Saturday, May 17, 2008

A Woman's Full Autonomy In The Betrothal Process ("The Jewish Way")

Comparing patriocentricity to the practice of Orthodox Judaism according to Rabbi Maurice Lamm in “The Jewish Way in Love and Marriage

A woman of consenting age may refuse a potential mate, and Jewish tradition requires mutual consent, particularly the willing consent of the bride. This additional information offered by Rabbi Lamm further supports the legal rights of the bride and of the wife. Acquisition of a wife differs from all other types of “acquisition,” requiring the full, willing consent of the bride herself. The Biblical example of the betrothal of Isaac and Rebekah records how Rebekah's family discussed the matter but did not demand that she marry. She had full autonomy to either freely accept or reject the offer of marriage, a right that orthodox Judaism supports and defends for all women of consenting age. Witnesses that stand with the bride on her wedding day serve to attest that the woman's rights have not been violated in the process of betrothal, not to “transfer ownership” from father to groom.

From Pg 124:

One must exercise intelligent independence before uniting with another soul. The Bible surely did not imply an end to the child-parent relationship upon growing up; but the quality of that relationship has to change in order to accommodate emotional growth. Part of the wisdom required of concerned parents it to know when to hold on and when to let go.

Jewish law, which places so much emphasis on honoring parents, applies this theme in legal fashion to a case of conflict between parent and child regarding the child’s marriage. It affirms that a daughter or son must personally desire the mate he or she chooses. The Talmud says that “a minor daughter may not be married until she matures and specifies: “Him do I desire.’"

To a formal question as to whether a son must obey his father who protests his marriage to ishah ke’sherah (an upright Jewish girl), Maharik responded that the son should marry the girl he desires providing she is morally, religiously, and otherwise suitable. Until the child learns independence, there is no chance of learning intimacy.
From Pgs 153 - 154:

In Jewish law, taking a wife can never mean taking by force... An important part of marriage service is the assurance of the woman’s consent. Indeed, the emphasis on the consensual nature of the Jewish marriage contract is an ethical value that Judaism has taught the world. Contract law in England and America derives, to a large extent, from the Talmudic law on marriage contracts and its persistent emphasis on the voluntary participation of both parties.
The focal phase regarding consent in the Bible appears in Genesis (24:58) when Rebekah’s brother and mother ask her if she is willing to marry Isaac... The emphasis on her acquisition indicates – is the very first word of the first mishnah of the first chapter of the talmudic tractate on marriages – that the acquisition is dependent upon her consent.

Rashba, a noted thirteenth-century Spanish talmudist, asks why this emphasis was necessary, since no other contract could ever be made without consent. The answer is that a commercial transaction, entered into with only grudging consent made under duress, is valid. He quotes Maimonides who holds that in civil contracts, if we are sure that both parties consent, even though one of them does not specifically articulate “I agree,” the contract is nonetheless valid. Rashba says that while this is true in commercial transactions, it does not hold for the marital procedure. In regard to marriage, consent made under duress invalidates the whole process. The Jewish tradition will not permit a marriage to begin on this basis; it will not allow any circumstance at all to reduce the woman’s freedom to select as she desires.

Further, Kalman Kahana establishes that, with regard to property, only rights are being transferred. Rights, of course, also require consent; but even consent under duress is sufficient for the acquisition of a right. In regard to marriage, however, we are creating a new status, initiating a lifelong binding relationship that requires wholehearted, clear-headed, unflinching consent. For property acquisition we acquire only haskamah (consent), even though it will be unwilling. For marriage, the law requires daat (willing consent). Rabbi Hayyaim of Volozhin, a nineteenth-century scholar, holds that the primary purpose of the presence of witnesses is to testify to the woman’s willing consent.

Because clear consent is required, the ring given by the man must be of easily determined value. What appears to be a diamond might in fact be costume jewelry; the woman might be deceived. Perhaps she would have given consent to the marriage, but not willing consent, had she known its true value. She therefore has grounds for rescinding the marriage.

In the next post:

How a woman not only retains independent rights within marriage as well as her unique individuality.

Copyrighted material quoted here
under fair use for educational purposes from
by Maurice Lamm. San Francisco, CA: Harper and Row, 1980.