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Wednesday, February 22, 2012

Grounds for Divorce? (Part 5: Philosophy)

Once we have defined the machlokes as well as we could, it’s worthwhile to address an issue that bothered us earlier.  Rabbi Akiva seems harsh.  Divorcing your wife for a prettier girl, intuitively seems like something the Torah should not condone.  What, then, is his rationale?

It’s important to understand according to all three positions, what the Torah is doing by establishing criteria for the permissibility of divorce.  The Torah is not setting a moral standard and the three way machlokes is not about who has the lowest moral standards.  

The Torah is setting up the stam, or basic, definition of commitment when two people are getting married.  Morality demands that the two people maintain their commitment to something they both voluntarily agree to.  If they explicitly state it’s a short term marriage, there is nothing wrong according to anyone, with quick divorce. (In fact, Rav and Rav Nachman would regularly do that when they traveled).

It is similar to the laws the Torah sets up for a שואל, a borrower (i.e. responsibilities to replace the object even if it breaks through no fault of his own).  The lender and borrower can stipulate different terms, but it is convenient and helpful that the Torah defines for us a standard law of responsibilities and obligations, that is both fair and sensible.  In general, two people have in mind whatever the Torah’s standard is.

The same is the case for our machlokes by divorce. In general, when two people commit themselves to a marriage, they have in mind whatever the Torah set up as the basic case.  They are free  to stipulate any difference.  Morality is to keep to whatever they voluntarily agree to. The 3 positions are about what the standard assumptions of commitment in marriage are.

It is beyond our abilities to definitively say why the Torah chose the basic case that it did or which system of divorce leads to the best society.  There are clear advantages to Rabbi Akiva’s position (permitting a man to end an unhappy marriage even if the women has not failed in her marital duties, especially before they start having children), as well as clear disadvantages (as evidenced by the breakdown of family structure in American society, though arguably, that would not occur in a Torah based society).

It’s beyond our abilities to definitively say, but sometimes it’s interesting to speculate for a few minutes anyway.


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