Excerpted from Rabbi Shmuel Goldin’s ‘Unlocking The Torah Text: An In-Depth Journey Into The Weekly Parsha- Bamidbar’, co-published by OU Press and Gefen Publishers
Context
As Parshat Matot opens, Moshe outlines the laws governing nedarim, personal vows. These edicts underscore the seriousness with which such verbal commitments are to be treated.
In contrast to men, who remain personally responsible for all vows taken, a woman’s vows can be summarily rescinded by her father or her husband, depending upon her status.
In general terms: A father is granted the right to rescind the nedarim of a single daughter until she reaches the status of a bogeret (six months after puberty), while a husband is granted the right to revoke his wife’s vows. The vows of an underage betrothed woman can only be canceled by her father and her husband-to-be, acting jointly.
Questions
In our “liberated society,” some aspects of the laws of vows seem difficult to accept.
Why should the Torah draw a distinction between the vows of men and women? Is a woman any less capable of responsibly committing herself to specific behaviors than a man?
How should the woman of today view laws that seem to place her in a subservient position to the male figures in her life? Aren’t such edicts proof positive of the Torah’s bias against women?
Approaches
A
We find ourselves, once again, entering turbulent waters….
On the one hand, we could well ask from the outset: Do we even have the right to ask these questions, to assume that the laws of the Torah must always conform to our modern sensibilities? Almost every society in human experience feels that it has finally arrived at a communal structure that most closely reflects the desired social reality. And yet, how many such societies and their structures have come and gone, while Torah law has endured? God clearly has His reasons for distinguishing between men and women in halachic areas such as the laws of vows. Perhaps those reasons are destined to remain elusive to the “modern mind.”
On the other hand, should the natural limitations of our perspective cause us to shy away from confrontation with any aspect of the Torah text? Many authorities, as we have seen, are even willing to delve into the mysteries of chukim, ritual laws for which no apparent reason is evident in the text. Certainly societal laws, such as the laws of vows, should be fair game for our philosophical exploration. All laws of the Torah, after all, are meant to inform and shape our lives. If we can succeed in better understanding those edicts that, at first glance, seem foreign to us, we may well uncover new life lessons that we have missed before. And, if we fail, we will be no worse off. We can always back away, accepting the existence of mysteries that lie beyond our ken.
B
As a first step, we might be tempted to approach the laws of vows as we have approached other issues in the text before, by noting the tension between eternality and temporal context in the study of the Torah text. While our tradition clearly maintains both the divine origin and the eternal applicability of Torah thought and law, we cannot deny that the Torah was revealed to a specific people in a specific era.
Noting this double-edged reality, we have wondered aloud whether or not we can understand specific phenomena in the Torah, such as the biblical allowance for slavery, as products of the times. We have also seen that historical context serves as the basis for such classical approaches to the text as the Rambam’s explanation of the origin of korbanot (in his Guide to the Perplexed) and the Ramban’s understanding of the character of the priestly garments.
Attempts to apply the approach of historical context to the laws of vows prove, however, to be less satisfying. The laws of slavery have fallen into disuse with the disappearance of the institution itself from our society. Even the laws of korbanot and the priestly garments, which we expect to be reinstated at some point in our history, are distant from our current experience and make no apparent comment on the status of any group within the community.
The laws of vows, however, while seldom applied, remain on the books to this day. With the continuing drive towards women’s equality in so many spheres of the society surrounding us, we confront the challenge of explaining these and similar laws to an increasingly sophisticated audience. Failure to do so adds fuel to the accusations that such edicts are either outdated or unfairly prejudicial.
C
A review of the halachic literature regarding the laws of nedarim reveals that, from the outset, the rabbis derive severe limitations from the text over the rights of a husband or a father to revoke a woman’s vows.
Based on the Torah’s statement “Any vow and any oath-prohibition to cause affliction of the soul, her husband may let it stand and her husband may revoke it,” the Mishna maintains that a husband may only rescind vows that would deny his wife one of life’s permitted pleasures. The Talmud, noting a second defining phrase, “These are the statutes that God commanded Moshe, between a man and his wife…,” expands the rights of the husband to include the cancellation of any vow that can affect the marital relationship.
While the Rambam maintains that a father’s rights over his daughter’s vows extends to all vows taken, numerous other authorities disagree and restrict the father’s rights, as well, only to those vows that would deny his daughter one of life’s permitted pleasures. Furthermore, the biblical phrase “in her youth, in her father’s house” is understood by the rabbis as limiting a father’s rights over his daughter’s vows to the six-month period following the onset of puberty. Before that point, the young woman is considered underage and any vows she takes are automatically nonbinding. After the six-month period following puberty, she is considered to be mature enough to be responsible for her own commitments.
The rights of a father or a husband over a woman’s vows are limited to the day that he first hears of the vow. This period of time is not defined as a twenty-four-hour period but is determined by the day itself. If a father, for example, hears of his daughter’s vow late in the day and wishes to revoke that vow, he must respond immediately, before that day ends.
These and other technical boundaries, rooted in the text and discussed extensively in the Talmud and later halachic works, severely restrict the rights of a father or a husband to rescind a woman’s vows. Clearly, the Torah is not granting open-ended control over a woman’s verbal commitments to the male figures in her life. Instead, the text constructs a narrowly targeted allowance, restricted to specific types of vows and carefully regulated by a detailed network of laws.
D
In sharp contrast to the extensive halachic literature dealing with the technical boundaries of these laws, almost no information is found in the classical commentaries concerning their rationale. Why does the Torah grant a woman’s father or husband the right of repeal over even a limited category of her vows? What explanation can be offered for the clear asymmetry between the roles of men and women reflected in these laws?
The silence of the classical commentaries concerning these issues can, of course, be interpreted in a number of ways. Perhaps the scholars did not see these edicts as troubling at all and were comfortable accepting them, without question, as God’s will. Perhaps the commentaries felt no discordance between these laws and the societies of their day, which were marked by a myriad of clear public differentiations between men and women.
E
It is not surprising that the first real attempt (at least that I could find) to explain the rationale behind these laws is made by Rabbi Shimshon Raphael Hirsch; the towering nineteenth-century German scholar whose religious philosophy envisions a relationship between traditional observant Judaism and the modern world. Hirsch, as might be expected, bases his interpretation of the laws of nedarim on the distinct roles that, in his view, are mandated by Jewish tradition for men and for women.
A man, this scholar explains, “is the independent maker of his position in life.” If, therefore, a man vows to take abnormal restrictions upon himself, he, alone, must make the necessary arrangements to allow these conditions to be met.
The greatness of a woman’s calling in life, however, lies in her entering and assuming a position that is not of her own creation. “The woman herself does not provide the house. She enters the home provided by the man and rules in it as the happiness-bringing administrator of all that is to be found there, in the sanctity of manners, the morals and feelings directed towards God.”
As the spiritual guardian of the Jewish home, the woman occupies a central role upon which others become clearly dependent. To fulfill her responsibilities, a woman must be free of external constraints that could “permanently stand in the way of the fulfillment of her calling.”13 The Torah, therefore, grants limited veto rights to a woman’s father or husband over any vows that might prevent her from fulfilling her primary religious role.
F
Recognizing that Rabbi Hirsch’s approach might not resonate with some modern readers and failing to find other serious attempts in the literature to explain these laws, I decided to try something different. Through the listserv of the Rabbinical Council of America I asked my colleagues whether any of them had either encountered or independently arrived at a rational approach to the laws of vows. The thoughtful, varied answers I received served to reinforce ideas that I had been considering on my own.
Some of my colleagues maintained that, in a general sense, these laws can only be understood against the backdrop of the Torah’s general resistance to vows. The potential sources of this resistance are manifold, and include a rejection of asceticism; a belief in the transformative power of Torah law without the need for added constraints; a recognition that Torah values can be distorted through the addition of individually authored rules; and an aversion to the creation of situations where, due to the acceptance of supplemental restrictions, individuals are increasingly likely to fail.
Nonetheless, the Torah does acknowledge that certain vows can enhance an individual’s religious and spiritual growth. Instead of mandating, therefore, a blanket prohibition on vows, the Torah institutes a selective process of annulment or revocation under very specific conditions. The prerogatives of the father and the husband are part of this selective process.
While this approach grants us context, however, it fails to address the asymmetry between men and women in the area of nedarim.
G
Confronting this issue squarely, a number of my colleagues readily opened the door to an obvious, potentially explosive area of consideration that I, myself, had been approaching with caution. Perhaps the asymmetry in Torah law concerning vows, they suggested, reflects naturally existing perceptual and behavioral differences between men and women (à la Men Are from Mars, Women Are from Venus).
Once this door is opened, the possibilities before us are manifold and understandably controversial. To suggest a few…
Can it be, for example, that these laws are partially necessary, not because of a woman’s limitations, but specifically because of the emphasis that men place upon physical attraction? Clearly, neither men nor women can completely see their relationship through the eyes of the other. A woman might, therefore, take upon herself specific restrictions in the quest for greater spirituality without fully understanding how those restrictions could make her less attractive to a potential suitor or a mate. In order to forestall the damage possibly caused to crucial relationships by such an act, the Torah grants a woman’s father and/or husband a limited opportunity to rescind such vows.
Perhaps, by granting a father the right to cancel his daughter’s vows during the six-month period following the onset of puberty, the Torah provides him with a unique opportunity to exercise parental control and direction during a particularly turbulent time in her life. Buffeted by the physical and psychological changes that mark her emergence into womanhood, the young woman confronts her inner conflicts and begins to develop the worldview and the personal skills that will carry her through life. Specifically at this time, the Torah grants significance to the young woman’s verbal commitments, but only with parental oversight, enabling her to safely and securely test her limits under a watchful eye.
Some of my colleagues suggested that a woman’s greater emotionality, compounded by her historically vulnerable status in society, makes her more prone to extreme threats and vows. While there are certainly exceptions to this rule, the Torah operates in general categories. The woman must recognize that, even under duress, her verbal commitments will be treated seriously. She is offered, however, the safeguard of limited oversight.
Finally, there are times when the father or husband’s very act of canceling a daughter or wife’s vow can itself be constructive. Given the nature of the vows that can be revoked, the cancellation conveys to the woman the ongoing concern of a “significant other” in her life for her continuing welfare and/or his desire to maintain a healthy, unburdened relationship between them. Such assurances can be particularly significant to a woman, young or old, at various stages in her life.
There may be those who feel that, with suggestions such as these, we have crossed the line of “political correctness.” And, certainly, we can offer no proof that any of these explanations, or any others that we might offer in this vein, actually form the basis of the laws of nedarim found at the beginning of Parshat Matot. Even those individuals, however, who adamantly insist on equality between men and women must admit to natural differences between the sexes. Is it not conceivable that those differences may play a role in the formulation of God’s law?
H
In the final analysis, answers to our questions concerning the laws of nedarim may be found in all, some or none of the above explanations. Perhaps other sources that we have not cited at all contain keys to understanding. When the Torah itself provides no explanation for its laws, we are left with possibilities, rather than certainty.
We return, therefore, full circle, to where we stood as our study opened. The eternal law of the Torah has withstood the test of centuries and will, we believe, withstand that test until the end of days. While there will certainly be those, in each generation, who will demand that its edicts conform to the thinking of the time, there can be no guarantee of such correlation. Our task is to remain loyal to the law, even as we struggle with its meaning.
Points to Ponder
While the asymmetry between men and women reflected in the laws of nedarim has little practical impact on our daily lives, other social distinctions drawn in the Torah between men and women can have major effect. The tragic plight of the aguna (lit.: the chained woman), a woman unable to obtain a get (Jewish decree of divorce), results from one such distinction.
At the core of the issue lies the one sentence in the book of Devarim that serves as the basis for divorce proceedings in Jewish law: “And he [the husband] wrote her [the wife] a bill of divorce, presented it to her and sent her from his house.”
As clearly indicated by this passage, the husband is the active party in the halachic events that effect a Jewish divorce. He (or his agent) must initiate the proceedings by writing the document of divorce and he (or his agent) must deliver that document to his wife. She, in contrast, plays a passive role as the recipient of the divorce decree. So passive is her role, in fact, that she need not even be a willing participant in the process. According to biblical law, as long as a man delivers a get to his wife’s personal domain, she is automatically divorced, even absent her agreement.
By the time we reach the Middle Ages, however, Rabbeinu Gershom, one of the greatest luminaries of the Ashkenazic community, issues a takana, a rabbinic decree, designed to even the playing field somewhat in the area of divorce. He prohibits, upon pain of excommunication, the divorce of women against their will. This takana does allow for exceptions in cases of great exigency, as determined by the decision of one hundred rabbis.
The Torah-mandated centerpiece of Jewish divorce, however, remains inviolate, beyond the reach of Rabbeinu Gershom’s takana or any other. The husband must, of his own free will, initiate and participate in the divorce process. This fact gives rise to a tragic possibility. If a husband is unable or unwilling to effect divorce proceedings, in spite of the clear need for severance, his wife becomes an aguna. She remains “chained” to her husband, still married and thus prohibited from moving on to another relationship.
In the past, this tragic eventuality usually resulted from a man’s disappearance due to accident, war or the like. To avoid the creation of agunot in such cases, Talmudic authorities adopted halachic leniencies, wherever possible, in their acceptance of evidence concerning the husband’s death.
A different type of igun (aguna status) however, has also always existed, created by recalcitrant husbands who deliberately refuse to grant a get to their wives. These women remain trapped in a state of limbo, held hostage, often for financial ransom, by bitter, angry, manipulative men. By all accounts, such agunot have become more prevalent in recent times.
Cognizant of the deep personal pain caused by this situation, halachists have struggled to develop halachically acceptable ways to counteract the actions of recalcitrant husbands. The stakes, the authorities understand, cannot be higher, and the balance that needs to be struck cannot be more delicate. On one side lies the personal pain of the aguna, chained to an unloving partner, unable to move forward with her life. On the other side lies allegiance to the halachic system in one of the most critical areas of Jewish law, defining the nature of the marital bond and of the Jewish family itself.
Faced with the challenge of striking this balance, the solutions proposed by the rabbis are varied and imaginative. They consider, for example, the possibility of “unfriendly persuasion.” While all agree that a get must be granted willingly by the husband, sources as early as the Mishna allow for a certain degree of “pressure”: “We coerce him [the recalcitrant husband] until he says, ‘I am willing.’ ”
Few halachic statements, however, are as open to interpretation as this one. How much coercion is allowed? At what point does a get become invalid because the pressure applied has crossed over the line? No less an authority than the Rambam maintains that in a situation where a get is clearly warranted, a husband can even be physically pressured into becoming a “willing participant” in divorce proceedings. Other coercive steps, such as social pressure, communal ostracism, public humiliation and, where possible, even imprisonment have been used effectively in convincing recalcitrant husbands to relent.
Recent years have seen other proposed solutions. In certain cases, authorities such as Rabbi Moshe Feinstein have invalidated marriage ceremonies retroactively and allowed women to remarry, on the basis of halachic defects (such as unacceptable witnesses) in the original ceremonies. The Rabbinical Council of America and other groups have taken a proactive step, advocating the signing of a halachic prenuptial agreement. This agreement, a legal document designed to pass muster in civil court, obligates both the bride and groom to appear before a beit din (Jewish court) in the sad eventuality of a decision to divorce.
The document further obligates the husband to a fixed sum of daily support from the time the beit din determines that a get should be given until the time the divorce proceedings actually take place. This payment is not constructed as a fine, which would create an invalid “forced get,” but as a continuation of the customary support a husband is obligated to provide for his wife throughout marriage. The authors and proponents of the halachic prenuptial agreement hope that its widespread use will greatly minimize the incidence of igun throughout the Jewish community.
In spite of these and other rabbinic attempts to mitigate the phenomenon of igun, the problem understandably remains a vexing one for the Jewish community. One case of igun is one case too many; and, if anything, as we have noted, the number of cases in the Jewish community seems to be increasing. Given the deep pain that marks each instance, many observers feel frustrated with what they perceive as the inability of the rabbinate to simply “solve the problem.” Why can’t Jewish law find a way, they ask, to equalize the process of divorce?
While such protestations are certainly understandable, the move towards solutions at all costs can prove damaging, even to the agunot themselves. As a case in point, in 1996, a number of rabbis, including one of the leading thinkers of the Modern Orthodox movement, established an independent beit din, Beit Din Zedek L’Ba’ayot Agunot, specifically designed to deal with the plight of agunot. The centerpiece of this beit din’s approach to the problem was the halachic concept of mekach ta’ut, false sale.
Marriage, these rabbis reasoned, is fundamentally a contract between two individuals, and, like any other contract, must be marked by full disclosure at the time of the “deal.” According to Jewish law, if a participant in an agreement discovers that a critical detail was not shared with him at the time of a contract’s formalization, that individual may claim his rights as the victim of a false sale and abrogate the contract retroactively. A woman victimized by a recalcitrant husband, reasoned the founders of this beit din, can easily claim that at the time of her marriage, the true character of her husband to be was hidden from her. Had she known his true nature, as an individual who could now, consciously and sadistically, cause her such pain, she never would have married him. Under the laws of contracts, this claim alone should be enough to annul her marriage and render a get unnecessary.
As attractive as this solution seemed, however, it failed to garner support even in the most liberal corners of the Orthodox community. The activities of the Beit Din Zedek L’Ba’ayot Agunot were roundly condemned by a myriad of halachic authorities and by major Orthodox organizations including the Beit Din of America, affiliated with the Rabbinical Council of America and the Orthodox Union; Agudath Israel of America; the National Council of Young Israel and many others. In 1998, a petition signed by scores of Modern Orthodox rabbis warned that women remarrying on the basis of divorces obtained by this court would be considered adulterers according to Jewish law and that their children would be considered halachically illegitimate. “We are certain that virtually no Orthodox rabbi would be willing to officiate at weddings of women who wish to remarry based upon [the court’s annulments],” the authors of the petition proclaimed.
The strenuous and nearly unanimous criticism of the actions of the Beit Din Zedek L’Ba’ayot Agunot was based on the conviction that, although in selected cases the argument of mekach ta’ut can be used to annul a marriage, the criteria applied by this court for the revocation of marriages failed to approach even the most minimal legal standards for the determination of mekach ta’ut.
Of even greater concern was the potential impact of these decisions on the legality of future marriages. If a woman could cancel her nuptials retroactively in such facile fashion, the critics reasoned, what would prevent cancellation of marriages for a myriad other reasons, as well? Literally any husband or wife could seek an annulment on the basis of newly discovered “damaging” information concerning his/her spouse not known at the time of their marriage. “Had I only known…I never would have married him/her.” The very sanctity of the marital bond was at stake, and the battle had to be waged.
In hindsight, the argument can well be made that, in spite of the best of intentions, the Beit Din Zedek L’Ba’ayot Agunot performed a real disservice to the hundreds of women who obtained divorces under its auspices. Few, if any, authorities within the Orthodox community accepted the divorced status of these women and, consequently, their ability to remarry either in Israel or the diaspora was severely curtailed. So controversial were the actions of this beit din that even a leading Orthodox feminist and activist for agunot proclaimed that the actions of the Beit Din Zedek L’Ba’ayot Agunot had actually made the situation worse for the women involved. The efforts of the Beit Din Zedek L’Ba’ayot Agunot proved to be, at best, a classic case of good intentions gone awry.
The controversy surrounding the actions of the Beit Din Zedek L’Ba’ayot Agunot underscores the complexities that the Orthodox world faces as it struggles to ease the plight of agunot. Without question more can be done to address this tragic problem. Communities should certainly unite behind the efforts to identify and socially ostracize each individual who refuses to grant his wife a get. The use of proactive techniques such as the halachic prenuptial agreement should be made universal. Continued exploration of imaginative new approaches within the law to resolve the tragedy of every aguna should take place.
We must, however, also recognize the dangers of precipitous action. As deeply painful as the plight of each aguna may be, and as difficult as the law that gives rise to these situations may be to understand, the divinely inspired legal system that has preserved us as a people must, itself, be respected and preserved. An inauthentic approach, however appealing, can undermine that very system and cause unexpected, damaging consequences.
