A. Background

Jewish Law requires in principle, as part of the divorce (get) procedure, the voluntary participation of both husband and wife: divorce in Jewish law is an act of the parties, authorised by the religious court (Bet Din), not an act of the court itself. It is particularly difficult to effect a divorce where the husband refuses to participate: the wife is then termed "agunah" ("chained"), and is unable to enter into a subsequent religious marriage during the lifetime of the husband refusing her a divorce. If she obtains a civil divorce, and remarries civilly, that latter marriage is not recognised by Jewish religious law (halakhah); indeed, that subsequent union is regarded as adulterous, and involves substantial disabilities in religious law for any children (who have the status of "mamzerim"). Not infrequently, husbands either withhold the get out of malice or demand a substantial payment or acceptance of other terms as the price for granting it. This is widely regarded as an abuse, even by the rabbinic authorities who argue that they cannot prevent it.

B. Aims and Objectives

Aims
1 To analyse the principal arguments advanced towards a solution of the problem of the "agunah" both individually and in their inter-relationship.
2. To analyse the issues of authority within the halakhah currently obstructing the adoption of the above solutions.

Objectives
1 To assess the possible use of conditions in the marriage contract to terminate the marriage on the husband's refusal to provide a get.
2. To analyse the halakhic permissibility and effectiveness of forms of coercion used by Jewish courts to require a recalcitrant husband to provide a get.
3. To analyse the use of annulment to terminate the marriage on the husband's refusal to provide a get.
4. To investigate the origins and halakhic status of "consensus" as a condition of change within the halakhah.
5. To assess the possible revival of superseded traditions within the halakhah, notably the views of the Palestinian as against the Babylonian Talmud, and legislation of Gaonim rejected later by the Rishonim, on the grounds that the later rejection was based upon factual error regarding the preceding history or on ignorance of relevant earlier sources.
6. To assess the history of the use of emergency powers in this area, and the contemporary availability of such powers.

C. Research Questions

1. What is the status of earlier opinions which have fallen into neglect? R. Yose, in the Jerusalem Talmud, takes the view that a condition in the ketubah allowing the wife a unilateral right of divorce (for "hatred") was to be classified as "monetary", and therefore in conformity with the basic principle that "Contracting out of a Law contained in the Torah as to a monetary matter is valid". Rav Shlomo Riskin attaches great significance to this Palestinian tradition. There is nothing in the Babylonian Talmud which explicitly negates it. Nevertheless, many later authorities proceed as if conditions of this kind are self-evidently excluded. According to the principle of hilkheta kebatra'i ("the law is in accordance with the later generations"), where the views of the earlier authorities are recorded and well known and the later authorities disagree with them, we follow the view of the later authorities; however, this does not apply where the earlier opinion is in a previously unpublished responsum. What is unclear is the intermediate case (as here): the earlier opinion was indeed published, but has fallen into neglect: it is simply overlooked, not cited. Contemporary attempts to resolve the problem of the agunah have made considerable use of conditions imposing continuing maintenance payments (sometimes at a high level) on the recalcitrant husband, and obligating him to accept the decision of a bet din. But such conditions provide no remedy if the husband persists in his obduracy. The question arises as to whether a condition terminating the marriage in such circumstances, based upon the Palestinian tradition, might be revived.

2. What measures exactly did the Gaonim take in order to free the moredet? According to R. Sherira Gaon, "we compel him to grant her a divorce forthwith." This is normally taken to refer to physical coercion of the husband, and a theory was developed to reconcile such coerced consent with the principle of voluntary delivery of the get. However, there are other texts which suggest the possibility of a more direct involvement of the court. According to the Halakhot Gedolot (ascribed to Rav Shimon Kiara, 9th cent.): "... we grant her a bill of divorce immediately." Rav Shmuel ben Ali in the second half of the twelfth century writes: "they grant her an immediate divorce." A ketubah from the Cairo Genizah contains a clause: "... if this Maliha hates this Sa'id, her husband, and desires to leave his home, she ... shall go out by the authorization of the court and with the consent of our masters, the sages." Indeed, R. Asher b. Yehiel (Germany, 1250-1328) appears to have interpreted the Gaonic practice not as coercion but rather as annulment.

3. Does annulment remain open to contemporary Jewish courts, and if so on what grounds? The Talmud records a handful of cases of annulment of marriages (thus dispensing with the need for a divorce in order to terminate the relationship). Later authorities claim either that this power has disappeared entirely, or that it is confined to the cases recorded in the Talmud, which focus upon lack of consent to the original marriage and deliberate retraction of a get delivered to an agent for delivery but not yet delivered. Nevertheless, a doctrine of annulment based upon mistake has developed. A leading authority of the late 20th century, Rav Moshe Feinstein, wrote responsa regarding cases in which he annulled when the husband was incurably impotent or had been institutionalized before the marriage (Iggrot Moshe E.H. 1:79, 80). Some argue that the same principle ought to be applied in cases of domestic violence and even in the very circumstances of denial of a get, on the grounds that such a refusal "may very well be a sign of sadism that existed before the marriage."

4. There is a tradition in Jewish law according to which some institutions, though accepted by halakhic theory, are not implemented in halakhic practice. Technically permissible measures may thus be rejected in practice in the absence of a "consensus" favouring their application. In the fourteenth century, for example, Ribash (Resp. 399) was asked to authorise a communal enactment which would have annulled any purported marriage enter into without the presence of a minyan (10 adult males) and of the communal officials. He accepted that such a communal enactment was valid according to the Halakhah, but refused to give his authority to it as a matter practise, in the absence of the agreement of "all the halakhic authorities of the region concerned". He justified this with the argument that "only a "chip of the beam" [cf. Sanh. 7b] should reach me [i e., so that I do not take upon myself the full responsibility, but only part of it]." Both historical and dogmatic questions arise: what are the origins of this doctrine of consensus (some have suggested influence from the Islamic institution of ijma, mediated perhaps through Maimonides), and what is its halakhic status? It appears to conflict with the talmudic rule of majority decision, and its original status, at least, appears "sociological" rather than normative. Paradoxically, despite the frequent demand for "consensus", and the view that some issues cannot be resolved until the coming of the Messiah, authority to innovate is still accorded by many to a gadol hador (the "great sage" of the generation).

5. What is the status of arguments based upon historical error? Whereas the Gaonim had been prepared to coerce the husband of a wife who could no longer bear living with him, Rabbenu Tam (followed by later authorities) rejected such coercion on the grounds that there was no talmudic precedent for it. The traditional text of the Talmud has Amemar say, in such a case: "she is not coerced" (into marital compliance); we now know of a talmudic manuscript where Amemar's view is: "he is coerced (to give her a get)". This prompts the question: what is the status of opinions based on the traditional talmudic text where later manuscript evidence suggests that that text may be erroneous? Other questions regarding the status of opinions based upon historical error also arise: did the Rishonim have accurate information as to what the Gaonim actually did and on what authority they based themselves?

6. The Gaonic reforms are said by the Gaonic sources themselves to be prompted by fear of either "apostasy", or (Sherira Gaon): "Jewish women attached themselves to non-Jews to obtain a divorce through the use of force against their husbands". This is widely regarded as a reference to the possible intervention of Islamic courts. What is not clear is which of the following possibilities is contemplated: (a) conversion of the woman to Islam automatically terminating the earlier marriage; (b) conversion conferring a right to terminate the earlier marriage, but not automatically; (c) a Jewess seeking to marry a Muslim (without converting) applying to an Islamic court for termination of the prior Jewish marriage. This historical question prompts issues of contemporary application: does the principle of emergency legislation survive today, who can apply it and in what circumstances? How parallel is the contemporary fear that a woman refused a get will remarry under non-Orthodox or non-Jewish auspices? And does the fear of (a) domestic violence and (b) possible suicide justify, as some contemporary Rabbis have argued, suspension in particular cases of the need for a get ?

D Research Imperative & Context

D1 Imperative: The issue of the agunah has both practical and academic importance. It is probably the most hotly debated halakhic issue in contemporary Jewry. The distress caused to many women has generated public campaigns for reform and the creation of a number of rabbinical courts regarded as deviant by the mainstream. The need for reform is widely regarded as a touchstone of the capacity of Jewish law for continuing development. The issues of authority which currently impede such development have not hitherto been systematically examined: they are, however, of major importance not only for this particular issue, but for the future of Jewish law in general, including its application in the modern State of Israel.

D2 Research of Others: This issue has given rise to a fast-growing scholarly literature, in particular:

Bleich, J.D., "The Agunah Problem", in J.D. Bleich, Contemporary Halakhic Problems (New York: Ktav. 1977), pp.150-159.

Broyde, Michael J, "Error in the Creation of Jewish Marriages: Under what Circumstances Can Error in the Creation of a Marriage Void the Marriage without Requiring a Get according to Halacha", http://www.jlaw.com/Articles/KidusheiTaut.html

Broyde, Michael J., Marriage, Divorce and the Abandoned Wife in Jewish Law, Ktav, 2001.

Herring. B. and Auman, K., Prenuptial Agreement: Halakhic and Pastoral Considerations, Jason Aronson. 1999

Jachter, Rabbi Chaim, "Viable Solutions to the Aguna Problem", "Unaccepted Proposals to Solve the Aguna Problem", http://www.tabc.org/koltorah/aguna [since withdrawn but now available in his book: Gray Matter - Discourses in Contemporary Halacha, co-authored Ezra Frazer, 2000, ISBN 0-9670705-3-8 (privately published).

Morgenstern, R. Moshe: articles at http://www.agunah.com [since withdrawn but now available in expanded form in his privately published book: HATOROT AGUNOT -Sexual Freedom from a Dead Marriage].

Novak, D., "Annulment in Lieu of Divorce", The Jewish Law Annual 4 (1981), 188-206.

Porter, J.N., Women in Chains. A Sourcebook on the Agunah (Northvale NJ: Aronson, 1995).

Riskin, S., Women and Jewish Divorce: the Rebellious Wife, the Agunah and the Right of Women to Initiate Divorce in Jewish Law. Hoboken, NJ: Ktav, 1989.

The Jewish Law Annual Vol. 4 (1981): issue devoted to the Wife's Right to Divorce Relevant articles from contemporary halakhic and mishpat ivri journals in Israel, esp. Tehumin and Shenaton Ha-Mishpat Ha-Ivri.

D3 Research of Principal Applicant: The Director of the Project, Professor Bernard Jackson, is Alliance Professor of Modern Jewish Studies at the University of Manchester, and Co-Director of the Centre of Jewish Studies. He has written extensively on the history and philosophy of Jewish law; has held the Gruss Visiting Professorship in Talmudic Legal Studies at Harvard University; and is a past President and Chairman of the Jewish Law Association. He was the founder editor of The Jewish Law Annual. He has been active recently in this area of research:

o "Moredet: Problems of History and Authority", in The Zutphen Conference Volume, ed. H. Gamoran (Binghamton: Global Publications, 2001; JLAS XII), 103-123.

o "Agunah and the Problem of Authority", http://www.accentuate.freewire.co.uk/hebfont/Melilah/agunah2.htm. Expanded and documented version in preparation.

o "Mishpat Ivri, Halakhah and Legal Philosophy: Agunah and the Theory of 'Legal Sources'", JSIJ - Jewish Studies, an Internet Journal 1 (2002), 69-107, at http://www.biu.ac.il/JS/JSIJ/1-2002/Jackson.pdf

o "Agunah: Problems of History and Authority", Paper delivered at JOFA Fourth International Conference on Feminism and Orthodoxy, New York, November 10th, 2002, http://www.mucjs.org/jofaweb.htm

D4 Academic Context at Manchester: the Centre for Jewish Studies at Manchester is particularly strong in rabbinics, enjoying the services of Professor Philip Alexander, Dr. Alan Unterman and Prof. Alexander Samely. There is a rabbinics seminar for delivery of research papers and a group of research students involved in the area, with theses in progress on topics including The Concept of Marit Ayin in the Halakhah and The Messianic Claims of the Lubavitcher Rebbe.

E Research Methods

Halakhic research is much aided by the availability of the Responsa Project CD-ROM of Bar-Ilan University (held in the Rylands Library), which contains a near comprehensive library of classical Jewish sources, readily searchable. Researchers will take a critical approach to these texts, using them to pose the relevant historical and analytical/dogmatic issues outlined above. However, the investigation of such issues requires more than a secular "legal" approach. At many points, they raise the very question of the religious character of the Halakhah, and the status of its authorities. The Halakhah cannot be separated from its theological roots; there is a need to take account also of what has been called the "jurisprudence of revelation".