CCAR RESPONSA

American Reform Responsa

163. Divorce of Insane Husband

(Vol. XXIX, 1919, pp. 88-94)QUESTION: The following letter was received from a rabbi in England: I should be obliged to you if you could give me an opinion concerning the giving of a Get to a Jewish woman whose husband has been confined in a lunatic asylum for more than ten years, and cannot recover sanity, according to the diagnosis of the medical superintendent. The woman would only consider herself free to marry again if she could receive a Get, and her husband is quite incapable of doing so. The parties were married in Poland according to the Jewish rite, and not before a secular registrar, as the case would be in England.ANSWER:Incompetency of the Insane Rabbinic law considers Cheresh, Shoteh, and Katan–the deaf mute, the insane, and the minor–as incompetent to act in any case in which civil or religious law requires responsibility. This principle is found in numerous places in the Talmud and in later Rabbinic literature, of which merely the following passages shall be indicated: Mishna, Teruma 1.2 (and see remarks of Tosafot Yom Tov); Shulchan Aruch, Choshen Mishpat, 35.8,10; and the remark of Joseph Habiba, in his commentary on Alfasi, Nimukei Yosef ad Bava Kama 9b (Alfasi, ed. Vienna, 1805, fol. 5b): “Cheresh, shoteh vekatan-la benei de-a ninhu.”The Special Case of Divorce The mishna Gittin 67b teaches: “If one was seized by cardiacus and said, ‘Write a Get for my wife,’ his statement has no legal force…. If he lost his speech and people said to him, ‘Shall we write a Get for your wife?’ and he nodded assent, he should be examined three times; if he answered properly yes and no, the Get might be written and handed [to the wife].” The word cardiacus is explained by Rashi, who follows the Gemara in this case, as a demonic obsession, curiously ascribed to overindulgence in grape juice. Maimonides, in his commentary on the Mishna (l.c.), gives the correct interpretation: Cardiacus is a disease which results from the clogging of the cells of the brain and causes disturbance of the mind. It is a kind of falling sickness. This is etymologically correct, the cardiacus (an abbreviation of Morbus Cardiacus) is perhaps used in medieval medical literature for all forms of apoplexy (see Preuss, Biblische-Talmudische Medizin, etc., pp. 368369, Berlin, 1917). Another passage in the Mishna (Yevamot 112b) says: “If a man married while in the full possession of his senses, and afterwards became deaf, mute or insane, he can never divorce his wife…for a man cannot divorce his wife except by an act of free will.” The Gemara in the discussion draws a distinction in the case of a man who has lucid intervals (“Itim chalim, itim shoteh”) and declares that if he remained lucid during the whole time of the procedure of issuing Get, the divorce is valid. The two Talmudic passages just cited are practically embodied in the codes of law (Shulchan Aruch, Even Ha-ezer 121.1-6), and it is unnecessary to repeat the text verbatim. It, therefore, may be laid down as the Jewish law that a man who becomes insane after his marriage can never divorce his wife. Two cases, found in the Responsa literature and having a bearing on this subject, will be quoted. Menachem Mendel Krochmal (c. 1600-1661) deals with the case of a deaf mute who wishes to divorce his wife, and, after consultation with Yom Tov Lipman Heller (15791654), the famous author of Tosafot Yom Tov, he permits the divorce with a modification of the usual procedure (Tsemach Tsedek, no. 68). There is, however, in this case, a considerable difference, inasmuch as the man was a deaf mute at the time that he married, and the divorce is in such case permissible according to the law of the mishna quoted (Yevamot 112b). In addition, while the law considers the deaf mute incompetent, the man in this case is intelligent, having supported himself as a tailor for years. Another case, somewhat more closely resembling ours, gave rise to a whole literature. Isaac Neuburg married Leah Gunzenhausen in Mannheim, August 13, 1766, and a few days later deserted his wife under peculiar conditions, which were considered a clear evidence of insanity. On August 26, 1766, he appeared before Israel Lipschitz, Rabbi of Cleve, and asked for a divorce, which the rabbi granted. The rabbis of Mannheim, where a rabbinical college of ten rabbis–the Lemle Moses Klausstiftung–existed, declared the Get invalid on the ground that the man was mentally incompetent.¹ The rabbinate of Frankfurt am Main supported this view, and Simon Copenhagen² published the arguments in a book entitled Or Hayashar (Amsterdam, 1769). Israel Lipschitz published his side in another book, Or Yisra-el (Cleve, 1770), in which he presented his argument and letters of most of the leading rabbis of his day who sided with him. As is always the case in such controversies, those who were not convinced from the start remained unconvinced. Marcus Horovitz (1844-1909), as Rabbi of Frankfurt am Main, in his history of the Frankfurt rabbinate, upholds the authority of his predecessors, while Judah Lubetzki (1850-1910), not bound by such sentiments, indignantly exclaims, “What shall we say, if a man in our generation dares to challenge the authority of all the luminaries of Israel on whose words our lives depend? Indeed, one who disputes their authority disputes the authority of the Almighty” (Bidkei Batim, p. 44b, Paris, 1896). The case is not applicable to our question, for in the controversy between Israel Lipschitz and his opponents everything depended on the question, whether Isaac Neuburg was sane, which Lipschitz affirmed, while his opponents denied it. If it could be proven that Neuburg was insane, Lipschitz would admit that the Get was not valid. Conclusion: We, therefore, must arrive at the conclusion that from the point of view of the strict Rabbinic law, an insane man such as the one described in the question cannot divorce his wife, and that the latter cannot marry during the lifetime of her husband. It is different when we consider the higher principles of Rabbinic law, recognized even by the most rigorous authorities. One of these principles is the often repeated Talmudic rule, based on the Scriptural passage, “Her ways are ways of pleasantness” (Prov. 3:17) that legal decisions must be in harmony with the ideas of humanity (Yer. Eruvin 20b, 24c-d; Yevamot 15a, 87b), with propriety and common sense (Gittin 59b; see Abraham Danziger, 1749-1780, one of the most rigorous authorities of the age in Bidkei Batim 3.19), and even with aesthetics (Sukka, 32a-b; see also Isaiah Horowitz, c. 1560-1630, in Shalah, fol. 383a). The special application of this principle (“Deracheiha darchei no-am”) to matrimonial laws shall be presented later.The Right to Change and to Interrupt the Law in Accordance with the Needs of the Age While it has to be admitted that the general principle of Rabbinic legislation is strictly to apply the law as laid down by the older authorities, instances are not missing in which the opposite principle is proclaimed, i.e., that changed conditions demand a liberal application of the law. A Talmudic agada (Yoma 69b) states that the prophets altered some of the institutions of Moses. Wherein the question is asked: How could they set aside the authority of Moses? And the answer is given: They knew that in the eyes of God, truth stands higher than authority. This and other passages are quoted by Menahem di Lonzano (16th century, Shetei Yadot, Venice, 1618, ch. IV) and by Hirsch Katzenellenbogen (1796-1868) in his preface to his Netivot Olam (Wilna, 1822). Estori Farhi of France, 14th century, the pioneer of Palestinian archeology among the Jews, says in the Kaftor Vaferach, ch. IV, p. 67, Jerusalem 1897: “The leaders and scholars of every generation have the right to abolish a prohibition when they become convinced that the reason for the prohibition has ceased to exist.” Mordecai ben Hillel Hakohen of Nuremberg, 13th century, one of the most rigorous authorities of his age, quotes Eliezer of Verdun, 12th century, as saying: “The Rabbis of the Talmud have empowered the conscientious and learned men of every generation to interpret the law in its application to the needs of their time” (Mordecai, Yevamot, ch. 16, sec. 91, fol. 56c, cd. Vienna, 1805). This view is of great importance to our question, as it is applied to a question of matrimonial law. Joseph Caro, 1488-1575, the author of Shulchan Aruch who may be counted among the strictest upholders of authority, decides that Jews who occupy positions at the court may dress like non-Jews, contrary to the provisions of the law (Sifra ad Lev. 18:3; Yoreh De-a 178), because this adds to their dignity, which enables them to be benefactors of their people (Kesef Mishneh to Maim., Avoda Zara 11.3). Chayyim Benveniste of Constantinople (c. 1600-1673), an industrious compiler of notes on the code of Jacob ben Asher, declares without any attempt at apology that the Rabbinic law, prohibiting that a single man be a teacher (Kiddushin 82a), has become obsolete by universal disregard (Keneset Hagedola, Yoreh De-a 245, quoted by Elijah Hazan, Chief Rabbi of Alexandria, 1845-1908, Ta-alumot Lev, p. 18b, Leghorn, 1879). Isaac Elhanan Spector, Rabbi of Kovna (1817-1896), universally regarded as the greatest authority among the Russian rabbis of his age, allowed work to be done in the vineyards of the Palestinian colonists by non-Jews in the Sabbatical year in clear contradiction to the Mosaic law (Lev. 25:4), on the ground that otherwise the colonization would be a failure (Luach Achi-asaf IV, 293, Warsaw, 1896). Another advocate of colonization in Palestine may properly be mentioned in this connection. Hirsch Kalischer (1795-1874) was guided by what is now being called “Kultur-Zionism” in the sense in which he, a strictly Orthodox Talmudist, understood it. Judaism, which suffered constant losses from the inroads made by political emancipation and secular education was to obtain a homeland where Orthodox practices and Jewish studies would be either custom or law of the land. For this purpose Kalischer advocated the reintroduction of sacrifices on Mount Moriah with the permission of the Sultan. He proved from the Zohar that this was necessary as the first of the four stages of the Messianic Kingdom (see his Derishat Tsi-yon, Lyck, 1862). So, his Orthodoxy is above all suspicion. Yet in a correspondence with Israel Hildesheimer, he asserts boldly, and as a matter of course which requires no further proof, that the laws regulating the social contact and business relations with non-Jews, found in the Shulchan Aruch (Yoreh De-a 153-156), are obsolete, because the laws are based on the presumption that the non-Jews are uncivilized and immoral. It is noteworthy that these views were expressed in a private correspondence and therefore not presented as an apology for the consumption of the non-Jewish world, as may have been the case with the remarks frequently found on the title page of a rabbinical work, that Akum does not include Christians. It is also noteworthy that Hildesheimer, who, in the course of the correspondence hurls sneering invectives against the Reform Rabbiner, Einsegnung, etc., and especially against any attempt to place philosophy above religious authority, has no objection to these views, and thus admits that parts of the Shulchan Aruch have become antiquated (see Festschrift zum vierzigjaehrigen Amtsjubilaeum des…Dr. Solomon Carlebach, pp. 263-307, Berlin, 1910, esp. p. 286). The plain law of the Mishna (Ta-anit 19a), that in times of an epidemic public fasts shall be held, is set aside by Abraham Gombiner of Kalisch (17th century), on the ground that the weakening of vitality would be dangerous (Notes on Shulchan Aruch, Orach Chayim, 576.2). This view is upheld by Chayyim Joseph David Azulai (1723-1806), a famous Palestinian scholar of his age (Birkei Yosef, 576.4), and–which is highly important– by Hillel Lichtenstein (1815-1891), the representative of the most eccentric Orthodoxy in the school of Moses Sofer (Teshuvot Beit Hillel, p. 51c, Szatmar, 1908) Moses Isserles (c. 1520-1572), whose notes to the Shulchan Aruch are a compilation of the most rigorous practices–often recommended with such phrases as “God will bless one who conforms with the rigorous practice”– allows Jews to assist in extinguishing a fire on the Sabbath because by refusing to do so they would risk violence at the hands of the mob (Orach Chayim 334.26). This is quoted with approval by Ishmael Hakohen (Laudadio Sacerdoti), c. 1730-1811, Rabbi of Mantua, one of the last great teachers of Halacha in Italy (Zera Emet, 1, 44, Leghorn, 1786). The examples cited, which could be almost indefinitely multiplied, prove beyond doubt that the most rigorous authorities admit that laws of the Bible and Talmud may become obsolete. Another series of quotations will prove that humanitarian regard frequently suggested the application of this principle to matrimonial laws, which, by stringent interpretation, would work hardship on women. Some of the most burdensome laws imposing hardship on women are those that compel a childless widow to be married to her brother-in-law (Yibum; see Deut. 25:510), or be released by the ceremony of Chalitsa, which, to modern aesthetic feeling, is highly objectionable, and often delivers the woman helplessly to the extortion of an unscrupulous man. In the passages quoted above (Yevamot 15a, 87b), the Talmud limits these obligations on the ground of the principle that “the ways of the Torah must be ways of pleasantness.” The Geonim, as the leaders of the Babylonian school from the seventh to the eleventh century are called, though usually guided by belief in authority, permit the release from a brother-in-law who is an apostate without Chalitsa, on the ground that “the widow would be chained forever” (Resp. Sha-arei Tsedek II, no. 19). Moses Maimonides (11351205) sets aside certain decisions of the Geonim in laws of marriage and Levirate (Yibum) on the grounds of unreasonable hardship (“Devarim rechokim be-einai me-od midrachei hora-a,” Mishneh Torah, Gerushin 10.19). The opinion of Eliezer of Verdun, quoted above, refers to another law which entails considerable hardship on a widow. Rabbinic law required the identification of the body as proof of death, and consequently the widow of a man lost at sea, or even drowned in a river (“Mayim she-ein lahem sof”) cannot marry again, if the body was not recovered (Yevamot 121a; Even Ha-ezer 17.32). It was with reference to such a case that R. Eliezer of Verdun declared that the rabbis should decide such a case according to the conditions of the time. And it is highly remarkable that Isaac Elhanan Spector (quoted above in his decision on the Sabbatical year) allowed the widow of a man who was a passenger on a ship lost at sea, to marry again on the ground of the opinion that the Talmudic law figured on the possibility that such a man might have saved himself on a lonely island from where he could not communicate with his family, although in our days of general postal, telegraph, and steamship connections such an eventuality was out of the question (Ein Yitschak, no. 22, p. 232, Wilna, 1888) Most of the cases quoted are so complicated that a complete presentation would necessitate the disregard of all reasonable space limits. Therefore, in the cases to be quoted, as in those already quoted, only the essential part (namely, the principle of placing moral consideration above the letter of the law) is presented. In the case of a man who deserted his wife on the ground of disobedience (Moredet), Joseph Colon, 15th century, declares that the rights of women must be protected against the arbitrary action of the man (Resp. 57). More in line with the question under consideration is the opinion of Joshua Falk Cohen (c. 1550-1617), that the laws regarding the legal status of the deaf mute have to be interpreted with proper regard for the future of the woman in case of divorce (Perisha, commentary on Tur, Choshen Mishpat “Bimkom tsorech mishum igun,” sec. 235). Another law which, while originally conceived for the benefit of an orphan child, works considerable hardship on a woman, prescribes that a woman cannot remarry until her child born of a former husband is two years old (Meineket chavero; Yevamot 42a; Even Ha-ezer 13.11). The medieval legal literature is full of exceptions, all based on the principle that a rigorous application of the law might ruin the future of the widow, of a divorced woman, and, above all, of the mother of an illegitimate child, who thus might be deprived of her only chance to reform. Significant in this respect is the decision of Jacob Joshua, Rabbi of Frankfurt am Main, 1680-1756, who, while deploring the laxity in such decisions, allows a woman to marry before the lapse of this period, for otherwise the engagement might be broken (“Kedei shelo lehafrid bein hadevekim,” see Benei Yehoshua, Ketubot, no. 150). The same reason is given by Moses Isserles, characterized above as an extreme rigorist for having performed a marriage ceremony on the Sabbath (Resp. 124). The authority of one of the bitterest antagonists to the Reform movement may be cited in conclusion. Mordecai Benet (1753-1829) rules in a case when a woman had married before her child of a former marriage was two years old that the couple should not be compelled to separate, as the law would require, because divorce is objectionable, especially in our times when divorce cases are subject to secular legislation: “Kasheh gerushin bifrat bazeman hazeh mipenei dina demalchuta” (Resp. Har Hamor, p. 20b, Vienna, 1862).Conclusion Humanity and regard for the conditions of the time suggest a liberal interpretation of the law. Whereas in the case of the marriage of the deaf mute, the practice, as stated by Menahem Mendel Krochmal (Resp. Tsemach Tsedek, no. 77) is that a relative of the bridegroom shall act as his interpreter; and whereas in the case of the divorce by a deaf mute, besides the regular Get which the husband hands to the wife, a special act recorded by the Beit Din states the fact (reported by Lipman Heller as the practice of the Cracow congregation dating from R. Meshulam Feibish, 16th century, ibid., 68)–so in this case the Beit Din could appoint a guardian for the insane man, who would hand the Get to the woman, and state the facts in a document preserved in the archives of the Beit Din and published in the Jewish press. From the point of view of liberal Judaism in America, the question was decided by the Philadelphia conference of 1869, which recognized–and rightly so–the Get as rabbinic civil law, and therefore recognized also the right of the courts of a civilized country to grant divorce just as the probate court deals with an estate, while in former centuries the Rabbis acted in such cases.G. DeutschNOTES1. Unna, The Lemle Moses Klausstiftung, Frankfurt a. M., 1908-1909.2. Simon Copenhagen was a champion of Orthodoxy for his time. In his Bechi Neharot (Amsterdam, 1784), which is a description of a devastating flood in the Rhine valley, he alludes to Herz Ullman of Mayence, who had written a textbook of metaphysics, Chochmat Hashorashim (The Hague, 1781), with the pun: “Haba litama, potechin lo pitcho shel ulama.” It is also interesting to learn that the Copenhagen’s patron who bore the expense of the publication was Baruch Simon Mergentheim, the grandfather of Ludwig Boerne (Roest, Katalog der Rosenthalischen Bibliothek, Anhang, p. 49, no. 281)

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