TY - JOUR
AU - Rivlin, Ram
AB - Abstract Threatening to withhold Jewish divorce in order to extract concessions, which I term here the “get-threat,” is widely regarded as extortionist. Yet this view is commonly associated with skepticism towards agreements stemming from unequal bargaining power, or with a progressive view of the proper divorce regime. Building on contemporary discussions of what is known as “the paradox of blackmail” this article argues that in many cases get-threats should be regarded as simple cases of extortion even by libertarians and conservatives. It then presents and analyzes the best possible statement of defense for the practice of get-threats, designed for the “reasonable reactionary,” showing that even from that point of view get-threats should be limited in scope and magnitude to a narrow range of cases of justified, reasonable demands. The article thus offers both a precise analysis of a longstanding debate and a normative argument for its proper resolution. 1.Introduction According to Jewish law, marriage can be ended either by the death of one spouse or by the husband willingly giving the wife a writ of divorce (get), which she willingly accepts. Thus, the modern-day agunah (“a woman who is chained to her marriage,” pl. agunot) problem arises when Jewish husbands utilize their legal power to withhold the religious divorce.1 Some do so out of a spiteful desire to cause pain to their ex-spouse, a patriarchal wish to prevent the wife from forming a new relationship, or a difficulty in adapting to the relationship’s disintegration. This article, however, focuses on another possible motive: the use of the religious divorce as strategic leverage in negotiating a settlement, for the sake of extracting financial (or other) gains. In this fashion, a husband might threaten to withhold the divorce unless his wife accedes to a demand he makes during the negotiation. The message has the following structure: “If you do not perform some act Φ (usually—waive some legal right or pay an amount of money), I will not give you the get.” I shall term this phenomenon a “get-threat.” This practice has drawn harsh criticism. Yet what exactly is wrong with it? More specifically, get-threats are widely regarded as a case of extortion.2 In other circles, by contrast, they are regarded as merely a “method of persuasion,” which—while not nice or noble—is still a legitimate “hard-bargaining” strategy and an inevitable part of real life. Similarly, among the judiciary, courts sometimes have been willing to void divorce settlements signed under get-threats for duress or such,3 while other courts have been much more hesitant to do so, insisting on the need to respect the parties’ bargain.4 At first glance, there seems to be a twofold explanation for this dispute: First, it is an instance of the general debate regarding markets, freedom of contract, and the fairness of negotiated agreements in the face of unequal bargaining power. Accordingly, market opponents see settlements signed under get-threats as cases of unfair and unconscionable bargaining, especially given the gender inequalities they both reflect and reinforce, while market supporters see them as reflecting the free choice of rational parties who privately negotiate the terms of their separation. Second, the dispute is an instance of the general debate regarding the proper divorce regime. The liberal-progressive camp insists on the appropriateness of divorce upon demand or due to the breakdown of the marriage, making the refusal to divorce illegitimate. In contrast, conservative or reactionary circles uphold the more traditional divorce regime, which rejects unilateral divorce and hence legitimizes get-threats. This initial observation seems apt regarding the general affiliation of the major voices in this debate. If that analysis is true, the critique of get-threats is limited to either left-wing or progressive circles, and there seems no reason to expect to find allies in the fight against this practice among other circles. Moreover, even among those who object to get-threats, it is not always clear exactly what makes them a case of extortion or abuse, relative to other nasty negotiating techniques, or to cases of exploiting unequal background conditions. The goal of this article is to make the case for seeing get-threats as not only unethical or abusive behavior, but as extortion in the strictest sense. The importance of this discussion goes beyond its relevance to the Jewish population: it bears consequence to any legal system that provides a spouse with a substantial power to withhold unilateral divorce, by stipulating a substantial difference between consented and contested divorce (by way of waiting period or financial consequences). In all such legal regimes, a spouse might wish to pose financial demands in exchange for accelerating the divorce through cooperation. Understanding the morality of get-threats will thus equip us also with tools to normatively evaluate such cases, though a full argument about this question goes beyond the aim of this article. The discussion proceeds as follows. After providing the proper philosophical background in Section 2, I argue that, in many cases, the view that sees get-threats as a case of extortion should be shared by many, without hinging on left-winged critique of markets or private ordering (Section 3). I then assess the possibility of extending the critique of get-threats beyond liberal-progressive circles (Section 4). In Section 5, I articulate the possible ideological commitments stemming from the conservative or even reactionary view of divorce, and demonstrate why and when get-threats should be seen as extortion even from such a point of view. The article thus offers both a precise analysis of the longstanding debate and a normative argument for its proper resolution. In order to offer this breakthrough, I suggest utilizing a body of literature in normative ethics that is not usually invoked in discussions of either Jewish law or family law. I wish to draw on what has earned the name “the paradox of blackmail.” 2.Philosophical background: Extortion and “the paradox of blackmail” 2.1.Extortion, coercion, threats, and offers Extortion, namely obtaining something of value through coercion, is usually a serious crime. A threat to burn someone’s business unless paid for providing “protection” is indisputably wrongful. The wrongfulness does not stem from the threatened forbidden act itself, an act which may never be performed. It stems from the way the threat affects the recipient’s volition, inducing her to succumb to the demand, in a context where consent is required.5 This is why there is usually a reason to see the victim as exempt from any obligation extracted through coercion, which will typically constitute duress. Threatening to wrong the victim is part of the instillment of fear in the victim’s mind, as well as part of what explains the coercive nature of extortion, since it illegitimately restricts the choice available to the victim. Thus, extortion is about coercing the victim to do what the extortionist demands.6 While Marxists tend to identify coercion or exploitation in many consensual transactions, even libertarians would agree that some transactions are coerced. But what exactly constitutes coercion? In a seminal article,7 Robert Nozick presented an analysis of coercion as a case in which the coercer (A), who wishes his victim (B) to perform some act Φ (or refrain from so acting), indicates that if B will not Φ, A will bring about an outcome which shall turn B’s decision not to Φ less preferable to B than Φing, whereupon B indeed Φs in order to reduce the probability of bringing about that outcome. The heart of this explanation relies on distinguishing “threats” from “offers”: in both threats and offers, the conditional claim (proposal) is designed to affect the motivational basis of the recipient’s giving something to the communicator, relying upon the recipient’s expected preference. The distinction lies in the way in which the communicator (A) tries to induce the recipient (B) into choosing the course of action that A finds preferable. An offer consists of proposing to provide gain to B if that course of action is chosen. On the other hand, a threat consists of proposing to inflict loss if it is not chosen.8 The only thing left is to identify the baseline that distinguishes loss from gain.9 Without attempting to summarize an extensive and sophisticated literature here, it is safe to say that on a widely accepted view this baseline should be normative, namely it should rely on whether or not the proposer indicates that if the recipient resists the demand he will make the recipient worse off than the recipient ought to be.10 In other words, a conditional proposal is a threat if it would be wrongful to carry out the threatened act.11 Accordingly, what distinguishes the pharmacist from a robber—both offering the choice of “your money or your life”—is that the pharmacist may refrain from handing over a requested medicine unless paid, while the robber is not entitled to kill his victim. Indeed, this view stands at the heart of the usual doctrines of both extortion and duress.12 To sum up, extortion is wrong since it uses coercion to obtain something of value without the owner’s valid consent. Coercion is composed of a threat—a conditional proposal to carry out a wrongful act, namely an act that will impermissibly place its victim in a worse situation than she ought to be. Hence, in order to find out whether a proposal is coercive, and whether a demand is extortive, we should inquire into the normative status of the threatened act. Yet before we can implement this formulation of the case at hand—the case of get-threats—we have to consider one further complication. This is where the “paradox of blackmail” comes into play. 2.2.The paradox of blackmail A threat to act impermissibly is coercive. But what if the extorter threatens to do something which is legally permissible? Here is where the legal and philosophical literature has introduced what is known as “the paradox of blackmail.” The leading example is revealing secrets: threatening to reveal someone’s embarrassing secret seems to be wrong, and indeed is often criminalized as extortion. Yet revealing the secret is permissible. Why is it impermissible for an agent to demand something in exchange for not performing an action he is entitled to do? The so-called paradox arises from the deeply intuitive sense that something is wrong with such an act, coupled with the difficulty of explaining why.13 Indeed, dozens of articles have been devoted to analyzing this problem and offering adequate solutions.14 Upon reflection, however, not all cases of blackmail are indeed paradoxical or even puzzling. It is now widely accepted that while coercion indeed consists of a threat to act impermissibly, impermissibility should not necessarily be limited to criminal impermissibility.15 There are cases in which threatening to act in a way that constitutes a tort, or even that is forbidden only from a moral perspective, would be harmful enough to cause the victim to succumb to the demand. While most grave harms are covered by the criminal code, there are cases in which for various reasons a certain behavior would not be criminalized, yet would nevertheless be clearly wrongful. A threat to wrong the victim in that view might be coercive, with no need for the wrongdoing to be criminal or even otherwise illegal. Thus, in the relatively easy case of blackmail, exposing someone’s embarrassing secret is wrong, and so conditionally threatening to do so is a threat to act in a morally impermissible way, which—if harmful enough—is coercive. Obtaining something through coercion is wrong for the same reasons that general cases of extortion are wrongful. In these cases of “non-paradoxical blackmail,” then, the paradox is eliminated rather than resolved. What seemingly involves a threat to act permissibly is actually a coercive threat to wrong the victim. A demand backed by such a conditional threat is a simple case of extortion. 3.The easy case for get-threats as extortion: A duty to divorce What implications does all of this have for the agunah and the problem of get-threats? It is easy to see that the paradox of blackmail extends beyond the informational context of revealing someone’s secret. Although that might be the most common or important exemplar, there are other cases of the same structure that raise the same puzzle: a conditioned threat to act legally, which seems wrong.16 Cases of get-threats, where one tries to extract things of value through a threat to withhold the get, have this very structure. Therefore, looking at this case through the lens of the problem of blackmail might prove valuable. Against this background, we can now sum our first conclusion regarding the easy case for get-threat as extortion, which arises in any case where it is wrongful to withhold the divorce. Note first that there are many cases in which withholding the divorce is wrongful even from an internal Halakhic point of view. While the Jewish Halakha grants the husband a legal power to preserve the marriage at his will, when the proper grounds for divorce exist, the husband might have a duty to divorce. Indeed, enforcing and implementing this duty is complicated, yet it is nevertheless a valid duty, and utilizing the power to withhold the divorce in those cases would be in violation of that Halakhic duty.17 In those cases, then, it is indisputably impermissible for the man to refuse a divorce demand, even from the internal perspective of Jewish law. Therefore, in those cases, a get-threat is actually a threat to violate one’s Halakhic (and supposedly moral) duty and commit an impermissible act. It is thus a case of non-paradoxical blackmail, which constitutes a case of simple extortion.18 Moreover, withholding the get might be impermissible also from the civil law perspective. In the United States, in Israel and beyond, withholding the get has been recognized in some cases as a tort.19 In such cases, it is hard to deny that a get-threat involves a threat to act impermissibly. Thus, many cases of get-threats should be treated as simple cases of extortion. Finally, the Halakha recognizes the possibility of someone’s being “a scoundrel with the Torah’s permission,” namely that the dictates of morality extend the scope of Halakhic norms. If chaining your wife is morally wrong, a conditional threat to do so is coercive. Since the normative baseline that distinguishes coercive threats from welcome offers hinges on morality, anyone who perceives the denial of divorce as wrongful should see get-threats as extortive, even when withholding divorce is not forbidden under Jewish law. Get-threats, then, are cases of non-paradoxical blackmail—they are puzzling only at first sight, while upon reflection they are easily seen as cases of extortion. This is a very significant conclusion. So far, many critiques of get-threats have hinged on a hostile view of markets and skepticism towards agreements signed under unequal bargaining power and background conditions.20 Similarly, many other critiques have relied on a progressive view of divorce law and on an insistence on the parties’ autonomy-based right to terminate their marriage at will;21 or else they hold that get-threats are unfair without being clearly forbidden. In contrast, my conclusion that many cases of get-threats amount to extortion derives from a libertarian perception of markets and agreements (recall that it is based on Nozick’s view of coercion!), and when the proper grounds for divorce exist, this conclusion should also be accepted by the most reactionary divorce-regime traditionalist. After all, it is the traditional order that includes grounds-based duties to divorce. Once such a duty exists,22 and its violation is expected to hurt the wife’s interests severely enough, a conditioned threat to withhold the divorce should be seen as extortion even by the most traditionalist circles of Jewish society as well as the most pro-market libertarians, who tend to approve any voluntary agreement and sanctify the freedom of contract. You do not need to be a liberal about marriage, or hold left-wing views about contracts, in order to support that position. If that is true, then abusing the get in the negotiation is a clear case of extortion in many cases, from most points of view! A few reservations are called for, however. If get-threats amount to extortion, this is the first step towards the possibility of thinking about criminalizing such a practice or holding that any settlement signed under a get-threat should be voidable for reasons of duress. However, this is only the first step. A final judgment should also take into account other relevant opposing considerations. Criminalizing get-threats might raise constitutional claims of freedom of religion, duress claims might be counterproductive in the case of a credible threat,23 and Halakhic doubts might arise as to the validity of a get delivered under such a legal regime. The reasons against prohibiting get-withholding might be also valid against legally prohibiting a threat to withhold get. These are complicated questions that merit discussion. Yet I wish to move on to the main part of my discussion, which extends beyond the easy case for extortion. This move is more ambitious: I wish to inquire whether get-threats are wrongful even when (or in the eyes of those who hold that) there is no inherent wrongfulness in get-refusal. 4.The complicated case: Debating the (moral) right to divorce within the Jewish tradition I have discussed cases in which Jewish law dictates a duty to divorce, despite granting the husband a legal power to violate this duty. In those cases, I contended, a conditional threat to violate the duty should be universally regarded as an attempt to get something of value through coercion, namely as extortion. This conclusion stems from the view that the phenomenon of coercion hinges on a normative baseline, namely what should be done rather than what is expected to be done. However, the problem of get-threats is more complicated. The duty to divorce emerges under Jewish law only in the face of specific grounds for divorce, which paradigmatically relate to a spouse’s wrongful behavior. In the absence of such grounds, the parties are free to divorce consensually, but they are also entitled to preserve their marriage.24 In other words, they25 not only have the liberty to refrain from divorce, but also a right not to be subjected to any kind of compulsion intended to make them consent to divorce as well as immunity from any change in their marital status obtained without their consent. Within this framework, it seems that from a Halakhic perspective it is indeed permissible to refuse a divorce demand in the absence of any ground. If so, we are back at square one, since in those cases a get-threat seems to be an offer to act permissibly! One easy way to resolve the quandary is to insist that it is never permissible to refuse a spouse’s demand to divorce, or—in a more moderate version—that it is no longer permissible to refuse the divorce once the marriage is essentially over, where there are no chances for reconciliation, or where the civil divorce has already taken place, which usually signifies the former. A possible line of reasoning is to advocate the recognition of such a ground for divorce within the Halakha, building on the doctrine of the “repulsive spouse” (ma’is alay) as an efficacious ground for divorce.26 Another way, as noted earlier, is to insist that one who does not divorce in such a case is violating his moral duties even if acting within his Halakhic rights, and thus morally wrongs his wife. According to this view, since the normative baseline that distinguishes a coercive threat from a permissible offer hinges on morality, the fact that divorce is morally required in those cases is sufficient to render the threat to violate this requirement a coercive threat. Either way, it relies on holding that withholding divorce is impermissible. However, both of these lines of argument are limited, since they rely on a specific view regarding divorce norms. This view has internalized modern sensitivities regarding marriage and divorce, including the stress on the parties’ freedom and autonomy; the centrality of mutual satisfaction and happiness during the relationship; the pointlessness of questions of fault; and the need to bridge the gap between the relationship that has died and its legal “shell”—the marriage. These sensitivities reflect a revolution of the last fifty years in the common Western view, and are indeed shared by many members of contemporary Western societies. Yet this is exactly where the difficulty emerges. These views indeed have become entrenched in liberal-progressive Western society of the last fifty years. However, they are rejected by many conservatives, within the Jewish community and beyond,27 who see such views as detrimental to the sacred institution of marriage and to the place of commitment and responsibility embedded in it. It is no surprise that voices in the Jewish community have joined the opponents. After all, traditional rabbinic Halakha rejects the idea of unilateral divorce, as well as the idea of the death of the marriage. Moreover, in some cases, such as where a spouse wishes to terminate the marriage in order to develop a new romantic relationship with a third party, initiating a divorce is considered to be a paradigmatic violation of the marital bond and a grave sin. Thus, Jewish opponents not only join other conservatives in criticizing unilateral divorce regimes, but their objection extends beyond that: relinquishing the traditional norms and adopting liberal and secular norms, instead, might signify the defeat and suspension of the unique ethics of Jewish law, which might jeopardize not only the sanctity of the Jewish family but also the sense of particular Jewish identity.28 Adopting the modern sensitivities thus poses a threat, in their eyes, to both the authenticity of the Jewish Halakha and the unique culture of Jewish society. These circles wish to preserve what they see as the authentic mutual consent regime of Jewish law, identifying the modern views as an attempt to corrupt the traditional sanctified views. They would like the Halakha and the Jewish community to stand immovably before the winds of change that reflect nothing more than moral decadence. While such a view is certainly debated within the Jewish community, one has to admit that this is a reasonable and prevailing interpretation of the tradition and the relevant authoritative sources.29 Therefore, as long as we do not wish to limit the objection to get-threats to the liberal circles in the Jewish community, we cannot rely on the liberal view of marriage. Is there anything we can say against get-threats also to those who reject the progressive view of marriage, which stresses one’s autonomy to exit from an undesired relationship? Can we extend the protection against get-threats also to an agunah who lives in a less progressive community, or even to those who are actually at fault for the marital breakdown, from a religious point of view? This is where I would like to call again upon the general discussion of blackmail, focusing now on really paradoxical cases of blackmail. After all, blackmail seems to be wrong even where one threatens to do something that is perfectly permissible—sometimes even obligatory—even from a moral point of view. For example, revealing someone’s secret might be permissible or even obligatory in some circumstances (as when someone holds a genuine interest in the content of the secret), yet a conditioned threat to do so still seems wrong and is often criminalized. Thus, beyond straightforward cases of blackmail, which present no paradox since they involve a threat to wrong the victim, confronting the puzzle of blackmail requires that we come up with a theory that also covers cases of threat to act in a seemingly legitimate way. This is where we can expect to find the resources to convince even those who do not see the refusal of divorce per se as wrongful to reject the practice of get-threat. Therefore, we have to deepen our inquiry into the paradox of blackmail. 4.1.Permissible act, impermissible action: Subjectivist solutions to the puzzle of blackmail The effort to unravel the paradox of blackmail has produced an extensive literature, with many sorts of proposed solutions. Yet what we are after is not merely an explanation for the wrong in blackmail, but rather a coercion-based theory, namely a theory that explains blackmail in terms of extortion—an attempt to gain something through coercion. Only such a theory of blackmail can justify seeing a get-threat as extortion, in the terms defined above. This kind of desideratum pulls in the direction of a special kind of theories of blackmail, which build on a subjective notion of right and wrong. They hold that while blackmail involves a threat to do something which is objectively permissible, some special character regarding the agent who threatens to perform the act renders this act impermissible. Such theories are “subjectivist theories of blackmail,”30 which are rooted in the idea that permissibility is a more complicated predicate than it seems at first glance. In order to clarify this subtle normative picture, it is helpful to evoke the useful distinction between “act” and “action.” As defined by William D. Ross, an “act” refers to what an agent performs, irrespective of the intention with which it was performed or any other characteristic beyond the physical event and the consequences it brings about. An “act,” says Ross, is the initiation of change in the state of affairs, while “action” refers to doing this act for a certain motive or reason.31 Thus, a possible route towards solving the paradox of blackmail is to show that while the threatened act is generally permissible, the threatened action—namely the act with the concrete mental states of the agent behind it—is nevertheless impermissible. Thus, blackmail will still be a case of a threat to perform an impermissible action, taking into account the agent’s subjective point of view. Such an approach to the puzzle of blackmail has gained wide support lately.32 In order for such a solution to work, we need three separate moves: First, we have to accept a coercion-based view of blackmail, which holds that blackmail is wrong for the same reasons that extortion is wrong. Second, we have to believe in an agent-relative subjective notion of permissibility, according to which motives, intentions, and such are relevant to the evaluation of permissibility. Third, we have to demonstrate how issuing a blackmailing proposal can serve as a sufficient indication for the existence of such a wicked motive behind the threatened action (were it to take place). Putting it all together, if an ill motive accompanies the threatened act in blackmail scenarios, and according to the subjectivist hypothesis such a motive renders this action impermissible, then the conditional threat to act in this way is coercive. Therefore, blackmail is equivalent to ordinary extortion, as a form of acquiring something through coercion, in a context where voluntary consent is required. Indeed, the view according to which motives or intentions are relevant to the permissibility of actions has a long history in moral theory. This non-consequentialist view of right and wrong rests on the distinction between intended and merely foreseen harm, a common distinction in both intuitive judgment and moral theory.33 A related view lies at the root of (at least one version of) what is known as the Doctrine of Double Effect. According to this reading of the doctrine, two acts, which are alike in their non-mental characteristics, may differ in terms of permissibility simply by virtue of differences in the agent’s intentions. Thus, for example, killing an innocent bystander as a side-effect of an attack on a military target is permissible, while deliberately killing her would be an act of murder. Similarly, diverting a running trolley in a way that will cause the death of one rather than five people is legitimate, but stopping the trolley by pushing a heavy person from a footbridge onto the track in order to block its way (hence saving the five at his expense) seems intuitively impermissible, even when this is the only way to stop the trolley. Presumably, this is because in the footbridge scenario the killing is not a side-effect.34 Intentions are thus intrinsically relevant to permissibility, and might render a permissible act impermissible. Why, then, should we think that the threatened act in blackmail involves an intention to harm the victim? First, the very fact of the conditioned threat indicates the threatening party’s belief in the harmful potential of the threatened act. Otherwise, there is no basis for expecting the threatened party’s acquiescence to the accompanying demand. Second, this harm is intended, since it serves as a tool for extracting money from the victim. In other words, while an act (such as revealing an embarrassing secret) might be justified despite its expected harm to the owner of the secret (due to possible benefits to others), in blackmail scenarios this harm is intended by the blackmailer, rather than seen only as a regrettable side-effect of the need to disclose the secret. A quick example may help: Suppose that Nathan might permissibly reveal Bathsheba’s secret to Bathsheba’s spouse, since the spouse deserves to know the truth and that outweighs the expected harm to Bathsheba. However, if Nathan threatens to reveal Bathsheba’s secret unless she pays him, he intends the harm to Bathsheba rather than to benefit the husband. This is made clearly evident by Nathan’s expected reaction if Bathsheba were to tell him that her spouse already knows the truth or volunteers to confess herself. This would foil Nathan’s plan to extract money from Bathsheba. Her harm is therefore not a regrettable side-effect of revealing the secret, but rather Nathan’s means to an end in threatening to do so. He thus threatens with an action of causing intended harm, a conclusion derived from the inner logic of the blackmailing proposal. Elsewhere, I have tried to offer a full exploration of this line of argument.35 However, relying on such a view in our inquiry regarding the morality of blackmail might turn out unproductive. This is because in recent decades the view that the intentions of agents are relevant to the permissibility of their actions has been more often doubted than defended.36 What matters in terms of permissibility, according to the alternative view, are only objective (or justifying) reasons for action, rather than the motivating (or explanatory) reasons which actually guided the agent’s behavior. If genuine reasons justify an action, then the action is permissible. The reasons motivating the agent to act are irrelevant to the moral status of the act itself, but relevant only to the moral judgment of the agent. As Thomas Scanlon and others have suggested, an agent who acts with illicit intentions is rightly criticized and condemned, but the deontic status of the act remains untouched.37 Thus, a threat to act in this way is still a threat to act permissibly, even if it might mark the agent as condemnable. Nonetheless, even if they lack intrinsic importance, no one denies that one’s intentions might instrumentally affect the permissibility of one’s action.38 First and foremost, intentions have what Scanlon termed “predictive significance” as to the foreseen consequences of the act.39 For example, while the interesting philosophical debate about terror bombing (which intends the killing of civilians) versus strategic bombing (which merely foresees it) focuses on cases of equivalent acts and consequences, in reality the difference in intention is expected to result in different ways in which the bombing is planned and carried out, hence in its consequences as well. Thus, mental states might indicate other relevant factors that affect the overall assessment of the balance of objective reasons for action. Intentions would be relevant, albeit only instrumentally if not intrinsically.40 Generally speaking, then, a subjectivist, mental state-based view of permissibility might contribute to the solution of the puzzle of blackmail. Yet this is not enough for our purposes: we need to demonstrate how such a subjectivist view fits into the get-threat scenario, establishing both the existence of the relevant mental state and the indication to its instrumental effect on the consequences of the act. So let us return to the case of a conditioned threat to withhold divorce, and inquire as to how the husband’s mental state might affect the normative status of divorce denial. 4.2.The legitimacy of withholding divorce: A motive-based view What is the relevance, if any, of the husband’s mental state to the permissibility of get-refusal? Recall that what we are looking for is a view according to which the permissibility of withholding the divorce hinges on the motive that accompanies that behavior. Yet the subjectivist case against withholding divorce can take various forms that need to be distinguished and elucidated: at the most basic level, it can either require some categories of motive as a precondition for the act’s permissibility, or rule out other types of motive that make the act impermissible. I term these two options the positive and the negative requirements, respectively. According to the positive version, there is only one motive that could justify a refusal to divorce. Withholding divorce is permissible if and only if it is done out of a genuine wish to preserve the marriage, namely the real, functioning marital relationship. According to this view, the values of commitment and stability outweigh the unilateral wish to dissolve the marriage, although it nonetheless recognizes the price to be paid if the autonomy-based claim of the woman is ignored. Acting out of a desire to save one’s marriage is what makes this (otherwise problematic) action permissible, after all. Accordingly, a spouse who genuinely wishes to recover and preserve the marital relationship might object to divorce. In contrast, a spouse who withholds divorce despite conceding the irreconcilability of the relationship, or without a genuine wish to reconcile, is acting manipulatively and wrongfully. Thus, a spouse who uses consent to the divorce in order to negotiate other aspects of the divorce settlement is violating the positive requirement and acting wrongfully. In this spirit, Suzanne Stone has suggested “view[ing] the withholding of a get solely for collateral purposes as a moral wrong,”41 and holds that “It may well be the case that the Halakhic system itself frowns on transmuting the spouses’ veto power over divorce into a bargaining chip worth financial gain.”42 Such a view is reflected in the rulings of major Halakhic authorities and has gained wide support in the writing and teaching of many contemporary Halakhic figures.43 On this view, then, “fighting” to preserve the marriage is legitimate, even though the wife might suffer having her desire to divorce frustrated. Yet the conditioned financial demand suggests that the husband is not genuinely invested in the project of reconciliation. Moreover, it indicates that the wife’s suffering is intended, since it serves as a means whereby the husband can extract gain from her. Such a husband, who tells his wife that he will grant her a religious divorce only if paid, would be disappointed to discover that his wife does not care about the religious divorce and is willing to remain married in the eyes of religion. Thus, if the motive is intrinsically relevant to the permissibility of withholding the divorce, it marks it as an act of intentional harm. If it is relevant merely instrumentally, it indicates that the husband would attempt to cause as much distress as he possibly can, in order to extract financial gain in exchange for giving the get. This seems to be a stable traditionalist view of the divorce regime. While upholding commitment and stability, it rejects insincere actions designed to extract unfair gains. Moreover, since in such cases the husband seems to prefer the route of divorce and payment over the route of reconciliation, it is natural to see him as actually expressing the desire to divorce.44 Therefore, divorce is still based on mutual consent, although this consent relates to a genuine desire to preserve the relationship rather than a strategic and opportunistic refusal, which is geared towards gaining assets upon separation. Such a view can be authentic and committed to the traditional structure of Jewish law, but nonetheless sensitive to modern realities and values. And it leads to the conclusion that get-threats are indeed instances of extortion, since they involve a threat to perform an impermissible action: withhold divorce without the right motive. Note, however, that upon reflection such a view is still too close to the liberal view, which holds that a unilateral demand in itself justifies divorce. Once the couple’s separation is already a fact, whether accompanied by civil divorce (as the case might be in Western countries) or just by long-standing separation, speaking of a wish to preserve the marriage seems to become irrelevant. One cannot intend a course of action one does not believe to be viable. Indeed, the experience with legal systems that employ an “irretrievable breakdown” standard for divorce demonstrates that they tend to collapse into unilateral divorce regimes.45 As a consequence, withholding divorce is practically never permitted, once any possibility of rehabilitation (that might be dictated unilaterally) has ceased to exist. We therefore have offered a semi-progressive view. However, we cannot expect this view to be very attractive to traditionalist circles that object to the liberal view. Hence again the view of get-threats as extortion turns out to be limited to the more progressive camp. In order to cater to the conservative appetite, we need to gradually escalate in considering stricter and stiffer views of divorce. 5.The most challenging case: Get-threats for the reactionary 5.1.Conservative divorce regime: An escalation We should consider, therefore, a more modest version of the motive-dependent view, which is the negative version. Such a view does not require a specific motive that legitimizes the refusal to divorce, but rather only rules out or excludes specific kinds of evil motive, such as withholding divorce out of spite, revenge, a sense of ownership, or a wish to gain control over the spouse. A motive-based negative view can reject patriarchal norms while striving to protect the traditional worldview that advocates stability and commitment in the institution of marriage. According to this view, it is the fact that the agent’s sole purpose is to hurt the other spouse that makes the (otherwise permissible) action wrongful, either due to the direct intrinsic effect of the illicit motive or, instrumentally, through the effect of the severity of the predicted harm that follows from such a motive. It follows that in the absence of spiteful intentions, one should be entitled not to divorce if there is no valid ground for divorce. One is permitted to protect one’s right to refrain from divorce, as long as one is not doing so for the sole purpose of hurting the spouse. The line is drawn between spiteful behavior (which might be accompanied by other types of domestic violence) and the legitimate right of a husband to refuse an ungrounded divorce demand as long as such a refusal promotes his own interests. What about get-threats, namely using the divorce as a bargaining chip in order to secure other interests in the divorce settlement? At first glance, since such an attitude does not involve spite, it does not violate the negative requirement. However, in discussing the general case of blackmail, I demonstrated how the structure of the conditional threat implies that the harm to the victim is intended. So, is that enough to render get-threats coercive and extortionist? Here, a subtler second glance is required. In the case of informational blackmail, it was the initial doubtful normative status of revealing someone’s secret that made it possible for the agent’s intention to render the action impermissible. However, not every case of conditional demand for money is wrongful in the same way. After all, this is exactly the structure of the pharmacist’s proposal to refrain from handing over a requested medicine unless paid. The difference lies in the legitimacy of not distributing medicine for free: First, the pharmacist is not responsible for the consumer’s illness.46 Second, this is what pharmacies are designed for. If the pharmacy’s right to extract payment for the medicine were not protected, there would be no pharmacies and no medicine. While it is bearable for society to reject and proscribe any industry based on the revelation of embarrassing secrets, not so as regards the medicinal and pharmaceutical industries.47 What are the implications for the case of get-threats? Recall that what is needed here is an account of the Jewish divorce regime that rejects what I termed earlier “the liberal view,” namely an account that is based on either grounds for divorce (as fault) or mutual consent of the parties. Recall further that when a valid ground for divorce exists, a get-threat should be regarded as simple (non-paradoxical) extortion, which does not raise the current problem. Finally, it was noted above that seeing the mutual consent requirement as designed to secure only the survival of the actual relationship between the parties is too close to the progressive view, given the modern circumstance in which the couple at hand is already irreversibly separated (and often civilly divorced). According to the negative reading of the motive-dependent view, the normative question arises anew: Is a husband allowed to withhold the divorce in order to promote his own interests (in a favorable settlement) rather than to hurt his wife? Does such a husband resemble the blackmailer or the pharmacist? In order to answer this question, we have to understand the rationale of the mutual consent requirement from a conservative point of view. The conservative traditionalist, who finds the mutual consent requirement (absent of fault) in the tradition, would prefer to offer a rationale to this norm, rather than renounce the tradition. It is important to stress: my project here is neither to question nor to defend this rationale (or its interpretive merits), but only to see what the implications of the available rationales are for the scope of legitimate use of get-threats. In other words, we are looking for the logical implications of what can be termed “the reasonable reactionary”: someone who grounds his or her beliefs in an intelligible rationale, which is not limited to a wish to preserve the patriarchal order or to blind obedience to the instructions of scripture. By understanding the divorce regime, we can articulate the scope of the right against unilateral divorce that is implied by the mutual consent regime, and determine whether or not it is permissible to refuse to divorce only for the sake of the possibility of extracting gains from the wife’s wish to buy her freedom. What is the point, then, in granting the husband a right to withhold the divorce in such circumstances? What comes to mind, based on the family law literature, are three main rationales, which I will present in order of escalation. The mutual consent requirement can function as a commitment device, as a compensatory device, or as a punitive device. Let me elaborate: The choice of stricter dissolution options might be based on the ex-ante value of such a regime as a commitment or signaling device.48 For this role to function, the divorce regime should inflict burdens on the party that seeks divorce without a ground. While there is no special point in letting the other spouse gain from that burden, making the scope of the burden hinge on the other’s decision might incentivize the parties to seek cooperation rather than act in a self-centered manner. Second, as a compensatory device, a mutual consent requirement protects the spouses’ marriage through a “property rule” that enables them to set the price for its dissolution, securing what legal economists call “efficient divorce,” namely making sure that the separation is good from an aggregate point of view. The mutual consent mechanism thus helps in internalizing both partners’ point of view when one of them decides to separate.49 Finally, as a punitive device, a mutual consent requirement grants the parties an opportunity to retaliate in cases they perceive as a breach of their understandings and commitment. From a traditionalist point of view, which sees a spouse who abandons the marriage without a ground as a sinner (especially where the background is a romantic involvement with another), this retaliation might be justified as punishment, on grounds of retribution. What is of importance for our purpose is a feature common to all three views. According to all three possible rationales for the mutual consent regime, the harm to the divorce-seeker is not a regrettable cost that is outweighed by the benefit to the husband. Rather, it is a way to achieve the desired function of the device. If the divorce-seeker’s interest is not stymied, mutual consent will not function as a commitment device, nor require the wife to internalize the husband’s point of view, nor function as a punishment for the sinner. In other words, the harm to the agunah is intended, since it is an important link in the chain towards achieving the goal the mutual consent requirement wishes to reach. Consequently, to the extent that the mutual consent requirement is reasonable, the fact that the harm is intended cannot render the husband’s recalcitrance impermissible. One cannot object to the price paid upon initiating a unilateral divorce without assuming in advance that the mutual consent regime is unacceptable. Such an assumption, of course, would be begging the question against those who reject the progressive view. If my analysis is sound, viewing get-threats as a case of extortion indeed seems to hinge on progressive or at least semi-progressive views regarding marriage and divorce. In the absence of such views, the fact that a husband is frustrating his wife’s wish to terminate the marriage and the suffering inflicted on her consequentially are part of the normal order of the mutual consent regime, which can be seen as an authentic and faithful reading of rabbinic Judaism.50 The morality of get-threats therefore seems to turn on general political and moral commitments, and the agunah cannot expect to find allies in conservative circles. This is an unfortunate and upsetting conclusion, but perhaps it is too hasty. 5.2.The limits of get-threats: A last line of defense Those who hold the most reactionary views of divorce cannot ally with the easy or even the complicated case against get-threats, yet they are still well equipped to oppose many of their instances. First, recall that the legitimacy of get-threats, even in traditionalist eyes, depends on the lack of a ground for divorce that creates a valid Halakhic duty to divorce. Second, as this view hinges on an internal interpretation of the tradition, there is a chance traditionalists may be convinced that the price of such an interpretation is too high, not only in terms of the suffering it inflicts on members of the community, but also in terms of the tradition itself. Protecting the mutual consent regime in a way that divorces it completely from any consideration relating to the future of the spousal bond broadens the gap between the law as allocating entitlements and the norm as guiding proper behavior.51 As in many other cases, protecting a tradition in times of change requires nothing less than a revolution. It is doubtful, therefore, if insisting on the mutual consent requirement indeed provides any traditionalist “gain.” But, third, and most importantly, while upholding the mutual consent regime legitimizes some instances of get-threat, it is far from justifying every case of get-threat. Indeed, even from this reactionary viewpoint, there is a place for limiting the praxis of get-threat, both in the scope of legitimate withholding of the divorce, and in the nature and range of legitimate demands that may accompany the conditioned threat. This becomes clear when we look back on the proposed rationale for the mutual consent regime. For a commitment device to function it has to inflict a burden on the parties’ shoulders, yet this burden should be limited in magnitude by the importance of the interests it is designed to serve. Otherwise, it will discourage commitment rather than create and promote it. Similarly, even if the abandoned spouse’s right to compensation justifies granting him the right to sell his cooperation, it does not entail an unlimited right to extract gains or that this right can be strategically utilized in order to obtain a favorable settlement beyond adequate compensation. The first rationale calls for limiting the scope of legitimate get-withholding (in terms of time, for instance), while the second rationale calls for limiting the scope of legitimate get-threats in terms of the scope of the accompanying demand. Even the third rationale, which sees get-withholding as a punishment justified by considerations of desert, and therefore seems to be the cruelest, is limited by the scope and force of those retributive-related considerations. Putting the power of punishment in the hands of the victim is generally not advisable,52 much less putting it in the hands of a husband in the middle of a breakup crisis, when spite and revenge may be expected to lead him to exaggeration. Thus, at some point withholding divorce may be wrong even if one rejects the liberal view. Consequently, withholding divorce for a long enough period, or in an especially harmful way (e.g. when the time despite being relatively short is critical to the woman for reasons of fertility, or such), should not be permissible even from a traditionalist point of view which sees the distress of the agunah as part of the natural and legitimate consequences of the mutual consent regime. Similarly, where the accompanying demand is exaggerated and unjustified, withholding divorce in order to secure this demand becomes impermissible even in the eyes of those who see the get as a proper device for extracting due compensation. A threat to withhold divorce in such cases is a threat to act impermissibly, and hence a demand backed by such a conditioned threat is extortionist. In short, these common instances of get-threats are on a par with extortion for the reasonable reactionary too. This analysis leads to a disturbing conclusion. Indeed, where the demand is unjustified, withholding the divorce is unjustified, making a threat to do so a threat to unjustifiably harm the woman, namely a threat to act impermissibly. A conditioned threat to do so is a case of extortion. In contrast, if the demand is indeed appropriate—namely it adequately reflects the abandoned spouse’s frustrated interest in the marriage, the dissolution of which is being sought through no fault of his own—using the get as a bargaining chip is not only permitted according to this view, but a welcome implementation of the raison d’être of the mutual consent requirement (in the absence of a ground for divorce) and an authentic conservation of the logic of Jewish law. Thus, while extracting exaggerated gains now has clearly been shown to be extortive, a more modest use of withholding divorce as a means of collecting compensation for real loss is quite normative from this perspective.53 This is, indeed, the greatest challenge for the morality of get-threats. Still, it is important to bear in mind that even in those cases in which a get-threat does not amount to extortion according to the conservative-reactionary view, this does not mean that such a practice is devoid of other possible normative defects. Such transactions might be exploitative, in violation of norms of commodification, or incompatible with the requirements of the ethics of care or the way personal relationships should be managed. A spouse might be required to show more concern for the requests of his wife, out of mercy, gratitude, or the duty to take responsibility for his own role in the downfall of the marriage. Moreover, since the problem of get-threats is mostly on one side of the gender divide, get-threats might generate problems of social justice for women as a class, rather than only a distributional problem among the concrete spouses seeking divorce. Thus, beyond the obvious need to consider the role of gender within the contextual evaluation of the harm caused by delaying divorce, the social inequality created by the power to withhold divorce might be an independent ground for criticizing the practice of get-threat. This paper, however, has been devoted only to evaluating the extortion-related critique.54 6. Conclusion In this article, I have demonstrated how the problem of withholding divorce as a bargaining chip could benefit from the literature on “the paradox of blackmail.” Building on contemporary discussions in normative ethics and philosophy of law, I have argued that many cases of get-threat are threats to act in a way that would wrongfully infringe the moral rights of the victim. Such a practice therefore amounts to coercion, and any attempt to thereby extract something of value is a simple case of extortion according to the elementary sense of the term. Moreover, this conclusion should be widely shared notwithstanding one’s exact views regarding contractual fairness or the proper divorce regime, as long as a valid duty to divorce exists, based on a traditionally recognized Halakhic ground, custom-based expectations, or the circumstances of modern life. I then moved on to inquire whether or not get-threats amount to extortion from a conservative point of view, which rejects the liberal ideal of unilateral no-fault divorce. I have demonstrated how, and to what extent, the demand that accompanies a get-threat reflects the agent’s intent to harm the wife. Building on contemporary discussions regarding the morality of blackmail, I have presented an argument against get-threats even in the absence of a duty to divorce. However, I have also showed that in adherence to the logic of the mutual consent requirement, and the consequential rejection of the connection between refusal to divorce and a wish to reconcile, such intended harm ceases to be a sign of impermissibility. This is, indeed, the most substantial challenge to the view of get-threats as extortion. Nevertheless, even in the absence of any valid ground for divorce, a threat to withhold divorce should be limited in scope and magnitude. Thus, even under what seems to me as the best possible statement of defense of the practice of get-threats, such a practice should be restricted to a narrow range of cases of justified, reasonable demands. Accordingly, in most cases, from most perspectives, get-threats are instances of unquestionable extortion, even before we consider any other form of normative deficiency. It is about time we stopped tolerating the practice. Footnotes 1 For the distinction between this “modern-day agunah problem” and the traditional agunah problem (focusing on a missing or incapable husband), see, e.g., J. David Bleich, Modern-Day Agunot: A Proposed Remedy, 4 Jewish L. Ann. 169 (1981). While women might also refuse to divorce in some cases, men’s recalcitrance is much more acute in terms of both its scope and implications, and so this article focuses on husbands’ refusal. 2 See, e.g., Barbara J. Redman, Jewish Divorce: What Can Be Done in Secular Courts to Aid the Jewish Woman?, 19 Ga. L. Rev. 389, 392 (1985); Marc Feldman, Jewish Women and Secular Courts: Helping a Jewish Woman Obtain a Get, 5 Berkeley Women’s L. J. 139 (1990); Patti A. Scott, New York Divorce Law and the Religion Clauses: An Unconstitutional Exorcism of the Jewish Get Laws, 6 Seton Hall Const. L. J. 1117, 1126 (1996); Susan Metzger Weiss, Sign at Your Own Risk: The RCA Prenuptial May Prejudice the Fairness of Your Future Divorce Settlement, 6 Cardozo Women’s L. J. 49, 65 (1999) (“get extortion”); Lisa Fishbayn, Gender, Multiculturalism and Dialogue: The Case of Jewish Divorce, 21 Can. J. L. & Juris. 71, 85, 91–3 (2008) (“get-based extortion”); Karin Carmit Yefet, Unchaining the Agunot: Enlisting the Israeli Constitution in the Service of Women’s Marital Freedom, 20 Yale J. L. & Feminism 441, 490 (2009); Jill Wexler, Gotta Get a Get: Maryland and Florida Should Adopt Get Statutes, 17 J. L. & Pol’y 735 (2009). 3 Golding v. Golding, 581 N.Y.S.2d 4 (N.Y. App. Div. 1992); Perl v. Perl, 512 N.Y.S.2d 372 (N.Y. App. Div. 1987); Segal v. Segal, 278 N.J. Super. 218. For discussion, see Alan C. Lazerow, Give and “Get?” Applying the Restatement of Contracts to Determine the Enforceability of “Get Settlement” Contracts, 39 U. Balt. L. Rev. 103 (2009). 4 See, e.g., Perl v. Perl, 512 N.Y.S.2d 372 (N.Y. App. Div. 1987) (Kupferman, J. dissenting); Golding v. Golding, 581 N.Y.S.2d 4 (N.Y. App. Div. 1992) (Kupferman, J., dissenting); cf. CA 5490/92 Peges v. Peges (Dec. 29, 1994), Nevo Legal Database (by subscription, in Hebrew) (Isr.); discussed, for example, in Ruth Halperin-Kaddari, Women in Israel: A State of Their Own 321 (2004). 5 Cf. Thomas Scanlon, Moral Dimensions: Permissibility, Meaning, Blame 37, 76, 81 (2008). Coercion might be wrong in itself, even without extortion. For a recent account, see Stephen J. White, On the Moral Objection to Coercion, 45 Phil. & Pub. Aff. 199 (2017). 6 This view lies behind the tendency to classify extortion as an offence against property, rather than against the person. See Stuart P. Green, Prototype Theory and the Classification of Offenses in a Revised Model Penal Code: A General Approach to the Special Part, 4 Buff. Crim. L. Rev. 337 (2000). Cf. Model Penal Code §223.4 (Am. Law. Inst., Official Draft and Revised Comments 1985) (viewing extortion as a sort of theft). 7 See Robert Nozick, Coercion, inPhilosophy, Science, and Method: Essays in Honor of Ernest Nagel 440 (Sidney Morgenbesser, Patrick Suppes, & Morton White eds., 1969). See also Scott Anderson, Coercion, inThe Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2017), https://plato.stanford.edu/archives/win2017/entries/coercion/. 8 Cf. Harry Frankfurt, Coercion and Moral Responsibility, inThe Importance of What We Care About 26, 28 (1988). 9 See Anderson, supra note 7, § 2.2. 10 See, among many others, Anderson, supra note 7, § 2.3, and the references there; Alan Wertheimer, Coercion 202–21 (1987) (“moral baseline does most of the important work . . . in cases which involve the ascription of moral responsibility”: id. at 217). An alternative view focuses on an objective-predictive test, regarding what the proposer would be expected to do had she no opportunity to make the proposal (or under a similar counterfactual). Others advocate a combined theory which includes both moralized and non-moralized baselines. I cannot do justice to this entire body of literature here, hence I follow what seems to me as the central and common view within this literature, despite the fact that—as in many philosophical debates—nothing in this area could be seen as totally settled. Cf. Anderson, supra note 7, § 2.3 (“Those who opt for a moralized baseline approach seem to offer a more plausible approach”). This is also the view that raises in full the puzzle of blackmail which stands at the heart of my discussion here. 11 See Mitchell N. Berman, Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 Geo. L. J. 1, 15 (2001), and the references id. at 15 n.56. Cf. also Scanlon, supra note 5, at 82–3 (it is not a threat in the relevant sense if “it would be permissible for the agent to inflict the threatened penalty”). 12 See Peter Westen, Why the Paradox of Blackmail Is So Hard to Resolve, 9 Ohio St. J. Crim. L. 585 (2012); Lazerow, supra note 3, at 122. 13 Cf. Leo Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. Pa. L. Rev. 1567, 1567 (1993) (“Nearly everyone seems to agree that blackmail is an indispensable part of a well-developed criminal code, but no one is sure what for”); Jeffrie G. Murphy, Blackmail: A Preliminary Inquiry, 63 Monist 156 (1980); David Owens, Should Blackmail Be Banned?, 63 Phil. 501 (1988). 14 To date, there are almost 100 scholarly articles dealing with the paradox. A comprehensive survey of this literature and its limits was offered by Mitchell N. Berman, Blackmail, inThe Oxford Handbook of Philosophy of Criminal Law 37 (John Deigh & David Dolinko eds., 2011). 15 Id.; see also Westen, supra note 12; and in the clearest form in James R. Shaw, The Morality of Blackmail, 40 Phil. & Pub. Aff. 165 (2012); Ram Rivlin, Blackmail, Subjectivity and Culpability, 28 Can. J. L. & Jur. 399 (2015). 16 See, e.g., Katz, supra note 13, at 1567–8; Stephen E. Sachs, Saving Toby: Extortion, Blackmail, and the Right to Destroy, 24 Yale L. & Pol’y Rev. 251 (2006); George P. Fletcher, Blackmail: The Paradigmatic Crime, 141 U. Pa. L. Rev. 1617, 1619 (1993). 17 For the general possibility of having a power to violate one’s duty, see, e.g., David Enoch, A Right to Violate One’s Duty, 21 L. & Phil 355 (2002); Gerhard Øverland, The Right to Do Wrong, 26 L. & Phil. 377 (2007). 18 This move might be too hasty, though. A Halakhic duty need not necessarily ground a moral claim, and that might be true even in the context of interpersonal relationships (Bein Adam Le-Havero). If so, violating one’s duty to divorce would not necessarily wrong the wife in the relevant sense, but only infringe the religious duties of the husband. However, many Halakhic grounds for divorce indeed stem from the mutual personal duties of the spouses, rather than their duties towards God or Jewish society at large. Moreover, since the Jewish couple relies on these norms when married, they can generate duties between them, in the spirit of the famous view of the court in the case of Avizur, regarding Beit-Din authority. See Avitzur v. Avitzur, 446 N.E.2d 136 (1983). 19 See David M. Cobin, Jewish Divorce and the Recalcitrant Husband-Refusal to Give a Get as Intentional Infliction of Emotional Distress, 4 J. L. & Religion 405 (1986); Lazerow, supra note 3, at 124; for a discussion of the Israeli cases, see, e.g., Ayelet Blecher-Prigat & Benjamin Shmueli, The Interplay between Tort Law and Religious Family Law: The Israeli Case, 26 Ariz. J. Int’l & Com. L. 279 (2009). 20 See, e.g., the works of Orit Gan and Susan Weiss: e.g. Orit Gan, Trading the Gett: Between Contractual Right and Inalienability, 32 Bar-Ilan L. Rev. 787 (2019) (in Hebrew); Susan Weiss, Israeli Divorce Law: The Maldistribution of Power, Its Abuses, and the “Status” of Jewish Women, inMen and Women: Gender, Judaism & Democracy 53 (Rachel Elior ed., 2004). These writers stress the importance of gender inequality as the source of the problem of Jewish divorce bargaining, and advocate skeptic views about contractual consent, in light of neo-Marxian ideas. 21 See, e.g., Yefet, supra note 2. 22 Recall that we are looking for a duty to divorce, not a mechanism of enforcing this duty and compelling the husband to obey. Such a duty is less controversial at least after the civil divorce process has been completed. I will return to this point below. 23 See Oren Bar-Gil & Omri Ben-Shachar, Credible Coercion, 83 Tex. L. Rev. 717 (2005). Cf. also Shahar Lifshitz, Distress Exploitation Contracts in the Shadow of No Duty to Rescue, 86 N. C. L. Rev. 315, 375 (2008). 24 Actually, the picture is a bit more complicated. First, not every ground for divorce must depend on fault (infertility, for example, might be such a ground). Second, sometimes a duty to divorce emerges out of a faulty behavior of the other spouse (e.g. the husband might be obliged to divorce due to his wife’s infidelity). In those two kinds of cases, the husband’s duty to divorce is not directed towards the wife, and thus it is less clear that violating the duty would put the wife in a worse position than she should be. In order to avoid this complication, I shall focus on the paradigmatic case in which one’s duty to divorce stems from one’s faulty behavior only, thus it is clear that violating the duty to divorce wrongs the other spouse, leaving the more complex cases to another occasion. See also supra note 18. 25 Of course, I do not mean to imply gender symmetry here. SeeIrving A. Breitowitz, Between Civil and Religious Law: The Plight of the Agunah in American Society 11–14 (1993). 26 See, e.g., Avishalom Westreich, Divorce on Demand: The History, Dogmatics, and Hermeneutics of the Wife’s Right to Divorce in Jewish Law, 62 J. Jewish Stud. 340 (2011); Ram Rivlin, Religious Norms between Ethics and Law: The Death and the Afterlife of Jewish Divorce Law, 4 Oxford J. L. & Religion 469 (2015). 27 For the general debate in modern U.S. law, see, e.g., Katherine Shaw Spaht, Revolution and Counter-Revolution: The Future of Marriage in the Law, 49 Loy. L. Rev. 1 (2003); Lynne D. Wardle, No-Fault Divorce and the Divorce Conundrum, BYU L. Rev. 79 (1991). Cf. Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law 61–2 (2001). 28 Cf. the sources and discussion at Suzanne Last Stone, Religion and Human Rights: Babel or Translation, Conflict or Convergence?, inReligion and the Discourse of Human Rights (Hanoch Dagan, Shahar Lifshitz & Yedidia Z. Stern eds., 2014) 524, 546. For a similar view, see Broyde, supra note 27, at 62. 29 Note further that such a view need not be exaggeratedly reactionary: one can reject the idea of a moral right to unilateral divorce, without rejecting the wisdom behind the move to unilateral no-fault divorce as the legal regime, since some of the valid reasons behind the establishment of such a regime do not hinge on a liberal moral commitment. This subtle point is explained in Ram Rivlin, The Right to Divorce: Its Direction, and Why It Matters, 4 Int’l J. Juris. Fam. 133 (2013). Moreover, even if the liberal view of marriage is superior, couples who married under another model might be morally required to respect their vows. For that reason, the debate about get-threats is not reducible to a debate about the proper divorce regime. 30 For more details, see Rivlin, supra note 15. 31 William D. Ross, The Right and the Good 7 (1988); William D. Ross, The Nature of Morally Good Action, 29 Proc. Aristotelian Soc’y 251 (1929). It is important not to conflate Ross’s distinction with similar distinctions made by others. See, e.g., Jonathan Bennett, The Act Itself 30 (1998). Bennett uses the same distinction to capture another difference, and distinguishes between the “act” and its consequences (which, for my concerns here, I mean to be included under the description of the act). See id. at 43. 32 See Berman, supra note 14 (building and expanding on his own “evidentiary theory” of blackmail in Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. Chi. L. Rev. 795 (1998)); Shaw, supra note 15; Rivlin, supra note 15. 33 Cf. Jeff McMahan, Intention, Permissibility, Terrorism, and War, 23 Phil. Persp. 345, 349–351 (2009); Westen, supra note 12. 34 For the classical discussions of this thought experiment, see, e.g., Philippa Foot, The Problem of Abortion and the Doctrine of the Double Effect, inVirtues and Vices and Other Essays in Moral Philosophy 19 (2002); Judith Jarvis Thomson, The Trolley Problem, 94 Yale L. J. 1395 (1985). 35 See Rivlin, supra note 15. 36 See McMahan, supra note 33. 37 See Scanlon, supra note 5, at 22. Scanlon distinguishes between assessing permissibility (as a guide to deliberation) and assessing the agent’s particular decision-making (as a standard of criticism). Thomson distinguishes between assessing the act and assessing the agent’s character. See Judith J. Thomson, Physician Assisted Suicides: Two Moral Arguments, 109 Ethics 497, 514–16 (1999). Cf. also Bennett’s version of distinguishing between “first order morality” and “second order morality,” in Bennett, supra note 31, at 221–4. 38 Cf. Steven Sverdlik, Motive and Rightness (2011). 39 See Scanlon, supra note 5, at 62–3. 40 While surely here is not the place to settle the debate on the importance of intentions, this debate is still alive. See, e.g., Sverdlik, supra note 38; S. Matthew Liao, Intentions and Moral Permissibility: The Case of Acting Permissibly With Bad Intentions, 31 Law & Phil. 703 (2012); Ralph Wedgwood, Scanlon on Double Effect, 83 Phil & Phen Research 464 (2011); Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law ch. 7 (2011); Amir Saemi, The Intention Principle and the Doctrine of Double Effect, 79 Analysis 91 (2018). In Rivlin, supra note 15, I defend a view according to which intentions are relevant in the context of coercion claims even if intentions are not generally relevant to permissibility, since it is culpability rather than permissibility that is important for coercion claims. The claim in the current article, however, does not hinge on that particular view. 41 Suzanne Last Stone, The Intervention of American Law in Jewish Divorce: A Pluralist Analysis, 34 Isr. L. Rev. 170, 193 (2000). 42 Id. at 197. Cf. also Mark Dratch, Jewish Divorce: Get Abuse, My Jewish Learning, https://www.myjewishlearning.com/article/jewish-divorce-get-abuse/, holding that “once a couple has stopped living together as husband and wife, and that decision is final, delivering a get is the only moral and just thing to do . . . A get was never meant to be used as a husband’s tool to gain concessions in divorce proceedings.” 43 See Avishalom Westreich, The Right to Divorce in Jewish Law: Between Politics and Ideology, 1 Int’l J. Juris. Fam. 177 (2010). 44 See the discussion of Rabbi Moshe Feinstein’s view in Breitowitz, supra note 25, at 235 n.695; see alsoBroyde, supra note 27, at 105–6. 45 See Elizabeth S. Scott, Rational Decision Making About Marriage and Divorce, 76 Va. L. Rev. 9, 17–18 nn.23–24 (1990). 46 One could say that the blackmailer is equally not responsible for the fact that her victim has an embarrassing secret. However, absent the blackmailer, the secret would cause no serious distress, while absent the pharmacist, the patient’s distress persists. 47 Of course, the scope of justified gain-seeking in the medical industry raises major problems and doubts regarding the limits of the demanded price as well as the need for public funding for this cost. None of them, however, is the topic of this article. All I need is the view according to which a pharmacy can legitimately demand money in exchange for handing out medicine. 48 See, e.g., Elizabeth S. Scott, Marital Commitment and the Legal Regulation of Divorce, in Law and Economics of Marriage and Divorce 35 (Antony W. Dnes & Robert Rowthorn eds., 2002); Robert Rowthorn, Marriage as a Signal, in Law and Economics of Marriage and Divorce, supra, at 132. 49 Allen M. Parkman, Mutual Consent Divorce, in Law and Economics of Marriage and Divorce, supra note 48, at 57, 65; Martin Zelder, Inefficient Dissolutions as a Consequence of Public Goods: The Case of No-Fault Divorce, 22 J. Legal Stud. 503 (1993). Indeed, a spouse might strategically refuse to divorce if he believes he is able to extract gain from such refusal, even when he has no genuine objection to the divorce. Moreover, even if indeed the divorce is not “efficient,” it is not anticipated that the divorce-seeker will compensate the other, but rather that he will spoil the value of the marriage for the other by ruining everything worth saving in the relationship, in order to lessen the demanded compensation. Cf. Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 Va. L. Rev. 509, 639 (1998); Ann Laquer Estin, Economics and the Problem of Divorce, 2 U. Chi. L. Sch. Roundtable 517, 541 (1995). However, where a rabbinic tribunal can oversee the negotiation, such fear might be mitigated. For that reason, it is no surprise that a view that sees get-withholding as an arena for extracting compensation has evolved in the Israeli Rabbinic Courts. See Rivlin, supra note 26. 50 The same line of reasoning might cast doubt on the legitimacy of confronting aginut through the tort of “intentional infliction of emotional distress,” as seen through the eyes of a reactionary, yet a full discussion of this topic is beyond the scope of this article. 51 For more details, see Rivlin, supra note 26. Moreover, preserving empty marriages increases the chances of adultery, which has harsh Halakhic consequences. 52 Cf. George P. Fletcher, The Place of Victims in the Theory of Retribution, 3 Buff. Crim. L. Rev. 51 (1999). 53 It is important to distinguish this view from another, according to which refusing to divorce is wrong (and a threat to do so—coercive), yet the coercion is justified by the need to ensure a proper division of property, etc., as an action of self-help. On one hand, such an argument is open also to husbands that are under a duty to divorce. On the other hand, such husbands seem to be limited by the norms of legitimate self-help, which diminishes the sort of demands that could be backed by these measures. I believe that this analysis best explains a recently emerging trend in Israeli rabbinic courts, associated with what is known as the rule of Maharshdam (Rabbi Shmuel ben Moses di-Medina (1506–89, Thessaloniki, Greece)). See Amichay Radziner, Problematic Halakha: Creative Halakhic Rulings in Israeli Rabbinical Courts, 20 Jewish L. Ann. 103 (2013). 54 Traditional circles sometimes reject the idea of gender equality altogether, as reflecting the same spirit of Western decadence that informs liberal views of marriage. In an effort to avoid preaching to the choir, I do not rely here on any prior commitment to gender equality. © The Author(s) 2021. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) © The Author(s) 2021. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
TI - The morality of “ get-threats”: Withholding divorce as extortion
JF - International Journal of Constitutional Law
DO - 10.1093/icon/moaa063
DA - 2020-12-31
UR - https://www.deepdyve.com/lp/oxford-university-press/the-morality-of-get-threats-withholding-divorce-as-extortion-fBNCF7GmtV
SP - 849
EP - 869
VL - 18
IS - 3
DP - DeepDyve
ER -