¹ On the historical background and manner of functioning of the Rabbinical Courts in Israel, see: Chigier, M., “The Rabbinical Courts in the State of Israel” (1967) 2 Is.L.R. 147Google Scholar; Culbertson, P.O., “The Anglican Family Court in Israel and the West Bank”, (1981) 23 Journal of Church and State 285CrossRefGoogle Scholar; Shava, M., The Personal Law in Israel (Tel-Aviv, 1967, in Hebrew).Google Scholar

² See the Palestine Order-in-Council, 1922.

³ In the early stages of Rabbinical Court adjudication, there were instances of a lower court's refusal to follow the directives of the appellate tribunal, on the ground that such an institution lacked any foundation in Jewish law and that the Dayanim of appeal took no precedence over those sitting in the court of first instance.

⁴ The Rabbinical Courts are also competent to deal with civil or monetary disputes, with the consent of both parties. In this event these Courts have the standing of arbitrators, but follow Jewish law.

⁵ This arrangement has been subject to a long-standing political dispute in Israel. There are those who would change the situation in favour of the adoption of a uniform territorial law, even in the area of family law, while those who want to maintain the status quo hold that the non-separation between State and religion is one of the unique and prime factors ensuring the Jewish character of the State of Israel. Hence, in the latter view, the field of family law in particular has to be left under the sway of Jewish law, so far as Jewish parties are concerned, this being a most sensitive legal area in which departure from the halakhah would entail the gravest consequences.

⁶ Per Silberg, J., in Kolik v. Wolfson, (1951) 5 P.D. 1341 at 1345.Google Scholar

⁷ From the standpoint of contemporary Jewish law, it is customary to speak of three Jewish communities, each distinguished according to the code by which its halakhic tradition is nourished, namely: the Yemenite community, which relies upon Maimonides and his code (Mishneh Torah or Yad HaHazakali, hereinafter Yad); the Scphardic community, which looks upon Joseph Caro's Shulhan Arukh as reflecting the accepted and binding halakhah; and the Ashkenazi community, which is guided by Moses Isserles' Mappat HaShulhan, i.e. glosses to Caro's Shulhan Arukh. For several centuries now these three codes have put their stamp on Jewish religious life, and the measure of authority attributed to them by their respective adherents, has been instrumental in the shaping of the stated threefold communal-halakhic division as customary to-day.

Sociologically speaking, the Yemenite community traces its roots back to Yemen in the early centuries of the Christian Era. Members of this community first began to emigrate to Palestine some 100 years ago, with virtually the entire community folowing suit shortly after the establishment of the State of Israel. The Sephardi community, whose halakhic roots are founded in the Spanish academies of the 12th and 13th centuries, is composed of the descendants of the Spanish exile (1492), who sought refuge in the countries under Ottoman rule at the time—in the Middle East and North Africa—and integrated with the established Jewish communities in these areas. This community constituted a majority of the Jewish population in Palestine until the beginning of the present century. With the mass immigration that followed the establishment of the State of Israel, the Sephardi community once again approached its former ranking as the majority section of the local Jewish population. The Ashkenazi community is mainly of European origin, its halakhic tradition having been fashioned by the scholars of Germany (Mayence) and France, by Rashi and the Tosafists, commencing from the 11th century onwards. See: Simmels, H. J., Ashkenazim and Sephardim (London, Maria Publications, 1976) 49–58.Google Scholar

⁸ The awareness of the phenomenon and its entailed problems, on the part of the Mandatory as well as the Israeli legislator, has been responsible for the fact that the civil legislation under which local rabbinical adjudication has taken shape, has given official recognition to the division between Jews of Eastern (Sephardi) origin and those of Western (Ashkenazi) origin. This has so far remained the only field of legislation in which legal recognition is given to the communal origin of an Israeli Jew. In this regard, see for instance, the Religious Communities Ordinance and the Knesset Israel Takkanot (Regulations) framed thereunder, as well as Israeli enactments such as the Chief Rabbinate Law, 1980 (S.H. 965, p. 90), or the Jewish Religious Services Law (Consolidated Version), 1971 (25 L.S.I. 125).

Communal origin is also of importance in the appointment of Rabbinical Court Dayanim (Judges). In their case, unlike other appointments, the emphasis on the communal factor is overt and designed, as a matter of policy, to give recognition to divergent halakhic traditions. This policy has also found formal expression in the conferment of status on the Chief Rabbis and the local Rabbis who are elected in accordance with a communal key set forth in the Dayanim Law, 1955 (9 L.S.I. 74).

⁹ The melting pot v. cultural pluralism dilemma first began to occupy the attention of Israel's spiritual leaders during the early 1950's, the years of mass immigration. At that time the dominant view, politically as well as culturally, looked upon the “integration of exiles” as a national ideal and favoured the melting pot approach. Even then, however, there was an articulate voicing of the wish that the integrative process should not lead to the creation of a uniform society in Israel, but promote the existence side by side of different ethnic groups each preserving its traditional cultural assets. See the debate on this issue between Frankenstein, C. and David, J. Ben in Frankenstein, C. (ed.), Between Past and Future (Jerusalem, The Henrietta Szold Foundation, 1953) 13–32, 33–52.Google Scholar On the discussion of the same dilemma in other Western societies, see, for instance, Glazer, N. and Moynihan, P.D., Beyond the Melting Pot (Boston, M.I.T. Press, 1963).Google Scholar

¹⁰ Deut. 14:1.

¹¹ Yevamot 13b, 14a.

¹² A distinction is made between villages and cities, between walled and unwalled cities, etc.

¹³ Examine in Tosefot to Yevamot 14a, s.v. “Rabbi Joshua”.

¹⁴ Yad, Hil. Akum 12:4.

¹⁵ According to the customary halakhic decisory rules, the law is as ruled by Rava in all but six of his disputes with Abbaye, the present dispute not being one of these exceptions. Maimonides' departure here from these rules has been queried.

¹⁶ Pesahim 50b.

¹⁷ Prov. 1:8. Literally, the passage is concerned with morals, wisdom and virtue and, within its plain meaning, does not relate to the preservation of ancestral tradition in any normative halakhic sense.

¹⁸ Another well-known expression calling for adherence to ancestral custom frequently quoted in rabbinical literature, stems from the talmudic discussion in Bezah 4b. It was there decided that Jews abroad had to observe festivals for two days. Although this ruling derived from historical reasons which had ceased to be operative in talmudic times, Jews outside Eretz Israel were nevertheless admonished to continue the custom in the following terms: Hizaharu be-minhag avotekhem bi-y'dekhem (“Give heed to the customs of your ancestors which have come down to you” — Soncino translation).

¹⁹ These two dicta embody the two contradictory doctrines in rabbinic literature. Although both were integrated into the halakhah, it is interesting that the father of the “conservative” doctrine was R. Johanan, who is mentioned in the stated discussion in the tractate Yevamot as the disputant with Resh Lakish, who was in turn the father of the lo titgodedu doctrine, which is perhaps a hint at the existence of an ancient ideological dispute.

²⁰ Kook, Rabbi A.I., Orah Mishpat (Rabbi Kook Institute, Jerusalem, 1979) 17–24.Google Scholar R. Kook was one of the few halakhists who sought to uncover the roots of the divergences between the Sephardi and Ashkenazi halakhic traditions. In an article “Lishne Batei Israel” in Mizrach VeMaarav (Jerusalem, 1920) 201), he held that the Eastern Jewish heritage had been nourished by the outlook of the Babylonian Gaonim (6–11 centuries C.E.) and the Spanish rabbis of the 12–13th centuries, who conceived their main task to be that of deciding between different methods rather than seeking to resolve contradictions appearing in ancient sources. Ashkenazi Jewry, on the other hand, whose halakhic tradition was shaped in the academies of the German and French Tosafists during the 12–14th centuries, had been nurtured on analysis and argumentation aimed at the resolution of contraditions. There was a need, in R. Kook's opinion, for fruitful interaction between the two that would lead to eventual integration and fusion.

²¹ Uziel, Rabbi B.Z., Mishpetei Uziel (Tel Aviv, 1936) 1:1.Google Scholar It is interesting that on the form of prayer issue the rabbis of Eastern origin forsook their generally preservationist stance—their adoption of which was understandable against the background of Ashkenazi halakhic dominance—since the form of Hebrew spoken by a majority of the local population as the every day language followed the Sephardi pronunciation. It should be noted, however, that Rabbi Uziel consistently advocated a fusion of the different traditions and the blurring of sectional differences, as will more fully be described below.

²² See Ellinson, E. G., “Exchange of Custom between Husband and Wife….”, in 85 Sinai 233–242.Google Scholar

²³ See supra n. 11 and related text.

²⁴ It has been so decided by two leading contemporary halakhists: Yosef, R. Ovadiah, ex-Chief Rabbi of Israel (Responsa Yabia Omer, Orah Hayyitn § 37)Google Scholar, and Feinstein, R. Moshe, leading halakhic authority in U.S. Jewry (Responsa Iggerot Moshe, Even HaEzer, 1:59).Google Scholar This halakhic perception shows a parallel with the doctrine of the wife's domicile in English law. See Dicey, and Morris, , The Conflict of Laws (London, Stevens and Sons, 10th ed., 1980) 667–9.Google Scholar

²⁵ Jeremiah 31:22.

²⁶ See Responsa Iggerot Moshe, Even HaEzer 2:12, where it was ruled by Moshe Feinstein, contrary to his abovementioned responsum (supra n. 24), that the wife had to continue her ancestral custom rather than adopt that of her husband—the distinction between the two cases being based on the strictness with which the husband observed his custom and the measure of harm which the wife's maintenance of her own custom might occasion their conjugal harmony. The perception, even in the preservationist view, that the wife's adherence to her ancestral custom had to bow to the consideration of family harmony, may perhaps serve as an ideological argument in favour of the fusionist approach. For, if household harmony is to be preferred above ancestral tradition, why should not national and communal harmony equally be preferred above community traditions.

²⁷ See Shulhan Arukh, Hoshen Mishpat, Hil. Mikali U'mimkar 207:16.

²⁸ In a decision of the Great Rabbinical Court on this issue, where both parties were members of the Sephardi community, the claim for enforcement of an agreed penalty clause was dismissed. See 3 P.D.R. 131. If the parties had belonged to the Ashkenazi community, the claim would presumably have been upheld. As to the like claim, in the case of “mixed” couples, the situation remains in doubt.

²⁹ Yad, Hil. Ishut 10:7, 12:2.

³⁰ Mishnah, Ketubot 4:12. In the Jerusalem Talmud (Ketubot, end of Ch. 4), it is sarcastically remarked that the Galileans heeded their honour but not their property, whereas the Judeans heeded their property but not their honour.

³¹ Ketubot 54a.

³² Yad. Hil. Ishut 18:5; Shulhan Arukh, E.H. 93:3.

³³ Luria, Solomon, Yam Shel Shelomo to Ketubot, 4:48Google Scholar; Isserles to Even HaEzer, 93:3.

³⁴ “The Wife and her Deceased Husband's Estate”, (1950) 2 HaTorah VeHaMedina 9–18.

³⁵ Estate Late Miller v. Miller (1951) 5 P.D. 1312.

³⁶ According to those holding that the heirs cannot deprive the widow of her maintenance by payment of the ketubah, the husband's testamentary direction is of no import in the face of a valid obligation that is not given to cancellation or conversion without the widow's consent. See Shulhan Arukh, E.H. 93:3.

³⁷ 4 P.D.R. 225.

³⁸ See the Succession Law, 1965 (19 L.S.I. 58), sec. 56 of which secures a widow's right to maintenance out of the estate until she remarries. This right, moreover, is not forfeited by recovery of the ketubah, but recovery of the ketubah amount is a factor to be weighed by the court in determining the widow's right to maintenance and the measure thereof (sec. 59 of the Law). In this respect, therefore, the Israeli legislator has gone beyond the ruling of the “Judeans”, and that in the Miller case, in benefiting the widow.

³⁹ The Succession Law is of territorial application, extending to all. At the same time, however, the religious courts have retained jurisdiction to deal with matters of succession and to adjudicate according to the personal-religious law, with the consent thereto of all the parties concerned (sec. 155) In this context the controversy may still have certain importance.

⁴⁰ Yad, Hil. Mekhirah 11:16.

⁴¹ See case 1/15/707, Warhaftig Collection of Rabbinical Court Decisions, 148.

⁴² See the decisions of the Tel Aviv Rabbinical Court in 9 P.D.R. 226 and 9 P.D.R. 293.

⁴³ The decision was not published in the Rabbinical Law Reports, but its contents may be gathered from the decision given in the appeal.

⁴⁴ 4 P.D.R. 193; 3 P.D.R. 289.

⁴⁵ See 9 P.D.R. 751; 11 P.D.R. 173. It should be noted that R. Kafah's approach which precludes adoption of the linkage mechanism, compels the party who is entitled to maintenance to make frequent applications (in times of galloping inflation) to the court for variation of the sum of maintenance awarded in light of the changed circumstances. This situation not only burdens the person who is entitled to maintenance but is also inconsistent with the practice that has become established in the civil courts—since the ruling in Benin (Benin v. Benin (1975) 29 (ii) P.D. 46)—of treating the linkage of maintenance payments as a natural and routine matter.

⁴⁶ Deut. 25:5–10; see also “Levirate Marriage” in Elon, M., Principles of Jewish Law (Jerusalem, Encyclopedia Judaica, 1975) 403.Google Scholar

⁴⁷ Lev. 18:16.

⁴⁸ Statement of Abba Saul quoted as a baraita in Yevamot 39b.

⁴⁹ In Jewish law a bastard is a child born of a prohibited relationship, the penalty for which is death (at the hands of man or as a Divine retribution). Thus prohibited are adulterous unions (with a woman married to another) and incestuous relations (within the prohibited degrees of kinship) including relations with a brother's wife.

⁵⁰ Yevamot 39b. The rule originates from the Mishnah (Bekhorot, end of ch. 1) where it is anonymously stated, but in the discussion in Yevamot the rule is attributed to Abba Saul.

⁵¹ Yad, Hil. Yibbum 1:2; Shulhan Arukh, E.H. 145:1.

⁵² Tosefot to Yevamot 39b, s.v. “Amar Rav”, and see also Hagahot Maimoniot, Hil. Yibbum 1:1, from which it appears that the Tosafists themselves were divided on this issue. Nor, indeed, do the “Eastern” authorities show a uniform opinion on the matter, yet the general pattern of a community orientated halakhic division remains clearly discernable.

⁵³ Arukh HaShulhan, Even HaEzer 165:15. Ashkenazi Jewry's adoption of the polygamy prohibition in the 11th century, undoubtedly influenced the rejection of the levirate marriage institution, which otherwise would often have permitted a man to marry two wives.

⁵⁴ See Warhaftig Collection of Rabbinical Court Decisions, p. 47; see also Mishpetei Uziel, § 118. On the matter of yibbum and halizah the halakhic authorities have even had recourse to mystical writings and lent a practical efficacy to kabbalistic works.

⁵⁵ Jewish law has traditionally recognized the court both as a legislative and a judicial authority, the legislation coming by way of the enactment of takkanot (see Yad, Hil. Memrot 1:1–2). It is hard to picture Jewish law without the legislative activity of the courts throughout the ages. See Elon, loc. cit. at 74.

⁵⁶ See Kister, , “Takkanot of the Chief Rabbinate of Eretz Israel in Family Matters”, (1969/1970) Torah Shebeal Peh 49.Google Scholar

⁵⁷ Case 1/48/704, Warhaftig Collection of Rabb. Court Decisions, 49. On the merits the Court found it possible to oblige halizah in terms of the rule decided by the author of the Shulhan Arukh, since in this particular case the levir was married and of limited means insufficient for the support of two wives.

⁵⁸ Difficult to explain is R. Uziel's view that a majority of the halakhic authorities hold yibbum to take precedence. See Mishpetei Uziel § 119.

⁵⁹ Kister, loc. cit. at 57.

⁶⁰ Another mode of coercion, civil imprisonment, is prescribed in sec. 7 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953 (7 L.S.I. 139). The same Law also establishes the court's competence to oblige the levir to pay maintenance.

⁶¹ Responsa Yabi'a Omer, part 2, E.H. § 14.

⁶² The dispersion of the Jewish people was responsible for the lack of an authoritative halakhic centre for all Jewry, such as once represented by the Sanhedrin. The result was the evolution of local halakhic centres, with the conferment of authority on the Mara D'Atra, the local rabbi, the scope and weight of such authority often extending beyond the bounds of the time and place concerned and increasing or diminishing according to the standing of the rabbi concerned.

⁶³ Rabbi Ovadiah Yosef overlooked the distinction between ritual matters—which are mainly of individual concern, and family matters—which are of public concern and by their very nature raise constant “conflict of laws” problems in cases of “inter-communal” marriages. Rabbi Uziel, on the other hand, expressed his basic support of the use of the legislative devices entrusted to the halakhic scholars, with a view to the creation of a uniform halakhah, also in the area of religious life and practice. See Piskei Uziel, §§ 1 and 2.

⁶⁴ Levirate marriage is undoubtedly unacceptable to the Israeli public at large, and is often also in conflict with the prohibition of polygamy under criminal sanction (sec. 179 of the Penal Law, 1977)—a dispensation from which, in the case of Jews, requires the permission of the two Chief Rabbis, who are authorized to approve a levirate marriage in special circumstances. It has accordingly become the practice of the Rabbinical Courts to seek to persuade the levir to release the widow, even by way of obliging the former to maintain her. In rare cases of the levir's adamant refusal, the Courts have been ready to apply the halakhic exceptions under which lializah is to be imposed, even according to the view of the authorities who generally hold in favour of levirate marriage. See 1 P.D.R. 281; 6 P.D.R. 65; 8 P.D.R. 193. On the other hand, U.S. Jewry's eminent halakhist, R. Moshe Feinstein, decided to permit a levirate marriage between a Sephardi Jew and the Ashkenazi levirate widow, resolving the conflict of laws problem by reliance upon the Sephardi decided law and the rule that the wife “followed” her husband.

⁶⁵ There is indeed evidence of a trend in the Tannaic halakhah towards restriction of the husband's power to divorce his wife to cases of adultery or, according to another view, where there is some objective ground for so doing (Mishnah, Gittin 9:10). Yet a majority of the authorities have held that these Mishnaic statements were merely clarificatory and intended to serve as a guide. See Shulhan Arukh, 109 and particularly the statements of the poskim quoted in the Mishneh LeMelekh, Hil. Girushin 10:2. The only limitation in fact on the husband's power to divorce his wife is the imposition of pecuniary obligations on him (the ketubah) in the case of an “unjustified” divorce.

⁶⁶ Yad, Hil. Ishut 14:8. Maimonides, following the Talmud, distinguishes between a genuine plea by a wife that cohabitation with her husband is unbearable, and a like plea which is merely intended to get what she wants from him or as a punishment for his conduct. In the latter case a plea of ma'is alai will not avail to oblige the husband to a divorce against his will.

⁶⁷ See the statements of Rabbenu Tam, Tosefot to Ketubot 63b, s.v. aval amrah ma'is alai; Hagehot Maimoniot, Hil. Ishut 4:5.

⁶⁸ Shulhan Arukh, E.H. 77:2.

⁶⁹ See the decision of the Great Rabbinical Court in 3 P.D.R. 201.

⁷⁰ See Mishnah, Eduyot 1:5, and Habed thereto; Eruvin 46b.

⁷¹ 9 P.D.R. 171; see also Responsa Yabia Omer, part 3, §§ 19, 20.

⁷² Application of the “personal-community” law towards the solution of difficult problems in the family law area, is an accepted method in rabbinical adjudication, also on the part of those taking the fusionist approach. This was the path taken by the leading spokesman of those favouring a “territorial law”, the late Rabbi Herzog, in resolving the sad problem of a minor Yemenite girl given in marriage by her father. See Responsa Hekhal Yitzhak, ii: 18; see also 1 P.D.R. 19; Responsa Yahia Omer, part 2 § 2. Still, those who favour a liberalization of the divorce laws within the framework of the existing halakhah, propose that the Maimonidean rule be adopted, whether in direct manner or through the medium of Dayanim of Yemenite origin, in order generally to overcome a husband's obdurate refusal to divorce his wife. See, for instance, Falk, Z.W., The Divorce Action by the Wife in Jewish Law (Jerusalem, 1973) 123.Google Scholar

⁷³ The rule is summed up by Rabbi J.M. Epstein, in his Arukh Ha Shulhan, as follows (Hil. Gittin 119:11): “The husband divorces only with his consent and the wife is divorced with or without her consent.”

⁷⁴ It may be mentioned in passing that the Maimonidean rule was once adopted by the Ashdod Rabbinical Court in relation to a claim for divorce brought by the husband on a plea of ma'is alai (9 P.D.R. 150). On the other hand, it was held by the Tel-Aviv Rabbinical Court that the Maimonidean rule availed only a wife who could no longer tolerate her husband, since her physical weakness at such time left her no alternative but divorce (1 P.D.R. 321).

⁷⁵ It is instructive that the Gaonic Babylonian study academies, which were influenced by Islam's recognition of the husband's unfettered freedom to divorce his wife, equated the wife's situation to that of the husband and granted both the freedom to divorce one another. The Ashkenazi study academies, on the other hand, came within the sphere of influence of the Catholic Church, which entirely disavowed divorce, so that the husband's situation came to be equated to that of the wife, both being denied the right to divorce the other party against his or her will.

⁷⁶ On the takkanot of Rabbenu Gershom see: Finkelstein, L., Jewish Self Government in the Middle Ages (New York, Feldheim, 1964).Google Scholar

⁷⁷ The takkanot also prescribed exceptions: in cases where the wife could oblige her husband to a divorce under the Talmudic law, the husband was extended the same right, and likewise where the law rendered divorce imperative, as in the case of adultery. Such cases entitled the husband to divorce his wife without her consent, but it early on became the rabbinical practice to permit the husband another wife whilst releasing him from all obligation to the first wife if she refused to divorce him. The relief asked for and granted in such cases, was that of heternissuin (“permission to marry”) and not divorce. Thus rabbinical decision making has shown its adherence, formally at least, to the fundamental doctrine that divorce, like marriage, is a bilateral act in respect to which no third party, including the court, has any standing whatever.

⁷⁸ Arukh HaShulhan, E.H. 1:23 and 119:11. This factual determination, resting mainly on the statements of the 14th century Spanish scholar, Nissim Gerondi (Responsa Ran § 38), is reiterated in the pronouncements of the Great Rabbinical Court in the era of Chief Rabbis Herzog and Uziel.

⁷⁹ Shulhan Aruhk, E.H. 119:6—“He may divorce her against her will.”

⁸⁰ Ibid., at 1:10.

⁸¹ See Isaac Lampronti's Pahad Yitzhak, s.v. Shevuah nishbah adam le-hotno, where the author cites a series of responsa of prominent 16th century Spanish poskim in which the oath is treated as an accepted custom. See also Shulhan Arukh, E.H. 76. The oath may possibly have its historical origin in the Biblical relation of Jacob's oath to his father-in-law Laban that he would not take any other wives besides Laban's daughters—Genesis 31:50.

⁸² See Warhaftig Collection of Rabbinical Court Decisions, 50 and 105; also Mishpelei Uziel, § 96.

⁸³ The criminal offence of bigamy is established in secs. 175–178 of the Penal Law, 1977, replacing secs. 180–182 of the Mandatory Criminal Code Ordinance, 1936. The taking of another wife was allowed under both these Laws, in special cases where so permissible under the personal law applicable to the parties.

⁸⁴ See n. 56, supra.

⁸⁵ Responsa Tsits Eliezer, 10:46.

⁸⁶ This too is a disputed matter. The prevailing view is that the marriage conditions are governed by the law of the place where the marriage was contracted. See 3 P.D.R. 202.

⁸⁷ The opinion is to be found in Responsa Yabia Omer, part 5, E.H., 1, from which it clearly appears that this was a decision given in appeal against the judgment of Rabbi Waldenberg.

⁸⁸ Rabbi Yosef's disregard of the takkanah is no clear reflection of his attitude thereto, since his application to the matter of the law of the place of the marriage (Morocco) stripped the takkanah of any relevance.

⁸⁹ For the sake of accuracy it should be mentioned that there have been a number of decisions in which the takkanah was referred to, and even applied. However, these related to special circumstances such as the difficult case of a marriage between a Yemenite couple involving doubt as to the wife's age, in order to solve which the husband, who was also married to another wife, was compelled to divorce the plaintiff wife—on grounds both of the takkanah and the prohibition against bigamy (1 P.D.R. 33). The takkanah was also refered to in a case involving the unusual circumstances of a levirate marriage between a deaf-mute couple (7 P.D.R. 83).

⁹⁰ 10 P.D.R. 249; minority opinion in 9 P.D.R. 152; minority opinion in 11 P.D.R. 4.

⁹¹ See n. 83, supra. The Rabbinical Court system is an autonomous one as regards the substantive law by which it is internally bound. The provisions of the criminal law are rendered by the Rabbinical Courts as conditional and suspensive in a manner enabling them to divest these provisions of their penal effect. Their legal efficacy from the standpoint of rabbinical adjudication, in the opinion of some of the authorities, is therefore confined to serving as proof of the existence of an accepted custom in Israel, of territorial application to all communities.

⁹² See 9 P.D.R. 74.

⁹³ 9 P.D.R. 152.

⁹⁴ The regional Rabbinical Court's decision is fully quoted in 9 P.D.R. 149, and is based mainly on the fact that the children gave their unqualified support to the father, as well as the absence of any prospect of peace between the couple. Hala-khically, the Court relied on “liberal” sources relating to the husband's claim for divorce. These included Maimonides' ruling to compel a divorce on a plea of ma'is alai at the husband's insistance; also the opinion of Rabbi Elijah Mizrachi (16th century, Turkey) that the husband could free himself of his wife's maintenance and his pecuniary obligations to her by lodging her get (bill of divorcement) and ketubah, notwithstanding the ban of Rabbenu Gershom; and, further, the “liberal” outlook of Rabbi Hayyim Palaggi (19th century, Turkey) towards a divorce grounded on the absence of any prospect of matrimonial harmony. (In the latter's opinion any separation in excess of 18 months justified compelling the refusing party). These sources, particularly R. Palaggi's revolutionary approach, have met with strong criticism in rabbinical adjudication and have generally been halakhically rejected. It would seem that the difficult factual situation in the present case led to a deviation from the customary law, the legitimacy of which phenomenon has always been recognized by the halakhah.

⁹⁵ The third dayan sitting in the case, Rabbi Eliahu, likewise dismissed the appeal, but adopted a middle path in relating to custom as a source for applying the Herem, even to a couple of Eastern origin. In his view an Eretz-Israeli custom could serve as a legitimate legal source, but he interpreted the custom in a way rendering the divorce subject to the determination of the court according to its own considerations. In so doing he created a vicious circle which in effect deprives the Herem of all significance.

⁹⁶ See 11 P.D.R. 4. As stated in the judgment in 6 P.D.R. 152 (supra n. 93), an “Ashkenazi” ketubah which includes the Herem will also have to bow to community tradition, by virtue of the factual presumption that it was signed in an inadvertent manner, precluding the imposition of any obligation.

⁹⁷ The cases in which the husband will be given such permission, are generally those which provide the kind of grounds that would serve as a good basis for a wife's claim to compel her husband to a divorce. In order to prevent abuse of the takkanah, it was decreed by Rabbenu Gershom that the permission be signed by a hundred rabbis. Although of mere symbolical significance to-day, this requirement is still recalled in the name by which the permission to take another wife in exceptional cases is known, namely: the heter me'ah rabbanim (“permission of one hundred rabbis”).

⁹⁸ See the decision of the Great Rabbinical Court in 8 P.D.R. 36. See also: 11 P.D.R. 4, 2 P.D.R. 4, 2 P.D.R. 364; Responsa Yabia Omer, part 5, E.H. § 13. It may be noted that the distinction between the oath as a part of the private law, and the Herem as a part of the public law, is of importance in relation to problems of ultra petito or locus stanai of the parties. See P.D.R. 168; 2 P.D.R. 364.

⁹⁹ An ancient and touching saying concerning prayer, holds that each of the twelve tribes of Israel has a window in heaven through which the sound of its special prayer and melody is received. This is a picturesque statement in praise of a cultural pluralism that find legitimacy in the Jewish tradition. See Responsa Yabia Omer, part 6, § 10.