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Published online by Cambridge University Press: 04 July 2014
The article examines the approach of leading rabbis toward levirate marriages following the establishment of the State of Israel. Chief Ashkenazi Rabbi Herzog supported the abolishment of levirate marriages and attempted to impose on all ethnic communities the Ashkenazi approach, which since the 13th century favored chalitza. Chief Sephardic Rabbi Uziel supported rabbi Herzog although the levirate commandment takes precedence over chalitza in the Sephardic and oriental traditions and is practiced in these communities. In 1950, the two Chief Rabbis led a council of rabbis that enacted a regulation rejecting levirate marriages and favoring chalitza. Rabbi Uziel believed that two opposing traditions governing an issue as central as family law are not appropriate in a modern state. He perceived the levirate marriage, which binds women in matrimonial relations against their will, to be inconsistent with their status in the modern era. The strong roots of the Ashkenazi Halachic tradition, which has for many generations rejected levirate marriages, allowed him to demand that all ethnic groups adopt it. Rabbi Yossef and other oriental critics regard his actions as submissive to Ashkenazi tradition, a criticism I reject. Rabbi Yossef vigorously opposed the abolition of levirate marriages, and in a decision in 1951 he claimed that it was invalid. It was the beginning of his struggle against what he perceived as Ashkenazi dominance and Sephardic submission, demanding the restoration of the oriental and Sephardic traditions. In time, this became an explicit ideological-political stance under the motto leachzir atara le'yoshna. I suggest that Rabbi Yossef endeavors to restore the golden age of the Bashi sages in Jerusalem, chief among them Rabbi Elyashar, at the twilight of the Ottoman period.
Associate Professor in Family Law and Jewish Law, Faculty of Law, Tel-Aviv University, Israel. This research was supported by the Cegla Center for Interdisciplinary Research of the Law. I would like to thank Dr. Ya'acov Habbaa for his remarks and Mr. Avi Stav for his assistance.
1 Eliash, Ben Zion, “Ethnic Pluralism or Melting Pot” (1983) 18 Is.L.R. 348 CrossRefGoogle Scholar.
2 Arusy, Rasson, “Halachic Decision – Making Regarding Conflict of Laws due to inter-Communal Differences” Faculty of Law, Ph.D. Thesis, Submitted to the Senate of Tel Aviv University, 1987 Google Scholar.
3 Westreich, Elimelech, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities” (1998) 7 Plilim 273–347 Google Scholar [in Hebrew]. Part of the Halachic sources in the area of levirate marriages since the establishment of the State of Israel, which form the starting and end points of this study, have been discussed in the first article and have been incorporated anew in this presentation.
4 Westreich, Elimelech, “Legal Activity by the Chief Rabbis in the Period of the British Mandate,” in Sagi, Avi and Dov Schwartz, , eds. A Hundred Years of Religious Zionism, Vol. 2: Historical Aspects (Ramat Gan, Bar Ilan University Press, 2003), 83–129 Google Scholar; This research enables to compare between the legal activity of the Chief Rabbis Uziel and Herzog at the era of the mandate and the era of the State of Israel and reach important insights. See also my research, “Levirate Marriage and Chalitza in the Official Courts in the Land of Israel at the End of the Ottoman Empire” (in preparation). This research is important to the understanding of the roots of Rabbi Yossef and the background of Rabbi Uziel See also, Westreich, Elimelech, Changes in the Women's Status in Jewish Law: A Journey Through Traditions (Jerusalem, Magnes Press, 2002)Google Scholar. This book deals with the legal foundations of the levirate commandment as well as the encounter between ethnic groups that took place on this issue in the 14th to the 16th centuries; Westreich, Elimelech, “The Levirate Commandment and the Rebellious Woman in North Africa and Spain,” in Barak, Aharon and Shava, Menashe, ed. Mincha L'Izchak, A Collection of Articles in Honor of the Octogenarian Judge Itzhak Shilo (Tel Aviv, Israeli Bar Association, 1999) 145–166 Google Scholar; Westreich, Elimelech, “Rabbi Haim David Halevi: Between Rabbi Ovadia Yossef and Rabbi Uziel” in Zohar, Zvi and Sagi, Avi, eds. Studies in the Legal and Religious Thought of R. Haim David Halevi (forthcoming)Google Scholar.
5 Mishnah, Becoroth, 1, 7.
6 Abba Shaul, a Tana in the third generation, even feared that performing the levirate commandment out of an extraneous motive was tantamount to incest. Jerusalem Talmud, Yevamoth, ch. 1, p. 1.
7 Katz, Jacob, “Levirate and Chalitza at the Post Talmudic Era” in Halakha and Kabbala, Studies in the History of Jewish Religion, its Various Faces and Social Relevance (Jerusalem, Magnes Press, 1984) 130–133 Google Scholar.
8 Westreich, supra n. 3, at 276–277.
9 Katz, supra n. 7, at 136–155; Westreich, Changes in the Women's Status in Jewish Law, supra n. 4, at 127–132.
10 Katz, ibid., at 155–160.
11 Elimelech Westreich, “The Levirate Commandment and the Rebellious Woman in North Africa and Spain”, supra n. 4, at 146–151.
12 Westreich, Changes in the Women's Status in Jewish Law, supra n. 4 at 190–196.
13 Katz, supra n. 7 at 138–140.
14 Westreich, Changes in the Women's Status in Jewish Law, supra n. 4 at 127–132.
15 Westreich, “The Levirate Commandment and the Rebellious Woman in North Africa and Spain” supra n. 4, at 162–164.
16 Westreich, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities”, supra n. 3 at 290–304.
17 Westreich, “Legal Activity by the Chief Rabbis in the Period of the British Mandate,” supra n. 4 at 99–103.
18 Ibid., at.
19 Westreich, supra n. 3 at 308–314.
20 Herzog, Rabbi Isaac, Constitution and Law in a Jewish State According to the Halakha, Vol. 3: Constitution, Laws, and Enactments of the Chief Rabbinate (Jerusalem, Mosad HaRav Kook, 1989) 122 Google Scholar.
21 Ibid., at 123.
22 Ibid., at 114.
23 Ibid., at 125.
24 Ibid.
25 Indeed, in the explanatory letter to the regulations, which was disseminated among rabbis in Israel, Rabbi Herzog based his argument explicitly only on the codex Aruch Hashulchan, was written in Russia at the end of the 19th century.
26 Freiman, Avraham Chaim, “The New Enactments of the Chief Rabbinate of Israel” (1944) 14 Sinai at 254–263 Google Scholar. [in Hebrew].
27 Res. Beit Yossef, Ibum VeChalitza, Ch. 2.
28 Herzog, Rabbi Isaac, Rulings and Writings – Vol 8: Dine Even Ha'Ezer, (Jerusalem, Mosad Harav Kook, 1996) 1283 Google Scholar. The identification of the cases is certain because of the many unique details mentioned in the two sources, as for example the fact that the deceased worked at the potash firm, the presence of the mother, and many other items. Especially striking is the identity between the reasons provided by Rabbi Herzog and those that appear in the decision.
29 Res., Heichal Itzchak, Even Ha'Ezer 2, 75.
30 See Shershevsky, Ben Zion, Family Law (Jerusalem, Rubin Mass LTD, 1984) 451–453 Google Scholar.
31 For a critique of the factual basis of the introduction to this new rule, see also Rabbi Arusy, below.
32 Gilat, Itzhak Dov, Lo titgodedu – Studies in the Development of the Halakha (Ramat Gan, Bar Ilan University Press, 1992), at 171–175 Google Scholar.
33 Ibid. See the examples quoted in that work.
34 See, for example, the critical letter of Rabbi Katzenellenbogen of the Brisk community to Rabbi Levi Yitzhak of Berditchev quoted in Wilensky, Mordechai, The Hassidic-Mitnaggedic Polemics (Jerusalem, Bialik Institute, 1970) Part 1, at 122–131 Google Scholar.
35 A penalty of this type is possible in principle in Israel as of 1995 following Section 6 of the Rabbinical Courts Judgment Law (Obeying Divorce Verdicts) 1995, 48 SH 139, which permits the court to issue a restraining order against someone who was required to perform chalitza for his brother's widow. The law allows the restraining order to impose heavy sanctions on the person who refuses to comply with the court order, such as loss of the right to leave the country, prohibition of plying a trade that is regulated by the Halacha, prohibition of running a business that requires permission by Halachic procedures, and the like. See ibid., Section 2, for a list of sanctions.
36 Rabbi Herzog, supra n. 28 at 1289.
37 Ibid., at 1292.
38 Ibid., at 1295.
39 Ibid., at 1291.
40 For Rosh see Westreich, Changes in the Women's Status in Jewish law, supra n. 4, at 190–196. For Rabbi Mintz see, ibid., at 202–208.
41 Westreich, ibid., at 199–230. My argument in “Protection of the Marital Status,” supra n. 3, at 316–317, must be reconsidered.
42 Appeal 1970/26, 8 P. D. R. (Rabbinical Verdicts), 193.
43 For the attitude of many judges toward the ordinance of the Chief Rabbinate as a result of their ultra orthodox, non-Zionist outlook see Eliash, Ben Zion, “The Limited Influence of Israel Rabbinical Enactments on the Israeli Rabbinical Courts” (1981–1983) 10–11 Diné Israel 177, at 202 Google Scholar. [in Hebrew].
44 The request was made in 1974. The Chief Rabbis were elected in 1973.
45 The file number in the Rabbinical Court is 1974/11949, but the matter was published only in Rabbi Yossef's responsum. See below.
46 The question was: “A new regulation was issued by the Chief Rabbinate of Israel on 21 Shvat, Taf Shin Yud (1950), which entirely prohibits all citizens of Israel as well as those who will immigrate from abroad, from now on to perform the levirate commandment and forces them to perform chalitza, etc. The two Chief Rabbis of Israel, Herzog and Uziel, have signed the regulation.”
47 There is no indication as to why the Ashkenazi rabbis acted in a manner that was inconsistent with the dominant Ashkenazi trend. This topic should be investigated separately.
48 Goitein, Shelomo Dov, The Yemenites — History, Communal Organization, Spiritual Life – Selected Studies, ed. Ben Sasson, Menachem (Jerusalem, 1983) 306 Google Scholar.
49 Rabbi Herzog, supra n. 20, at 159.
50 Ibid., at 160.
51 See ibid., at 125
52 Res. Mishpetei Uziel, (Tel Aviv, 5798 [1938]) Part 2, ch. 83
53 Res., Yabia Omer, Section 6, (Jerusalem, 5746–1986Google Scholar, rep.) Even Ha'Ezer 14.
54 See Elimelech Westreich “A Western View of Eastern Marriage – Comments on the Nusrat Shaulian v. Sultana Shaulian Decision” in Freeman, M.D.A., ed. Jewish Family Law in Israel (Binghamton NY, Jewish Law Association Studies, XIV 2002) at 249–282 Google Scholar regarding the Persian, Yemenite, and Babylonian Jewish Traditions.
55 Westreich, supra n. 17.
56 Westreich, supra n. 18.
57 Goitein, supra n. 48.
58 I searched the databases of the Res. Project and found that only Rabbi Uziel used it as an Halachic argument. See Westreich, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities”, supra n. 3, at 322.
59 Freiman, A.C., Seder Kidushin VeNisuin, (Jerusalem, 5725–1964, rep.)Google Scholar
60 Res. Mishpetei Uziel, Part 2 – Even Ha'Ezer (Tel Aviv, 5698–1938) ch. 44. This responsa was addressed to the Rabbinical Court in Istanbul.
61 Ibid., ch. 45–46, sec. 45–46
62 Res. Yabia Omer, Part 6, (Jerusalem, 5746–1986, rep.) Orach Chaim, ch. 43, par. 3. Rabbi Ovadia Joseph addressed harsh words Rabbi Uziel and Rabbi Tbledano, the Chief Rabbi of Tel Aviv.
63 See also his position in the matter of adopting the Sephardic pronunciation by all communities, in opposition to the position of Rabbi Kook, the Ashkenazi Chief Rabbi. Westreich, supra n. 3, at 321. Moreover, see below his position in the matter of blood tests as a method for determining paternity, which was in opposition to that of Rabbi Herzog, who as a result was forced to renounce it.
64 Rabbi Shalom (Salem) Itzchak HaLevi, Res., Divrei Chachamim, (Jerusalem, 5732–1972) Section Even HaEzer, 12.
65 Westreich, Elimelech, “Medicine and Natural-Science in the Rabbinical Courts of Israel” (1996) 26 Mishpatim, at 452–456 Google Scholar.
66 Westreich, ibid., at 461–463.
67 Herzog, Rabbi, Rules and Writings, (Jeruaslem, Mosad Harav Kook, 1996) Section 7, chapter 20Google Scholar.
68 Res. Yaskil Avdi, (Tel Aviv, 5719–1959) Part 6, Chap. 121.
69 Res. Yaskil Avdi, ibid., par.3.
70 Res. Pnei Moshe, Part 2, (Konstantina, 5431–1671) Chapter 9.
71 Rabbi Hadaya, supra n. 69.
72 Res. Yaskil Avdi, part 6, ch. 122. It appears that here too the case was that of a Yemenite couple. The couple lived in Rehovot and the Hatikva neighborhood, where many Yemenites lived. From paragraph 9 it also transpires that the couple belonged to an ethnic group that allowed the levirate marriage even if the brother-in-law is married and has children.
73 Res. Yaskil Avdi, ibid., at par. 9.
74 Arusy, supra n. 2, at 290.
75 Westreich, “Rabbi Haim David Halevi: Between Rabbi Ovadia Yossef and Rabbi Uziel”, supra n. 4.
76 Westreich, supra n. 3, at 328–332, 334–336.
77 Note that what counts for him as one author, like the Tosafot, is in fact a collective work or a large school of many sages, that was productive in Ashkenaz and in France for about two hundred years and whose influence penetrated forcefully the Spanish culture.
78 Res. Yabia Omer, supra n. 53.
79 Kuk, Rabbi A. I. HaCohen, Igroth Haraaya (Jerusalem, 5722) Chapter 611Google Scholar.
80 See also Eliash, Ethnic Pluralism, supra n. 1, at 368.
81 See Westreich, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities”, supra n. 3, at 342 for his descriptions of arguments he held with judges regarding marriage licenses and the interpretation of the Ban of Rabbenu Gershom.
82 At the end of the responsum.
83 Above, it was pointed out that Rabbi Uziel often used the national unity theme, and that it is an exception among rabbis.
84 Westreich, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities”, supra n. 3, at 325.
85 Res. Yabia Omer, supra n. 53, at paragraph 1.
86 Aruch, Shulchan, Even Ha'Ezer, 170 Google Scholar, 5.
87 For an intensive discussion of this case see Westreich, , Transitions, at 288–300 Google Scholar.
88 Rabbi Yossef was elected Chief Rabbi of Israel in 1973 together with Rabbi Goren.
89 Res., Yabia Omer, Part 8, Even Ha'Ezer Chapter, 26.
90 Res. Yabia Omer, Part 6, Even Haezer, Chapter 26, Paragraph 3.
91 Shershevsky, supra n. 30.
92 Shulchan Aruch, Even HaEzer, 77, 2.
93 Mishneh Tbrah, Ishut, 14, 8.
94 Zohar, Zvi, The Luminous Face of the East (Tel Aviv, Kibbutz HaMeuhad Press 2001) 349–350 Google Scholar. However, Zohar's research reveals that Rabbi Yossef adopted anti-pluralist positions and condemned leaders of non-Ashkenazi ethnic groups who deviated, in his opinion, from the legitimate path traced by Rabbi Karo. This finding contradicts the opinion of Eliash whereby Rabbi Yossef represents a pluralistic approach that opposes the melting pot.
95 Westreich, Elimelech, “The Rise and Decline of the Law of the Rebellious Wife in Medieval Jewish Law” (2002) 12 Jewish Law Association Studies, 211–212 Google Scholar.
96 Westreich, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities”, supra n. 3, at 323–325.
97 The expression hachzarat atara le'yoshna was used in my article, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities”, supra n. 3, at 326, as the title of the section dealing with Rabbi Yossef. Subsequently, Zvi Zohar elaborated on this topic, to which he devoted an entire chapter of his book, The Luminous Face of the East, under this title: “The Vision Of Ovadia – Lehachzirt atara le'yoshna., supra n. 94, at ch. 16, 312–351. Zohar showed that Rabbi Yossef uses the expression hachzarat atara le'yoshna most intensively, significantly more often than any other Halacha sage. B. Lau, in his doctoral thesis, also followed this path.
98 Westreich, Legal Activity by the Chief Rabbis in the Period of the British Mandate supra n. 4, at 115–117.
99 Yossef, Rabbi Ovadia, “The Doctrine of Yisa Bracha” (1970) 1 (6) Second Series Shevet va'am – Forum for discussion of the social and cultural issues of Spanish and oriental Jews in Eretz Israel and the Diaspora, 95–103 Google Scholar.
100 Westreich, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities”, supra n. 3, at 337–345. See also Westreich, Elimelech, “Husband's Claims in Matters of Infertility in the Rabbinical Courts of Israel” (1995) 25 Mishpatim at 244, 246, 285 Google Scholar.
101 An argument of this nature was raised by Rabbi S”Ch Gagin Rabbi Simcha Haim Gagin on the issue of kashrut laws in Jerusalem. In his view, the Ashkenazim should adopt the positions of the Sephardic Halachic tradition and abandon the Ashkenazi tradition because they continue to be absorbed by the Sephardic community, which represents the majority of Jews in Jerusalem. See Zohar, supra n. 94, at 317–318.
102 Rabbi Arusy, supra n. 2.
103 Rabbi Arusy, ibid., at 282–192.
104 Rabbi Arusy, ibid., at 284
105 Before the Holocaust there were about 20 million Jews in the world, 19 million of which were of Ashkenazi origin, that is, 95%. After the Holocaust there were approximately 13 million Ashkenazim as opposed to about one million non-Ashkenazim.
106 Westreich, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities”, supra n. 3, at 289.
107 Westreich, ibid., at 342.
108 See above, Section 3.2, Retreat of the Tel-Aviv Rabbinical Court Judges.
109 Res. Shemesh Umagen, Even Haezer, ch. 8.
110 Westreich, “Protection of the Marital Status of Jewish Women in Israel: An Encounter between the Legal Traditions of Various Communities”, supra n. 3, at 323–326. I sought to find support for Rabbi Uzierl's position in the Moroccan ordinances, but I do not now believe that Rabbi Uziel needed this support.
