Beit din’s role in Jewish life is prominently stated in the Torah: “You shall appoint judges (shoftim) and officials (shotrim) for your tribes, in all the settlements that the Lord your God is giving you, and they shall judge the people with due justice.”1 For a society to be just, there must be authorities to whom one can turn to resolve disputes and enforce the law. However, as the verse indicates, judges alone are insufficient to create a just society, for judges can’t be effective if their rulings are not enforced. That is why the Torah states that officials must be appointed as well. As Rashi explains, the role of the judge is “to issue the legal ruling” but it is the responsibility of the officials “to chastise the people at the judge's order [beating and binding the recalcitrant party] with a stick and a strap until he accepts the judge’s sentence.”2 Without the power of real enforcement, a judge’s ruling is little more than advice to be accepted or dismissed as one chooses. That is why the rabbis rule that a court that cannot enforce its rulings does not have the right to judge between two parties in dispute.3
Throughout the centuries, Jewish communities and batei din worked together to ensure judicial rulings were properly enforced. Most Jewish communities were semi-autonomous and granted power by the ruling non-Jewish authorities to level financial penalties, utilize social sanctions, and in some cases, even impose corporal punishment on their members. In matters of divorce, this was essential, for if a husband refused to divorce his wife even after the beit din ruled that he must, swift and serious measures could be enacted to ensure his compliance.
For better and for worse, the world we live in today differs radically from the one that existed in the past. Jewish life across the globe has undergone dramatic transformations and upheavals, often leaving rabbinic and communal authority significantly weakened, and as non-Jewish societies opened their doors to Jews, Jewish communities lost the ability to police their members. Under these conditions, communal sanctions often had little effect, and a husband who refused to give his wife a gett could expect to see few, if any, consequences.
To better grasp the depth of the problem, it is helpful to turn to the writings of Rabbi Yosef Messas (1892-1974), who served as the head of batei din in Algeria and Morocco before eventually becoming the chief rabbi of Haifa. In a surprising expression of rabbinic honesty, Rabbi Messas reflects on the serious dysfunction common in matters of Jewish divorce today when batei din lack real authority.4 He begins his account with a nostalgic portrayal of Jewish life in the past when “the entire community was in the hands of their rabbis like clay in the hands of the potter.” During this time, he explains, “the possibility of becoming an agunah was extremely small because, with just a rebuke and not even with force, the husband would listen [to the beit din].” In fact, he adds, “Even if he [the husband] was wicked and friends with violent non-Jewish thugs, he would still listen and submit to the words of the rabbis.” This was because of the severe consequences they might face if they defied them, for as Rabbi Messas poetically puts it, the rabbis' rulings were “as a sharp sword or a rifle in the hands of the soldier.”
Rabbi Massas’ depiction of recalcitrant husbands willingly submitting to the authority of the rabbis is perhaps a slight exaggeration, but it does get at an important truth. In the past, batei din could be empowered with various enforcement mechanisms to ensure their rulings would be adhered to, and while the system may not have been perfect, it frequently worked effectively. However, once Jews were granted the freedoms and rights of modern life, they were no longer bound to their communities as they had once been, and rabbis were no longer seen as figures of authority.
Rabbi Messas contrasts the ideal picture of Jewish divorce of the past with a much darker one that captures the contemporary reality. He describes a contentious divorce case from his time as a dayan in Algeria where the wife desired to leave her marriage, but the beit din had little success convincing the husband to give her a gett. As a result, she had been an agunah for several years, but Rabbi Messas notes that this was not exceptional for “there are those women who have already been waiting up to ten years and more [to receive their gett].” Eventually, the husband agreed to the divorce but not due to the efforts of the beit din. Instead, it was because the woman’s family had begged the husband many times and because she eventually gave in to his extortion demands. The price of her gett was giving up the money owed to her in the divorce, her ketubah and her dowry, a sizable amount at that time.
Even after agreeing to give his wife a gett, Rabbi Messas describes that the husband could hardly be called a willing partner in the beit din process. “When he comes to [beit din in order to] divorce her, he sits before us as if he is on hot coals, and from moment to moment, he opens his mouth to say, ‘Let me go, Let me go.’” The husband’s lack of respect for the rabbis terrified them, for they knew that if an error was to occur in the writing of the gett that would invalidate it, there was no chance the husband would be willing to give another.
Rabbi Messas’ description of divorce highlights a series of issues that remain common nearly a century later. Because batei din have no official authority, they cannot force a recalcitrant husband to appear before them or ensure their rulings will be followed. Consequently, a woman can remain an agunah for years while the work of freeing her is left to others, such as family, friends, and supportive members of the Jewish community. Even if a recalcitrant husband does show up to the beit din, the rabbis remain deeply fearful that he may not give the gett, even if he is required to do so, and therefore, they tend to go out of their way to accommodate him and his demands. Though it could be argued that Rabbi Messas’ case had a happy ending because the woman received her gett, this was only because she gave into her husband’s unjust extortion.
Rabbi Messas’ description of modern batei din as powerless to resolve difficult cases of divorce finds confirmation in a surprising source: the rulings of Israeli batei din. Time and time again, in cases where one party resides in Israel but the other is outside of it, Israeli batei din have consistently ruled that Israel’s state-sanctioned rabbinic courts retain jurisdiction. In their eyes, the reason for this is simple. Because batei din outside of Israel have no real authority to summon parties and enforce their rulings, there is no benefit to having a divorce case heard by them. This position is illustrated clearly in a ruling by the beit din of Haifa regarding a case where the wife lived in Israel and the husband, who refused to give the gett, lived in Sweden:
The rabbis of Sweden have no authority over this case because it is easy for the defendant to ignore the beit din process there or to delay it or to disappear entirely. None of this can happen in Israel where rabbinic courts have the full authority and there is no ability to escape from them.5
As it makes clear, batei din outside of Israel are often powerless to resolve disputes if one side refuses to participate and can only be effective if both parties agree to sign a shtar berurin, a mutually binding arbitration agreement enforceable according to both halacha and the civil law. While it may be easy to dismiss criticism of batei din when leveled by outsiders, we must pay attention when an honest assessment is offered by rabbis and dayanim actively involved in the difficult work of adjudicating divorce.
Perhaps the most surprising fact about contemporary batei din is that not only are they ineffective in solving difficult cases of divorce, but they often fail to use the little power they have. If a husband tells the beit din he will give a gett to his wife as long as she gives in to certain demands, it is all too common that the beit din will encourage the wife to do so. In some circumstances, this is undoubtedly because the beit din is corrupt, but it is also frequently the case that the beit din genuinely wants to help. It's just that, because they see themselves as powerless, they believe the only way the woman will ever be free is by giving in to her husband’s extortion. When confronted, some dayanim will even admit they know their actions are a serious deviation from the halacha, but they will still say they have the best interests of the woman in mind. They feel that she will never be free if they don’t pressure her to give in.
This attitude manifests not only with regards to extortion but can also lead to majorly improper halachic practice with regard to beit din procedures. Normally, when a party brings a dispute to beit din, a beit din’s first step is to issue a hazmanah, a legal summons, to both parties, stating that they must appear before them. If one of the parties refuses to come, a seruv is then issued instructing the community to engage in social sanctions until the individual agrees to stand in judgment. Even though issuing a seruv combined with social sanctions can be a powerful tool to convince the husband to give the gett, many batei din refuse to issue them. Why is this? Once again, it is because dayanim are often fearful that any pressure directed at the husband may make him less likely to give the gett. Therefore, they decide it is better not to send a seruv, even though this leaves the woman without any public recognition that she is an agunah.
This alone is deeply problematic, but some batei din go yet a step further. Not only will they refuse to issue a seruv, but they will also refrain from even sending a hazmanah to the husband. Once again, they will claim that even just sending a hazmanah might unduly pressure him and cause him to withhold the gett. Of course, this approach contradicts the most basic tenets of halacha regarding how a beit din is supposed to function and creates the absurd situation where a beit din claims that it alone has the authority to adjudicate cases but will not summon the parties to do so. In truth, the refusal to send a hazmanah is akin to a rabbi saying that a cheeseburger is kosher. Any beit din that acts in such a way invalidates themselves as halachic authorities because rather than pursue justice as a beit din is commanded, their actions serve only to obstruct it.
Few members of the orthodox community today understand the degree to which these problems persist, in large part because batei din rarely acknowledge them, as the last thing they want is to reveal their own powerlessness. For that reason, we would do well to remember that a lack of justice for the oppressed helped bring about the Temple’s destruction. In the haftara of Shabbat Chazon, the shabbat preceding Tisha B’av, we read from the prophet Isaiah who offers a stinging rebuke cataloging the Jewish people’s many sins. He describes how religious hypocrisy has infected Jewish life, and though people appear to devoutly serve God, they oppress the weak and the vulnerable. He singles out the failings of the legal system in particular, and highlights a sin we know all too well from today. The oppressed never have their day in court: “They do not judge the case of the orphan, and the widow’s cause never reaches them.”6 Without a proper system to adjudicate divorce, we are left only with destruction, but the rectification of this is clear:
You shall appoint judges and officials for your tribes… and they shall govern the people with due justice. You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue, that you may thrive and occupy the land that your God is giving you.7
As Isaiah explains, “Zion shall be saved with justice.”8 Through it, agunot can be redeemed and all of Israel along with them.
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1 Devarim 16:18. For this reason, the rabbis understood that the Torah mandates courts not only for Jews but for non-Jews as well. See for example, Ramban, Bereshit 34:13.
2 Rashi, Devarim 16:18.
3 See Sanhedrin 29a where Mar Ukva was approached to offer a ruling and responded by saying, “I am disqualified from judging you . . . because you will not obey the verdict, and I do not wish to participate in such a judgment.”
4 All citations are from Geresh Yerachim, Chapter 27.
5 Ruling of the Regional Beit of Haifa: Case 1143430/1.
6 Isaiah 1:23.
7 Devarim 16:18-20.
8 Isaiah 1:27.
