Talmudic pages

Gittin 88

Forced divorce.

A well-known principle of the Talmud is dina d’malkhuta dina — the law of the land is the law. The rabbis expected Jews to abide by the rules of any society in which they lived, and this principle has remained unchanged, from the Sasanian Empire all the way to the United States of America. But the rabbis of the Talmud also had a sense that there were some matters that should be decided internally in the Jewish community, where the external authorities should not interfere. Divorce was one of these internal Jewish matters. Here’s a mishnah from today’s daf:

A bill of divorce that the husband was compelled by the court to write: If he was compelled by a Jewish court, it is valid. But if he was compelled by a gentile court, it is not valid.

Only Jewish courts can compel divorces, asserts the mishnah. Immediately, the Gemara brings a teaching from Shmuel that complicates this simple dichotomy. He argues that some divorces ordered by a Jewish court are not valid, while some divorces ordered by non-Jewish courts might carry weight:

Rav Nahman says that Shmuel says: With regard to a bill of divorce that the husband was compelled by a Jewish court to give his wife: If they did so lawfully, it is valid. If they did so unlawfully, the bill of divorce is invalid, but it disqualifies (her from marrying a priest after her husband’s death).

And when a gentile court compels the divorce: If they did so lawfully, it’s invalid, but it also disqualifies the wife (from marrying a priest, should her husband die). If they did so unlawfully, it (is invalid and) does not have even the trace of a bill of divorce.

A man might be forced by a court to divorce his wife for a whole host of reasons, but the primary one is that the marriage violates Jewish law. Suppose, for instance, that a couple discovers post-huppah that they are closely related. Or that the woman, who thought she was divorced from her previous husband, was not actually legally divorced.

These are what the Gemara calls lawfully compelled divorces. Cases where the court compels a divorce but nothing in Jewish law otherwise requires it are unlawfully compelled divorces.

Shmuel says that when Jews compel a lawful divorce it is definitely valid and when gentiles compel an unlawful divorce it is definitely invalid. But there are two other possibilities here: A Jewish court compels an unlawful divorce or a gentile court compels a lawful divorce. In those cases, Shmuel gives an intermediary ruling: The divorce is invalid and the couple stays married, but should the husband pass away the wife is considered like a divorcee in that she cannot marry a priest (who can marry a widow but not a divorcee).

Immediately, the Gemara takes issue with Shmuel’s ruling. A couple is either divorced or not divorced, the sages argue, there is no middle position. If they’re not divorced, and if he dies, then the widow should be free to marry a priest. 

The Gemara brings a second teaching that complicates things even further:

Rav Mesharshiyya says: By Torah law a bill of divorce compelled by gentiles is valid. And why do the sages say it is invalid? So that a woman will not go to a gentile to release herself from her husband.

Rav Mesharshiyya casts our mishnah in an entirely different light. He claims that by Torah law we should recognize divorces compelled by gentile courts. Yet the sages declared them invalid because they did not want wives to use the non-Jewish courts to release themselves from their husbands. If the mishnah denies authority over divorce to non-Jews, here we see an anxiety about giving that power to Jewish women.

But Rav Mesharshiyya’s teaching is also called into question — ironically, because it seems to disagree with Shmuel’s opinion, which the Gemara has already identified as problematic. In fact, the Gemara asserts, that statement quoted in the name of Rav Mesharshiyya is an out and out mistake. The teaching is thrown out, and we can continue to assume the Torah agrees with the rabbis that gentile courts cannot compel Jewish divorces.

That still leaves us with the problem of Shmuel’s assertion that a woman can be, essentially, half-divorced. How can we explain this? The final answer in the Gemara is that Shmuel’s position is a kind of hedge. One might, the rabbis opine, be confused and think that divorce lawfully ordered by a gentile court was in fact ordered by a Jewish court (which, after all, is better positioned to know when Jewish law requires a divorce). And that, in turn, might cause people to think that Jewish courts have no authority to compel divorces.

The Talmud is obviously a rabbinic work, made by and for rabbis, and in which the rabbis are seen as both masters and stewards of divine law. In so many talmudic arguments, they are to be found confidently and comfortably arguing the finer points of law, secure in their individual and collective authority and the sanctity of their mission. But today’s discussion shows something different — an anxiety that rabbinic authority can be eroded by other actors, from the non-Jewish authorities surrounding them to the women who live alongside them. In such cases, rulings are made to bolster that authority, to protect the rabbis and, by extension, the divine law they guard.

Read all of Gittin 88 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 12th, 2023. If you are interested in receiving the newsletter, sign up here.

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