The recent cancellation of an international conference on the problem of agunot, women unable to obtain a Jewish divorce because of recalcitrant husbands, once again brings to the fore the question of what to do when Halacha and morality seem to stand in contradiction. Or, to put it in another way, how to insure that the laws of Judaism coincide with the highest moral and ethical standards of the time.
Of course there are those who say that there can never be a contradiction between them, since Halacha represents the will of God and that cannot possible be immoral. For those who recognize the human element in Jewish law, however, who see Halacha as grounded in the Torah but having developed over the centuries in response to new conditions, the question is simply how to do this and still retain the continuity of the law.
In the question of the aguna, for example, can it really be God's will that a woman be held in chains, unable to remarry, while her "husband" goes on his merry way - all because the Torah says that the man and the man alone can issue a get (a Jewish bill of divorce)? Surely this law reflects a society in which women were not the equals of men and in which women sought not equality but protection under the law. Today the situation has changed, and a halachic solution is required. In the past, the power of rabbinic courts within an autonomous Jewish community was such that ways were always found to persuade the husband, to put it nicely, to do so.
That is no longer the case in Diaspora communities and in Israel. Although this should be possible, the facts indicate otherwise.
This would not be the first time that the sages were concerned with the rights of women. When they instituted the ketuba (marriage contract), it is obvious that they were concerned with protecting the rights of the wife. Their concern was not in finding a way to make a husband divorce his wife, but in finding the way to see to it that he did not do so in an arbitrary and cavalier fashion, casting out the woman with no means of supporting herself. They also were dealing with a moral problem, in that instance filling in a lacuna in Jewish law by mandating that the groom sign a document providing that he would support his bride and that there would be support even if the marriage ended (Ketubot 11a). However they did it, by process of interpretation or by takkanot (legislative decree), such as that of Rabbenu Gershom, the sages of Israel saw to it that Judaism dealt with moral issues so that the laws of the Torah and the laws of morality would not be in contradiction to one another.
Many laws found in the Torah that were no longer morally acceptable were declared inoperative one way or another. For example, the rite of breaking the neck of a heifer was abolished when "murderers increased," and the practice of making the suspect woman drink bitter waters was abolished "when adulterers increased" (Sotah 9:9). As for the death penalty, so prevalent in the Torah, the sages created so many regulations concerning it that for all practical purposes it ceased to exist.
Rabbi Louis Jacobs, in his book A Jewish Theology (1973), posited that from the point of view of "the good" - i.e. morality - there are three categories of Jewish observances: the significant, the meaningless and the harmful. He noted that there are very few of the latter and that most of them are in the area of women's rights. The main instance he cited was the case of the aguna. "The non-fundamentalist halachist," he wrote, "will seek to deepen understanding of the significant, try to discover possible meaning in the apparently meaningless and endeavor to mitigate the effects of the harmful without destroying the system as a whole."
The puzzling thing about the specific problem of the aguna is that we should easily be able to "mitigate the effects," since there are halachic solutions available that should be acceptable to the Orthodox, to say nothing of solutions proposed by scholars of the Masorti Movement, many of which should also be acceptable by all. The book Za'akat Dalot written by Rabbi Monique Susskind-Goldberg and Rabbi Diana Villa, published by the Schechter Institute, gives all of these proposed solutions in great detail, including the pre-nuptial agreement and the Lieberman clause in the ketuba that have been in use by the Conservative/Masorti Movement for more than 50 years. Since most of these have been proposed and even put into practice by Orthodox authorities in some localities, it is difficult to understand why they are not acceptable in Israel and why they are not universally adopted. The issue could be put to rest once and for all by concerted and courageous action, instead of which we see only hesitancy and a stubborn reluctance to face it.
Solomon Schechter once wrote that a return to Mosaism, following the laws of the Torah at their face value without taking into account the later developments of Jewish law, would be pernicious. Torat Adonai t'mima - God's instruction is perfect. Therefore any aspects of our practice that are not perfect must be reinterpreted to bring them into line with the highest standards of justice and mercy that are the very core of Judaism.
The writer is the head of the Rabbinical Court of the Masorti Movement and the Rabbinical Assembly of Israel.