The daastorah blog has a teshuva up from Ovadia Yosef on the subject of forcing a get when the woman is not interested in the marriage. Ovadia Yosef leans towards forcing divorce, and he provides plenty of suggestions why, but he fails to actually explain his position. His teshuva is more of an obfuscation than an analysis of the halacha.
The first thing that stands out in his teshuva is the wealth of sources he brings, This is meant to impress, and no doubt most people reading it see this as the strongest part of the teshuva. It is the weakest. The volume of sources he brings - with minimal or no analysis - merely serve as a diversion. There is no way to argue with someone who throws out so much material. Even if you refute one proof, there is a whole lot more, and by the time you move on to the next one, the arguments against the first are forgotten. There is no solid construction here, just too many sources to argue with.
One problem with the multitude of sources is that there is no reason to assume consistency between them. Do they all make the same arguments, in which case he is simply presenting overwhelming evidence for his position? No, they all say something else. He is not showing a preponderance of evidence, but multiple arguments which may each be relevant or not.
Likewise, he does not analyze each opinion and ask how it relates to the case at hand. Every teshuva is given for a specific case, with many factors contributing to the conclusion. A teshuva cannot be freely quoted without reference to the full argument, but that is what he does here. From a rhetorical position this shifts the burden of proof from himself to his reader. He does not prove his position here since there is too much which he does not address, by simply quoting conclusions without any discussion of the context and relevance. So now the burden is on anyone who wants to argue with him to study each source and refute them all. But in halachic discourse, as in any intellectual discipline, the burden of proof is on the one making the argument. He must present an argument which is convincing by itself. Here we have an argument which is ultimately an appeal to his own authority, with the burden shifted away from him. He is saying "trust me, all the sources I gave actually do support my conclusion, even though I have not actually shown you how." This is obfuscation, not proof.
The teshuva starts out by giving two strong reasons to force a get - one that the couple is teimani, who always pasken like the Rambam, so we may force a get simply for maus alai, and two, that since the wome was forced into the marriage, we can force a get even not according to the Rambam. I am unfamiliar with the discussion on the second point, so for now I will take it as an accepted fact. The first point is also good. Had he stopped here, I would not have seen any reason to comment on the teshuva, but what comes after is undoes the strength of the opening arguments. The obvious question is, what took them years to force a get? If a get may be forced, it can be done immediately. It seems that the beis din did not really believe that they could force a get, but after years of this dragging on, they decided to look for a solution. That would mean this whole argument was attempting to defend a pre-determined conclusion.
A second problem is that he then wants to rely on the opinion that a get which was incorrectly forced is kosher bidieved. I do not have his referenced teshuva available, so I do not know the sources for this, but the Rambam is very clear that free will is midioraissa, and a forced get only works because deep down he wants to do whats right - so if the get was incorrectly forced, it is very hard to see how the Rambam can possibly be one of those who say it is only possul midirabanan. But these are teimanim, and everything must be done like the Rambam. If he wants to use the Rambam to force the get, then rely on sofek dirabbanan for incorrectly forcing the get. This is a contradictory argument.
His initial discussion of the primary question of forcing a get on maus alai does not quote his sources. He basically writes that the opinion of the Rambam was widely accepted both before an after his time, even though later it was widely rejected. He does not give a source for this, and the poskim who reject the Rambam - which is almost all major poskim of the late rishonim - definitely do not seem to think this was widely accepted before their time. See for example the Magid Mishna on the Rambam, Ishus 14:8 who says the psak of the Rambam is not accepted. So Ovadia Yosef wants to roll back a few hundred years of not going like the Rambam, by simply claiming that before that it was accepted. As a secondary point, he does not bother to address what other changes may have been involved which would affect this psak, for example, the relevance of losing a kesuba when saying maus alai, which today is not a serious issue. So what we have is an accepted psak not like the Rambam, including the Bet Yosef, and Ovadia Yosef saying we should go with the Rambam anyway because way back they used to do that.
After suggesting the proper psak should be like the Rambam even though it is not accepted, he quotes a number of teshuvos without telling us what they said. Look it up yourself. He tells us that based on those teshuvos it is proper to rely on the Rambam when we can combine other considerations, specifically if there is a sfek sfeka. Since he does not actually discuss what these teshuvos wrote, there is no way to know how he reached his conclusion. As I wrote above, he is shifting the burden of proof to the reader.
Another problematic argument in teshuva, which I will not properly address, is the following: "since today we are not talking about beating him with sticks, but only putting him in jail, and today's jails are nothing like what they had in the olden days, it is considered a sfek sfeka dirabanan". While he initally argued that we may force the get, now he wants to argue the get will be kosher even if the halacha does not allow us to force it. Here his main arguemnt is that the sort of force he is using is not real force. But he gives no reason to support this. Zero. It is simply an assertion, no sources, no backup. And quite baseless from a logical standpoint. Jail is meant to compell him to give a get, and it works. How can that possibly not be called forcing him to give it?
These are my basic thoughts on the raw halachic arguments he presents. There is a lot more to point out about his practical arguments, but not for this post.
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