Civil actions for acts that are valid according to religious family law but harm women's rights: legal pluralism in cases of collision between two sets of laws.
This Article analyzes the implications of legal pluralism when religious family law conflicts with state civil tort law. Refusal to grant a get (a Jewish divorce bill) in Jewish law, divorcing a wife against her will in Muslim Shari'a law, and bigamy and polygamy in Muslim Shari'a law are practices permitted by personal-religious family law that harm human rights. This Article seeks to answer the question whether tort law should overrule family law, with the proviso that it be applied sensibly when deciding family matters; or whether the two disciplines of law are complementary, in the sense that liberal tort law completes nonliberal religious family law by supplying remedies in the form of damages only, whereas religious family law determines exclusively the status (married or divorced). This Article further examines whether tort law and contract law should act independently in the area of damages, even if the indirect but inevitable outcome may be a change in marital status.
The case of a worldwide harmful practice, in which there is a tension (even collision) between two fields of law--religious family law and civil tort and contract law--is one of legal pluralism, which makes it possible for the two systems of law and courts to coexist. But should legal pluralism contribute to the creation of a more liberal society by asking that the message of liberal tort law be embraced? Or should legal pluralism promote a compromise solution and seek a middle ground in order to minimize the conflict between the contradictory views? This Article addresses these questions, presents the prevailing solutions being offered in the literature, and suggests a unique intermediate multifaceted solution. In doing so, it seeks to become the first in an extensive literature on legal pluralism, suggesting solutions (or at least platforms for solutions) to collisions, rather than merely providing descriptions of them, and thus helping to ease the tension between different laws and courts in the same state.
TABLE OF CONTENTS I. INTRODUCTION II. DAMAGES IN TORT LAW FOR ACTS THAT ARE VALID IN RELIGIOUS FAMILY LAW: A CASE OF LEGAL PLURALISM III. DIVORCING A WIFE AGAINST HER WILL AND BIGAMY OR POLYGAMY UNDER SHARI'A LAW A. Divorcing a Wife Against Her Will and Bigamy or Polygamy B. Does Tort Law Complement Religious Family Law? Legal Pluralism as a Compromise IV. REFUSAL TO GRANT A GET (JEWISH DIVORCE BILL) IN JEWISH LAW A. Refusal to Grant a Get B. The High Cost of a Possible Collision: Tort Law Circumvents Religious Family Law and Tries to Change Marital Status C. The Options Offered by Legal Pluralism in Case of Collision Between Two Sets of Laws 1. Tort Law Should Step Aside 2. Tort Law Should Call for a Change in Religious Law, but Not More 3. Civil Law Should Disregard the Collision (a) Tort Law Is Implemented Sweepingly. (b) Contract Law Is Implemented Sweepingly (c) Civil Remedies Should Not Be Granted Unless All Barriers to the Remarriage Are Removed: The "Get Law" 4. Tort Law to Be Qualified Ex Ante 5. A Special Joint Committee for Rabbinical Courts and Family Courts Should Be Created to Deal with Cases of Collision 6. Proposed Multifaceted Solution: Tort Law Should Be Implemented in a Sensitive Manner (a) A High-Level View: Get Refusal of Any Kind Is a Tort, and Damages Should Be Awarded According to the De Facto Proven Harm to Wives or Husbands (b) Not Awarding Future Damages (c) Tort Actions in Cases in Which the Rabbinical Court Has Not (Yet) Issued a Decree to Divorce (d) Tort Actions that Can Meet the Conditions of Jewish Law According to Ronnie Warburg's Approach (e) Alternative Torts V. CONCLUSION
The present study aims to analyze tort and contract actions for acts that are valid according to religious-personal family law, but at the same time seriously harm women's rights. This is a case study of the implications of legal pluralism when religious family law conflicts with state civil tort law.
The application of religious norms by legal systems of the state is deeply problematic in some countries that have retained colonial-era practices because they apply only a portion of religious law--religious family law, which does not support fundamental human rights in the same way as liberal laws do. (1) Refusal to grant a get (a Jewish divorce bill) (2) in Jewish law, divorcing a wife against her will in Muslim Shari'a law, and bigamy and polygamy in Muslim Shari'a law are practices permitted by personal-religious family law. In some countries, these laws constitute the state law in matters of marriage and divorce. In other countries, they constitute nonstate law, and cases of marriage and divorce are adjudicated before the private courts of the various religions, with judgments enforced at times by state civil courts. (3) These private courts have the authority to issue orders (e.g., that the husband should grant his wife a get), but they lack the power to enforce these orders or to impose any kind of sanctions such as imprisonment, removing a driving or professional license, etc. (4)
These practices can harm human rights. Until recently, tort law in various countries did not seek to intervene in family law even when criminal law in these countries perceived the acts as improper and regarded them as felonies. Few husbands have been indicted for the practices considered in this Article: refusing to grant a get, divorcing a wife against her will, and bigamy or polygamy. Recently, recognizing the harm that these behaviors cause to women, tort law has been introduced to adjudicate these practices.
The question of what constitutes "harm" under tort law is not trivial, and the answer has undergone many changes in recent decades. Where does one draw the line? Can a woman receive damages following her husband's tortious practice of refusing to grant her a divorce, or divorcing her against her will, or committing bigamy and polygamy by marrying another woman and thus harming her rights both economically and emotionally? To impose damages in these cases, tort law must overcome the main obstacle of common law immunities in intrafamilial tort actions that have been operational in some countries and in some cases still operate, albeit unofficially. (5) These immunities effectively block the access of tort law to the family arena because it is considered an intervention in the affairs of family law. Another, related reason is the reluctance to intervene in the autonomy of the family, even in cases of a family in crisis. (6)
The involvement of tort law in family life may not be surprising given that in recent decades, tort law has become involved in many types of issues that were previously considered taboo. Tort law recognizes the damage caused by these practices as harm even if this may affect marital status in family law. Tort action may be leveraged to obtain the primary remedy regarding status, thereby liberally shaping religious family law by directing husbands (who refuse to grant a get, divorce their wives against their will, or marry another woman) to reconsider their harmful acts. When the outcome of religious family law is not compatible with liberal human rights with regard to status, tort law seeks to eliminate harmful practices by awarding damages even at the cost of confrontation with religious family law and the religious courts.
Should tort law in some cases be independent in considering these cases? Should the solution to the collision between the laws lie in the examination of each case according to the objectives of tort law, or should there be some compromise between laws that have different objectives? Should civil law overrule family law in the case of conflict between the laws, but with the proviso that tort law be applied with sensitivity when deciding family matters? Or is it a question of complementarity between the two disciplines of law, in the sense that liberal tort law completes nonliberal religious family law by supplying remedies in the form of damages only, whereas religious family law still determines exclusively the status (married or divorced)? Can and should tort law act in the area of damages, even if the indirect but inevitable outcome may be
a change in marital status?
The case of a worldwide harmful practice, in which a tension (even collision) exists between two fields of law, religious family and civil tort (and sometimes also contract law), presents a case of legal pluralism. The tension arises because within a particular domain, there is competition between different legal systems that do not share the same source of normative authority. Although they apply simultaneously to the same behavior, each one bases its normative position on the behavior of a different source, and each one seeks to dominate the other with regard to damages and status. Legal pluralism reflects a situation in which it is possible at times for the two systems of law and courts to coexist. But does it also play another role? And if so, should legal pluralism contribute to the creation of a more liberal society by asking that the message of liberal tort law be embraced, understanding that the different points of view of the legal systems cannot be reconciled? Or is this solution not a pluralistic one in reality because pluralism means subjecting people to more than one normative order? (7) Does the preference of one system necessarily eliminate the other? Should legal pluralism promote a compromise solution and seek a middle ground to minimize the conflict between contradictory views and thereby help harmonize them, despite the fact that the two disciplines of law have different objectives? Should legal pluralism guide courts in interpreting tort law in a sensitive way, thereby releasing them from the classic formulation of the goals of tort law?
Part II of this Article introduces the case of damages in tort law for acts that are valid according to (state or private) religious family law as a case of legal pluralism. Part III discusses cases of divorcing a wife against her will and bigamy or polygamy under Shari'a law. Part III also raises the question of whether, in these cases, tort law actually complements religious family law, demonstrating that legal pluralism allows a compromise. Part IV addresses the case of refusal to grant a get in Jewish law and shows that there is a high cost to a possible collision in this case because tort law actually circumvents religious family law and tries to change marital status. In this state of collision between two sets of law, the question is raised of whether it is the role of legal pluralism to resolve the collision or merely to describe it, i.e., whether the role of legal pluralism is prescriptive or merely descriptive. This Article lists several possible solutions to the collision (including solutions not only from tort law, but also from contract law and civil family law), proposes a multifaceted solution for implementing tort law in a sensitive manner, and offers methods of implementation. Part V concludes by suggesting that there is room for breaking the stranglehold of state law recognizing only one agent: religious family law (a state-law agent in some jurisdictions and a community or private agent in others). This arrangement harms human rights. This Article recommends enabling tort law, always a state-law agent, to intervene and empower human rights by awarding damages. In the course of this intervention, any possible collision between the agents must be handled sensitively, with mutual respect between the agents.
II. DAMAGES IN TORT LAW FOR ACTS THAT ARE VALID IN RELIGIOUS FAMILY LAW: A CASE OF LEGAL PLURALISM
Legal pluralism addresses situations in which several legal systems operate concurrently in one social unit or sphere; (8) in other words, it describes cases of competing sovereignties and sources of law. (9) This paradigm struggles against the hegemonic perception of legal centralism, especially of the state as the sole source of the system of normative arrangements. (10) Indeed, the classic--but not only--form of legal pluralism is that of one state legal system versus one private, nonstate legal system, but the possibility also exists of a collision between two state-law agents. (11) Thus, legal pluralism often "criticizes the idea that state-made law is the only form of law used to regulate society, offering instead a polycentric or polymorphic concept of law." (12) Early scholars of legal pluralism emphasized the substantial social influence of nonstate, private normative bodies. (13) But in recent years, legal pluralism has also come to include global phenomena, referred to as "global legal pluralism." This form of legal pluralism challenges the notion of the state as the exclusive source of regulation and norm making in the international domain and highlights the increasing influence of nonstate regimes. (14) Another form of legal pluralism, relevant to the present case, relates to ideological diversity within national legal systems, (15) and it involves tensions between religious and secular-liberal commitments in family law. (16) "[N]early all mainstream studies [of sociolegal pluralism] have focused on sub-state or sub-national phenomena within a single country." (17)
Recent literature on legal pluralism presents two models of religious adjudication services. The first is the integrationist model, in which the state itself provides religious adjudication services in some types of cases, mainly in family matters: marriage and divorce. (18) This is the model employed in Israel and in some Muslim-majority countries. (19) Although legal pluralism in the state arena usually concerns nonstate law, (20) this is a different case. This Article focuses on this model because Shari'a and Jewish family law include personal-status laws for adherents to their religions, with adjudication in Shari'a and rabbinical state courts. All other family (21) and civil interspousal litigation, including tort actions, is conducted according to civil law in state civil courts. (22) To the extent a collision exists between the laws and the courts, it is a collision between different courts and laws of the state itself. The collision may be serious because it may lead to the perception that the state speaks with two different voices at the same time, with one state agent oriented toward human rights, the other less so, and neither court of law relenting because both have the power and the authority of the state.
The other model of religious adjudication services is the community court model, in which all state adjudication is secular, but nonstate private religious courts, operated by various minority and ethnic communities, serve as arbitrators. Occasionally, state courts enforce agreements arbitrated before these community courts. (23) As William Twining notes:
[L]egal pluralism studies did not break very far away from a weak form of state centrism: a great deal of the attention has been focused on the relations and interaction between non-state legal orders and the state. This includes not only studies of the responsiveness or otherwise of state legal systems, but also stories of resistance, "customary law" as a hybrid creation out of interaction between colonial rulers and locals who claimed to be or were treated as chiefs, spokespersons, or representatives of their people. (24)
This Article concerns family affairs, but it should be noted that in U.S. law there are manifestations of this model in other branches of law as well, at least since the 1940s. (25) In the United States, private religious courts of various religions (Catholic, Episcopal, Methodist, Presbyterian, Lutheran, Mormon, Amish, Jewish Orthodox, and Jewish Conservative) address a variety of issues--such as intrachurch monetary disputes, intrasocial sanctions against members of the congregation, etc.--not only matters of religious divorce. (26) Members of religious communities who have been punished by decisions of intracongregational tribunals turn to secular state courts against the community tribunals, asking for damages or injunctions. (27) The classic cases concern pleas against religious social remedies, such as ostracism, imposed because of conduct that conflicted with the behavior codes of the congregation. The claimants base their pleas to secular state courts on the ground that the decisions of the community tribunals are contrary to liberalism and human rights and therefore harm their rights. (28) They usually ask for damages or injunctions in cases of emotional, social, or economic harms. (29) One cannot find a unified U.S. approach in these cases, but in certain cases secular legal courts have intervened, mostly by awarding damages and at times even by granting injunctions. (30) The courts had to face arguments such as the free exercise of religion in the First Amendment to the U.S. Constitution, or arguments based on contract law claiming that members of the religious congregations had consented, at least implicitly, to the rules of the congregation. (31) Although these cases fall outside the scope of the present Article, similar arguments can be raised by husbands against women who marry according to Shari'a or Jewish law, namely that they had consented to the judicial outcome of the religious courts even if the rulings harmed their human rights. But at times litigants have no real choice, as in countries in which civil marriage does not exist. By contrast, in cases such as ostracism, the member always has the choice of leaving the congregation. In addition, many women, especially secular, but also Orthodox and even ultra-Orthodox, are not aware of the detailed halakhic (Jewish law) rules of marriage and divorce, as opposed to members of congregations who sometimes know well the rules of their congregation. But even if women are aware of possible outcomes of get refusal at the time of their marriage, most of them hope for a good future and do not believe that they will reach a state of divorce; therefore, they do not ascribe great importance to the fact that the get depends on the husband's will. By contrast, when a person enters a congregation, the person presumably is willing to assume all the commitments of that congregation.
In family affairs, the community court model is found primarily in North American countries and in EU jurisdictions. Collision is possible in this model, too, but at times less than in the integrationist model because the religious courts, unlike the civil courts, are not state courts. They are therefore likely to have less de facto power if they do not rule according to human rights principles, because state courts may not always acquiesce in their judgments and enforce them. (32) This Article addresses the community model as well, but it emphasizes that the more serious clashes stem from the integrationist model.
This discussion focuses on two models of legal pluralism when there is diversity within national legal systems. One of the agents is a state-law agent: civil courts that adjudicate according to tort law; the other consists of religious family law courts, a state-law agent in some jurisdictions and a nonstate-law agent in others. Both agents act according to their authority and power, but civil judgments for damages, which are in the exclusive jurisdiction of secular civil courts, may infringe in one way or another upon the exclusive jurisdiction of the religious agent. This does not present a classic case of potential conflict between liberalism of the state-law agent versus pluralism for the sake of the community or group. (33) In this case, liberalism and pluralism do not contradict one another. Often legal pluralism serves as an invaluable tool, especially for communities in multicultural societies, for preserving local cultures alongside state norms (usually liberal ones), thereby promoting cultural pluralism, (34) but the situation differs in this case because legal pluralism promotes liberal norms by enabling the legal intervention of tort law. Therefore, the problem of collision between the agents is best described by literature on legal pluralism, (35) which may also provide solutions. Indeed, matters of marriage and divorce; family law and private law; and minorities and relatively small groups, clans, and communities constitute the focus of many sociolegal pluralism studies. (36)
Some authors have emphasized the risks of legal pluralism creating potential incoherence or even collisions between regimes, legal systems, or legal disciplines; others, however, have pointed out the possible contribution of legal pluralism to the creation of a more liberal, democratic, and tolerant society. (37) The two ideas reflect different aspects of legal pluralism, not merely describing a situation in which there is multiplicity of normative systems, but also regarding legal pluralism as an ideal of reaching a compromise or aspiring to reach maximum harmony between conflicting normative interests.
Is tort law really on a collision course with religious law in cases of divorcing a wife against her will, bigamy, polygamy, or refusal to grant a get? All tort actions against spouses, ex-spouses, or a parent relate in some way to family affairs, but not all of them relate to family law (e.g., actions for violence, libel, slander, or abuse). (38) Certain tort actions reflect a "positive" and complementary interaction between the laws. For example, tort actions for child abduction or violations of visitation rights rely on findings and decisions given in religious or civil family courts, and actually assist family law in enforcing decisions. (39) Nevertheless, some actions are alleged to reflect a clash between tort law and personal-religious family law. These are matters of marriage and divorce under the jurisdiction of the religious courts, especially in cases in which religious family law validates the actions of one spouse, usually the husband, but liberal societies regard them as causing serious harm to human rights. In these cases, collisions often appear between different and complicated perceptions and values: liberal democratic on one hand, and nonliberal, traditional, and religious on the other.
The challenge of legal pluralism is to successfully settle the collision within national legal systems. (40) Alternatively, it may be argued that it needs merely to describe the collision. (41) Can state tort law complement religious family law that harms women's rights, or does the intervention of tort law necessarily collide with religious law? Does the intervention of one state agent in the affairs of another provide an incentive for the practice of forum shopping, which at times can be problematic?
In the next two Parts, this Article shows that it is possible to break the stranglehold of the exclusivity of religious family law (a state-law agent in some jurisdictions and a community-private agent in others) that harms human rights by enabling another (state-law) agent--tort law--to award damages to the injured party and in this way change a substantive right in one way or another. However, the cases presented by Shari'a and Jewish laws differ. In the cases of divorcing a wife against her will and of bigamy or polygamy under Shari'a law, discussed in Part III, the solution offered by legal pluralism may be simpler than that in the case of get refusal in Jewish law. The reason for this is that tort actions for divorcing a wife against her will and for bigamy or polygamy under Shari'a law do not affect marital status, at least not directly and in the short term, and they therefore intrude less into the affairs of religious family law than damages imposed for get refusal in Jewish law, discussed in Part IV.
III. DIVORCING A WIFE AGAINST HER WILL AND BIGAMY OR POLYGAMY UNDER SHARI'A LAW
A. Divorcing a Wife Against Her Will and Bigamy or Polygamy
A Muslim husband divorcing his wife against her will acts legitimately according to religious Shari'a law. (42) Although Shari'a
court judges prefer to order a divorce following a claim for divorce filed with the court and consented to by both parties, they must admit that, according to Shari'a law, the husband's act is valid even if it is carried out outside the court and even if it is one-sided, without the wife's consent. (43) The harms may be both monetary and nonmonetary. The divorcee often finds herself with no sources of subsistence, since in many countries alimony is not granted after divorce, only child support. (44) Moreover, in conservative societies, it seems that it will be very difficult for her to be married again. (45) Therefore, she can apply for monetary damages. (46) As to nonmonetary damages, she can claim intentional infliction of emotional distress (IIED), as well as shame and emotional distress for being divorced against her will. (47)
Tort law provides the injured woman the secondary remedy of damages, (48) but has no ability to grant the primary remedy of status. Damages cannot make her married again. Indeed, even if the husband wishes to remarry her (perhaps in exchange for renouncing the claim and cancelling the damages), this is not practical because Shari'a law requires that she first marry and then divorce another man before she can remarry her former husband. (49)
A similar example of tort law providing a secondary remedy involves polygamy or bigamy. (50) Here again the woman can apply for monetary damages if, as a result of a second wife, she receives less maintenance and support for herself and her children, and for nonmonetary damages if she can prove emotional distress due to the bigamy or polygamy. (51) But once more, the damages cannot change the status and cancel the other marriage.
B. Does Tort Law Complement Religious Family Law? Legal Pluralism as a Compromise
Implementing legal pluralism may result in a separation of the right to be married or to be a sole wife into two dimensions: status and damages. This separation seems possible, and it may be argued that it creates harmony between religious family law, which addresses the status aspect, and tort law, which addresses the damages. Ostensibly, the separation eliminates the collision, and legal pluralism succeeds in creating a more liberal and democratic society and harmony between two different disciplines of law without changing the status quo in those countries where family-personal law is conducted according to religious laws. As tort law is not supposed to affect marital status, the separation of the right into two aspects attests to the success of legal pluralism in finding a new and liberal solution--tort law--with the understanding that only religious family law can change status.
But this solution does not result in real harmony. To understand why, one must review the theoretical issues concerning the awarding of damages in cases in which a woman is divorced against her will or the husband takes another wife. It appears that the tort action solution has developed in steps. (52) Women recognized that family law represented a dead end and sought a solution in a different, liberal discipline of law. Tort law provided an answer to an ongoing problem, but no solid theoretical ground supported this solution. It was not created by legislature ex ante, despite the fact that tort laws (like criminal laws) have been present all along.
This Article argues that the courts should acknowledge these actions based on two main theoretical foundations. The first is an analysis of the goals of tort law: optimal deterrence, corrective justice, compensation, and distributive justice. (53) Optimal deterrence directs practice by causing husbands to think twice before perpetrating these evils, knowing that they must pay a price for them. The tort action, similarly to the criminal felony, serves as an incentive to prevent the harm. According to the Learned Hand formula, (54) the husband's precautions cost less than the expected monetary and nonmonetary damages, and Guido Calabresi's approach presents the husband as the cheapest cost avoider (55) and best decision maker. (56) Damages represent a correction of the evil (corrective justice and compensation). According to distributive justice theory, compensation enhances weak sectors of society (57)--in this case, women divorced against their will and women whose husbands married an additional wife. But it is important to state at the outset that this situation is highly inequitable and problematic from a distributive point of view, even if at first glance the tort action comports with distributive justice, as mentioned above. A rich man can exercise this religious right much more easily than a poor one, because if he really wants to divorce his wife against her will or marry another wife, he can afford it.
The second foundation lies in the work of Calabresi and A. Douglas Melamed, (58) who raise the possibility of protecting the same legal entitlements at times by a primary remedy (in this case, a change in marital status, such as remarriage or divorcing the second wife), and at other times by a secondary remedy (in this case, damages awarded in torts). (59) The categories of tort action can be analyzed using Calabresi and Melamed's "liability rule" in favor of the plaintiff. (60) According to this rule, the tortfeasor compensates the damaged party, providing a secondary remedy, but is not compelled to cease or change his activities. Because ceasing or changing activities falls within the exclusive jurisdiction of another system, the damaged party does not receive the main remedy it seeks. This is actually a case in which Calabresi and Melamed's liability rule in favor of the plaintiff may help explain and even justify situations in which a woman cannot achieve the primary remedy of her status under family law, i.e., to block the possibility of the husband divorcing her against her will or marrying another wife, and therefore pleads for a secondary remedy of damages in torts, perhaps as a type of consolation. (61)
Does the awarding of damages in tort law affect, if only indirectly, marital status in religious family law?
Allegedly, tort law is used here as a second option only, not as an absolute solution to the problem, and it does not make Shari'a religious family law more liberal or more modern. Therefore, the laws do not collide, and legal pluralism succeeds in supplying a solution that, although not optimal from the human rights aspect, nevertheless contributes to harmony between the laws and the courts, providing the best option available under the circumstances.
Reality is somewhat different, however. The awarding of damages in tort law does affect, if only indirectly, marital status in religious family law. A Muslim husband may act differently if he knows that divorcing his wife against her will or marrying another wife, although permitted under Shari'a law, carries a certain price tag, either civil (damages) or criminal (fine or imprisonment). Tort law may deter that husband and direct his behavior. He may act out of fear of having to pay extensive damages. In this way, tort law affects religious family law de facto, even if indirectly and not in the short term, and makes state law generally more compatible with human rights because fewer husbands will divorce their wives against their will or marry other wives without divorcing the first one. (62) This is true especially if the damages being awarded are sufficiently high to deter. In the case of bigamy or polygamy, it is difficult to imagine that following the tort action the husband would divorce his new wife or wives. Therefore, a tort action rarely results in a change in status, although it may achieve an indirect effect on future cases by creating a disincentive to act in this way. Therefore, this solution is the lesser of two evils and is preferable over inaction.
In a global sense, however, and from a general perspective, tort law fills a vacuum. It functions as a state control, apart from religious state or nonstate control, but in a way that harmonizes with the other two forms of control and does not breach the legal status quo. Nevertheless, Muslim husbands can divorce wives against their will and marry several wives. But given the secondary remedies, that conduct may cost them money. Because Shari'a law courts agree that this conduct is not prohibited (although not desirable either), they do not challenge secular civil law on this point, and each discipline of law handles its own matters. It is true that this arrangement leaves the religious right incomplete because of the threat of exposure to a fine, imprisonment, or tort liability; in other words, exercising the right has a price attached to it.
But note also the fact that liberal law similarly compromises its values, because the harmful practices may continue, although they may cost money, as in Calabresi and Melamed's liability rule in favor of the plaintiff. Thus, the law may convey the message that liberal society accepts these harms and does not combat them--it merely puts a price on them. Nevertheless, it appears that that this is the best compromise that legal pluralism can produce.
In sum, legal pluralism does not offer harmony between Shari'a and tort laws but merely a compromise. Even if this compromise partially harms religious law, it seems balanced and perhaps inevitable in an era of human rights. The presumption is that Shari'a law cannot be changed and made more liberal. Legal pluralism does not directly change marital status, and it retains some distinction between the laws and the courts. In practice, it seems that Shari'a courts and scholars are not challenging these tort actions.
This being the case, it appears that the solution provided by legal pluralism causes minimal harm to the opposing values. It does not abolish practices opposed to human rights, but it puts a price on them and in this way contributes to reducing the prevalence of these phenomena in the future. It does so with the understanding of tort law's limitations and with the knowledge that it cannot be used to change marital status directly and thus bring about a more human rights-oriented society.
It would be interesting, however, to consider the long-term effects of this type of pluralism. Could prevalent use of tort action affect the content of religious law over time? Will there be a real disincentive for Muslim husbands to act according to their religious laws because of the "threat" the price exacted by tort law? Are the different normative systems within a single-state apparatus operating with relatively little friction and not affecting each other at all?
IV. REFUSAL TO GRANT A GET (JEWISH DIVORCE BILL) IN JEWISH LAW
A. Refusal to Grant a Get
Tort actions brought in response to a husband's refusal to grant a get to his wife are problematic. Under Jewish religious law, a divorce cannot be obtained without the husband granting it of his free will. (63) Although consent constitutes a proper ground for divorce, each spouse may also demand to divorce upon justified grounds. (64) But even if justified grounds exist for demanding divorce, a judgment by the rabbinical courts does not by itself dissolve the marriage. (65) The role of the rabbinical courts, whether state or private, is to help enforce rights that already exist. (66) This means that the couple remains married until the delivery of a get, and both must agree to this act: the husband must grant it of his free will and the wife must accept it of her free will. (67) Although granting the get is usually a voluntary act, and a get granted by the husband under duress or coercion is invalid Wet me'useh), (68) a certain degree of monetary and even physical compulsion is acceptable (69) if it is carried out by a rabbinical authority according to Jewish law. (70) Thus, if the husband refuses to divorce his wife, she is considered an agunah--a woman who has been refused a get. (71) In this situation, she cannot receive the remedy of a valid divorce, and the very act of refusal causes harm (usually emotional distress). (72) This painful problem affects all classes of Jewish society worldwide, undermines women's autonomy, and causes them significant distress. In addition, the women cannot remarry, while husbands in a similar situation can receive, albeit rarely, special dispensation to remarry without a get. (73) Notwithstanding several proposals for a halakhic solution, the problem persists. (74)
Indeed, the problem exists throughout the world. As noted, in some states, e.g., Israel, religious law regulates the personal status of marriage and divorce; in others, civil law regulates that status. (75) Jews who regard themselves as bound not only by the civil laws of their state of habitual residence but also (by individual choice) by the precepts of Jewish faith may find themselves in a serious conflict. (76) For example: "A Jewish couple, married and domiciled in Israel, may move to a country which recognizes only civil divorces. Following an irretrievable marriage breakdown, one spouse sues for divorce and has the marriage dissolved by the civil court. Civil divorce is not recognized by Jewish law." (77) This would also be the case if the couple had married in both Jewish and civil fashion in a state that acknowledges civil marriage. If the husband refuses to grant a get, the wife is considered an agunah even if she is divorced according to civil law. Children that she may have in a relationship with another Jewish man would be considered unlawful (mamzerim) according to Jewish law (78) because an agunah cannot marry a Jew, unless the intended spouse is also a mamzer or a proselyte. (79) This is the case for Orthodox, ultra-Orthodox, and Conservative Jews. (80) For Reform Jews, civil divorce suffices, but if the divorced spouse later wishes to marry an Orthodox, ultra-Orthodox, or Conservative Jew, she or he would still have to obtain a get--a religious divorce. (81)
Here too, the presumption is that Jewish law cannot be changed and made more liberal, and therefore civil reform must be sought to overcome this religious obstinacy. (82) As Amanda Williamson explains, in countries in which there is separation between state and religion, the main difficulty arises when a recalcitrant spouse seeks a civil divorce without first obtaining a religious divorce. (83) The effect of this is twofold. First, the wife is generally unable to remarry according to her faith without jeopardizing her status (or her children's status) as a member of that religion. (84) Second, if the husband eventually grants a religious divorce, he may offer it at a high personal or financial cost to the woman, forcing an unfair compromise on property distribution and maintenance or contact with the children. This also holds true in countries in which there is no separation of state and religion. (85) Either way, the woman suffers harm, which can be remedied in principle by tort or contract law.
Superficially, the solution offered by legal pluralism in the case of get refusal should be similar to that offered within the context of Shari'a law in cases of divorcing a woman against her will and of bigamy or polygamy. In this case also, the outcome of the implementation of legal pluralism may be a separation of the right to be divorced into two dimensions: status and damages. But matters are more complicated in Jewish law. (86)
B. The High Cost of a Possible Collision: Tort Law Circumvents Religious Family Law and Tries to Change Marital Status
Tort actions for get refusal represent the pinnacle of interaction between civil and religious laws and between civil and rabbinical courts. Allegedly, in this case also, the goal of tort law is to provide a secondary remedy of damages if it is impossible to grant the primary remedy of status.
On the one hand, it seems that here too tort law is used as a second option, not as an absolute solution to the problem, as in the case of Shari'a law. Tort law does not make Jewish family law more liberal or more modern. On the other hand, a Jewish husband may act differently if he knows that while he may refuse to grant a get under Jewish law, he must pay a price for this conduct, either civil (damages) or criminal (fine or imprisonment). Here too, this is a case of optimal deterrence, because tort law may direct the husband's behavior and thereby influence religious family law de facto. This indirect influence makes the law generally more compatible with human rights. In practice, however, and in contrast to Shari'a law, rabbinical courts (beth din) are challenging this outcome, as discussed below, (87) and in some cases, the outcome is not necessarily beneficial to human rights. In these situations, legal pluralism does not achieve harmony, or even a balanced compromise.
In most of the civil actions filed, the plaintiffs (women who have been refused a get) attempt to obtain the get indirectly by means of a "two-way transaction": the husband grants the get in exchange for the wife waiving the damages awarded in the tort action. (88) But the case becomes more complex because of a halakhic problem: rabbinical courts claim that forgoing damages in exchange for the get constitutes monetary coercion, which would mean that the get has been unlawfully coerced and is therefore invalid from the point of view of Jewish law. (89)
Note, however, that there are some highly pluralistic halakhic opinions concerning the possibility of regarding the get as not being coerced because Jewish law acknowledges emotional distress as a cause of action, especially for preventing the wife from remarrying and therefore from observing a mitzvah (religious commandment). (90) The approach taken by Ronnie Warburg makes it possible to file a tort action in a rabbinical court or even in a secular civil court based on a construction of Jewish law whereby get refusal constitutes an emotional distress. (91) In many aspects, the distress does not directly relate to the granting of the get, but rather to the inability to remarry, have sexual relations, and bear children--all of which serve to prevent the observance of other religious obligations. (92)
Warburg argues that an agunah may be emotionally distressed because of the fact that she cannot remarry or have children, and such feelings are in principle acknowledged by the Halakha as grounds for a claim. (93) In all periods of Jewish law, including in contemporary rabbinical court rulings in Israel, decisors have imposed damages based on boshet (shame) and tsaar (suffering), for defamation of character, and for broken wedding engagements. Some of the justifications for these rulings are lemigdar milta (fencing the law), which is the attempt to prevent the wife from committing, a sin by living with another man while she is still married. The understanding is that if an individual prevents another from observing a mitzva, a religious commandment, the individual being precluded is entitled to monetary damages. The mitzva here is the populating of the world, and get refusal prevents the woman from remarrying and having children, therefore she may seek compensation for being unable to observe a mitzva and for not being able to engage in sexual relations. (94) Warburg explains that each of these claims is unrelated to divorce and therefore a halakhically legitimate demand based on the notion of kefiyyah ledavar aher (unrelated duress); that is, in many instances, upon receiving the get the ex-wife does not desire to remarry. (95) Indeed, her experiences with her husband may cast doubt on her ability to identify "the right man to marry" or generate negative feelings toward the institution of marriage, so that marriage is no longer an option for her. (96) Warburg also explains that the act of divorce does not inevitably produce a wish to remarry and therefore a tort action for tsaar or boshet. (97) Thus, a woman's monetary claim based on her right to marriage is independent and unrelated to the divorce, and therefore should be halakhically justified. (98) In other words, as long as the submission of such a tort claim is aimed to address a breach of an independent claim that is halakhically justified--in our case, the right to marriage and to bring children--and is sincerely desired by the wife for the reasons mentioned above and not simply as a means of pressuring the husband to grant a get, the subsequent granting of a get will be valid. (99) Thus, although her desire to obtain a get is needed before she can remarry, her monetary claim is linked directly to her manifest desire to remarry or to have children. (100)
Warburg also addresses the important question of intent in Jewish law: in our case the question of the possibility of acknowledging a claim that is ostensibly independent of the get but used for the purpose of compelling a husband to grant one. (101) There are two questions here: (1) whether there is a need for intent in order to initiate such a claim in rabbinical court (something that in most countries in which there is no separation between state and religion is not possible because the rabbinical court has no authority in this issue, and in other countries may be possible if the parties view the rabbinical court as an arbitrator) for determining whether a divorce is coerced; (102) and (2) how intent is to be ascertained: by noting whether anything is mentioned about the granting of a get when the tort claim is submitted, by assessing the wife's behavior, or by inference from the circumstances. (103) Warburg states that many contend that the mere mention of the matter of a get indicates that the claim is in actuality submitted to persuade the husband to divorce. (104) If the matter is not mentioned, we can assume that the wife's intent is to have the rabbinical court address the merits of her plea rather than for it to serve as leverage to procure her get. (105) Others contend that even a self-standing claim that is not linked to a request for execution of a divorce is problematic if there is an umdena demukhah (a proved presumption) that the claim was put forward primarily to procure a writ of divorce, and therefore any subsequent delivery of a get would be invalid. (106)
Warburg explains that in principle, a tort action of this type can be submitted to rabbinical court in addition to claims for parenting arrangements, child support, division of marital assets, and the delivery of a get, regardless of whether these matters are construed as not specifically mentioned in the arbitration agreement that empowers the rabbinical court to resolve these matters or as related to the matter of the get. (107) He explains that if both the husband and wife submit themselves to the rabbinical court's jurisdiction to address the end-of-marriage issues, should at any juncture during the proceedings the husband refuse to deliver a get, the court may acknowledge the wife's claim for either a monetary award (which ought not be excessive for get recalcitrance) or for emotional distress due to her right to marry or have children, or for her inability to observe the mitzva of marriage or of having children. (108) The rabbinical court can order the husband to pay damages, and if he refuses, the damages can be enforced in civil court. (109) If he does not refuse, he has the option of suggesting to his wife that, in exchange for granting a get, she waive her entitlement to the monetary damages. (110) In this case, the resulting get will not be considered to be coerced. (111)
Warburg emphasizes that it is only when a husband is threatened with harm, imprisonment, or death if he refuses to consent to a divorce, is the get unlawfully coerced. (112) If, however, the husband is threatened with a monetary claim that is too remote to rise to the level of coercion--and given that we are not sure whether a rabbinical court will agree that it is empowered to award such damages, nor is the amount of the award known in advance should such a decision be rendered--it seems that the get granted would not be unlawfully coerced. (113) The wife may threaten to submit a claim, never follow through with her threat, and never complete the two-fold transaction, which proves that she may not be interested in the get but in the compensation, and therefore, if the husband decides to grant her the get, it would not be unlawfully coerced. (114)
But Warburg warns that if rabbinical courts begin to award such damages, which then become "a clear and present danger" akin to the threat of imprisonment, the threat that such a claim will be submitted may make the execution of the get coerced. (115) Nevertheless, even if this practice were to become commonplace, the amount of the award would not be known in advance, and therefore the threat would remain remote and would not invalidate the get. (116)
He concludes by stating that deciding between the competing arguments relating to the propriety of the different types of tort claims for an agunah would be the sole prerogative of the posek (decisor). (117)
Note that in his opinion, the parties' signing of an arbitration agreement (shetar borerut) gives the rabbinical court authority to resolve this matter. Assuming that this decision complies with the rules of secular arbitration procedure, it would be legally enforceable in a competent civil jurisdiction in the United States. (118) Should the husband fail to agree to submit to the jurisdiction of a rabbinical court, the wife should receive permission from the rabbinical court, or alternatively from a rabbinical authority with expertise in this matter, to litigate the matter in civil court, contingent upon the monetary claim advanced in civil court being equally based on the parameters mentioned above. (119) Warburg emphasizes that should someone receive permission to file a suit in civil court,
it is extremely important that the individual consult with a recognized rabbinic authority who has expertise in Even ha-Ezer and Hoshen Mishpat and possesses legal and jurisprudential education in order to receive competent advice in preparing a claim statement and submitting expert testimony in civil court which will avoid the strictures of a get me'useh. (120)
This new and creative approach may not be widely accepted among rabbis, however.
These problems exist throughout the world. In Israel, these cases play out against the background of a longstanding jurisdictional struggle between the rabbinical and secular civil courts, both operated by the state. (121) The rabbinical courts regard the civil decisions as an intervention in matters of divorce, over which they retain exclusive jurisdiction. (122) Therefore, the mission of legal pluralism in this case is twofold: to find some compromise in the collision between the laws (religious-Jewish and civil-tort) and, especially in countries in which the rabbinical courts are state made, to find some compromise between the courts (religious-rabbinical and secular-civil). Indeed, in countries in which the rabbinical courts are private actors and not state agents, there may be a collision especially between the laws, and not so much between the courts. (123) In these cases, legal pluralism also faces the danger that a liberal civil law being implemented by a civil court may coerce the get and make it invalid.
The first civil actions for get refusal were accepted in Israel in 2004 (124) and in Canada (based mainly on contract law, regarding the marriage as a contract and the refusal as a breach) in 2007. (125) To date, several dozen judgments have been issued in various countries. (126) Dozens of other actions are pending before the courts.
Again, the courts should consider these actions based on two main theoretical foundations. The goals of tort law form the first theoretical basis for acknowledging a wide scope of intrafamilial tort actions. These actions play a social role, as a means of distributive justice, in promoting women's status in general and the rights of women who have been refused a get (an even more oppressed sector) in particular. The actions may also serve as a deterrent against refusal to grant the get, especially if damages are high. But in cases of get refusal, and given the fear of a coerced get, the halakhic dead end may de facto offset the social, distributive, and deterrent advantages of the claim. Because damages are used to achieve a desired goal (the primary remedy of the status), it is not clear that the goal of corrective justice is achieved, as the damages are not an objective in and of themselves. At the same time, it does not matter what the plaintiff does with the damages awarded to her. She can use them, donate them to charity, or exchange them for the get. The damages, especially if they are high enough, affect her bargaining position and give her the leverage she lacked before (127) if her husband was merely trying to blackmail her and extort money in return for the get. (128) Therefore, the action seems compatible with corrective justice, not contrary to it.
The other theoretical basis for acknowledging these actions is Calabresi and Melamed's liability rule in favor of the plaintiff. This rule can also fit tort actions in which the real objective is to use the damages awarded in order to obtain the primary remedy of status, in this case the get. Tort law tries to break out of the dead end in family law by causing the husband-defendant to reconsider his tortious act and provide him with an incentive to accept the two-way transaction: granting the get in exchange for cancellation of the civil judgment for damages. If the damages are sufficiently high, this transaction may succeed. It is true that in some cases the wife-plaintiff, for various reasons, seeks the damages and no longer wants the get. (129) But in almost all the actions, the woman desires to carry out the transaction and change her marital status following a civil-tort intervention.
The outcome is clear: there is no attempt to create harmony between the laws and the courts. The important outcome is that when religious family law lands a spouse at a dead end, a secondary remedy of damages remains possible. Tort law should challenge and eradicate harmful practices against women, even if the confrontation between the laws and the jurisdictions results in serious friction. The result can be the shaping of a modern family law that is more liberal than the existing religious laws. This process is carried out by tort law.
But the price for this liberalization may be high: a collision between laws and between courts, with the latter more evident and more challenging primarily because both court systems are operated by the state. The collision between the courts, or even between the laws only, may result in the rabbinical courts declaring a get that has been granted following a tort action and a two-way transaction as coerced and therefore invalid.
When there is a collision not only between the laws, but also between the courts--as in Israel--the situation is even worse. In the liberal view, women hold an inferior status in rabbinical courts and in Jewish family law. (130) Therefore, rabbinical courts regard these actions as a conspiracy to improve women's status and rights in rabbinical courts by unlawful means. (131) In the opinion of rabbinical courts, tort law does not complement Jewish family law, but rather contradicts or circumvents it, even if the possible change in status is indirect. (132) The change is indeed indirect, because tort law provides only damages, (133) and the parties themselves conduct the transaction that exchanges the get for the cancellation of the damages.
In practice, rabbinical courts in Israel have decided to block all divorce litigation of women who have filed civil actions for damages. (134) This practice is not always carried out, and occasionally there are silent agreements between the parties to go ahead with the divorce in exchange for withdrawing the civil action. At other times, however, it is carried out. In any case, the rhetoric remains impassioned, and the struggle over jurisdiction between the courts seriously escalates. Ostensibly, if the husband agrees to the transaction, neither party has an incentive to tell the rabbinical court about the civil action. But observant Jews may not hide this information from the rabbinical courts because the get issued following a civil transaction may be invalid, as mentioned above, and even can be annulled later, ex post, if the true facts are revealed because res judicata does not apply to a get. (135) If the rabbinical court learns about the tort action and the transaction after the divorce, it may retroactively declare the get to be invalid, which means that the woman, who in the meantime may have married another man, remains married to her first husband. (136) In this case, Jewish law prohibits her from living with either man and deems any children from the second man to be unlawful. (137) This is a possibly serious and harmful outcome of legal pluralism, which clearly does not create a more human rights-oriented law in practice.
In theory, here too the rights are separated into status (the exclusive jurisdiction of rabbinical courts) and damages (the exclusive jurisdiction of civil courts). In practice, however, the case of get refusal differs from divorcing a wife against her will and bigamy or polygamy because the separation into status and damages is not real or clear-cut, since the damages may be used to achieve a change in status. This is impossible when divorcing a wife against her will and in cases of bigamy or polygamy. (138)
Thus, legal pluralism tries to shape nonliberal family law by using liberal tort law, but the cost may be high both at the state and personal levels. At the state level, the problem lies in an escalation in the struggle over jurisdiction between the courts, especially in countries in which both courts are state agents. One undesirable outcome is forum shopping, in which each spouse tries to use the laws and courts that better serve his or her interests, at times resorting to one set of laws (tort law) in order to fight another set of laws (religious family law). This means that although the status can be changed only in religious courts, the appellant uses the secular court to try to change the status indirectly in a way that may be considered as manipulative. At the personal level, the danger is that rabbinical courts will not permit the divorce when they learn about the tort action, or worse, abolish the divorce retroactively, resulting in serious harm to the woman, who ends up precisely where she was before filing the tort action, with fewer resources and emotionally defeated. This serious danger also exists in countries like the United States and Canada where the rabbinical courts are private and do not struggle with civil courts over jurisdiction. (139) In these countries, if a woman is divorced in civil court and not according to Jewish law, although the marriage was contracted in both fashions, she is considered divorced according to state law but married according to Jewish law. (140) From a halakhic perspective, this situation is highly objectionable: if the wife remarries, her new marriage is not considered valid, and she is forbidden from living with either the new or the original husband. (141) Therefore, the original husband must later grant her a get. (142)
As Talia Einhorn explains, this situation also poses a constitutional challenge for civil courts in Western civilizations, since the separation of state and religion is enshrined in the constitutions of Western states. (143) The recalcitrant husband often argues that granting a get against his free will would encroach on his freedom of religion. (144) An overwhelming number of courts in the United States, Australia, the Netherlands, and England have rejected those allegations. (145) As shown below, these courts have accepted that the get procedure is a release document devoid of religious connotation and handle the issues primarily through contract rather than tort law.
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|Title Annotation:||I. Introduction through IV. Refusal to Grant a Get (Jewish Divorce Bill) in Jewish Law B. The High Cost of a Possible Collision: Tort Law Circumvents Religious Family Law and Tries to Change Marital Status, p. 823-858|
|Publication:||Vanderbilt Journal of Transnational Law|
|Date:||May 1, 2013|
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