Rabbis Drafting Criminal Legislation: The Shaping of the Prohibition Against Bigamy for Jews in Mandatory Palestine

doi:10.1093/ajcl/avy029

2018-06-01 00:00:00

Abstract To a large extent, the roots of Israeli family law go back to the British Mandate for Palestine. British policy was to enshrine in legislation the jurisdiction of religious courts, so that marriage and divorce would be conducted according to religious law only. At the same time, the British believed that a criminal prohibition should be imposed against bigamy. The Article describes the conflict between Jewish marriage law and criminal law on this matter. The reason for the conflict lies in the complexity of the Jewish bigamy law, which is not uniform for all Jews. A comprehensive archival review shows that it was one specific criminal case that alerted the British mandatory authorities to the fact that they had created a problem in the area of criminal law, at least as far as bigamy offenses of Jewish men were concerned. Because of the complexity of the matter, the task of repairing the relevant section in the criminal code was assigned to the Chief Rabbis of Palestine. On their part, the Chief Rabbis used the opportunity that was offered them to impose on all Jews in Palestine the halakhic approach that rejects bigamy. Naturally, this move involved the Rabbinate and the British in a serious conflict with the various groups of the Jewish population that opposed the amendment of the law. But the amendment created by the Rabbis succeeded, and Israeli criminal law to this day is based on it. This is an exceptional case of a criminal law that distinguishes clearly between Jewish and non-Jewish populations in Israel. Introduction Present Israeli criminal law prohibits bigamy1 and imposes a penalty of five years of imprisonment.2 At the same time, a Jewish man can obtain permission to take a second wife: If the law applicable to a new marriage is Jewish religious law, then a person shall not be convicted of an offense under section 176 if the new marriage was contracted after permission to marry was given by the final judgment of a rabbinical tribunal, and if the judgment was confirmed by the President of the Rabbinical Grand Tribunal.3 Although the section grants the religious court sole authority to issue a permit to a man to marry a second woman, without defining the circumstances under which the religious court can grant such a permit, the fact that only a Jewish man can obtain it is rather jarring. A Muslim court, for example, does not have the authority to issue a similar permit to its subjects. This appears to be the most prominent instance in Israeli criminal law where a law which by nature should apply equally to all citizens, regardless of religion or nationality, but which explicitly discriminates between Jews and non-Jews.4 The present Article describes the historical roots of this unique section and of the creation of a specific law for Jews with respect to bigamy. The law is part of a broader issue rooted in the legislative policy of the British Mandate in Palestine. In the State of Israel there is no civil marriage and divorce. Israeli law stipulates that citizens can marry and divorce in the country only according to the rules and rituals of the religious community to which they belong, and the question of the validity of the marriage is determined strictly by religious law.5 At the same time, there is general criminal legislation in Israel stipulating punishments for various offenses relating to marriage.6 Naturally, the religious view that determines the validity of the marriage does not always match the secular outlook that determines the criminal prohibition concerning it. For example, Israeli criminal law states that the minimum age of marriage is eighteen, and there is a sanction of up to two years of imprisonment for anyone who marries an underage person, for the minor’s parents, and for those who help carry out the marriage ceremony.7 But the law does not and cannot stipulate that the marriage is not valid. Validity depends on the marriage age as determined by the religious law of the citizens who were married. For example, if a Jewish man marries a thirteen-year-old Jewish girl, the marriage is valid for all intents and purposes, but the civil court may impose on the groom a civil penalty of a fine or imprisonment. This complex integration of religious and criminal aspects in marriage law is not an original product of the State of Israel, but it continues the legal situation that existed in Palestine during the British Mandate. It was a British decision at the beginning of the mandatory period that the various citizens of Palestine would have no civil family law, but rather each recognized religious committee would apply its own judicial system in the matters of the marriage and divorce of its members.8 Later, the Palestine Criminal Code Ordinance of 1936 (CCO) was enacted and became the main criminal code until the enactment of the Israeli Penal Code in 1977. The Israeli Penal Code is based largely on the CCO and is its direct continuation. The CCO contains four sections (sections 180–183) defining three offenses related to marriage. These include a prohibition against marrying a minor under fifteen years of age,9 and section 181, which prohibits bigamy (the original and the amended sections appear in the Appendix below). A cursory inspection of section 181 reveals that different laws apply to different religions. Subsection (c) appears to say so explicitly, even though it does not actually refer to Muslims by name.10 But we shall see that a no less significant distinction between religions appears in the opening of the section, which states that a person is criminally liable under section 181 only in the event that the second marriage is void.11 Section 181 is the focus of the present Article. The main analysis revolves around the factors that brought about its amendment, which came into force in 1947, making the section much more complicated and cumbersome than it used to be and mentioning Jews explicitly as a distinct group to which specific rules apply. This remains the situation to this day in Israel. An examination of the events that led to the amendment of the bigamy section and of the factors responsible for its wording can teach us several important, fundamental lessons, first and foremost about the difficulty of creating a coherent method for reconciling the unique religious marriage law of each community with the criminal law, which is supposed to be general and territorial (at least in its formulation, because as far as the outcomes are concerned, the original intention was to apply a different law to residents according to their ethnic group). An examination of the motives can also teach us important lessons about the uniqueness of Jewish law. The unique Jewish marriage law, which the legislators of various colonies throughout the British Empire, for obvious reasons, rarely had to confront, caused many difficulties for the British legislator in Palestine. The criminal prohibition against bigamy, which was imported from the other colonies where the British ruled, is a good example. The law failed to cope with bigamy among Jews, and eventually British officials assigned the task of formulating the amendment of the bigamy section to the Chief Rabbis of Palestine. This is a unique case in which clerics drafted a section of the criminal law for the British authorities. The move enabled the Rabbis to enforce by means of criminal law their halakhic positions and their judicial authority also on groups of the Jewish population that thought differently and refused to accept their authority. This is an excellent example of the imposition of a controversial religious position by means of secular law. The British discovered another characteristic that sets the Jewish religion apart. In the absence of a supreme halakhic institution, and because of the exile of the Jewish people throughout history, significant differences exist among Jewish communities worldwide, including their attitude toward polygamy.12 Any attempt to create a uniform criminal law for Jews inevitably angers those members of the community whose customs differ from the legal arrangement that was enacted. The transformations of section 181 of the CCO illustrate an exceptional situation, in which portions of one ethnic community, contrary to the opinion of some members of the same community, created a special and uniform criminal section for all members of the community, and tried to shape this section in accordance with disputed principles derived from the religious law of one portion of that community. Naturally, this act was opposed by segments of the mandatory legal system, which espoused the basic notion that there can be no criminal section that makes an explicit “ethnic” distinction, and which in practice harms the religious tradition of portions of the Jewish group. As expected, some in the Jewish community protested that one halakhic approach is imposed by means of criminal legislation on all members of the Jewish community, including those who hold a different halakhic position. As noted, these measures gave rise to a legal arrangement, which stands out by its ethnic distinction, practiced to this day in Israeli law. I. The Legal Situation in Palestine Until the 1930s Different religious communities have been living in Israel for centuries. Among these communities, the ability to marry more than one woman depended on their religious attitude toward polygamy. In general, Islamic law allowed polygamy (up to four wives, subject to economic and other resources of the husband); the law of the Christian sects to which most Christians living in the country belonged rejected bigamy entirely; the law that applied to Jews was complex. At one extreme were eastern groups, particularly the Jews of Yemen, whose position on bigamy was similar to that of the Muslims; at the other extreme was the Ashkenazi group, which, although it did not entirely reject bigamy (certainly not in the sense that the Catholics, for example, did), imposed severe restrictions on a man’s ability to take a second wife, and took action against those who did so without permission (the prohibition and the permission are included in an institution created in the Middle Ages and referred to as the “Ban of Rabbeinu Gershom”).13 In between were Sephardic groups who did not encourage bigamy and even acted to prevent it as part of a personal commitment, but who at the same time allowed it in many cases. As mentioned above, the overview presented here is general (there were various nuances within the Ashkenazi and Sephardic groups themselves), and considerable research has been conducted into the attitude of Jews toward polygamy.14 The conflict between the different practices of the various communities surfaced conspicuously at the time when the criminal section was being amended. It was only at the twilight of its rule in Israel that the Ottoman Empire saw the need to enact a secular law that imposed uniform restrictions on all residents, including Jews and Christians, on the issue of polygamy.15 Article 38 of the Ottoman Family Law of 1917, stipulated the following: “If the woman conditioned that her husband must not marry another woman, and if he married, either she or her rival will be considered divorced—the condition remains valid and the [first] marriage complete.”16 The explanatory note to this section explicitly states that it was intended to reduce the cases of polygamy, and it is clear that this position contradicts most schools of Islamic law.17 This law, which regards the prohibition against bigamy not as mandatory but as a matter that can be made conditional, did not have sufficient time to affect Jews in Palestine. The Muslim Family Law Ordinance, dated September 25, 1919, stated that its provisions applied to Muslims only.18 The Ottoman Penal Code, which prevailed in the country until the enactment of the CCO (despite the numerous changes the Code underwent), did not prohibit bigamy. But British authorities left in a 1916 addition to section 200 of the Ottoman Penal Code which stated that “[t]he issue of a license from the proper court is a condition of any marriage. A husband who marries without obtaining a license is liable to imprisonment from one month to six months.”19 The section goes on to indicate that the main problem, which prompted the requirement of a license, was the marrying of young women without the permission of their relatives; therefore a judge was required to ascertain that such permission had been granted. It is clear, however, that section 200 allowed the relevant courts, including rabbinical courts, to prevent cases of bigamy at their discretion. Indeed, the Chief Rabbinate had a certain interest in reducing the incidence of bigamy, and it may be in light of the abovementioned addition to section 200, that the Chief Rabbinate amended a procedural regulation in the summer of 1921 and publicized it in the press.20 According to the regulation, owing to a miscommunication between Palestine and other countries which had occurred during the war, there were several cases of bigamy. Therefore: The Chief Rabbinate issued an ordinance for the Land of Israel that everyone seeking to marry must obtain a written marriage certificate. And only in accordance with such certificate shall the Rabbis have the authority to arrange the wedding ceremony, and only in this way shall the Chief Rabbinate officially approve subsequently the marriage, in accordance with the government arrangement. In a circular, the Chief Rabbinate of the Land of Israel drew the attention of rabbis and teachers to this regulation, so as not to arrange wedding ceremonies in any way except in accordance with such marriage certificate.21 The wording of the notice indicates that, to the displeasure of the Chief Rabbinate, there had been several cases of bigamy made possible primarily by a lack of order and proper registration. Other sources suggest that there were some cases in which married Ashkenazi men immigrated to Israel on their own, and married women without divorcing their wives, who had remained abroad.22 It is difficult to know how influential this regulation was. What is quite clear, however, is that the Chief Rabbinate’s attempt to amend the regulation concerned mainly Ashkenazi men, who were prohibited by the Ban of Rabbeinu Gershom from marrying two women, and the regulation was not intended to prevent bigamy by Jewish men belonging to communities that allow it. Both the law and Jewish Halakha (i.e., Jewish Law) allowed bigamy, and the position of Rabbi Kook, the founder of the Chief Rabbinate and its head until his death in 1935, was what Elimelech Westreich calls “pluralistic,” i.e., a position that allowed each community to follow its own practices.23 Two cases that were published in the press and which created a great deal of commotion in the Jewish community highlight the fact that there was no legal prohibition against bigamy. The first case was the trial of a young Jewish immigrant from Poland, Alexander Lubling, which took place in March 1931 in the Jerusalem District Court presided over by the Sephardic judge Moshe Valero.24 Lubling was married to two women, a fact he admitted, and he was tried on charges of violating section 155 of the Ottoman Penal Code which imposed imprisonment and a fine on individuals convicted of submitting “some document or some certificate containing evidence, notice, or certification that contradicts the truth for the sake of being used as the basis for an official act affecting another,” and the certificate was aimed at benefiting the person submitting it or at causing harm to another.25 It was alleged that before he married his second wife, Lubling had submitted to the Rabbinate a document containing a statement that he was single. His lawyer argued, among others, that even if a document stating a fact that was not true was submitted, this document did not change in any way the right of the defendant to take a second wife, because his client was Sephardic, “although of Polish origin,” and therefore he had the right to marry more than one woman. And even if he had been Ashkenazi, “the Ban of Rabbeinu Gershom has been canceled already.”26 The court convicted Lubling under section 155, but imposed a very light sentence. The ruling highlights once more that bigamy was not prohibited by the laws of Israel. The second case that caused an uproar in the country, and which gained publicity even in the foreign press,27 was that of Avraham Tabib from the Rishon LeZion community. Tabib was one of the leaders of the Yemenite Jewish community in Israel and was a well-known public figure. Tabib decided to take a second wife contrary to the wishes of his first wife, who also refused to divorce him, and contrary to the orders of the rabbinical court in Tel-Aviv and of the Chief Rabbinate, who feared, among others, for the fate of the first wife because of her poor health.28 Tabib’s case highlights the fact that the rabbinical establishment alone could not prevent cases of bigamy among Jews. II. Criminal Prohibition Against Bigamy: Section 181 of the Palestine Criminal Code Ordinance of 1936 The criminal prohibition against bigamy did not reach Palestine by itself; it came as one section of the mandatory criminal law, the CCO, enacted in 1936, following several years of preparatory work. The foundations of section 181 are apparent, at least in part, in the British law enacted in 1861: section 57 of the Offences Against the Person Act.29 The similarity between the language of this section, which imposes a prison sentence on a married British citizen (male or female) who marries another person, and that of section 181 is clear. Similar to section 181, the Offenses Against the Person Act stipulates three exemptions: (1) for non-British citizens who married a second spouse outside of England or Ireland;30 (2) for those whose spouse has been absent for seven consecutive years and there is no information about the spouse having been alive during this period;31 and (3) for those whose first marriage turns out to have not been valid. The law was clearly influenced by a Christian, anti-bigamist worldview,32 and therefore did not include an exemption clause for those British citizens whose religion allowed bigamy, especially since there were very few British citizens in Palestine at the time. But naturally, this approach was not appropriate for countries where bigamy was accepted as part of the citizens’ personal law. Therefore, the British were required to make adjustments to the bigamy section of the criminal law formulated for colonies inhabited by Muslims and members of other religions that permitted bigamy. The roots of the Palestinian CCO, and its intercontinental route, have been discussed before.33 The first relay point was the criminal code of Queensland, in 1899. Not surprisingly, the bigamy section of the criminal code adopted the British arrangement that did not recognize an exception for those whose religion allowed bigamy. The law then traveled from Australia to Nigeria, in West Africa (1904), and in 1925 it served as the basis of the draft criminal code that became a model for east African colonies. In Nigeria, a criminal bigamy section was enacted for the first time (section 370) which made the offense contingent specifically on the second marriage being void according to the citizen’s personal (matrimonial) law. This contingency was later adopted by the CCO. The Nigerian section was enacted because the domestic law of most residents did not prohibit bigamy. Even if the British regarded bigamy as improper, they did not want to interfere in domestic practices.34 The Nigerian section, already very similar to the one in the CCO, included, in addition to the requirement that marriage conform to the personal law of the citizen, the last two defenses mentioned above, which were available in British law (the former marriage has been declared void and the continuous absence of the spouse), becoming the first two defenses in the CCO. The last relay point of the CCO, before its arrival in Palestine, was Cyprus, in 1928. The island was home to a significant Muslim minority, and the British legislator believed that there was no reason to impose a criminal prohibition against bigamy on them. Therefore, British authorities imported the bigamy section from Nigeria, changing it only slightly35 by specifying explicitly that the second marriage must take place in Cyprus, by reducing the maximum penalty to five years’ imprisonment, and by establishing a third defense clause, in case the personal law of the husband allowed him to marry more than one woman (even if the second remarriage was eventually invalidated). It was in this form that the section arrived in Palestine and was included in a CCO amendment proposal in 1933, before eventually being enacted in 1936. The path followed by this section was delineated explicitly in a government document written in 1945 during a debate on the section 181 amendment.36 The document references section 57 of the British Offences Against the Person Act, section 130 of the draft model criminal code for east African colonies, and section 165 of the 1928 Criminal Code of Cyprus. The person who imported the CCO to Palestine, Norman Bentwich, pointed out that the bigamy section had been imported from Cyprus, in his opinion, because of similar circumstances in the two places.37 Bentwich appears to have been pleased with this clause and with the fact that it changed the previous legal situation, where there had been no prohibition against bigamy. It is possible to conclude, therefore, that section 181 of CCO is identical to its Cypriot predecessor. But was the situation in Palestine identical to that in Cyprus? The Melnik affair, which I discuss below, appears to have proved to the British that this was not the case, and it showed that the Cypriot section suited only the population of the island, which was predominantly Christian, though with a Muslim minority. For the former, bigamy was by definition invalid and fell within the scope of criminal liability; for the latter, such a marriage was allowed and therefore did not invoke criminal liability. But in Palestine, these two groups lived alongside a third one: the Jews, who had no uniform law on the matter. Some members of the Jewish community allowed bigamy, while others, in particular the Ashkenazi Jews (who constituted an overwhelming majority of Jews worldwide and in Israel at that time), prohibited it. Nevertheless, in none of the Jewish groups were bigamist marriages void. The Cypriot section adopted by the CCO did not impose criminal liability on any Jewish person, including those who belonged to a group holding that bigamy should be punishable.38 It seems that even before the enactment of the CCO, its drafters could have known that section 181 was problematic for the Jewish community. Already when the CCO was being prepared for publication, the Chief Secretary of the mandatory government approached attorney Mordechai Eliash, legal counsel to the Chief Rabbinate and an expert in Jewish law, and sought to obtain a summary of the position of Jewish law on the marriage of a man to more than one woman.39 The memorandum sent by Eliash in response contained a fairly detailed overview of the history of the rules governing bigamy under Jewish law and of the differences between the various Jewish groups.40 Note that Eliash emphasized three times, in two different sections of his memorandum, that bigamist marriages were not considered void even by Ashkenazi Jews, but were only prohibited. It is difficult to believe that Bentwich himself, who appeared to be proud of having imported the Cypriot bigamy section to Palestine, would not have been aware of the complexity of Jewish law, which was not foreign to him, on the issue of bigamy. Bentwich had served as honorary president of the Jewish Law Society, had written about Jewish law,41 and most likely knew the halakhic status of bigamist marriages. Later he stated explicitly that the 1936 section intended to allow bigamy only for Jewish groups that permitted it.42 In early February 1936, more than ten months before the approval of the CCO, the problem of section 181’s application to the Jewish community was raised at a public meeting attended by over two hundred lawyers. Attorney Mordechai Levanon, who in 1941 was appointed legal counsel of the Chief Rabbinate, in which role he was to be highly involved with the amendment of article 181, delivered a lecture on the CCO amendment proposal and on the various problems it raised, and he discussed at length section 181.43 He held that bigamy should undoubtedly be prohibited by state criminal law, and that it was proper for the prohibition to apply to Jews as well, and certainly to those who rejected bigamy. But in its proposed form, section 181 was going to fall short of this goal because, as I discussed earlier, under no circumstances was a bigamist marriage considered void according to Halakha. Levanon accurately predicted what later took place in the Melnik case: according to Levanon, even if all the rabbis were to declare that bigamy is prohibited for Jews, the court could not convict the bigamist man because the marriage was not void. Therefore, according to Levanon, the legislature should have drafted the section in such a way that criminal liability could be imposed even on Jews whose marriage was valid but prohibited. Why, then, did the proposed wording of the CCO, and subsequently the CCO itself, ignore Jewish law, and in particular the Ashkenazi variety thereof? There are two possible answers: the first is that this was not an intentional disregard, but in general there was a lack of critical, in-depth thinking when the Cypriot code was imported to Palestine. The desire of the legislature was to create a new criminal law for Palestine as soon as possible, and it did not pay attention to small details. More than 90% of the sections of the ordinance, including section 181, followed precisely the Cypriot code.44 Although we cannot rule out this possibility, it raises a considerable difficulty: in Chapter 18 of the CCO, where the offense of bigamy is located, there was significant intervention in the wording. The next section, section 182, was changed drastically from its Cypriot source45 because of differences in family law in the two places. The Cypriot section was quite short and equivalent to section 182(a) of the 1936 CCO;46 in other words, it dealt with those who had knowingly participated in arranging an illegal wedding ceremony. The section in the CCO was much longer, and dealt mostly with the definition of the offense committed by those who participated in arranging the marriage of a minor, and defined the defenses against conviction under this section, definitions which were not mentioned at all in the Criminal Code of Cyprus. The reason for the difference is clear: in Cyprus, the Marriage Act of 192347 regulated the terms of the registration of marriage and specified preconditions for registration, including minimum age. It was enough to include in the criminal law a prohibition against “illegal marriage.” In Palestine, however, until the enactment of the CCO there was no legal restriction on underage marriage, and the new section was the first to create it.48 It appears that this innovation was also the reason why section 182 defined it as a “misdemeanor,” punishable by only six months of imprisonment, whereas in Cyprus the corresponding section referred to a “felony” and imposed five years of imprisonment. Bentwich described the matters explicitly. He admitted copying the bigamy clause from Cyprus, but when referring to the prohibition against underage marriage he mentioned a new formulation of the law, consistent with the special conditions in Palestine.49 It is therefore quite clear that the authorities had taken into consideration the difference between Cyprus and Palestine in the area of criminal offenses relating to marriage law. The second possibility is therefore more plausible. According to this scenario, the legislature was aware that there was a problem with the language of section 181, but chose not to address it. The disregard was not the result of a policy, whereby criminal law was intended not to be applied to all Jews without exception, and should allow bigamist marriages even for those Jews for whom such marriages were prohibited by the customs of their community.50 It was by virtue of the extreme difficulty of drafting a general criminal clause that would impose a prohibition against a marriage that is not void, but that is not permissible, either (i.e., under Ashkenazi Jewish law), without at the same time imposing criminal liability on an Ashkenazi Jewish man who obtained a permit to marry a second woman (not to mention the fact that the legislature would also have to determine who was authorized to grant such a permit). There is no need to speculate about the difficulty of wording the relevant clause. The amendment to the CCO enacted in 1947 clearly shows how complicated this was. The amendment also illustrates how problematic the wording of the section was for those in charge of criminal legislation, which by nature should be general. The section could not be formulated in general terms, and it was necessary to refer explicitly to Jews. In other words, it was necessary to create an “ethnic” criminal section that clearly defined the unique laws applicable to Jews. Admittedly, the original section 181 also contained different laws for different religions, but it was formulated in a general way that failed to reveal the simple fact that it did not apply to Muslims, because it stated that it did not apply to anyone for whom bigamist marriage was not void based on their personal law (and thus it was possible to also include the Yemenite Jews in this group, for example). But the amendment of 1947 showed that the personal law of the Jews (at least of those for whom bigamy was prohibited) required the creation of a criminal bigamy section that addressed explicitly the status of the Jews as such, which has no parallel in any other section of the CCO and possibly in the entire criminal legislation of the British Empire (and, as noted, it remains unique in the present Israeli Penal Law). There is no doubt that this problem was caused by the recognition in mandatory law of the unique personal law of the three main communities living in the country, but it appears that in the 1930s the legislator was not prepared for such recognition to undermine the fundamental principles of criminal legislation, according to which legislation must be territorial, rather than enact different laws for different religious or ethnic communities.51 Nevertheless, the Melnik case shows that the prosecution assumed that the intention of the legislature was indeed to apply the section to Jews, certainly to Ashkenazi ones. The prosecution believed that it was possible to interpret the language of the section in a way that would allow such application, and it assumed that this was how the courts would interpret the section. Actually, this explanation for the disregard of Jewish bigamy law was suggested by Gad Frumkin, who was one of the judges on the Supreme Court of Palestine in the Melnik case.52 More or less the same idea was presented by others as well, including Paltiel Dickstein, Eliezer Malchi, and Yitzhak Glasner.53 Despite the problematic nature of section 181, officials of the Jewish community showed almost no reservations about it between the time the bill was published, in 1933, and its final acceptance at the end of 1936. Except for the comments of Levanon, mentioned above, no criticism was voiced on the part of the entities who were involved in the section’s amendment in the wake of the Melnik case: the Chief Rabbinate and the Union of Hebrew Women for Equal Rights in Eretz Israel (UHW), the first feminist organization in Palestine.54 Note that at the time, the UHW was quite active in the (eventually successful) attempt to change section 182.55 Even if we assume that the status of Jews in general was vague, it was clear that the criminal prohibition would not apply to eastern Jews who practiced bigamy, against whose freedom to do so the UHW had been fighting several years earlier. Even after the law took effect, the Chief Rabbinate and other entities overlooked the fact that, in practice, the law did not prohibit bigamy for all Jewish citizens. The assumption of the Chief Rabbinate at the time was indeed the opposite: it believed that the law went too far and that Jews would be unjustly convicted based on it. The problem stemmed from the fact that mandatory law did not grant the Chief Rabbinate the authority to settle divorce procedures for Jews who were not nationals of Palestine.56 This concern was raised by the Tel-Aviv Chief Rabbis Ben-Zion Meir Hai Ouziel and Moshe Avigdor Amiel. They believed that a Jew who was a foreign national, who divorced and remarried in Palestine, would be charged with an offense under section 181 because his divorce would not be recognized by the law in Palestine, and the rabbi who arranged the marriage ceremony would to be convicted under section 182 for conducting a wedding ceremony not in accordance with the law.57 The problem was raised during Passover in 1937 at a conference of the Chief Rabbinate and local rabbinates, in the presence of representatives of the National Council and other institutions.58 An article published under the pseudonym “A Lawyer” at the end of 1937 tested the applicability of the bigamy section to Jews.59 The author argued that section 181 was highly problematic, and the article dealt with the issue raised by the Chief Rabbinate, stemming from a lack of clarity regarding the divorce law in Palestine. At the beginning of the article, the author assumed that the offense defined in the section did not apply to Oriental Jews (noting that “[t]here are, in fact, in Palestine many reputable Jews with more than one wife”), and that it applied only to Ashkenazi Jews. The author pointed out additional difficulties regarding the section, and concluded with the following statement: “It will be interesting to see, as times goes on, whether the new law as far as Jews are concerned will not remain a dead letter.”60 The author did not have to wait long. Shortly thereafter, the Melnik case began, which demonstrated to the authorities, the Chief Rabbinate, the UHW, and other Jewish parties that the bigamy clause was indeed dead letter for all Jews in the country. III. The Melnik Affair: Bad Law Makes a Hard Case The story of Ya’acov Melnik and his trial could fill an entire article, but here I discuss only the key factors, in particular those relating to changes to the bigamy section of the CCO.61 Most of the details presented below are taken from the protocols and rulings in this case.62 Melnik was arrested by police in September 1937 on charges of bigamy.63 After having married a woman in 1929, and having concealed this fact, he married two other women in 1936 and 1937. Melnik was brought in for questioning before Judge Shneur Zalman Heshin, who was a magistrate court judge in Tel-Aviv. Heshin had to decide whether Melnik violated the provisions of section 181 of the CCO, and therefore whether he should be tried in the district court.64 Heshin was persuaded that there was no doubt regarding the facts: Melnik was married to three women. The judge had to determine whether the elements of the offense were present. Heshin considered the requirement of the section, whereby the second marriage must be null and void under the man’s personal law. Two expert witnesses appeared before the court: Rabbi Moshe Avigdor Amiel, the Ashkenazi Rabbi of Tel-Aviv, for the prosecution, and Shmuel Eisenstadt, a scholar of Jewish law, for the defense.65 Heshin conducted an extensive halakhic discussion in the judgment, relying on the testimony of the experts. Although Rabbi Amiel tried to emphasize the gravity of Melnik’s act and the severity of the Ban of Rabbeinu Gershom, he could not claim that the marriage was null and void. Heshin also discussed the additional claim raised by the prosecution that Melnik misled his second and third wives into thinking that he was unmarried. This deception could result in the consecration of the marriage (kiddushin) being “mistaken,” and therefore the marriage being null and void.66 According to Heshin, it was quite possible that based on different halakhic opinions the annulment of the kiddushin could be discussed, but this would not help convict Melnik, again because of the wording of the section which restricts the cause of voiding a marriage to a single reason: “By reason of its taking place during the life of such husband or wife.”67 In our case, the later marriages may have been null and void, not because they were bigamist, but because the women had been misled. Heshin concluded by stating that his long discussion served one goal: to show “how necessary it is for the benefit of the public to amend the wording of section 181 . . . in a way that it would include also a case such as that before me.”68 Still, the practical result of the verdict was the same: “No sufficient evidence was brought before me to prosecute the accused, and I hereby decide to dismiss the charge and release the accused if there are no other charges against him.”69 Heshin’s verdict of January 1938 apparently left no room for doubt. Nevertheless, District Attorney William James Fitzgerald decided to put Melnik on trial.70 The prosecution may have been persuaded to indict Melnik because of the serious facts of the case, which were not in doubt, and because of the extensive attention it was given in the press,71 together with the fact that the practical conclusion of the Heshin verdict was that the prohibition against bigamy did not apply to Jews at all. The trial was held in the Tel-Aviv District Court before a panel that included one British judge and two Jewish judges. It was held in July and again in October 1938. Twelve witnesses appeared before the court, including three rabbis (the two rabbis involved in arranging Melnik’s bigamist marriages and Rabbi Amiel). The first two testified that Melnik misled them when he claimed that he was unmarried, a claim that Melnik had backed up with documents. All three admitted that a marriage contrary to the Ban of Rabbeinu Gershom was not void, but Rabbi Amiel tried to substantiate the argument that this was a case of “mistaken kiddushin.” At the same time, Amiel admitted that he would be reluctant to allow Melnik’s “later” wives to marry another man without first obtaining a bill of divorce (get) from him.72 The verdict was handed down on October 6, 1938. Again, it was determined that there was no factual doubt that Melnik was married to three women, but his personal law did not regard his bigamist marriages as void (only as prohibited), and as long as no divorce had taken place the marriages were valid in all respects, and the husband bore toward his additional wives all the responsibilities that a husband owes to his wife.73 Melnik won a second time. The prosecution did not despair. On November 14, 1938, an appeal was filed with the Supreme Court, specifying as grounds for the appeal “that the lower court wrongly held that the marriage of the respondent . . . was not void within the meaning of section 181.”74 The meaning of the mistake can be gleaned from what the Supreme Court indicates in its verdict: “Counsel for the appellant . . . submitted, inter alia, that the word ‘void’ in section 181 . . . should be interpreted to mean ‘voidable,’ otherwise the intention of the legislature would be defeated. . . .”75 This suggestion, according to which the term “void” can also acquire the meaning of “voidable,” is based apparently on a possibility raised and rejected by Heshin in his judgment, namely that the marriage was voidable because, being contrary to the Ban of Rabbeinu Gershom, it called for the coercion of the husband to divorce his second wife.76 But the Supreme Court ignored this argument. The path it followed to solve the case was simple. It used its authority under article 47 of the King’s Order-in-Council, stating: Where in any civil or criminal cause brought before the Civil Court a question of personal status incidentally arises, the determination of which is necessary for the purposes of the cause, the Civil Court may determine the question, and may to that end take the opinion, by such means as may seem most convenient, of a competent jurist having knowledge of the personal law applicable.77 On December 1, 1938, Chief Justice Harry Trusted sent a letter to the Ashkenazi Chief Rabbi, R. Yitzhak Isaac HaLevi Herzog, with a request for an opinion on this case.78 He described the facts of the case and defined the precise question for which he requested an answer from Herzog—Is the remarriage void for the very reason that it was undertaken when the man was already married? Herzog took his time to answer.79 He sent his opinion only on January 10, 1939, indicating that there is only one instance in the Halakha in which the second marriage is null and void “by reason of its taking place during the life of such wife,”80 as required by law: the case of a man who married his wife’s sister while his first wife was alive (even if the man had divorced his first wife before he married her sister). The bigamist marriage of an Ashkenazi man is prohibited, yet valid in every way. The two British justices, Trusted and Greene, based their verdict on this opinion, which led, as a result, to the final acquittal of Melnik on January 19, 1939. Frumkin, the Jewish justice, wrote his verdict separately.81 He also mentioned Herzog’s opinion and wrote that the appeal must be rejected. But Frumkin also represented the position of the Jewish community, which he had done in other contexts as well.82 After a review in which he determined that most of the Jewish groups distance themselves from bigamy and consider it a sin, he called on the legislature to change the section in a way that would impose criminal liability if the marriage was prohibited, even if not void. Frumkin’s calls to change section 181 were added to those issued by Jewish institutions, voiced before Melnik’s final acquittal by the Supreme Court. Frumkin continued to participate, openly and covertly, in the efforts to amend the wording of the section.83 IV. Activities of the Chief Rabbinate for Amending Section 181 Melnik’s final acquittal increased the efforts by the Chief Rabbinate, already underway during the trial, to amend section 181. The Rabbinate sought an amendment that went beyond the original intention of the legislature, where the criminal section applied only to Jews whose personal law prohibited bigamy (as, for example, Melnik). The Chief Rabbis used the Melnik case to achieve their larger agenda, which would prohibit bigamy for all Jews in the country, regardless of their ethnic origin. By contrast, it is not clear to what extent the Supreme Court ruling motivated mandatory legislative officials to amend the section. From the outset, the mandatory government pointed to the Jewish pressure as a motivation for amending the section, and it is clear that the government did not regard the section as particularly problematic.84 The government lawyers did not propose their own amendment to the section, and discussions were held on the basis of proposals made by the Chief Rabbinate.85 This attitude persisted throughout the amendment process, which ended only in March 1947. (See the Appendix below; the proposed amendment was officially published on October 18, 1945.) The lack of enthusiasm of the authorities toward amending the section—certainly according to the ponderous wording suggested by the Chief Rabbinate, which was eventually accepted—was a key reason why the process lasted over nine years. To a great extent and for understandable reasons, the debate on the amendment of the section became an internal Jewish debate: both its supporters, who proposed its enactment, and its opponents, who tried to thwart the former, were Jewish. A. The True Drafters of the Amendment of Section 181 The explanatory text of the amendment to section 18186 mentions the Chief Rabbis as acting to amend the law following the Melnik ruling: “Following upon this decision representations were made to Government by the Chief Rabbis of the Jewish Community to amend the law, and the Bill now published for information has been drafted in consultation with the Chief Rabbinate.”87 Examination of the documents shows that this is an understatement, and Herzog did not exaggerate by much when he later wrote: “And as far as the bigamy law is concerned, I drafted the law . . . .”88 This was not merely an initiative of the Chief Rabbinate to amend the section, and not merely a consultation. Because the authorities regarded the problem posed by the Melnik case as an internal Jewish one, which moreover required a complex solution, they abstained almost completely from offering their own solutions and referred it to the sources that, apart from being the experts on the matter, were also the ones who demanded a remedy to the situation. The Chief Rabbis were almost singularly responsible for the formulation of the section,89 and therefore embedded their inclinations in the text: using criminal law to impose their halakhic view, which rejected bigamy, on all Jews living in the country, regardless of their ethnic affiliation,90 and enhancing the role of the Chief Rabbinate, as reflected in subsection (d) of the amended section, which stated that the ruling to permit the marriage was within the exclusive jurisdiction of the courts under the Chief Rabbinate and had to be signed by the Chief Rabbis.91 The Chief Rabbinate became involved only when the Supreme Court approached Herzog requesting his opinion. Earlier, however, the Tel-Aviv Rabbinate had addressed the problem raised by the acquittal of Melnik in the district court of the city. This point is important because at the time, the Tel-Aviv Rabbinate was headed by Rabbi Ouziel, who in the summer of 1939 was to be appointed Sephardic Chief Rabbi of Palestine and to fight alongside Herzog for the amendment of the CCO (his colleague was Rabbi Amiel, who testified for the prosecution in the Melnik trial, but was then a less dominant figure in the Tel-Aviv Rabbinate, where his tenure had started only two years earlier). Already in March 1938, Ouziel discussed ways of amending section 181 with attorney Paltiel Dickstein, in light of Heshin’s decision concerning Melnik.92 At Ouziel’s request, Dickstein drafted a proposed amendment,93 for which Ouziel thanked him.94 The words reflect his personal position on bigamy: “We deeply thank Your Honor for your initiative and very important proposal on the basis of which we will try to make the law match our laws and customs in order to prevent the reign of anarchy in Jewish family life.”95 Dickstein’s proposal was passed on to the Chief Rabbinate. As noted, Herzog became involved only when the Chief Justice asked for his opinion in the Melnik affair.96 Having understood the problem presented by the CCO section, Herzog submitted to the Chief Justice three proposals for amending the section, along with his opinion.97 In his letter, Herzog hinted for the first time at the halakhic function played in Palestine, he believed, by criminal law. Herzog explained that bigamy was prohibited and considered morally reprehensible among Ashkenazi Jews, who made up an absolute majority of the Jewish world population at the time. Therefore, Palestinian law (as Palestine was the center of Jewish existence), had to protect the institution of monogamy sanctified by these Jews over centuries. Herzog submitted the proposed amendments by attorneys Dickstein and Eliash, and offered one of his own in his letter: the section must be formulated in such a way that the prohibition applies to those whose religion prohibits bigamy (“[w]hen marrying the two is prohibited for him based on the religion of his community for the reason that his first wife is still alive”98). But Herzog went further. He found an opportunity to consolidate the position of the Chief Rabbinate. He proposed that the law stipulate that the authority to rule on the question of prohibiting such marriage be vested in the supreme rabbinical court of each community: “In the case of Jews, that authority is the Chief Rabbinate of Palestine.”99 After the Melnik trial, Herzog added in handwriting: “This is to my mind the only remedy (IH).”100 The letter ends by stating that the authorities must choose the appropriate proposal of the three, stressing that the Sephardic Jews in Palestine also wanted to amend the section. Herzog believed that criminal law is an appropriate means of imposing the prohibition against bigamy on most of the Jews living in Israel. He made this clear publicly, for example, in the following, somewhat apologetic statement regarding the appropriateness of his action, published in the newspaper HaTzofe: because at present it is not possible to consolidate the Jewish religion and prevent bigamy by halakhic institutions, “it is necessary for government law to add its own penalties to the religious ones regarding the marrying of a second woman against the dictates of our holy Torah.”101 Naturally, this position was a cause for concern among Eastern Jews. After Herzog’s proposal was made public, the Religious Council of Yemenite Jews in Palestine addressed a harsh letter to him,102 protesting against the attempt to impose practices on Yemenite Jews that were unacceptable to them and contrary to what “our holy Torah” permits. The Council demanded that the law be enacted such that it applies to communities that did not prohibit bigamy. Herzog’s secretary answered that the Rabbi was not in the country, but it was clear that “he did not propose any change concerning marrying a second woman in accordance with the custom of each and every community.”103 This may have been true, at least in part, when the letter was written, as we shall soon see. The authorities were reluctant to accept Herzog’s expansionary position because their fundamental method avoided, as much as possible, any interference in the arrangements of residents’ personal law. In a first reference to Herzog’s proposed amendment,104 the Chief Secretary of the Supreme Court wrote that according to the rabbi’s opinion in the Melnik case, bigamy was prohibited for Ashkenazi Jews alone, and therefore the government considered the proposed amendment to refer only to Ashkenazim. Herzog wrote an answer, but apparently did not send it.105 In his answer, Herzog explained that, although they did not entirely prohibit bigamy, Sephardim, too, tended to prevent it by means of private clauses.106 Therefore it made sense for criminal law to apply to Sephardim as well, especially in view of the fact that most of them were interested in such a law. Herzog stressed, however, that his personal proposal, according to which it was the Chief Rabbinate that ruled in the matter of prohibiting marriage, allowed bigamist marriage for Yemenite Jews, who permitted it. It seems to me that Herzog delayed his answer because he was waiting for the appointment of Ouziel as the Sephardi Chief Rabbi.107 Ouziel’s position was well known to Herzog,108 who understood that the opinion of the Sephardi Chief Rabbi would carry greater weight than his own in the matter of the prohibition of bigamy for the non-Ashkenazi communities.109 Ouziel did not disappoint. Surprisingly, he adopted a position that was even more extreme than Herzog’s.110 According to Ouziel, bigamy was prohibited for all Jews in Israel, without exception. In an opinion sent to the High Commissioner at the end of December 1939,111 Ouziel explicitly addressed Herzog’s proposal for amending the section as well as the reservations of the Chief Secretary regarding the applicability of the section to non-Ashkenazi Jews. Ouziel wrote: “In this connection I support the proposal of my colleague, Rabbi Herzog, with small changes, because it is appropriate for all Jews living in the Land of Israel, of all ethnic origins and from all communities, as I clarify below.”112 Ouziel went on to cite several halakhic sources, but his main argument was “local custom.”113 He claimed that in Israel, there existed an ancient regulation, originating with Sephardic rabbis, that rejected polygamy, which explains the age-old custom to marry only one woman. Because local custom is binding on all those who come to the place,114 bigamy is prohibited for all Jews in the country, regardless of their origin. The letter ends as follows: For these reasons, I formulate the proposed bigamy law as follows: A man who marries another woman in addition to his wife illegally while his wife is still alive and before she was legally divorced from him, and this second marriage is prohibited for him according to the religion and custom of his community, because his first wife is still alive and had not yet divorced him in a religious divorce, etc. shall be punished, etc. [sic] The absolute authority for prohibiting this marriage is the Supreme Rabbinical Court of each community recognized as such by the Government of Palestine.115 The significant difference between Herzog’s and Ouziel’s proposals is the addition of the word “custom.” This word extends the prohibition to Jews living in Palestine, whose ethnic law does not rule out bigamy, by making them subject to “local custom.” The authorities adopted Ouziel’s proposal. In March 1940, they sent to the Chief Rabbis a request for comments on the amendment they had drafted,116 which differed from the original text of section 181 by adding that the second marriage can be “void or prohibited under the law or custom governing the personal status of such person.” The rest of the section did not change, except for the addition of “law and custom” in subsection (c). The response of the Chief Rabbis contained two comments, both of which were eventually accepted in the official proposed amendment.117 The first comment stemmed from their desire to strengthen and clarify the status of the Chief Rabbinate. They therefore suggested eliminating from subsection (a) of the original section the term “or by a competent ecclesiastical authority,” leaving only the term “by a court of competent jurisdiction.”118 The second comment had to do with subsection (b), which defined a defense based on the absence of one of the spouses. Again a proposal was drafted, including amendments based on the recent comments of the Chief Rabbis. The authorities appeared to believe that the matter was closed. The High Commissioner sent the proposal to the Chief Justice with a letter explaining that this should resolve the problem raised by the Court in the Melnik ruling.119 The letter states specifically that the section was based on Herzog’s proposal, and that the amendments were made in consultation with him. Chief Justice Trusted passed the proposal to the Jewish Justice Frumkin, whom Trusted identified as having a special interest in the subject. This is not surprising because it was Frumkin who in his judgment called on the legislature to amend the section. Frumkin’s comment concerned the use of the term “custom,” which could acquire different meanings. In his opinion, the section should state explicitly that in this context “custom” was a practice approved by the supreme religious authority of the community that claimed the existence of the practice. He went on to say that the use of the term “custom” in subsection (c) was highly problematic because it was not possible to depend on custom as the basis for permitting bigamy, and therefore the term should be omitted from this subsection. Trusted himself had reservations about the proposal sent to him, and his specific reservation followed from a general one, which he expressed in his letter. Trusted even mentioned a bill he had drafted in the past, according to which a civil family law system should be established for those who are not Muslims or members of a recognized ethnic group, which would solve at least part of the complex problems he referred to: “The difficulty created by vesting the jurisdiction of personal status in the courts of religious communities is fundamental, and it is hard to see how it can be overcome so long as that jurisdiction remains so vested.”120 I believe that Trusted’s words represent a position that was prevalent among the mandatory judicial authorities, who rejected the very idea of creating an “ethnic” bigamy law, made necessary by the complicated system of family laws in Palestine. Perhaps this position, reflected in Trusted’s unenthusiastic response, was among the factors that caused the suspension of discussions about the amendment, together with other possible causes, such as the fact that at the time a difficult war was being waged, which endangered Palestine as well. Various aspects of the war were heavily on the minds of the Chief Rabbis, in particular Herzog, who devoted much time and effort to attempts to save the Jews of Europe, which necessitated extensive travel, among other things. In any case, I found no reference to this topic from mid-1940 to 1944, except in various letters sent by the UHW urging the authorities to amend the section expeditiously.121 At the beginning of 1944, the Chief Rabbinate and the authorities started dealing with the issue again. In February, Ouziel sent a new proposed amendment to the Chief Secretary, signed by the Chief Rabbis, stating that “it appears to us to be conforming with Jewish marriage law.”122 This proposal indeed influenced the proposed amendment sent to the Chief Rabbis in May 1944,123 and included also the clarification proposed by Frumkin regarding the definition of “custom,” but it limited the defense of absence of the spouse to cases in which the law or custom recognized such absence. The Chief Rabbis responded to the above proposal only in December 1944.124 I believe that the large gap is explained in the letter itself: the Chief Rabbinate decided to draft its own complete amendment proposal, rather than repeatedly comment on the British proposals, which were in any case based on the Rabbinate’s own suggestions. The Chief Rabbis wrote that the proposal was drafted “together with our legal adviser, attorney Mordechai Levanon,” and that the proposal was preferable to the last proposal of the government: “It appears to us that our wording, although it retains all the basic elements of Your Honor’s proposed amendment, is simpler and clearer, and therefore more effective against attempts to violate the law with impunity, particularly as far as members of the Jewish community are concerned.”125 The legal counsel to the Chief Rabbinate, attorney Mordechai Levanon, was a dominant factor behind the drafting of the amended section, and he appears to have been directly responsible for the final wording of the section.126 It is clear that the proposal of the Chief Rabbinate served as the basis for the amendment published in October 1945.127 In the course of that year, following the correspondence between the authorities and the Chief Rabbinate, the latter announced that it trusted the proposed amendment, expressed gratitude for “the full understanding and sympathy of the honorable Attorney General,” and hoped that it would be approved “as soon as possible.”128 On October 18, 1945, the proposed amendment was published in the Palestine Gazette, and it took effect almost with identical wording on March 15, 1947. Why did so much time pass between the publication of the proposal and its enactment? The answer lies, in part, in the objections raised by various Jewish organizations following the publication of the proposal (these organizations, which naturally did not participate in shaping the amendment, discovered its content only after its publication129). The objections concerned various details of the amendment having to do with the halakhic and political motives of the Chief Rabbinate. The section was shaped by the conceptions of the Chief Rabbis, and not everyone in the Jewish community in the country agreed with these conceptions.130 V. Objections to the Proposed Amendment: Halakha, Ethnicity, and Politics A. The Chief Rabbinate and the UHW: The Controversy Concerning the Absence Defense One of the defenses, derived from the English law of 1861 through various intermediary stations and which was incorporated into section 181 of the CCO in 1936, is the defense found in subsection (b): proof of the absence of the husband or wife for seven consecutive years. Jewish law does not recognize such a defense, especially when it comes to the absence of the husband. In other words, a married woman cannot marry another man without reliable information that her husband is dead. As noted, the main concern of the Chief Rabbis was to amend the wording of the clause, which required the second marriage to be halakhically null and void as a condition for the applicability of the offense. As part of attempts to redesign the section, the Chief Rabbis decided to embed in it also the halakhic position that does not regard absence as a factor permitting marriage. In a letter from April 1940, the Rabbis explained the halakhic problem and pointed out the difference between husband and wife: “[I]n the case of prolonged absence of the wife, it is possible to grant the husband a religious permit to marry another woman without dissolving the previous marriage.”131 But they believed that the husband should not be granted automatic permission either, and therefore suggested adding the following words to the section: “. . . provided that the law or custom governing the personal status of such husband or wife permitted remarriage under those circumstances.”132 This proposal was accepted,133 but it appears that at the beginning of 1944 a new proposal was drafted, from which this correction was removed, and to which the Rabbis responded in February 1944, stressing again the reasons for their opposition: The matter of the disappearance of the husband or wife for seven years (or some other number of years) as a reason for permitting, as if automatically, that the husband or wife take another wife or husband is absolutely contrary to Jewish law, and we request that it be struck from the proposed ordinance. According to Jewish law, it is possible in some cases, under known circumstances, to remove the anchor chains [bonds of marriage] of the husband or the wife, even after a shorter period than seven years since the disappearance of the spouse, and in other cases it is not permitted to remove them even after a longer period than seven years had passed.134 This demand was accepted, and the official proposed amendment completely removed the Jews from the applicability of subsection (b).135 Here, too, Jewish law helped shape the section. This matter resulted in a certain conflict with the UHW, who naturally participated in the efforts of the Chief Rabbinate to amend the section as a whole. The motive of the UHW was clear: to protect married women. The UHW was well aware of the fact that the chances of a woman becoming agunah (“anchored” or tied down by a missing husband and unable to remarry) were much greater than those of a husband,136 and it therefore fought against changing the absence clause. Indeed, this was the struggle of the Tel-Aviv branch of the UHW, whereas the management of UHW thought that, for technical reasons, it was not appropriate to fight this battle because it would delay the approval of the amendment.137 The Tel-Aviv branch decided to contact the Attorney General in this matter.138 The letter stated that in general the proposed amendment was excellent and must be approved as soon as possible, but changing the absence clause was undesirable. The clause “is based on English law, and it is logical and reasonable, especially given that during the war thousands and tens of thousands were lost under such circumstances that it will be impossible to obtain sufficient evidence about their deaths.”139 The author pointed out that she was aware of the fact that Jewish law required a special permit and did not recognize mere absence as permitting marriage, but the government need not intervene in any way in Jewish religious laws . . . . If a woman will violate in this case a Jewish religious law and marry without the permission of the Rabbis, the state ought not impose a penalty on her . . . because she will have moral justification for her second marriage . . . .140 This letter illustrates the difference in viewpoints between the Rabbis, who regarded the law as an instrument for imposing their halakhic position, and the women of the UHW who believed that the function of the law was to protect the status of married women. The Attorney General passed the letters on to the Chief Secretary, who sent it to the Chief Rabbinate for consideration.141 The Chief Rabbinate asked its legal counsel, attorney Mordechai Levanon, to persuade the UHW to withdraw their objection. Levanon wrote a letter to the Tel-Aviv branch in which he explained that the UHW demand was meaningless and it merely delayed acceptance of the amendment.142 According to Levanon, the absence clause had been in existence for more than nine years, but never had a woman successfully re-married on the strength of this clause because no rabbinate would agree to officiate such a marriage without evidence of the husband’s death, irrespective of the question of criminal liability. In other words, the amendment would not change the existing situation—namely the Chief Rabbinate’s refusal to allow the woman to re-marry—while at the same time, no criminal prohibition would prevent her from living with another man without being married. Therefore, Levanon asked that the Tel-Aviv branch approach the authorities and clarify that it did not demand preserving the status quo. The Tel-Aviv branch did so, and in a letter to the Chief Secretary, asked to withdraw its objection so as not to delay, “even for a short period,” the acceptance of the amendment.143 Nevertheless, in a response to Levanon, the Chairwoman of the Tel-Aviv branch, Fania Matmon-Cohen, wrote that the objection was withdrawn only in order to eliminate the delay in the acceptance of the amendment and “for the purpose of the mutual understanding, which should exist between our organization and the Chief Rabbinate Council,” but she did not agree that a change in the absence clause was meaningless.144 A greater delay in the acceptance of the amendment was caused by political and halakhic opposition by two other players. B. The Chief Rabbinate and the Yemenites: The Controversy over the Prohibition of Bigamy The Chief Rabbis shaped the law as a tool to assist them in imposing their halakhic view, according to which the prohibition of bigamy should apply to all Jews in Israel. Although we saw a reassuring response that representatives of the Yemenite Jews received to their demands not to be included in the prohibition of bigamy, after Rabbi Ouziel took office, the Chief Rabbis sought not to leave any chance for the possibility that the criminal law would not apply to all Jews in the country.145 The publication of the proposal in late 1945 naturally caused great anger among public officials and rabbis of the Yemenite community. On the same day, in September 1946, two letters were sent to the High Commissioner John Standish Surtees Prendergast Vereker (6th Viscount Gort): one from the Yemenite Organization in Palestine,146 which was a political body, and the other from the Religious Council of Yemenite Jews in Eretz Israel,147 a rabbinical body established by the Yemenite Organization. The second letter was signed by eleven prominent Yemenite rabbis of Israel. The letters explained that the proposed amendment opposed the Halakha and practice customary among the Jews of Yemen, whose law is the original Torah law, which permits polygamy, and that the Ban of Rabbeinu Gershom changed it only for Ashkenazim. If the proposal were to be accepted, it would gravely harm Yemenite Jews living in the country and those who may wish to immigrate to Israel.148 Therefore, they asked that the amendment not be approved, or alternatively, that it not apply to the Yemenite community. These two letters were sent by the High Commissioner to the Chief Rabbis, but it appears that they were not sent together, and the Rabbis responded to them separately. Their comments illustrate the motives of the Rabbis and their position on bigamy, as well as their halakhic considerations and the ways of realizing them through criminal law. The Rabbis responded to the letter from the Yemenite Organization as follows: Our opposition to bigamy and our efforts to close the gaps visible here and there . . . are not based only on the Ban of Rabbeinu Gershom but on the established and decreed Halakha that it is not permitted to marry another woman where the custom is not to marry such, and the Land of Israel is a place where they used not to marry another woman, and therefore this prohibition applies here on every Jew regardless of community and origin. As far as the special and exceptional cases are concerned, in which a Jew is allowed to marry another woman, as stated, subsection (d) contains sufficient provisions for it. We reiterate that we consider the proposed amendments of section 181 . . . one of the best and most efficient guarantees for preserving the institution that was consecrated by the Jewish nation and by most of the civilized world—monogamy—together with the preservation of the rights of those people who on the basis of particular circumstances and in accordance with the laws of our Torah are allowed to marry otherwise.149 These ideas were repeated in the response to the Yemenite rabbis’ letter.150 In their response, the rabbis again presented halakhic sources supporting the claim that bigamy was prohibited to all Jews in Israel. The Chief Rabbis added that the claim whereby the amendment violated the religious feelings of the Jews of Yemen “cannot be taken seriously” because even their rabbis must admit that there is no religious obligation to marry more than one woman. They reiterated that the amendment merely gives official sanction and validity to an existing religious institution for the majority of the Jewish people for centuries, including the Oriental communities. There is no need to expand upon the fact that the benefit and repair that it is likely to bring to family life and society are infinitely greater than the reluctance that it is liable to arouse in a few individuals with opposite tendencies.151 Note that of all the objections received by the authorities, those raised by the Yemenites appear to have been the most worrisome. The concern comes from the letter of the Attorney General to the Chief Secretary,152 in which he noted that his only doubt had to do with the demand of the Yemenites that the prohibition not apply to them. This doubt may have stemmed from the fact that, from the beginning, the British had sought not to prosecute individuals whose personal law allowed bigamy and believed that there should be no difference, as far and criminal law was concerned, between the treatment of Muslims and Jews for whom polygamy was permitted. The Attorney General concluded, however, that upon careful consideration, the position of the Chief Rabbinate must be accepted. The halakhic position of the Chief Rabbis became state law. C. The Chief Rabbinate and the Ultra-Orthodox: The Controversy over the Authority of the Chief Rabbinate The Chief Justice of Israel, Shimon Agranat, described the development of section 181(d) as follows: When that legislature stipulated, for the purpose of the exemption in section 181(d), that the marriage permit granted by the rabbinical court must be subject to the supervision of the Chief Rabbis, it relied on the discretion of the latter, whom it perceived as having the supreme halakhic authority regarding cases in which the permit will be used to exempt people from the bigamy offense.153 Indeed, the amendment defined the Chief Rabbinate as the sole authority for granting marriage licenses and as a halakhic authority with wider powers than those of the ultra-Orthodox rabbinical courts (“private” or unofficial courts), which received autonomous status during the Mandate period.154 It is clear from the amendment that an Orthodox Jew, who was not a member of the official organization “Knesset Israel” (the Chief Rabbinate was one of its institutions) and therefore was not subject to the authority of the courts of the Chief Rabbinate in matters of personal status,155 was still subject to the Chief Rabbinate and its courts when applying for a permit to marry a second woman.156 This recognition also represents a great success of Rabbis Herzog and Ouziel, who believed that the Chief Rabbinate was indeed the supreme halakhic institution of Palestine in every respect, and sought to establish its superiority over other rabbinical courts.157 It is reasonable to assume that in our case it was not merely political ambition but also the desire to deny irresponsible rabbis the authority to grant marriage licenses,158 and to limit the situations in which they were granted to those halakhically justified in the opinion of the Chief Rabbis. It is clear that the requirement that both Chief Rabbis supervise the granting of permits greatly reduced the number of men who were married to more than one woman.159 Already in his proposal of 1939, Rabbi Herzog wrote that the law should expressly mention the Chief Rabbinate.160 The matter was raised again in 1944, when the Chief Rabbis sought to change the provisions of subsection (a) of the 1936 section: “Instead of the phrase ‘religious authority,’ which leaves room for doubt and possibly for different interpretations . . . we think that it is preferable to use the simpler and better known words ‘the recognized court of the religious community.’”161 The Rabbis emphasized earlier that the amendment should be worded in such a way that “it is clear that the reference is to all Jews,” so as not to create a basis for interpreting, “accidentally or deliberately, that the bigamy ordinance is aimed specifically at Jews whose names are registered in the roster of Knesset Israel.”162 Naturally, the fact that the authorities acquiesced to the request of the Chief Rabbinate and defined it as the only authority for granting marriage permits for a second wife was not to the liking of the ultra-Orthodox, who had never accepted the authority of the Chief Rabbinate, did not consider themselves subject to it, and did not regard their own courts as inferior to those of the Rabbinate. Objections to the proposed amendment were voiced by four ultra-Orthodox entities; for three of them, the central issue was that of the authority of the Chief Rabbinate.163 The Central Committee of Agudat Israel in Jerusalem presented its position in a long letter, according to which the Chief Rabbinate and those who headed it had authority, under the King’s Order-in-Council and the Religious Communities Ordinance, only over members of Knesset Israel. But subsection (d) of the amended section 181 granted them sole authority for issuing marriage permits for a second wife. This created a situation in which ultra-Orthodox Jews, who were not subject to the authority of the Chief Rabbinate and who did not recognize it, would be indicted for the crime of bigamy when they received a permit to marry a second wife from the religious court to which they are subject. Thus, Agudat Israel argued, the section discriminated against ultra-Orthodox Jews and their courts, which were recognized de facto by the law. The letter acknowledged that it made sense to impose a criminal prohibition against bigamy, but argued that the way in which the text of the section was worded was too broad and discriminatory. It suggested that the defense clause explicitly include marriage permits granted by the ultra-Orthodox religious courts, and that if this proposal was not accepted, it would be better to leave in force the existing section, despite its flaws. The authors of the letter offered an alternative proposal, which they claimed had been submitted in the past, to establish a “real” Chief Rabbinate whose authority would be recognized by the ultra-Orthodox as well, which would serve as a supreme halakhic authority for all Jews in the country, and would be authorized to grant them marriage permits. A similar protest, only sharper, appears in the letters of the ultra-Orthodox community in Jerusalem, who called their court “The Chief Rabbinate of Orthodox Jewry of Palestine.” Rabbi Dushinsky, the presiding judge of the Orthodox court, brought extensive evidence for the fact that the rabbinical court of the ultra-Orthodox community was an old and entrenched institution, established long before the Chief Rabbinate, and therefore its authority was unquestioned. Dushinsky understood not only subsection (d) of the proposed amendment, but also subsection (a), as undermining the authority of his court, and in practice denying the validity of the divorces it decrees. According to him, acceptance of the amended clause flagrantly violated the religious freedom of the ultra-Orthodox, and therefore it should be rejected. The objections were passed on to the Chief Rabbinate, which answered them a year later!164 Its reaction was rather sharp, and it is possible to detect in it echoes of the polemic in principle regarding the status of the Chief Rabbinate vis-à-vis the ultra-Orthodox groups. The Chief Rabbis argued that in subsection (a) they did not intend to deny the authority of the ultra-Orthodox courts to grant divorces. They claimed it was clear from the wording of section 181 that the reference was to a man who was divorced and married another woman. In this case, serving as a defense would be the fact that the first marriage was declared null and void by a “court of competent jurisdiction.” In any case, the section did not deal at all with divorce, and moreover, for the purposes of this section, a “court of competent jurisdiction” was any court that had jurisdiction over a particular religious group; the ultra-Orthodox religious courts fell into that category, and the Rabbinate never tried to deny their authority. This claim appears to be somewhat problematic, because there is no doubt that from the beginning the Chief Rabbis sought, in subsection (a), to establish the Chief Rabbinate as the only qualified court.165 However, it is possible that the ultra-Orthodox objections were the reason for the only change that exists between the official proposal of 1945 and the final version, in which the words “or by a competent ecclesiastical authority” were added to the section. But the Chief Rabbis understood well that the bulk of the ultra-Orthodox attack was directed against subsection (d), where the exclusive authority of the Chief Rabbinate was explicitly mentioned. According to them, there could be no alternative to what has been proposed in this section, and even the ultra-Orthodox have not offered one. This was because if the section did not create a double barrier to granting marriage licenses, in the form of recognized and well-established courts, and with the requirement for the additional approval of the Chief Rabbis, permits would be granted by “just any unrecognized rabbis and rabbinical courts,” frustrating the intention of the section, which was to “raise a barrier and an obstacle before unscrupulous people who issue permits to husbands to marry other women, even if it is contrary to the Jewish law and even to basic moral laws, commonly accepted in any civilized society.”166 As noted earlier,167 the position of the Chief Rabbinate was accepted, and the Chief Secretary stated that the answer to the various objections was satisfactory. The bill passed the required approval process and the amendment took effect on March 15, 1947, bringing to an end a long and complex saga over the amendment of a single criminal clause. Conclusion In one of his responses, in 1974, Rabbi Ovadia Yosef, then Sephardic Chief Rabbi, expressed disappointment with the fact that Israeli criminal law prevented him from granting men permission to take a second wife.168 He clearly argued that the criminal law served as a tool for enforcing the Ashkenazi halakhic position on all Jews in Israel. There is no doubt that this was true, not only in retrospect, given the section’s consequences, but also from the outset: the bigamy section of the CCO (which, despite changes to its wording, made its way into Israeli penal law) was indeed shaped by the halakhic conception according to which bigamy should be prohibited for every Jewish man, regardless of his origin, and that the Chief Rabbis must supervise the granting of permits in order to reduce the number of bigamist marriages. This unique criminal law section was designed to serve a religious purpose: it was drafted almost entirely by rabbis, in accordance with their view on bigamy. It is possible to say with a high degree of certainty that the amended section 181 would not have come into existence in its current form had Rabbis Herzog and Ouziel not served during the relevant period. These rabbis, who did not hide their concern for the status of married women, nor their halakhic position, drafted the revised section and vigorously sought to ensure that their proposal was accepted and that objections from various quarters (that were greatly concerned with the actions of the Chief Rabbis) were rejected. It is also quite likely that without their efforts the authorities would not have amended section 181 on their own initiative, certainly not in the way in which it was amended which created a cumbersome “ethnic” criminal law section that was inconsistent with the fundamental principles of the CCO and of criminal legislation in general. Two factors, Jewish opposition and British doubt, are apparently the reason that it took nine years for the amendment to be accepted. At the same time, we have seen that it is difficult to think of a better phrasing that would accommodate the complexities of Jewish law on this subject. I believe that it is this understanding of the British authorities that eventually led to the decision to entrust the wording of the section to experts in Jewish law (that is, the Chief Rabbis), especially considering the fact that the attempts of the British to design their own criminal law clause dealing with bigamy led to the outcome in the Melnik case. This fundamental decision by the British authorities to delegate the drafting to Jewish religious authorities was of great importance, given the objections raised following the amendment’s enactment, especially by the representatives of the Yemenite Jews. The decision was an attempt to create a uniform law for all Jews in Israel. As noted, the British attempt to incorporate in section 181 the basic concepts of two systems so radically different from one another—marriage law based on the citizen’s personal law and criminal law that by nature must be territorial—failed. Nevertheless, the British believed that the “surrender” of the criminal code to the complexity of the personal law practiced in the country, a complexity that required the creation of an “ethnic” bigamy section, did not have to be complete. In other words, even if there was no choice but to create a special section for Jews, there was no reason to create differences between one kind of Jews and another. As far as the Jewish people were concerned, it was wrong to create a criminal law that took into account differences of opinion between the various Jewish groups (even if it this is not what the British authorities had initially intended).169 The British authorities simply accepted the line of thought offered by Rabbis Herzog and Ouziel. It is difficult to downplay the importance of the move described here. The story of the shaping of section 181 is one of the most interesting and important in the history of the development of Jewish marriage law in mandatory Palestine, and the consequences of this clause are present in Israeli law today. The activities for the creation of a unique arrangement for Jewish men, to whom the Chief Rabbinate could, in special cases, grant permission to marry a second woman, bore fruit and made a distinction between Jews and non-Jews. Even after the State of Israel revoked in 1951 the sweeping permission of bigamy to Muslims, which they had enjoyed under the Mandate, it left intact the ability to grant such permission to Jews which was intended only for exceptional cases and was part of the attempt to enact a blanket prohibition against bigamy for all Jews in Palestine. Somewhat paradoxically, the unique arrangement for Jewish men led to the discrimination mentioned at the beginning of the Article against Muslims citizens of Israel. Paltiel Dickstein summed up the effect of the amendment as follows: Publication of this amendment to the Criminal Code is similar in its effect to a new ban on the Oriental communities, or to the imposition of the earlier “Ban of Rabbeinu Gershom,” which applied only in Europe, also as a ban for Asia and Africa, that is, to Jews of Asian and African descent. The Jewish community and the Chief Rabbinate have already contributed much to the integration of the experience and of the lifestyles of the various tribes, and the publication of the amendment to the law of bigamy came to announce changes that had already come into force in the customs and opinions of the Jewish community, and to facilitate the process of further progress in the same direction.170 Appendix. The Language of Section 181. I. The 1933 CCO Proposal and the 1935 CCO Versions171 Section 181. Any person who, having a husband or wife living, marries in Palestine in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment of up to five years. Such felony is termed bigamy: Provided that it is a good defence to a charge brought under this section to prove: (a) that the former marriage has been declared void by a court of competent jurisdiction or by a competent ecclesiastical authority; or (b) the continuous absence of the former husband or wife, as the case may be, at the time of the subsequent marriage, for the space of seven years then last past without knowledge or information that such former husband or wife was alive within that period; or (c) that the law governing the personal status of the husband both at the date of the first and at the date of the subsequent marriage allowed him to have more than one wife. II. The 1945 Proposed Amendment and the 1947 Amendment Versions172 Section 181. Any person who, having a husband or wife living, marries any other person during the life of such husband or wife (whether or not the subsequent marriage is void or voidable) is guilty of the felony of bigamy and is liable to imprisonment for five years: Provided that it is a good defence to a charge under this section to prove: (a) that the former marriage had been declared void by a court of competent jurisdiction or by a competent ecclesiastical authority,173 or (b) except where the law as to marriage applicable to the wife or husband, as the case may be, at the date of the subsequent marriage was Jewish law, the continuous absence of the former husband or wife, as the case may be, at the date of the subsequent marriage, for the period of seven years then last passed without knowledge or information that such former husband or wife was alive within that period, or (c) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was a law other than Jewish law and allowed him to have more than one wife, or (d) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law and that a final decree of a Rabbinical Court of the Jewish community, ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage. The writing of this Article was made possible by examination of documents found in the following archives: Israel State Archives, Jerusalem; Central Zionist Archives, Jerusalem; Sarah Azaryahu Collection, Yad Tabenkin Archives, Ramat Efal; and the Tel-Aviv Municipal Historical Archives. I am thankful to them all. I would also like to thank the Romie and Esther Tager Jewish Law Program at Bar-Ilan University Faculty of Law for the generous support of this research. All English translations of Hebrew documents quoted in this Article are my own unless otherwise specified. Footnotes 1. In the present Article, I use the terms bigamy and polygamy in the sense of polygyny, that is, one man marrying more than one woman. I use the term bigamy in the same sense that it is used in Israeli law today, and as it was during Mandatory Palestine: a person whom the law defines as being married who takes an additional wife without first obtaining a divorce, according to law. 2. Penal Law, 5737–1977, § 176, 82 (1976–1977) (as amended). 3. Id. § 179. “Person” naturally meaning only men. 4. In 1951, the State of Israel (in the Women’s Equal Rights Law, 5711–1951, § 8, 171 (1950–1951)), abolished the permission that existed during the Mandate for Muslim men to marry more than one woman (cf. infra note 10). Since then, Shari’a courts have repeatedly asked to be granted the same options available to Jewish rabbinical courts. The discrimination claim was also raised by Justice Haim Cohn in the Supreme Court. See CrimA 596/73 Israel v. Mahamid 28(1) PD 773, 777 (1973). See alsoRobert H. Eisenman, Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat and Shari’a in the British Mandate and the Jewish State 179–86 (1978). 5. Talia Einhorn, Private International Law in Israel 179 (2009). There is a law that allows civil marriage for individuals who do not belong to any known religious community, but these individuals can marry only other individuals who lack any religious affiliation. 6. Id. at 180. 7. Marriage Age Law, 5710–1950, § 2, 158 (1949–1950) (as amended). 8. Palestine Order-in-Council 1922, cited in 3 Robert Harry Drayton, The Laws of Palestine 2569–90 (1934). SeeEinhorn, supra note 5, at 168–70; Lisa Fishbayn Joffe, Legislating the Family: Gender, Jewish Law, and Rabbinical Courts in Mandate Palestine, inGender in Judaism and Islam: Common Lives, Uncommon Heritage 203 (Firoozeh Kashani-Sabet & Beth S. Wenger eds., 2015). In the absence of a uniform and official judicial authority for Jews in Palestine, in 1921 the British established the institution of the Chief Rabbinate. Its main function, from the British point of view, was to serve as the supreme judicial institution and as a court of appeals for the rabbinical court system operating throughout the country. The institution was headed by two Chief Rabbis with official status, one Ashkenazi and one Sephardi, who also served as presidents of the official rabbinic judicial system. See Israel Kolatt, Religion, Society and State During the Period of the National Home, inZionism and Religion 273, 282–84 (Shmuel Almog, Jehuda Reinharz & Anita Shapira eds., 1998). 9. For this section and its inclusion in the law, see Asaf Likhovski, Law and Identity in Mandate Palestine 93–97 (2006). 10. And this was, indeed, the intention behind it. See infra text accompanying note 35. As mentioned in note 4, the protection granted to Muslims was canceled in Israeli law. 11. Criminal Code Ordinance [CCO] § 181, 652 Palestine Gazette (Supp. 1) 399 (Dec. 14, 1936). 12. About the development of the attitude concerning polygamy in Jewish religion and about the religious differences in this matter in the Jewish world, see Elimelech Westreich, Hagant Ma’amad Hanisuin Shel Halsha HaYehudia Belsrael: Mifgash Bein Massorot Mishpatiot Shel HaEdot Hashonot [The Jewish Woman’s Marital Status in Israel: Interactions Among Various Traditions], 7 Pelilim [Isr. J. Crim. Just.] 273 (1998) [hereinafter Westreich, The Jewish Woman’s Marital Status in Israel]; Elimelech Westreich, Temurot Be-Maʻamad Ha-Ishah Ba-Mishpaṭ Ha-ʻivri: Masa’ Ben Masorot [Transitions in the Legal Status of the Wife in Jewish Law—A Journey Among Traditions] (2002); Mark Goldfeder, The Story of Jewish Polygamy, 26 Colum. J. Gender & L. 234 (2013); John Witte, The Western Case for Monogamy over Polygamy 34–64 (2015). 13. Even men who belong to communities in which bigamy is prohibited, can obtain in various circumstances a “marriage license,” known as a “one hundred rabbis’ permit.” This is a complex issue, and I do not discuss it except in the context of subsection (d) of the amended CCO, which defines the manner in which the license is granted. For details, see sources cited supra note 12. 14. See sources cited supra note 12. 15. Shlomo Dov Goitein & Aharon Ben Shemesh, ha-Mishpaṭ ha-Muslemi bi-Medinat Yiśraʾel [Islamic Law in the State of Israel] 214 (1957); Ya’akov Meron, Ribuy Nashim la-Muslemim ve-Huqatiyut Isuro [Polygamy forMuslims and the Legality of the Prohibition], 3 Mishpatim [Hebrew U. L.J.] 515 (1971). 16. Ottoman Family Law of 1917, reprinted inGoitein & Ben Shemesh, supra note 15, at 218. 17. Goitein & Ben Shemesh, supra note 15, at 218–19; Meron, supra note 15, at 515–16, 527–28; Ya’akov Meron, Ha-Din ha-Muslemi be-Re’iya Hashwa’atit [Muslim Law in Comparative Perspective] 181–82 (2001). 18. Moslem Family Law Ordinance (Sept. 25, 1919), cited in 2 Drayton, supra note 8, at 1014. 19. Norman Bentwich, The Criminal Law of Palestine 73 (1928). Note that this addition remained in force until the enactment of the CCO, although in 1927 the “original” section 200 was abolished. Id. at 69. 20. Bi-Yerushalayim: Me’et ha-Rabanut ha-Rashit [In Jerusalem: From the Chief Rabbinate], Ha’aretz [The Land], July 22, 1921, at 3. An identical text appeared in Tiqun be-Inyaney ha-Nisu’yn [A Regulation Regarding Marriage], Doar Hayom [Daily Post], July 22, 1921, at 3. 21. See sources cited supra note 20. 22. See, e.g., Case of the High Rabbinical Court (1921) (on file with the Israel State Archives (ISA), Jerusalem, File No. B-23534/106), and the correspondence between the Chief Rabbinate and the Rabbinate of Tel-Aviv in the Rabbinate files stored at the Tel-Aviv Municipal Historical Archives (ATA). Similarly, it is possible to find bigamy at the beginning of the twentieth century in the United States, because of social fluctuations, immigration, and the movement of the population across the continent. See Lawrence M. Friedman, Crimes of Mobility, 43 Stan. L. Rev. 637 (1991). 23. Westreich, The Jewish Woman’s Marital Status in Israel, supra note 12, at 306–08; Elimelech Westreich, ‘Asiyat Mishpat Biyedey ha-Rabbanim ha-Rashiyim be-Tekufat ha-Mandat [The Legal Activities of the Chief Rabbis During the Period of the British Mandate: A Response to the Zionist Challenge], in2 Meah Shenot Tsiyonut Datit [A Hundred Years of Religious Zionism] 83 (Avi Sagi & Dov Schwartz eds., 2003). We have no information about the opinion in this matter of Rabbi Yaakov Meir, Rabbi Kook’s Sephardic colleague (who served until 1939), as we lack information about his opinion on many other matters, but it is difficult to assume that he held a stricter opinion on bigamy. 24. A report on the course of the trial and its outcome can be found in Herem de-Rabeinu Gershom be-Beit ha-Din ha-Mehozi bi-Yerushalayim [Ban of Rabbeinu Gershom in Jerusalem District Court], Ha’aretz [The Land], Mar. 9, 1931, at 1, from which the quotations are taken. This appears to have been one of the few cases, before the enactment of the CCO, in which a bigamist was tried, even if not for bigamy, which was not prohibited in itself. See Mordechai Levanon, Hatsaʿt Sefer ha-Huqym ha-Pliliym [The Proposed Code of Criminal Laws], inhaVaad ha-Merkazi Shel Histadrut ʿOrkhey ha-Din ha-Yehudiym be-Erets Israel—Kovets Hartsaot u-Vikukhim [The Central Committee of the Association of Jewish Lawyers in Eretz Israel, A Collection of Lectures and Debates of the First Legal Conference on Legal and Judicial Matters in Eretz Israel] 34, 37–38 (1938). 25. Ottoman Penal Code, § 155 (amended 1913–1914), cited inBentwich, supra note 19, at 52. 26. This is according to the approach that argues that the Ban was limited in time, and it lapsed at the end of the fifth millennium of the Hebrew calendar, that is, in 1240. See Goldfeder, supra note 12, at 301–02. 27. See Bigamy Case Stirs Jews in Palestine, N.Y. Times, Sept. 12, 1932, at 10. 28. The facts of the case are documented in detail in Bat-Zion Eraqi Klorman, Traditional Society in Transition: The Yemeni Jewish Experience 163–68 (2014). 29. Offences Against the Person Act of 1861, 24 & 25 Vict. c. 100. About the drafting and interpretation of this section, and about the history of the prohibition against bigamy in Britain, see Witte, supra note 12, at 275–321. 30. In the 1940s, the case of a British Jewish citizen who received permission to marry a second wife in Palestine was brought before the District Court and the Supreme Court of Palestine. The Supreme Court ruled that the marriage contracted in Palestine was valid (for purposes of inheritance law). See CA 71/44 Silver v. Shekerka [1944] ALR 460. For a critical analysis of the ruling and its implications, including analysis of its relation to section 57, see Moshe Silberg, ha-Ma’amad ha-Ishi be-Israel [Personal Status in Israel] 135–70 (1964). 31. About the sources and uses of this defense in English law, see the opinion of Justice Agranat in FH (further hearing of the High Court of Justice (HCJ)) 10/69 Boronowski v. Chief Rabbis of Israel 25(1) PD 7, 42–43 (1971) (Isr.). 32. Already in 1604, the Kingdom of England enacted a criminal law that defined bigamy as a crime, based on the ecclesiastic law of England which used religious arguments to reject bigamy. SeeWitte, supra note 12, at 298–305. A similar connection between religious and criminal law lies at the heart of section 181 as well, which makes the application of the criminal prohibition contingent on voiding the marriage according to religious law. 33. The first to do so was a key figure in Palestinian legislation in the 1920s, the Attorney General of the mandatory government from its inception until 1931, Norman Bentwich. See Norman Bentwich, The New Criminal Code for Palestine, 20 J. Comp. Legis. & Int’l L. 71 (1938). Later, and in much greater detail, it was described by Abrams and Shachar: Norman Abrams, Interpreting the Criminal Code Ordinance, 1936—The Untapped Well, 7 Isr. L. Rev. 25 (1972); Yoram Shachar, Mekoroteha shel Pkudat ha-Hok ha-Plili, 1936 [The Sources of the Criminal Code Ordinance, 1936], 7 Tel-Aviv U. L. Rev. 75 (1979). 34. About the cultural gap between European and African societies as a factor in shaping different legislation, see Leon Sheleff, Human Rights, Western Values and Tribal Traditions: Between Recognition and Repugnancy, Between Monogamy and Polygamy, 12 Tel-Aviv U. Stud. L. 237, 250–55 (1994). 35. See Criminal Code of 1928, § 165 (Cyprus), cited in 1 Harry Trusted, The Statute Laws of Cyprus in Force on the 31st Day of March 1949, at 246 (1950). 36. Memorandum from Attorney Gen. Leslie Bertram Gibson, Mandatory Government of Palestine, Criminal Code (Amendment) Ordinance of 1945 (July 23, 1945) (on file with the ISA, File No. M-221/6). 37. See Bentwich, supra note 33, at 77. 38. The meaning of the Ban of Rabbeinu Gershom is that those who violate the ban and take a second wife should be punished and excommunicated from the Jewish community. 39. Letter from the Chief Secretary of the Mandatory Government of Palestine, to Mordechai Eliash, Legal Counsel to the Chief Rabbinate (Feb. 21, 1933) (on file with the Central Zionist Archives (CZA), File No. A417/54). 40. Memorandum from Mordechai Eliash, Legal Counsel to the Chief Rabbinate, to the Chief Secretary of the Mandatory Government of Palestine (Mar. 6, 1933) (on file with the CZA, File No. A417/54). 41. See Amihai Radzyner, Jewish Law in London: Between Two Societies, 18 Jewish L. Ann. 81, 85, 89 (2009). 42. Norman Bentwich, The Legal System of Israel, 13 Int’l & Comp. L.Q. 236, 250–51 (1964). 43. Levanon, supra note 24, at 34, 37–38. See also Y.Y., Introduction to The Central Committee of the Association of Jewish Lawyers in Eretz Israel, A Collection of Lectures and Debates of the First Legal Conference on Legal and Judicial Matters in Eretz Israel, supra note 24, at 5. 44. Abrams, supra note 33, at 26–28, 27 n.18. 45. See Criminal Code of Cyprus, § 173 (1928), cited in 1 Trusted, supra note 35, at 246. 46. There were several differences between the proposed amendment of 1933 and the section eventually enacted in 1936, mostly having to do with marriage age. SeeLikhovski,supra note 9, at 96. 47. 1 Trusted, supra note 35, at 870–79. 48. Among others, because of external pressure from various sources. Seeinfra text accompanying note 55. 49. Bentwich, supra note 33, at 77. 50. See Bentwich, supra note 42, at 250–51. The same transpires from the writing of Gad Frumkin, who served as the only Jewish Justice on the Mandatory Supreme Court. SeeGad Frumkin, Derekh Shofet bi-Yerushalayim [A Way of a Judge in Jerusalem] 378 (1954). 51. It is also necessary to take into account the provisions of article 17(1)(a) of the Palestine Order-in-Council 1922 (amended 1923), quoted in 3 Drayton,supra note 8, at 2591 (“No Ordinance shall be promulgated . . . which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion, or language.”), as well as the provision of Article 15 of the Mandate for Palestine (“No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language.”). See The Palestine Mandate, The Avalon Project,http://avalon.law.yale.edu/20th_century/palmanda.asp). See also the objections of Manfred Lehmann and David Keter discussed infra note 130. Indeed, the provisions of article 17 were the basis for the main defense argument of Gad Yosifoff, who was accused of bigamy under section 181 of the CCO and who claimed that it was a section that discriminated between the citizens of Israel. See CrimA 112/50 Yosifoff v. Attorney General 5 PD (1950). Even the absence defense (section 181(b)), which I discuss below, explicitly stated that the defense applies only to non-Jews. In the Memorandum from Attorney Gen. Leslie Bertram Gibson, supra note 36, a four-page document intended to summarize the difficulties and constraints that led to the proposed amendment of 1945, it is explained that this section is discriminatory and therefore complies with the requirements of article 17 of the King’s Order-in-Council. Nevertheless, Yitzhak Glasner, correctly explains that the authorities used the language of the section to blur the discrimination that it contained. Yitzhak Glasner, Hok ha-Bigamya [The Bigamy Law], 16 HaPraklit [The Lawyer] 274, 276 (1959). 52. Frumkin, supra note 50, at 378. 53. “ha-Meshotet” [“The Wanderer”, Paltiel Dickstein], Nissuim Kefulim, Hofesh ha-Matspun, ‘I Haflaya Datit [Double Marriage, Freedom of Conscience, and Religious Non-Discrimination], 8 HaPraklit[The Lawyer] 99, 100 (1952). See also id. at 103, for the wording of subsection (d); Eliezer Malchi, Toldot ha-mishpat be-Erets Israel: Mavo Histori la-Mishpat bi-Medinat Israel [History of the Law of Palestine] 134–35 (1953); Glasner, supra note 51, at 274. 54. On the organization and its activities, see Sarah Azaryahu, Hitahadut Nashim Ivriyot le-Shivuy Zkhuyot be-Erets Israel: Prakim le-Toldot Tnuat ha-Isha ba-Arets [The Union of Hebrew Women for Equal Rights in Eretz Israel: A Selected History of the Women’s Movement in Israel, (1900–1947)] (1977); Hannah Safran, Lo Rotsot Li-Heyot Nehmadot: Ha-Maʼavaḳ ʻal Zekhut Ha-Behirah Le-Nashim ve-Reshito Shel Ha-Feminizem he-Hadash be-Israel [Don’t Wanna Be Nice Girls: The Struggle for Suffrage and the New Feminism in Israel] (2006). Regarding another struggle of the UHW in a matter related to marriage law, the marriage of minors, see Likhovski,supra note 9, at 93–97. 55. Likhovski,supra note 9, at 96. 56. See Palestine Order-in-Council 1922, cited in 3 Drayton, supra note 8, arts. 53, 59, 64. For additional information about this problem, which came up several times in court during the mandate, see Edoardo Vitta, The Conflict of Laws in Matters of Personal Status in Palestine 256–60 (1947); Silberg, supra note 30, at 87–132. 57. See Letter from Rabbi Ouziel to the Rabbis of Communities Close to Tel-Aviv (Apr. 25, 1937) (on file with the ATA, File No. 8-1064A); Letter from Rabbis Ouziel and AmielL to Rabbi Herzog, Chief Rabbinate (Apr. 30, 1937) (on file with the ATA, File No. 8-1065A). 58. Letter from the Chief Rabbinate of Tel-Aviv to the National Committee (Apr. 25, 1937) (on file with the ATA, File No. 8-1064A), mentions the discussion that took place with representatives of the Chief Rabbinate and the National Committee during the intermediate days of the Passover festival regarding the criminal prohibition against bigamy. A report concerning this discussion and the ensuing decision is found in Frumkin, supra note 50, at 370–72. 59. When Is a Palestine Marriage Bigamous?, Palestine Rev., Nov. 19, 1937, at 535. 60. Id. at 536. 61. In the explanatory notes to the bill amending the section, the matter is stated explicitly: “The main object of this Bill is to close a gap in the law of bigamy which was disclosed by the judgment of the Supreme Court sitting as a Court of Criminal Appeal in the case of Attorney General v. Ya’acov Ben Yehiel Melnik.” Draft—An Ordinance to Amend the Criminal Code Ordinance of 1936, 1446 Palestine Gazette 1213 (Oct. 18, 1945). 62. The Melnik case was first litigated before Judge Heshin. The verdict, issued on January 26, 1938, may be found in the Sarah Azaryahu Collection, Yad Tabenkin Archives, Ramat Efal (SAC) (File No. 2/7). Subsequently, Melnik was tried in the Tel-Aviv District Court, CRDC (Criminal District Court), Tel-Aviv (C 71/38 Attorney General v. Melnik (on file with the ISA, File No. B-269/85)). The verdict of the district court from October 6, 1938, the protocols, and additional information concerning the trial are found in the litigation file of the Supreme Court (on file with the ISA, File No. B-269/85). (The complete verdict was published in Law Reports, Palestine Post, Oct. 14, 1938, at 3.) Eventually, the prosecution appealed to the Supreme Court (CA 85/38 Attorney General v. Melnik, 6 PLR 34 (1939)). The verdict was issued on January 1, 1939. A great deal of material concerning the litigation can be found at the ISA (File No. B-269/85). 63. Busy and Versatile “Husband,” Palestine Post, Sept. 19, 1937, at 3. 64. The Criminal Procedure Ordinance (Trial upon Information) of 1924, 107 Palestine Gazette 448 (Jan. 15, 1924) (decreeing that before indicting a person on a felony charge, that is, for offenses that carry a penalty of more than three years of imprisonment, the individual must be brought before an investigative judge). 65. SeeShneur Zalman Heshin, Sehok va־Dema’ be-Vet-HaDin [Tears and Laughter in the Courtroom] 68–69 (1946). 66. Jewish law recognizes the possibility of annulling a marriage in cases in which one of the spouses misled the other and concealed vital information, which would have caused the other to avoid marrying the person. See Michael J. Broyde, Error in the Creation of Marriages in Modern Times Under Jewish Law, 22 Dine Isr. 39 (2003). 67. Criminal Code Ordinance [CCO] § 181, 652 Palestine Gazette (Supp. 1) 399 (Dec. 14, 1936). 68. Verdict of Judge Heshin, SAC, File No. 2/7, supra note 62, at 8. 69. Id. 70. The indictment, dated April 25, 1938, is found in the files of the district court (ISA, File No. B-269/85). The district attorney acted according to section 28(5)(a) of the Criminal Procedure Ordinance, which allowed him to prosecute a defendant despite the fact that the investigative judge recommended not doing so if the evidence justified such prosecution. The section stipulated that he must do so within three months, which is what happened here. 71. The press followed with interest the judicial debate throughout its various stages. See Second Marriage Declared Valid, Palestine Post, Jan. 27, 1938, at 3 (the day after Melnik’s acquittal by Heshin). Hebrew papers also reported on the various stages of the Melnik trial. 72. This statement is mentioned also in the verdict of the Supreme Court, which ruled that Melnik was acquitted at least by virtue of doubt. 73. The court may have also based its verdict on the ruling of the Tel-Aviv rabbinical court, headed by Rabbis Ouziel and Amiel, which on February 20, 1938, charged Melnik to pay alimony to the wife whom he married in 1937. A translation of the verdict is on file with the ISA (File No. B-269/85). 74. Statement of Appeal (Nov. 11, 1938) (on file with the ISA, File No. B-269/85). 75. CA 85/38 Attorney General v. Melnik, 6 PLR 34, 35 (1939). 76. See Goldfeder, supra note 12, at 300. In British case law there have been instances in which an interpretation of “void” as “voidable” has been accepted. The prosecution referenced Peter Benson Maxwell, The Interpretation of Statutes 187 (Gilbert H.B. Jackson ed., 8th ed. 1937). 77. Attorney General v. Melnik, 6 PLR at 36. 78. Letter from Harry Trusted, Chief Justice of Palestine, to Rabbi R. Isaac Herzog (Dec. 1, 1938) (on file with the ISA, File No. B-269/85). 79. On December 30, 1938, Trusted sent Herzog a reminder, and Herzog answered on January 1, 1939, that he would need two additional weeks to write his opinion (ISA, File No. B-269/85). It is not known whether the difficulty in drafting the answer, which would result in Melnik’s acquittal, was what caused Herzog’s distress and the delay in his response (halakhically, a rather simple one), or what is more likely, whether Herzog delayed it because at the time he was collecting and drafting solutions for the amendment of the section, which he submitted together with his opinion. See infra text accompanying note 97. 80. Letter from Rabbi R. Isaac Herzog to Chief Justice Harry Trusted (Jan. 10, 1939) (on file with the ISA, File No. B-269/85). 81. Attorney General v. Melnik, 6 PLR at 37–38 (Frumkin, J., concurring). Frumkin quotes himself in his book: seeFrumkin, supra note 50, at 379. 82. See, e.g., Justice Shimon Agranat, Introduction to Pesakim Nivharim Shel Gad Frumkin [Selected Decisions of Gad Frumkin] 7, 9–12 (Shalom Kassan ed., 1962). 83. See infra text accompanying note 119. 84. See Letter from High Comm’r Harold MacMichael to Colonial Sec’y Malcolm MacDonald (May 27, 1939) (on file with the ISA, File No. M-221/6). The letter, to which the Supreme Court ruling was attached, states that there had been no increase in the number of bigamist marriages among Jews as a result of the ruling, but that preliminary suggestions had been raised for the amendment of the section (referring probably to the recommendations of Herzog, noted above). Herzog is quoted as saying that the Jewish community is greatly interested in correcting the situation. 85. In an undated letter, R. Isaac Herzog shared with the attorney Mordechai Levanon his impression that the authorities were not interested in expanding the scope of the bigamy offense and had no interest in indicting anyone for this offense. Letter from Rabbi R. Isaac Herzog to Attorney Mordechai Levanon, Legal Counsel to the Chief Rabbinate (n.d.) (on file with the ISA, File No. P-4255/1). It is reasonable to assume that this impression was based, among others, on the response Herzog had received to his proposal for amendment; see Letter from Chief Sec’y J. Jacobs, Supreme Court of Palestine, to Rabbi R. Isaac Herzog (June 24, 1939) (on file with the ISA, File No. M-221/6). 86. See infra text accompanying note 172. The fact that the amendment was initiated by the Chief Rabbinate, which agreed to its final wording, is mentioned in Memorandum from Attorney Gen. Leslie Bertram Gibson, supra note 36. 87. Draft—An Ordinance to Amend the Criminal Code Ordinance of 1936, supra note 61. 88. Letter from Rabbi R. Isaac Herzog, Chief Rabbinate, to Dr. Globus (June 23, 1954), reprinted in 3 Isaac Herzog, Tehuka leIsrael al Pi haTorah [Constitution and Law in a Jewish State According to Jewish Law] 182, 182 (Itamar Warhaftig ed., 1989). 89. See Paltiel Dickstein, ba-Hakika ha-Hadasha [In the New Legislation], 3 Hapraklit [The Lawyer] 18, 19 (1946); FH 10/69 Boronowski v. Chief Rabbis of Israel 25(1) PD 7, 44 (1971) (Agranat, J.). See also Letter from Attorney Gen. Leslie Bertram Gibson (Feb. 11, 1945) (on file with the ISA, File No. M-221/6). 90. See Dickstein, supra note 89, at 20. See further Westreich, The Jewish Woman’s Marital Status in Israel, supra note 12, at 308–12, who emphasized Herzog’s role in the struggle to change the criminal law, and mentioned Rabbi Ouziel in this context. Note that in parallel to the change in the criminal code, Rabbis Herzog and Ouziel sought to establish stringent procedures for granting marriage permits, as reflected in the legal procedures of 1943. See Amihai Radzyner, Reshitan shel Takkanot Ha-Diyun be-Batey ha-Din ha-Rabbaniyim: Takkanot 703 [On the Beginning of Rabbinical Courts’ Procedural Regulations: “Takkanot Ha-Diyun,” 1943], 25 Dine Isr. [Stud. Halakha & Jewish L.] 185 (2008). Later, with Rabbi Ouziel as the dominant figure, the two worked together for the enactment of the Chief Rabbi Ordinance of 1950, which prohibited bigamy for all Jews in the country. See Chief Rabbinate Ordinance of 1950, reprinted inHerzog,supra note 88, at 168–69 [hereinafter The Jerusalem Ban]. This is outside of the period of time covered in the present Article, but it is indicative of their halakhic position. See Westreich, The Jewish Woman’s Marital Status in Israel, supra note 12, at 312–14, 319–20. 91. Paltiel Dickstein also mentioned it briefly in Dickstein, supra note 89, at 20. 92. Letter from Rabbi Ben-Zion Meir Hai Ouziel to Paltiel Dickstein (Mar. 25, 1938) (on file with the ATA, File No. 8-1073A). 93. Memorandum: The War Against Bigamy (n.d.) (on file with the ISA, File No. M-221/6). The proposal was sent to the Chief Justice by Herzog, together with his opinion in the Melnik case. See le-Havat Da’ato Shel ha-Rav ha-Rashi Al Nissuey Bigamya [Opinion of the Chief Rabbi on Bigamist Marriages], HaTzofe [The Observer], Jan. 22, 1939, at 1. 94. Letter from Rabbi Ben-Zion Meir Hai Ouziel to Paltiel Dickstein (Oct. 28, 1939) (on file with the ATA, File No. 8-1985B). See also Letter from Rabbi Ben-Zion Meir Hai Ouziel to Attorney Reuven Gafni (Oct. 27, 1939) (on file with the ATA, File No. 8-1985B), in which Ouziel asked the legal counsel to the Tel-Aviv Rabbinate to formulate a “proposed amendment” (referring quite likely to a proposal for the wording of section 181) based on Dickstein’s proposal. 95. Letter from Rabbi Ben-Zion Meir Hai Ouziel to Paltiel Dickstein, supra note 94. 96. See supra text accompanying note 78. 97. Letter from Rabbi R. Isaac Herzog to Chief Justice Harry Trusted, supra note 80. 98. Id. 99. Id. 100. Id. 101. Le-Havat Da’ato Shel ha-Rav ha-Rashi Al Nissuey Bigamya [Opinion of the Chief Rabbi on Bigamist Marriages], HaTzofe [The Observer], Jan. 22, 1939, at 1. 102. Letter from Religious Council of Yemenite Jews in Palestine to Rabbi R. Isaac Herzog (Jan. 27, 1939) (on file with the ISA, File No. P-4255/1). One of the signatories is Avraham Tabib. Cf. Bigamy Case Stirs Jews in Palestine, supra note 27. 103. Private Sec’y of Rabbi Herzog to Religious Council of Yemenite Jews in Palestine (Feb. 5, 1939) (on file with the ISA, File No. P-4255/1). 104. Letter from Chief Sec’y J. Jacobs, Supreme Court of Palestine, to Rabbi R. Isaac Herzog, supra note 85. 105. See Draft Letter by Rabbi R. Isaac Herzog (n.d.) (on file with the ISA, File No. P-4255/1). This undated letter quotes the Court Secretary’s abovementioned letter, so the sequence of the letters is clear. However, the letter does not appear in the files of the mandatory government at the ISA (File No. P-4255/1 is part of the private archive of Rabbi Herzog). 106. See Westreich, The Jewish Woman’s Marital Status in Israel, supra note 12, at 280–81. 107. Ouziel took office after the death of Rabbi Yaakov Meir, in the summer of 1939, but had been appointed as his successor already in 1936. See Amihai Radzyner, ha_rav Ouziel, Rabbanut Tel-Aviv-Yafo u-Bet ha-Din ha-Gadol le-Irurim: Mahaze be-’Arba Ma’arachot [Rabbi Ouziel, the Tel-Aviv-Jaffa Rabbinate and the Rabbinical Court of Appeal: A Play in Four Acts], 21 Bar-Ilan L. Stud. 129, 132 n.16 (2004). 108. I discuss Ouziel’s actions in Tel-Aviv in the text accompanying note 93 above. Herzog was aware of Ouziel’s activities in Tel-Aviv, because Dickstein’s proposal, which Herzog sent to the Chief Justice, was written at the request of Ouziel. 109. In his letter to the High Comm’r Harold MacMichael, accompanying Ouziel’s opinion, Herzog suggested considering the opinion of Ouziel as an answer to the Chief Secretary’s letter from June (in which he argued that Herzog’s proposal for the amendment of the section was intended for Ashkenazim only). He stressed that Ouziel was Sephardic and could attest to local custom, that his family has been residing in Palestine for hundreds of years, and that he could be relied upon when he stated that bigamy was prohibited for all Jews in Israel. Letter from Rabbi R. Isaac Herzog to High Comm’r Harold MacMichael (Jan. 1, 1940) (on file with the ISA, File No. M-221/6). 110. Draft Letter by Rabbi R. Isaac Herzog, supra note 105. 111. Letter from Rabbi Ouziel to High Comm’r Harold MacMichael (Dec. 27, 1939) (on file with the ISA, File No. M-221/6). 112. Id. 113. SeeR. Joseph Caro, Shulchan Arukh, Even HaEzer 1:9 (1565): “A man may marry a number of women provided that he has the means to sustain them . . . . In a place where they are accustomed to only marry one woman they are not permitted to marry another woman.” This principle was at the basis of the Jerusalem Ban of 1950. Cf. supra note 90. 114. For more details, see 2 Menachem Elon, Jewish Law: History, Sources, Principles: HaMishpat HaIvri 932–36 (1994). 115. Letter from Rabbi Ouziel to High Comm’r Harold MacMichael, supra note 111. 116. An Amendment and an Accompanying Letter from Chief Sec’y J. Jacobs to the Chief Rabbis (Mar. 19, 1940) (on file with the ISA, File No. M-221/6). 117. Letter from the Chief Rabbis to Chief Sec’y J. Jacobs in English (Apr. 3, 1940) (on file with the ISA, File No. M-221/6); Letter from the Chief Rabbis to Chief Sec’y J. Jacobs in Hebrew (Apr. 7, 1940) (on file with the ISA, File No. M-221/6). 118. But following protests by ultra-Orthodox Jews, the final text of subsection (a) was changed slightly, and it became closer to the original version than to the proposed amendment of 1945. See infra text accompanying note 163. 119. Letter from High Comm’r Harold MacMichael to Chief Justice Harry Trusted (May 2, 1940) (on file with the ISA, File No. M-221/6); Response of Chief Justice Harry Trusted (May 16, 1940) (on file with the ISA, File No. M-221/6) (including Justice Frumkin’s comments). 120. Letter from Chief Justice Harry Trusted to High Comm’r Harold MacMichael (May 16, 1940) (on file with the ISA, File No. M-221/6). 121. Note that during those years the Chief Rabbinate was engaged in drafting its own judicial regulations, in which there was an attempt to regulate the granting of marriage licenses. See Radzyner, supra note 90; Dickstein, supra note 89. 122. Letter from Chief Rabbi Ouziel to the Chief Secretary (Feb. 21, 1944) (on file with the ISA, File No. GL-8549/15); Proposal by the High Commissioner for Palestine, with the Advice of Advisory Council (n.d.) (on file with the ISA, File No. GL-8549/15); Comments on the Proposal by the Chief Rabbis (n.d.) (on file with the ISA, File No. GL-8549/15). 123. Re-Draft of Section 181 Criminal Code Ordinance for the Purpose of Amendment of the Law Relating to Bigamy (n.d.) (on file with the ISA, File No. M-221/6); Letter from Chief Sec’y J. Jacobs to the Chief Rabbis (May 9, 1944) (on file with the ISA, File No. M-221/6). 124. Letter from the Chief Rabbis to Chief Secretariat of the Mandatory Government of Palestine (Dec. 11, 1944) (on file with the ISA, File No. M-221/6). 125. Id. 126. From the book of minutes of the executive committee of the UHW for 1943–1945, meeting of April 26, 1944, it transpires that Levanon started working on the drafting of the amendment of the section no later than April 1944. Book of Minutes of the UHW (on file with the SAC, File No. 4/8). 127. See Letter from Attorney Gen. Leslie Bertram Gibson, supra note 89. 128. Letter from the Chief Rabbis to Chief Secretariat of the Mandatory Government of Palestine (June 6, 1945) (on file with the ISA, File No. M-221/6). 129. In Letter from Attorney Gen. Leslie Bertram Gibson, supra note 89, the Attorney General wrote that he did not consult with Agudat Israel (the ultra-Orthodox, anti-Zionist party, whose members in Palestine did not accept the authority of the Zionist Chief Rabbinate) regarding the amendment, because he understood that the government’s policy was to correspond on matters of this type only with the Chief Rabbinate. He wrote that, in his opinion, there was no reason why the “Agudah” [sic] should oppose the proposed amendment (which, naturally, was proven wrong, as we shall see), but in any case it would have an opportunity to respond after the official publication. The same applied to the UHW. The Minutes of the Meeting of the Directorate (Oct. 9, 1945) (on file with the CZA, File No. J75/29), reported that attorney Levanon had reported that “a positive response arrived from London to the memorandum from the Chief Rabbinate about the bigamy law.” It went on to say that “we will be able to respond to it” only after the official publication. 130. In addition to the objections described below, two objections arrived from Jewish lawyers: Objection of Manfred Lehmann from Haifa to the High Commissioner (Oct. 22, 1945) (on file with the ISA, File No. M-221/6); Objection of David Keter from Jerusalem to the Attorney General (Nov. 15, 1945) (on file with the ISA, File No. M-221/6). Both objections raised similar claims, namely that the new amendment discriminated against Jews and harmed their religious freedom (Lehmann wrote that he therefore opposed Article 15 of the Mandate for Palestine; see supra note 51), and that it granted excessive authority to the Chief Rabbinate, which did not conduct itself properly and was likely to abuse its power. According to the two authors, this was a case of legislative intervention in Jewish religious laws, which the Chief Rabbinate had no authority to do. 131. See Letter from the Chief Rabbis to Chief Sec’y J. Jacobs in English, supra note 117; Letter from the Chief Rabbis to Chief Sec’y J. Jacobs in Hebrew, supra note 117. In Herzog’s proposed amendment, from 1939, this matter was not mentioned, but see Letter from Rabbi R. Isaac Herzog to Attorney Mordechai Levanon, supra note 85. 132. Letter of the Chief Rabbis to Chief Sec’y J. Jacobs in English, supra note 117. 133. Letter from High Comm’r MacMichael to Chief Justice Harry Trusted, supra note 119. 134. Comments on the Proposal by the Chief Rabbis, supra note 122. 135. This remains the situation to this day in section 180 of the Israeli Penal Code. To a great extent, this section discriminates between Jews and non-Jews, in this case to the detriment of Jews. 136. On the activities of the UHW, in view of helping agunot, see Azaryahu, supra note 54, at 67–69. The problem became more acute after the Second World War and the drafting of Jews from Palestine into the British army. 137. See Letter from Fania Matmon-Cohen, Chairwoman, Tel-Aviv Branch, to Sarah Azaryahu and Yehudit Katinka, UHW Management (Nov. 7, 1945) (on file with the CZA, File No. J75/30); Letter from Yehudit Katinka to Fania Matmon-Cohen (Nov. 12, 1945) (on file with the CZA, File No. J75/30). 138. Letter from Fania Matmon-Cohen, UWH, to Attorney Gen. Leslie Bertram Gibson (Nov. 12, 1945) (on file with the ISA, File No. M-221/6). 139. Id. 140. Id. 141. Letter from Attorney Gen. Leslie Bertram Gibson to Chief Sec’y John Valentine Wistar Shaw, Mandatory Government of Palestine (Nov. 24, 1945) (on file with the ISA, File No. M-221/6); Letter from Chief Sec’y John Valentine Wistar Shaw, Mandatory Government of Palestine, to the Chief Rabbinate (Dec. 21, 1945) (on file with the ISA, File No. M-221/6). 142. Letter from Mordechai Levanon, Legal Counsel to the Chief Rabbinate, to the UHW, Tel-Aviv Branch (Feb. 12, 1946) (on file with the CZA, File No. J75/30). 143. Letter from the UHW, Tel-Aviv Branch, to Mordechai Levanon, Legal Counsel to the Chief Rabbinate (Feb. 25, 1946) (on file with the CZA, File No. J75/30). 144. Id. Cf. Paltiel Dykan [Paltiel Dickstein], ha־Matsav ha־Mishpati shel ha־Ishah be-Israel [The Legal Status of Women in Israel] 73 (1950). 145. I believe that it is to this end that the Chief Rabbis proposed, in a letter written in December 1944, not to adopt the term “custom,” which the authorities used based on the Rabbis’ proposal. Letter from the Chief Rabbis to Chief Secretariat of the Mandatory Government of Palestine, supra note 124. See also supra text accompanying note 116. This term could frustrate their aspiration for a “territorial law” that rejects the customs of the countries of origin of the Jews in Palestine. The Rabbis wrote in this letter that it might raise difficulties for the prosecutor, who would have to prove that there is a custom prohibiting bigamy for the defendant, and it would make it easier for the defendant, who would be able to “try to prove that such custom does not exist at all or that it is not all-inclusive or comprehensive.” 146. Letter from The Yemenite Organization in Palestine to High Comm’r John Standish Surtees Prendergast Vereker (Sept. 5, 1946) (on file with the ISA, File No. M-221/6) (available in English and Hebrew). 147. Letter from Religious Council of the Yemenite Jews in Eretz Israel to High Comm’r John Standish Surtees Prendergast Vereker (Sept. 5, 1946) (on file with the ISA, File No. M-221/7) (available in English and Hebrew). 148. In their letter, the leaders of the Yemenite Organization added general arguments against the prohibition of bigamy, which affected members of other communities as well, for example, the need to take a second wife if the first one was infertile. 149. Letter from the Chief Rabbis to the High Commissioner (Nov. 25, 1946) (on file with the ISA, File No. M-221/7). The second paragraph in the quotation refers to what has been said in note 148 above. The subsection mentioned in it is, naturally, subsection (d) of the proposed amendment. 150. Letter from the Chief Rabbis to the Chief Secretary (Feb. 24, 1947) (on file with the ISA, File No. M-221/7). 151. Id. 152. Letter from the Attorney General to the Chief Secretary (Jan. 14, 1947) (on file with the ISA, File No. M-221/7). 153. FH 10/69 Boronowski v. Chief Rabbis of Israel 25(1) PD 7, 44 (1971). 154. For the reasons for this autonomy, see Arie Morgenstern, ha-Rabanut ha-Rashit le־Erets Israel [The Chief Rabbinate of Palestine] 78–81 (1973); Kolatt, supra note 8. 155. Vitta, supra note 56, at 108–12 (including the Supreme Court rulings cited therein). 156. See CrimA 112/50 Yosifoff v. Attorney General 5 PD 481, 495 (1951). See in particular HCJ 12/53 Gabbai v. Rehovot Rabbinical Court 7 PD 478, 482–83 (1953). 157. Zerach Warhaftig, Takkanot ha-Rabanut ha-Rashit [The Enactments of the Chief Rabbinate], 15 Techumin 81, 84–85 (1995). See also Radzyner, supra note 107, at 135 n.28. 158. There is no doubt that unofficial and irresponsible entities issued permits, as evident from UHW complaints. See, e.g., Memorandum of UHW (n.d.) (on file with the CZA, File No. J75/28), attacking the increased incidence of second marriage permits being granted for money. 159. This matter was to be raised again in The Jerusalem Ban, supra note 90. Eventually, the requirement led to a situation in which no marriage permits were granted at all, because according to the halakhic position of Chief Rabbi Goren, such permits were not be issued in any case, irrespective of the origin of the husband. This resulted in the filing of HCJ 160/75 Bitton v. R. Shlomo Goren 30(1) PD 309 (1975), and a change in Israeli law in 1980; at present, section 179 of the Penal Law, 5737–1977, § 176, 82 (1976–1977) (as amended), requires the signature of only one Chief Rabbi (who is the President of the Rabbinical Grand Tribunal). For the text of section 179, see supra text accompanying note 3). See also Westreich, The Jewish Woman’s Marital Status in Israel, supra note 12, at 338–41. 160. See supra text accompanying note 99. 161. Letter from the Chief Rabbis to Chief Secretariat of the Mandatory Government of Palestine, supra note 124. 162. Comments on the Proposal by the Chief Rabbis, supra note 122. Most Jewish citizens of Palestine were members of Knesset Israel, but many ultra-Orthodox Jews received permission not to join. The Chief Rabbinate had authority only over members of this body. 163. The High Court of All Ashkenazi Communities in Jerusalem, Served by Rabbis Frank (Rabbi of Jerusalem), Horowitz, and Rom (Signatories), to the High Commissioner (Oct. 24, 1945) (on file with the ISA, File No. M-221/6); The Central Committee of Agudat Israel in Jerusalem to the Chief Secretary (Nov. 7, 1945) (on file with the ISA, File No. M-221/6); Rabbi Yosef Tzvi Dushinsky, Ultra-Orthodox Community in Jerusalem to the High Commissioner (Nov. 14, 1945) (on file with the ISA, File No. M-221/6); The ultra-Orthodox Community in Jerusalem, Signed by Jonah Zwebner, Secretary of the Community, to the Chief Secretary (Nov. 14, 1945) (on file with the ISA, File No. M-221/6). This letter is attached to the previous one. 164. Letter from Chief Sec’y John Valentine Wistar Shaw, Mandatory Government of Palestine, to the Chief Rabbinate (Dec. 21, 1945) (on file with the ISA, File No. M-221/6). The response of the Chief Rabbinate is found in Letter from the Chief Rabbis to the High Commissioner, supra note 149. 165. See supra text accompanying notes 161 and 162. 166. Letter from the Chief Rabbis to the High Commissioner, supra note 149. 167. See Letter from the Attorney General to the Chief Secretary, supra note 152. 168. 7 R. Ovadia Yosef, Responsa Yabia Omer sec. 2 (1993). On the background to this statement, see Westreich, The Jewish Woman’s Marital Status in Israel, supra note 12, at 338–41; Amihai Radzyner, Halakha, Law, and Worldview: Chief Rabbis Goren and Yosef, and the Permission to Marry a Second Wife in Israeli Law, Dine Isr. (forthcoming 2018). HCJ 160/75 Bitton v. R. Shlomo Goren 30(1) PD 309 (1975). To understand Yosef’s view, it is important to know that he completely rejected Ouziel’s claim (see supra text accompanying notes 113–14) about “local custom,” which prohibited bigamy for all Jews in Palestine. According to Yosef, Ouziel merely accepted the Ashkenazi Halakha of Rabbi Herzog. See 6 R. Ovadia Yosef, Responsa Yabia Omer sec. 14 (1976); 8 R. Ovadia Yosef, Responsa Yabia Omer sec. 26 (1995). 169. See Bentwich, supra note 42. 170. Dickstein, supra note 144, at 72. Further progress in the same direction can be found, indeed, in The Jerusalem Ban, supra note 90. But in time, this progress was halted in many ways, and the sectarian halakhic view returned to rule the roost. See Westreich, The Jewish Woman’s Marital Status in Israel, supra note 12, at 326ff. 171. Draft—An Ordinance to Provide a General Penal Code for Palestine, 367 Palestine Gazette 676 (June 6, 1933); Criminal Code Ordinance [CCO], 652 Palestine Gazette (Supp. 1) 399 (Dec. 14, 1936). 172. Draft—An Ordinance to Amend the Criminal Code Ordinance of 1936, 1446 Palestine Gazette 1213 (Oct. 18, 1945); Criminal Code (Amendment) Ordinance No. 1 of 1947, 1563 Palestine Gazette (Supp.) 1 (Mar. 15, 1947). 173. These three words did not appear in the proposal: see supra text accompanying note 165. © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative 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)

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Rabbis Drafting Criminal Legislation: The Shaping of the Prohibition Against Bigamy for Jews in Mandatory Palestine

Rabbis Drafting Criminal Legislation: The Shaping of the Prohibition Against Bigamy for Jews in Mandatory Palestine

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Rabbis Drafting Criminal Legislation: The Shaping of the Prohibition Against Bigamy for Jews in Mandatory Palestine

Rabbis Drafting Criminal Legislation: The Shaping of the Prohibition Against Bigamy for Jews in Mandatory Palestine

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