Mark Washofsky

67. See B. Gitin 49b and Yad, Gerushin 1:2. 68. See, among other places, M. Gitin 9:8 and B. Gitin 88b.

69. The classic formulation, kofin oto ad sheyomar rotzeh ani(“we coerce him until he says‘I will do it willingly’), is found in M. Arakhin 5:6.

70. Yad, Gerushin 2:20, Rambam ’s elaboration upon the Talmudic formulation“it is a mitzvah to heed the words of the Sages”(B. Bava Batra 48a and elsewhere). The idea in both texts is that the Jew ’s true desire is to adhere to the mitzvot, so that

and realize that desire.

71. Law Concerning the Jurisdiction of Rabbinical Courts(Marriage and Divorce), 1953, paragraph 6, as amended 2000. See Shelomo Daichovsky,“Akhifat gerushin,” Techumin 25(2005), 132-148.

72. The halakhah permits coercion of divorce only on certain carefully specified grounds. A divorce coerced for improper reasons is invalid(a get me‘useh; see B. Gitin 88b; Yad, Gerushin 2:20; Shulchan Arukh Even Ha ezer 134:7). Thus, the tendency among the poskim for centuries has been to avoid exerting physical pressure upon the husband. The classic statement is by Isserles , Sulchan Arukh Even Ha'ezer 154:21:“since there is a dispute among the authorities, it is best to rule strictly and not to coerce‘with whips’, so that the get not be coerced in an invalid manner.” He does, however, permit other forms of legal and moral pressure against the recalcitrant husband. One of the best treatments of the subject is Zorach Warhaftig (father of Itamar),“Kefi’at get lehalakhah ulema‘aseh,” Shenaton hamishpat ha ivri 3-4(1976-1977), 153-216; see especially at 157-159.

73. Kreimer, note 55, above, at 324-325.

74. The literature on legal positivism is immense. On the particular issue I raise here, see H. L. A. Hart,“Positivism and the Separation of Law and Morals,” Harvard Law Review 71(1958), 593-629, reprinted in H. L. A. Hart, Essays in Jurisprudence and Philosophy(Oxford: Clarendon Press, 1983), 49-87. For a memorable formulation see Oliver Wendell Holmes, Jr. ,“The Path of the Law,” Harvard Law Review 10(1897), 457-478.

75. This topic is too complex to discuss in any depth here. The complexities are discussed in Aharon Lichtenstein ,“Does Jewish Tradition Recognize An Ethic Independent of Halakha ?” in Marvin Fox, ed., Modern Jewish Ethics(Columbus: Ohio State University Press, 1975), 62-88.

76. B. Berakhot 25b and Me‘ilah 14b.