Monday, December 22, 2008

Agunos: The Problem & Solution

Tzivia has been taking an introduction to Taldmud class at HU, where she's doing mechina. The final isn't a test, but a thesis paper, on pretty much anything they want in Judaism, with, obviously, roots in the Gemara (not excactly sure what that means...). I have been helping my wife on the topic she chose, takanos, while using ksuba and agunah as her rxamples.
For those who don't know, an agunah is a woman is "chained" (the literal meaning) to her marriage, there is no way for her to get out of it (the Torah says that the man has to give her the get). Either the husband disappeared, or he refuses to give her a get. Fortunately, the former is not so common. Sadly, the second one is more common than it has ever been.
It seems that everyone (rabbis, non-rabbis, people who think they're rabbis...) has tried to come up with something to get rid of the agunah situation, but for one reason or another, it's shot down.

The question is though, why does something need to be done? Why do we need to think of a new halcha, takana?

No, no, I'm not saying agunah is good. I'm saying that maybe we should revert to something of old. There is already something to be done. The Gemara (Kiddushin 50a, and about four or five other places including Bava Basra, Arachin, Gittin) says, "we force him until he says, 'I'll do it.'" According to pretty much everybody (Rambam Hil. Gerushin 2:20; Tur Even Ha'ezer Siman 134 (I'm pretty sure that's the siman)), "force" means to beat the crap out of the guy. It was used in the times of the gemara, geonim, rishonim and even acharonim. So why don't we use it today?
Great question. And the answer I got from two seperate people today (one of which, I'm told, has been involved with agunah work, and the other a rabbi)? Because governments are full of leftists who don't like hitting people. The rabbi said it a little nicer, but that's basically waht he meant. People are getting more politically correct. Of course we should try to avoid it if we can, like imprison him, fine/tax him, etc., but if none of these work, then hey, we shouldn't just stop there, especially when the halacha says not to! Halacha says to beat him, so why aren't we? Because the government is against hitting people, as is understandable, but is sometimes needed.
The beating is only allowed though, when the husband is required to give a get. If he is not required, no beating. I must say though, I would think most of the agunah cases are, in fact, requiring the husband to give a get. I've read a few cases where the husband is abusing and beating her -- clearly a case where he would be obligated.
I did hear though, that there might be a few secret mafias around beating up recalcitrant husband who refuse to give a get. That is good. But that fact that it needs to be secret...?
A few of the things I have read have been bashing the rabbis. "The rabbis are all selfish," "the rabbis don't care about agunahs," "If they cared, they make a takana or something,"etc. etc. Listen, I don't know these rabbis, it could be they really are as seflish as people are saying, and really they could do something. I do know one thing though: It's hard to change halacha. Sure, we can try to make a takana, passively not doing anything ("from now on we won't do this...," "from now on, this is assur...," etc.), but to actively add something to halacha can, and is, to my knowledge, very questionable. I don't think its fair to blame the rabbis for not doing anything, not trying to find a loophole. It just might be that, nebach, there's no way to get an agunah a get, except by the husbands will. I don't like it eiter, and I don't think it's fair, but that's the Torah of God, and for whatever reason He decided it to be this way. I think rabbis obviously should try to find something, but shouldn't be blamed for not finding anything. Believe it or not, it's kinda hard to make up halachos.
Besides, as I said before, there is a beautiful way that has worked for a long time, and I think that should be put back in use.


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