The Torah that Was; the Torah that Will Be:
Volume II
Today’s Split in Orthodoxy and a Troubled
Future
By Rabbi Dovid E. Eidensohn
Contents
European Gedolim and the American Generation
Gap
My first volume of the Torah that Was, the Torah that Will Be, was
about my personal experiences pestering Gedolei HaDor Reb Aharon Kotler, Reb
Moshe Feinstein, Reb Yaacov Kaminetsky, and many others. I wrote about these
Gedolim and others of their time who created the Torah world. I described my
personal efforts to speak to them although at the time it was like flying into
space to talk to someone far removed. I realized that if I dallied time was not
on my side. I was very young, and the Gedolim were not. So I went and spoke to
them, asked them questions, presented questions and ideas in Torah, and
observed them carefully. I sensed each
time that one slip and I would… But I went.
As time went on, I continued to pester every important Torah
personality that I could. Born in Washington, DC, I attended Yeshiva Or Torah
DiBrisk, founded by survivors sons of the dayan of Brisk. There were three rebbes and four students. I
went there after public school. I saw first hand the struggle of pure Torah in
a much different world. After three years in Washington, DC, I went to Yeshiva
Chofetz Chaim in Baltimore to learn for three years by the Gaon Reb Yaacov
Bobrowsky zt”l, a talmid muvhak of the Gaon Reb Baruch Ber zt”l. He was one of
the senior rebbes in America then, and many of the top Torah personalities in
America came from his class. I then went to Lakewood to study under Hagaon Reb
Aharon Kotler zt”l for two years until he passed on. That period, from the age
of twelve until the passing of Reb Aharon when I was around nineteen, was a
miracle for those days. My youth was spent learning from European gedolim. They
taught me to fight ferociously for the old and true Torah, even in America.
Yes, being a Ben Yeshiva in those days and learning from such
rebbes was a great challenge, and very, very few people did it. Even in
Lakewood, two people came each term and two people left. There were about
eighty people in the entire Yeshiva. Only a year before he died did Reb Aharon
see success, when students from his American Yeshivas began to arrive. At the
same time, a group of brilliant young students arrived, and thus, in one year,
everything was turned around for the better. And then Reb Aharon died.
Now I will turn to a personal note, to prepare for this volume,
with its emphasis on today’s problems and tomorrow’s future. Somebody in
Lakewood once told me the following from the Mashgiach, the tsadik Reb Noson
Wachtfogel zt”l. It seemed that Reb Nosson, perhaps because he was a chosid or
because of some other reason, had a different opinion about something than the
Rosh Yeshiva did. (I think I know what
the complaint was about, and I think that Reb Baruch Ber had a somewhat similar
difficulty in his Yeshiva on Simchas Torah.) Reb Noson stated his opinion and
then said, “Yes, I disagree with the Rosh Yeshiva on this matter. But I tell
you this. If you open up Reb Aharon you will see a complete Jew. If you are
opened up, there will be a chazerel.” I don’t know about that person having a
chazerel, but I just hope that nobody opens me up. Yes, Reb Noson put his
finger on a terrible problem: the Generation Gap. In Lakewood and in all places
where the American loved a good game of basketball, he had to learn from Reb
Aharon Kotler. Just thinking about it amazes me. I mentioned before that when I
spoke to Reb Aharon and Reb Moshe I felt as if I was floating in outer space
talking to somebody sitting in a rocket. If I made one mistake… And all that I
had was chutzpah. What else could possibly get me to do such a thing?
I want to tell a story mentioned in the other volume of the Torah
that Was, but it is crucial for this book, when I develop it. It was about me
in the barbershop on Friday afternoon in Lakewood. I came to the barbershop and
took my place in line; then somebody very important came in. Of course, I
offered him my place and he accepted it. However, he knew that I liked to say
Torahs, so he told me to say a Torah. I told him the Torah I had prepared to
tell Reb Aharon that night. I saw his expression and added something, and he
approved. That night, I said over the Torah to Reb Aharon, and he was thinking,
and out of habit, I added what I had added to the Very Important Person. Reb
Aharon exploded. He said, “You are going away from the proper path in
learning.” When I heard that, I was amazed. That was a terrible criticism, but
what a compliment! Reb Aharon noticed that I understood the compliment, but he
also understood that I would never make that mistake again. From that time on,
I didn’t speak to anybody except Reb Aharon or my Rosh Chabura who was the
major bochur in the Yeshiva. What was wrong with talking with the Very
Important Person who at that time was at the very top of the list of important
people in the Yeshiva?
From that incident when Reb Aharon exploded at me, I eventually
realized something absolutely incredible. Reb Aharon was not the rebbe in
Lakewood! Let me explain. That Very Important Person, who is today a major Rosh
Yeshiva, one of the important ones in the world, surely spent all of his time
learning, and he was a top learner. But, and here is the point. He was not a
Talmid muvhak of Reb Aharon, because he, perhaps like the majority of Yeshiva
students in Europe and America, had a different style learned most likely from
the students of the Elder of the European Rosh Yeshivas, Reb Shimon Shkop zt”l.
Reb Shimon taught to say “what” and then “why.” Reb Chaim Brisker, his student
Reb Baruch Ber, and Reb Aharon, held, “Never say ‘why’.” When I told my Torah
to the Very Important Person in the barber shop, I said “what” and stopped. But
he wanted “why” because that was the style of the major Rosh Yeshiva in Europe,
Reb Shimon. But Reb Aharon accepted the style of Reb Baruch Ber who was the
major disciple of Reb Chaim Brisker zt”l, who is the father of the Lithuanian
Yeshiva Derech of Brisk.
Why did Reb Aharon choose Reb Baruch Ber instead of Reb
Shimon? There is to that a simple
answer. Reb Aharon learned in a musar Yeshiva in Slobodka under the Alter. But in
nearby Kovneh was the Yeshiva of Reb Baruch Ber that was not a musar Yeshiva.
Reb Aharon used to go regularly to Reb Baruch Ber’s Yeshiva to hear his
shiurim. Reb Aharon interrupted the
shiur and Reb Baruch Ber kept arguing and fighting with him until Reb Baruch
Ber’s major Talmid Reb Shlomo Heiman zt”l would go over and calm down the
protests of Reb Aharon. This lasted for a while until Reb Aharon exploded
again, and once again, there was war, and once again, Reb Shlomo went over to
Reb Aharon, etc. There are many pictures of Reb Baruch Ber talking to Reb
Aharon in learning in the summer vacation places. Incidentally, in the book
about Reb Baruch Ber called HaRav HaDomeh Lmaloch, there are many pictures of
Reb Baruch Ber with Reb Shimon Shkop. It is obvious that Reb Shimon is the
senior person. He was the Elder of the Rosh Yeshivas.
Our point is that Reb Aharon had a Yeshiva where perhaps most of
the students came in their twenties to learn by him after they had spent years
learning from students of Reb Shimon
Shkop. When I spoke to Reb Aharon and gained his style, which was the style of
Reb Baruch Ber which was the style of Reb Chaim, I thus, because of my youth (I
came to Lakewood when I was seventeen) and because I spoke frequently to Reb
Aharon and reviewed for him my findings in learning, I was not influenced by
Reb Shimon’s Derech. Indeed, my previous rebbe, Reb Yaacov Bobrowsky, was a
talmid muvhak of Reb Baruch Ber. I believe that my rebbes from Washington DC
also learned by Reb Baruch Ber, although at that time was I too young to know
the different between “what” and “why” in the Talmudic discussion.
My point in all of this is to display the Generation Gap. It was
not a question of years. It was a difference between European geniuses and
people like me. That is quite a generation gap. Reb Aharon Kotler was a major
genius in Europe and was being primed by the Chofetz Chaim and Reb Elchonon and
Reb Aharon’s father-in-law Reb Isser Zalman, to become Gadol HaDor. Reb Aharon
was an incredible genius, even in Europe he was famous for this. How in the
world could we Americans learn from such a rebbe?
Another great European genius who was a Rosh Yeshiva was HaGaon Reb
Yaacov HaLevi Ruderman zt”l. He was the Rosh Yeshiva of Yeshivas Ner Israel. At
an early age he memorized the entire Talmud. Americans were far removed from
his level. But Reb Ruderman merited that people from his family such as Rabbi
Newberger arranged the Yeshiva so that the students got exactly the kind of
teachers that they needed, and the entire Yeshiva basked in the glow of the
Rosh Yeshiva. Such an arrangement is excellent for most students, but the
Generation Gap is obvious.
There were other great Rosh Yeshivas who struggled with Americans
even as they had lofty positions in Yeshivas. The bottom line is that the
generation that learned from the Gedolim was limited in its relationship with
them. The Gedolim were far too great to shine their light on the majority of
Yeshiva students without making problems, and the students did not know what to
do about that. I solved the problem with pure chutzpah. I went to talk to Reb
Aharon, and he told me the truth, and it hurt, and I came back for more, again
and again. As I mention in my first volume, I was not the biggest mechutsef in
Lakewood. Somebody came to Lakewood for a summer program who was far removed
from advanced learning. But he wanted to learn from Reb Aharon. So he went to
Reb Aharon, put a sefer down in front of him, and asked him to explain it. Reb
Aharon was very kind and gentle with him. When some of us wanted to send the
boy to another Yeshiva, Reb Aharon insisted that he stay. But those who wanted
him elsewhere got the job done, and I suppose I have to worry about this in the
Other World.
After Reb Aharon Died
Before Reb Aharon died, the Lakewood Yeshiva was low on students,
low on funding, and low in being appreciated in America. After he died, all of
this changed. People began to arrive in numbers in the Yeshiva. A girl sought a
good learning boy for a husband and her parents supported them at least for a
few years. The new Rosh Yeshiva, Reb Aharon’s son, Reb Shneur, was like his
grandfather, Reb Isser Zalman, who was a man of peace. Reb Aharon was a man of
war, and made so many enemies among the modern Orthodox rabbis and even among
haredi rabbis that he had few backers for the Yeshiva. But all of this changed
when Reb Yosher Ber the Rosh Yeshiva of Yeshiva University instructed his
students, the YU rabbis, to support Lakewood. Therefore, the new Lakewood was a
different world than the Lakewood I knew. But not everyone was thrilled with
the new situation.
True, beautiful new buildings were built, and they were filled with
large numbers of students heavily engaged in Torah learning. But the new status
of Lakewood as a status symbol was troubling to some people. The old Lakewood
was only for the rare person who was ready to suffer everything in order to
study Torah. The new Lakewood was for everyone who sought the new status, the
easy shidduch, the beautiful building, etc. At this point, for better or worse,
the Torah in America achieved a higher appreciation and incredible success.
But let us remember our previous discussion. We said that Reb
Aharon was not the rebbe muvhak, the prime rebbe of perhaps the majority of his
students. They came to Yeshiva because they wanted a high Torah level. But very
few engaged directly with Reb Aharon. As we explained, Reb Aharon was a
European genius, a fire, a fighter, and we Americans could not just go over and
talk to him. I did it because I called upon my ample reserves of azuce ponim. I
forced myself to do this because I realized that Reb Aharon and Reb Moshe and
others were old people and I had to make my move now. But those who learned
diligently in the same Beis Medrash as Reb Aharon but did not connect with him
his departure from the world severed what could have been, a personal connection
to a Gadol. When I spoke to Reb Aharon and Reb Moshe at length, I was always
worried that maybe somebody would come over to the Rosh Yeshivas and take them
away from me. After all, they had a right just as I did to talk to the Roshei
Yeshiva. But rarely did anyone come. Later when I moved to Monsey and Reb Moshe
Feinstein would often visit with his rebbetsin his daughter Rebbetsin Tendler,
I taught in the same shul that Reb Moshe dovened and would spend a lot of time
talking Torah to him. I was terrified that somebody would take away “my Reb
Moshe” but after years, I only recall a tiny amount of people who came to talk
to Reb Moshe. Only one of them as I recall was a Rov who had a problem with a
GET. Thus, when the Gedolim from Europe passed on, there was an emptiness. I
felt it keenly.
Other people who did not talk directly to the European gedolim had
a different solution to their new status. They turned to those who were now the
senior Roshei Yeshiva and Talmidei Chachomim. These were usually not Europeans
at all, but were students of Europeans. I had a problem with this. The new
Torah was much different than the old Torah, and I didn’t feel comfortable with
it. Until today, I am fighting the new generation with its different ideas, as
I will discuss. And this reality, that the new generation did not have a full
relationship with the old one, other than a few individuals, made problems,
problems that we will discuss in this book, and show that the new leadership
was not the old leadership.
Briefly, the new generation has a Torah that believes in learning
Torah, becoming “gedolim” as the great goal. The old generation believed in
fighting for the entire Torah. My criticism of the “new” generations are as
follows: One, they are not fighting important fights, as I will explain, but
putting their energy into building Torah learning with some exceptions. Two,
the Yeshiva structure as it is now, creates frustrated people and no Gedolim,
as I will show and quote Gedolei hador of the present and past generation.
What are Today’s Issues? What are Today’s
Problems?
Here is a small list of today’s issues and problems:
1.
Gender
war between men and women in family, between husband and wife. This leads to a
terrible problem of divorces and a large population of people who are single.
2.
Feminism
infects the Orthodox community in various ways. The world is heavily influenced
by feminism. One objective of the feminists is complete equality between men
and women. The latest target is to register for the American military to draft
all females just as all men must register for the draft. I spoke to “leaders”
of the Torah community and they had no interest in fighting about this now. And
yet, if there is a law passed for women to register for the draft, there will
be a very serious question of martyrdom, besides jail and fines.
3.
Years
ago, the European gedolim encouraged me very strongly to fight against the Gay
Rights movement. Why this should be done is something that everyone should know
but almost nobody does. A few years ago, major rabbis in Monsey made a major
campaign to elect a lesbian as Family Court Judge, although the opposition was
a religious gentile who was against gay ideas. The senior rabbi in Monsey told
me to hang up a ferocious letter that I made attacking them in his Yeshiva and
shull. But someone asked me, “Why are you the only one to protest this?”
Because today people have a new “Torah.” Those rabbis and some in New York find
an advantage in backing a gay or lesbian for politics, because then the person
is beholden to them for their political needs. This is pure gangsterism and
corruption. At least, I protested, and a lot of people were happy that I did.
But the major rabbinical positions in the community are held by people who have
different ideas.
4.
There
is today a terrible spate of broken marriages in the Torah community. I
personally know people from senior rabbinical families who are being torn apart
by divorce battles in secular court.
5.
There
are many things to elaborate in the above four things. But I want to turn now
to a frightening story that I personally witnessed and heard from gedolei hador
of the past and present generations.
Monsey Gets a Video Store Years Ago
Some years ago
the Magid of Jerusalem Reb Shalom Mordechai Schwadron zt”l used to visit Monsey
regularly to raise funds for Israeli Yeshivas and Torah programs. I tried to
talk to him when he came, and he was very kind and wise.
In those days
Monsey was a city of Torah Jews, Yeshivas, some apple orchards, plus a few
snakes and an occasional bear or deer. One day, in the center of town near a
Yeshiva, a video store opened. My friend and I were determined to do something
about this. Rav Schwadron was in town and after a lecture he gave, we
approached him and told him that a video store came to Monsey. I then
anticipated a furious anger and a determination to speak publicly on this
outrage. But no. Nothing. Rav Schadron simply ignored me. It was as if I didn’t
say anything to him. I looked at his face. It was solid granite, turned away
from me, in a pose that said, “You don’t exist.” I realized that this was no
accident. The Rov was deliberately telling me that he had absolutely no
interest in talking or hearing about a video store. I was stunned. I repeated myself, twice, three times, and
not a change in the face. Well, I said, I am Mr. Azuce Ponim. And I am going to
pursue this further!
I raised my voice and said, “Rebbe! Hashchoso!!”
That did it. The cold granite face turned directly at me. A
professionally maneuvered hand moved directly at my face. A finger pointed at
me and eyes were blazing. Slowly and professionally Reb Shalom said, “A Yeshiva
is haschoso!”
That story took place many years ago. But even then, Reb Shalom knew that the rabbinical
world had its problems. The major problem is when rabbis encourage women to
force a GET from their husband against his will and remarry with that GET. That
GET says Rambam is worthless, as a GET must be given by the husband willingly. And
today, when Reb Shalom is no longer with us, there are ‘rabbis’ who tell
married women whose husband won’t give them a GET to remarry with no GET. A
senior rov in Brazil called me to tell me that they did this in his city. No
husband was involved in giving the GET, and a woman is freed of her husband in
defiance of the Torah and the Talmud. The same was done recently by a senior
rabbi in France.
We are talking about a world that will soon be gripped in a crisis
of children born of women who left their husbands with an invalid GET or no GET
at all. The New York State GET law empowers women to force their husbands to
give a GET and to get slapped with financial punishments or worse. Rabbi Bleich
says that today all Gittin given in New York are given by husbands who realize
that to refuse to divorce their wives will lead to court and it will destroy
him, maybe take away his children and money. So, they give a GET. And this fear
makes the GET invalid, and the children of the wife when she remarries with the
invalid GET are mamzerim, or maybe doubtful mamzerim. A mamzer can marry a
mamzeres, but a doubtful mamzer may not marry a mamzeres, and neither a mamzer
or a doubtful mamzer may marry a regular Jewish woman. And people are silent.
My rebbe Rav Yosef Shalom Elyashev zt”l was shocked that nobody protested the
New York GET Law in its second phase, with its surrender to the woman and the
destruction of kosher Gittin in New York State.
What can be done? One idea is from a prominent Rov in Israel Rav
Abirgil who recommends today that people marry with Pilegesh, not Kiddushin.
Kiddushin makes a woman a slave to her husband who can torment her at will and
not give her a GET until he dies; and she can do nothing about it. She could
listen to the wicked ‘rabbis’ who advise such women to force a GET from their
husbands and remarry. Some such wicked ‘rabbis’ actually set up a scheme to
torture a husband for sixty thousand dollars, with tortures so sophisticated
that no human being could tolerate without surrendering and giving a GET that
was forced, even though the children of the wife when she remarries will be
mamzerim. But a couple without Kiddushin but with Pilegesh cannot make
mamzerim. They simply live together in one house until it is time to leave, and
either one of them can just get up and leave, preferably saying good-by! The
husband can not torment the wife because she is free to just get up and leave
any time she wants.
In earlier generations when Gedolim like Rav Yosef Shalom Elyashev
zt”l kept an eye on the movements of the rabbis, he shot down the problems. But
today, there is nobody to do this. And people who don’t know the laws of
Gittin, invent what they don’t know, and we are awaiting a crisis of mamzerim.
How happy will the mothers who escape their husband with invalid
Gittin be when they have a child who is announced to be a mamzer, or at least,
a doubtful mamzer? A doubtful mamzer is worse than being a full mamzer because
a mamzer can marry a mamzeres but a doubtful mamzer may not marry a mamzeres,
nor may he marry a regular Jewish girl. We are going down the road to watching
children come to shame we can’t imagine, and shame of mothers we cannot
imagine. When will it end?
Here is a suggestion from a prominent Israeli Rov. He advocates
that instead of Kiddushin which makes the wife a slave for her husband who will
not give her a GET unless he really wants to divorce her, or dies, a woman
should marry with Pilegesh. People in America and in Israel and elsewhere who
marry with Kiddushin and cannot get a willing GET from the husband, is ruined.
Sometimes the husband presses his advantage and humiliates the wife and teaches
the children to hate her, and if she fights back he may never give he a willing
GET.
Such a woman is taught by ‘rabbis’ to force the husband to give a
GET. The GET is invalid and children from the next husband will be mamzerim.
The only solution is Pilegesh. In the laws of Kiddushin[1], in
the very beginning, we find the Vilna Gaon telling us that the source to permit
Pilegesh is from the gemora in Sanhedrain 21A. He says that this is the text in
our gemora although some have another text, that would require the woman to
make Kiddushin. However, the Ramo and the Gro don’t follow that opinion. The
Vilna Gaon concludes, that this is also the opinion of the Ramban and Rambam,
that Pilegesh is permitted.
This is from the Ramban in Meyuchesses[2], a
volume filled with teachings of the Rashbo, but there is there two teshuvose
labelled clearly from the Ramban. The Vilna Gaon infers from the above gemora
that Pilegesh is permitted, backing the Ramban, but adds that the Ramban and
the Rambam both permit Pilegesh. This is strange because the Rambam forbids
Pilegesh for anyone who is not a king. But the Vilna Gaon surely know that
Rambam, and yet, he says that Rambam agrees with Ramban, and indeed, the Ramban
in his teshuva says clearly that Rambam agrees with him that Pilegesh not done
derech Zenuse, is permitted.
Reb Yaacov Emden asks how the Ramban could assume, as does the Gro,
that the Rambam permits Pilegesh? Does the Rambam in Melochim not say clearly
that Pilegesh is forbidden for anyone who is not a king? This is a very strong
kashyo.
But the answer is as follows. Ramban says that Pilegesh is
permitted by the Rambam unless it is done with zenuse. This can mean that the
woman sleeps with her husband as a Pilegesh but also sleeps with other men. But
if so, how can anyone permit it? And what kind of Pilegesh sleeps with two men
at the same time? This violates and destroys the entire Pilegesh effort. If so,
how does the Rambam permit zenuse with a king? If the whole sin of Pilegesh is
only if she sleeps with two men at the same time, how can a king have her as
his wife?
But the answer is that Pharoah took Sarah the wife of Avrohom for
his wife, because he felt that a king may take the most beautiful woman. It is
his right. When King David took Bas Sheva with force, and had a son Shlomo from
her, he was exercising his right to force a beautiful woman especially the most
beautiful woman to be his wife, and he anticipated that everyone would gladly
accept her son Shlomo because she was forced for her beauty and he had a right
to take her. Now a lady forced to marry somebody is not married to them, but a
man forced may be considered married. But a king who has a right to the most
beautiful woman, or to whom he considers the most beautiful for his needs, is
doing something which is a violation of the Torah, as a forced woman cannot be
considered marriage. But if a king does this, as he has a right to do, he exercises
his right and therefore may do it. The wife knows this and accepts her lot and
anticipates that her child will be the next king, which happened with King
David.
Thus, we have a strong support from the Ramo and the Ramo and the
Ramban and the Rambam that a Pilegesh is permitted to everyone, and that a
forced beauty may be forced by a king to marry him, although a commoner does
not have this right.
This answers the question that everyone asks. We find that many
people in Tanach had Pilegshim and they were not kings. Why then does Rambam
say that only a king may marry with a Pilegesh? But Rambam was referring to a
woman whose beauty attracted her to a king, as with Pharoah and King David. A
forced woman is not considered married in general, but a king has the right,
and only a king. But Rambam agrees that if plain people marry a Pilegesh not
with force but both are voluntary in marrying each other, that it is proper and
of course the woman goes to the Mikva.
In fact, a Pilegesh couple must be guided by rabbonim how to
integrate themselves into the Torah community. Everything should be done with
the guidance of specific rabbinic guides. This way the community can learn to
respect Pilegesh, but when people do everything on their own, we don’t know
where it will end up.
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עתון חדרי חרדים
Return to the Ramo on Pilegesh
The first teaching of the
Ramo was to permit Pilegesh, but the second teaching or sentence of the Ramo
was to forbid Pilegesh. We quote, “And some say that Pilegesh is forbidden and
that one who marries a Pilegesh is beaten for committing the sin of ‘a woman
should not be a kedaisho a prostitute.’ (Rambam, Rosh and Tur).” This is a very
strong condemnation of Pilegesh from Rambam, Rosh and Tur. It disagrees with
the Ramban and the Vilna Gaon mentioned before who permit Pilegesh, as we
explained there. At this point we have a serious disagreement mentioned in the
Ramo itself.
But the Beis Shmuel here explains that he disagrees with this Ramo.
He maintains that there is no proof to say that Pilegesh is a sin that requires
a beating. After a lengthy discussion of open opinions of the greatest
authorities he concludes that one who takes a Pilegesh is not beaten and that
there is no proof that Pilegesh is even a sin. When we realize that a great
Gaon Reb Shalom Mordechai HaCohen, grandfather of the famous Israeli mashgiach
Rav Shalom Mordechai haCohen, writes
that Jews always accept the opinion of the Beis Shmuel, this carries a great
weight to be lenient with Pilegesh, and to accept the teaching of the first opinion
in Ramo that Pilegesh is permitted, as the Vilna Gaon writes that this is the
opinion of the Ramban, Rambam and the gemora in Sanhedrin 21A.
On this teaching of the Ramo to forbid Pilegesh that the Beis
Shmuel disagrees that Pilegesh is not forbidden, the Gro writes a very long
piece where he completely disagrees with the second teaching of the Ramo to
give a beating to one who marries with Pilegesh, and shows that the sin of
Kedaisho is interpreted by the major authorities not as referring to Pilegesh
but to other things especially a woman who is hefker to sleep with any man. But
a Pilegesh married only to one man is permitted. He concludes his large list of
proofs to this by referring us to the Beis Shmuel, who also brings with
powerful proofs that Pilegesh is permitted. We thus conclude that the Vilna
Gaon disagrees strongly with this opinion of Ramo, and as does the Beis Shmuel,
that there is no proof to support the contention of the Ramo in this that the
Rosh, Tur and Rambam forbade Pilegesh. And since the Vilna Gaon is considered a
Rishon, and the Beis Shmuel is considered the senior authority of acharonim, we
are left clearly with permission to make Pilegesh. The Chelkas Mechokake also
strongly disagrees with the Ramo in this opinion that there is malkose for
Pilegesh. Whereas the Ramo quotes the Rosh, Tur and Rambam that there is
malkose for a Pilegesh, the Chelkas Mechokake says that the Rosh and the Tur
never said there was malkose for a Pilegesh, only that a family could protest
that somebody decided to be a Pilegesh instead of Kiddushin. Furthermore, the
Rambam only says that one who takes a woman for zenuse is beaten, but Pilegesh
is married to one man and thus surely does get Malkuse.
I want to comment on this Chelkas Mechokake, who says that the Rosh
and Tur only say that a family may protest a member who takes Pilegesh. It is
true that there is great importance given to a woman who takes Kiddushin who
must have a ceremony with Kiddushin with proper witnesses and must have a
Kesubo, otherwise she lives in sin. But Pilegesh has no ceremony such as
Kiddushin or any other ceremony, only that two people may decide to marry, and
the woman moves into the husband’s house, nothing more. Therefore, some people
have the right to complain that a person refused Kiddushin and accepted
Pilegesh. If so, why do I strongly recommend Pilegesh and not Kiddushin? Why,
indeed, am I, today, and only today, very nervous about a woman who takes
Kiddushin and not Pilegesh, although I know that very few people will take
Pilegesh?
The answer is that in earlier generations, there were great rabbis
who had control of the community. In the past generation my rebbe Rav Yosef
Shalom Elyashev zt”l watched like a hawk what senior rabbis did and would act
when something did not appeal to him. But today major rabbis do hideous things
like forcing Gittin and some even permit women to remarry with no GET because
they invent “fact” that there never was a proper marriage to begin with and
that no GET is necessary. Today there is going to be a crisis of mamzerim,
because Rambam says that any man who divorces his wife without a willingness
but is forced to do it, that GET is worthless. If so, a child born from that
GET is a mamzer. Rabbi Moshe Heinemann wrote a letter on the Internet urging
everyone to give money to Ora, an organization that openly forces husbands to
give his wife a GET because they believe that any man who doesn’t divorce his
wife is wicked. This is against the Rambam, the Rashbo, and the Vilna Gaon and
all of the authorities in Shulchan Aruch Even Hoezer 77 paragraphs 2 and 3. See
also the Rashbo volume VII in teshuvose number 414, “if the husband wants to
divorce, he divorces, if he doesn’t want to divorce, he doesn’t divorce.” The
Rabbeinu Tam is quoted in the shita mekubetses[3],
written by a rebbe of the Ari z”l, that it is forbidden [for Beth Din] to
advise a husband that it would be nice to divorce his wife.
The opinion of Rabbein Tam and some others is that we may force a
husband to divorce with passive pressure, meaning not to tell him to divorce,
but if the husband is not told anything but simply ignored, and he realizes
that it is because he doesn’t give a GET, that is passive pressure. The Shach
at the end of his work Gevuras Anoshim quotes an authority that nobody ever
heard of using passive pressure to force a GET. The reason is that in latter
times creating a silent zone for a person is as bad as cursing him with Nidui
or Cherem, which is forbidden when pursuing a GET unless the gemora clearly
permits hitting with a stick to force the GET which requires a clear statement
from the gemora. Thus today all passive coercion is forbidden.
However, there is a level other than passive pressure, which
requires utter silence from people to create a level of silent-treatment, and
that is mentioned in the end of chapter 154 in Shulchan Aruch Even Hoezer,
regarding when it is permitted to force a husband to divorce his wife. Again,
if the gemora says something that clearly requires beating the husband to divorce
his wife, then he can be forced with a beating and other hideous things. But
the gemora also suggests a much milder level of forcing a GET, by not using any
force, by not insulting the husband as one who sins with not giving a GET to
his wife, but by invoking a particular sin that the Beth Din knows was
committed by the husband. The husband is thus told, “Wicked person, you
violated the Torah law.” No talk about a GET, just reminding him of his wickedness.
This milder level also in the end of chapter 154 in Shulchan Aruch
Even Hoezer, may only be applied when the husband committed a sin, but an
ordinary husband who has not done a known sin may not be so insulted. What sin
did he commit? This is not clearly stated
in the Mishneh.
However, the Levush in Even Hoezer end of 154 as above develops
this theme as follows and we quote: “Even though today we force nobody to
divorce his wife [other than those mentioned clearly in 154] this means we don’t
curse him with a cherem to force him to divorce his wife. But if in the eyes of Beth Din they see a way to
help the woman, for instance she complains that the husband is disgusting to
her, or similar things, and the marriage is not going nicely, then even if the
husband is not a candidate to be forced to divorce his wife, the Beth Din may
pronounce a curse of Cherem on every man and woman [in their community or
wherever they feel it is appropriate] to decree with a severe curse that no man
or woman may may speak to the husband, or to do business with him, to let him
gain from the profit, or to give him food or drink, vilalvoso[4] or to
visit him when he is sick, or other strict rules as they determine to make upon
all people if the husband will not divorce his wife and free her with a kosher
GET. Because this is not a forcing of the husband, because all he has to do is
to go to a place where no Cherem has been declared on the husband, so nobody
will stay away from him. And he gets no punishment from this curse [made on
other people in the community, not on the husband]. And he receives no
punishment. Because the curse falls not on him but on us if we don’t stay away
from him. And there is not here any forced GET [because he was never forced to
give a GET, but other people were forced to stay away from him which does not
automatically make a forced GET].See Moharik chapter 120.”
It would seem from the end of the chapter 154 in Even Hoezer, that
we are told various levels of dealing with forcing a GET. One, is when the
Torah clearly states to force a GET even with a beating. Probably this permits also
a curse and nidui, but this is not stated here in the Shulcan Aruch. Two, is
when the husband is not told that he may be beaten, but is told that he sinned,
something which is not explained. It cannot mean that he sinned by not giving a
GET, because it is obvious that we are talking about a real sin whereas not
giving a GET is usually not any kind of sin. However, look at the Teshuvose of
the Ramo 96 at the end of the teshuva by Rav Eliezar Ashkenazi. He lists there
various sins done by the husband which can trigger forcing a GET, but he
advises first asking serious rabbis if they agree in each case.
This brings us to a totally new dimension in dealing with forcing a
GET. The Shulchan Aruch Even Hoezer talks about people who must marry and have
children, the law about a man or woman who don’t want to marry, or are married
but they want to refrain from intimacy, or a variety of family problems.
Sometimes, as mentioned in the above teshuva of Ramo 96, the rabbis looked for Torah
scholars to be their partners to accept that the husband is obligated to do
such and such or he must divorce his wife. But as is stated in the Ramo there,
an individual rabbi must inquire from several major authorities if the sin of
the husband, whatever it is, humiliating the wife by his behavior, or not
having children because his wife refuses to be with him, or having to flee from
the police and make the wife run after him and she refuses, all of these may,
with the agreement of some great rabbis, bring about a situation where the
husband is possibly forced to divorce his wife. But one rabbi on his own cannot
do it and probably also a plain Beth without several senior rabbis cannot do it.
For our purposes, this is an extremely important thing. I without
seeing the teshuva of Ramo anticipated it, that a husband in a house where there
is no intimacy if the wife refuses it or the husband refuses it, may very well
require the husband to realize he is living in sin. A husband who has no way to
sleep with his wife, and therefore cannot have children, and who cannot marry
another woman because having two wives is rejected in most communities, the
husband can solve his problems and sins only by divorcing his wife and having
children with another wife.
It may be as indicated in the Rambam about mous olei that Beth Din
would try to solve this problem by instructing the husband how to behave with
his wife so she will not refuse to have relations with him, and to assign a
period where this should work. If that period comes, the Beth Din may insist on
a divorce, if it has the proper authorities who agree with it.
We find in the beginning of the Shulchan Aruch Even Hoezer a
discussion and various opinions about a person turning twenty who is not
married and if he is not pursing
marriage properly, whether he can be forced to marry or not.
We also have a question if the husband causes his wife great shame
if that itself is cause to force him to divorce her. Again, great rabbis must
agree to force him. Thus, again, the families that are broken and the husband
has no marital relations with the wife
even if he has a boy and a girl but does not have more children because his
wife is refusing to go near him in marital relations, may have to give her a
GET, again if senior rabbis agree that this is the halacha.
One things here is for sure. We cannot talk on paper here about who
should do this or that, but senior rabbis must decide, a proper Beth Din, etc.
But we can bring it to the attention of everyone that these things are all
sins, to humiliate a wife or force her to chase after the husband because he
can’t live in her neighborhood, or really anything the husband does that makes
the wife miserable, and senior rabbis consider it a serious problem, they, in
concert with senior authorities, may demand a GET, or they may simply tell him
that he is living in sin, and will face punishment in this world and the next. Maybe
that will help. And if it does not, the Beth Din or senior rabbis must bring
the husband to a meeting and make him realize his obligations, however that
works out, hopefully when the problem is somehow mitigated.
Another thing, it is obvious from the above Levush that a husband
who is being ostracized to make a passive pressure to divorce his wife, and the
husband is constantly surrounded by people who won’t talk to him, that this may
result in an invalid GET, unless the husband can find a community where people will
talk to him. This is the Levush that we mention above. But according to this, if
people will not talk to him although they do nothing else and never mention the
word GET to him, it would seem that the pain he has from being ostracized makes
an invalid GET. It could be that ostracizing is an act of forcing a GET which makes the GET
forced and invalid. Whatever, we find the Levush, Gro and Moharik demand that the
husband surrounded by people who won’t talk to him and gives a GET to save
himself, may have given an invalid GET.
The question is how this fits in with the Shach in Gevuras Anoshim,
who writes that when everyone ostracizes the husband it is like cursing the
husband and forcing a GET which is wrong. But what does the Shach say if some
people don’t ostracize the husband but they live far away? That may be a problem.
And if the husband can find a place to live with companionship but the wife
doesn’t want to live there, but wants to remain where she always lived, near
her family, for instance, and if the woman cannot be forced to move somewhere
the husband needs because he can’t live near his wife, this itself may force
the husband to give his wife a divorce.
Basically, when the wife is miserable living with the husband there
can be big problems that may have to be solved with a GET. But if the husband
is stubborn and does not want to give his wife a GET, only senior rabbis can
decide that the pain of the wife has reached the point the husband must give
her a GET willingly.
Some Questions
What is not clear from the gemora is the following: A person who
commits a capital crime that requires death is only punished this way if he was
warned and violated the warning and if the warning was done by two male kosher religious
witnesses. What, therefore, is the status of a husband who qualifies either for
a beating to divorce his wife or for a humiliation for committing a sin? Does
he also require a warning from two kosher witnesses and does he too have to
defy the warning that he will be punished for that or not?
A more difficult question is as follows. If a person lives among
deeply religious people and defies the Sabbath, we understand that he, if
warned and violates the warning, deserves his fate. What, however, happens when
a person lives in a time where everybody is not religious, or many people are
not religious, and this person comes from a family where people for generations
were not religious? Does strong punishment still apply there? That I don’t
know. Such people may have the status of shogage or inadvertent sinners and not
be considered guilty at least not at the level that serious punishment requires.
The Vilna Gaon in Shulchan Aruch Even Hoezer end of chapter 154 says
that the issuing of punishment for a husband who sinned and who does not
divorce his wife only applies if the husband could escape to a place where nobody
will pursue him. And this is how the Levush and Maharik rule.
But the Shach at the end of Gevuras Anoshim brings an opinion that
nobody ever heard of forcing a GET with passive pressure, because today it is
considered as terrible as a curse of Nidui and Cherem. So the Shach says we
should not use it today. Also, the Vilna Gaon and the Morahik say that the Shulchan
Aruch at the end of chapter 154 in Even Hoezer says that only rarely may we
force a GET and there are two kinds of force. One, a beating, when one does a
very serious sin like marrying a woman forbidden to him. Two, when the gemora
does not suggest physically forcing him at all, but merely to say orally to him
that he is a sinner because he did sin x or y, a Torah sin or a rabbinical sin.
But to go around like ORA forcing a husband with public humiliations that are
worse than murder in Rabbeinu Yona[5], is
surely a forced GET that is worthless, as the Rambam says. Rabbeinu Yona says
that to humiliate a person is worse than murdering him, and that one who humiliates a person in public who goes down
to Gehenum and never comes up, and he has no portion in the world to come. This
is all what happens when ORA humiliates a husband to force a GET.
That is why today, when the style seems to be for rabbis to invent
a new Torah to force a GET and even not to give a GET at all, and there will be
a crisis of mamzerim, I strongly advise people to consider marrying with
Pilegesh, because even if it is somehow less than regular Kiddushin as it does
not have Kiddushin or Kesubo, it also does not have mamzerim, and that, to me,
is the main issue.
I wish to conclude by saying that I agree with the Gaon Rav Yaacov
Emden that one who marries with Pilegesh may do so, but should be guided by rabbis exactly how to maintain
themselves. Yes, technically two people can marry with Pilegesh, but without
constant rabbinical supervision and guidance for Pilegesh people to succeed is
a different story. Also, there are perhaps certain leniencies in Pilegesh not
available in regular marriage, but I would personally not have interest in
helping people use these leniencies, because leniencies can damage peoples’
respect for Pilegesh. And this is likely a factor in what the Chelkas Mechokake
says that some people protest when a family member marries with Pilegesh. But
people who marry one on one a husband and a wife with Pilegesh, I say, kol
hakode, but again, only if there are rabbis preferably from the community to
guide them and to stand up for them that they are fine people and following the
Torah.
[1]
Shulchan Aruch Even Hoezer laws of Kiddushin 26:1. Ramo there explains that the
Shulchan Aruch feels that if a man and woman marry with intent to marry without
witnesses and without Kiddushin, we force them to separate. The Ramo explains
because we fear that the couple who married without rabbis or witnesses will be
embarrassed to go to the Mikva and thus will sin with Nida. But if the couple
married with the knowledge of rabbonim who supervise the couple to obey all of
the commands, including Mikvah, then Pilegesh is permitted. The Vilna Gaon
provides proof for this to permit Pilegesh from gemora Sanhedrin 21A that “general
marriage requires Kiddushin and Kesubo and Pilegesh requires neither Kiddushin
or Kesubo.” The Vilna Gaon says that the understanding is that the Pilegesh has
no obligation to make a Kiddushin or Kesubo. Nothing is mentioned about a GET,
but major poskim say that no GET is required when the wife or husband wishes to
end the marriage. Thus, the level of Pilegesh has nothing in the gemora that
would obligate a Pilegesh, other than for the husband to provide his wife with
a domicile in his house and for her to be faithful to him and not deal with
other men with zenuse. If she does, she must leave his house and break up the
marriage.
[2]
Meyuchesses means that the Rashbo had many volumes filled with his teshuvose.
But one of these volumes clearly had teshuvose signed by the Ramban. There the
Ramban encourages Pilegesh and says that the Rambam permits it as long as it is
not zenuse. We understand from the Ramban that the Rambam in Melochim who
permits Pilegesh only for a king is talking about a person who takes a Pilegesh
who will sleep with other men not her husband, as zenuse. But if she marries
somebody as a real marriage, as was done by many people mentioned in Tanach,
nothing is wrong. But if done derech Zenuse, a king may do it, we assume that
nobody will go near the wife of a king, even if she does not accept the bonds
of marriage. If the king, for instance, takes a very beautiful woman against
her will, this is not a normal marriage, but is derech Zenuse, but nobody will antagonize
the king and do anything about it. At any rate, the Ramban permits Pilegesh, as
long with the Vilna Gaon and the Ramo, and the Vilna Gaon says that the Rambam
agreed. If so, we must explain the Rambam’s opposition to Pilegesh for one who
is not a king as referring to a woman who did not join in marriage with her
husband in the style of true marriage, but was taken by a person for her beauty
or whatever reason, and because the marriage was forced, only a king may do
such a thing.
[3] Shita
Mekubetses Kesubose 64b page 1190 in my edition phrase beginning וכתב רבינו יונה ז"ל וזה לשונו
[5] See
Shaarei Teshuva of Rabbeinu Yona number 139, 140, 141.
