jewish Religion in New York City, proposes yet another model, outlined in an as-yet unpublished paper entitled “Equality and Sanctity: Rethinking Jewish Marriage in Theory and in Ceremony.” His mode of egalitarian kiddushin is based upon each partner declaring that they are giving self to the other as a spouse. Masekhet Kiddushin (6a) specifically proscribes such languages: e.g., in which the man says “I am your husband” or “I am your intended” (הריני בעלך, הריני ארוסך, הריני מקודש לך), or the woman says הריני מתקדשת לך, rather than their being phrased as an act of kinyan, in which the man acquires the woman. Greenstein suggests the formula הריני מתקדש/ת לך בטבעת זו כדת משה וישראל–“I herewith sanctify myself to you by this ring, according to the law of Moses and Israel”; i.e., very similar to the traditional formula, but in the passive rather than the active voice. I found that this model particularly appealed to me, both because of a certain elegant simplicity of the statement, and because it expresses in lucid terms the modern conception of marriage, in which each partner voluntarily gives themselves to the other, offering to share their life: a relationship based on mutual giving rather than acquisition. In practice, I could see this model being used in tandem with the Fox-Meacham shetar, reformulated either as pre-nuptial tennaim or, even better, as a communal takkanah.

I see all three of these options as possibilities for the restructuring of Jewish marriage. But beyond that, what is needed to begin making real halakhic change is some sort of takkanah declaring that this is the way; that this is an alternative track for sanctifying marriage; that couples married in this way will be considered married in a new way, rabbinically. Ideally, this would be done by a Rabbinic takkanah, or edict. But, given the conservative bent of contemporary rabbis (I recently presented these ideas at a friend’s Shabbat table and he said: “Yes, it’s good, and the poskim have the power and the wisdom to solve these problems”—but the problem is that the poskim, even the sympathetic, “liberal” ones like Rav Zalman Nehemiah Goldberg, don’t seem to have the daring or gumption to actually propose anything even a tenth that radical), another path must be found. I would propose the model of takkanat hakehillot: that is, an edict taken upon itself by some cohesive group, which sees itself as a community, from within the heart of the Orthodox community. Unfortunately, these things are judged as much ad hominem as they are on the basis of their substance. Neither Adler, nor Fox, nor Meacham, nor Greenstein, are perceived today as “insiders” within the Orthodox world (which, I might add, in no way diminishes my personal friendship with the latter three). Hence, such a takkanah must originate within an organization or congregation that is part of the “loyal opposition” within that world that sees itself as the guardian of the halakhah.

Several important questions require answers. One is a clear definition of the nature of the halut of this type of kiddushin. One possibility would be to understand it as a new category, a kind of kiddushin derabanan, but unlike what is usually understood by that term, not merely a lesser copy of Torah kiddushin, but one defined with different conditions, as mentioned above, viz. the parameters of kinyan, mutuality, etc. But perhaps one first needs to answer a prior question: can there be a ”Rabbinic kiddushin” which isn’t unilateral, or is the very concept an oxymoron? No doubt many conservative halakhists will automatically respond thus. The real test is whether that response is a seriously considered halakhic one, or essentially sociological— “it’s never been before, so how can we do it now?” Alternatively, perhaps one speak of nissuin without kiddushin—that is, recreating what Rambam calls the “pre-Sinaitic” mode of marriage, or that of Noachide marriage, but used by Jews (which is, in all significant respects, the basis of the pilagshut model suggested by Zohar)?

A second important question is: what will be the nature of adultery under this kind of marriage? I am not seeking a harsh, punitive approach to adultery as an end in itself, but any halakhic structure, or for that matter any legal rule, is defined in terms of consequences and sanctions. Ordinarily, adultery is defined in terms of sexual relations with a Jewish woman who is mekudeshet under traditional Torah law. Here, adultery will have a different status—offhand, the traditional categories of ni’uf and issur eshet ish won’t apply, because the Torah is a closed system of proscriptions and sanctions (or will it, if nissuin without kiddushin is possible?)—but it must be seen in grave and serious terms. One idea with which I have been toying is the following: that as part of the marriage ceremony the couple take an oath of fidelity (interestingly, one of the striking differences between Jewish and Christian marriage is the absence of exchange of oaths in the former; perhaps the time has come to introduce it), making adultery a sin of violating an oath. (I specifically mention oaths, because the sin of violating oaths is one of the few transgressions that, though not subject to karet, is classified as a “serious sins” viz. Yom Kippur.)

The road is still long; numerous details and difficult questions of principle still need to be worked out before a new conception of Jewish marriage becomes widely accepted within the halakhically loyal community. But the need for radical change cries out; I believe this to be one of the major challenges confronting the halakhah, if it is to continue to speak to modernly educated people.


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