The issue of whether contemporary courts can use annulments using the principle that ‘All who betroth rely upon the consent of the Rabbis, and [in this case] the Rabbis have [retroactively] uprooted his betrothal’ (henceforth Afka’inhu, after the Aramaic word meaning ‘they uprooted’) became hot again a few years ago, when a Beit Din was established to ‘solve’ the problem of recalcitrant husbands and anchored wives (Agunot) by the mechanism of annulment.
A lot has been written against them on Halakhic grounds. I wanted to address an aspect of the dilemma which I haven’t seen discussed anywhere else, and which I think cuts to the heart of what makes this new initiative so problematic (I’m speaking like a Gushie; really, that should say ‘the heart of why this new self-proclaimed ‘Beit Din’ is a bastard-factory, creating more problems than they’re solving, discrediting all Rabbis who are sensitive to the plight of Agunot but don’t buy into their claptrap, and making a mockery of the history and development of Torah She-be’al Peh).
Rashi on Ketubot 3b, discussing one of the 4 cases in the entire Talmud where afkinhu is used to retroactively annul a marriage, says the following:
רש"י מסכת כתובות דף ג עמוד א
כל המקדש - כל המקדש אשה על דעת שהנהיגו חכמי ישראל בישראל הוא מקדשה שיהיו קיימין קידושין לפי דברי חכמים ויהיו בטילים לפי דברי חכמים על ידי גיטין שהכשירו חכמים.
All who betroth – anyone who betroths a woman does so by presuming that this practice was instituted by the Sages of Israel for Israel, that the betrothal shall stand bythe words of the Sages, and will be annulled by the words of the Sages, via a bill of divorce that the Sages deem qualified.
In other words, Rashi is suggesting that even though the Rabbis have the implicit power to do whatever they deem fit – even if they wish to annul marriages right and left – they would only do so by accepting a bill of divorce (get) which would otherwise be disqualified. This is actually the case – the Rabbis of the Talmud only employ afkinhu in situations where a bill of divorce that looks perfectly normal is actually invalid because of some external reason (e.g., he sent the bill with an agent and then severed the agency before a single witness).
The Rabbis indeed had the power to completely wreck the institution of marriage. They could have annulled any marriage they wanted. It could have been complete and utter chaos. This power of the Rabbis had the potential for vast destruction. However, the Rabbis only wielded the power in cases where using it would actually strengthen the institution of Jewish marriage. In every case that the mechanism of afkinhu was employed, is was to support the façade of a completely normal-looking get.
The broader political implications are:
· Power is often most effective when it’s least obvious.
· The Rabbis (at least the ancient ones) were aware of their power, but extremely judicious when it came to using it
· The same destructive power that can undermine an institution can, in the hands of the right people, strengthen that same institution.
· The Rabbis (at least the ancient ones) had a strong interest in preserving the communal and religious institutions of Israel, and didn’t want to let their own power undermine the people’s implicit faith in those institutions.
Did I just succeed in criticizing both the left and the right in one fell swoop?