New Book on Weddings
The footnotes are all in Hebrew as has become common in a growing number of English Judaica books. The notes, while not comprehensive do provide ample basis for one to look further into a particular topic. The English written in a very clear fashion which makes this accessible for almost anyone. It is also nice that each time a person is quoted, his birth and death dates are included which enables one to put the comments in perspective. Included are the opinions and customs of modern day rabbis including R. Joseph Baer Soloveitchik, R. Shlomo Zalman Auerbach, and R. Yisrael Chait of Far Rockaway.
The book can be purchased directly from R. Cinamon’s Yeshiva, Yeshiva Gedolah of West Hempstead by calling 516-882-3765 or emailing office@ygwh.org and indicating you want the book. The book is $12.
No more Bentchers: A Review of a Sefer Given as a Wedding Gift
by Eliezer Brodt
A wedding carries with it many customs, one of which is an attempt to use this ceremony to disseminate Torah. There was an old custom in many communities for people to write poems in honor of the simchas chasan and kallah. Others even wrote plays in honor of the bride and groom. One example is the Ramchal who wrote the play Ma’ashe Shimshon (as well as other poems for various weddings). In other communities there was a custom for someone to say a derasha at the chasunah for the same reason (in certain circles this still exists). Recently a newer custom evolved to print a sefer and give it out at the wedding.
It used to be a plain old bentcher was given out at a wedding, some, wanting something more substantial than a bentcher began giving out siddurim or chumashim. Today, in many circles, a sefer of some sort is given out to the wedding guests. Some times it’s an old work of some old famous relative of the family that has never been printed before, other times is a reprint from a relative of one of the wedding parties work which had been out-of-print. Some times its it’s torah from the groom or from some family member that’s making the wedding. What’s even more interesting about these seforim is many times they never reach the stores even the famous Biegeleisen who generally gets close to everything printed (to some known as Gan Eden). The market for these seforim many times is very small so the family never bothers bringing it to any stores. [Although, recently, various works of R. Reuven Margoliyot were reprinted for a wedding. It seems these were more widely disseminated as the republication forced Mossad HaRav Kook to reprint the works and to note that, according to them, the wedding reprint was a violation of their copyright.] The only way one gets the sefer is by being at the wedding or knowing someone who has been there. Other times it’s just pure luck – somehow one gets lucky and stumbles upon it. It’s a shame that a complete bibliography of such works can not really be written because there is no way to know all the works that have been published for these occasions.
A few months ago I was at the wedding of a good friend. As is now commonplace, the guests received a sefer – more correctly a collection of seforim – at this wedding. What follows is a review of that wedding gift.
First, I can only refer to this work as Mazkeret Nisuin Yehudah Vyael Hershowitz (a keepsake from the wedding of Yehudah and Yael Hershkowitz) as no other title is provided. The sefer is a paperback and is one hundred and thirty six pages long. It includes a few parts some of which have never printed before. The book was edited by the groom – R Yehudah Hershkowitz. R. Hershkowitz has authored many articles some of which appeared in Or Yisroel and Yeshurun dealing with many areas of learning and history.
The sefer contains four sections: section one is the sefer Ashes Chayil from R. Avrohom Yagel, section two are Shelios Uteshuvot from R. Avigdor Kara, section three is the Mamar al targum from R.Yakov Ben Chaim (ibn Adonijah), and section four is a Kuntres from R. Noach Berlin. I assume the reason why he printed it in this order is because Ashes Chayil is the most relevant to the wedding and then the other placement is based on chronological order. Prior to each section R. Herskowitz includes an excellent historical introduction to the work which follows.
The first part is the sefer Ashes Chayil from R. Avrohom Yagel. This work has been printed a few times even at a chasunah in 1994 of Zvi and Sarah Friedman in this edition R Herskowitz reset the type, which had not been done in the prior reprint, and added some notes.
The author R. Avrohom Yagel has been discussed at great length by Professor David Ruderman in his book Kabblah, Magic and Science. R. Avrohum Yagel was born in 1553. He corresponded with many gedolim of the time, amongst them the Ramah Mepano and R. Mordechai Dato. He was highly respected by the Ramah Mepano. He wrote many works on all areas especially science, many of which are still in manuscript and await publishing. One of his seforim is called Gaie Chezyon this work has been recently reprinted in English and Hebrew by Professor David Ruderman. It is a highly original work written in the form of dreams dealing with many topics. Many aspects of R. Yagel’s personal life can be gleaned from this work.
Ashes Chayil was first printed in Venice in 1606 and is a commentary on the thirty-first chapter of Mishlei which contains the verse of Ashes Chayil . R. Yagel wrote this work in honor of a friend’s wedding. The main idea of the work is to discuss what the role of a wife in marriage, to fear and love god, fear and love her husband and not to sit idle. R. Yagel notes that these same attributes apply not only for marriage but also when serving God. In the work there are many interesting explanations to different aggados of Chazal. Besides for this he writes many practical pieces of advice relating to marriage. For example, he writes, how the wife should get up early to prepare the household needs (pg 36). He writes that her voice should not be heard outside (Pg 40). Another point he makes is she should be careful to dress in a ts’neius manner and not to dress up like many woman to impress everyone (pg 49-50).
The next section are the Shelios u’Teshuvot of R Avigdor Kara. These teshuvot are printed here for the first time from manuscript. Here too R. Hershkowitz includes an excellent historical background about R. Avigdor Kara and his times. Although not much is known about R Avigdor Kara, R. Hershkowitz includes a brief history as well as a listing of the writings of two of his contemporaries which help with R. Kara’s biography: R. Yom Tov Melehuzan and R. Menachem Shalem. They were all active on the beis din in Prague during the same time periods (approx. 1390-1439). Besides for this R. Yom Tov Melehuzan was involved in kabblah as many of his works show whereas R. Menachem Shalem was more involved in philosophy. R Avigdor Kara was somewhere in between them as he was involved with both areas. In one of the teshuvot printed in this collection we see how R Avigdor Kara struggled trying to reconcile contradictions between Kabblah and philosophy. In the end R. Kara writes that he was successful and felt that he was able to show that there were no contradictions between the two. Both R. Yom Tov Melehuzan and R. Menachem Shalem were close with R Avigdor Kara quoting him in their respective works. R Avigdor Kara wrote many works on all areas. Some were printed many others remain in manuscript. One work, the Sefer Hapliah (more on this in a future post) was attributed to him but as has been recently proven is certainly not from him. The Sefer Hapliah although many write it is from R Nechunyah Ben Hakonah (see the many sources R Hershkowitz cites) but Professor Ta Shema (see his Kneset macharim Volume 3) and others have demonstrated that it’s a much later work.
R Herskowitz was perhaps unaware of some more sources on R Avigdor Kara. R. Yididiah Tiyah Weil brings that R Avigdor made a golem (Levushim Levadim pg 37). There is a nice chapter on R. Avigdor Kara in the controversial book Hachasidus from R. Ahron Marcus (chapter 28). Another point R. Hershkowitz missed is that the Zemir Achud Yuchud is attributed to him . This song is sung in many circles when the chasun gets an aliyah and has been subject to an excellent article by one of the experts on minhagim, R. Hamburger in his Shorshei Minhag Ashkenaz (volume 3 Pg 373- 397). While these contemporary sources are not mentioned, R. Herskowitz does provide many other sources.
The teshuvos which are included in this volume are on some very interesting topics. He discusses davening to angels and in general what function they serve exactly in tefilah. This is another great source for the well-known discussion of Machnesei Rachamim which has been treated thoroughly in the classic article of R. S. Sprecher (Yeshurun, vol. 3, pp. 706-29). It is also an important source for the debate, recently restarted again on this blog, regarding Professor Marc B Shapiro book. Another teshuvah deals with a work of R. Avigdor Kara’s which we do not have called Even Sappir. R. Avigdor explains what this work was, it appears to be rectifying contradictions between Kabblah and philosophy. For both these teshuvot R. Hershowitz provides some excellent background behind these topics. One other (of the many) interesting points found in this section is a early source that one should remove ones shoes before entering shul. This subject has been treated by many, most recently by R. Yecheil Goldhever in his now classic Minhaghei Hakehilos (volume one pg 3-7).
The next section is the Mamar Al targum from R.Yakov Ben Hayyim. This Mamar was very rare and exists in less than five chumushim in the world. R. Yakov Ben Hayyim was the famous editor for the Bomborg publishers in Venice. Much has been written about Bomberg, but suffice it to say it played a very important role in the history of the printing of seforim. Many of the seforim printed in this printing house have remained the same layout to this day such as the Mikros Gedolos Chumash, Shas Bavli and Yerushalmi and Rambam. R. Hershkowitz has a nice discussion on how exactly did R.Yakov Ben Hayyim edit the seforim. One of the famous points of interest with R.Yakov Ben Hayyim is that he became a Christian, not much is known as to when and why. R. Hershkowitz wants to suggest an interesting possibility that R.Yakov Ben Adoneiah did not do so willingly but rather was forced. [The inclusion of R. Yakov and R. Yagel has another connection, in that R. Yagel was erroneously accused of converting to Christianity.]
The Mamar Al targum discuses many interesting things amongst them when was Targum Onkelos given and written. He also has a big chidish L’ehalacha that sh’naim mikra ve’achad targum needs to be done during K’reias hatorah.
The last section is a Kuntres from R. Noach Berlin. This kuntres was never printed before. In this section R Hershkowitz does not provide that much of a biography about R. Noach Berlin as he and a friend are currently working on another work of R. Berlin the Meyin Hachacmah (which we eagerly await). R. Noach Berlin authored many famous works amongst them the Atzei Arazim (on Shulchan Orach Even Ezer) and Aztei Almughim (on eruv chaserios and netlayas yadaim). R. Chaim Volozhiner writes that after the Gra died the only person he had to consult with was R. Noach Berlin. This kuntres is on the topic of woman doing semicha. While discussing this topic he goes thru many others (as was the style of learning in those days) and deals with woman and mitzvos aseh sheha’zman grama especially Tefilin.
Kuntres ‘al Inyan Shabbat HaChatuna – A “Found” Book
Many times the rarity of a book is due to a controversy; either because it was limited in scope, i.e. was a polemic, and thus was no need to print thousands of copies or because of bans and the like. One such book is Kuntres ‘al Inyan Shabbat HaChatuna by R. Eliezer Supino (d. 1746). Until recently, it was thought this book no longer existed. But, a single copy (Unicum) was located and it has now been reprinted.
The book, as the title implies, discusses the Shabbat following ones wedding know as Shabbat HaChanutah or Shabbat haHatan. It was customary in many communities, mainly Sefardic but there is also evidence for some Ashkenazi as well, on this Shabbat, aside from the regular reading from the Torah, the parsha of V’Avrahom Zakan Bo B’Yamim was read for the groom. One may be asking so what could have possibly have been the controversy? In one community, Pisa, Italy, where R. Eliezer Supino was the Rabbi, rather then read the special parsha as the maftir, they read it for the 7th aliyah. That is, they finished the torah portion in 6 alyiot and for the seventh read the special parsha.
The question is whether as part of the seven obligatory aliyot can you read a parsha that is merely a custom? To this, R. Supino said yes. Well, somewhere between 1735-36 on one such Shabbat, there was a vistor from another city, Livorno, who witnessed this. [There is some question who this person was.] What basically happened was he went back to Livorno and told R. Dovid Meldola (1714-1810), a hazan, judge, and teacher in the Yeshiva in Livorno. R. Meldola thought strongly that R. Supino was 100% incorrect in allowing for such a custom, and now we have the start of the controversy. In the end, R. Meldola, in his Divrei Dovid (Amsterdam, 1753) devotes a considerable number of pages (18 simanim) to this topic – all attempting to show that R. Supino is wrong. R. Meldola didn’t stop there, he first elicited the help of a host of other important Rabbis who would say he was correct. This include, inter alia, R. Aryeh Lowenstamm the chief Rabbi of Amsterdam, R. Ya’akov Yehoshu Rabbi in Frankfort and the author of the Peni Yehosha, R. Yehzkeil Katzenelllenbogen the chief Rabbi of the tripe community AH”W, and some additional, lesser known (today) Rabbis.
R. Meldola didn’t stop at printing his own book on the topic, he wanted to make sure his book would be the only record of events. First, I must point out that R. Meldola published his book after R. Supanu (and other important figures) died so there was no one to dispute his events. Second, R. Supino, did not wait until anyone died, rather he published his version and the defense of his position in Kuntres ‘al Inyan Shabbat HaChatuna. Sometime around 1743, R. Supanu sent this to Amsterdam to be printed (Livorno, at the time didn’t have a printing press). But, after it was printed, R. Meldola got wind of the publication, and when it arrived by ship to Livorno, all the copies were seized. After reading it, word was sent to Amsterdam that all remaining copies should be destroyed. The printer gave everything up and all were destroyed. Thus, until now, it was thought this book was totally lost.
Shmuel Glick, the editor of the new Kuntres haTeshuvot, was looking through all the libraries to find all the responsa literature, and in Schocken Library he found the only remaining copy in the world of this book. The copy he found also contains some annotations which Glick thinks are that of R. Supanu himself. In this republication, Glick has done a beautiful job (as well as Mossad HaRav Kook). First, he includes an extensive introduction where all the above is from. Second, as mentioned above, until now we had a one sided story of the events, now we have both sides. Glick discusses and highlights the various differences between R. Meldola’s and R. Supino’s versions of the events. Third, he has completely reset the type of the book and included notes as well. Fourth, he then includes a photo reproduction of the actual work. And, finally, he includes to letters from R. Supino which were in manuscript.
In part, the reason this work is important aside from the actual question is its broader implications for the force of custom. R. Supino’s basic argument is the additional reading for the groom is a custom – but as a custom has the same status as the rest of the regular parsha. R. Meldola disputes this understanding of custom.
While this edition is excellent, I want to point out two small things, one is typographical error and the other not an error but an elaboration. The main footnote (which is terrific in scope) which discusses the custom of the special reading for the groom is in the Introduction, footnote 6. But, the references to it in the actual Kuntres (e.g. footnote 2, 62, 158) it refers to it as footnote 2. The second minor point is in a footnote (p. 28 n. 146), Glick discusses the usage of the saying מנהג ישראל תורה, but left off perhaps the most comprehensive discussion of this usage in R. Shmuel Ashkenazi’s Alfa beta kadmita, pp. 210-18.
In all, Shmuel Glick should be commended for an excellent work of a fascinating book. The book is printed by Mossad HaRav Kook and should be available wherever finer seforim are sold.
Rabbi Adam Mintz: Rabbi Henkin and The First Heter Agunot in America
By Adam Mintz
With the growth of the American Jewish community in the early part of the twentieth century, Jews began to assimilate and the predicament of the Jewish wife whose husband had abandoned her to live with a non-Jewish woman became an ever increasing phenomenon.[1] Many rabbis attempted to free the Jewish wife to remarry, even though she was unable to find the husband and receive a get. Some of the solutions were based on broad institutional enactments, while others dealt with the problem on a case-by-case analysis. One of the principles underlying the foundation of much of this discussion is the halakhic status of civil marriages and of weddings performed by Reform rabbis. Rabbis Feinstein and Henkin disagreed about the status of these marriages and this disagreement played an important role in their view of the agunah problem. Understanding their particular views is vital for the understanding of the agunah issue and for the appreciation of the important roles that these two American rabbinic giants played on this issue.
Rabbi Henkin discussed this issue in a number of articles and teshuvot. His earliest treatment of civil marriage appears in a series of articles in Hapardes in 1934, where Rabbi Henkin argued that a civil marriage is considered a marriage according to Jewish law and that a get would be required to terminate such a marriage.[2] He explained that a couple is considered halakhically married even though they did not have a Jewish ceremony and do not intend to be married according to Jewish law. According to Rabbi Henkin, the validity of the marriage is achieved by the fact that the couple lives together as husband and wife. He added that the Jews who see them together as a couple satisfy the requirement of witnesses in establishing the halakhic status of the marriage. In an article in his book, Perushei Ibra, Rabbi Henkin explained the rational for his position through the comparison to a similar historical situation.[3] He quoted a fascinating responsum of Rivash, Rabbi Isaac ben Sheshet Perfet (1326-1408), communal rabbi in Algeria who had fled Spain following the anti-Jewish riots of 1391.[4] Rivash described that he was approached by a woman who had been a converso in Majorca. After she had escaped to North Africa she asked whether she could remarry even though she did not have a get from her first husband. She explained that she had been married by a priest after both she and her husband had been forced to convert to Christianity. After the marriage they had lived together as a married couple. The husband was not available to give her a get. Rivash decided in this case that the woman could remarry and did not require a get. Rabbi Henkin argued that Rivash’s case is unique as this couple was married by a priest and no longer lived among Jews. This situation, argued Rabbi Henkin, cannot be compared to the American situation where a man and woman are married by a civil authority and live together among Jews.
Rabbi Feinstein responded to Rabbi Henkin’s decision in a number of teshuvot in Iggerot Moshe. In the earliest teshuvah, dated June 28, 1959, Rabbi Feinstein argued that a civil marriage does not require termination via a get.[5] Rather, the couple can remarry even without a get. He explained that in the United States where people easily move in and out of relationships, the fact that a couple gets married in a civil ceremony and then lives together is not considered proof that they are married according to the halakhah. He relied on the precedent of Rivash and argued that American civil marriages can be equated to that situation of the fifteenth century. Interestingly, he wrote that even though the halakhah does not require a get, if it is possible for the wife to obtain a get she should follow the opinion of Rabbi Henkin and terminate the marriage through a get. It would appear that Rabbi Feinstein would agree that in a situation where the wife received a get she would not be able to marry a kohen.
Concerning a couple that was married by a Reform rabbi, Rabbi Feinstein wrote in a number of teshuvot that this wedding is not recognized according to the halakhah and a get is not required to terminate this marriage.[6] He explained that the only time the wedding would be valid is in a situation where there are two observant Jew who witness the ceremony. However, he claimed that even in that case the Reform rabbi often does not perform the marriage ceremony properly so the wedding would not be valid. Concerning the question of whether the fact that the couple lives together as husband and wife is a factor, Rabbi Feinstein wrote that a Reform ceremony is worse than a civil ceremony. A couple that gets married in a civil ceremony understands that this ceremony is not a Jewish one and that the fact that they live together binds them as a Jewish couple. However, a couple that is married in a Reform ceremony believes that this ceremony is a religious one and do not have the necessary intention of consummating the marriage when they live together. Nevertheless, he believed that if possible the woman should arrange to receive a get.[7]
In 1964, Rabbi Henkin wrote a letter to an unnamed rabbi who had ruled that a get is not needed to terminate a marriage when the ceremony had been performed by a Reform rabbi. Rabbi Henkin explained:
And the wonder of wonders, which makes one’s hair stand on edge, is that you are lenient regarding a marriage performed by a Reform rabbi. Is there really a need for an officiating rabbi? If a Jewish man says to a Jewish woman “you are mine” in front of witnesses, then she becomes his wife. And, if there are no witnesses at the ceremony, the fact that they live together as a married couple for many years is considered acceptable testimony. What difference does it make if the witnesses were Reform?[8]
Rabbi Henkin admonishes this unnamed rabbi that he must not allow other rabbis to rely on this incorrect lenient opinion.
Rabbis Feinstein and Henkin disagreed regarding both civil marriages and Reform ceremonies. While the issues are connected, they revolve around different considerations. Rabbi Feinstein looked at American society as a promiscuous one in which a man and woman living together did not reflect a relationship of commitment while Rabbi Henkin saw a more traditional society where relationships reflected commitment. It is fascinating that two Torah scholars who lived several blocks from one another could see American society so differently. The generation of rabbis and scholars who immigrated to the United States from Eastern Europe were forced to reconcile their recollections of the past with the realities of the present. That reconciliation took different forms for different rabbis.
It would appear that with regard to a couple married in a Reform ceremony, the differing rulings of these two Torah giants were based on their understanding of the Reform movement. Rabbi Feinstein believed that Reform rabbis were attempting to undermine halakhic Judaism and anything that they did was problematic and needed to be avoided. On the other hand, Rabbi Henkin, while rejecting the religious positions of the Reform movement, did not feel that the Reform rabbis were a threat to the Orthodox. Consequently he felt that whether a wedding was conducted by a Reform rabbi was immaterial. Rabbis Feinstein and Henkin disagreed as to the extent to which the Reform movement created a risk to the Orthodox movement.[9]
The positions of Rabbis Feinstein and Henkin had critical implications for the issue of agunah. According to Rabbi Feinstein, if a couple was married civilly or by a Reform rabbi and then the husband refused to give a get, the wife may remarry as this marriage is not considered halakhically valid. According to Rabbi Henkin, in such a situation, the woman would require a get. It would appear that Rabbi Henkin’s understanding of civil and Reform marriages stands as a serious impediment to the resolution of the agunah problem. However, in an article written in 1928, Rabbi Henkin alerted the community to the fact that he was very much concerned with the problem of the agunah and began by describing the current situation:
In the past few years the problem of the agunah has increased in Europe and here in America. This is a question that burns in the entire world as to what we can do for our sisters to save them from the chains of agunah when their husbands disappear…For this reason there have been leniencies suggested here [the termination of civil marriages without a get]. However, since we have proven that these leniencies have no basis in halakhah, these leniencies are really stringencies to destroy lives and such should not be done in Israel.[10]
According to Rabbi Henkin, since civil marriages require a get, to allow women to remarry without a get creates illegitimate children from the second marriage.
While Rabbi Henkin felt that this approach of terminating civil marriages without a get was not a legitimate one, he was deeply committed to trying to find an acceptable solution to the agunah problem. Accordingly, Rabbi Henkin was the first American rabbi to offer a proposal to solve the Agunah problem. This proposal was suggested in the above article written in 1928 soon after his arrival in the United States. Henkin noted that the problem of agunah, experienced by women whose husbands had disappeared or by women who were unable to receive the necessary halitzah, was “a daily occurrence,” and he made the following suggestion: at the time of the wedding the husband must authorize that a get may be written and delivered in the future. He must allow the get to be written to cover a number of situations including one in which the husband refuses to provide a get to his wife for three years. At that time, the claim would be brought to a central beit din (in the original proposal, he wrote that this should be the Jerusalem beit din) and, if the beit din agrees, then a get would be written even if the husband opposes the writing at that time. Rabbi Henkin called for this proposal to be discussed and voted upon in a meeting of rabbis and that if approved, it would remain the standard practice for fifty years.[11]
However, in 1930 a development impacted on Rabbi Henkin’s proposal before it had the chance to be acted upon. Rabbi Louis Epstein, a leading Conservative rabbi from Boston and the president of the Rabbinical Assembly and its Committee on Jewish Law, suggested that prior to every marriage, the husband should appoint his wife as an agent to execute a divorce on his behalf. Thus, if the husband disappears or refuses to grant the get, the wife can, in effect, divorce herself. In that same year, Rabbi Epstein published a volume entitled Hatza’ah Lemaan Takanat Agunot that attempted to prove the halakhic foundation for this proposal. In 1935, the Rabbinical Assembly, the rabbinic body of the Conservative movement, initially voted to accept this proposal.
In his volume, Rabbi Epstein described how he sent copies of his book to close to 1,000 rabbis asking for their opinions on his proposal. He explained that he received very few responses. While one of the letters was critical of his work, most of the letters were complimentary but argued that he could not proceed without the consensus of the leading halakhic authorities. He seemed encouraged by the nature of these responses inasmuch as they were not critical of his halakhic reasoning.[12] Among the letters that he received was a letter from Rabbi Henkin dated February 18, 1931. In this letter, Rabbi Henkin apologized for not having the time to study the book carefully. While Rabbi Henkin proceeded to make certain halakhic suggestions to Rabbi Epstein, the letter was in no way dismissive of his efforts. He even concluded the letter with the practical advice that if he wanted to send copies to all the rabbis of Europe as he proposed, it would become a very expensive undertaking.[13]
The Orthodox rabbinate responded to Rabbi Epstein’s proposal with disapproval and the Agudath HaRabbanim convened a meeting of rabbis during which various halakhic presentations were made arguing that Rabbi Epstein’s proposal was both impractical and halakhically unsound. In 1937, a volume was published by the Agudath HaRabbanim entitled Le’Dor Aharon which included correspondence from leading rabbis around the world opposing Rabbi Epstein’s proposal. In 1940, Rabbi Epstein published Le’Sheelat Ha-Agunah in which he attempted to support his view in light of the strong rabbinic opposition. The Orthodox rabbinate did not respond to this second volume and Rabbi Epstein’s proposal was never actually adopted in practice by the Conservative movement.[14]
Rabbi Henkin wrote an article that was included in Le’Dor Aharon.[15] In his lengthy essay, he explained his halakhic opposition to Rabbi Epstein’s proposal. Among other considerations, he concluded that it is nonsensical for the husband to appoint his wife to serve as the agent to write the get as she is the one who will be receiving the divorce.
Then he added:
“And I have already written that the reason that I have become involved in this battle is due to the fact that he [Rabbi Epstein] mentioned my proposal for the freeing of agunot … and I must escape from this comparison…My proposal was merely a suggestion and not meant as a halakhic decision…and when the volume Ain Tnai Be-Nisuin was published, I retracted from my position for even the greatest scholar has to follow the majority view.”[16]
Ain Tnai Be-Nisuin is a volume published in Vilna in 1930 by Judah Lubetsky, an Eastern European rabbinic scholar who served for many years as a rabbi in Paris. The volume was published in response to a decision by the Agudat Rabbanei Tzarfat in 1908 to allow a Jewish woman to remarry after a civil divorce based on a condition made at the time of the wedding that if the couple where to be divorced by the civil authorities then retroactively the original marriage would be nullified.[17] Rabbi Lubetsky collected letters from rabbinic scholars from around the world condemning this opinion and explaining that such a condition at the time of the marriage would not be valid and that the couple would still need a get.
Indeed, it would seem probable that in 1931 when Rabbi Henkin had written his initial letter to Rabbi Epstein he had not yet seen Ain Tnai Be-Nisuin and therefore did not reject Rabbi Epstein’s proposal at that time. By 1937, he had read Ain Tnai Be-Nisuin and felt compelled to both reject Rabbi Epstein’s proposal and to retract his own view. In the reprinted edition of Perushei Ibra, the pages that contain his initial proposal are bracketed with the words “hadru be” (I have retracted) written in the margin. While it is not clear whether this remarkable editorial decision was made by Rabbi Henkin or the editor of the later reprinted volume, it reflects both the seriousness and the sensitivity with which this issue was taken.
In the Iggerot Moshe, Rabbi Feinstein never made any reference to Rabbi Henkin’s proposal regarding agunot. While Rabbi Feinstein did not arrive in America until 1936 and may not have been aware of Rabbi Henkin’s proposal before it was retracted in 1937, Rabbi Henkin was well-known among Eastern European rabbis and his decisions would have been available to Rabbi Feinstein even before his arrival in New York.[18] However, there is another variable that must be considered to explain Rabbi Feinstein’s lack of reference to this proposal. Rabbis Feinstein and Henkin took different approaches to the attempt to solve the agunah problem. Rabbi Feinstein tried to free individual agunot as they approached him with their unique situations. As a posek, Rabbi Feinstein responded to individuals on a case by case basis and did not look for institutional policies. As a communal rabbi, Rabbi Henkin dealt both with individual cases and broad policies. His position concerning civil and Reform marriages was important for American Jewish life but did not impact on his institutional proposal for the resolution of the agunah problem. His agunah proposal was never enacted but nevertheless reflects the rabbinic approach that Rabbi Henkin embodied.
Rabbi Henkin’s proposal, although “officially” retracted, has been cited in halakhic literature since 1937. Rabbi Eliezer Berkovits, the foremost disciple of Rabbi Yehiel Yaakov Weinberg and a leading Jewish philosopher of the American Orthodox community, offered a resolution to the agunah problem in 1967 in a volume entitled Tnai Be-Nisuin u-ve-Get. In this volume he reviewed the history of halakhic literature concerning the validity of a conditional marriage and argued for the introduction of a conditional marriage to prevent the tragedy of agunah. At the end of the book, he referred to Rabbi Henkin’s retraction of his proposal in 1937. Rabbi Berkovits wrote “We revere Rabbi Henkin’s greatness and piety. Yet, one is not permitted to sway from the truth as it appears to him.”[19] Rabbi Menachem Kasher, in his critique of Rabbi Berkovits’ thesis, relied on the fact that Rabbi Henkin had rejected conditional marriages.[20] Rabbi Henkin, thirty years after he retracted his proposal, is still being utilized for both sides of this argument.
Finally, in an article in The Edah Journal in 2005, Rabbi Michael J. Broyde, an Atlanta-area rabbi, professor of law at the Emory University Law School and dayan in the Beth Din of America, offered a theoretical proposal to help free agunot. He explained that for the proposal to have any chance of acceptance among the rabbinic community it would need to combine three mechanisms into a single document:
“The three elements would be: conditions applied to the marriage (tenai be-kiddushin), authorization to give a get (harsha’ah), and broad communal ordinance to void a marriage (taqqanat ha-qahal)… Indeed, in the twentieth century alone, one can cite a list of luminary rabbinic authorities who have validated such agreements in one form or another, including Rabbi Yosef Eliyahu Henkin…”[21]
While this proposal is still only in the theoretical phase, Rabbi Henkin’s argument plays an important role in its formulation.
In the introduction to Perushei Ibra, Rabbi Henkin explained that he wrote this volume to correct the mistakes that have arisen in America in the area of marriage and divorce and to restore “the law to its proper foundations.”[22]
Rabbi Henkin’s innovation and courage continue to set a model in this difficult yet critical area.
Sources:
[1] One rabbi who tirelessly dealt with issues of husband desertion was Rabbi Shaul Yedidyah Shochet, author of the Responsa volumes Sefer Tiferet Yedidyah (St. Louis, 1920), where nearly two-thirds of the first volume relates to agunot and gittin. See Jeremy Bressman, “‘Hurled into a World of Freedom’: Marital Breakdown in the American Jewish Immigrant Community,” (unpublished seminar thesis, Columbia University, 2006), 18. I thank Menachem Butler for providing this source.
[2] Hapardes 8:6 (September, 1934): 3-4; Hapardes 8:7 (October, 1934): 7-10 and Hapardes 8:8 (November, 1934): 10-12, reprinted in Lev Ivra (New York, 1956), 12-20. For an extensive and well-researched analysis of the disagreement between Rabbis Feinstein and Henkin concerning both civil marriages and Reform ceremonies, see Norman Frimer and Dov Frimer, “Reform Marriages in Contemporary Halakhic Responsa,” Tradition 21:3 (Fall 1984): 7-39.
[3] Perushei Ibra (New York, 1943) pp. 87-117. Perushei Ibra was reprinted as the first volume of Kitvei Hagri’a Henkin (New York, 1981).
[4] Rivash, no. 4; For a brief discussion of this period, see Philippe Wolff, “The 1391 Pogrom in Spain: Social Crisis or Not?” Past & Present 50 (1971): 4-18.
[5] Iggerot Moshe (New York, 1961), Even Haezer I, no. 74.
[6] Iggerot Moshe Even Haezer I, no. 76.
[7] Iggerot Moshe, Even Haezer IV, no. 75.
[8] Hapardes 38:7 (October, 1964): 5-6 and reprinted in Kitvei Hagri’a Henkin vol. 2, pp. 123-125.
[9] Neither Rabbi Feinstein nor Rabbi Henkin discussed whether their decisions would be extended to a ceremony officiated by a Conservative rabbi. According to Rabbi Henkin there should be no difference. However, the question remains whether Rabbi Feinstein would have required a get to terminate a wedding officiated by a Conservative rabbi.
[10] Perushei Ibra, p. 110
[11] Perushei Ibra, pp. 110-117.
[12] Le-She’elat Ha-Agunot (New York, 1940), p. 16
[13] This letter can be found in Tzvi Gertner and Bezalel Karlinsky, “Ain Tnai Be’Nisuin,” Yeshurun 9 (2001): 888.
[14] See Moshe Meiselman, Jewish Women in Jewish Law (New York, 1978), 105-107, and Marc B. Shapiro, Saul Lieberman and the Orthodox (University of Scranton Press, 2006), 11-13, for various descriptions (and full documentation [!] in the latter source) of the events surrounding — and the Orthodox responses to — the Epstein proposal.
[15] Le’Dor Aharon (Brooklyn, NY, 1937), pp. 105-110.
[16] Le’Dor Aharon, p. 109
[17] The events leading to the writing of this volume are described in the introduction to Ain Tnai Be-Nisuin (Vilna, 1930), 11-15. According to a letter in the London Jewish Chronicle written by a longtime rabbinical judge on the London Beth Din, Ain Tnai Be-Nisuin first appeared in 1928. The reissued 1930 edition appeared in an enlarged edition with a new forward by Rabbi Hayyim Ozer Grodzensky. See Dayan Harris M. Lazarus, “Liberalism and Orthodoxy: The Problem of the Aguna,” London Jewish Chronicle (November 1, 1946), 11.
[18] Rabbi Aharon Kotler, who did not arrive in the United States until 1941, was aware and sharply critical of Rabbi Henkin’s proposal. See Mishnat Rabbi Aharon, vol 2 (Lakewood, NJ, 1985), no. 60. It is possible that Rabbi Kotler’s criticism influenced Rabbi Henkin’s decision to retract.
[19] Eliezer Berkovits, Tnai Be-Nisuin u-ve-Get (Jerusalem, 1967), p. 170.
[20] “Be-Inyan Tnai be-Nisuin,” Noam 12 (1970): 148. For a plethora of meticulous citations and a lucid description of the debate between Rabbis Berkovits and Kasher, see Marc B. Shapiro, Between the Yeshiva World and Modern Orthodoxy: The Life and Works of Rabbi Jehiel Jacob Weinberg 1884-1966 (Littman Library, 1999), 190-192, especially the extensively researched footnote 83.
[21] Michael J. Broyde, “Review Essay: An Unsuccessful Defense of the Bet Din of Rabbi Emanuel Rackman: The Tears of the Oppressed,” The Edah Journal 4:2 (Winter, 2005): 17, available here.
[22] Perushei Ibra, p. 16.