Legally Stealing and Supporting Agunas

Simple question. How can i get my neighbor's fancy new car without doing anything immoral or prohibited, but with a halachically valid sale?

I hope you will tell me there is no way to do it, and I hope you are seriously bothered by my attempt to find a way to do it. But I will throw out some suggestions for your consideration.

For starters we have to note the operative rule here which says if you force someone to give you a present (i.e. stealing) it is not a valid present, but if you force them to sell it to you then its a good sale. So if the neighbor gets some money for his car its a good sale. All I have to do is give him some money, not the full value of his car, and it is a valid sale, not stealing.

Now let's say we can find a solution to prevent him from using his car. Maybe we can pass a law prohibiting the use of the relevant model (I will take it elsewhere.). We can use any excuse. Maybe its not green enough. We won't allow off-track vehicles for everyday use. (the guy who has the car needs to get to work. The guy who wants it goes camping.) Even better - we will make a law that only people with a full-time job can own a car (He does not work full-time). The excuse is not important, anything that makes the car useless for him will do. So now the car has little value to him, so i can get it for a good price. It wouldn't even be immoral now to force him to sell it now for a token payment, since the only reason he won't sell it willingly is because he is bitter about our law, which was passed with the best civic intentions.

There is a third option which would work the best. We can find a bes din to declare his car hefker. Any challenge at that point would be a challenge against the foundations of society. We can't have every guy who is unhappy with the bes din's decision going around challenging their legitimacy. If we do this regularly we can even rely on our early hefker to justify the next one. Pretty soon only outcasts and bitter losers will ever complain, and they will have no legal basis for their complaining. Our appropriations will be unquestionably legitimate.

I think it is pretty obvious that the violation of private property cannot be justified because the sale is binding. Laws which are meant to force people to give up what is theirs destroy civic society and cannot be justified in the social interest. Using courts to expropriate property is the worst possible perversion of legal proceedings, as we use the institution meant to protect ownership as a tool for stealing.

Halacha prohibits forcing someone to divorce their wife (except as specified.) much of the contemporary aguna debate focuses on the question of how to extract the divorce without calling it forced. The problem with this debate is that halacha is meant to be observed. It is not meant as a challenge to us to find ways around it. We cannot respect halacha and find halachic ways to violate the halacha, any more than we can respect law and private property and find ways to legally steal.

The reason why people do not look at the divorce issue like this is because they see marriage and divorce as formal ceremonies, not as binding contracts. They have no idea why marriage should be binding on a wife after she lost interest in her husband. Private property they understand, so legally forcing someone to give up what is theirs is understood to be wrong. But marriage is not understood, so forcing someone to divorce is taken for granted.

Women are not chattel as the car is, and those advocating divorce are not intending to marry the women they liberate. Many people take this simple observation to mean that women cannot be bound to a marriage. They expect the beis din to force a divorce because once the women has practically left the marriage if we keep her bound to her husband we would be treating her like chattel. The marriage is dead, so how can we force the woman to still be stuck in a dead marriage?

This question again only states that marriages should not involve commitment. If the marriage is dead it is only because someone killed it, and they only killed it because they were allowed to do so. When someone says "the marriage is dead so why doesn't he divorce her already" that should beg the question "how can the marriage be dead and no one was penalized for killing it?" When as a society we allow a woman to declare a marriage dead with no penalty we have already then declared that marriage is not binding, even before the first woman walks out of her marriage.

Judaism respects the sanctity of marriage, just as its laws recognize the principles of private property. Marriage is a contract which is binding on both sides to respect, and which the larger society is committed to enforce. When one side walks out of the marriage, they have violated their contractual obligations. When the community then defends them as an aguna, they are actively supporting the violation of marriage.

Just a Formality

When discussing the halacha regarding divorce people are generally influenced by their understanding of what marriage is. Someone who sees marriage primarily in terms of its being a lifelong commitment will understand that the halacha does not make it easy to get out of it. Someone who sees marriage as a statement of love will never understand why a marriage should continue after the love is gone.

Most of the people on the pro-divorce side see marriage and divorce as formalities. Marriage does not actually create a commitment to live together. It is simply a statement of intent. However hopeful the couple is for the future, the fact that they married cannot actually commit them to each other at a future time. If the women wants a divorce she should not be prevented from marrying someone else after she has walked out of the marriage.

With this view of marriage, how can one make sense of the halacha that the man must divorce willingly? Divorce is merely a formal statement that the love declared at the marriage is gone. How can this simple acknowledgement be dependent on the husband's willingness to make the formal declaration? It is clear there is no love anymore and the marriage is dead, and that is why the wife is asking for a divorce.

If marriage is simply a formal statement of love and divorce simply a formal acknowledgement that the love is gone, then the halacha that the divorce depends on the husband is likewise a formality. It presumably has symbolic value, but no practical relevance, and should not be allowed to stand in the way of the woman's hypergamy.

On pesach we may not have chametz in the house. This is a symbolic law, and we freely respect the symbolic and formal aspects of the law while avoiding the simple practical implications by selling chametz. The chametz is still in our house and will belong to us after pesach, but we have fulfilled the symbolic instruction to remove it from our possession. On succos we must own our lulav, and getting one as a matana al minas lehachzir is completely acceptable. The transaction in both these cases is completely valid, but if we saw the laws as practical instructions we would not freely use these work-arounds. We would rather do our best to respect the spirit of the law and destroy our chametz and buy our own lulav. The reason we have no problem with these halachic workaround is because the mitzva is only symbolic and the symbolism is satisfied as long as it is formally satisfied.

The pro-divorce advocates see marriage and divorce as no different than owning your lulav and disowning your chametz. They see no reason to give any practical credence to the law that the husband must divorce willingly aside from the absolute minimum required to satisfy this purely formal requirement. Even discussing the issue is very disturbing to them - the point is to minimize the formalities, not to make them the primary issue in divorce, and definitely not to try to understand why this is the halacha.