RELIGIOUS NORMS BETWEEN ETHICS AND LAW: THE DEATH AND AFTERLIFE OF JEWISH DIVORCE LAW (original) (raw)
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Contemporary family law scholars and practitioners continue to debate the role of morals and values within divorce law. This article turns to early Jewish law to examine three systems of divorce law and the correspondence between grounds for divorce and the family values espoused by these systems. While an ancient, highly gendered system of law may seem an unlikely place to look for inspiration for a modern, liberal society, examining the way the rabbis of the Talmud responded to and improved upon earlier law reveals a strong awareness of the ways in which grounds for divorce reflect the underlying values of the conception of the family. Thus, this study suggests that this ancient system can afford a unique comparative lens for considering and questioning contemporary legal assumptions about the values reflected in modern divorce law.
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It has long been remarked that nothing about Israel's religion-state "status quo" is static. This is generally true, but for the exception of the laws governing marriage and divorce, which remain virtually unchanged in almost a century, even though these are some of the most unpopular laws in the State of Israel, and even though the problematic nature of the law was known at the time of its legislation. This article adds a new layer of understanding to the genesis of this law by looking at the official and unofficial role of rabbis in Diaspora communities, especially Tsarist Russia and its successor states, birthplaces of most of Israel's founding leaders, and demonstrating the continuities between those arrangements and the arrangements in the new state.
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The discussion of legal pluralism focuses on the coexistence of several legal systems, mainly religious and civil ones. But what happens when a process of assimilation – whether imposed or voluntary – characterizes the relationships between the systems? This paper analyzes the fascinating process of assimilation of civil principles into religious law in the context of Jewish law and Israeli civil family law. Assimilation, as the paper shows, is not the whole picture. The paper reveals a corresponding (both open and implicit) struggle for the preservation of religious law principles despite the continuing efforts of civil law for their curtailment, or sometimes, elimination. The result, which is somewhat internally contradictory, leads the paper to suggest a normative pluralistic framework that enables both regimes – the civil and the religious – to preserve their core principles in family law matters.
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