Unaccepted Proposals to Solve the Aguna Problem - Part II by Rabbi Chaim Jachter


            Last week we outlined the consensus view of Hafkaat Kiddushin which severely restricts its application.  The consensus view is best summed up by Rav Dovid Zvi Hoffman (Teshuvot Melamed L'hoil III:51) who states that, "No God-fearing rabbi will state that rabbis today are empowered to perform Hafkaat Kiddushin in the absence of a Sanhedrin."  This week we will continue to illustrate this point by presenting the view of Rav Yitzchak Isaac Halevi Herzog.  Rabbi Emanuel Rackman, in a letter dated December 14, which he mailed to every member of the Rabbinical Council of America claims that the actions of his court are based on the halachic concept Hafkaat Kiddushin.  However, every major Orthodox authority has rejected this approach.  This essay, therefore, will endeavor to explain why.


Rav Herzog's View

            Rav Herzog (who served as Israel's Ashkenazi Chief Rabbi from 1936 to 1959) presents an exhaustive analysis of Hafkaat Kiddushin and the possibility of its modern day application in his monumental work, T'Chuka L'Yisrael Al-Pi HaTorah (1:57-91).

            Rav Herzog cites the many authorities that we cited last week who reject the application of Hafkaat Kiddushin in the post-Talmudic age.  Rav Herzog, however, notes a remarkable exception to this rule.  The Rama, in his commentary on the Tur (7:13) called the Darkei Moshe, notes an application of Hafkaat Kiddushin in the post-Talmudic age.  The application was in a case that occurred in Austria in which a group of women were captured by non-Jews.  Chazal (see Shulchan Aruch, Even Haezer chapter 7) forbade Kohanim to remain married to a "Shvuyah" (women who was taken captive) for fear she had been raped (a Kohen may not remain with his wife if she is, God forbid, raped).  In the aftermath of this tragic incident, the question arose as to whether the women who were married to Kohanim had to separate from their husbands.  The Rabbis of the time ruled that they were not required to separate from their husbands.  The Rama suggests that the rabbis annulled the marriages of these couples, thus permitting the women to remain with their Kohein husbands.

            Rav Herzog suggests that the lenient ruling was based on a "double doubt" (S'fek S'feika).  One doubt is that perhaps the women were not raped.  The second doubt is that perhaps Hafkaat Kiddushin can be utilized even in the post-Talmudic era.  Rav Herzog concludes that the matter requires further insight and clarification.  It should be noted, though, that nowhere in the Shulchan Aruch or its commentaries is the possibility of Hafkaat Kiddushin raised as a viable option or even as a consideration in a lenient ruling.  Accordingly, the ruling of the Austrian rabbis is rejected by normative Halacha.  Moreover, the fact that Chazal were exceedingly lenient in applying the halacha in the tragic case of "Shvuyah" and the fact that "Shvuyah" is only a rabbinic halacha, precludes any extrapolation from being made from"Shvuyah" to any other area of halacha.


Rav Herzog's Conclusion

            In light of this Darkei Moshe, Rav Herzog postulated that perhaps when the Sanhedrin in Yerushalayim will be reconstituted, the institution of Hafkaat Kiddushin will be restored.  However, Rav Herzog notes (p.93) that this is "merely a suggestion for future consideration."

            Nonetheless, Rav Herzog conclusively rejects the possibility of Hafkaat Kiddushin in the absence of a central rabbinic authority that is recognized by most Jews.  Rav Herzog notes that although the Shulchan Aruch (Choshen Mishpat, Chapter two) notes that the right of a communally recognized Beit Din to impose extrajudicial punishments (Makin V'onshin She'lo K'din) applies in all times, no mention is made anywhere in the Shulchan Aruch or its commentaries that communally recognized Batei Din have the right to be "Mafkia Kiddushin."  Rav Herzog writes that the explanation for this silence is that "from the time that the Sanhedrin ceased to function and centralized rabbinic authority ceased to exist, if Hafkaat Kiddushin were to be a live option, havoc and destruction would be wreaked on the purity and holiness of the Jewish family."  Rav Herzog concludes "that in the current state of affairs [no recognized central rabbinic authority] there is absolutely no possibility of "Hafkaat Kiddushin."

            Rabbi Emanuel Rackman, in an attempt to justify the actions of his highly controversial court which annuls marriages, cites the concept of "Hafkaat Kiddushin."  Rabbi Rackman's assertion is at odds with every recognized halachic authority.  Rav Soloveitchik, Rav Herzog, and Rav David Zvi Hoffman reject the possibility of "Hafkaat Kiddushin" in the strongest of terms.  It should be noted that Rabbi Rackman frequently cites these three authorities as role models for the Modern Orthodox community.


Methodological Note

            In 1994, Rabbi Walter Wurzburger published a book which has a become a modern classic, entitled "Ethics of Responsibility."  In this book, Rabbi Wurzburger endeavors to demonstrate the central role of ethical intuitions and ethical behavior within the halachic system.  Rabbi Wurzburger recounts Rav Soloveitchik's statement that halacha is "merely a floor not a ceiling" in determining ethical behavior.  An excellent example of this approach appears in a Mishna in Baba Metzia (4:2).

            However, Rabbi Wurzberger notes (p. 5) that:

I must emphasize, before proceeding with a more detailed exposition of my views, that, unlike many prominent Jewish ethicists, I am approaching this subject from a traditional Jewish perspective, accepting halacha as the supreme normative authority.  For me, halacha represents the revealed will of God.  The positions of classical Reform as well as of Conservative Judaism and Reconstructionism are [the] very antithesis of my approach.  For them, the prompting autonomous human conscience constitute the highest court of appeals in all ethical matters.

            Rabbi Wurzburger continues (p.7) to explain that:

What makes the halacha authoritative is the belief that, although there are numerous possible interpretations of the Torah, we are supposed to follow for normative purposes the decisions reflecting the majority opinion of the competent scholars of one's time.

            Accordingly, the claim that the Rackman - Morgenstern court can be based on the application of the concept of "Hafkaat Kiddushin" is simply beyond the pale of Orthodox practice, and, in the words of Rav Herzog, "has the potential to wreak havoc and destruction upon the holiness and purity of the Jewish family" because it will lead to the proliferation of Mamzeirim.  This is one of the many reasons why the entire Orthodox rabbinate adamantly refuses to recognize the rulings of the Rackman - Morgenstern court. 

            In the coming weeks we will continue to explain the many other reasons for the Orthodox rabbinate's rejection of the actions of the Rackman - Morgenstern court.

Unaccepted Proposals to Solve the Aguna Problem - Part III by Rabbi Chaim Jachter

Unaccepted Proposals to Solve the Aguna Problem - Part I by Rabbi Chaim Jachter