Yehiel S. Kaplan

Enforcement of Divorce Judgments in Jewish Courts: The Interaction between Religious Law and Constitutional Law in Israel

1 Introduction

In the State of Israel, rabbinical courts are granted sole jurisdiction in the adjudication of marriage and divorce involving Jews. Divorces are affected by means of a get, the Jewish divorce document presented by the husband to his wife on the occasion of their divorce. Although there are ideological disputes between proponents of this legal system and reformists, two Basic Laws enacted in 1992—Basic Law: Human Dignity and Freedom, and Basic Law: Freedom of Occupation—preserve the current system.

When Jews sue for divorce in rabbinical courts in Israel, the courts occasionally determine that the man has to grant his wife a get or that the wife has to accept the get granted to her by her husband. Sometimes one spouse disobeys the ruling. The primary law in Israel used to assist the husband or wife of the recalcitrant spouse is the Rabbinical Courts Law (Enforcement of Divorce Judgments) 5755-1995 [henceforth: the Rabbinical Courts Law]. It enables the rabbinical courts to impose various sanctions on the recalcitrant spouse. Although the rabbinical courts occasionally impose sanctions, they are usually reluctant to do so since they grant significant weight to the stringent view of some decisors of Jewish law concerning a coerced divorce (get me’useh). They delay the imposition of sanctions out of concern that inappropriate coercion measures invalidate the get, rendering the couple still legally married. This policy can be counterproductive in that the adoption of a less conservative policy, also represented in Jewish legal texts, would more readily induce the recalcitrant spouse to give or receive the desired get, thereby alleviating the suffering of the non-recalcitrant spouse and allowing him or her to remarry and start a new family.

In this sphere, the balance between the rights and obligations of the husband and wife, in light of the principles of constitutional law of Israel, is not presented in a clear and detailed manner in decisions of the Supreme Court of Israel, neither before1 nor after2

the enactment of the 1992 Basic Laws. Moreover, sometimes the result of hard cases is bad law. In the aforementioned cases, the Supreme Court had to decide about the appropriate implementation of a severe and harsh sanction: imprisonment. However, in these cases recalcitrant husbands caused unnecessary agony to the wife over the course pf many years, and imprisonment was the last resort. Therefore, the Supreme Court of Israel avoided the issue of the appropriate constitutional policy. The use of the harsh and extreme measure was justified in the particular instance, but there was no attempt to implement a general formula of balancing between the rights and obligations of the husband and the wife. Since the behavior of the husband in these cases was certainly

1

cruel, severe, and unjustified, the court felt the definition of a constitutional formula regarding the appropriate constitutional balance was not necessary. The court explained that the prison keys are in the hands of the recalcitrant spouse, who may at any time release himself or herself from incarceration. 3

I believe that this explanation is appropriate only in extreme cases and in many other cases, when sanctions are imposed against the recalcitrant spouse, the rights and obligations of the husband and wife should be balanced in an appropriate manner. This is an essential policy, especially after the enactment of the 1992 Basic Laws.

The implementation of the principles of these Basic Laws to sanctions imposed against a recalcitrant spouse is evident in the Sabag case. In the Sabag case, the rabbinical court had exercised its authority to prevent a recalcitrant husband from leaving the country, as a means of pressuring him to grant his wife a get. The majority opinion was that although refusal to grant a get is a grave problem and painful for the spouse, the solution to this problem should not include imposing the jurisdiction of the rabbinical court on an individual lacking sufficient connection to the country, especially when preventing the husband’s egress to his permanent place of residence severely violates his constitutional right to freedom of movement: "the appropriate solution cannot be in conflict with the fundamental principles governing the propriety of legal proceedings, and these are not commensurate with the resolution of disputes by means of coercion and pressure that lack any legal basis, notwithstanding the gravity of the disputes."4

In addition, since the Rabbinical Courts Law states that jurisdiction is granted to these

courts only when that the parties have connection to Israel, in the Ploni case5, Supreme Court Justice Arbel decided about the issue of imposing the jurisdiction of a rabbinical court on an individual who claimed he lacks the connection to Israel required in the law. Again the husband claimed that the prevention of his exit to his permanent place of residence in another country severely violated his constitutional right to freedom of movement. He also claimed that the linkage between the deposit of a get at a rabbinical court in Israel and the removal of the court order preventing his exit from Israel is unconstitutional, since it is not in spirit of the Basic Law: Human Dignity and Freedom. On the other hand, the wife claimed that the policy of the rabbinical court in this case was in the spirit of the constitutional principles, including the principle of proportionality. Justice Arbel stated that in this case the territorial connection of the husband to Israel is strong and therefore he is subjected to the regular jurisdiction of the rabbinical courts in Israel. She took into consideration the suffering and agony of the wife of the recalcitrant spouse. In Arbel’s view, in the circumstances of this case the right of this woman to

4 See HCJ 6751/04 Sabag v. The High Rabbinical Court of Appeal (2004), 59 (2) P. D. 834. 1 See Cri. App. 220/67, 164/67 Attorney General v. Yihye and Orah Avraham, (1968) PD 22 (1) 29, 49-50. 2 See HCJ 631/96, 1803/96 Baruch Even Tzur v. Supreme Rabbinical Court, (1996) Takdin-Elyon, 96(2), 5756/7 -1996, 61. 3 See Attorney General v. Yihye and Orah Avraham, n. 1 above; HCJ 631/96, 1803/96 Baruch Even Tzur v. Supreme Rabbinical Court, (1996) Takdin-Elyon, 96(2), 5756/7 - 1996, 61, n. 2 above.

2

release herself from the chains of an undesirable marriage—implied by her constitutional right to human dignity and freedom and her right to autonomy and regular, normal family life—is more important than the husband’s constitutional freedom of movement. She also stated that the key to his release from the undesirable situation is in his hands.

However in the Sabag and the Ploni cases the Israeli Supreme Court did not articulate the general desirable balancing formula that should be implemented when sanctions are imposed against a recalcitrant spouse.

In the Ploni case, the court stated that when sanctions are imposed upon a recalcitrant spouse the High Court of Justice should intervene and invalidate the decision of the rabbinical court when the latter does not act in light of the principles of natural justice or the directives in the legislation of the State of Israel. It also stated that in this case the rabbinical court did take into consideration the principle of proportionality and did not impose the severe sanction—imprisonment—upon the recalcitrant spouse. Although the wife requested the imposition of imprisonment, the court was careful and adopted a gradual policy of imposition of sanctions against the husband.6 This policy was presented as an implementation of the policy articulated earlier, in the Plonit case, in which the court justified a policy of a balanced and gradual imposition of sanctions upon a recalcitrant spouse by the rabbinical courts.7

Yet these are general guidelines. A detailed analysis of the policy of imposition of sanctions against a recalcitrant spouse by rabbinical courts in Israel, in light of the relevant principles of Jewish law, case law in Israel, and Israeli legislation, has not yet been undertaken. The aim of this paper is to present the appropriate formula pertaining to the imposition of sanctions against the recalcitrant spouse in light of the principles of constitutional law. Moreover, I believe that the resulting formula is applicable in other countries as well, especially those, such as Canada, with similar constitutional legislation. A similar policy should be implemented concerning the appropriate application of coercive measures against recalcitrant spouses in Jewish divorce proceedings in rabbinical courts in other countries, such as the United States of America and Canada . In these countries as well.In these countries the parties can choose to approach a

rabbinical courts and request that it will assist them in their divorce dispute.In addition in these countries sometimes staes or provinces or the state sometimes enact legislation

in an attempt to assist Jewish husband or wife who desire to receive their get from a recalcitrant spouse. When the legislator acts in this manner the courts should

implement the legislation in light of principles of human rightsincluding the principle of proportionality.

The main conclusion of this paper is that the policy of imposing sanctions against a recalcitrant spouse should be defined in a clear manner in light of guiding principles derived from Jewish law as well as Israeli law, including those stated in the aforementioned 1992 Basic Laws. These latter laws state that certain basic human rights—such as freedom of movement, freedom of occupation, and human dignity and liberty

3

—are important constitutional rights. Sanctions imposed by rabbinical courts in an attempt to induce the recalcitrant spouse to give or receive a get are sometimes severe: Imprisonment, severe limitation of the freedom of occupation, etc. Therefore, the imposition of these sanctions in light of the limitations in Jewish law concerning coerced divorce and the limitations in Israeli law pertaining to the enforcement of divorce judgments and the principle of proportionality is very important. When these sanctions are imposed, the court should grant due weight to the rights and obligations of the husband and wife, in Jewish law and constitutional law of the State of Israel, and implement an appropriate balancing formula regarding these rights and obligations. The choice of a specific sanction, imposed upon the recalcitrant spouse, should also be the result of careful examination of the circumstances of each divorce case. In addition, the sanctions should be imposed in a gradual process. Only after less severe sanctions proved ineffective should more severe sanctions be imposed. This policy is in the spirit of the “values of the Jewish and democratic state” mentioned in the 1992 Basic Laws.

2 Enforced Get (Get Me’useh) in Jewish Law

2. 1 Compelling the Husband to Give a Get when there are Grounds for Divorce that Justify Compulsion

Early sources of Jewish law indicate that, originally, a woman could be divorced against her will. In ancient times, when a husband did not wish to divorce his wife, a court decision in favor of divorce did not suffice on its own; his cooperation was required as well.8 After the husband agreed of his own free will to divorce his wife and gave her a get, the woman was divorced. Later, a change occurred with respect to the wife’s consent to receive a get. The cooperation of both the husband and the wife was required, and without it the get was invalid.9

According to classical Jewish sources, the gap between the capacities of the husband and the wife to sever their marital bond is narrowed by the principle in Jewish law that de facto entitles a woman to receive a get against the will of her husband. In prescribed circumstances, the husband may be coerced ("kofin oto") to give his wife a get.10 The court’s methods of compelling the recalcitrant husband to grant a divorce included flogging.11 The practical result of these harsh coercive measures is that the husband does not divorce his wife purely of his own volition.

In this context, great importance is ascribed to the discretion of the court. Even when there are grounds for compelling divorce, flogging and other harsh measures are only permitted after a rabbinical court rules that the husband must be compelled to give a get. A get that was given after the exercise of a coercive measure, without an explicit judicial ruling of a Jewish court that grounds exist for compelling divorce, is considered an unlawfully (shelo kadin) enforced get (get me’useh).12

4

Although many medieval authorities regarded the list of cases of cases where divorce is compelled to be closed,13 the legitimacy of applying the rule of the compelled get to cases more severe than those explicitly mentioned in the classical literature was assumed.14 The list of cases of “compelled” divorce was expanded to include other cases that shared a rationale identical or similar to the grounds for divorce mentioned in the early literature.15 However, this was not done as a manner of course. In many cases, Jewish authorities refrained from ruling in favor of compelling divorce because they hesitated to rule against those who maintained that the list of cases where a get may be coerced should not be expanded.16 Even in cases where opinions differed, many refrained from relying on those who ruled in favor of compulsion.17

2. 2 Sanctions Against a Husband or Wife who Refuses to Give or Receive a Get

2. 2 1 Matching the Level of Enforcement with the Appropriate Sanction

The medieval authorities distinguished between two levels of enforcement with respect to divorce judgments: (1) kofin le-garesh — compelling divorce; and (2) hiyuv le-garesh — obligating divorce.18 R. Hananel and subsequent authorities devised a lexical taxonomy for distinguishing between cases of obligation and compulsion.19 These early authorities did not distinguish two other categories, “recommended divorce” and “mitzva to divorce,” newer categories used today in the judgments of Israeli rabbinical courts in Israel. These latter categories are not to be confused with situations in which there was a religious obligation to divorce—such as when the “evil” wife causes her husband to sin—which are treated as cases of compelled divorce.20

2. 3 R. Tam’s isolating measures

A possible remedy, used primarily when a judgment is issued obligating divorce, and certainly in the case of a ruling compelling divorce, is the exercise of R. Tam’s isolating measures (harhakot). Due to the significance of these measures in Israeli law, we shall devote a separate discussion to them.

R. Tam’s isolating measures are first mentioned in the twelfth century, in a responsum by R. Tam—R. Jacob b. Meir—in his Sefer Ha-yashar.21 He writes: “If we all agree, you may issue a decree with a severe curse [for violators of the decree]. This decree will state that every man and woman of the house of Israel... is forbidden to speak with him [the husband], to do business with him, to host him, to give him food or drink, to escort him, or to visit him when he is ill.”

R. Tam lists specific measures of social isolation that may be inflicted on the husband, but adds that the list of measures mentioned in his responsum is not closed, and other indirect measures, similar to those mentioned, may also be inflicted: “And they may

5

add stringent measures as they please, [to be imposed] on anyone, if that man does not divorce and release this girl [his wife], for there is no compulsion in this, for if he wishes, he will comply, and he will not suffer in his body on account of this ban, but rather, we separate ourselves from him.”22

Here and elsewhere,23 R. Tam distinguishes between direct sanctions, such as flogging and excommunication (herem) and voluntary communal separation or withholding of benefit. In contrast to excommunication, when these isolating measures are applied, they have no direct effect on the “body”24 of the recalcitrant husband and they do not stigmatize him with the status of one who was excommunicated.25 Moreover, R. Tam’s isolating measures are not a universal sanction, because they only apply in a specified locale. The sanctioned party may free himself from their burden by simply movingto another community. Thus, by remaining in his community, the isolated party tacitly accepts the onus of the isolating measures. Thus, some explain that when the party remains in the locale where the measures have been imposed, they are regarded as a sanction that the individual has brought on himself, and the resultant divorce is not tainted by compulsion or duress.26

However, we should also consider the weakness of the distinction between a direct action, inflicted upon a person’s “body,”27 and R. Tam’s indirect isolating measures. One main argument against the validity of this distinction in contemporary society might be that it does not adequately take into account the effects of the sanction on a recalcitrant non-religious spouse, especially the husband, with regard to his/her free will. An action that in a formal sense is direct might have less effect on the husband’s will than an indirect action that is of greater significance from the husband’s perspective and has greater effect on his free will. This may be the case if the social effects of excommunication are less severe than those of R. Tam’s isolating measures. When the isolating measures are implemented, the isolated party may agree to divorce his spouse in order to free him/herself from the oppressive feeling of social isolation, which in con-temporary society might sometimes be significantly greater than the social isolation experienced by someone placed under excommunication. The heavy social pressure brought to bear on a recalcitrant husband when R. Tam’s isolating measures are imposed impacts on his/her will to give/receive a get.28

2. 33 Level of Enforcement

On the understanding of the medieval authorities, when a divorce judgment is enforced at the most severe level, that is, when divorce is compelled, even sanctions that impact on the individual’s body, such as flogging, are permitted. The get is indeed enforced (me’useh), but enforced in a lawful manner. On the other hand, when the enforcement of the divorce judgment is of lesser severity, that is, in the case of obligation to divorce, sanctions that affect the individual’s body are forbidden. Should they be

6

implemented nonetheless, the validity of the get is liable to be adversely effected, because the divorce will have been enforced in an unlawful manner. Less severe sanctions that do not affect the individual’s body are permitted in such circumstances, and if they are indeed employed, the get is not regarded as having been unlawfully enforced.

In the responsum that first mentions the isolating measures, R. Tam refers to a situation in which divorce may not be compelled: when a woman rebels against her husband with the claim that she finds him repulsive. In such a circumstance, the use of harsh coercive measures, such as flogging or excommunication, is forbidden.29

Nevertheless, R. Tam responds to the plight of a woman who finds her husband repulsive and allows other forms of coercion, namely, the isolating measures, to be used.

Subsequently a dispute arose regarding the conditions under which R. Tam’s measures could be applied. Some authorities maintained that this sanction may be employed when the court issues a judgment of obligation to divorce.30 Other authorities were inclined to restrict the imposition of this sanction, which they considered harsh, on the recalcitrant husband, occasionally arguing that whenever divorce cannot be compelled, the isolating measures cannot be imposed, as they constitute a form of ban.31

Some recent and contemporary responsa reflect this uncertainty about the application of isolating measures,32 while other recent authorities maintain that the strong pressure applied to the husband by way of R. Tam’s isolating measures does not diminish his free will.33

According to Israel’s first Chief Rabbi, R. Isaac Herzog, the imposition of R. Tam’s isolating measures is permitted after consideration of the circumstances has led to the conclusion that “in order to fulfill his duty to God, it is a mitzva for [the husband] to divorce [his wife],” so that she not remain an aguna (a “chained woman,” prevented from terminating a failed marriage).34

As stated earlier, the category of divorce that is a mitzva, and that of recommended divorce, in the sense found in the literature of recent generations, are not found in the literature of the Middle Ages. Therefore, no consideration is given in that literature to the imposition of R. Tam’s isolating measures at levels of enforcement lower than that of obligation to divorce. Because of the fear that the get will not be free of the taint of unlawful enforcement, in contemporary rulings of rabbinical courts in Israel, the judges do not use these measures to uphold a divorce judgment when the enforcement level does not exceed that of mitzva or recommended divorce. In practice, the rabbinical courts in Israel have imposed R. Tam’s isolating measures not only in circumstances where divorce could not be compelled, but also when a ruling was issued that the husband is obligated to divorce his wife.35

3 Enforced Get in Israeli Law

3. 1 Rabbinical Courts Jurisdiction Law (Marriage and Divorce), 5713 — 1953, Section

7

6

The legal arrangement that applied until 1995 regarding the enforcement of divorce judgments in Israel is set down in Section 6 of the Rabbinical Courts Jurisdiction Law (Marriage and Divorce), 5713-1953 (henceforth: Rabbinical Courts Jurisdiction Law).36

That section states:Where a Rabbinical Court, by final judgment, has ordered that a husband be compelled to grant his wife a letter of divorce or that a wife be compelled to accept a letter of divorce from her husband, a District Court may, upon expiration of six months from the day of the making of the order, on the application of the Attorney General, compel compliance with the order by imprisonment.

Jewish law authorities in Israel have discussed the basis for the arrangement set down in this law. R. Meshulam Roth argued that legislation that would enable rabbinical courts to enforce divorce judgments by imprisonment is problematic.37 However, many scholars of recent generations maintain that when imprisonment is appropriately imposed, there need be no apprehension that the get will be regarded as having been unlawfully enforced.38 It would appear from analysis of the responsa literature that the determining factor is the degree of pressure that the coercive measure exerts upon the recalcitrant spouse. If the prison conditions are such that they do not exert excessive pressure on the husband to give his wife a divorce, there is room for imposition of imprisonment. 39

It is worth noting that there is hardly any historical precedent for rabbinical courts to imprison Jews, including recalcitrant spouses, in Jewish prisons. But circumstances have changed in recent generations; the number of women denied a get has risen, and the conditions of life in a permissive society have made it more possible, and acceptable, in certain segments of society, for such women to choose to live with new partners before being released from their marital bond. More effective solutions to the problem of the husband’s refusal to give a get became necessary, so the utilization of imprisonment as a sanction against the recalcitrant spouse was permitted. In one of the rulings of a rabbinical court in Israel, the rabbinical court judges (dayanim) took into account, inter alia, the fact that prison conditions are not as harsh today as they were in times past.40 As a direct consequence of this new reality,41 the rabbinical court, given its authority to do so under Israeli law, ordered the recalcitrant husband imprisoned.

3. 11 Deficiencies of the Rabbinical Courts Jurisdiction Law, Section 6

3. 111 The Remedy is not Speedy

Much time elapses from the time divorce proceedings begin until the court, “by final judgment, has order[s] that a husband be compelled to grant his wife a letter of

8

divorce or that a wife be compelled to accept a letter of divorce from her husband.” 42 In general, only after the final date of appeal has passed, or after the appeal has been rejected by the Supreme Rabbinical Court of Appeals, is it possible to compel a recalcitrant spouse to give or accept a get by way of imprisonment.43

Even after a final judgment has been handed down, and assuming that the recalcitrant spouse remains steadfast in his or her refusal to give or accept the get, the partner who is refused the get must wait an additional period of time. This delay stems from the fact that in Section 6 of the Rabbinical Courts Jurisdiction Law, the Israeli legislator revealed a clear intention not to let the matter of compelling a get rest solely in the hands of the rabbinical courts.44 The Israeli legislator did not authorize the rabbinical court to impose the sanction by itself. Rather, the rabbinical court was authorized to determine that Jewish law allows compulsion, but was not granted the authority of execution at the stage of imposing imprisonment. The law required that the rabbinical court’s ruling be evaluated by two external supervisory authorities, who had to approve it before imprisonment could be imposed on the recalcitrant spouse: the Attorney General must agree to apply to the district court for an order of imprisonment, and the district court must decide to accede to that request. Only after the rabbinical court ruling passed these additional tests set down in the law could its decision to imprison the spouse be carried out.

In addition to these two control mechanisms, which invoke the supervision and discretion of external organs, there is also a delaying mechanism, the purpose of which is to prevent hasty action. The rabbinical court’s ruling may only be applied after a specified time has elapsed from the day it was handed down. Before the Rabbinical Courts Law (Enforcement of Divorce Judgments) 5755-1995 was enacted, this time period was six months from the day that the order of compulsion by imprisonment was given as the final judgment of the rabbinical court.45

All these mechanisms prevent the speedy application of the sanction of imprisonment against the recalcitrant spouse.46

3. 112 The Remedy can be Implemented only when the Court Decides to Compel Divorce

Any Rabbinical court ruling in which it is stated that the court “compels,” “obligates,” “deems a mitzva” or “recommends” divorce is regarded as a divorce judgment.47 Yet the Israeli legislator, in Section 6 of the Rabbinical Courts Jurisdiction Law, stated that a rabbinical court is authorized “to compel compliance with the order by imprisonment.” The Supreme Court held that the imposition of imprisonment is only possible after the court has ordered that the husband or wife be compelled to give or accept a get, but not after it rules that they are obligated to divorce, or hands down a ruling at any level of enforcement lower than compelled divorce.48 The Israeli legislator set down this limitation in Section 6 of the Rabbinical Courts Jurisdiction Law in order to

9

prevent any possibility of an unlawfully enforced get, consequently also making it difficult to ameliorate the plight of women refused a get, as dayanim espoused the aforementioned conservative approach to situations warranting compulsion and were reluctant to impose the sanction of imprisonment unless there was no uncertainty that compulsion was warranted.49 As the causes for compelling a get in the early sources are few and well-defined, this opinion limits the possibility of ruling that a get may be compelled in our day.50 Although some, namely R. Herzog,51 criticized this tendency toward stringency, it remains the prevailing opinion in Israeli rabbinical courts.

Yet just as these considerations are taken into account, weight should also be given to an opposing consideration, namely, ameliorating the plight of women who are refused a get, for this too is an important value in Jewish law. Before the Rabbinical Courts Law was enacted, not enough was done from the perspective of the spouse who was refused a get, as only on rare occasions did the dayanim issue a ruling with the highest level of enforcement.52 Until 1995, consideration of the possibility of ruling in favor of compelled

5 See HCJ 2123/08 Ploni v. Plonit (2008) (Unpublished). 6 See HCJ 10736/07 Ploni v. The High Rabbinical Court of Appeal (2008) (Unpublished). 7 See HCJ 10229/06 Plonit v. The High Rabbinical Court of Appeal (2007) (Unpublished). 8 See E. G. Ellinson,”Talmudic Restrictions in Divorce: Their Nature and Validity” (Heb.), Dine

Israel 5, p. 37 n. 1 (1974). The asymmetric principle that divorce was voluntary from the husband’s perspective but could be affected against the wishes of the wife appears in: m. Yevamot 14:1; t. Ketubot 12:3; b. Yevamot 113b; b. Gittin 88b. See also M. A. Friedman, Jewish Marriage in Palestine, 1, pp. 312-313 (Tel Aviv: 1980). A similar principle is mentioned in Sifre Deuteronomy, sec. 269, p. 290 (Finkelstein ed.), (NY: 1969). See also b. Gittin 77a; b. Bava Metzia 10b, 56b. During the Talmudic period, the gap between the husband and the wife in the area of divorce was narrowed as the Rabbis, increasingly and do varying degrees, limited the grounds for divorce; see m. Gittin 9:10; b. Gittin 90b; b. Sanhedrin 22a; Ellinson, ibid. pp. 38-45. 9 See Ellinson, ibid. p. 37, n. 2. R. J. D. Bleich explains: “In Judaism both the establishment of the matrimonial bond and its dissolution through divorce have always been seen as flowing from the acts of the parties and not from Rabbinic judicial authority” — J. D. Bleich, ”Jewish divorce: judicial misconceptions and possible means of enforcement”, Connecticut Law Review 16, p. 219 (1984). 10 See m. Ketubot 7:9-10. Under certain circumstances, the husband may be coerced to divorce her against his will, e. g., when he suffers from a major physical defect or illness, works in a profession that involves handling foul-smelling materials, or engages in particular types of improper conduct. See m. Eduyot 4:9, Gittin 9:8, Ketubot 7:1, Kiddushin 2:5, Nedarim 11:12, Yevamot 2:8, 3:5, 6:6, 10:1; b. Ketubot 63a, 70a, 77a, Yevamot 24b, 65a.11 The category of cases in which divorce is “compelled” first appears in a distinct fashion in medieval Talmudic commentaries: Rashbam, Baba Batra 48a, s.v. ve-khen ata omer be-gitei; Tosafot, Ketubot 70a, s.v. yotzi; Responsa Or Zarua, #760; Piskei Rosh, Yevamot 6:11; Responsa Rosh 43:4; Ritba, Baba Batra 48a s.v. ve-khen; Maimonides, Mishneh Torah, Laws of Divorce 2:20; Meiri, Beit Ha-behira, Kiddushin 50a s.v. mi; Baba Batra 40b, s.v. get; 47b s.v. hasikarikon; 48a s.v. get. See also Responsa Rashba, I:1192, V:205, VII:414; Responsa Maharam Halawa, #53; Responsa Hakhmei Provence, #48, #76-78; Responsa Maharik Hahadashot, #29; Tashbetz, 2: #68 and #256; Responsa Yakhin U-Boaz, I: #130; II: #21. 12 If the coercive measures were applied by gentiles, the validity of the get depends on whether the gentiles were acting on the agency of the rabbinical court, even if there were clearly grounds for compulsion. See m. Gittin 9:8. Cf. Mekhilta de-Rabbi Yishmael, Mishpatim, sec. 1, pp. 21, 246 (Horowitz-Rabin ed.); b. Baba Batra 48a, Yevamot 106a, Gittin 88b; y. Gittin 9:10. Amongst the medieval commentators, see Mishneh Torah, Laws of Divorce 2:20; Responsa Yakhin U-Boaz, II: #21; Responsa Rashbash, #339; A. Cohen, ”The Question of R. Zalman Katz (Maharzakh) and R. Jacob Weil Regarding an Enforced Get” (Heb.), Moriah 6, 11-14 (1975), esp. the responsa of R. Nathan Igra (pp. 12-13) and the responsa of R. Abraham Hakohen (Maharakh) (pp. 13-14).

10

divorce was generally based on the assumption that it was preferable that the get be given without having to resort to the drastic measure of imprisonment.53

3. 113 The Remedy of Imprisonment is Ineffective in Certain Cases

The effectiveness of imprisonment was cast into doubt by problematic cases, for example, that of Yihye Avraham, a husband who, despite prolonged incarceration, refused to release his wife from an unwanted marriage.54 Moreover, the remedy of

13 Responsa Rashba I: #1192 and #573; V: #95; Responsa Baalei Hatosafot #75; Responsa Rosh 17: #6, 43: #3, and 43: #9a; Tur, Even Ha-ezer (EH) 154; Responsa Hakhmei Provence #48, #72-75, #78; New Responsa Maharik #24, #29; Cohen, supra n. 13, pp. 11-13; Tashbetz II: #22; Responsa Yakhin U-Boaz, I: #130, II: #21.14 Piskei Rosh, Ketubot 4:3, 5:34; Responsa Rosh 43: #6; Tur, EH 9; Beit Yosef, ad loc. s.v. u-ma she-katav be-shem; Responsa Ribash #241; New Responsa Maharik, #2 p. 12, #29; Tashbetz 2: #8; Responsa Maharam Alashkar #73. See also Z. Warhaftig, ”Coercion to Grant a Divorce in Theory and in Practice” (Heb.), Shenaton Hamishpat Haivri 3-4, pp. 153, 178-183 (5736-5737/1976-1977); E. Shochetman, “Women’s Status in Marriage and Divorce Law” (Heb.), in F. Raday, C. Shalev, M. Liban-Kooby (eds. ), Women’s Status in Israeli Law and Society (Heb.), pp. 380, 417-420 (Tel Aviv: 1995); idem, ”AIDS as Grounds for Divorce in Jewish Law” (Heb.), Mishpatim 25, pp. 25-28 (1995). 15 See Tashbetz 2: #8; New Responsa Maharik, #2, p. 12; Responsa Rosh 43: #13; Tur, EH 154; Responsa Rashbash #383a. Warhaftig (supra n. 14, pp. 179-194) lists the grounds for compelled divorce that were derived from cases explicitly mentioned in Talmudic sources. These include, inter alia: a husband who is seriously ill and endangers the health of his wife and children (Responsa Rosh 42: #1); a wife-beater (Responsa Maharam b. Barukh [Prague], #907); a prisoner who is unable to fulfill his conjugal obligations (Tashbetz 2: #68); a couple who disagree on where to live, and there are grounds for compelling divorce due to certain relevant factors: the priority given to Jerusalem and the land of Israel over other places, the couple’s prior agreement on where to live, and the circumstances that existed before they married (m. Ketubot 13:11 et al.); the ma’is alai plea, according to Maimonides (Mishneh Torah, Laws of Marriage 14:8); absence of domestic harmony (Responsa Ha-hayim Ve-hashalom 2: #35; Responsa Yabi’a Omer EH III: #18), though in recent generations, when this argument was the sole grounds for divorce, it was not accepted as a decisive factor justifying a compelled get. See Responsa Divrei Shmuel 3: #145. This list, however, is not closed. For example, divorce is compelled when there is a factual or legal doubt regarding the validity of the betrothal, such as when the couple married in secret, as a joke, under duress, or in certain other problematic circumstances. See the sources cited in P. Shifman, Doubtful Marriage in Israel, 59-98 (Heb.) (Jerusalem: 1975). Similarly, a husband who committed adultery may be compelled to divorce his wife. See R. Halperin,”Husband’s Adultery as Ground for Divorce” (Heb.), Bar-Ilan Law Studies 7, pp. 304-305 (1989); Shochetman, supra n.14, second article,p. 42 (in light of assertions in Sefer Ha-agudah, Yevamot 77; Hagahot Ha-Rema, EH 154:1). So too in a case where a husband has run away, and there is real concern that his wife might become an aguna, the authorities are inclined to rule in favor of “compelled” divorce, or at least to apply certain restraining measures against him. See Responsa Maharsham 8: #282. 16 See Responsa Ribash, #241. 17 See Responsa Rosh, 42: #1; Tur, EH 154:5; New Responsa Maharik #24; Responsa Maharit I: #113; Responsa Hatam Sofer, EH I: #116; Responsa Hatan Sofer #59, Responsa Ribash, #242. See also Shulhan Arukh, EH 11:8, and Beit Shmuel ad loc., #18. Regarding the principle that there is no compulsion in cases of doubt, see also Hidushei Ha-Rashba Ketubot 72b s.v. ve-asikna. 18 The sanctions imposed on the husband who refuses to give a writ of divorce are more moderate than those imposed when the ground for the divorce is one with regard to which compulsion is mentioned. See b. Ketubot 77a; y. Ketubot 11:7. When divorce is obligated, the rabbinical court may not resort to flogging or any other severe coercive measure, such as excommunication, the use of which is only permitted when the court rules that the husband may be compelled to divorce. R. Tam emphasized that when the husband is not compelled to give a divorce, it is forbidden to coerce him by way of flogging

11

imprisonment was not effective for cases in which women refused to accept a get;55 even when the situation justified a compelled divorce, the courts refrained from ruling that a woman be compelled to accept a get, and so too refrained from imposing the sanction of imprisonment. They preferred to grant the husband a dispensation to contract a second marriage,56 and exempt him from his obligations toward his first wife, including the obligation to pay her maintenance.57

The Attorney General’s intervention also prevented the imprisonment of women. Even in the very rare case that a rabbinical court ordered a woman imprisoned for having refused to accept a get, the Attorney General did not motion the district court to approve

or any other harsh coercive measure, such as excommunication or banning. See Sefer Ha-yashar, Responsa #24; Mordekhai, Ketubot #204. The distinction is between verbal pressure and coercion by means that have a more direct effect on him. See also Responsa Ba’alei Ha-Tosafot #75; Tosafot Ketubot 70a, s.v. yotzi; Responsa Rashba 5#:95, 7:414; Piskei Ha-Rosh, Yevamot 6:11, 15; Responsa Rosh, 43: #4; #12-1; Responsa Mahari Bruna #211; Responsa Maharah Or Zarua #157; Tashbetz 2: #8, # 68, #256; Responsa Yakhin U-Boaz, I: #130; II: #21; Responsa Rashbash #383a; Responsa Maharalbah #33; Gvurat Anashim #72. 19 See Responsa Hakhmei Provence #73-74, #84; Responsa Ba’alei Ha-Tosafot #75; Sefer Mitzvot Gadol, positive commandment 48 (end); Mordekhai, Ketubot #194, #204-05; Responsa Maharik, #29; Sefer Ha-agudah, Ketubot #98; Tashbetz, 2#:8, #256; Responsa Yakhin U-Boaz 2: #21; Hagahot Ha-Rema, EH 154:21. 20 R. Solomon b. Shimon dealt in length with the category of divorce deemed as mitzva. See Responsa Rashbash, # 411, and cf. #383a. 21 Sefer Hayashar, Responsa #24. 22 Sefer Hayashar, Responsa, #24. On the scope of the application of R. Tam’s isolating measures, see also Warhaftig, supra n. 14, p. 162; A. Be'eri, ”Legal Means for Enforcing a Jewish Divorce (Isolating Measures of R. Tam)” (Heb.), 18-19 Shenaton Hamishpat Haivri, 65, 73-74 (1992/4). 23 Hagahot Mordekhai, Gittin #468. See also Be'eri, supra n. 22, pp. 73-74. Regarding imprisonment imposed for tax debts during the Middle Ages, see Responsa Rosh 7: #11.24 The Talmud explicitly states that excommunication and banning act on the person’s body. See b. Mo’ed Katan 17a. Subsequent sources also emphasized that excommunication and banning impact on the person’s body: “Banning is a punishment of his body” — Seder Eliahu Rabbah, #13. 25 The fourteenth century scholar from Spain, R. Nissim Gerondi, explains that when an excommunication is inflicted on a person’s body he carries it with him wherever he goes. See Responsa Ran, #48. See also Encyclopedia Talmudit vol. XVII, ”Herem (Harmei tzibur).” 26 In the late Middle Ages, R. Joseph Colon, citing a slightly different version of R. Tam’s responsum regarding isolating measures, attributes great significance to the fact that the isolated husband can leave the locale in which the measures have been imposed (Responsa Maharik #102, #135). This distinction between externally inflicted coercion and coercion that the husband inflicts “upon himself” was noted by R. Moses Feinstein in Responsa Igrot Moshe, EH I: #137. Yet R. Feinstein clarified in his responsum that changing one’s place of residence is no small matter. It may be assumed that once a person is settled in a particular place, it is difficult for him to leave. See also Responsa Shevet Ha-Levi 5: #27. 27 Use was sometimes made of the wording found in R. Tam’s responsum, according to which the isolating measures, in contrast to excommunication and banning, are not inflicted on the individual’s “body,” nor does he “bear” them on his body wherever he goes. This follows what R. Tam writes in his responsum: “And he is not stricken in his body.” In Jewish society of the twelfth century, the great majority of Jews had a profound belief that a excommunication or banning penetrated every organ of one’s body, and that the banned party carried the sanction in his body wherever he went. In such a society, a sanction that is “in his body” is very severe, and to a large extent deprives the individual of his free will with regard to giving a get. Therefore, imposition of such a sanction generates the apprehension that the get will not be given of the husband’s free will, but will be an unlawfully coerced get. R. Tam’s isolating measures, on the other hand, only affect someone in his own community, and he does not carry them with him to other locales. R. Elijah of Vilna comments: “For he can save himself from this by moving to another city. As long as no action is taken against his body, it is not called ‘compulsion’” (Bi’ur Ha-Gra, EH 154:64). This is in contrast to the effects of excommunication, as R.

12

execution of the rabbinical court order, and the woman was ultimately not imprisoned.58 Concern was sometimes voiced that when the husband was already in prison for

criminal offences unrelated to his refusal to give his wife a get, the sanction of imprisonment would have no effect on him, particularly if he is serving a long prison sentence. According to Section 47 of the Penal Law, 5737-1977, a criminal prison term is deferred until after all civil prison terms, including prison time imposed for refusing to give a get, have been completed. In a case that came up where the husband was serving a long criminal prison sentence, there was apprehension that although he would be sentenced to additional civil imprisonment on account of refusal to grant a get, making his total sentence longer, the very fact of the long criminal sentence would cause him to

Moses Feinstein remarked, explaining the ubiquity of the effects of banning: “When the court puts him under banning... he should be concerned that his body will be stricken wherever he is” (Responsa Igrot Moshe, EH I: #137). Hence, the isolating measures are not considered sanctions that deprive the recalcitrant husband of his free will. See Responsa Binyamin Zeev #79. See also Be'eri, supra n. 22, p. 84. 28 On the serious consequences for the husband’s free will when R. Tam’s isolating measures are imposed, see Be'eri, supra n. 22, p. 85. 29 Sefer Ha-yashar, Responsa #24. See also Responsa Maharik #102, #135. 30 Mordekhai, Ketubot #204. In his sixteenth-century codification of Jewish law, the Shulhan Arukh (EH 154:21), R. Joseph Karo writes:

Wherever they [the early sources] said yotzi (“he must divorce her”), the husband is compelled, even with whips, to divorce his wife. But some say that anyone about whom the Talmud did not state explicitly kofin lehotzi (he is compelled to divorce his wife”), but only yotzi veyiten ketubah (“he must divorce her and pay her ketubah”), may not be compelled with whips to divorce his wife, but rather, we say to him: ‘The Sages have obligated you to divorce your wife, and if you do not do so, it will be permissible to call you a sinner.’

In his glosses on R. Joseph Karo’s remark, R. Moses Isserles writes (ad loc.):Since there is a dispute among the Sages [about whether or not divorce is “compelled” when the sources say “yotzi”], it is proper to rule stringently, and not to compel with whips, so that the get will not be enforced in an unlawful manner. But if his wife is forbidden to him, all agree that he may be compelled with whips. And wherever we may not compel with whips, we also may not put him under a ban. Nevertheless, they may decree on all persons who are members of the nation of Israel not to grant him any benefit, nor to do business with him, nor to circumcise his son, nor to bury him, until he gives [her] a writ of divorce [ See Responsa Binyamin Zeev, #88]. The court may impose any stringency like this that it desires, provided it does not put him under a ban.

31 R. Menahem Mendel Schneersohn argued that the need to move to another community must be considered a severe blow to the recalcitrant husband, which significantly infringes upon his free will to divorce, in much the same manner as does banning. Thus, the isolating measures may only be imposed in those circumstances where banning is permitted, that is, in cases of compelled divorce; see New Responsa Tzemah Tzedek, EH #264. R. Joseph b. Lev initially held that the sanction of harhakah is harsh, and should not be used in situations where the husband is not compelled to divorce his wife. He later softened his position and was willing to impose the isolating measures even when divorce could not be compelled, provided that other authoritie concur in the imposition. See Responsa Mahari b. Lev 2: #18 and 79; see also Gvurat Anashim, #72.32 Responsa Yabi’a Omer, EH VII: #23, VIII: #25. See also Be’eri, supra n. 22, p 89. 33 Responsa Heikhal Yitzhak, EH I: #1. 34 See Responsa Heikhal Yitzhak, EH I: #3. 35 This has been the policy in numerous unpublished cases; see my Hebrew article: Y. S. Kaplan, "A New Trend regarding the Fulfillment of Divorce Judgments: Policy Considerations in View of the Principles of Jewish Law and the Basic Laws" 21 Bar -Ilan University Law Studies, 609 (5765). See too Responsa Yabia Omer, EH VII: #23, VIII: #25; Responsa Tzitz Eliezer XVII: #51. See also the ruling issued by the rabbinical court associated with Kehilat Machzikei Hadat in Antwerp (and later confirmed by R. Nissim Karelitz, head of a rabbinical court in Bnei Brak), cited in Be’eri, supra n. 26, p. 99.

13

refuse to give his wife a get.59

3. 2 Rabbinical Courts Law (Enforcement of Divorce Judgments), 5755 — 1995

3. 21 Restrictive Orders

Due to the shortcomings of the legal arrangement that had been in place with regard to the enforcement of divorce judgments, particularly when the enforcement level of the judgment was less than that of compelled divorce, the Rabbinical Courts Law (Enforcement of Divorce Judgments), 5755 — 199560 was enacted.

36 See Law Book of the State of Israel, 5713 — 1953, p. 165. 37 See Responsa Kol Mevaser I: #83. See also Warhaftig, supra n.14, p. 175. 38 R. Herzog maintained that when a rabbinical court rules that a husband should be compelled to divorce his wife, imprisonment may be used as a means of forcing the husband to comply. He held that to avoid any apprehension that imprisonment will be imposed on a person who cannot be compelled to divorce his wife, it is important that it be possible to appeal the ruling of the lower rabbinical court to the High Rabbinical Court. That court can, among other things, overturn the ruling that the husband is compelled to give a divorce if it finds that the grounds for divorce do not justify such a ruling. R. Herzog also maintained that it is important that in its ruling the court write explicitly that “the husband should be compelled by way of imprisonment.” In his opinion, were it written in a general way that the husband “should be compelled,” there would be a possibility that the court meant that the husband should be compelled to divorce by ordering a substantial amount of maintenance to be paid to the wife. See his letter dated the week of Matot-Ma'asei (summer) 5713 (1953), cited in Warhaftig, supra n. 26, pp. 174-175. 39 See Responsa Heikhal Yitzhak, EH 1: #1 and #2: “Not every imposition of a sum [of money] constitutes absolute duress…. Since the monetary payment does not seriously diminish his livelihood, it shows that he is not as closely attached to his wife as he claims he is, and the get is valid. It is not an unlawfully enforced get unless they impose upon him something that is not in his power to bear, such as physical torture, or a huge sum that will destroy him.”40 See Responsa Yabia Omer, EH III: #20. See also ibid #18-19, where discussion of the subject begins. 41 Following the precedents in the literature, R. Shear Yashuv Cohen, present head of the Haifa District Rabbinical Court, asserted: “The coercive measure that stands at our disposal in the State of Israel is imprisonment. Even those who oppose coercing with whips would agree to coerce with imprisonment. Rashi (Pesahim 91a s.v. beit ha-asurim shel Yisrael) explained that Jewish prisons are used ‘to compel [a husband] to divorce a woman who is disqualified [from marrying him].’ R. Ovadia Yosef has noted: ‘There is no comparison between the prisons of our day and those of early times.’ In his letter to the rabbis and dayanim of Israel dated 5 Av, 5713 [1953], R. Herzog accepted the proposal that [recalcitrant parties be] compelled by way of imprisonment.” S. Cohen, “Compelling a Get at Present” (Heb.), Tehumin 11, pp. 195, 201 (1990). On the validity of a get given by a recalcitrant husband after having been put in prison, see also M. Silberg, Personal Status in Israel (Heb.), 125-126 (Jerusalem: 1965); E. G. Ellinson, “Refusal to Give a Get” (Heb.), Sinai 69, pp. 135-136 (1971). Similarly, R. Saul Yisraeli writes that imprisonment in an Israeli jail in our day is less harsh than the imprisonment of a recalcitrant spouse mentioned in the early literature. See Mishpetei Shaul #236 (Jerusalem: 1997).42 See Section 8 of the Rabbinical Courts Jurisdiction Law. 43 See S. Daikhovsky, “A Critique of Rabbinical Court Decisions” (Heb.), 13-14 Dine Israel, 7, 12 (1986/8). 44 See HCJ 85/54 Zada v. Attorney General, (1954) PD 8, 738; HCJ 54/55 Rosenzweig v. Head of Implementation, Jerusalem, (1955) PD 9, 1540; Silberg, supra n.41 , pp. 388-389; Cri. App. 220/67, 164/67 Attorney General v. Yihye and Ora Avraham, (1968) PD 22 (1) 29, pp. 49-50. 45 This period may also extend beyond the six months “from the day the order was issued.”; see Silberg, supra n.41, pp. 390-391.46 See Warhaftig, supra n.14, 210; Daikhovsky, supra n.43, 12.

14

The Rabbinical Courts Law widens the scope for exercising coercive measures against a recalcitrant spouse. The draft law that preceded enactment of the Rabbinical Courts Law explicitly noted that the law was aimed at harnessing a tool—R. Tam’s isolating measures—for the purpose of alleviating the plight of a spouse who was refused a get.61 The Rabbinical Courts Law authorizes the rabbinical courts to issue a variety of restrictive orders against a recalcitrant spouse.

Section 1 of the Rabbinical Courts Law states that restrictive orders may be issued at all levels of enforcement of divorce judgments. A restrictive order may infringe, among other things, upon the recalcitrant spouse’s civil liberties, such as his or her right of 47 See HCJ 661/77 Haber v. Supreme Rabbinical Court, (1978) PD 32 (3) p. 329; HCJ 644/79 Guttman v. Tel Aviv-Jaffa District Rabbinical Court, (1980) PD 34 (1) pp. 443, 446-448. 48 See HCJ 822/88 Rosenzweig (Borokhof) v. Attorney General, (1988) PD 42 (4), p. 760. The court decided that the husband is obligated to give his wife a get, but did not rule that he can be compelled to divorce her. The problematic nature of the situation wherein a sanction can only be imposed when divorce can be compelled is clearly evident in this case. A woman was locked into a difficult situation for nine years due to her husband’s refusal to give her a get. The court was powerless to act in the most efficacious manner, that is, to impose the sanction of imprisonment. Justice Elon described the predicament thus: “We can only advise the petitioner to continue to present her claims and her troubles before the honorable Haifa Rabbinical Court, viz., that she has not yet been released from her state of being an abandoned wife.... We are confident that the honorable rabbinical court will reconsider her case, as was stated in the earlier verdicts of the district rabbinical court and the Supreme Rabbinical Court, and find a way to compel the husband to give his wife a get, in order to save the woman from the chains of her marriage” (ibid. p. 761). 49 See Piskei Harosh, Yevamot 6:11; Responsa Rosh, 17: #6; Tur, EH 154, in the name of his father, R. Asher b. Yehiel (Rosh). Consideration of the position of this scholar (Rosh) is evident in a responsum by the Radbaz, see Responsa Radbaz, 4, #108 (#1180). 50 In his glosses on the Shulhan Arukh (EH 154:21), Rema ruled, in accordance with the opinion of the Rosh, that the court may not “compel” divorce if there is any disagreement among authorities as to whether or not a get may be compelled in the circumstances in question. He therefore prohibited the use of direct coercive measures, such as flogging, excommunication, and banning, when there is no agreement that the divorce may be “compelled.” R. Moses Sofer maintained that when the authorities are not in unanimous agreement that a certain ground for divorce warrants compulsion, use may not be made of direct coercive measures to force the recalcitrant spouse to give or to receive a get. See. Responsa Hatam Sofer, EH 1: #116. In these circumstances, the recalcitrant spouse can claim that he or she is not in violation of the obligation to obey the Sages, as according to some author ities, he or she cannot be compelled to give or receive a get. 51 Responsa Heikhal Yitzhak, EH 1: #1. 52 See Warhaftig, supra n.14, p. 205. 53 Warhaftig (supra n.14, p. 210) writes: “The hesitations of the rabbinical courts are numerous, and the reluctance to use coercive measures is still very great. Sometimes the judgment does not fit the legal arguments, as if at the last minute the court refrained from using the authority granted to it”; “Even in cases where there is justification for considering compelling divorce, the Rabbinical courts prefer to exert moral or monetary pressure, for example, ordering a large award of maintenance to the woman. Only in the most extreme cases do they resort to orders of imprisonment.” See also E. Magen, “Personal Liberty and Debtors in the Execution Office” (Heb.), Hapraklit 40, pp. 390-393 (1992). In light of the legal practice with respect to the enforcement of divorce judgments up to 1995, one scholar has concluded: “Divorce is almost never compelled today in the State of Israel, despite the legal authority that rests in the hands of the rabbinical courts” — Shochetman, “Women’s status, ” supra n.14, p. 421 n. 211. 54 See Attorney General v. Yihye and Orah Avraham, supra n. 1, p. 29. 55 See b. Ketubot 78a. According to Talmudic law, in cases of compelled divorce, the sanction applied is flogging. Yet in the wake of the position expressed in the writings of R. Abraham b. David (Raabad), most authorities maintain that a woman should not be flogged. See Hasagot Ha-Raabad on Halakhot Rabati of R. Isaac Alfasi, Ketubot, ch. 5, regarding a rebellious wife: “How does he compel? Should you say, with whips — it is not the way of the world to [whip] a woman.” See also Hasagot Ha-

15

mobility, or other rights, in whole or in part, in various areas. Sections 2(1) to 2(6) of the Rabbinical Courts Law specify orders against a

recalcitrant spouse that restrict his or her rights in the following areas: (1) leaving the country; (2) obtaining an Israeli passport or transit pass as specified in the Passports Law, 5712 — 1952, holding these travel documents or extending their validity (except for their validity for the purpose of returning to Israel); (3) obtaining, maintaining, or renewing a driver’s license; (4) appointment, election, or service in an office regulated by law, or in an office in a supervised authority, as defined in the State Comptroller Law, 5718 — 1958; (5) working in a profession regulated by law, or operation of a business requiring a license or legal permit; (6) opening or maintaining a bank account, or drawing checks from a bank account. For this purpose, the individual against whom the restrictive order

Raabad, on Mishneh Torah, Laws of Marriage 21:10. Regarding the coercive measure of banning, see Sefer Hayashar, Responsa #24; Hagahat Ha-Rema, EH 154:21.56 The consideration in favor of a dispensation to contract a second marriage is that there is apprehension that if a get is compelled in questionable circumstances it will be regarded as having been unlawfully enforced, and should the wife remarry, she will be guilty of adultery and her children will incur mamzerut (stigma of bastardy). But if a man remarries without having been issued a dispensation to contract a second marriage, he only violates the enactment of R. Gershom, and not the biblical prohibition of adultery. Thus, his offspring from the second marriage do not incur mamzerut. In HCJ 235/68 R. B. v. the Chief Rabbis of Israel, (1969) PD 23 (1) 475, the Supreme Court accepted the position of the rabbinical courts that when a woman refuses to accept a get, the most suitable way to force her to accept it is by granting her husband permission to contract a second marriage, and not by imprisonment. 57 In a responsum regarding a woman suffering from epilepsy, R. Asher b. Yehiel (Rosh) wrote (42: #1): “The same measures that are used to compel a man to give a get are used to compel a woman to receive a get. If she refuses [to accept the get], he may withhold her maintenance, clothing, and conjugal rights.” R. Joseph Karo accepts this ruling in Shulhan Arukh, EH 117:11 See also Responsa Maharam of Lublin, #1. Following the earlier rulings, the rabbinical courts have ruled that if a woman refuses to accept a get when there are grounds for compelled divorce, the husband is exempt from paying her alimony. See Appeal 147/5722, PDR. 5, 131-32; Appeal 980/27, 7 PDR., p. 359; Appeal 281/29, 8 PDR., p. 21. 58 See Zada v. Attorney General, supra n.44, p. 738. See also Warhaftig, supra n. 22, pp. 200-201. However, on p. 210 n. 39, Warhaftig mentions a ruling by the Petah Tikva District Rabbinical Court, with Dayan R. Solomon Karelitz presiding, in which a woman was compelled to accept a get and this court ruled she should be imprisoned. 59 See case 329/459, PDR. 8, 128, regarding a woman who petitioned the court that her husband be compelled to divorce her. Her husband was serving a fourteen-year prison term for serious criminal offenses unrelated to his refusal to give his wife a get. The husband demanded that in exchange for his agreement to give a get, he be pardoned for the crimes he had committed. The rabbinical court ruled that the grounds for divorce justified the verdict that he be compelled to grant a divorce. The judges were of the opinion that imprisoning him for refusing to give a get would have no effect on him, as he was in any event serving a long prison sentence. Therefore they turned to the Israeli legislator to allow the use of flogging, solitary confinement, or “the like,” against a recalcitrant spouse of this type. Another case, Appeal 1208/46, dealt with the petition of a woman whose husband had been sentenced to life imprisonment for murder, to compel him to give her a get. Since the husband was going to be in prison for an extended period of time anyway, the woman’s attorney asked that he be put in solitary confinement in order to compel him to give the get. The Jerusalem District Rabbinical Court ruled that the husband could be compelled to give his wife a get, and since he was already in jail, could be placed in solitary confinement, as demanded by the woman’s attorney. See S. Raphael, “Halakhic Rulings Regarding a Get” (Heb.), Collected Articles in Honor of R. Shimon Katz, p. 65 (Bnei Brak: 1987).60 Law Book of the State of Israel, 5755 — 1995, 1507, p. 139. 61 See the explanation of the aim in Draft Law: Proposals of Legislation of the State of Israel — 5754, 2281, p. 493.

16

was issued will be treated as a special restricted customer in the sense specified in the Checks Without Cover Law, 5741 — 1981.

3. 211 Denying Privileges to an Inmate

A rabbinical court is also permitted to issue restrictive orders that infringe on the rights of a prison inmate. The purpose of section 2(7) of the Rabbinical Courts Law is to alleviate the plight of someone denied a get whose spouse was sentenced to a period of imprisonment. This section sets down other sanctions, such as denial of permission to walk about freely, be granted special leaves, gain early release, or have other privileges, in the attempt to encourage an inmate to comply with the court’s verdict.

Deprivation of privileges as a sanction is based on the concept of “withholding benefit.” When an incarcerated inmate is denied privileges, especially when he is serving time for an offense unrelated to the divorce proceedings, the sanction is indirect — withholding benefit. Yet since the inmate undoubtedly loathes being in prison, and longs to be released or given leave, even for only a short while, denying him privlieges, in accordance with the authority granted the rabbinical courts in section 2(7) of the Rabbinical Courts Law, constitutes a very serious assault on his human rights, and on his free will to grant a divorce. Is the imposition of sanctions mentioned in section 2(7) of the Rabbinical Courts Law a faithful expression of the idea of withholding benefit, which is the main rationale of R. Tam’s isolating measures? Withholding a relatively trivial benefit is not the same as withholding a significant benefit. The rabbinical court must surely consider carefully, in light of the level of enforcement, whether it is appropriate to with-hold a significant benefit.

Withholding benefit from someone serving a jail term unrelated to his refusal to grant his wife a divorce was considered in a rabbinical court judgment prior to the enactment of the Rabbinical Courts Law. In that ruling, R. Solomon Daikhovsky held that the court could permit denying the prisoner a reduction of a third of his sentence for good behavior so as to encourage him to give his wife a get.

In the course of the proceedings, the husband had shouted defamatory remarks at the dayanim. R. Daikhovsky had, therefore, held that the court could rule that it would not recommend to the prison authorities that they release the prisoner; only “good behavior” justifies recommending that an early release be granted.62 However, R. Daikhovsky suggested that the court announce its readiness to forgo the contempt of court charge, and not impose the sanction, if the husband would agree to give a get.63 The basis of the court’s ruling was “withholding benefit.”64

In line with R. Daikhovsky’s remarks, this rationale—withholding benefit—can be said to apply to certain sanctions in section 2(7) of the Rabbinical Courts Law that deprive an inmate of his rights. These rights can be viewed as privileges society gives the inmate, and can, under certain circumstances, deny him. R. Tam himself wrote that a

17

recalcitrant husband who wishes to be freed from prison when he has been incarcerated for a matter unrelated to his divorce may be denied assistance.65

The law was amended in 2000. The amended law adds to the sanctions that may be imposed upon the recalcitrant husband who is already in prison.66 Section 2(7), in its current formulation, allows the prisoner to be denied the right to purchase s in the prison canteen, to keep personal possessions, to send and receive letters (except for letters addressed to the court, his attorney or rabbinic pleader, or the State Comptroller), and to receive visitors (except for visits from his attorney or rabbinic pleader, his clergyman, an official inspector, or his minor children). As these sanctions sometimes have a severe impact, the rabbinical courts impose them only where appropriate, viz., in particularly serious cases.

3. 212 Section 3 — Imprisonment to Compel Compliance

Section 3 of the Rabbinical Courts Law sets down that a rabbinical court may issue a restrictive order — imprisonment to compel compliance — that infringes on the individual’s right to walk about freely. This drastic remedy is not free of uncertainties. The explanations accompanying the draft proposal of the law that led to the enactment of the Rabbinical Courts Law mention R. Tam’s isolating measures. However, the rationale of those isolating measures to impose an indirect measure, which “withholds benefit,” does not apply to the sanction of imprisonment. This section deals with a direct measure: a spouse who is at liberty is sent to prison so that he or she will give or receive a get.

66 Rabbinical Courts Law (Enforcement of Divorce Judgments) (Amendment no. 4) 5760-2000, Law Book of the State of Israel, 1732, p. 133. The purpose of the amendment, in light of the explanations offered by R. E. Ben-Dahan, director of the Rabbinical Courts in Israel, at a meeting of the Knesset Legislation Committee, February 14, 2000, Protocol no. 83, p. 2, is: “to fill a lacuna that became evident over the course of time that the law existed. There are, on average, about 20 to 30 inmates — the number varies — who [are unwilling to grant their wives a get, and] are in prison for all sorts of reasons, including reasons unrelated to the granting of a get. Their prison sentence makes it impossible for us to deny them any privileges [by restrictive orders mentioned in sections 2(1)-2(6) of the Rabbinical Courts Law], for a prison inmate cannot, in any event, use his driver’s license.... We are herein suggesting a number of restrictions to be placed on such prisoners, and denial of privileges such as the possibility of leave, the possibility of making purchases in the prison canteen, the possibility of watching television.... We have also suggested the possibility of putting the person into solitary confinement for fourteen days, with a break each time.”The Deputy Attorney General, Joshua Shofman, offered the following explanation in the aforementioned protocol, p. 3: “The proposal to enact the law followed a number of actual cases. When a rabbinical court compels enforcement of a divorce judgment by way of civil imprisonment… in the case of a prisoner serving a life sentence or sentenced to many years [for other offenses], these sanctions hardly have any effect.... Nobody takes pleasure in denying prisoners their privileges, and with a great sorrow we, along with the administration of the rabbinical courts, have come to the conclusion that there is justification for imposing these sanctions, which may be imposed upon the prison inmate for misconduct in prison. Here we are dealing with a person against whom there is no complaint regarding his behavior in prison, but rather about a matter no less serious: allowing his wife to remain an aguna... we are dealing with a situation in which the key remains in the hand of the prisoner. Whenever he decides to comply with the court order and give a get, he will be freed from the restrictions.”

18

Nevertheless, an important consideration is the fact that this imprisonment is a less severe sanction than the imprisonment mentioned in Section 6 of the Rabbinical Courts Jurisdiction Law. The legislator set various limitations to the authority of the rabbinical court. First, when a rabbinical court issues a restrictive order to compel someone, by way of imprisonment, to comply with a ruling, the rules of sections 3(5) and 3(6) of the Contempt of Court Ordinance apply to the rabbinical court that issues the order. According to the rules in these sections, a court that imposes imprisonment to compel compliance is required to notify the Attorney General of its action. The Attorney General, or his proxy, must bring the matter of the prisoner before the rabbinical court that issued the order for reconsideration whenever he deems it necessary, and not less than once every six months from the beginning of his imprisonment. After giving the prisoner and any other party with standing in the case the opportunity to voice their arguments, the rabbinical court may reconfirm the order, change it, attach conditions to it, cancel it, or issue another ruling that it deems appropriate.

Similarly, Section 3(b) of the Rabbinical Courts Law limits the prison term that the rabbinical court may impose: “The period of imprisonment to compel compliance shall not exceed five years; however, the court may, if it finds it necessary for the purpose of enforcing its judgment, extend the sentence from time to time, provided that the total prison term does not exceed ten years.” This limitation on the prison sentence that may be imposed on a recalcitrant spouse reflects a new approach. It will be recalled that Section 6 of the Rabbinical Courts Jurisdiction Law allows imposition of a prison term that is unlimited in time and continues until the desired result is achieved.

In addition, the Rabbinical Courts Law demands great caution when the court issues a restrictive order imposing imprisonment to compel compliance or extending a prison term. Section 3(b) of the Rabbinical Courts Law states that the court is obligated, whenever it imposes or extends imprisonment, to examine whether or not that sanction “is necessary for the enforcement of the judgment.” In light of this section and section 4(b) of the law, it would appear that the court is required to consider whether there are other means, less drastic than denying liberty, which could lead to the same result. This limitation is also new: Section 6 of the Rabbinical Courts Jurisdiction Law does not allow the court to exercise its judgment at any stage following the imposition of imprisonment. After the Attorney General and the district court exercise their judgment and decide to imprison the recalcitrant spouse, there is no later stage at which the court is given another opportunity to examine whether it may be possible to exercise a less hurtful measure.

With respect to the type of recalcitrant spouse exemplified by Yihye Avraham, who was imprisoned for many years, indeed, until the day he died, it becomes clear at some point that denying such an individual his liberty will not induce him to release his wife from the bonds of her marriage. In such circumstances, when it has become clear that the remedy of imprisonment is ineffective, it would appear that the remedy may not be “necessary for the enforcement of the judgment.” The rabbinical court could therefore

19

consider the possibility of ruling that the recalcitrant spouse should no longer be imprisoned. Should the court decide to release him, there is room to consider imposing other restrictive orders, if they are liable to influence his behavior with respect to the granting of a get. In practice, the rabbinical court should probably interpret this exception narrowly, so that even if there is only a small chance that the restrictive order will cause the recalcitrant spouse to give or receive a get, it should still be issued. There is reason to fear that a judicial policy that eases the burden of proof required for releasing the husband or wife from prison on the grounds that there is no chance that it will influence him or her would cause a recalcitrant spouse to become even more adamant in his or her refusal.

In 2000, section 3(a) was added to the Rabbinical Courts Law, stating that prison inmates may be held in solitary confinement for a period of five days, and then held there again after a break of seven days. In my opinion, based on the principles of Jewish law and policies of rabbinical authorities and courts in recent generations, discussed above, even if imprisonment or solitary confinement is permitted, they should only be used as a last resort to bring about the granting of a get, after other, less severe measures have been tried without success. In the past, when imprisonment was imposed in accordance with the Rabbinical Courts Jurisdiction Law, it was only imposed on rare occasions, and only when its implementation was justified, according to the dayanim, by particularly serious circumstances. It can be assumed that since the principles have not changed, a similar policy should be adopted with regard to imprisonment or solitary confinement imposed by way of the Rabbinical Courts Law.

From the perspective of Jewish law, the rabbinical court must take into consideration the fact that sending a prisoner into solitary confinement is a direct measure, and not merely a withholding of benefit. It must be carefully examined whether the use of this sanction raises the concern that the get will be regarded as having been unlawfully enforced, particularly in a case where divorce may not be compelled.

However, occasionally more activist rabbinical court panels have tended to impose the imprisonment mentioned in the Rabbinical Courts Law more often than imprisonment was imposed in the period prior to 1995, when the only law that authorized imprisonment of a recalcitrant husband was the Rabbinical Courts Jurisdiction Law.

3. 213 Restrictive Orders against Women

The Rabbinical Courts Law did not initially apply to a woman who refused to accept a get, but was later amended to allow a rabbinical court to issue a restrictive order against such a woman when the head of the Supreme Rabbinical Court gives his confirmation. After a restrictive order is issued against a woman, her husband will not be permitted to contract an additional marriage until the expiry of three years from the day the order was issued.67 The legal principle underlying these rules discriminates against the husband. Restrictive orders against him are valid without the approval of the head of the

20

Supreme Rabbinical Court, and the request for a restrictive order applying to his wife prevents him, for a time, from contracting an additional marriage. However, this discrimination is permitted, as Israeli law permits distinctions that are based on relevant factors.68 Here, the legislator took into account the relevant factor — the fact that the husband’s standing in this matter is stronger. The husband can obtain an allowance to contract an additional marriage, but no similar option is available to a married woman. Therefore, the legislator set down that when a restrictive order is issued against a woman, the approval of an additional party is required. That party will consider all the relevant factors, and also examine the alternative of a dispensation to contract another marriage as a solution for the distress of a husband who is refused a get.

In practice, the rules set down by the legislator regarding the use of restrictive orders against a woman, in particular the need for confirmation by the head of the Supreme Rabbinical Court, created a situation that is not egalitarian. The restrictive order is a measure that in actual practice is rarely exercised against a woman. In most of the infrequent cases in which the district rabbinical court issued a restrictive order against a woman, the required confirmation was, in the end, not granted by the head of the Supreme Rabbinical Court.69

3. 214 The Relationship between the Sanctions in the Rabbinical Courts Law and the Rationale of R. Tam’s Isolating Measures

The dominant rationale permitting the use of R. Tam’s isolating measures in circumstances that do not allow for a ruling of “compelled” divorce is that the isolating measures are not a direct measure—taking something away from someone—but rather a passive measure, withholding benefit.

What is "withholding benefit" in the contemporary State of Israel? Does the state’s refraining from providing services and allocating resources to a citizen who refuses to give his wife a get fall into the category of withholding benefit? This is a valid point of view if the right to services and resources is not absolute. According to this outlook this is a new type of “withholding benefit”.The legislator in Israel adopted these measures since the state’s refraining from providing services and allocating resources to a citizen is effective in contemporary Israeli society, where many people are not religiously observant and do not accept the authority of Jewish law and the rabbinical courts. The traditional isolating measures of R. Tam are no longer effective sanctions on such individuals.

The explanation accompanying the draft proposal that preceded enactment of the Rabbinical Courts Law states that the restrictive orders that deny privileges that the state bestows on its citizens fit in well with the principle embodied by R. Tam’s isolating measures. However, the sanctions mentioned by R. Tam, and even the sanctions that were

21

added in later generations, differ from those utilized in Israeli law. In the responsum where his measures are first mentioned, R. Tam foresaw the possibility of adding more isolating measures: “And they may add stringent measures as they please, [to be imposed] on anyone.” Nevertheless, the new isolating measures must satisfy the rationale of the old, traditional measures. It is thus warranted to examine the degree to which the new restrictive orders that were added by the Israeli legislator satisfy the rationale of the old measures.

Similarly, thought must be given to the argument raised by Be'eri, that prior to the enactment of the Rabbinical Courts Law, R. Tam’s isolating measures were rarely implemented in rulings in general, and in the rulings of the rabbinical courts in Israel in particular. This was out of concern that exercising the measures in question might infringe upon the husband’s exercise of free will in giving a get. 70

In addition, as stated above, there is a sound basis for the argument that the isolating measures, in their modern Israeli form, should only be implemented when the divorce judgment is at the level of obligation to divorce or higher.71 It is therefore desirable that whenever the rabbinical courts issue rulings that include restrictive orders found in the Rabbinical Courts Law, they specify the level of the divorce judgment. This should be done in order to satisfy the authorities who hesitate to implement R. Tam’s measures, particularly when the circumstances do not justify a judgment by the court that divorce is compelled or obligated.72

The rationale of “self-duress” — duress inflicted by the recalcitrant husband himself when he decides of his own free will to remain in the place where the isolating measures were activated — does not apply to every case in which the restrictive orders may be issued according to the new Israeli law. In general, remaining in his own place does not always attest to the husband’s true and sincere agreement to assume the burden of the isolating measures. This is particularly true with respect to the isolating measures in the restrictive orders allowed by the Rabbinical Courts Law. They apply in the State of Israel wherever the recalcitrant husband goes, not just in a specific community. One of the sanctions, which can be applied alone or with other restrictive orders, is specified in section 2(1): barring exit from the country. In such a case, even the option of escaping the sanction by going abroad does not exist. This being so, in light of the view that the basis for R. Tam’s isolating measures is the recalcitrant spouse’s choice to remain in his locale, it would seem necessary to carefully examine to what degree the restrictive orders stand the test of this rationale. Situations in which there is real concern that the validity of the get given or received as a result of the exercise of a restrictive order will be called into question should be avoided.73

4. Enforcement of Divorce Judgments: Constitutional Considerations

73 See the article mentioned in the previous note on the question of how the restrictive orders can be adjusted to accord with the relevant principles of Jewish law.

22

4. 1 Balancing

4. 11 Balancing in Israeli Law and in Jewish Law – Its Nature and its Importance

When the Jewish judge conducting a judicial proceeding decides what is right and just, he must be guided by his values as well by the underlying values of the Jewish legal system. Sometimes the judicial decision requires the weighing and balancing of conflicting values, and the judge in a civil court or the dayan in a rabbinical court must decide on the appropriate balance between these values, and in certain circumstances which of them takes priority. Many times, the solution, according to former Chief Justice of the Supreme Court of Israel, Aharon Barak: "is not a question of all or nothing." The value rejected is not excluded.74 Accordingly, in a situation of conflict between values, the decision is occasionally made by "granting [specific] weight to each of the competing values, and preferring the value which [in these circumstances] has upper hand." According to Barak, the essence of the balancing process consists of placing the conflicting values and principles side by side, "[and] giving each of them the appropriate weight."75 Resolving a conflict of values necessitates resort to a balancing formula.76

62 See Daikhovsky, “Compelling a Get by Way of Recommendation to Reduce a Prison Sentence by a Third" (Heb.), Tehumin 1 (1980), pp. 248-49.63 Ibid. This Dayan took into account, among other things, the fact that another legal course of action was available to the court: approaching the prison authorities, reporting the prisoner’s conduct during the proceedings, and requesting that, in light of this conduct, his prison term not be reduced by a third. The court could threaten the prisoner with this possibility, and tell him it was willing to forgo the contempt of court charge and not activate the sanction if he would be willing to give his wife a get. 64 R. Daikhovsky (supra n.62, pp. 252-253) explained that this manner of coercing a get is not entirely free of jurisprudential problems in light of the principles of Jewish law. Yet for him the critical factor was the argument that the court’s recommendation to the prison authorities would constitute acting in an indirect manner — “withholding benefit”— and not a direct act of unlawful coercion. He relied, among other things, on the fact that reduction of a prison term by a third for good behavior is not automatic. 65 See Hagahot Mordekhai, Gittin #468-469. See also Responsa Maharik #133, #166; Responsa Mabit #22; Daikhovsky, supra n.62, p. 254. 67 See sections 1(3) and 1(6) of the Rabbinical Courts Law. 68 See HCJ 4541/94 Miller v. Minister of Defense, (1995) PD 49 (4), p. 94; HCJ 721/94 El Al Airlines, Ltd. v. Danilovitz, (1994) PD 48 (5), p. 749. 69 I rely primarily on conversations with R. E. Ben-Dahan, director of the Rabbinical Courts in Israel, and R. Frank, director of the office of former Chief Rabbi Lau. 70 See Be’eri, supra n. 22, pp. 90-95, 96 n. 101. However, R. Tam’s isolating measures were occasionally imposed in judgments of the rabbinical courts. See also Responsa Yabia Omer, EH 7: #23; 8: #25; Responsa Tzitz EIiezer XVII: #51. 71 See Be’eri, supra n. 22, pp. 81, 91-92. 72 See the article by the dayanim, rabbis Haim Gedalia Cymbalist, Uriel Lavi, and Joseph Goldberg, in Shurat Hadin 5, pp. 230-297 (1999). They discuss at length the authority, in light of principles of Jewish law, to impose the various restrictive orders mentioned in the Rabbinical Courts Law. They take into consideration the relevant Jewish legal principles pertaining to R. Tam’s isolating measures and unlawfully enforced divorce. It may be that such discussion should be a matter of course in rabbinical courts judgments in which the court orders the imposition of restrictive orders against a recalcitrant spouse. 74 See A. Barak, The Judge in a Democratic Society, p. 262 (2004).

23

Several balancing formulas are used in Israel.77 Balancing must be discharged with great sensitivity and should be tailored to the particular circumstances of each case. The weight and stature of different principles or values is "invariably relative…. [and] will always be determined in relation to other values, with which they may clash."78

Balancing is of special importance in Israeli constitutional discourse.79 Israel's new Basic Laws: Human Dignity and Freedom, and Freedom of Occupation, influence the manner in which the judge or dayan exercise their discretion. Their activity in this sphere is an outcome of a deep inquiry into the principles and values forming the bedrock of Israeli constitutional law. It is a thorough and profound examination of the multifaceted and contradictory principles and basic values of society. The balancing formula he or she uses should be an appropriate solution to the "maze of …conflicting principles."80

4.111Similar Results of Balance between Conflicting Values: Jewish Law and Human Rights

Jewish law attaches importance to values such as peace and the dignity of all human beings. Therefore, often when sanctions are imposed against the recalcitrant spouse, an appropriate balance between conflicting values, from a Jewish perspective, is necessary. The “paths of pleasantness and… ways of peace”81 are important in Judaism and, accordingly, the decision of the Israeli dayanim, sometimes overt and frequently covert, not to grant significant weight to the principles of Basic Law: Human Dignity and Freedom in the rabbinical courts, warrants further examination, perhaps even second thoughts.

Substantively, the balance struck between conflicting values in light of the principles of Jewish law applied in proceedings of Israeli rabbinical courts is similar to the balance struck between conflicting human rights, mentioned in Basic Law: Human Dignity and Freedom and Basic Law: Freedom of Occupation. Therefore, the policy of the Supreme Court of Israel, to subject the rabbinical courts to the human rights discourse and to the balancing mechanisms of Israeli constitutional law, inter alia, in the realm of Jewish divorce law, should not be dismissed as an undesirable phenomenon, inconsistent with the principles of Jewish law implemented by the rabbinical courts.

When we apply the perspective of human rights, unnecessary, excessive or disproportionate violation of human rights, such as those implemented against the recalcitrant spouse, is unacceptable, even when it promotes societal values. The same applies to the Jewish values applicable in this realm. There is an inherent need to strike a balance between the conflicting values when a dayan enforces divorce judgments. When adjudicating such matters, the dayan is bound to attach significant weight to human dignity and freedom, which are important values in Jewish law.82

75A. Barak, Interpretation in Law, 3 – Constitutional Interpretation, p. 216 (1994). 76 Ci. App. 294/91 Chevra Kadisha GHSA Kehillat Yerushalim v. Kestenbaum, (1992) PD 46 (2), p. 464, par. 8 of Justice Barak's judgment.

24

4. 2 Application of the Principles of Basic Law: Human Dignity and Freedom in Rabbinical Courts

4. 21 The Extent of Conformity between the Principles of Israeli Constitutional Law and the Principles of Judaism

In the past there were dayanim who argued that the principles of Basic Law: Human Dignity and Freedom were fundamentally alien to the Jewish ethos, and therefore they should be considered as inappropriate and inapplicable in proceedings of the rabbinical courts. R. Abraham Sherman, a dayan in the High Rabbinical Court, espoused this position. This Basic Law, he argued, was premised on the presumption that inherent rights are granted to all human beings. He claimed that the outlook in the draft of Basic Law: Basic Rights of the Person, that eventually led to the enactment of Basic Law: Human Dignity and Freedom, was foreign and incompatible with the values of Jewish law, since it was based upon the conviction that rights are an expression of "human aspirations."83. R. Sherman stressed that in Jewish law obligations are of greater importance. In Jewish law, according to his perspective, "a person's greatest right is the fulfillment of his duties, commandments and mission."84

This approach is somewhat similar to that of some modern legal scholars, who claim that the element of duty is the most important element in Judaism. For example, the scholar Cover argued that the key word in Judaism is "mitzva," implying commandment, and not rights: “The principal word in Jewish Law, which occupies a place equivalent in evocative force to the American legal system's "Rights", is the word "Mitzvah", which literally means commandment but has a general meaning closer to 'incumbent obligation.'”85 Regarding the debtor's obligation to repay the creditor, former Israeli Supreme Court Justice Moshe Silberg wrote that from the perspective of Jewish law, "The rabbinical court is not concerned with the debtor's debt to the creditor, but rather with the debtor's religious-moral duty to fulfill the commandment incumbent upon him, and the creditor receives his money as an incidental byproduct."86

This version of the relationship between rights and obligations in Judaism, as expressed in the writings of R. Sherman and Cover, is not undisputed. Indeed another scholar, Stone, correctly critiqued Cover's interpretation of the basic outlook of Judaism. 87

In her view, Judaism comprises both obligations and rights, and the latter are not merely the flip side of the obligation. They are intrinsically important, and not just an appendix to the obligation. As such, particular importance is attached in Jewish law to rights in general, and especially human rights. Although rights in Judaism and modern human rights in contemporary constitutions are not identical, Judaism would certainly not discard the possibility of granting these contemporary human rights to individuals.

25

4. 22 The Importance of Human Dignity in Jewish Law

Just as every Jew is commanded to honor God, he is also commanded to respect each and every human being, created in God’s image. Human dignity derives from and is similar to the dignity of God Himself:88 "You have made him a little less than divine and adorned him with glory and majesty."89 The biblical verse "In God's image did He create man"90 was interpreted by R. Akiba as follows: "Beloved is man for he was created in the image [of God]; he was bestowed a greater love, as he was created in the image."91 This principle is the basis of religious humanism in Judaism.92

The special significance attributed to "the dignity of man" or the "dignity of the community" in Jewish law finds expression when there is a conflict between these values and other basic principles of Jewish law. For example, the Babylonian Talmud states that "Great is human dignity, which overrides negative precepts in the Torah."93

4. 23 The Application of the Principles of the Basic Law: Human Dignity and Freedom in the Rabbinical Courts

The Israeli legislator determined that the rules of Basic Law: Human Dignity and Freedom apply to "all governmental authorities".94 Dayanim in particular claimed that the provisions of Basic Law: Human Dignity and Freedom are not applicable in the rabbinical courts, which in their view are not a governmental authority.95 According to former Chief Justice Barak, however, when the legislator stipulated that the law applies to "all governmental authorities," the intention was that the law should apply, inter alia, to the judicial branch in its entirety, including religious courts operating on behalf of the State of Israel and budgeted by it.96 At a later stage, in the Lev case, it was determined in case-law that the rabbinical court too is bound by the provisions of Basic Law: Human Dignity and Freedom, including the provision of Section 6 of the law regarding freedom of movement. Therefore, just like the civil court, this court must conduct itself with restraint and caution in considering the limitation of a person's freedom of movement97 by preventing his departure from the country. The Lev98 case implements the principle requiring the rabbinical courts to grant due weight in their rulings to Israeli legislation that promotes human dignity and liberty.99

In the Sabag case, the rabbinical court had exercised its authority to prevent the husband from leaving the country as a means of pressuring him to grant his wife a get. The majority opinion was that although refusal to grant a get is a grave problem and painful phenomenon for the spouse, its solution should not include forcing the jurisdiction of a rabbinical court onto an individual lacking sufficient connection to Israel, especially when prevention the individual’s exit to his permanent place of residence in another country severely violates his constitutional right to freedom of movement: "the appropriate solution cannot be in conflict with the fundamental principles governing the

26

propriety of legal proceedings, and these are not commensurate with the resolution of disputes by means of coercion and pressure that lack any legal basis, notwithstanding the gravity of the disputes."100

The minority opinion in this case was that of Justice Rubinstein, who felt that in this case the Rabbinical Court was justified in its exercise of its jurisdiction. In his decision, he too attests to the importance attached to the principles of freedom of movement and balancing: "Indeed, freedom of movement [including the right of departure from Israel] is a basic right (Basic Law: Human Dignity and Freedom, Section 6(a)). The petitioner requests his freedom, his human dignity and his freedom to movement… He denies the respondent a freedom of her own, of no less and perhaps even more significance, which is the freedom to live her life without being bound to him. Isn't this actually freedom versus freedom? Aren't the chains of igun (undesirable marriage to a recalcitrant spouse) a violation of human dignity and liberty? I see no flaw in making a requirement [by the Supreme Court] that the exercise of the petitioner's basic right [to leave Israel to the country he came from] will be contingent upon a guarantee he submits that will ensure his payment of maintenance [to his wife in proceedings in the Rabbinical Court]".101 In his view, on the one hand, the right of movement of the husband should be taken seriously, and therefore he should be permitted to leave the country. On the other hand, measures must be taken for the benefit of the wife. The appropriate balance between conflicting values and principles in this case can be achieved, according to his perspective, by obligating the husband to pay his wife's maintenance, as determined by the Israeli rabbinical court, until the date of giving the get. He should be granted the right to leave Israel only after he submits a guarantee that will ensure his payment of her maintenance.

The Vazgiel case dealt with the interpretation of laws adopted prior to the enactment of the Basic Law: Human Dignity and Freedom, which states that laws enacted prior to this Basic Law are preserved. In this case, the relevant laws are the Secret Wiretapping Law, 5739-1979 and the Protection of Privacy Law, 5741-1981. The Supreme Court ruled that the interpretation of the rules in laws adopted before this Basic Law should be in light of the principles of Basic Law: Human Dignity and Freedom.102 In the Vazgiel case, the Supreme Court held that indeed the rabbinical courts are granted an inherent right to determine their own procedure. However, when they do so they must act in fairness, good faith, and a reasonable manner, and should take seriously the requirements of the constitutional law of Israel concerning respect of human rights, including the right to privacy.103 The decision of Justice Strassbourg-Cohen indicates that the judgment of the rabbinical court in this case should have been void since this policy was not adopted by this court. However, the Supreme Court refrained from declaring the judgment of the rabbinical court in this case to be invalid, and preferred instead the indirect path of subtly instructing the rabbinical court concerning the desirable policy in these circumstances, in light of the principles of Israeli constitutional law.

27

In the Galam case it was stated that "Israeli law obviously acknowledges the tremendous importance of the right to privacy."104 The Supreme Court also stressed that there is an evident interaction between the right to privacy and the right to dignity: "The right to privacy is, inter alia, one of the derivates of the right to dignity. Recognition of privacy means the acknowledgement that a person is an autonomous unit, entitled to recognition, and of his uniqueness as different from others. The uniqueness of an individual enables him to draw strength from his own personality, which is meaningful, and is worthy of being honored. A person's privacy is his dignity and also his property."

The Supreme Court again set guidelines for the rabbinical courts in cases pertaining to the protection of privacy in the Plonit v. Netanya District Rabbinical Court case.105 In light of the principles of Basic Law: Human Dignity and Freedom, former Chief Justice Barak ruled that there is a correlation between the extent of the breach of right to privacy and the parallel increase in the weight granted by the court to the requirement to protect this right. According to his point of view, this policy should be adopted by the rabbinical courts when they balance between conflicting rights, such as the right to privacy and other rights. Justice Barak stressed that "The right to privacy is one of the most important human rights… In 1992 the right to privacy was recognized as a constitutional right in Basic Right: Human Dignity and Freedom (section 7)… The civil courts and the rabbinical courts are 'governmental authorities'.... This is… also the law that is applicable in the rabbinical courts."106

As noted, the rabbinical courts initially claimed that they were not bound by the rules of Basic Law: Human Dignity and Freedom.107 Nonetheless, ever since the Supreme Court ruled in Lev that the provisions of Basic Law: Human Dignity and Freedom were also applicable in the rabbinical courts, a new policy is occasionally evident in the rabbinical courts. For example, Dayan Daikhovsky, initially an opponent of any attempt to subject the rabbinical courts to the principles of the Basic Law, occasionally ruled that a rabbinical court should apply severe measures against the husband of the recalcitrant spouse, using the terminology mentioned in the Basic Law to justify his policy. He stressed that when this spouse refuses to grant a get, his behavior is a violation of his wife’s right to dignity and freedom.108 This policy is evident also in a judgment of the High Rabbinical Court concerning sanctions against the recalcitrant spouse, in which Dayanim Mordechai Eliyahu, Shlomo Daikhovsky, and Yosef Nadav wrote:

The enactment of the Basic Laws, and especially Basic Law: Human Dignity and Freedom resulted in a legal revolution. This revolution finds its expression not only in the [Basic] Laws as such, but also in their influence on other laws… the

107Supra n. 119, pp. 49-50. 108 Many of the judgments of rabbinical courts in Israel which have made either implicit or explicit use of the principles of Basic Law: Human Dignity and Freedom, have not been published. See citations from these judgments in: Y. S. Kaplan, "A New Trend regarding the Fulfillment of Divorce Judgments: Policy Considerations in View of the Principles of Jewish Law and the Basic Laws" 21 Bar -Ilan University Law Studies, 609, 657, n. 153 (5765). In these judgments, one of the dayanim was R. Daikhovsky.

28

Hon. Justice Barak wrote in his book Interpretation in Law, p. 289 (5754), that the interpretation of fundamental human rights in the Basic laws should be 'generous', and not 'legalistic'…'generous interpretation' that protects [human rights of] individuals, especially when these individuals are citizens and residents of Israel. Consequently, if until now the [Israeli] case law was influenced by the well known comments of Justice Berenson (HCJ 3/73, 29 (1) P. D. 449), that the public welfare requires the limitation of the [scope of ] jurisdiction of the rabbinical courts, at least [in cases] where there is a serious violation of human liberty and dignity, [after the enactment of the Basic Law] one should prefer the expansive and generous interpretation [concerning jurisdiction of this court, when it assists the wife of the recalcitrant spouse]."109

4. 3 Application of Coercive Measures: Balancing in Light of the Perspectives of Judaism and Human Rights

The problems of the husband of a recalcitrant woman are solved if is granted a permit to marry an additional wife. This option is not available for the wife of the recalcitrant husband. As a result of this basic difference between the respective status of men and women in Jewish marital law, women are at greater risk of suffering from the policy of the more conservative rabbinical court dayanim, who are very reluctant to impose sanctions upon the recalcitrant spouse. They fear that an activist policy of the court can lead to the granting or receiving of an invalid "coerced" get. This more conservative policy is not the only option in Jewish law. One of the basic principles of constitutional law is gender equality. The imposition of effective means of coercion against the recalcitrant husband, in light of the more liberal approach to the law of coerced divorce, is necessary in order to achieve an equal treatment of both spouses and assist the wives of recalcitrant husbands in obtaining a get.

4. 31 Appropriate Balance between Conflicting Values in Light of the Principles of Jewish Law

There are two important considerations within Jewish law that justify the imposition of effective measures of enforcement against a recalcitrant husband. These considerations can balance the opposite consideration: the attempt of Jewish scholars not to use excessive and harsh measures against the recalcitrant spouse that could invalidate the get. The first consideration is that the terminology in Jewish sources, especially in the modern period, concerning the wife of the recalcitrant husband, is aguna. The second consideration is that the Jewish scholars assisted the wife or husband of a recalcitrant spouse who claimed "ma'is alai" ("s/he is repulsive to me").

29

Jewish authorities instituted a far-reaching policy of leniency, inter alia regarding the acceptability threshold of evidence and the use of legal constructions that would not be used in regular circumstances, in classical cases of aguna, such as when the husband went missing.110

When a husband refuses to give a get to his wife, she is termed “mesurevet get” (refused a get), not an aguna. However, Jewish legal literature frequently, especially in recent generations, uses the term aguna in such instances, in an attempt to justify a more lenient policy. Thus, the special lenient policy governing cases of aguna should be considered when rabbinical courts adopt policies regarding divorce in cases of undesirable marriage and delbate sanctions against a recalcitrant spouse.111 The attempt to rule in a lenient manner, used in cases pertaining to the plight of the aguna, should also be evident when rabbis and rabbinical courts adopt an appropriate divorce policy, which could release wives from the chains of an undesirable marriage.

An example of this expansion of the category of aguna appears, for example, in late thirteenth century Spain, R. Solomon ibn Adret (Rashba) discussed the case of "someone who had spread a rumor that a particular woman was betrothed." 112 In his view, under these circumstances the Jewish court should impose a ban obliging all who knew anything about the matter "to come and testify," since the court could use the information obtained from these individuals in a decision that liberates this woman from an unwanted marriage. He explained that this policy is necessary "because of the enactment [of the talmudic rabbis] on the behalf of the aguna and because of the enactment [of the talmudic rabbis] on the behalf of mamzerim (i.e., the sons of an adultress, which is how the aguna would be classified if she were to have children with another man before being released from her present marriage)."

In recent generations, a number of Jewish scholars used the terminology aguna when they justified a more lenient policy on behalf of the wife of the recalcitrant spouse (mesurevet get).113

A second consideration, counterbalancing the concern of halakhists that the imposition of sanctions against the recalcitrant spouse would render the get unlawfully coerced, is the attitude of important Jewish authorities to the wife's claim that her husband is repulsive to her (ma’is alai).114 Originally, the wife’s claim of ma’is alai, the result of a geonic amendment, had been a powerful claim that she could use in an attempt to end an undesirable marriage.115 From the period of R. Tam onwards, however, these grounds for divorce became less effective, since during this period most talmudic scholars did not share the view of the ge’onim and Maimonides116 that the wife’s claim of ma’is alai can warrant a Jewish court imposing a divorce judgment at the level of "enforcement." However, even after the decline of this significant power of coercion against the husband, when the wife claims ma’is alai, there were many Jewish authorities who stated there is a continued relevance and applicability to these grounds for divorce, out of concern that

30

failure to take claim of ma’is alai seriously would cause Jewish women "to tread foreign paths," i.e., to stray toward promiscuity and apostasy.117

In recent generations, influential rabbis stressed that this concern is especially relevant in the reality of this period. At present, when a woman does not wish to continue her marriage to her husband, and Jewish law scholars do not provide her with an adequate remedy that will enable her to terminate it, she is liable to opt for forbidden extra-marital conjugal relations made available by a permissive society.118

In view of the desirable policy of rabbinical courts in recent generations, stated above, it would seem that an appropriate application of the principles of Jewish law requires that dayanim strike a balance between two conflicting considerations in the enforcement of divorce judgments. On the one hand, the application of sanctions against the recalcitrant spouse mandates caution in order to prevent the use of excessive unjustified force that can invalidate the get. On the other hand, every effort should be made, within the framework of the principles of Jewish law, to enable an appropriate solution for the wife of the recalcitrant spouse, who is compared to an aguna and whose claim of ma’is alai is taken seriously.

4. 32 The Balance in Israeli Constitutional Law between Conflicting Human Rights in Light of the Requirements of the Limitation Clause.

The Rabbinical Courts Law authorizes rabbinical courts to impose restrictive orders against a husband/wife who does not fulfill its ruling to give/accept a get. These restrictive orders permit, under appropriate circumstances, the action of public authorities in Israel that constitute a violation of the constitutional rights enshrined in the aforementioned Basic Laws, such as the rights to property, movement, dignity, and liberty of an individual against whom the restrictive orders are issued. The provisions of the Rabbinical Courts Law that enable the imposition of restrictive orders were enacted after the enactment of the new Basic Laws. As such, and insofar as they violate human rights that are anchored in the Basic Laws, they must satisfy the legislative requirements of the limitation clause in the Basic Laws, since the imposition of the restrictive orders is a violation of human rights anchored in the new Basic Laws. The limitation clause in the new Basic Laws states as follows:

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent not greater than is required, or by regulation enacted by virtue of express authorization in such law.119

4. 321 “By a Law”

31

In the case of the Rabbinical Courts Law, a specific law of the Israeli Knesset (Parliament) allows for the violation of human rights when the rabbinical courts impose restrictive orders. Therefore, this statutory arrangement conforms with the requirement “by a law… or by regulation enacted by virtue of express authorization in such law.”

4. 322 “Befitting the Values of the State of Israel”

Legal scholars generally contend that the phrase "values of the State of Israel" in the limitation clause of the new Basic Laws should be interpreted in the light of the more specific phrase "Jewish and democratic state" that appears in the "purpose" section of the Basic Laws.120 The interpreter of this phrase should also grant due weight to values mentioned explicitly in the Basic Laws, such as those in the section concerning “basic principles" in Basic Law: Human Dignity and Freedom, which ascribes significant importance to "the value of the human being, the sanctity of human life, and the principle that all persons are free."121 For our purposes, there is no need to determine the precise relationship between "Jewish" and "democratic" values because from both a Jewish and a democratic perspective the result of the balancing process is similar.

From a Jewish perspective, on the one hand, there is the value, or interest, in liberating the husband or wife of the recalcitrant spouse from the chains of an undesirable marriage. This includes the spouse that claims ma’is alai. On the other hand, there is interest in preventing unjustified over-enforcement that transforms a valid get into an invalid one. A balance between these two values/interests must be struck in an attempt to prevent an illegally coerced get.

From the perspective of human rights, an outcome of the implementation of the principles of a democratic state, the balance must be struck between the conflicting human rights and interests of those who are actively refusing to give/accept the get and those who are the victims of such refusal. The proportionate imposition of sanctions against the recalcitrant spouse, in light of all the requirements mentioned in Section 4 of the Rabbinical Courts Law, including the evaluation of all relevant circumstances and the implementation of the principle of proportionality mentioned in the new Basic Law ("to an extent not greater than is required"), leads to a similar balance. The balance within Jewish law and the balance between conflicting human rights, when rabbinical courts impose restrictive orders, are similar.

4. 323 “[Enacted] For a Proper Purpose”

In the Bank Mizrahi case,122 Justice Barak wrote that a proper purpose is a purpose intended to realize human rights or other social goals that are important for the maintenance of a social framework.123 Justice Shamgar claimed that a proper purpose is a worthy purpose from the perspective of human rights and societal values. Occasionally,

32

the human rights of both parties are in conflict. Under these circumstances the proper purpose is the product of a reasonable and fair balance between the rights of different people with competing interests.124 The proper purpose must serve the crucial goals, necessary for the existence of the state and the society. The required goal must be sufficiently important and crucial to justify the violation of protected rights.125

In the draft bill that preceded the Rabbinical Courts Law, the Israeli legislator explained that the purpose of this law was to utilize a mechanism within Jewish law—the isolating measures of R. Tam—in an attempt to ameliorate the plight of the husband or wife of the recalcitrant spouse.126 The legislative purpose of the Rabbinical Courts Law was to utilize a recognized and accepted sanction against a recalcitrant spouse to promote of the plight the denied husband or wife. Prior to the enactment of the Rabbinical Courts

77 For a distinction between the different forms of balancing see Barak, supra n. 97, pp. 270-274. Also see: ad hoc balancing: Cr. App. 6696/96 Kahanah v. State of Israel, PD 52, 535, par. 7 of Justice Barak's judgment; horizontal and vertical balancing: HCJ 2481/93 Dayan v. Wilk, (1994) PD 48 (2), par. 21 of Justice Barak's judgment. See also Ci. App. 105/92 Re'em Engineers Contractors Ltd v. Upper Nazareth Municipality, (1993) PD 47 (5), par. 15 of Justice Barak's judgment. 78 105/92, supra n.77, par. 16 of Justice Barak's judgment. 79 A. Barak, supra n.75, pp. 70-71. On the application of different balancing formulas during the process of interpretation of regular legislation, see A. Barak, Interpretation in Law, 2, Legislative Interpretation, pp. 679-704 (1993). 80 A. Barak, supra n.75, pp. 70-71. 81 Prov. 3:17.82 See Gen. 1:27; Lev. 25:55; m. Avot 4:1, 12; Menachem Elon, Individual Freedom in Methods of Debt Collection in Jewish Law, 1-2, 16-37, 255-264 (1964); idem. "Human Dignity and Freedom in the Modes of Execution - the Values of a Jewish and Democratic State”, 1-2, 16-37, 255-264 (2000); idem, "Human Dignity and Liberty in the Jewish Heritage, Mahanaim 12, 18, 19-20 (5755); idem, "Basic Laws – The Anchoring of the Values of a Jewish Democratic State, 13 Bar-Ilan Law Studies, 27, 47-48 (5756); S. Warhaftig, Labor Law in Jewish Law 2-3 (5729); H. Povarsky, "The Foundations of a Personal Obligation הגוף שעבוד ] ] and the Charging of Assets in Halakhic Thinking”, 23-47 (Doctoral Thesis, Tel-Aviv University – Law Faculty, 1985); HCJ 5304/92 Perah 1992 Assistance to Victims of Laws and Regulations for another Israel – Amuta v. Minister of Justice, (1993) 47 (4) PD 734-737, 741-743. 83 A. Sherman, "The Principles of the Basic Human Rights Law, in the Light of the Principles of Jewish Law", Human Rights in Judaism, 305 (G. Frishtik, ed. 1992). 84 Ibid, pp. 297-29885 R. M. Cover, “Obligation: A Jewish Jurisprudence of the Social Order”, 5 Journal of Law and Religion 65 (1988) = Narrative, Violence, and the Law, 239- 248 (M. Minow, M. Ryan, and A. Sarat (eds.), Ann Arbor: The University of Michigan Press, 1995). 86 M. Silberg, Principia Talmudica (Kakh Darko shel Talmud) (Jerusalem 5722), p. 72 = M. Silberg, Writings of Moshe Silberg, p. 509 (Jerusalem 5758). See also M. Silberg, “Law and Morals in Jewish Jurisprudence”, 75 Harvard Law Review 306, 312 (1961).87 See Stone's critique on Cover's conception of the duties and rights in Jewish Law; S. Z. Stone, "In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory", 106 Harvard Law Review 813, 865-887 (1993). Regarding the general discourse concerning rights see the writings of the scholar Joseph Raz, “Hart on Moral Rights and Legal Duties”, Oxford Journal of Legal Studies 4, pp. 123-131 (1984); idem, On the Nature of Rights, Mind, New -Series, 93, No. 370, 194-214 (1984). 88 The sage Hillel stressed that the dignity of an individual must be preserved since he was created in God’s image. See Lev. Rabbah 34:3: "When Hillel took leave of his students, his students would ask him, ‘Rabbi, where are you going?’ [He would answer]: ‘I am going to perform a mitzva.’ ‘Which mitzva, Hillel?’ ’I am going to the bathhouse.’ [They asked him], is this a mitzvah?’ He replied, ‘Yes, in order to cleanse the body. Know that this is so…. I who have been created in the Divine image and likeness, as it says ‘For in the image of God He made man!’'

33

Law, Israeli law did not satisfy the needs of many husbands, and especially wives, of recalcitrant spouses. The remedy of imprisonment was often impossible or ineffective. The goal of the legislator, when the Rabbinical Courts Law was enacted, was to provide new sanctions that could be effective against recalcitrant spouses in the rabbinical courts. These new means of coercion would release the mesurav/mesurevet get from his or her recalcitrant spouse. This is a crucial and important goal, and thus the new law was “enacted for a proper purpose".127

A general examination of whether the legal framework for imposing restrictive orders on a recalcitrant spouse in accordance with the Rabbinical Courts Law is appropriate in light of principles of constitutional law, including those pertaining to a 89 Psalms 8:6. On the meaning of man's creation in God’s image according to Psalms 8 see M. Weinfeld, "God the Creator in Gen. 1 and in the Prophecy of Deutero-Isaiah" Tarbiz 37 (1968), pp. 105-132 (Heb.). 90 Gen. 9:691 m. Avot 3:14. On the meaning of the expression "Beloved is Man for he was Created in the Image" see A. Lichtenstein, "Human Dignity", 5 Mahanaim, 8, 12 (5753); H. Kasher, "Beloved is Man for he was Created in the Image – Conditional Humanism (according to Maimonides) as Opposed to Unintended Humanism (according to Leibowitz)", Daat 41, p. 19 (5758). On the importance attached by the talmudic rabbis to the value of every human being, see Yair Lorberbaum, "Man, Blood, and Image – On the Death by Beheading in Tannaitic Literature", Bar-Ilan Law Studies 9, pp. 429, 454 (5759). 92 See N. Zohar, Freedom and Equality in Jewish Tradition, pp. 12-13, 17-23 (5751). 93 b. Berakhot 19a. According to this talmudic passage, human dignity overrides negative precepts of the Torah, namely the rabbinic prohibitions stemming from the authority granted to the rabbis by the biblical commandment "thou shall not deviate." The status of these prohibitions is rabbinic and not biblical. See: Y. Blidstein, "Great is Human Dignity – the Peregrination of a Law", 9-10 Shenaton Ha-Mishpat Ha-Ivri, pp. 127, 131-138; see also ibid. pp. 140 - 141, where he mentions a number of cases in which rabbinic norms are overridden in an attempt to enhance human dignity. 94 Art. 11 of Basic Law: Human Dignity and Freedom states: "All governmental authorities are bound to respect the rights under this Basic Law." 95 This is the position of R. S. Daikhovsky. See Appeal 14 PDR. 321-322 (5750); S. Daikhovsky, "Secret Wiretapping" 11 Tehumin, 299, 312 (5750); idem, "Secret Wiretapping" Torah She-be’al Peh 36, pp. 69-72 (5755). 96 See Barak, supra n. 98, pp. 458-459. 97 See HCJ 3914/92 Lev v. Tel-Aviv Regional Rabbinical Court, (1994) 48 (2) PD 502-505. Compare with HCJ 732/84 Tzaban v. Minister of Religious Affairs, (1986) 50 (4) PD 141, 152. See also HCJ 4358/93 Tzuk v. High Rabbinical Court of Jerusalem, (1994) 48 (4) PD 563, 570-572. 98 See Lev case, supra n.97, p. 491. 99 See Barak, supra n.75, P. 458. 100 HCJ 6751/04 Sabag v. High Rabbinical Court of Appeal (2004), 59 (2) PD 834. 101 Ibid, p. 865. 102 Regarding the interpretation of the rules of the old law that were maintained in the Basic Law, see Cr. App. Ganimat v. State of Israel, (1995) 49 (3) PD 355, 415; Additionally H. 2161/96, Sheriff v. Head of Home Front Commander, (1996) 50 (4) PD, 485, 490. 103 See HCJ 1135/02 Vazgiel v. High Rabbinical Court in Jerusalem, (2002) 56 (6) PD 14. 104 Cr. App. 2963/98 Galam v. State of Israel, Tak-El 99 (2) 1149, par. 9 of the judgment of Justice Ariel. 105 See HCJ 6650/04 Plonit v. Netanya District Rabbinical Court, Tak-El 2006 (2) 1736 (2004). 106 Ibid, 1, par. 8 – 12 of Justice Barak's judgment. In par. 9 Justice Barak explains that there is a substantive elevation of the status of the right to privacy in light of the enactment of Basic Law: Human Dignity and Freedom. 109Appeal to High Rabbinical Court, 00B621530-64-1 (unpublished, March 4, 1998). 110 See Yitzhak Z. Kahanah, Takkanat Agunot, (1947-5707); idem, Sefer Ha-Agunot, (1954-5714); Responsa Hut Ha-Meshulash, #8 (p. 17a).

34

"proper purpose," is required in order to establish the constitutionality of the law. However, in addition to this examination, the application of the restrictive orders against the recalcitrant spouse in each case should also be examined in light of the principles of Israeli constitutional law, including those pertaining to "proper purpose." Sometimes the general framework of the law is appropriate but the imposition of harsh restrictive orders is not justified in the specific circumstances. This dual examination of the general rule and the specific application is occasionally evident in the decisions of the Supreme Court of Israel. The policy concerning the actualization of particular legislation that is not in

111 See Rashi on Gittin 3a, s.v. mishum igunah akilu beih; Sefer Ha-yashar, Responsa # 4; Responsa of R. Meir of Rothenburg (Cremona edition), # 94; ibid. (Prague edition), # 946, #993; Mordechai, Ketubot #186, Gittin #446; Hagahot Maimoniot, Laws of Marriage 14:13 and 30; Responsa Maharil Ha-Hahadasho, #206; Responsa Mahari, #26, #29, # 63, #71, # 74, # 141, #157; Responsa Mahari Mintz, #11; Responsa Rashba I, #870, #871; Responsa Ha-Rosh, 43: #8 and # 13, 45: #25; Responsa Rivash #57; Tur, EH 126 and 154; Tashbetz 1: #1 and #132; Responsa Rashbash, #46, #498, # 530; Shulhan Arukh, EH 154:8; Responsa Heikhal Yitzhak, EH 1:1; Responsa Yab’ia Omer, EH III: #10; Appeal 321/13, 4 PDR., 245 (5722); Be’eri, supra n. 22, pp. 278-279; Warhaftig, supra n.14, p. 212. 112 Responsa Rashba , IV: #3; See also Tashbetz, 1: #132. 113 R. Ovadia Hadayah used the terminology aguna in two of his responsa, and explained that rabbis and rabbinical courts should assist the wife of the recalcitrant husband since: "it is certain that there are no grounds for justifying his actions and to place a sword in his hand [that will be used by him ] to rebel against his wife and to desert her… The daughters of Israel are not like prisoners of war, with whom one can do as he wishes" (Responsa Yaskil Avdi, EH 6: #26); "and this may wreak terrible results, for if she sees that the Jewish court has not found her a remedy, and she does not agree to return to her suffering, then she may begin to mix in disreputable society (i.e., she can have undesirable relationships with men). Who can take the responsibility for being the cause of this harm (i.e., adultery or the birth of mamzerim), God forbid? In these circumstances we should not cause her to be chained by not [imposing effective measures of coercion], which would result in the decision of the husband to grant a get” (ibid. 106). 114 For a comprehensive discussion of this subject, see Elimelech Westreich, "The Rise and Fall of the Grounds of Moredet, 21 Shenaton Ha-Mishpat Ha-Ivri, 123 (5758-5760). 115 Ibid. 116 Ibid. 117 In geonic literature regarding the ma’is alai amendment, occasional mention is made of R. Natronai Gaon's explanation that the purpose of this enactment was to ensure "that the daughters of Israel do not begin to tread foreign paths" (Responsa of the Geonim, Hemdah Genuzah # 89). See also: Or Zarua, Responsa, #69; Z. Falk, "The Rebellious Wife", Sinai 49, p. 182 (5721); Warhaftig, supra n.14, p. 186; Be’eri, supra n.22, pp. 227, 282, and 288. In the thirteenth century one of the prominent scholars of Franco-German (Ashkenazi) Jewry, R. Eliezer b. Yoel Halevi (Raavyah) wrote, when he analyzed the appropriate policy of Jewish scholars when the rebellious woman (moredet), claims ma’is alai: "they should ensure, in light of the circumstances, that necessary measures are taken, so that the daughters of Israel do not stray from the proper path" (Mordekhai, Ketubot #186; see also Responsa Tzitz Eliezer IV: #21.118 See Responsa Yabia Omer, EH III: # 18; Responsa Tzitz Eliezer 4: #21. The possibility that the woman will join" bad company" as a reason for exercising effective sanctions against the recalcitrant husband appears in Responsa Yaskil Avdi, EH 10: #24.119 Section 8 of Basic Law: Human Dignity and Freedom; Section 4 of Basic Law: Freedom of Occupation. 120 The purpose sections of the Basic Law: Human Dignity and Freedom and Basic Law: Freedom of Occupation state that the goal of the Basic Laws is to anchor the values of the State of Israel as a Jewish and democratic state. On the interpretation of the phrase "Jewish and democratic state," see H. H. Cohn, "The Values of the State of Israel as a Jewish and Democratic State: Studies of Basic Law: Human Dignity and Freedom”, Ha-Praklit Jubilee Volume 9, (5754).. See also A. Bendor, "Defects in the Legislation of Basic Laws", Mishpat Umimshal 2, pp. 433, 451 (5454-1994); A. Barak, supra n.75, pp. 517, 615-616. On the implementation of Jewish values in Israeli case law See C. A. 506/88 Shefer

35

spirit of human rights anchored in the Basic Laws must be determined in accordance with the criteria set forth in the limitation clause.128

4.324 Proportionality :" To an Extent not Greater Than is Required"

There are three secondary tests for examining proportionality that must be met by a law that violates human rights that are protected by the new Basic Laws.129

4. 3241 Compatibility between the Goal and the Means

There must be a connection of compatibility between the goal and the means. The means must rationally lead to the realization of the goal. For our purposes, the restrictive orders must be suited to the goal – the attainment of a valid get. If the restrictive order is inefficient, i.e., if it will not achieve its goal, and the much desired get will not be attained, or alternatively, the get will be given but will not be valid due to it being regarded as having been unlawfully coerced according to Jewish law, the result would be that the means are not suited to the goal, and as such they do not comply with this test. Evidently, the law was not concerned explicitly with the possibility of an illegally coerced get. In our view, the absence of such a provision does not justify the disqualification of the law. The law is applied by the dayanim of the rabbinical courts, and presumably they exercise their authority intelligently, imposing restrictive orders only in cases in which

v. State of Israel, 48 (1) PD 87 (1993). 121 Section 1 of Basic Law: Human Dignity and Freedom and Section 1 of Basic Law: Freedom of Occupation. 122 C. App. 6821/93 Bank Hamizrahi Hameuhad Ltd. v. Migdal Cooperative Village, 49 (4) PD (1994). 123 Ibid, 434. 124 In HCJ 153/87 Shakdiel v. Minister of Religious Affairs, 42 (2) PD 221, 242, (1988), Justice Elon wrote: "No basic right is absolute, but only relative, and its existence and protection are in the form of finding the appropriate balance between the differing, legitimate interests of two individuals or of the individual and the public, these interests being anchored in and protected by the law." A. Barak, supra n.75, p. 519, wrote: "Such legislation is for an appropriate purpose when the protection of a human right and its violation are consistent with the 'internal balance' between human rights, as dictated by the essence of human rights themselves."Regarding the determination of the legislative purpose in view of the balance between conflicting human rights, Judge J. A. Lebel wrote the following in his majority opinion in: R. J. R. MacDonald Inc. V. Canada (A. G.) [1993] R. J. Q. 375, 102 D. L. R. (4th) 289 C. A. 319: “The jurisprudence suggests rather that one should determine whether, in its defense of the limitation of a constitutional guaranteed right, particularly in matters of social-economic policy and the balancing of opposed social interests, the state law offered evidence which indicates the existence of a reasonable foundation for the measure chosen. What must be demonstrated is that the choice adopted by the legislation falls within the realm of possibilities.” For an analysis of the legal arguments in this judgment, see R. Cunningham, “Case Comment: R. J. R. MacDonald Inc. V. Canada (A.G.): Reflections From the Perspective of Health”, McGill Law Journal 40, pp. 229, 241-243 (1995). 125 Bank Mizrahi, supra n.122, p. 221 126 The draft bill explains that its goal is to resolve the plight of the wife of the recalcitrant spouse (mesurevet get) when there are no grounds for a rabbinical court to enforce anc enforcable get. In these circumstances, in the period preceding the enactment of the rabbinical Courts law, there were many cases in which there was no effective means of enforcement.

36

there is a reasonable chance of influencing the recalcitrant spouse to give/accept a get and where there is no fear that such a get will be regarded as having been illegally coerced.

4. 3242 The Necessity Test, or the Ladder Test

The requirement is that the means adopted for attaining a proper purpose be the one that will result in the least violation of human rights in the circumstances of the case. When there are other possible measures, which cause less violation of constitutional rights, that can be used to attain the same goal, and a measure that causes greater violation of these rights was adopted, the legal policy that was adopted does not comply with the second test. In other words, alternative methods of attaining the goal must be examined, and the court should assess whether the same aim could have been achieved by the use of less aggressive measures, that are less repugnant to human rights. From among the various alternatives, the legislator must begin from the least offensive measure, and slowly ascend the ladder until it reaching the level of violation of human rights that enables the achievement the proper purpose of legislation without an unnecessary inordinately severe violation of constitutional rights.

In several decisions, the Supreme Court of Israel examined whether the rabbinical courts used of the sanction of imprisonment against a litigant in a disproportionate manner, which was excessive in light of what was necessary in a specific case. In the Uriel case, for example, the Jewish court sent a husband to prison for three months for twice having disturbed the litigants in the rabbinical court during the course of the hearing, despite having been warned in advance not to disturb the court. Justice Barak ruled that while the Jewish court had not exceeded the boundaries of its authority in the imposition of imprisonment as such, regarding the proportionality of the measure, he cited the rules set forth inter alia in the Attiah decision.130 In accordance with these rules, Justice Barak ruled that the petitioner should be released, having already been in detention for several days on the day of the hearing. Giving his reasons he stated that: "the sanction imposed was disproportionate. In this context too the Jewish court must act in accordance with the principle of proportionality. It must first choose moderate sanctions and slowly ascend the ladder of severity until reaching the sanction that ensures the goal of the punishment, while involving the smallest possible infraction of rights. It seems to me that the imposition of three months of imprisonment, which constitutes the imposition of the gravest possible measure, exceeds the required degree."

The proportionality test was also cited implicitly in the decision of Justice Cheshin in the Rider case,131 relating to the decision of the Petah Tikva Rabbinical Court to incarcerate Ms. Rider for a period of two weeks for "disturbing and failure to comply with the judgment." In this case, Justice Cheshin ruled that Ms. Rider's rights had not been properly protected. Inter alia, the court dwelt upon the fact that failure to indicate the reasons for the decision precluded an examination of the extent to which the actual

37

exercise of the sanction was justified under the circumstances, and whether the appropriate factors had been considered regarding proportionality.

The question, however, remains regarding the possibility of drawing conclusions from these decisions regarding imprisonment for disturbing rabbinical court hearings to the imposition of restrictive orders on the recalcitrant spouse. In these decisions, there was no opposing litigant whose rights were violated as a result of the insistence that the rabbinical court exercise its authority to impose a sanction in a proportionate manner. On the other hand, with respect to the enforcement of divorce judgments, the goal of the measure is the fulfillment of that judgment, and strict insistence that the violation of the human rights of one party be in a manner that does not exceed that which is necessary may put an end to the right of the other party to be released from the chains imposed by the recalcitrant spouse.

4.3243 Proportionality Test in the Narrow Sense, or the Test of the Proportionate Measure

There must be a reasonable relationship between the means and the goal. This test requires consideration of the relationship between the benefit gained by the public as opposed to the damage to the individual from the application of the measure. In other words, the requirement is that the harm to the individual be related in an appropriate manner to the benefit gained thereby. In an attempt to ensure that when restrictive orders are imposed, the violation of human rights in the rabbinical court will not "exceed that which is necessary," section 4(b) of the law establishes certain guidelines for the discretion of the dayanim when they impose restrictive orders on the recalcitrant spouse. This section includes a provision requiring the consideration of the particular circumstances of every case and the state of health of the person against whom the restrictive orders are issued. The provisions of Section 4 the Rabbinical Courts Law ensure that the severe sanctions mentioned in this law, such as imprisonment or the solitary confinement of a prisoner, will be applied only in particularly grave circumstances. The chairman of the Knesset Law, Justice, and Constitution Committee during the enactment of this law, Mr. Zucker, explained, in light of the rule in this section of the law, that when issuing restrictive orders, the rabbinical courts are required to conduct themselves according to the principle of equivalence, namely, that the severity of the behavior of the recalcitrant spouse should determine the severity of the measures adopted against him.132

Section 4(b) of the Rabbinical Courts Law specifically requires rabbinical courts to give reasoned judgments when it decides to adopt any particular measures it applies against a recalcitrant spouse. This requirement further encourages dayanim to exercise their authority in this sphere in a proportionate manner. The obligation to write reasoned decisions for all decisions of courts, including those of the rabbinical court, 133 is

38

particularly important, since it reinforces several goals. It enables the litigant to confront the decision of the court in other legal forums; it enables the appellate court to properly examine the decision; it exposes the judicial branch to public criticism, inter alia of the media. It also enhances the quality of the decision, prevents hasty, intuitive decisions, and reduces the possibility of mistake; it promotes the values of uniformity, consistency, continuity, and equality in the actions of the courts entrusted with the power of deciding about the fate of individuals; it ensures the public dimension of the process of doing justice in courts and thus maintains public trust in the legal system. 134 When there is a reasoned decision of the rabbinical court that imposed restrictive orders, we can determine whether this court acted in accordance with the proportionality principle.

5. The Desirable Balance

The proportionality test should be implemented in light of the particular circumstances, such as the grounds for divorce and the actions of the recalcitrant spouse. To mild a policy for imposing restrictive orders might prevent an effective solution for the husband or wife of the recalcitrant spouse. In this context, as opposed to other cases

127 Justice Barak (supra n. 75, pp. 521-522, 525) explained in his book that sometimes new legislation, after the enactment of the Basic laws, permits certain violations of human rights anchored in these Basic Laws. However, in light of the limitation clause, this new legislation is valid only when it is intended to promote social aims: "Legislation can violate human rights provided that this violation is required in order to maintain and develop the social structure, which also protects human rights." The extent of the permitted violation of human rights is closely related to the importance of this social objective. According to Barak, ibid, p. 526: "… to the extent that the violation of human rights is more pervasive and acute, so too the goals required to justify it must be of greater importance and urgency." In Canada too, the degree of importance attached to the goal is directly related to the third component of the proportionality principle. This component dictates the adoption of a judicial decision based upon an appropriate balance that takes into consideration the importance of the goal and the consequences of the restriction of human rights protected by the Canadian constitution. When a law is adopted which violates human rights anchored in the Canadian Charter of Human Rights, there is a greater probability that the law that violates these human rights will be approved when the goal is more important. The extent of violation of human rights is evaluated in light of the principle of proportionality. See the article of Cunningham, supra n.124, p. 240.128 See the comments of Justice Dorner in HCJ Miller v. Minister of Defense, 49 (4) PD 94, 138, 143 (1995). 129 See Barak, supra n.75, pp. 536, 620–624. These three subdivisions of the principle of proportionality are broadly accepted in Israel, and find expression in the writings of scholars such as Dalia Dorner, "Proportionality", Berenzon Book 2, pp. 281, 289 (Aharon Barak, Haim Berenzon eds., 2000), or in judgments of the Supreme Court, such as HCJ 1715/97 Israeli Investment Managers Bureau v. Minister of Finance, 50 (4) PD 367, 384, 385. 130 See HCJ 3477/95 Ben Attiah v. Minister of Education, Culture, and Sport, 49 (5) PD 1, 12-13 (1995). 131 See Cri. App. 2022/98 Rider v. David Ohayon, 52 (2) 86, 92 (1988). 132 See Knesset Proceedings, 7233, 6774 (1995). 133 See Regulations 114, 115 of the Procedural Regulations of the Israeli Rabbinical Court – 5753, Y. P. 2298134 See Cri. App. 446/01 Rodman v. State of Israel, 56 (5) PD 25, 30 (2000). See also Ruth Gavison "The Court and the Obligation to State Reasons" Mishpatim 2, pp. 89, 92-93; Yoav Dotan: "The Obligation of Administrative and Elected Bodies to Give Reasons", Bar- Ilan Law Studies 19, pp. 5, 7-9 (2002).

39

discussed in the case law in Israel,135 we are not concerned with the balance between the human rights of an individual and the "public interest," such as the preservation of public order, public peace, or state security, but between two competing and conflicting sets of human rights: The refused and refusing parties. A minimal violation of the human rights of one party inevitably dictates a maximal violation of the rights of the other party. The subdivision of the principle of proportionality, requiring the minimization of the violation of human rights, is appropriate in context of balancing between a particular human right and the public interests, and not suited for balancing between conflicting human rights, since a minimal violation of the rights of one party means a maximal violation of the rights of the other party.

The human rights of the woman and man who are victims of the recalcitrant spouses are important. They are entitled to be released from the bonds of an undesirable marriage. In certain circumstances, they wish to have children only in the context of wedlock, and their desire to be parents is another important human right warranting consideration by the dayan issuing a restrictive order. However, coercive measures adopted against the recalcitrant spouse in order convince him or her to grant or receive a get, especially when these are severe measures, such as imprisonment or solitary confinement, also violates their human rights. Therefore, the rabbinical court should impose sanctions against a recalcitrant spouse in a proportionate manner, striking an appropriate balance between the degree of violation of the human rights of the husband or wife of the recalcitrant spouse and the degree of violation of these rights of the recalcitrant spouse.

The imposition of restrictive orders should be imposed on an ascending scale. Initially the infringement of the rights of the recalcitrant spouse should be relatively mild. The imposition of increasingly drastic measures only becomes justified if, and to the extent that, milder measures prove ineffective, failing to induce him/her to give/accept the get. Here it bears mention that while either the man or the woman may be classified as the husband or wife of the recalcitrant spouse, they differ with respect to its ramifications of the recalcitrance. Whereas the man refused can resolve his problem by way of receiving permission to marry another wife, this avenue is not available for the woman refused. It would therefore seem that even where the circumstances are identical, the rabbinical court should be more lenient in the adoption of restrictive measures against the husband who refuses to divorce his wife, than against the wife.

6. Conclusion

It would also appear that from the perspective of Jewish law authorities who are concerned that the get will be considered to have been unlawfully enforced, the use of the more severe sanctions, such as imprisonment, solitary confinement, or a combination of 135 Such as in Investment Managers, supra n. 158; HCJ 6055/95 Tzemach v. Minister of Finance, 53 (5) PD 241 (1999).

40

several restrictive orders, must be the last means adopted for the purpose of enforcing a divorce judgment. Such imprisonment, like the imprisonment of debtors, which in the end was also allowed because of the pressing needs of society, is not meant to be punitive. It is intended to serve as a coercive measure—to impel a person to fulfill his obligations. Regarding a debt, a certain responsibility exists on the part of the debtor, for he took upon himself an obligation and did not fulfill it. Similarly, when a judgment is issued that obliges a get to be given or accepted, the spouse who refuses does not fulfill his or her obligation. The following conclusion may be drawn by way of analogy: just as the imprisonment of a debtor is the final option, to be used only after all other means of col-lection proved to be of no avail, so too the imprisonment of a recalcitrant spouse is a drastic final option, which may only be implemented after less drastic measures have been exercised against him to no effect.

The argument is sometimes heard that in the clash between the rights of the recalcitrant spouse and the rights of the spouse refused a get, it is justified to favor the rights of the latter, who should be able to turn to the authorities to have the other spouse imprisoned, regardless of the circumstances. For an imbalance exists in this context between the recalcitrant spouse and the spouse refused a get. The freedom of the spouse refused a get is infringed upon in a manner that the refused spouse cannot repair, whereas the infringement of the freedom of the recalcitrant spouse can be ended at any moment, when that spouse recognizes his partner's right to be freed from an unwanted marital bond, and agrees to give or accept a get. Therefore, according to those who put forward this argument, there is justification for imposing a harsh sanction that seriously infringes upon the freedom and dignity of the recalcitrant spouse. The sanction is harsh, but the prison keys are in the hands of the recalcitrant spouse, who may at any time release himself or herself from incarceration.136

We do not accept this argument. A patient may not be given a medication with clearly negative side effects before an attempt has been made to cure him with drugs that are less harsh and dangerous. Overly hasty and extensive use of imprisonment for the purpose of alleviating the plight of a spouse who is refused a get significantly infringes upon the right of any individual, including a recalcitrant spouse, to have his dignity and freedom defended a right that is of great importance in Jewish and Israeli law. It should be noted in this context, as stated above, that according to Jewish law, with the exception of special cases that justify the imposition of coercive measures against the recalcitrant spouse, divorce is not forced upon the parties by the court, but depends on the cooperation of the husband and wife.

It stands to reason that it would be proper to specify, either by law or by a special ruling of the Supreme Rabbinical Court, a hierarchy of the various possible sanctions, or combinations of sanctions. Severe sanctions, such as imprisonment, must be used as a last

136 See Attorney General v. Yihye and Orah Avraham, supra n. 1; HCJ 631/96, 1803/96 Baruch Even Tzur v. Supreme Rabbinical Court, (1996) Takdin-Elyon, 96(2), 5756/7 -1996, 61.

41

resort, as they deprive the recalcitrant spouse of his or her rights in the most drastic way. Therefore, a severe sanction, such as an order of imprisonment, should not be given before other restrictive orders have been used.

A hierarchy among the various alternatives offered in Section 2 of the Rabbinical Courts Law, ranking the sanctions according to their severity, should be determined. Specifying this hierarchy is necessary, because barring someone from leaving the country is not equivalent to preventing him from opening a bank account, and neither of these is the equivalent of revoking a driver's license. Setting this hierarchy would not be a simple matter, for these sanctions have never previously been invoked in halakha against a recalcitrant spouse. Hence there is not always a clear answer as to which sanction is to be preferred over another. To prevent both feelings of discrimination among the public, and mistakes, there should be, to the degree possible, uniformity in the judicial policies of the various panels of judges in the district rabbinical courts that impose the sanctions listed in the Rabbinical Courts Law. It would be highly beneficial if the Supreme Rabbinical Court directed the district rabbinical courts as to the proper hierarchy of the sanctions specified in the Rabbinical Courts Law. While it is true that a ruling of the Supreme Rabbinical Court is not "a binding precedent" from the perspective of the district rabbinical courts, it can be assumed that a reasoned and detailed ruling by the distinguished dayanim of the Supreme Rabbinical Court will carry great weight.

At the same time, Israel's Supreme Court should establish a policy regarding the hierarchy of sanctions in the Rabbinical Courts Law, reflecting the hierarchy of infringements of the recalcitrant spouse's rights. Since the authority to implement the Rabbinical Courts Law was placed in the hands of the rabbinical courts, and the Supreme Court acts as a supervisory body over the rabbinical courts, the Supreme Court should determine its position in this matter, following consultations with the dayanim of the Supreme Rabbinical Court, so that the positions can be coordinated.

Since the law in question at present does not specify a hierarchy concerning enforcement of divorce judgments, the Supreme Rabbinical Court in Jerusalem should, in light of the aforementioned hierarchy of sanctions in Jewish law, supervise decisions of district rabbinical courts that issue severe restrictive orders.

The imposition of harsh sanctions such as imprisonment, solitary confinement, or several restrictive orders together, in order to compel compliance, should be undertaken with great caution. The authorities tended to employ harsh coercive measures when they regarded the case for divorce as being particularly strong, for example, when the recalcitrant spouse's behavior was considered especially grave, or after a long period of refusal to give a get.137 It is impossible to determine with certainty in every case the relative strength of the cause for divorce. In our opinion, the rabbinical courts should consider the circumstances of the case and the grounds for divorce carefully, and choose the appropriate restrictive orders accordingly. An attempt should be made, to the degree possible, to set a uniform policy, to preclude large discrepancies between different panels

42

of dayanim. Just as caution must be exercised when imposing drastic indirect sanctions, such as

depriving the prisoner of his rights, and even greater caution when imposing direct sanctions, such as imprisonment or solitary confinement, consideration must also be given to the severe distress suffered by women who are refused a get. While a man whose wife refuses to accept a get can solve his problem by obtaining a dispensation to contract an additional marriage, such an option does not exist when a man refuses to give his wife a get. Therefore, along with the caution required when imposing harsh sanctions on the recalcitrant husband, serious consideration must also be given to expanding the use of the less drastic sanctions that the law allows, for example, restrictive orders that are directed at the monetary assets of the recalcitrant husband.

137 Concerning the linkage between a long period of refusal to grant a get and a justified decision of a rabbinical court that the husband is obligated to grant a get that could lead to the imposition of appropriate sanctions see HCJ 1791/07 Ploni v. The High Rabbinical Court (2007) (Unpublished). In this case and in other cases - HCJ 1371/96 Refaeli v. Refaeli 51(1) PD, 198, at 203(1997); HCJ 1804/07 Ploni v. The Regional Rabbinical Court (2007) (Unpublished); HCJ 10736/07 Ploni v. The High Rabbinical Court (2008) (Unpublished) - the Supreme Court stated explicitly it is not a court of appeal which evaluates the policy of a rabbinical court in the sphere of Jewish divorce law.

43