The 'Gatekeepers' of Jewish Family Law: Marriage Annulment as a Test Case

29 Pages Posted: 1 Dec 2011 Last revised: 23 Nov 2012

Avishalom Westreich

Ramat Gan Law School - College of Law and Business

Date Written: November 30, 2011

Abstract

From early classic commentators to modern Jewish Law scholars, the character of marriage annulment in Jewish Law has been much debated. These debates revolve around the appropriate reading of Talmudic sources. Nevertheless, textual analysis of the main passages reveals support for almost all the competing opinions.

Normally, as the paper argues, Jewish Law is characterized by a pluralist discourse and, despite acrimonious controversies, the merits of competitive arguments are recognized, receiving some legitimacy – at least on a post factum level. Nevertheless, Jewish family law, and especially the case of marriage annulment, is characterized quite differently. In the last few decades some proposals of marriage annulment were raised as a solution to the problem of chained wives (agunot). On the basis of the analysis of Talmudic and post-Talmudic sources we could expect some acceptance of these proposals. Yet those solutions have met severe objections, frequently resulting in total rejection, accompanied by strong emotional reactions. These phenomena patently diverge from the pluralist hermeneutic discourse normally characterizing Jewish Law. The paper compares the discourse in the marriage annulment debate with related matters, such as tort compensation to chained spouses and the conversion conflict. Hence, the paper argues that social conflicts, struggles for monopoly, and the hold of symbolic capital – applying here the construct and terminology of Pierre Bourdieu – direct the development of this particular issue of Jewish Law.

The paper contributes to three areas: first, it proposes a study of one of the core issues of Jewish Law, which has been intensively discussed and debated since antiquity to the present day. Second, the paper analyzes the discourse which characterizes the field, proposing a new comprehension of its dynamics, while indicating the conflicts and symbolic struggles serving as the main catalyst. Finally, the paper may be regarded as a test case for applying a critical-sociological theory to the development of a specific legal field, shedding new lights on the potential range of its application.

Keywords: Jewish Law, divorce, marriage, annulment, halakhah, Talmud, Bourdieu, Gadamer, legal pluralism, Agunot, chained wives, agunah, family

Suggested Citation

Westreich, Avishalom, The 'Gatekeepers' of Jewish Family Law: Marriage Annulment as a Test Case (November 30, 2011). Journal of Law and Religion, Vol. 27, 2011-2012. Available at SSRN: https://ssrn.com/abstract=1966656

Avishalom Westreich (Contact Author)

Ramat Gan Law School - College of Law and Business ( email )

26 Ben-Gurion St.
Ramat Gan, 52275
Israel
+972546550333 (Phone)

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