Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, December 4, 2011

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

Avishalom Westreich (Ramat Gan Law School) has posted "The 'Gatekeepers' of Jewish Marriage Law:  Marriage Annulment as a Test Case" (forthcoming J. L. & Religion) on SSRN.  Here is the 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 JewishLaw. 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.


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