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4 | From Religious “Right” to Civil “Wrong”: Using Israeli Tort Law to Unravel the Knots of Gender, Equality, and Jewish Divorce
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susan weiss Chapter Four From Religious “Right” to Civil“Wrong” Using Israeli Tort Law to Unravel the Knots of Gender, Equality, and Jewish Divorce “Legal discourse . . . is the divine word . . . [it] creates what it states.” —Pierre Bourdieu1 The purpose of this paper is to describe how Israeli cause lawyers2 are using tort law to untie the knots between gender, equality, and Jewish divorce law. To that end, I will give a brief overview of Israel’s family law regime and its gender quagmire, explain how the tort of “get-refusal” is being constructed in response, present some preliminary statistics from the trenches, and outline some of the practical and theoretical implications of these new tort cases. I will posit that using tort law is a creative way to reframe the gender problems posed by Jewish law and to “bring the state back in” to help resolve them. Tort law turns a Jewish husband’s religious “right” to give a divorce at his “uncoerced behest”3 into a civil “wrong” that harms his wife and entitles her to damages. This reframing delineates and distinguishes the harm being done to women, raises consciousness, demystifies the power relations that undergird Jewish divorce law, strips away the religious aura of a cruel act, and forces a dialogue of change. Background: The Millet System On or about its founding, the State of Israel incorporated the millet system (millet means “religious community”) of the Ottoman Empire into its laws of personal status. In the spirit of religious pluralism, this system categorizes 120 · interseCtions oF Civil and reliGious laws citizens in accordance with their religious affiliations, ceding jurisdiction over matters of marriage and divorce to religious courts. The millet system effectively subjects citizens of the same state to different rules of divorce, depending on their particular religious affiliation and irrespective of their religious beliefs. Secular, religious, traditional, ultra-Orthodox, atheist, agnostic, and fundamentalist Catholics, Muslims, and Jews of the State of Israel who get married or divorced must submit to the rules of canon law, the Sharia, and the halakhah,4 respectively, whether they want to or not. MarriageanddivorceistheonlyareaoflawinwhichIsraeldefersexclusively toreligiouslawandthereligiouscourts.5 Inallothermatters,civillawandcivil courts, inspired by Western notions of liberalism and democracy, determine theoutcomeofdisputesbetweenIsraelicitizens.Inallotherareasexceptfamily law, Israel empowers its women.6 While the rabbinic courts might have risen to the challenge of interpreting the long and venerable tradition of Jewish law so that it responded to the needs of a modern democratic state and to the idea of gender equality, the rabbinic courts have fallen far short of such expectations. Rabbinic courts apply Jewish law (halakhah) to determine whether or not a person is married or divorced. According to the halakhah, a divorce occurs only when a man delivers a bill of divorce (a get) to his wife7 of his own free will.8 A bill of divorce delivered by a man against his will is invalid (a get meuseh or a “forced divorce”).9 If a man is missing, is incapacitated, or simply refuses to give his wife a get, she remains married to him forever (an agunah, literally an “anchored woman”). The halakhah penalizes women who conduct extramarital relationships with men who are not their husbands, stigmatizing children born of such relationships as mamzerim. A mamzer and all the progeny of the mamzer for generations are banned from marrying other Jews.10 Only Orthodox Jewish men preside as Israeli rabbinic court judges. No Jewish woman of any religious affiliation and no Jewish man who is not of Orthodox persuasion can, by law,11 sit on a rabbinic tribunal. Israeli rabbinic judges do not run a divorce court in any way similar to what a reader living outside of Israel may imagine. In determining whether a husband should divorce his wife, the rabbis are not informed by notions of fault or no-fault. Instead, the rule against the “forced divorce” (the get meuseh) holds sway, with the rabbis favoring tactics of delay and extortion. If the rabbis refrain [54.89.24.147] Project MUSE (2024-03-28 21:09 GMT) weiss · From reliGious “riGht” to Civil “wronG” · 121 from making decisions, wives may remain trapped in failed marriages, but the sacred rule against the forced divorce is not compromised. Similarly, if wives yield to extortion and pay for their freedom, the rabbis would not have to apply any pressure on husbands to give the divorce. The tactics of delay and extortion ensure that no invalid force is brought to bear upon husbands. Only when delay and...