Thursday, January 13, 2011
Avishalom Westreich (Academic Center of Law and Business) has posted "The Right to Divorce in Jewish Law: Between Politics and Ideology" (forthcoming Int'l J. of the Jurisprudence of the Family) on SSRN. Here is the abstract:
The paper discusses the deep, even emotional, debate surrounding no-fault divorce in Jewish Law. As the paper argues, moderate conception of no-fault divorce has a basis in the classic Jewish Law sources. In current rabbinical court decisions, however, it has become the subject of a keen debate. A possible explanation of the debate is a political one, as part of the inter-authority conflict between rabbinical and civil courts which characterizes the Israeli legal system in matters of family law. According to this explanation, some rabbinical courts have sought to expand their authority by limiting, or controlling, divorce. The paper, however, argues that the political explanation is not sufficient, and suggests an alternative ideological reason. Accordingly, a significant school of rabbinical judges rejects the right to no-fault divorce, and, using various legal and hermeneutic methods, claims that this right belongs to "the laws of the nations," that is, that it arises from non-Jewish sources and lacks roots in Jewish Law.