Ram Rivlin (Hebrew University of Jerusalem – Faculty of Law) has posted Religious Norms between Ethics and Law: The Death and Afterlife of Jewish Divorce Law (Oxford Journal of Law and Religion 2015, Forthcoming) on SSRN. Here is the abstract:
How has Jewish divorce law responded to the transformation of its working environment? Jewish divorce law functions today in the shadow of substantial recent changes. While according to mainstream Halakha marriage should be terminated either on concrete grounds for divorce or by mutual consent of the parties, Western legal regimes now accept unilateral divorce even in the absence of any other ground. Moreover, adopting Jewish divorce norms as the official Israeli state law requires Israeli rabbinic tribunals to apply Jewish norms to populations who reject it. Those changes distort the inner logic of Jewish divorce law and radically change the rationale of the mutual consent requirement.
One rabbinic response is to accept the “death of the marriage” as an independent ground for divorce, thus bringing Jewish law into line with Western societies. However, this paper focuses on another response, which refuses to abandon the mutual consent requirement. Instead, it reinterprets this requirement as a mechanism designed to ensure the parties’ rights upon dissolution through a bargaining process. I contend that while such a view is often identified with reactionary circles, it actually represents an internalisation of modern legal thinking and marks a paradigm shift in the nature of religious law.