1. Jewish law represents a modern term for the classic term: halakhah. While the term halakhah covers the whole range of Jewish laws, including civil law, family law, and also ritual law, religious prohibitions, and so on, the term Jewish law covers—basically—areas that have parallels in nonreligious law; see Menahem Elon, Jewish Law: History, Sources, Principles 93-110 (B. Auerbach & M.J. Sykes trans., Jewish Publ'n Soc'y 1994). For the purposes of the current article, however, I shall use both terms interchangeably.

2. See BT Yevamot 90b, 110a; BT Ketubot 3a; BT Gittin 33a, 73a; BT Bava Batra 48b; PT Gittin 4:2, 45c. The exact context of these passages will be discussed below. Hajka'at kiddushin (annulment) literally means cessation of the betrothal. The legal result, however, is annulment of marriage, and it is commonly used in this context. In the following discussion, I therefore refer to annulment of marriage and annulment of betrothal as synonymous unless otherwise explicitly specified.

3. For a preliminary discussion, see Abraham H. Freimann, The Order of Betrothal and Marriage after the Conclusion of the Talmud (1964) (Hebrew), (citing to classic literature, e.g., Rabbi Solomon ben Abraham Adret [Rashba] and Rabbi Asher ben Jehiel [Rosh] cited at 66-72); Eliezer Berkovits, Condition in Marriage and Writ of Divorce ch. 4 (1966) (Hebrew); Shochetman, Eliav, Annulment of Marriage—A Possible Way of Solving the Problem of Refusal to Provide a Get?, 20 Shenaton Ha-Mishpat Ha-Ivri 349 (1995–1997) (Hebrew)Google Scholar. Additional sources and references to modern debates are cited below. On the (more general issue of the) authority of the Sages to uproot the words of the Torah, see Gilat, Yitzhak D., A Rabbinical Court May Decree the Abrogation of a Precept of the Torah, in Studies in the Development of The Halakha 191–204 (1992) (Hebrew)Google Scholar; Elon, supra note 1, chs. 14-16.

4. See Atlas, Samuel, Pathways in Hebrew Law 206–24 (1978) (Hebrew)Google Scholar; Shochetman, supra note 3, at 352-55.

5. The problem of agunot has been extensively discussed in the last few decades in halakhic, scholarly and public forums. See, e.g., The Centre for Jewish Studies, Agunah Research Unit, available at www.manchesterjewishstudies.org/publications/.

6. See Friedman, Shamma Y., Tosefta Atiqta, Pesah Rishon 149 (2002) (Hebrew)Google Scholar.

7. See Avi Sagi, The Open Canon: On the Meaning of Halakhic Discourse (Batya Stein trans., 2007). Specific references will be supplied below.

8. See, e.g., Riskin's and Lifshitz's proposals, infra note 9.

9. See Goldberg, Rabbi Zalman N., Annulment of Marriage Is Not a Solution for Aginut, 23 Tehumin 158 (5763) (Hebrew)Google Scholar; Goldberg, Rabbi Zalman N., There Is No Annulment of Marriage Without a Writ of Divorce (Response), 23 Tehumin 165 (Hebrew)Google Scholar, as opposed to Rabbi Shlomo Riskin's proposal: Riskin, Rabbi Shlomo, Annulment of Marriage: The Solution for Aginut, 22 Tehumin 191 (5762) (Hebrew)Google Scholar. For an English version, see Riskin, Shlomo, Hafka'at Kiddushin: Towards Solving the Aguna Problem in Our Time, 36 Tradition 1 (2002)Google Scholar. Criticized by Wieder, Rabbi Jeremy, Hafka'at Kiddushin: A Rebuttal, 36 Tradition 37 (2002)Google Scholar. See also Riskin, Shlomo, Response, 36 Tradition 44Google Scholar; Wieder, J., Hafka 'at Kiddushin: Rejoinder, 37 Tradition 61 (2003)Google Scholar. Another debate is between Rabbi Uri'el Lavi and Prof. Berachyahu Lifshitz. See Lavi, Uri'el, Is It Possible to Annul the Marriage of One Refusing to Grant a Writ of Divorce?, 27 Tehumin 304 (5767) (Hebrew)Google Scholar, as opposed to Lifshitz's proposal: Lifshitz, Berachyahu, Whence the Sages' Annulment of Marriage, Mi-Perot Ha-Kerem 317 (2004) (Hebrew)Google Scholar.

10. This section includes a discussion of some classic Jewish law sources. Another paper of mine contains a more detailed textual discussion. See Westreich, Avishalom, Annulment of Marriage (Hafka'at Kiddushin) In Talmudic Sources: Re-Examination of an Old Debate, 27 Sidra (forthcoming, 2012)Google Scholar (Hebrew) [hereinafter Annulment]. For an earlier English version, see Avishalom Westreich, Annulment of Marriage (Hafka'at Kiddushin): Re-examination of an Old Debate (Agunah Research Unit Working Paper 11, 2008), available at www.manchesterjewishstudies.org/publications. In the current paper, I explore the basis for a legal-sociological discussion of the controversy.

11. BT Yevamot, 110a.

12. (Naresh is the place's name) The girl's agreement is not mentioned, but she probably gave it, at least after being kidnapped. Otherwise, the marriage would not be valid, and annulment would not be required. See Rabbenu Nissin ben Reuben Gerondi (Ran), BT Yevamot, 38a, in Alfasi (Rif) (Vilna ed.,); Rabbi Yom Tov ben Abraham Ishbili (Ritba), BT Yevamot 110a, s.v. Hu; Cf., Nahmanides, BT Yevamot 110a, s.v. Rav Ashi.

13. BT Bava Batra 48b.

14. The formal validity of the marriage is based on an expansion of Rav Huna's statement: “If someone were forced to sell, the sale is valid” which was made by Amemar: “If the wife were forced to accept the betrothal, the betrothal is valid.” BT Bava Batra Alb. Rav Huna's statement is discussed by Benny Porat, Coercion and the Principle of Contractual Justice: Jurisprudential Observation of “Talyahu ve-Zabin,” 22 Dine Israel: 22 Stud. Halacha & Jewish L. 49, 10206 (5763) (Hebrew). The moral problem with the husband's act is obvious, and is therefore a reason for taking action against it, even in violation of formal laws of marriage and divorce. This explanation rejects the assumed equivalency of formal halakhic rules and moral principles. For further discussion, see Avi Sagi & Saniel Statman, Religion and Morality 5-8 (Batya Stein trans., 1995). Accordingly, queries 1, 3, and mainly 4 in Porat, supra note 14, at 103, are easily resolved.

15. BT Yevamot 110a; BT Bava Batra 48b. Scholars dispute in which of the cases this statement was originally made. See Ben-Menahem, Hanina, He Acted Improperly, 81 Sinai 157 (1977) (Hebrew)Google Scholar; Shochetman, Eliav, Marriage As a Result of Duress, 105 Sinai 109, 118–20 (1990) (Hebrew)Google Scholar; Porat, supra note 14, at 106 n. 148.

16. BT Ketubot 2b-3a.

17. The children may be considered mamzerim; see infra, text accompanying nn. 77-81.

18. “On account of the chaste women and on account of the loose women” (BT Ketubot 2b-3a).

19. BT Gittin 72b-73a.

20. BT Gittin 33a; BT Yevamot 90b.

21. See further BT Gittin 33a, the various explanations of Rabbi Johanan and Resh Lakish to this enactment, and cf. PT Gittin 4:2, 45c. Interestingly, Resh Lakish explains this solution as- forestalling the problem of agunot; and according to Rashi's commentary, agunot here has the modern meaning: a married woman, whose husband (after cancelling the first writ of divorce) refuses to divorce her; see Rashba, BT Gittin 33a, s.v. Ve-Ha.

22. This reasoning is found in the Babylonian Talmud, but missing in the parallel texts in the Tosefta, BT Gittin 3:5) and in the Palestinian Talmud, PT Gittin 4:1, 45c); see Abraham Weiss, The Talmud in its Development 389, 389 n.366 (1956) (Hebrew).

23. Otherwise, it might be considered as a marriage made in error. See Shittah Mekubbetzet, Ketubot 3a, s.v. Kol Ha-Mekadesh.

24. Ritba explains the statement “according to the laws of Moses and Israel” as a sort of condition. It might also be the view of Rashi. See Riskin, Hafka 'at Kiddushin, supra note 9, at 12-14. Others dispute this. See Berkovits, supra note 3, at 120-21, 134-35. In the definition of marriage as a social institution, I follow Atlas, supra note 4, at 207-09. The common denominator in the various explanations is that the authority to annul marriage is unique to marriage and divorce, and not part of a wider authority of the Sages.

25. See Westreich, Avishalom, Divorce on Demand: The History, Dogmatics, and Hermeneutics of the Wife's Right to Divorce in Jewish Law, 62 J. Jewish Stud. 340, 360-63 (2011)CrossRefGoogle Scholar. For an earlier online version of this paper, see Avishalom Westreich, History, Dogmatics and Hermeneutics: The Divorce Clause in Palestinian Ketubbot and the Geonic Compulsion of Divorce (Agunah Research Unit Working Paper 15, 2009), available at www.manchesterjewishstudies.org/publications.

26. See Westreich, Annulment, supra note 10.

27. The dispute has been ongoing since the redaction of the Talmud, not only among classic commentators but even in modern times, among rabbis, religious judges, and Jewish law scholars. See the disputes between Riskin and Goldberg and between Lifshitz vs. Lavi, supra note 9; and between Berkovits and Shochetman, supra note 3.

28. Especially when the practical use of annulment is under discussion; see Goldberg & Lavi, supra note 9.

29. This view is opposed, for example, to Shochetman, supra note 3, at 397. Shochetman's conclusion is neither historically nor dogmatically decisive. Historically, it may reflect a specific stratum of the Talmud, but this view is not unanimous, so that the opposite view cannot be ignored. Dogmatically, his view reflects the Tosafist Ri ha-Lavan's approach (see infra, text accompanying note 31), but many other Rishonim (early post-Talmudic authorities) understand annulment as a retroactive act, while both are rooted in the ambiguity of the Talmudic text. In fact, the last Talmudic stage, which is the basis for those Rishonim, is, many times, more authoritative. (Shochetman does not accept this in our case, given his analysis of Maimonides's view regarding coerced marriage, according to which late Talmudic strata do not have the authority of the Talmudic core. See Shochetman, supra note 15, at 117-21.).

30. See, e.g., Rashi, BT Gittin 33a, s.v. Tenah, Shavyuha; Tosafot, BT Gittin 33a, s.v. Ve-'afke'inhu; Nahmanides, BT Ketubot 3a, s.v. Shavyuha and elsewhere. The commentators, however, were partly influenced by stage (a), and therefore some demanded the existence of a writ of divorce in the annulment process. See infra, text accompanying nn. 38-44.

31. See Tosafot Ri Ha-Lavan (1954), BT Ketubot 3a, s.v. Kol De-Mekadesh.

32. See Atlas, supra note 4, at 211-14; Shochetman, supra note 3, at 355. This view is found also in Heilpern, Phinehas M., Teshuvot Be-'Anshe ‘Avert: Anti-Reform Polemic, Letter 13 (1845) (Hebrew)Google Scholar (cited by Mar'eh Kohen, BT Yevamot 90b; Atlas, loc. cit.). Following this approach, Teshuvot Be-'Anshe ‘Aven Letter 13, suggests an interesting amendment of the Talmudic text: “everyone who divorces [his wife] does it subject to the will of the Sages” (rather than: “everyone who betroths”), and therefore the Sages can prevent him from cancelling the writ of divorce (rather than annulling his marriage, as is the usual understanding). This suggestion has no basis in any textual witnesses or any of the early Talmudic commentators.

33. Shittah Mekubbetzet, BT Ketubot 3a, s.v. Ve-Khatav Ha-Ritva, in the name of anonymous commentators: “When we say that the Sages annul his marriage, it does not [apply retroactively] from the time of betrothal, but [it applies] now, at time of the act.”

34. Rabbi Moses Sofer, Hiddushei Hatam Sofer, BT Gittin 33a, s.v. Tenah.

35. See Rashi, BT Ketubot 3a, s.v. Shavyuha.

36. See Edrei, Arye, The Beit Din's Prerogatives In Marital Law, 21 Shenaton Ha-Mishpat Ha-Ivri 1, 34–35 (1998–2000) (Hebrew)Google Scholar. Edrei argues that this view is not found in previous writings, neither by, Rishonim nor by modern scholars. Some examples of sources which did discuss this view are cited supra, at text accompanying nn. 33-35.

37. See Sofer, Hiddushei Hatam Sofer, BT Gittin 33a, s.v. Tenah.

38. See Rabbi Menahem ben Solomon Me'iri, BT Ketubot 3a, s.v. Kol She-'Amru. Rabbis Riskin and Wieder disagree whether Me'iri accepted this view, as does Riskin, Response, supra note 9, at 47-48 (correctly, to my opinion); or rejected it, as does Wieder, Rejoinder, supra note 9, at 64-67.

39. Rashi (according to some opinions); Rabbi Joseph ben Meir ibn Migash (Ri Migash); Nahmanides and his school: Rabbi Aaron ha-Levi (Ra'ah); Rashba, and more.

40. The fear of the “slippery slope” is described by Rabbi Ben-Zion M.H. Uziel, the Mishpatei Uzi'el Responsa, Part 2, Even ha-`Ezer § 87 at 385 (1937-38).

41. This might be the reasoning of the view that the demand for a writ of divorce results from the fact that the marriage was properly effected. See, e.g., Ra'ah (Shittah Mekubetzet, BT Ketubot 3a, s.v. Ve-Khen Katav Ha-Ra'ah).

42. See Ri Migash, cited in Me'iri, BT Ketubot 3a, s.v. Kol She-'Amru, as “Ge'onei Sefarad [i.e., the Spanish authorities]”; and similarly, Rashba, BT Ketubot 3a, s.v. Kol De-Mekadesh.

43. See Rashba, loc. cit.; Rashi, BT Shabbat, 145b, s.v. Le-'Edut. Rashi's view here contributes to the uncertainty about the exact meaning of his approach regarding annulment. See Lavi, supra note 9, at 306; Shochetman, supra note 3, at 360; Berkovits, supra note 3, at 133-41; Riskin, Hafka'at Kiddushin, supra note 9, at 12-14, 33-34, notes 23-26; Riskin, Response, supra note 9, at 46-47 (a response to Wieder, Rebuttal (supra note 9), at 39-40). It seems to me that Rashi views the writ of divorce as a supportive element for the annulment process, which is indeed required, but not substantial, so that it could be replaced by other elements (since the annulment does not validate the writ). Therefore, annulment could be initiated with the support of one witness, without a writ of divorce.

44. See Berkovits, supra note 3, at 127-39 (discussing Rashi and Rashba's views).

45. See Conclusion, infra. For further discussion, see Jackson, Bernard S., Agunah: The Manchester Analysis 215–60 (2011)Google Scholar.

46. BT Eruvin 13b.

47. This position is not the only view. We see in the Talmudic literature the tension between the view expressed in “these and those are the words of the Living God” and those emphasizing the importance of halakhic traditions, with its consequent difficulty in recognizing opposing opinions. Nonetheless, the dominant trend is to acknowledge the authority of the expositions of the Sages. See BT Bava Metzia 59b, and cf. Statman, Daniel, Autonomy and Authority In Achnai's Oven, 24 Bar-Ilan L. Stud. 639–62 (2008) (Hebrew)Google Scholar; Stone, Suzanne Last, In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory, 106 Harv. L. Rev. 813, 834-65 (1993)CrossRefGoogle Scholar, and from here-legitimacy to a range of views. See Sagi, supra note 7, at 1-7. This determination is assisted by two additional aspects, normative and practical, as here described.

48. See BT Shabbat 88b. On the term “seventy faces to the Torah,” see Mack, Hananel, “Seventy Aspects of the Torah”-Concerning the Evolution of an Expression, in, 2 Rabbi Mordechai Breuer Festschrift: Collected Papers in Jewish Stud. 449 (Asher, Moshe Bar ed., 1992) (Hebrew)Google Scholar.

49. Seder Eliyahu Zutta, 2 (Ish-Shalom ed.,) 172.

50. See, e.g., BT Berakhot 8b-9a (“Rabbi Simeon is worthy [i.e., sufficiently authoritative] to rely upon in a case of emergency”).

51. See BT Shabbat 130a.

52. M Yebam. 1:4. It is noteworthy that the Talmudic interpretation of the Mishnaic statement limited its pluralistic meaning. According to the Talmud (BT Yevamot 13b-16a), the Houses did not abstain from marrying women from the other's House in general, but they did abstain from marrying each other's women if they were the subject of a dispute between the Houses, and they notified each other about such women. The Houses, according to the Talmud, respected the other's view, which they regarded as legitimate—as may be expected following a pluralistic approach-although they did not adopt it for themselves.

53. See 2 Controversy and Dialogue in Halakhic Sources 855–964 (Ben-Menahem, Hanina, Hecht, Neil & Wozner, Shai eds., 1994) (Hebrew)Google Scholar.

54. Sagi, supra note 7, at 67-107. Alongside recognition of the authority of sundry positions, it is necessary for practical reasons to decide that such position is the law, a decision left to the rabbis (see id. at 71-87). The significance of internal pluralism from the point of view of halakhic decision-making is that it justifies recognition of the possibility of change in the law from accepted practice (id. at 93-97; M Eduyot 1:4-6).

55. Sagi, supra noteT, at 11-65.

56. This is “weak pluralism” as defined by id. at 185-86.

57. See Elon, supra note 1, at ch. 36.

58. The complex relationships between history and the development of the halakhah are extensively discussed by scholars; see Ta-Shma, Israel M., Halakhah, Reality, and the Concept of Historical Change, in Creativity and Tradition 102–10 (2006)Google Scholar, and the literature cited by him.

59. Elon, supra note 1, at 266-67.

60. Id. at 267-72. Cf. Ta-Shma, “The Law Is in Accordance with the Later Authority” Hilkhetya Ke-vatra'ei—Historical Observations on a Legal Rule.” Id. at 142-65.

61. Gadamer characterizes the hermeneutic process as a procedure of the merger of horizons. See Gadamer, Hans-Georg, Truth and Method 300–07 (Sheed, & Ward, 1993)Google Scholar. The application of this hermeneutic theory is quite extensive, from classic exegesis, see Halbertal, Moshe, Interpretive Revolutions in the Making: Values as Interpretive Considerations in Midrashei Halakhah 181–203 (1999) (Hebrew)Google Scholar, to modern law. See Mautner, Menachem, Hans-Georg Gadamer & the Law, in Menachem Mautner, Law & Culture 83 (Bar Ilan U. Press 2008)(Hebrew)Google Scholar, also available as Mautner, Menachem, Hans-Georg Gadamer & the Law, 23 Tel Aviv U. Stud. Law 367 (2000)Google Scholar.

62. We should note that the transition from the Gadameric merger of horizons (supra note 61, id.) to a pluralistic view of exegesis (and specifically the legal-halakhic exegesis) is not self-understood. Gadamer emphasizes the historical-diachronic aspect of exegesis, and thus is liable to negate the existence of a range of positions within a given time (i.e., the simultaneous existence of a number of valid exegeses is not a necessary conclusion). Nevertheless, we could formulate Gadamer's stance in a different way by employing the term “culture” (i.e., exegesis as the merger of horizons between the cognition of the commentator, as forged by the culture-the tradition, in Gadamer's terms-and the object of the exegesis), as presented recently by Mautner. Mautner, supra note 61, at 91-98. This formulation paves the way for a pluralistic understanding of the hermeneutical position: exegesis is a meeting between the text and the culture in which the commentator is active. An assortment of cultures, however, concurrently exists, and therefore many cultures justify the creation of an assortment of valid exegeses in any given time, all which, in their own ways, fulfill the merger of horizons process. I thank Prof. Avi Sagi for this observation.

63. See Sagi, supra note 7, at 88-90 (quoting from Rabbi Hutner).

64. E.g., Hart's model of secondary rules; see H.L.A. Hart, The Concept of Law ch. 5 (1994).

65. For Dworkin's, and other philosophers' conception of the role of interpretation in legal reasoning; see Julie Dickson, Interpretation and Coherence in Legal Reasoning, Stan. Encyclopedia Phil. Sect. 2 (2005), http://plato.stanford.edu/entries/legal-reas-interpret/.

66. See Terumat Ha-Deshen responsa. 223; Rema, Even ha-`Ezer 157; Rema, Darkhei Moshe, Even ha-`Ezer 157:5. See also Westreich, Avishalom, 'Umdena as a Ground for Marriage Annulment: Between Mistaken Transaction (Kiddushei Ta'ut) and Terminative Condition, 20 Jewish L. Ass'n Stud. 330, 340–41 (2010)Google Scholar.

67. See Westreich, supra note 66.

68. See Rabbi Joseph Caro, Bet Yosef, Even ha-`Ezer 157, s.v. Katuv Bi-Terumat Ha-Deshen.

69. Freimann, supra note 3, at 386-88.

70. Abraham H. Freimann assembled most of the material in his book Order of Betrothal and Marriage. See Freimann, supra note 3. The modern period is discussed at 310-45; as Freimann states: “what internal pressure did not accomplish, external pressure did […] [W]ithin the period of about a hundred years (1804-1901) seven regulations annulling illegally performed marriages (in accordance with state law) were passed and practiced in various countries, including Italy and France, Algeria and Egypt.” Id. at 345.

71. See Berkovits, supra note 3; Riskin & Lifshitz, supra note 9.

72. This is Shochetman's conclusion, based upon exegetical considerations; see Shochetman, supra note 3, at 397. This is also the position taken by Rabbi Z. N. Goldberg in his reaction to Rabbi Riskin's proposal to annul marriages. See Goldberg, supra note 9. For a detailed discussion on the need for a writ of divorce in the annulment process, see Sect. I, text accompanying nn. 37-44.

73. Thus Lifshitz analyzes the position taken by his opponents. See Lifshitz, Berachyahu, On Tradition. Authority, and Argumentation, 28 Tehumin 82 (2008) (Hebrew)Google Scholar.

74. Uziel, Mishpetey Uziel, supra note 40.

75. See Yehudah Abel, The Plight of the ‘Agunah and Conditional Marriage 8-30 (Agunah Research Unit, Working Paper 4, 2008), available at http://www.mucjs.Org/MELILAH/2005/l.pdf; Abel, Yehudah, Confronting ‘Iggun: A Combination of Three Possible Solutions to the Problem of the Chained Wife in Jewish Law 3–45 (Deborah Charles Publications 2011)Google Scholar.

76. For the use of prenuptial agreements, see Rachel Levmore, Min'i Einaikh Mi-Dim'a: Prenuptual Agreements to Prevent the Refusal to Grant a Writ of Divorce (2009) (Hebrew). For her short article on the matter, see Levmore, Rachel, The Prenuptial Agreement for the Prevention of Get-Refusal, 5 Jofa J. 4 (2005)Google Scholar, available at http://www.jofa.org/pdf/05jofasummer.pdf. For an example of the complex meto-halakhic opposition, which includes aspects of policy, authority, and political issues, see Rabbi Eliezer Melamed, Pre-Nuptial Agreement-Don't Sign! (2004), available at http://www.yeshiva.org.il/midrash/shiur.asp?id=2316 (Hebrew). The issue of prenuptial agreements as well as other issues relating to our subject, were intensively discussed. See, e.g., Dichovsky, Rabbis Shlomo, Monetary Prenuptial Agreements, 21 Tehumin 279 (2001) (Hebrew)Google Scholar; Mishlov, David, Prenuptial Agreements, 21 Tehumin 288 (2001) (Hebrew)Google Scholar; and Sheinfeld, Avraham Zvi, Prenuptial Agreements, 22 Tehumin 148 (2002)Google Scholar.

78. “The mamzer who is learned in the Law precedes the High Priest who is ignorant of the Law.” M. Horayot 3:8. This statement has practical implications: when both lives are in danger and only one can be saved, the mamzer's life should be saved first. More importantly, this passage reflects the social superiority of the learned mamzer over others. PT Horayot 8:5, 48c: his superiority also applies for any honor shown to a social and spiritual leader.

79. Eccl 4:1 (new JPS translation).

80. See Lev. Rabbah 32:8.

81. See Michael Wigoda, Examination of Suspicions Concerning Proper Lineage in the Rabbinical Courts, July 7, 2003, available at http://www.justice,gov.il/NR/rdonlyres/3C0698FD-F349-42AE-A8DA-6D51DA80ED96/7130/39berureimamzerut.doc.

82. This solution was first suggested (in theory, rather than for practical use) by Rabbi Shalom Mordechai ben Moses Shvadron (Maharsham) at the end of the 19th century. See Shvadron, Rabbi Shalom Mordechai, The Maharsham Responsa, Part 1, § 9, at 17–19 (1974)Google Scholar. The procedure of the annulment (known as Get Maharsham) is as follows: The husband (whose participation is essential) sends his wife a writ of divorce by a messenger, but cancels it before it reaches her possession. On the basis of the Talmudic annulment of marriage in the messenger case at Sect. I, above, due to the cancellation of the writ of divorce, the marriage is retroactively annulled. See Rabbi Shalom M. Shvadron, id.

83. See Auerbach, R.S.Z., Concerning the Rabbinical Annulment of Marriage, 16 Torah She-Be'al Peh 36 (1974) (Hebrew)Google Scholar. Others rejected this proposal as well. See, e.g., Atlas, supra note 4. Israeli rabbinical courts, however, sometime use this solution. Infra note 89.

84. Atlas, supra note 4, at 53.

85. Supra text accompanying nn. 58-63.

86. Sect. I text accompanying nn. 37-44, where I argue that according to most writers, the Talmudic annulment is retroactive, and a writ of divorce is not a substantial part of this process. Accordingly, the Sages can, in principle, annul the marriage of a recalcitrant husband.

87. Lavi, supra note 9.

88. See infra, text accompanying nn. 91-96.

89. Rabbi David Malka, a severe critic of the marriage annulment proposal on behalf of agunot, admits that in extreme cases, to prevent mamzerut, rabbinical courts use marriage annulment. See David Malka, No Marriage Annulment for Women Refused a Writ of Divorce, available at www.psakdin.co.il/fileprint.asp?FileName=/Mishpaha/Public/artccaa.htm, end of second section.

90. See Auerbach, supra note 83. The issue is quite complex, and requires an intensive discussion of the Talmudic sources. In short, marriage annulment to prevent mamzerut is based on the view of Rabban Simeon ben Gamaliel (5th Talmudic case, § I, text accompanying nn. 2022, supra), as suggested by Maharsham (see supra note 82). But according to important halakhic decision makers (presumably including Maimonides), the law was determined according to the disputant, Rabbi Judah ha-Nasi. The supporters of marriage annulment to prevent mamzerut use innovative interpretations in order to ascribe the concept of annulment to Rabbi Judah ha-Nasi as well (Auerbach, id.). On the other hand, marriage annulment on behalf of agunot is proposed to be based on an explicit enactment, one not necessarily linked to the rejected view of Rabban Simeon ben Gamaliel. See, e.g., Lifshitz, supra note 9, at 318.

91. See, e.g., Goldberg, supra note 9.

92. See Rema regarding annulment in the Austrian pogroms (Darkhei Moshe, Even ha- `Ezer, 7:13). That case was not one of divorce. Nonetheless, the legal construction of annulment fashioned by the rabbis in this instance was quite similar to our case of a recalcitrant spouse, and did not require a writ of divorce.

93. See Sect. II, supra text accompanying nn. 30-44.

94. See, e.g., the rejection of conditional marriage as a solution for agunot. Abel, supra note 75.

95. See Westreich, Avishalom, The Right to Divorce in Jewish Law: Between Politics and Ideology, 1 Int'l J. Jurisprudence Family 177, 192–96 (2010)Google Scholar.

96. For further discussion, see Jackson, supra note 45, at 29-43.

97. See, e.g., Rosen-Zvi, Ariel, Forum Shopping between Religious and Secular Courts (and Its Impact on the Legal System), 9 Tel Aviv U. Stud. L. 347, 347–96 (1989)Google Scholar; Dichovsky, Rabbi Shlomo, The Rabbinical Courts and the Civil Courts: Thoughts About the Areas of Friction Between Them in Family Law, 4 Moznei Mishpat 261, 261–302 (2005), available at http://www.netanya.ac.il/content/law/mozd77.pdf (Hebrew)Google Scholar; Shifman, Pinhas, The Jewish Halakhah in a Changing Reality: What Withholds Those Withheld a Divorce?, 6 Alei Mishpat 27, 27–46 (2007), available at http://www.clb.ac.il/journal/aly_mishpat/2007/027-046.pdf (Hebrew)Google Scholar.

98. The conflict between the civil and rabbinical courts has numerous implications for the positions taken by the latter. See Shifman, Pinhas, The Rabbinic Courts-Whereto?, 2 Mishpat Umimshal: L. & Gov' Israel 523, 523–24 (1994) (Hebrew)Google Scholar; and see also recently the cases of a mistaken divorce: Radzyner, Amihai, From Lvov to Tel Aviv: “Mistaken Divorce” Judgments in the Israeli Rabbinical Courts, 39 Mishpatim 155Google Scholar (Hebrew U. L.J.) (2009) (Hebrew). Below, I will exemplify the conflict from the issue of tort compensation for agunot because of its affinity to the subject matter of this essay.

99. See, e.g., Family Court (Jerusalem) 19270/03, K. Sh. v. K. P (21.12.2004). On the issue of tort compensation to chained spouses, see Blecher-Prigat, Ayelet & Shmueli, Benjamin, The Interplay Between Tort Law and Religious Family Law: The Israeli Case, 26 Ariz. J. Int'l & Comp. L. 279 (2009)Google Scholar.

100. See Lavi, Uriel, Execution of a Get After the Husband is Held Liable to Compensate His Wife, 26 Tehumin 160 (1996) (Hebrew)Google Scholar. The harsh stance taken by the rabbinical court against tort compensation to agunot is reflected in a number of recent rabbinical court decisions. See, e.g., Higher Rabbinical Court, Mar. 11, 2008, case no. 7041-21-1, briefly quoted in 19 Ha-Din Ve-Ha-Dayan 6 (2009) (Hebrew).

101. See Dichovsky, supra note 97, at 294-301. See also the case of N.Y. Domestic Relation Law § 236 B(5)(h), (6)(d), act of July 17, 1992 (the “New York Get Law”): many halakhic decision makers argue that a writ of divorce given on the basis of this legislation is problematic since it was not fully willingly given. However, the attempt to approve the writ of divorce at least on a post factum level: Broyde, Michael J., Marriage, Divorce and the Abandoned Wife in Jewish Law 103–17 (Ktav Publ'g Inc. 2001)Google Scholar.

102. Note the acerbic and emotional debate surrounding Rabbi Emanuel Rackman's court because he resolved the problem of agunot using the doctrine of mistaken marriage. See, e.g., Bleich, David J., Survey of Recent Halakhic Literature: Kiddushei Ta'ut: Annulment as a Solution to the Agunah Problem, 33 Tradition 90, 90–128 (1998)Google Scholar; Broyde, Michael J., Review Essay-An Unsuccessful Defense of the Beit Din of Rabbi Emanuel Rackman: The Tears of The Oppressed by Aviad Hacohen, 4 Edah 1–28 (2004)Google Scholar; Aranoff, Susan, Response, 5 Edah 1–4 (5765)Google Scholar. The fear of expanding the authority of this court or any other non-official court is therefore understandable. Indeed, this fear is more relevant in the American context than in the Israeli context. Nonetheless, proposals for establishing a non-official system of rabbinical courts have been raised in the State of Israel, as well, for the most part by the press.

103. A slightly different and interesting phenomenon occurs with regard to civil marriages. The proposal that Israeli law should adopt a model of civil marriage alongside religious marriages is not new, and there are some halakhic writings that even support it. See Shifman, Pinhas, Civil Marriage in Israel: The Case for Reform (1995) (Hebrew)Google Scholar; Bakshi-Doron, Rabbi Eliyahu, The Law of Marriage and Divorce: Is It Worthwhile?, 25 Tehumin 99 (2005) (Hebrew)Google Scholar. A few years ago, when the recognition of civil marriages came before the courts, the rabbinical court chose not to reject them, but granted them halakhic legitimacy, thereby claiming authority over divorce in civil marriages. See Rabbi Dichovsky's decision in High Rabbinical Court file no. 4276/63 (Nov. 11, 2003). The strategy of this compromise (recognition of civil marriage by subjecting it to rabbinical authority) proved itself when the Supreme Court also accepted it. See HCJ 2232/03, Plonit v. the Tel-Aviv-Jaffa Rabbinical Court and others (3) P.D. 61, (2006) 496. Some aspects are still the subject of controversy. See Avishalom Westreich, Civil Marriage after ‘The Noahides’ Case (forthcoming).

104. There are, however, issues regarding which the rabbinical courts in practice accept the principles of civil law, e.g., in the realm of inheritance law. See Hacker, Dafna, Religious Tribunals in Democratic States: Lessons from the Israeli Rabbinical Courts, 27 J.L. & Religion (2011–2012), available at SSRN:http://ssrn.com/abstract=1691671Google Scholar. Hacker formulates “a three-variable model” (religious, cultural, and institutional variables) for explaining the significant difference between inheritance law and divorce law. Id.

105. There are attempts to implement compensation for damages from within the halakhah. See, e.g., Warburg, Ronald, Recovery for Infliction of Emotional Distress: Toward Relieffor the Agunah, 18 Jewish L. Ann. 213 (2009)Google Scholar. The rabbinical courts support this, at least in principle, as was stated in their decision. See Ha-Din Ve-Ha-Dayan, supra note 100, at 7-8. Nonetheless, in our case, halakhic recognition will lead to the diminishing of the rabbinical court's power and authority, as mentioned above, with the resulting struggle regarding halakhic recognition of annulment.

106. See supra text accompanying nn. 72-74.

107. Bourdieu, Pierre, Sociology in Question (Sage Publications Ltd. 1994)Google Scholar; Bourdieu, Pierre, The Dynamics of the Fields, in Distinction, A Social Critique of The Judgment of Taste 226 (Harv. Univ. Press 1987)Google Scholar. Bourdieu's sociological analysis and his description of the characteristics operating in differing social fields appear at times to have been especially drawn for the current issue. See Bourdieu, Pierre, Some Properties of Fields, in Sociology in Question 72Google Scholar [hereinafter Bourdieu, The Fields]. For an analysis of the legal field, see Bourdieu, Pierre, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 805 (1987)Google Scholar [hereinafter Bourdieu, Law]. In its essential characteristics, the legal field is most similar to the situation involving the annulment controversy, although there is also an affinity to the religious field. See Bourdieu, Pierre, Genesis and Structure of the Religious Field, 13 Comparative Soc. Research 1 (1991)Google Scholar. In actuality, Bourdieu's field theory has its roots in the analysis of the religious field, influenced by and further developing the social writings of Karl Marx and Max Weber. See the analysis of this theory by Swartz, David, Bridging the Study of Culture and Religion: Pierre Bourdieu's Political Economy of Symbolic Power, 57 Soc. Religion 71 (1996)CrossRefGoogle Scholar.

108. See Bourdieu, The Fields, supra note 107, at 72-73.

109. Id. at 73-74.

110. Bourdieu thereby reflects the balance between historical-social materialism and idealism. See Swartz, supra note 107, at 71-74.

111. See Malka, supra note 89, third section.

112. From this aspect, our case is different from the right to divorce debate, which I have described elsewhere, focusing on the ideological conflict between rabbinical judges themselves. See Westreich, supra note 95, at 193-95.

113. Bourdieu, Law, supra note 107, at 841-53.

114. Bourdieu, Sociology in Question, supra note 107, at 33-34.

115. Malka, supra note 89, 3d section, as a direct response to Lifshitz's (ironical?) call for the rabbis to act. See Lifshitz, supra note 9, at 324. Similarly, Goldberg establishes boundaries between the legitimate and illegitimate use of halakhah (after he presented his internal halakhic arguments against Riskin's proposal to annul marriages): “I have a great request, that the proposing rabbi will agree to what we have written and will publicize them, so that reckless, irresponsible people will not come and stumble over these things, and the merit of the public is dependent upon him.” See Goldberg, supra note 9, at 160 (emphasis added).

116. Malka is cited above, supra note 115. Lavi plays a significant role in the polemic around Berachyahu Lifshitz's proposal. His character as a gatekeeper is reflected, for example, in blaming Lifshitz as being “an affront to previous generations.” See supra text accompanying note 87.

117. Goldberg, on the other hand, is much more recognized, and may even be considered as a highest level halakhic decision maker although he was directly involved in the polemic. See his two responses to Riskin's proposal, supra note 9.

118. Indeed, the characterization of social frameworks by means of their singular components, considering the discourse and interaction within them, also appears in other sociological models. See, e.g., Luhmann, Niklas, Law as a Social System, 83 Nw. U. L. Rev. 136 (1988–1989)Google Scholar; Swidler, Ann, Culture in Action: Symbols and Strategies, 51 Am. Sociological Rev. 273 (1986)CrossRefGoogle Scholar. Nonetheless, in my opinion the model suggested by Bourdieu is the most suitable for our subject, from both the point of view of the internal discourse (strategies of preservation and repudiation) and considering this social framework in its broadest context as a struggle against any deterioration of the authority of the rabbinical framework, as described above.

119. See infra Sect. II, text accompanying nn. 53-58.

120. This has certainly come to the forefront in the recent polemic over conversion in the State of Israel, where the Supreme Rabbinical Court under the rabbinical judge Rabbi A. Sherman invalidated the conversions carried out by a special conversion court (which also has formal status as a court in the State of Israel) under Rabbi Hayyim Drukman. (High Rabbinical Court case no. 1-64-5489 [10.2.2008]). A perusal of the court decision indicates its focus of invalidating Drukman and his status as a halakhic authority, with less deliberation of the issues involving the converts themselves. This decision, however, is debated within the rabbinical court system itself. Israeli Chief Rabbi Shlomo Amar appointed a special tribunal, that retracted the High Rabbinical Court decision; Rabbinical Court (Tel Aviv) case no. 369472/1 (2.9.10), 26 Ha-Din Ve-Ha-Dayan 5 (2011) (Hebrew).

121. Rema, , Even ha-῝Ezer 28:21Google Scholar, who negates the practical use of annulment (“even here, we should be strict in practice”).

122. See the well-known case of the Egyptian enactment in 1901. Freimann, supra note 3, at 338-44.

123. See Westreich, Divorce on Demand, supra note 25, at 347-54.

124. On the view of Rosh regarding the Geonic rebellious wife (moredet). Id. at 360-61. Another famous example Is Isserlis's explanation of the Austrian pogrom case (Moshe, Darkhei, Even ha-`Ezer 7:13Google Scholar).

124. On the view of Rosh regarding the Geonic rebellious wife (moredet). Id. at 360-61. Another famous example Is Isserlis's explanation of the Austrian pogrom case (Moshe, Darkhei, Even ha-`Ezer 7:13Google Scholar).