Q&A: The Response to Rivka Lubitch’s Article
The Response to Rivka Lubitch’s Article
Question
I read your response article in Akdamot.
My question: You defined marriage as a contract. But I am not familiar with any contract in Jewish law or in civil law in which only one side has the power to terminate the contract. The essence of a contract is that it binds both sides in the same basic way. Therefore it is hard to see marriage according to the law of Moses and Israel as a contract. The more accurate formulation is, as you noted, the creation of a legal status, but here the inequality is essential. The man creates the status of “a married woman” for the woman. By contrast, no corresponding status of “husband of a wife” is created for the man. Obligations are created for him, but there is no change in his personal status even after the decree of Rabbenu Gershom. Rivka’s claim is correct. The man creates a kind of ownership over the woman (in the sense of prohibition), but the woman does not create anything similar over the man. True, the woman’s consent is required, but once she consents she becomes a married woman and cannot retract, whereas he can. (The need for her consent under the decree of Rabbenu Gershom does not change the Torah law; if he threw the bill of divorce into her courtyard even though she refused to accept it, and she had a child with another man, the child would not be a mamzer.) The closest analogy to this is military enlistment. For a soldier who enlists, the legal status of “soldier” is created, and he cannot release himself from that status. In other words, the analogy is this: a woman who marries a man according to the law of Moses and Israel is like a soldier in the man’s army. The army also has obligations toward the soldier, but the relationship is not reciprocal.
Answer
Hello.
I wrote explicitly that Jewish law is not egalitarian. I never claimed otherwise. That was not discovered either by Rivka Lubitch or by me. Her claim in the article was that there is acquisition here in the sense of ownership, and I argue that there is not. The debate was only about that, and here, in my opinion, my proofs and arguments are decisive. And certainly regarding her proposal for solving this by abolishing kiddushin altogether (living without kiddushin), that is complete absurdity on the logical level, as I explained.
As for a one-sided contract, the fact that we have not found another one proves nothing. So this is the only case. The question is whether I am in fact right that there is no ownership here, or whether I am not right. Here one must turn to proofs and sources.
Moreover, this contract requires the agreement of both sides in order to take effect; only its dissolution is one-sided. But the initial consent takes into account the fact that the dissolution is in the husband’s hands. A woman who does not want that should not agree to kiddushin in the first place.