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Shulamit S. Magnus
Jewish historian

‘Agunah Day’ and the Kontseptsia

There has been much discussion since Oct. 7 of “the kontzeptsia–” the locked in conception– that blinded the government, the security and intelligence establishments, and the army, keeping them in an echo chamber of unchallenged assumptions. This prevented them from comprehending evidence right before them, causing them to dismiss anyone, prominently and not coincidentally, women, the tatspitaniyot, the scouts, who called out the ominous signs they were seeing to superiors, who dismissed it because it did not fit with their conceptions– and because the evidence came from women.

I am saying that we are locked into a “kontzeptsia” about iggun and agunot and that “Agunah Day” is part of it.

We are inured to the normality of this abuse, accept it as normal and inevitable.

Part of the “kontzeptsia” is that iggun is a “tragedy,” a terrible misfortune, that falls on some women whose husbands, it turns out, are not nice men. Women who then can’t get relief in rabbinic courts because, you know, this is a terribly difficult! problem! And sometimes, you know, tsk, it never gets fixed and the “poor agunah” remains, well, captive.

Language builds this kontzeptsia. The “poor agunah.” The “wretched agunah.” The “tragedy.”

The word, “tragedy,” from the Greek, means something fated, inevitable, unavoidable.

Iggun is nothing of the sort.

It is a literally, man-made problem and the only inevitable thing about it is that it flows necessarily from rabbinic marriage. To which point, I will return, but first, more about language and the circular prison of the iggun and agunot kontzeptsia.

Visual images are also language.

Certain images always accompany reporting about agunot. Chains, handcuffs. This, too, is a conception, which feeds an image of women as normal, inevitable victims, a class of victims, meriting pity. Women are solidified into a victim class. Which helps insure that women stay victims.

The term, “zaakat dalot,” of Talmudic origin, used again and again about agunot in appeals to help them, is part of the kontseptsia. The term means “the cry of the wretched.”

I am not saying that these victims are not victims, or that they do not suffer egregiously, have ruined lives.

I am saying that the constant repetition of this refrain and these images about “poor,” “wretched,” women stuck by “tragedy,” not only derives from the embedded problem but, however unwittingly — by some, at least, for some, it is quite intentional– perpetuates it, traps us in a kontzepsia which keeps iggun going. Typecasts women, agunot, who then, remarkably, continue to play that role because nothing effective is done to break out of the kontzeptsia.

“Agunah Day,” is part of the agunah kontzeptsia. Tell me one agunah who has been freed as a result of this ritualization of the abuse of iggun, its normalization on the Jewish calendar with prayers. Tell me how Agunah Day has contributed to ending iggun.

What is the goal, the effect of such a “day?” To quote my mother, z”l, about “Mother’s Day”– what about the rest of the year?

About “Agunah Day,” I can only cite Miroslav Volf, speaking of prayers in the US after the latest mass shooting, followed by no effective action against gun violence, “There is something deeply hypocritical about praying for a problem you are unwilling to resolve.”

If you tell me that “Agunah Day” has led to greater awareness of halakhic prenuptial agreements, I will tell you that peddling such agreements as a means to prevent iggun is not only konztseptstia, but deseptsia– deception.

First, prenups do absolutely nothing for agunot. The focus on prenups elides over the reality of women chained in marriage against their will NOW; extorted for their freedom, NOW; threatened NOW with being stigmatized as “adulteresses,” and even unborn children of theirs being stigmatized and, in Israel, made subject to civil disabilities, as “mamzero/tim,” a status comparable to that of “Untouchables” in India, if they get on with their lives. It elides over the reality of women systematically abused for months, years, decades, NOW, in the agunah industry of rabbinic divorce courts.

Don’t attempt to deflect any serious discussion of solutions with dissertations about the difference between the legal systems in the US and Israel because of separation of organized religion and State in the US and its establishment in Israel.  The same thing goes on in rabbinic courts in these two countries, and everywhere else.

But let’s talk even about prevention. Prenups are contracts. Contracts are broken all the time. To enforce a prenup against a reneging partner, litigation is needed. Litigation means tremendous expense and acute stress, the threat of which is used against women to get them to accept bad terms for a gett, no different than primary gett refusal and extortion. There are also varieties of prenups, and some are worse than none, and people need to know that they but don’t, because agunah advocacy organizations don’t operate independently on behalf of women, doing consumer education about Jewish marriage and divorce, but operate under the aegis– the control– of whatever rabbinic establishment they do.

The Center for Women’s Justice prenup is the best out there but none are guarantees. To peddle prenups as prevention of iggun is to put a stumbling block before the blind.

Prenups are also absolutely nothing new. The ketubbah is a prenup. As a legal, actionable document, it is so useless and has long been so useless that people don’t seem to know that, and certainly, most don’t even read it as a serious document binding the husband. As calligraphy, adorned art, yes. As a legal document—please.

But detailed prenups, aside from the ketubbah, were an intrinsic part of Jewish marital practice throughout Jewish history, everywhere Jews lived, well into modernity. And the historical record shows mountains of disputes over prenups not honored, or contested in litigation, in order to better the circumstances of the husband in divorce, whatever he agreed to before the marriage.

So, to “discover America”– prenups!– and peddle them as a novel solution, never mind, the solution, to iggun, is at the least, to be monumentally ignorant of Jewish history but more importantly, it is to mislead the ignorant and to divert attention from the real problem and what would end, not keep managing, it.

Prenups address a symptom while hiding and propagating the cause of the abuse, which is kinyan and kiddushin as the manner in which traditional, halakhic marriage, is enacted.

Kinyan and kiddushin, not bad husbands or bad rabbis, though both abound, are the origin and cause of iggun.

Don’t take my word for it. Here are the words of Rabbi J. David Bleich, on the very right-wing of modern Orthodoxy in the US, about what halakhic marriage is, and why divorce is the husband’s sole prerogative.

Halakhic marriage is:“an exclusive conjugal servitude” of the bride to the groom. “Understanding that the essence of marriage lies in the conveyance of a ‘property’ interest by the bride to the groom serves to explain why it is that only the husband can dissolve the marriage. As the beneficiary of the [wife’s] servitude, divestiture [that is, divorce] requires the husband’s voluntary surrender of the right that he has acquired” via kinyan and kiddushin.

Let’s be clear: the “property interest” which Rabbi Bleich references, which is the husband’s possession during the marriage, is the woman’s body and reproductivity, exclusive access to which the husband acquires in kinyan and “sanctifies” in kiddushin. In kinyan, authority over the woman’s body passes from her father or other male guardian to her new baal—“master,” “owner.” This terrible term perfectly fits the situation, which is why Biblical and rabbinic texts use it. And why we never should, regarding another human being, never mind, half the Jewish people, women, or about marriage. There is no putting perfume on this animal.

The reality I’ve just described, again, don’t take my word for it, is relayed clearly in birkat erusin, the first of the substantive wedding blessings pronounced under the huppa, the marriage canopy—which structure symbolizes the baal’s home which the bride is entering. Not their home; his.

This is the moment and act of the woman’s body becoming exclusively permissible to her baal. But the language is in the plural—“us,” “us,” it repeats, the reference being to men, to male, group privilege, to which the new baal is being initiated, as the bride stands there, silent, being sexually objectified, commodified, and traded—and this degradation is hailed yet, as “mekudeshet! mekudeshet!” (“sanctified!”—to the sound of music and applause.

Men are the community, women, their Othered possessions, sex objects, their sexuality acquired through the proper, public rituals.

Products of yeshiva educations understand very well what has just transpired. Most women don’t. Withholding that information is not accidental.

Halakhic marriage is the source of women’s marital captivity. To ignore the source of the problem and focus on later, necessary, consequences as if they– abusive husbands and rabbis who enable them– were causes, rather than necessary end products of the system, is to guarantee that iggun continues. It is to deceive the unknowing and to lead new victims to harm. Tinkering with measures that manage rather than end iggun insures its continuation.

Kinyan and kiddushin are unilateral acts by the baal, enacted on a passively acquiescing wife. This being the case, divorce is also unilateral, enacted by the baal. And here is the origin of iggun– and of gett extortion, which is absolutely nothing new, it has been happening since the beginning of Jewish recorded time, because the abuse is inherent and necessary in this system. To act as if it isn’t, as if you can attack gett extortion while retaining kinyan and kiddushin, is kontzeptsia, and detseptsia– deception. Every woman married in this manner is an agunah-in-waiting, there but for luck, or lack of it.

To focus on prenups in this situation is, I say, like taking poison and having an antidote in the drawer—and hoping it works.

Aside from the necessary and inevitable consequences of kinyan and kiddushin in the creation of iggun, they are fundamentally degrading to women’s human and Jewish dignity and should be retired on that ground alone.

There are alternatives posed by Rabbi Rachel Adler, Tzemah Yoreh, and others, based on other areas of rabbinic law, for example, business partnership law, shutafut. This area of law, like all others in halakha, is composed by men but its imagined users are men and therefore, utterly unlike kinyan and kiddushin, its categories and processes protect both partners. Renouncing an abusive method of enacting marriage need not mean renouncing all of rabbinic law, a genuine fear for some, a manufactured threat used by others to keep women compliant with an abusive system.

All I have been describing is a system by men, for women. Male immunity from this problem underlies its persistence. The head of a major yeshiva told me that his father, also a rabbinic judge, asked him once how long these laws would last if men were subject to them. The answer: they would never have been written.

If the question is what I am saying it must be, which is: how do we end iggun and free agunot, and not keep managing both with non-“solutions,” like prenups, we first of all need to tell one another the truth, and second, stop repeating methods that do not work.

Speaking of honesty: the phrase, “agunot and mesoravot get,” which has come into use relatively recently, is misleading. A woman denied a gett is an agunah, same as a woman whose husband has disappeared or converted, or a widow from a childless marriage who can’t get release (halitsa) from the obligation to marry her deceased husband’s brother. The halakhic status of all these women, regardless of the circumstance, is the same. They are agunot, unfree to end a marriage and remarry. There is plenty of orchestrated effort to deny the reality and extent of iggun and the numbers of agunot. Agunah advocates should not participate in that deception.

So first, tell the truth, and second, stop doing what doesn’t work.

Appeals to rabbis and rabbinic establishments do not work. Look around you. Have they worked? They’ve been done for years. Decades. Centuries. Yes, centuries.

Blu Greenberg wrote about agunot and divorce abuse, appealing to halakhic change in a book, On Women and Judaism, published almost 50 years ago. A few years ago, decades after Greenberg’s book, Rivka Haut, z”l, and Susan Aranoff published a book, The Wed-Locked Agunot, in which they said, “we believe that halakhic solutions to this problem exist. Over the ages, wise rabbis have devised ways of easing difficulties caused by halakhic strictures…. for example, the…Torah prohibition against Jews taking interest on loans to other Jews has been… circumvented… Banks in Israel and even some in the  US that serve Orthodox clientele make use of heter iska, a rabbinically created document which structures forbidden interest as profit from an investment.”

In fact, numerous agunah advocates, unbeknownst to one another, have cited heter iska, in particular, as well as other halakhic reforms that obviated Biblical prohibitions, in arguing that halakhic solutions to iggun and to freeing agunot exist but rabbis do not apply them.

Such appeals go back way earlier than the 1980s. Even the language, the exact same language and appeals, were used a century ago. At the 1927 International Conference for the Protection of Jewish Girls and Women in London, Bertha Pappenheim, the Orthodox founder and leader of the Jewish Women’s Organization in Germany,  the JOFA of its time, cried out bitterly against the failure of rabbis to address seriously the problem of agunot, an estimated 20,000 of whom had been created during World War I and massive pogroms in Ukraine that followed—on top of those already made agunot for the normally, perpetually occurring reasons. Pappenheim, like numerous agunah advocates since, was convinced that halakhic solutions to prevent iggun and free agunot existed. She, like so many since, pointed in particular, to heter iska.

In 1929, Pappenheim, sent a letter to the “Great Assembly” of rabbis of Agudath Israel, then meeting in Vienna. One of Agudah’s innovations was the concept of “daas Torah,” a dogma-like belief in rabbinic decision making by Agudah rabbis as infallible, even about political matters. Marriage and divorce were core areas of rabbinic jurisprudence, and Agudah’s council of rabbinic sages, its decision making body, met regularly. The assertion of such supreme rabbinic authority, operating in so highly organized a structure, seems to have encouraged Pappenheim to expect decisive action to help agunot. Her letter to Agudah’s Great Assembly of rabbis came after other such calls by women’s groups to rabbis for a comprehensive, effective approach to Jewish marital captivity.

Pappenheim, like agunah advocates today, stressed the life wasted when women were made agunot and pleaded for rabbis to take this seriously as a cause for action. Head of a resolutely moderate feminist organization that championed marriage and child-rearing, Pappenheim lamented the forced celibacy and childlessness of agunot because they lost their fertile years in iggun, and decried the path to prostitution through desperate poverty caused or exacerbated by their captivity.

Lack of rabbinic action, Pappenheim also said, was lowering Jewish esteem of the rabbis and causing the influence of Orthodoxy to weaken.

Sound terribly familiar? Pappenheim sent that letter in 1929.

In the 1980s, Rivka Haut, z”l, and Susan Aranoff got into the business of helping agunot, assisted by Rivka’s husband, Irwin, z”l, a lawyer and Orthodox musmakh, convinced that there were halakhic solutions and that it was a matter of effort. This is what they said, summing up their decades of work:

“We have done all that we can in this three-decades-long struggle. When we began, we thought that raising the awareness of the dimensions and severity of the agunah problem would spur [rabbis] to action. When we realized this was hopeless, we thought that mobilizing community pressure on the rabbis would bring change. That, too, we discovered, was a misconception. We did succeed in putting agunah [sic] on the Orthodox community’s agenda. We believe our agunah advocacy deserves credit for the adoption of religious prenuptial agreements… Though of limited value [they] are better than nothing. The marketing of these prenuptials as a … solution, however, deludes the community into thinking that agunah problem [sic] is solved, which, sadly, is untrue.”

More of the same will only produce more of the same.

Whether Einstein said it or not, the definition of insanity, certainly, of futility, is doing the same thing again and again and expecting different results. Unless, of course, you wish the same results—which those in the agunah industry, indeed, do. The rest of us need to wake up and smell the coffee.

What will it take to end the systematic abuse of Jewish women in the act of marriage, prevent the ongoing creation of agunot, and free current agunot?

First, tell the truth. Second, resolve that ending, not continuing to manage this problem, is the goal. There are solutions. Clearing the blinds of kontseptsia will allow us to see and act on them.

So, on “Agunah Day,” this so painful year, when we are so freshly aware of our bondage to locked-in conceptions and the terrible harm that causes, rather than prayers for agunot, let us have massive truth telling, conclaves of truth telling about all this, so that we begin to hear the sound of chains dropping to the ground, locks opened the only way locks open, because we unlock them.

The name of God is mentioned nowhere in Megillat Esther, which tells the Purim story. And Moses’ name is mentioned nowhere in the Passover Haggadah. There is a lesson in all this for “Agunah Day,” and every day: revah and hatsalah—release and salvation from the abuse of Jewish women in iggun—will not come from God, or from men, or from a man, but only from women ourselves, with the welcome participation of men of good will.

To cite another text, all this is not in Heaven, but in our hands to do.

Esther went, courageously, to the king and spoke the truth.

This year, make Esther proud. Let us speak the truth to one another.

About the Author
Shulamit S. Magnus Professor Emerita of Jewish Studies and History at Oberlin College. She is the author of four published books and numerous articles on Jewish modernity and the history of Jewish women, and winner of a National Jewish Book award and other prizes. Her new book is the first history of agunot and iggun from medieval times to the present, across the Jewish map. It also presents analysis and critique of current policy on Jewish marital capitivity and proposals to end this abuse. Entitled, "Thinking Outside the Chains About Jewish Marital Captivity," it is forthcoming from NYU Press. She is a founder of women's group prayer at the Kotel and first-named plaintiff on a case before the Supreme Court of Israel asking enforcement of Jewish women's already-recognized right to read Torah at the Kotel. Her opinions have been published in the Forward, Tablet, EJewish Philanthropy, Moment, the Times of Israel, and the Jerusalem Post.
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