Tradition and Equality in Jewish Marriage

Beyond the Sanctification of Subordination

Melanie Malka Landau

• Verlag: Continuum
• Jahr: 2012
• ISBN:
  9781441184597
• Auflage: 1
• Thema: Social Sciences
• Thema: Feminism & Feminist Theory

Often when people have become alienated from their religious backgrounds, they access their traditions through lifecycle events such as marriage. At times, modern values such as gender equality may be at odds with some of the traditions; many of which have always been in a state of flux in relationship to changing social, economic and political realities. Traditional Jewish marriage is based on the man acquiring the woman, which has symbolic and actual ramifications. Grounded in the traditional texts yet accessible, this book shows how the marriage is an acquisition and contextualises the gender hierarchy of marriage within the rabbinic exclusion of women from Torah study, the highest cultural practice and women's exemption from positive commandments. Melanie Landau offers two alternative models of partnership that partially or fully bypass the non-reciprocity of traditional Jewish marriage and that have their basis in the ancient rabbinic texts.

Chapter 1

Laying the Table

This chapter frames the idea of approaching sacred ancient legal texts about Jewish marriage through an examination of the relationship between black letter law and the process of interpretation. The idea that lawmakers apply values in their interpretation of the law is a thread that runs through this book. It implies a moral responsibility upon lawmakers to respond ethically to problems of social injustice that arise in relationship to the application of laws.

As well as illustrating the other literature in the field of Jewish marriage and feminist rabbinics, the middle part of this chapter locates the non-reciprocal marriage relationship within the rabbinic schema of male – female relations that are described through the rubric of the exclusion of women from the cultural apex of learning Torah as well as the exemption of women from time-bound ritual commandments. Non-reciprocal marriage is thus bolstered by a broader system of gender hierarchy within rabbinic Judaism as well as by the expression of patriarchal society in its different guises.

The final part of the chapter explores other alternatives and approaches to traditional marriage besides conditional marriage and derekh kiddushin (quasi-marriage) which I discuss more in detail in Chapters 4 and 5 respectively.

Interpretation and authority

While the process of interpretation belies the notion that there is a determinate meaning of any text, the activity of interpretation has some constraints. Stanley Fish argues that we cannot avoid interpretation and that there are no ‘facts that exist in their own self-evident shape’. He says of those trying to get beyond interpretation:

The basic gesture, then, is to disavow interpretation in favor of simply presenting the text: but it is actually a gesture in which one set of interpretive principles is replaced by another that happens to claim for itself the virtue of not being an interpretation at all.¹

The significance and responsibility of interpretation is an important motif for feminist analysis of law. Despite the importance of interpretation, there also remains the formal legal text itself and I grapple with finding the correct language that accurately and fairly attests to the ancient and medieval Jewish texts about marriage, alongside my critique of their application in twenty-first-century Jewish life. This challenge is sharpened if I describe what I am doing as applying modern liberal values to ancient Jewish texts. Clearly, I do not expect the texts to reflect modern and postmodern sensibilities and I do not mean to invalidate the advances in status that those very texts may have represented for Jewish women. I am uncomfortable with the idea of grouping all the texts together, eliding the nuance and difference within the texts and their approaches to all things including gender and marriage, another important feminist methodology. Attention to detail helps to unpack the landscape of gender relations.

Approaching traditional texts within more contemporary moral frameworks raises questions about how their authority is maintained and transformed when they are subject to new and ongoing modes of analysis. In other words, I approach the Jewish texts with a keen awareness and consideration of the authority they invoke and engender in ever-changing and diverse, yet continuous ways. I relate my concerns about marriage in the context of the framework of this authority (even if at times that leads me to step alongside it). I do this, for example, by appealing to two models of relationship as alternatives to kiddushin that have some element of precedent within the historical Jewish legal corpus. I also speak to the authority the texts represent by appealing to internal and self-referential legal questions that are evoked, placing contradictory legal principles beside each other and calling them to account with respect to their own internal logic.² I am ambivalent towards the authority of the rabbis as invoked by other rabbis – on the one hand I do not want to disregard it and on the other hand I do not want to be solely bound to it, when, at times, I can also see its contingency and arbitrariness.

There are practical implications to this discussion of authority. Ancient texts and their commentaries should not only be approached as theoretical because they mandate the practice of traditional Jewish marriage today. Layered on the texts are also the sociological contours of how these laws are embedded in communities. Situations differ between, for example, other countries and Israel where there is no option for civil marriage and divorce and where issues of personal status are under the ambit of the religious authorities. Within Jewish communities outside Israel, despite having civil options, many Jews opt for marking lifecycle events in Jewish ways.

What happens to members of minorities when their own group discriminates against them, and when the discourse of rights has little currency within the internal norms governing the group?³ In the context of gay rights within minority communities, this has been described as the ‘tragic dilemma of someone being an outsider in a tradition they feel very much a part of’.⁴ Women who feel deeply connected to their Judaism could easily feel like an outsider in relation to certain laws, especially laws of marriage and divorce. Irit Koren, in her study of South Jerusalem modern Orthodox women, details interpretative strategies used by women ambivalently involved in traditional Jewish weddings.⁵ These women used interpretative strategies to be able to negotiate a way to perform the ritual acts (or obligations – or perceived obligations) that were otherwise at odds with their values.

Liberal philosophy accounts for the potential discrimination that results from the self-organization of minority groups through the quid pro quo of exit. The liberal quid pro quo of exit is the counterbalance for the liberal allowance to minority groups to self-organize despite some elements of their activities, within limits, being counter to liberal values of the State. However for many contemporary Jewish women, such as the ones interviewed by Koren, the liberal quid pro quo of ‘exit’ is not an option.⁶ The inadequacy of exit as a trade-off for allowing oppressive practices by minorities is well noted by Oonagh Reitman who says that ‘if exit is not possible for some people then it can not be relied upon to further the protective and transformative roles claimed of it’.⁷ Despite this limitation he does acknowledge that the possibility of exit and the concomitant exertion of pressure to prevent cultural annihilation can be used to promote reform.⁸ Reitman argues that with respect to Jewish women and divorce, exit does not pose a threat because of ultra-Orthodox groups wanting to ‘ensure ideological purity’.⁹ I do not agree with him. Historically, exit may have been the reason for some proposed and some eventual changes and leniencies being made in the law.¹⁰ On the other hand, it could be that the denominational outgrowth actually promotes ‘exit’ because ultra-Orthodox Jews are less concerned about the unity and inter-relations of the Jewish people (at least non-Orthodox) and more concerned about maintaining ‘ideological purity’ as Reitman suggests.¹¹ Thus the argument stands that women may be inclined to sacrifice membership of the group for the ‘higher purpose’ of preservation of cultural ideals or religious standards according to particular interpretations of their religious authorities. The role of exit is fraught where people hold a ‘multiplicity of affiliations’ that mean they want to both preserve their cultural identity and simultaneously fight for greater equality.¹² There are numerous ways to ‘preserve’ cultural identity, which is never a stable entity itself.

Pinhas Shifman, an advocate of civil marriage in Israel, argues that the starting point of this halakhic discussion about marriage must be the establishment of the moral position in the face of the problem.¹³ The technical, legal, formal means are of a second order that must arise after the position has been clarified by the legal decider.¹⁴

However this is not the view of all scholars or religious leaders. Rabbi Haym Soloveitchik, for example, juxtaposes human input with the proper divine content of religious law. He says:

If law is conceived of, as religious law must be, as a revelation of the divine will, then any attempt to align that will with human wants, any attempt to have reality control rather than to be itself controlled by the divine norm, is an act of blasphemy and inconceivable to a God-fearing man.¹⁵

It seems to me that his argument is polemical in that he wants to deny the necessity of the processes of secularism and ‘foreign’ ideologies on changing the law, although he accepts it if the change emerges from what he understands as religious conviction. He says:

Yet the contention of this paper is that at times the very intensity of religious conviction and observance can be conducive to a radical transformation of religious law, and that the very depth of religious attachment can play a supportive role in deflecting the divine norm from the path of its immanent development, and bring it into line with the needs and practices of the time.¹⁶

In his discussion of how medieval Franco-German Jews reinterpreted the laws of Judaism that prohibit suicide and raise serious concerns about optional martyrdom in a time of religious persecution, Soloveitchik says:

What had taken place was that law and logic had led men to an emotionally intolerable conclusion, one which denied their deepest feelings and more significantly, their deepest religious intuitions, and so the law was reinterpreted.¹⁷

It seems clear that Soloveitchik is differentiating between an ‘authentic’ halakhic sensibility, and justifying reinterpretation of the law on those grounds, and the reinterpretation of the law on feminist grounds for other issues that ‘deny one’s deepest feelings’ and ‘deepest religious intuitions’ like the problem of agunah (chained woman) and the unequal partnership between men and women in marriage. The parity of men and women is a deep religious intuition of mine. It is related to both of us – men and women – as humans being in the image of the divine and being mandated to have lives that reflect divine greatness and generosity in some way.

Jewish feminist scholarship – Scholarship on Jewish marriage

Although there has been much contemporary academic, rabbinic and communal attention on the plight of agunot (chained women) and mesuravot get (women whose husbands deny them a Jewish divorce), the overall problematization of the non-reciprocity of the marriage relationship has been the sole domain of feminist scholars such as Rachel Adler. Other feminist scholars such as Ruth Haperin-Kaddari, Susan Aranoff, Aviad Hacohen and Irit Koren provide a rich analysis of the non-reciprocal paradigm which includes alternative gendered presumptions to employ in current realities as well as the way contemporary women negotiate the gaps between the halakhic paradigms and their own lived values and experiences.¹⁸ All of the varieties of analysis are important and add to the full picture of understanding and the groundwork for more structural change in Jewish marriage.

My research is indebted to the growing body of Jewish feminist scholarship. One of the fathers of this scholarship, Daniel Boyarin, has influenced me in charting the rabbinic texts and constructing a map of gendered hierarchies and subversions within this framework. Most useful is his model of critiquing the texts from a feminist position from within the very heart of the tradition itself. He is engaging in...