RELIGIOUS NORMS BETWEEN ETHICS AND LAW: THE DEATH AND AFTERLIFE OF JEWISH DIVORCE LAW (original) (raw)
How has Jewish divorce law responded to the transformation of its working environment? Jewish divorce law functions today in the shadow of substantial recent changes. While according to mainstream Halakha marriage should be terminated either on concrete grounds for divorce or by mutual consent of the parties, Western legal regimes now accept unilateral divorce even in the absence of any other ground. Moreover, adopting Jewish divorce norms as the official Israeli state law requires Israeli rabbinic tribunals to apply Jewish norms to populations who reject it. Those changes distort the inner logic of Jewish divorce law and radically change the rationale of the mutual consent requirement. One rabbinic response is to accept the “death of the marriage” as an independent ground for divorce, thus bringing Jewish law into line with Western societies. However, this paper focuses on another response, which refuses to abandon the mutual consent requirement. Instead, it reinterprets this requirement as a mechanism designed to ensure the parties’ rights upon dissolution through a bargaining process. I contend that while such a view is often identified with reactionary circles, it actually represents an internalisation of modern legal thinking and marks a paradigm shift in the nature of religious law.
Related papers
2018
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.
Journal of Law and Religion, 2018
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.
Loading Preview
Sorry, preview is currently unavailable. You can download the paper by clicking the button above.