Splitting a Ruling (Column 453)
A few days ago I saw the following article, reporting on a rabbinical court that annulled the betrothal (kiddushin) of a man who came out of the closet, and on that basis permitted his ex-wife to marry a kohen even though she had received a get from her previous husband. The claim was that had she known he was gay she would not have consented to marry him, and therefore her consent was in error and the kiddushin are retroactively void. Consequently, she does not now have the status of a divorcée but of an unmarried woman, and therefore she is permitted to a kohen. I shall restrain myself from responding to the exquisitely moving declaration cited there, to the effect that this ruling proves that the Rabbinate is attuned to the needs of couples who marry according to halakhah. I will merely note that in my innocence I thought that halakhically she is single, but it turns out that in their view she is actually a married woman—only they did her a favor and permitted her because they are attentive to the needs of couples who marry according to halakhah. This is not merely an aside; it is intimately connected to the discussion I wish to conduct here.
Palginan Psikta
Here I wish to touch on a statement by the head of the court, Rabbi Zevadya Cohen, cited in the article:
Rabbi Cohen, head of the Tel Aviv rabbinical courts, acceded to the woman’s request and, in an exceptional step, attaching to his reasoning additional halakhic considerations, annulled the marriage and ruled that she may marry her partner, who is a kohen. The senior judge emphasized in his decision that one could not have accepted this claim in order to permit a married woman, an “eshet ish,” to marry another man—but after she in any case divorced in accordance with law and is already single according to all views, one can employ the argument of “mekach ta’ut” (a transaction in error) so that she may marry a kohen.
Note the phrasing (by the journalist) that the head of the court “acceded to the woman’s request.” Apparently this is due to his sensitivity to the needs of couples who marry according to halakhah. For I, in my innocence, thought that he is not acceding to requests here but determining her halakhic status—and that is her status as a matter of fact, irrespective of her requests and needs.
In any case, I was not surprised when yesterday I was asked my opinion about this statement (see also here): is it reasonable to split rulings with respect to permitting a divorcée to a kohen versus permitting a married woman to the public at large? I’ll start with the conclusion: to me it is obvious that it is not. In my understanding, this is an absurd and illogical claim, though—as I wrote to the questioner—this approach is indeed accepted in the halakhic world.
I note that this division, which I shall call here palginan psikta (division of rulings), continues the odd formulations I described above. The court compassionately acceded to the request of the unfortunate divorcée, but another woman who needs to be released from agunah will not receive from them that special gift and compassion. From this “palginan” it emerges that this is not the woman’s halakhic status; otherwise, an agunah who is in such a situation would also receive a permit. It is apparently just a gift from the merciful Chief Rabbinate, due to its famed consideration for the needs of couples who marry according to halakhah, on account of which they are willing to permit a divorcée to a kohen despite the prohibition imposed by the Torah. How great are Your works, O Chief Rabbinate!! They follow the way of our forefather Abraham: just as he left God to honor his guests, so too the Rabbinate overlooks a prohibition that God imposed in His Torah for the sake of unfortunate people.
In passing I only wonder where that same consideration, so characteristic of this compassionate institution—the walking in the ways of our forefather Abraham—can be found when it comes to agunot. Why should a woman who does not receive a get from her husband who turned out to be gay not receive the same permit? Did she not marry according to halakhah? Is she not unfortunate? Seemingly she is far more unfortunate, for she cannot marry at all, whereas the other one merely cannot marry a kohen. Well, a merciful and compassionate heart is no guarantee of rational conduct (and sometimes it even conflicts with it).
Palginan Psikta and Doubts
As you can see, I could not quite restrain myself (“bal teshaktzu”). But if we now turn to the matter itself, I wish to discuss here the approach of palginan psikta as such. As I wrote, I cannot deny that this is an accepted halakhic approach, but I still wish to argue that it is utterly illogical and ought to disappear from the world (i iyashar chili—avatliniah, “were it in my power, I would abolish it”).
At first glance it would seem that such reasoning is based on viewing this as a doubtful situation, to which the laws of doubt apply. If you add that permitting a married woman to the public at large is a severe prohibition (karet), whereas permitting a divorcée to a kohen is a prohibition of a simple negative commandment (lav), you will conclude that there is no justification to be lenient in cases of doubt in the former. But regarding a divorcée to a kohen (which, as noted, is only a lav and not a prohibition of ervah), there is justification to rely on the doubt and be lenient.
My comments on this assumption are divided into two distinct planes of discussion:
- Why assume this is a case of doubt? Do the judges have a significant reason to think that the woman’s consent in such a situation was not given in error? Do they think it is not clear that this is a case of mekach ta’ut (transaction in error)?
- Even if the court had a doubt, there is still no justification to distinguish between permitting an agunah to the market and permitting a divorcée to a kohen.
I will now discuss these two points in turn.
- Is this a case of doubt?
In many cases judges treat such a situation as doubtful because different opinions exist in the halakhic literature. In such a case, it is a sfeka d’dina (or of authorities). Sometimes the doubt is a doubt about the facts themselves: they do not know whether this is truly an error such that had the woman known of it she would not have consented. The doubt may concern this particular woman (the basic doubt) or women in general (of course there are such and such, but it is unclear who is the “reasonable woman”).
One must understand that basically this is a factual question. The discussion here is whether the woman before us (and perhaps also “the reasonable woman”) who found herself in such a situation consented in error or not. Translation: would this woman (or the reasonable woman) in such a situation, had it been known to her that her husband is gay, withdraw her consent to the kiddushin, or would she not have consented in the first place?
But this is a question that can be determined factually. One can conduct a survey among women and ask them what they would say if they discovered such a fact about their partners. I assume most would answer that they would not want him as a partner—but that is merely my opinion and assessment (and as a long-time resident of Mars, my understanding of all that is hidden in the souls of the inhabitants of Venus is not especially deep. See on this in columns 390, 446, and 452). It is possible and advisable to check this in the field.
From here the conclusion follows that examining the halakhic literature on such a question is irrelevant, for two reasons that are, in a sense, two sides of the same coin: (A) Women’s views depend on time and place, and one cannot learn from women in one period and place to women in another period and place. Women in twenty-first-century Israel are not like women in fourth- or fifth-century Babylonia, or even in eighteenth-century Poland or Marrakesh. (B) The halakhic literature and precedents have no authority in matters of fact.
Of course, part of the lack of authority (side B of the coin) stems from the fact that this is a factual question that varies across circumstances and societies (side A). But beyond that, by definition halakhic authority is not relevant to factual determinations; therefore there is, from the outset, no authority in such questions, and no explanations or changes are needed to justify this. The same applies to precedents in such questions. Usually these are rulings by non-binding bodies (post-Talmudic decisors), and therefore even in halakhic questions they have no mandatory, binding status. Moreover, if indeed changes have occurred in women’s desires and views, then even were this a ruling by a competent institution (the Sanhedrin or the Talmud), it would have no binding force. But, as noted, even if no changes occurred between women’s views in different circumstances—still, I am entitled to form my own position on this issue without regard to what all the great decisors wrote (including the Sanhedrin or the Talmud itself), for factual determinations are entrusted to the judge who sits in judgment, and to him alone. There is no authority and no precedents regarding facts.
The conclusion is that even if different opinions exist among the decisors with respect to this question, their existence does not make the situation doubtful. A doubt can exist here only if the judge sitting on this specific case is uncertain whether women indeed would rescind their consent in such a situation. If so, this is at most a doubt about the facts and not a sfeka d’dina. I will return to this point below.
- The distinction between the situations
Assume the judge is indeed uncertain, and he is now in a state of factual doubt: did the woman before him withdraw her initial consent or not? If that is the case, he should rule stringently also regarding permitting the woman to a kohen. After all, this is a biblical prohibition (a divorcée to a kohen), and the rule is that doubts in Torah law are ruled stringently. This means that if the judge is willing to be lenient regarding permitting a divorcée to a kohen, that indicates that in his view this is not a doubtful case. But if so, why is he stringent in cases where the issue is permitting the woman to the market? If there is no doubt that the woman consented in error, then he can also permit her to marry.
[Parenthetically I note that if this were a sfeka d’ravre’uta (doubt arising from a dispute among authorities), perhaps one could say that one may rely on Decisor A’s view where the law is not so severe, but where the law is severe one should be concerned for Decisor B. Though even there, to my mind, this is not logical; and beyond that I also argue in my article on autonomy that, in principle, there is no such thing as sfeka d’ravre’uta, at least when dealing with post-Talmudic decisors. If you yourself are not in doubt, you must act according to what you think; and if you are in doubt, then it is your doubt and not a doubt derived from those decisors who dispute the matter.]
It may be that the judge is uncertain, but the doubt is not balanced. He tends to think that the kiddushin are void in such a case (i.e., the woman would not have consented), but he is concerned for a slight possibility that the situation is not so. That is, of course, not a case of doubt; therefore he should decide according to the side that weighs more (as we follow the majority). But that is the decision in every case, not only in lighter prohibitions. Seemingly he should also release a woman from her agunah status and not only a divorcée to a kohen, for that is the law. A doubt exists only when the two sides are evenly balanced. If they are not balanced, one must decide according to the side that weighs more. In any case, however one decides, I see no room to distinguish between a severe and a light prohibition (particularly if both are biblical).
There are situations where the Sages imposed special stringencies in severe laws such as matters of ervah (for example, in doubtful mamzer status, and the elevated standards they set regarding lineage, etc.). But that can be done only by a competent body (the Sanhedrin or the Talmud). In such a case it simply adds another law to the halakhic “Shulchan Aruch” that one must be stringent regarding lineage. But a judge today, who is not part of a competent body and cannot enact ordinances, must act according to the fixed halakhic rules. Even if it seems to him fitting to be stringent in such a case, that is not within his authority. If the woman is permitted according to halakhah, he cannot forbid her if he lacks the authority to innovate laws, even if he thinks it would be very fitting to do so. If she is permitted according to halakhah, he is supposed to instruct her that she is permitted (and if he wishes, he may add an obiter dictum in the ruling).
The Talmud’s words on annulling kiddushin by “mekach ta’ut”
The Talmud itself states (Bava Kamma 110b–111a):
“But if so, a yevama who fell before a man afflicted with boils (mukeh shchin) should go out without chalitzah, for it was with this in mind that she did not sanctify herself [i.e., would not have consented to marry in the first place]. There, we are witnesses that she is content with any partner whatsoever, in accordance with Reish Lakish, who says: ‘It is better to sit as two than to sit as a widow [alone].’”
The Talmud rules that we do not annul a woman’s kiddushin on the grounds that those kiddushin led to a situation in which her husband’s brother, who is a mukeh shchin, must perform levirate marriage with her. The reason given is the well-known halakhic presumption: “tav le-meitav tan du mi-le-meitav armelu”—a woman prefers to be in a relationship at any price, even if she finds herself living with a partner who is a mukeh shchin, and the like. Seemingly this is a sweeping claim that one should never annul a woman’s kiddushin, for any information that might come to light, however grave, would not lead to rescission of her consent.
In light of this sugya, most rabbinical courts refrain in nearly all cases from annulling kiddushin on claims of mekach ta’ut. When we needed to do so and annulled kiddushin on the basis of mekach ta’ut or of umdana (see my article summarizing that ruling and explaining the difference between them), we were met with harsh criticism, mainly on the basis of this Talmudic passage. See on this columns 147–148 and the references there.
My basic claim with respect to such annulment was twofold: (1) In the Talmud itself one sees that in principle kiddushin are subject to annulment, were it not for the presumption. (2) This presumption is a factual determination and, as such, should be examined in the time and place in which we operate (and in fact with respect to the particular woman before us). There is no meaning to determinations by decisors from other times and places, not even to the Talmud. Even if women in Babylonia at that time preferred a relationship at any price, does that prove it is so for women in our day? Why think so? Do women’s (and people’s) views not change over time?!
Incidentally, even in that sugya there are opinions that distinguish in their rulings between different contexts. Among the Rishonim and Acharonim there are those who maintain that one can annul the kiddushin in exceptional cases (for example, when the levir converted to another religion, etc.). Therefore, at times, courts resort to such annulment, but usually this is done to release agunot or for mamzerut issues, and not to permit the woman to marry. Some decisors wrote that the permit when the woman finds herself with a mukeh shchin applies when the mukeh shchin is the levir, but not when the husband himself is a mukeh shchin. That is, it is a permit to exempt her from levirate marriage but not to permit her to marry—precisely as in our case. Here you have a precedent for Rabbi Zevadya Cohen’s approach. He too annuls the kiddushin only when it is a matter of permitting mamzerim or of agunah in retrospect, but does not permit a woman to the market on the basis of such a consideration.
But as noted, even if such precedents exist (and there are many), in my eyes they are utterly illogical. I do not accept the approach of palginan psikta for logical reasons (detailed above), even if it has precedents. Such a permit is not a gift the judge bestows upon the woman; it is her halakhic-legal status. If that is indeed her status—then any woman in such a situation is permitted; and if it is not her status—then no one should be permitted.
Leniency in Times of Exigency
A similar question can be raised with respect to lenient rulings in times of exigency (sha’at ha-dechak). This approach is well grounded in halakhah, and its source is already in the Talmud, where we find in several places: “It is proper to rely on Rabbi Shimon in a time of exigency” (see my article on leniency and stringency). Here too, ostensibly one should ask: if the halakhah is X even though there is an opinion that holds Y, why is it permitted in a time of exigency to rely on those who hold Y? How is that different from simply permitting a prohibition in a time of exigency? Seemingly, even leniency in exigency is a precedent for the approach of palginan psikta.
In that article I cited that the Rema, in the introduction to Torat HaOlah, wrote that he does not permit anything in a time of exigency unless the matter is permitted by law. In such a situation one may instruct stringency in normal circumstances, and in a time of exigency one may follow the primary law. But this too, to my mind, is puzzling—albeit in the opposite direction. A decisor is not authorized to instruct an obligation to be stringent; at most he may recommend that the questioner be stringent. When asked what the law is, he must answer what the law states (in his view). Stringencies are a matter for the individual and not for the decisor. Only the Sanhedrin can add clauses to the law and turn what is “fitting” into something binding.
I explained there that if it is a case of doubt in the ruling, perhaps this can be understood. As a rule, in doubt one must be stringent (at least in biblical law), but in a time of exigency one may be lenient. One may object here as well: the rule that biblical doubts are ruled stringently is part of the law—so how can one violate the law in a time of exigency? To this I answered that perhaps the rule permitting leniency in a time of exigency precedes the rule that biblical doubts are ruled stringently. That is, the rule of stringency in doubt instructs us that if we have no way to decide between the two sides we must be stringent (in biblical law). But if there is a way to decide (even if not to decide what the “true law” is, but to reach a halakhic instruction for this case for any reason whatsoever), then the rule instructing stringency no longer applies. Add to that the assumption that halakhah permits choosing a lenient path in times of exigency, and you get that we are now in a situation that is not doubtful (because there is a decision to one side by virtue of the “time of exigency” rule), and in such a situation the rule of stringency in biblical doubt does not apply.
But all this is when dealing with a time of exigency. In our case both are times of exigency: both permitting a divorcée to a kohen (they wish to marry) and permitting a woman to the market (agunah). Thus, if we are in a state of doubt (see above that this apparently was not the case), then we can be lenient in both cases. And if there is no doubt, we should certainly rule leniently in both. I do not see justification to rule leniently to permit her to a kohen and stringently regarding permitting her to the market. Moreover—as I already noted—the distress of an agunah is far greater than the distress of a divorcée to a kohen, for the agunah cannot marry anyone at all.
I am unaware of any halakhic basis to instruct following an incorrect position when it is a lighter biblical prohibition but not when it is a more severe biblical prohibition. And if it is the correct position, then one should rule so in both cases.
The Connection to Palginan Dibura / Credibility
Another basis for the approach of palginan psikta may perhaps be found in the sugya of palginan dibura (splitting a statement). Hence my use of the term “palginan” here as well. The standard case of splitting a statement appears where Reuven appears with Levi and both testify that Shimon lent to Reuven with interest (see Sanhedrin 25a, Bar Benitos, and the parallel in Sanhedrin 9a regarding “So-and-so sodomized me willingly”). The borrower is considered wicked (for paying interest is also a prohibition that disqualifies one from testimony) and is ostensibly disqualified as a witness. Thus Reuven, by his testimony, renders himself wicked, since he testifies that he himself borrowed with interest; therefore, according to his own testimony, he cannot serve as a witness against Shimon. The Amoraim dispute this law, and the halakhah follows Rava that palginan dibura: we accept Reuven’s testimony against Shimon but reject the part of his testimony that concerns himself. Reuven is thus not wicked, and he can join the second witness to testify against Shimon. This is called “splitting the statement.”
The Acharonim[1] cite a similar mechanism they term “palginan ne’emanut” (splitting credibility). The case adduced to demonstrate this (see another example here, regarding the law of “yakir”) is the Talmud in Yevamot 117a regarding a woman’s credibility to say that her husband died: although she is believed to permit herself to the market, we do not seat the heirs in the inheritance on her say-so. Seemingly, if we rule that the husband died and therefore permit her to marry, why not also seat his heirs in the inheritance? The Acharonim explain that this is a case where we split the woman’s credibility and not her words. Here it is not that we accept only half of her testimony. We accept her testimony in full—that the husband died—but we apply it only regarding her permission to marry, and not regarding monetary and inheritance laws.
We thus have a case where we apply the very same ruling for one purpose and not for another, and therefore this is closer to our situation (palginan psikta). Just as we saw above, here too one can ask what I asked about palginan psikta: if the husband died, why not seat the heirs in the inheritance?
But on further consideration one can discern that there this is not, in essence, a rule of splitting at all. It is the consequence of the fact that the evidentiary threshold in monetary law is higher than the threshold required to permit marriage. For monetary matters we require two witnesses, whereas to permit her to marry one witness suffices (the Sages were lenient because of iguna and relied on the presumption that a woman carefully verifies and then marries). Thus, if one witness comes, it is clear that we may permit her to marry but we cannot seat heirs in the inheritance. The outcome is palginan psikta, but it is the product of existing halakhic rules and not of gifts handed out according to the judge’s discretion.
If so, that law is not really analogous to our situation. In our case there is no difference in evidentiary threshold between the laws under discussion, only a difference in severity. And again, had the Talmudic Sages or the Sanhedrin enacted a special ordinance to be stringent in the laws of permitting a married woman such that we do not accept claims of mekach ta’ut—fine. But a decisor who cannot change the law and can only rule according to the existing law cannot permit a divorcée to a kohen and prohibit another woman to marry under her husband. Therefore the mechanism of palginan ne’emanut does not seem a relevant source for such a distinction.
Expected-Value Considerations
It appears that the judges here made expected-value calculations. They say thus: indeed we have some doubt, but most likely this is a case of consent in error. If so, we can permit her to marry a kohen, for even if we erred, the harm caused is not very great (the prohibition is relatively light, a lav), and her need to marry the man she loves outweighs it. But we cannot permit her to the market, for there the harm, if we erred, is immense (a severe prohibition of ervah), and her need to marry does not justify it.
But this explanation is problematic for several reasons. First, as I explained above, there are laws regarding doubts and majorities. If the law is that in such a situation one may be lenient in biblical law, then one should be lenient also for the agunah. And if not—then one should be stringent also for the divorcée. That is with respect to making expected-value calculations in halakhah at all. But even the expected-value calculation itself seems problematic to me. The need of a woman to be released from her agunah status is far greater than the need of a woman to marry a kohen. True, they want to marry; but if that is not possible, they can find another partner. By contrast, an agunah or a woman denied a get, if we do not release her by annulling the kiddushin, may remain an agunah for the rest of her life. So how did the judges arrive at an expected-value calculation that prefers permitting marriage to a kohen over permitting to the market? In marriage to a kohen the need is small and the harm is small, whereas in permitting to the market the harm is great but the need is also great.
Conclusion
In conclusion, considerations of palginan psikta are found not infrequently in halakhah and are not an invention of the Rabbinate and its courts. And yet these matters appear to be utterly illogical. Such a permit is not a gift at the judge’s discretion. If the woman is permitted, he is to instruct her that she is permitted, and if not—then not. He has no discretion in the matter.
In closing, I refer readers to the excellent article by my friend Nadav Shnerb, “The Jewish Ark of Lies.” He explains there that the praise for a judge who sees the questioner before his eyes and tailors the ruling that suits him is an overreach of authority and, in fact, a halakhic falsehood. The halakhah is not entrusted to him, and he cannot distribute gifts at its expense according to his fancy. In my understanding, palginan psikta is another example of such a falsehood.
[1] See for example Kovetz He’arot §21; Kovetz Shiurim, vol. II, §3; Sha’arei Yosher VI:11—all of whom link this to the Amoraic dispute about the rule of palginan dibura.
Discussion
I’m curious whether any halakhic decisor tried to use the norm of “better to dwell as two than to dwell as a widow” to permit agunot whose husbands’ whereabouts are unknown. Can’t one say, “I didn’t get married on the understanding that he would disappear on me”?
That is exactly what I called the expected-value consideration, and I explained why I don’t think it is correct.
There certainly are—quite a few. And their words were rejected on a technical argument. According to that, there are no agunot in the world, yet the Talmud is full of discussions about agunot. Note that even if the husband later reappears, she can still say that she did not marry on the understanding of being alone for years. But that is a technical consideration. Substantively, there is definitely logic to this claim.
And indeed the boundary question—how extreme the situation has to be for us to undo her consent—is a very difficult one, and I don’t have a good answer to it. It is commonly said that if they lived together peacefully and happily for years, and something arose only afterward, that does not retroactively nullify the original consent. But his being homosexual was presumably a fact that was always true.
1. Regarding the question whether the court permits, or whether the court uncovers facts—
“If the court instructed her to marry, and she went and became corrupted, she is liable for a sacrifice, for they permitted her only to marry.”
It is also clear (for example in Tosafot, Gittin 33) that annulment of kiddushin is an authority of the court and does not happen automatically, at least in some cases of annulment of kiddushin. In fact, in the very case described there in Tosafot there is a solution that rabbinical courts use; if I’m not mistaken it is called a Maharsham get. In short—especially in the sugya of permitting agunot, the court has involvement, flexibility, and authority (and they use it in a way that, when we were yeshiva boys and heard about permits for mamzerim, we were horrified).
2. The various mechanisms of splitting credibility—whose overall meaning is that there is sufficient certainty for some matters, but concern remains in other cases—are not all that rare and are very intuitive. True, one can argue “either yes or no,” but assessment of intent is never absolute. Therefore it is very plausible that a judge sitting on the severe laws of a married woman will be stringent, while in mere prohibitions by negative commandment he will rely on lenient reasoning.
3. The assumption that Reish Lakish’s statement is the reason one does not annul kiddushin does not mean that his words are the only reason one does not annul kiddushin. There may be additional reasons, except that in his time his words included them as well, and if today his words are not relevant, the other considerations are still relevant. For example—most people do not enter the wedding canopy with a team of actuaries, so it is reasonable that at the moment of the chuppah the woman intends to become betrothed under any circumstances. If they had explained to her that the groom was a thief, she would have fled from the chuppah, but she would have come back the next day. Readiness to marry is also an emotional event, and therefore a future consideration will not necessarily change it.
4. There was actually room to be stringent specifically regarding marriage to a kohen, based on the Gemara in Gittin 82, that a get which does not fully permit forever still disqualifies her for a kohen; so one could say that even a get given merely stringently disqualifies her for a kohen. In short, the two sugyot are not absolutely dependent on one another.
5. The Rema is of course in the introduction to Torat HaChatat, not Torat HaOlah (both from the context and because I checked).
But if the Rema indeed holds that this is our mode of halakhic ruling, and all decisors from then until today accepted his words, does the Rama (Rabbi Michael Abraham) not see reason to incline an ear to the opinion of the Rema and at least take into account the possibility that this is the correct way to rule halakhah—to create a continuum of halakhic ruling, from Rema to Rama no one arose like the Rama? The fact that it is not logical to rule this way is unconvincing in light of the Ramban’s famous words about mathematics, meaning that “not logical” is not necessarily a valid argument, unless we have an internal halakhic argument that one does not rule that way.
1. Here the question is one of coercion or inadvertence, so it is unrelated to our issue. A court ruling can turn inadvertence into coercion. Regarding annulment of kiddushin, you are right, but that is only for annulment by the mechanism of “whoever betroths, betroths subject to the Rabbis.” The annulment discussed here is the uncovering of an existing state (that there was no kiddushin), not annulment. This is a common conflation.
2. I explained in the column why splitting credibility is irrelevant here.
3. Reish Lakish’s statement is supposed to take all the considerations you raised into account. In any case, everything I said stands in place quite apart from Reish Lakish. Factually, it is clear that all the substantive arguments against me were based on Reish Lakish. There were arguments about halakhic policy (which are irrelevant in light of what I explained in the column here), but substantively/content-wise it begins and ends with Reish Lakish.
4. Indeed, the law of the “scent of a get.”
5. Indeed, a keyboard mistake. Torat HaChatat. I said nothing against the Rema—only against the lack of clarity in his words (that he presents a stringency as if it were the core law). But there is nothing in his words against my principled position. On the contrary, his claim there is exactly like mine: a decisor cannot deviate from the law (I merely claim that this applies neither toward leniency nor toward stringency).
The matters of mathematics are not relevant here. The Ramban says that beyond logic there are other considerations. But logic is a necessary condition (even if not sufficient). True, not all rulings are the result only of rational consideration, but one cannot rule something that is plainly illogical.
The expected-value considerations, and the rabbi’s attack on them, basically point only to differences in courage and in the posek’s temperament.
In the rabbi’s view, the correct consideration is the damage and suffering caused when an agunah is not permitted. But for a run-of-the-mill posek, educated in the “regular” batei midrash, deviating from what is accepted—even if it is not correct in reasoning—is more dangerous than anything else, even if that means leaving an agunah chained (“What is my reasoning worth against all the great sages of Israel who left agunot chained and permitted things even more severe?”).
Only a person with independent thinking, and courage (which is not common at all among the decisors of our day), is capable of saying that there are expected-value considerations preferable to the fear of being considered an independent posek or one who does not follow the accepted path of halakhic ruling.
That is, people’s expected-value calculations vary according to their character (already in the Talmud one sees such differences among tannaim and amoraim. There were those whose fear of ruling prevented them from deciding halakhah independently, and there were those who followed their reasoning to the end even against the consensus).
A. If something is accepted halakhic policy, why is that not considered “public acceptance” of that rule?
B. Can the public accept, regarding facts, to behave in every case as though the facts were such-and-such?
I did not see in your words any reference to another aspect, which I assume is included in the original ruling—
the status of a kohen nowadays.
It seems to me that at the very least it is subject to a dispute among decisors whether our kohanim are presumed kohanim for every purpose (for example, eating terumah by Torah law, challah, and the like).
If so, in permitting a divorcee to a kohen there is also the possibility that perhaps he is not a kohen, and in any event the prohibition is thereby reduced in severity, unlike the case of a married woman.
With God’s help, 15 Adar II 5782
To LT”G — many greetings,
Indeed, the Sages taught us that there is not only “public acceptance,” but also the personal acceptance of every couple entering kiddushin that “whoever betroths, betroths subject to the Rabbis,” whereby the couple accepts the ruling of “the Rabbis”—specifically the Rabbis, the king’s highway accepted by the majority of decisors.
Without such acceptance, a normal system of life could not exist. A couple that married would be forced to reckon with the individual opinion of some “so-and-so” who claims their kiddushin is invalid, and a couple that divorced could not feel secure lest some individual “so-and-so” decide their divorce is invalid. Thus no couple would ever be secure or know for certain whether they are married or separated.
This abnormal reality is avoided when everyone is committed to the common law upheld by the majority of decisors, and then whoever is married “subject to the Rabbis” is married, and whoever is divorced “subject to the Rabbis” is divorced, “and all this people too shall arrive safely at its place.”
Regards, Yaron Fishel Ordner
Do you dispute that there is such a concept as authoritative ruling beyond mere discovery of the truth? What about “if one sage prohibited, his colleague may not permit”—according to what your honor says, why not? He merely says that in his opinion it is permitted, and that is all? And in the Ritva on tractate Hullin it is written that the need to be stringent in a dispute over a Torah law does not apply when two sages dispute the same piece, and in such a case one may be lenient in accordance with the lenient one.
Could you please cite the exact reference to the Ritva?
Paragraph 1, line 2
…whereby the couple accepts their ruling…
Sorry, Avodah Zarah 7a—that is when they disagreed simultaneously, see there.
As for the substance of the discussion,
Besides the simple reasoning that a higher level of certainty is needed to permit a married woman without a get—an issur kareit that can also impose the blemish of mamzerut on descendants for generations—there is also R. Yitzhak’s distinction (in Tosafot, Ketubot 47b, s.v. she-lo): unlike a gift, where it is enough to assess that “had it been on this understanding, he would not have given it,” in kiddushin one needs an assessment of both of their intent—that “on this understanding they would not have agreed to become betrothed.” Therefore during the husband’s lifetime one cannot dissolve his kiddushin on the assumption that he too did not betroth on this understanding. Only after his death, when his need and desire for the continued existence of the kiddushin no longer exist, can one say that his wish is that the kiddushin be uprooted retroactively so that his widow should not fall before a brother-in-law stricken with boils.
And so too in our case. It is not plausible that the husband intended at the time of kiddushin that they be retroactively annulled in a case where the wife wants to divorce him against his will. But the reasonable husband would agree that in a case where they are already divorced and it no longer matters to him whether the kiddushin stands, the kiddushin should be retroactively annulled so that the woman not be prevented from marrying a kohen.
Regards, Yifau”r
In general, the whole discussion would have been more useful if the author of the post had made the effort to obtain the reasoned ruling itself, and then there would have been “bread and meat” for a substantive discussion; there is no point in conducting a halakhic discussion on the basis of a newspaper article.
The approach that says “better to dwell as two” claims that the Sages were saying something more psychological and mystical here, like Freud speaking about the subconscious; so this is a presumption that the Sages said about the subconscious, that a woman prefers even something weird to loneliness. Therefore to bring proof from what a woman says consciously is ridiculous.
So what meaning can the subconscious have if no one has access to check it and the woman does not actually feel that way? In the end, a judge has only what his eyes see. And even if in halakhah a person’s intentions matter, we do not find that intentions he is unaware of have significance. It’s just a joke.
No. I claim that expected-value considerations are incorrect in such a case.
The public cannot accept that pork is beef and permit it.
The Tosafot there is not relevant to the discussion, as I showed in my aforementioned article. In every monetary transaction with two sides (as opposed to a gift), it is like kiddushin. And transactions are indeed annulled with the claim of “on this understanding,” and certainly with the claim of mistaken sale.
I did not read the ruling because I was not addressing it. I used it to illustrate a prevalent idea in halakhah with which I disagree.
Perhaps. I did not read the ruling. I only used this ruling to attack a prevalent halakhic practice (splitting). If this is a difference between a doubt and a double doubt, then it really does not concern me. But that is not what was described in the article (though admittedly perhaps the article is mistaken and the ruling does in fact say that).
I do not dispute it. It depends where and who. As for “if one sage prohibited,” it is not relevant where the truth is clear and the first sage erred.
In short, it is ridiculous to bring proofs from facts. Don’t confuse me with facts. Apparently the Sabbath one must keep is not the seventh day but a mystical Sabbath (the Sabbath within the soul). And the best part is that I am the ridiculous one here…
And as stated, the greatest decisors carved out exceptions to that rule in situations where it is clear that the woman does not consent. So apparently they too are ridiculous. They did not understand that this is mysticism after all.
You wrote in the column: “And again, if the sages of the Talmud or the Sanhedrin had enacted a special enactment to be stringent in permitting a married woman, not to accept ‘mistaken transaction’ claims—fine. But a decisor who cannot change the halakhah and can only rule according to the existing halakhah cannot permit a divorcee to marry a kohen and forbid another woman to remarry while her husband is alive.”
And at the end you wrote: “Considerations of splitting rulings exist quite a bit in halakhah and are not an invention of the rabbinate and its courts. Still, the matter seems plainly illogical. Such a permit is not a gift left to the judge’s discretion. If the woman is permitted, he should rule to her that she is permitted, and if not, then not. He has no discretion in the matter.”
I did not understand how the two fit together. If something (splitting rulings—stringently) is accepted policy in halakhah, then that is “public acceptance” in exactly the same way as acceptance of the Gemara. After all, acceptance of the Gemara—that is, some process of solidification until it was fixed and finalized—was no stronger or more unique than acceptance of such a principle if it has been widespread in halakhah for hundreds of years (if it is true that “considerations of splitting rulings exist quite a bit in halakhah”).
One can dispute the law itself, that the judge is unwilling to permit a married woman in such a case. But his authority to forbid a married woman in such a case—even while he permits such a divorcee to a kohen—that is, his authority to adopt splitting-rulings stringently (and in our case not to accept mistaken-transaction claims regarding a married woman), is grounded in public acceptance (according to your own statement that splitting considerations exist quite a bit in halakhah). And according to your well-known view that public acceptance of the Gemara as formal authority is the foundation of all halakhah, then this is exactly the same as if this policy of splitting were written in the Talmud or issued by the Sanhedrin. Why not?
Thanks. The Ritva there is speaking of a case where they disagreed simultaneously and they are equal, so on that very piece one may rely on the lenient opinion (and only regarding another piece must one be stringent if it is a Torah law—unless the lenient sage “relies on his learning” and not on reasoning, in which case even on another piece and even in a Torah matter one may rely on him). What were you trying to infer from this Ritva?
By the way, I did not understand the Ritva, and perhaps you can help me. He writes there that the requirement to be stringent in a Torah matter when they are equal is “specifically in another similar matter over which these disputed; but regarding the very same piece over which they disputed—since they are equal, etc., no ruling of prohibition takes effect on that same piece.” He brings proof from the fact that Beit Shammai permitted, every single day, the rival wife of a daughter to the brothers (that is, they permitted the rival wife of the daughter to enter levirate marriage with the brother who is the father of the daughter, while according to Beit Hillel she is forbidden to the brother and the child is a mamzer), even though they knew that Beit Hillel prohibited it.
That means that all rival wives of daughters that come before us are considered the same piece over which they disputed, even though this woman (the rival wife of the daughter) may have been born seven years after the dispute. But if so, what is “another similar matter over which they disputed”? Does “the piece” mean “the principle” or “the object”? If it means “the object,” then the Ritva’s proof is seemingly a refutation, since they permitted new women. And if it means “the principle,” then what is “another similar matter over which they disputed”? If it is not the same principle, what connection is there at all; and if it is the same principle, then it is the same piece.
And I also did not understand his proof from Beit Shammai, for perhaps (and presumably) Beit Shammai did not think that Beit Hillel were equal to them, and the whole rule in the Torah of following the stringent side applies only when they are equal.
[R. Yifau”r, I do not know whether you intended to respond specifically to my comment, but I am unable to enter the body of the halakhic discussion on this topic and am forced to observe it from the outside.]
A. I wanted to bring proof that there is really such a concept as “authoritative ruling,” from the Ritva’s statement that the rule of following the stringent side in a Torah matter applies only where the lenient sage did not rule on that very piece and I remain in doubt; but when the sage ruled leniently on that very piece, I can rely on the sage’s ruling.
B. The Ritva brings proof from the fact that Beit Shammai permitted the women who came before them to marry, showing that the sage himself may be lenient and the questioner may rely on him, since he has a ruling on that very piece, unlike another piece. And in every case of the rival wife of a daughter, a special ruling from Beit Shammai is needed!
C. Regarding greater wisdom and greater number, see what the Ritva writes regarding Rav Huna bar Hanina and Rava.
A. Maybe you are right, but I understood it a bit differently. There is a “ruling” of prohibition that creates a prohibition, like “he has rendered it forbidden to himself,” and there is no “ruling” of permission that creates permission. And on this the Ritva says that a sage who ruled prohibition creates a prohibition (an additional, weaker one) on all the pieces, while a sage who ruled permission creates nothing; therefore we should have prohibited all the pieces, except that on that same piece where permission was stated, this blocks the application of the ruling of prohibition. Something like the Taz that the Rabbis do not nullify what is explicit in the Torah, although seemingly there is no real difference between what is explicit and what is derived.
B. Thank you very much. (But the reasoning is hard for me to understand. If poultry with milk were a Torah prohibition, then someone who did not live in R. Yosei HaGelili’s place would come to him every morning with poultry and milk, hear “permitted,” and only then eat? It seems absurd. But it does indeed appear that this is what the Ritva says.)
C. I had of course seen that before writing, yet I still do not think it is similar. Presumably no one in his generation could think or publish that he was greater than Rava. But Beit Shammai were both forceful and sharper (and on the case of the rival wife of a daughter itself, Yonatan ben Harkinas of Beit Shammai said to Rabbi Akiva that he had not even reached the level of cattle shepherds).
Rabbi Michi, did you see the remarkable words of the Ritva that Betokh HaGolah cited and explained? It seems that it is indeed written there that there are cases where even if someone knows exactly and with certainty that the rabbi is going to permit it, he still has to hear the permission from the rabbi’s own mouth regarding the specific case before him, and otherwise he must be concerned, because of doubt, for the words of another equally weighted rabbi who is stringent. What is the meaning of this?
R. Yitzhak there holds that specifically in a gift, which requires only the intent of the giver, do we say that it is void because “had it been on this understanding, he would not have given it.” Kiddushin resembles a gift only after the husband dies, when there is no obstacle on his side to uprooting the kiddushin retroactively because of the woman’s need not to fall before a yavam. But that the kiddushin should lapse retroactively during the husband’s lifetime, we do not say “on this understanding,” since it is a bilateral transaction.
What you tried there to prove—that even in a bilateral transaction we say “on this understanding”—from “that case of one who sold land on the understanding of ascending to the Land of Israel”—is incorrect, because there there was explicit speech between them that the purpose of the sale was to move to the Land of Israel, so there is an understanding of both sides that the transaction is “on this understanding.” But without any discussion between the two sides, there is no basis, according to R. Yitzhak, for unilateral annulment on the basis of assessment that “on this understanding”—unless the husband has already “left the transaction,” such as where he died, and then there is an assessment of intent that he too would agree that if after his death a problem of falling before a yavam arises, the kiddushin should be annulled retroactively.
And along the same lines we can also say in our case, that after they have separated the husband would agree to retroactive dissolution of the kiddushin, but not to retroactive dissolution of kiddushin in order to obligate him to separate. According to this, in Rabbi Zavdia Cohen’s ruling there is no “splitting of rulings.”
Regards, Yifau”r
Regarding what you argued in this post—that the old assessments that “better to dwell as two” do not necessarily apply today as well, and need to be examined in every time and each case on its own—
In my comments (under the nickname S.H. Lewinger 🙂 to column 148), I mentioned the words of the Beit HaLevi, that even in the time of the Sages most women were not willing to marry a husband with a serious defect; but since there is some percentage of women who are willing to accept the husband despite his defect, one cannot determine across the board that the kiddushin is void, because she should have made an explicit condition to that effect.
Even today there are women whose love “upsets the line”—who are willing to stay with a husband suffering from a terminal illness, or a criminal, and/or a husband with a severe mental problem. And according to the Beit HaLevi—even if this is a minority—it obligates the woman who is particular about this to stipulate it in advance.
Regards, Yifau”r
The excessive anxiety gripping the halakhic decisor when permitting a married woman on the basis of an assessment does not stem only from the severity of the “karet prohibition,” but also from the fear that an assessment later found to be insufficient may impose on the descendants of the woman who marries on the basis of the mistaken permit a blemish of mamzerut for generations.
Therefore, in cases of permitting an agunah whose husband disappeared, decisors customarily seek the agreement of additional great authorities, so that several opinions will examine the permitting judgment and thereby strengthen confidence in the solidity of the permit.
And for this reason, in a case where the husband is alive, the decisors will prefer to persuade or compel him to give a get and/or to look for a flaw in the witnesses to the kiddushin, so that there is a “cumulative mass” of considerations to permit, and the decisor’s confidence in the correctness of his permit increases.
Regards, Yifau”r
The determination not to accept mistaken-transaction claims in kiddushin is an enactment, and a body that has power to enact can establish that. But here we are speaking of a court that arbitrarily decided about a particular case brought before it. If a complete consensus had formed around something clear, perhaps there would be something to discuss. But a judge’s decision that something seems right to him or not has no significance whatsoever.
Such a ruling can affect the laws of doubt. If there is a sage’s ruling, then the rule “in a Torah doubt one is stringent” does not apply. But if I know that he erred, clearly one should not listen to him. Even in the Sanhedrin there is the case of one who errs in the commandment to obey the sages.
I have not seen it, but from your description I do not understand the difficulty. It may be speaking of a person who is not competent in these matters and cannot conduct himself according to his own view. Therefore in matters of doubt he should treat such a situation as doubtful unless they expressly ruled otherwise for him. It is all a question of the person’s conduct and not of the law itself.
It is hard for me to reenter the sugya now. In the article I explained how my words fit with those of Tosafot. Clearly, in the end it is all a matter of assessing intent, and where there is such an assessment, everything is void.
That is a strange position, and even most of the decisors who disagree with me do not agree with it. So I would not build on it. Clearly one follows the majority and the reasonable person in assessments of intent.
Here there is no such concern, since there are no children whose status depends on the ruling.
Indeed, that is what is being discussed there [two equally weighted sages who disagreed simultaneously: one who maintains his own tradition follows his own opinion even leniently, but someone else, in a Torah matter, follows the stringent opinion because “in a Torah doubt one is stringent”; but if he went to the permitting rabbi and heard the permission, then it is permitted for him. Therefore Beit Shammai continued to rule that the rival wife of a daughter was permitted to the brothers even though Beit Hillel prohibited it, and one who came before them was allowed to follow their words. And it seems that the Ritva says that one must hear the permission on each case for itself and not merely regarding the principle].
But how can there be a difference between the person’s conduct and the law itself? If I know with certainty that the rabbi is going to tell me “permitted” (for example regarding the rival wife of a daughter), just as a vending machine tells me “thank you very much” after I buy a can, then what does it help to hear it from the rabbi?
If the twisting of the rabbi’s lips has such significant implications, then perhaps he can also charge money for such rulings and sell rulings only to those who pay enough. After all, everyone knows his opinion anyway, and all that is missing is for him to furrow his brows and utter with his lips the sound “permitted” on each identical case anew—just as one pays singers money to hear their voices (“Your statutes were my songs”).
It may simply be a concern that someone who is not a Torah scholar does not really understand correctly what the rabbi will tell him.
I thought that if that were so, then not only in a dispute, but even if according to everyone the rival wife of a daughter were permitted to the brothers, one would still have to hear it directly from the rabbi, no?
Here the concern for error is smaller.
If someone came to Freud and claimed that he does not feel he has an Oedipus complex and that this is proof that Freud is wrong, would you agree that this would be ridiculous? Not ridiculous in the sense that he is necessarily mistaken, but that it is simply not on the same plane Freud was talking about; he was not saying something empirical against which one can argue, “I don’t see it.”
And it is quite clear that the Sages did not state this presumption as something visible to the eye and known to everyone—for then we would not need them. They said it even where outwardly it seems that the woman would have preferred otherwise. In any event, they claimed that they had penetrated to the depth of a person’s mind.
You may reject what the Sages say in a matter that cannot be proven empirically, but that still does not advance the discussion. If there are those who accept what the Sages said and rely on them, then to come and argue to them empirically, “I don’t see that this is so,” is simply an argument on an entirely different plane from what they were talking about, and therefore it does not help at all.
In short, the entire dispute is basically over a certain assumption: that the Sages had a deeper worldview than ours, even if they were less scientific. Either one accepts that or one does not.
It can be explained more simply: one cannot annul kiddushin with respect to a married woman because the husband’s right claims his acquisition (cf. the words of Tosafot in Ketubot, if I recall correctly 47b), and therefore out of doubt we do not remove his right. But once he died, only the woman’s right seeks dissolution.
With God’s help, 7 Adar II 5782
At first glance, the homosexual tendency itself would not require that the woman would not have consented to the marriage, for if the husband overcomes his inclination and lives with her lovingly, with normal marital relations, she should not have a problem with it; after all, everyone has an evil inclination that he overcomes. The issue from the outset would seemingly exist only if one can prove that in those very days he actually realized his inclination in practice.
And if he began to realize his inclination only after years, then we seemingly enter the question of “on this understanding” regarding a future matter, about which Maharam says there is no room to annul the kiddushin if the brother apostatized after she married. And likewise, as I mentioned above, there is R. Yitzhak’s position that in a bilateral matter we do not say “on this understanding,” and therefore only regarding a yavam (where the husband no longer has any practical stake in the kiddushin’s being annulled) do we say “on this understanding.” Therefore it is very difficult to be lenient before the get has been given.
Regards, Eliam Fishel Workheimer
Throughout the post, the basic argument (“it’s worth taking the risk, but it depends how much”) isn’t really being attacked. One can argue about the ruling, but this is a completely ordinary trade-off.
His ranking (from more severe to less severe — a married woman, preventing marriage, a divorcee to a kohen) is quite reasonable and fairly intuitive. We all make similar decisions in every area, from precautions during COVID to shopping in the supermarket.