IB World Religions 6.6.2. Ritual and Ethical Mitzvot: Marriage, Divorce and the Agunah Problem Notes

6.6.2. Ritual and Ethical Mitzvot: Marriage, Divorce and the Agunah Problem

Ritual and ethical mitzvot

1. Jewish tradition counts 613 mitzvot (commandments) in the Torah and sorts them in more than one way. The most consequential division is between commandments owed to God and commandments owed to other people.
2. The Hebrew terms are bein adam la-Makom, between a person and the Place, which is a name for God, and bein adam la-chavero, between a person and their fellow.
3. The Ten Commandments (Exodus 20, Deuteronomy 5) show that the two classes are not kept apart. The first tablet's commands concern God and the second's concern parents, life, marriage, property and speech, and both were given in one revelation.
4. The classification matters because the movements treat the classes differently. Every Jewish tradition holds the ethical mitzvot binding without exception.
5. Only Orthodox and Ultra-Orthodox Judaism holds the ritual mitzvot binding in the same permanent way. Conservative, Masorti, Reform and Liberal Judaism holds that a ritual mitzvah may be modified or set aside where its purpose is judged to have lapsed.
6. Marriage and divorce sit across that line, which is why they are the sharpest test case. They are ritual acts governed by ritual law, and their consequences are unambiguously ethical.

Marriage as covenant and contract

1. Jewish marriage is called kiddushin, sanctification, and the word signals that the couple are set apart for one another as holy things are set apart for their purpose. It is a religious status rather than an arrangement between two private people.
2. Marriage is also a legal act with terms. The ketubah (marriage contract) records the husband's obligations to his wife, including maintenance and a settlement payable on divorce or on his death, and it declares the marriage made according to the Law of Moses and Israel.
3. Those obligations are ethical rather than decorative. The classic list of food, clothing and conjugal rights is drawn from Exodus 21:10, and rabbinic law treats withholding them as grounds on which a wife may demand release.
4. The tradition treats marriage as the normal adult state. P'ru u'rvu, "be fruitful and multiply" (Genesis 1:28), is counted as the first commandment, and Genesis 2:18 gives companionship as marriage's other purpose.
5. Reform and Liberal Judaism keeps the ceremony and rewrites the contract. Many congregations use an egalitarian ketubah in which both partners undertake the same obligations, and the Reform, Liberal, Reconstructionist and Conservative movements conduct same-sex marriages, which Orthodox authorities do not.
6. Orthodox authorities hold the traditional form fixed for legal reasons. Because kiddushin takes effect through the husband's act and declaration, changing the formula is held to risk making the marriage invalid rather than merely unconventional.

The Jewish home

1. Jewish ethics treats the household rather than the synagogue as the main place where the tradition is transmitted. The home is sometimes called a mikdash me'at, a small sanctuary.
2. Parents carry a specific duty to teach. The V'ahavta paragraph of the Shema commands teaching the words diligently to one's children, which the tradition reads as a parental obligation and not a school's.
3. Children owe honour and reverence to parents (Exodus 20:12, Leviticus 19:3). Rabbinic law treats this as a lifelong debt that includes care for a parent in old age.
4. Shalom bayit, the peace of the household, operates as a working legal principle and not only as a sentiment. Rabbis have permitted departures from ordinary practice in its name.
5. The tradition names domestic wrongs plainly. Medieval and modern responsa treat a husband who strikes his wife as a man who may be compelled to divorce her, and rabbinic bodies across the movements have issued statements on domestic abuse.
6. Hospitality is treated as an ethical mitzvah of the home. Hachnasat orchim, welcoming guests, is modelled on Abraham running to meet three strangers (Genesis 18), which is one reason Shabbat and festival meals are open occasions.

Divorce and the get

1. Judaism permits divorce and does not celebrate it. Deuteronomy 24:1 provides for a document of severance, and the Talmud says the altar sheds tears when a first marriage ends.
2. The instrument is the get, a document written for one specific couple, which the husband gives to the wife in the presence of a Beth Din. It is his act, given freely, and the court supervises rather than issues it.
3. The requirement was originally protective. The document proved a woman's freedom to remarry, in a legal world where a dismissed wife would otherwise have had no evidence of her status.
4. Ashkenazi practice narrowed the husband's power considerably. The ruling attributed to Rabbenu Gershom around the year 1000 forbade divorcing a wife against her will, so both consents came to be needed.
5. An Orthodox synagogue will not conduct a remarriage without a get, whatever a civil court has decided. A civil divorce ends the marriage in state law and leaves it fully intact in Jewish law.
6. The consequences fall unequally on the two spouses. A child born to a still married woman by a man not her husband is a mamzer, barred by halakhah from marrying most other Jews, while a married man's child by an unmarried woman carries no such status.

The agunah problem

1. An agunah is a woman anchored to a marriage she cannot leave. The classic case was a wife whose husband had vanished at sea or in war with no proof of his death.
2. Modern usage covers the commoner case of a husband who is present and refuses. Refusal is sometimes used deliberately as leverage in disputes over money or over custody of children.
3. The problem is structural rather than accidental. Because the get must be the husband's free act, no rabbinic body can simply declare the marriage over without casting doubt on every marriage and child that follows.
4. Orthodox authorities have worked at it from inside the law. Courts publicize refusers, communities exclude them from honours and functions, and rabbinic courts in Israel can impose sanctions including imprisonment.
5. Halakhic prenuptial agreements are now the main preventive tool. Promoted widely in Modern Orthodoxy since the 1990s, they oblige a husband to substantial daily maintenance payments until he gives the get, and civil courts can enforce that obligation.
6. A minority of authorities have revived hafka'at kiddushin, the rabbinic power to annul a marriage retroactively. It is used sparingly, because most Orthodox decisors doubt that contemporary courts hold that power.
7. Reform and Liberal Judaism resolved the problem by legal change. Reform accepts a civil divorce as ending the marriage, and some Liberal and Masorti authorities issue their own documents of release, so their members cannot be chained by a refusal.

Interfaith marriage and assimilation

1. Jewish law does not recognize a marriage between a Jew and a non-Jew. Orthodox, Conservative and Masorti rabbis will not officiate at one, and neither will many Liberal rabbis.
2. The prohibition is read from Deuteronomy 7:3, where it is given as protection against the loss of covenant loyalty. It is treated as a question about the boundary of the covenant people rather than a judgement on the non-Jewish partner.
3. Rates of marriage outside the community rose sharply in the diaspora during the later twentieth century. Surveys in the United States have reported that a clear majority of recent marriages among non-Orthodox Jews are to a partner who is not Jewish.
4. The movements have responded in different directions. Reform in North America accepted patrilineal descent in 1983 and many of its rabbis now officiate at interfaith weddings, Conservative rabbis do not officiate while many of their congregations welcome interfaith families, and Orthodoxy treats the line as fixed.
5. The ethical argument inside the community runs both ways. Some hold that a covenant people has an obligation to continue and that welcoming interfaith families is how that is done, and others hold that accommodating the practice hastens the loss it responds to.
6. Behind the debate lies the older question of assimilation. Marriage is where the community's long argument about how far to take on the surrounding culture becomes one family's decision rather than a communal policy.