Rabbinic and Post-Rabbinic Divorce
Over time the rabbis increased the wife's power in a marriage, yet maintained the absolute right of the husband to grant a divorce.
Where We Are Now
By such legal fiction, the old theory of man's right remained intact, whereas the wife's real power increased. Thus, a pattern emerges. In the case of the husband, the original right was open-ended and absolutely private, but the historical development of the law served to continually limit it. In the case of the wife, there was but an initial hint of some sort of rights.
As halakhah [Jewish law] developed through the post-biblical generations, wider powers accrued to her. This unmistakable pattern is sufficient to refute the simple-minded charges that the rabbis seized every opportunity to keep women powerless. Quite the reverse is true; considering all the power the rabbis had--what with the biblical guidelines and their own transfer of male authority from one generation to another--there is an impressive degree of sensitivity and benevolence in the unfolding of the law. The growing set of obligations of the husband to his wife and the increasing formalization of her rights to redress through the beit din [Jewish court] are clear indicators of an attitude of concern for the women.
Still, we are left with some large and serious problems. First, instead of grappling directly with the sexist principle that only a man had the right to divorce, the rabbis used various legal fictions to subvert its original intent. The exclusive right as derived from the Bible was never challenged or abolished; it was simply chiseled away bit by bit. As a result, the rabbinic authorities in any given generation could revert back to the original notion of the husband's power over the wife.
That brings us the second problem: that a woman is not empowered to present a get [Jewish bill of divorce] to her husband and thereby divorce him. A legal theory supporting this is that since he is the one who creates the marriage bond, he must also be the one to sever it. There is no proceeding in Jewish law whereby a divorce is granted by a court in the absence or without the consent of the husband. Thus, there is great potential for abuse built into this law--and there have been, in each generation, countless sinister tales of resistant husbands' extortion and delay.
Moreover, this aspect of the law has led to the tragic situation of the agunah ("anchored wife"), a woman whose husband has deserted her, or is insane, missing, or presumed dead (though his death has not been verified by the requisite two witnesses). In every generation, the rabbis tried to alleviate the plight of the agunah….
Thus, in an attempt to close the gap between men's power and women's powerlessness in the divorce issue, the rabbis tried hard, but not hard enough. It would have taken little more collective maturity to close the gap altogether, to create a situation of real equality under the law. The rabbis assumed wide powers of interpretation--and even of innovation--in situations where the general needs of the community called for accommodation rather than rationalization of an unwieldy situation. Failure of contemporary rabbis to acknowledge that past improvements in divorce law are but part of a continuous process--"on the way to becoming"--leads one to conclude that, in their heart of hearts, many would like the gap to exist, apologetics notwithstanding.
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