Rabbinic Authority: The Vision and the Reality
Beit Din Decisions in English
By A. Yehuda Warburg
Urim Publications, 2013, 341 pages
Reviewed by Israel Drazin - July 22, 2013
Rabbi Dr. A. Yehuda Warburg, holding a doctorate of jurisprudence, has, among much else, served as a dayan, judge, at all the different kinds of Jewish courts. He offers readers interesting Jewish court decisions in this book.
He starts with a fifty page discussion on the concept of rabbinic authority and the power of rabbinic courts, compares business judgment rules in some 35 pages, offers a possible solution to the Agunah problem in close to seventy pages, and discusses ten rather interesting cases that appeared before rabbinical courts with reasoned opinions.
Among mush else, he addresses how Jewish law (halakhah) envisions rabbinic authority, what are the credentials of a Jewish judge, under what authority do they act, what are the duties of a synagogue rabbi, how do rabbis arrive at decisions, must a rabbi follow the opinions of his predecessors, must rabbinical judges issue reasoned opinions, and how does rabbinic law differ with American law. He stresses that one principle basis of American law is individual rights and morality, while Jewish law focuses on compliance with the divine norm and fulfillment of divine commandments. He explores the idea that Jews may follow the opinion of their own rabbi even when the rabbi disagrees with other rabbis, and whether this creates fractures in the Jewish community. He also looks at the idea that decisions today are based in large manner upon law and opinions in books, a situation that did not exist before books were published. He examines the notion held by many, but not scholars such as Maimonides, that there is a decline in scholarship in Judaism and rabbis must defer to the rulings of rabbis of past generations.
Rabbi Dr. Warburg also offers a possible solution to the Agunah problem. The Hebrew Bible gives few details about marriage and divorce. Deuteronomy 24:1 states: "If a man takes (yikach) a wife and has sex with her, but she becomes displeasing to him because he found something wrong, he should write a bill of divorce for her, place it in her hand, and send her from his house." The Bible uses "takes," an act performed only by men; men consummate marriages, women are passive. The same applies with divorces; men write bills of divorce and hand them to inactive spouses.
Ancient rabbis changed these rules; but didnít complete the evolution. They recognized that the biblical directive that marriages are consummated by sex is somewhat repugnant , so in the beginning of the Common Era two additional means to marry were added: giving women something of value (such as a ring) or a document saying that the two are married. In the eleventh century, they decreed that men can only marry one wife (monogamy) and that, generally, divorces are not effective if wives refuse to accept the bill of divorce . But they didnít amend the ruling that only men can effectuate marriages and divorces while women are passive.
As a result, there are too many separated Jewish women whose husbands refuse to give them a get, a Jewish divorce. These women remain married to their estranged husbands and cannot remarry. It is not uncommon for these husbands to blackmail their wives saying, in essence, "I will not hand you a get unless you give meÖ" and frequently, this demand is for hundreds of thousands of dollars.
Many rabbis insist that the agunah law cannot cease because the tradition existed for millennia. Warburg suggests a possible solution: rabbinic courts should punish recalcitrant husbands with huge fines for the emotional pain inflicted upon their wives. The problems with this solution are that it doesnít address the case of the missing husband, rabbis outside of Israel have no authority to compel spouses to do anything, and Israeli rabbis in rabbinic courts take years to adjudicate cases, are loath to impose fines, have no authority to issue a get since only husbands can do so, and generally feel that they cannot compel husbands to give the get; they only "obligate" them to do so, meaning strongly encourage. But it is a partial solution since it can work in Israel.
1. However, the ancient biblical practice remains as a vestige in the modern marriage ceremony. The couple is married under a canopy which symbolizes the room where the marriage is consummated, and Orthodox Jews also require the couple to seclude themselves in a room for a period of time after the ceremony under the canopy; again symbolizing the act of consummation.
2. These rules were accepted by Ashkenazic Jews, of Europe, in the eleventh century, but not Sephardic Jews, of Muslim countries, until recently.