I commend Mr. Mallin for his attempt to solve the agunah crisis (“Constructing a Solution to the Agunah Crisis,” December 22, 2022), but his suggestions are completely infeasible. At the heart of his suggestion is the concept that, as he claims, “Ancient Torah dictates have been…reformed when…unworkable and unwarranted results are unintentionally generated in the contemporary Jewish lifestyle.” As examples of this principle, he brings the annulment of vows and the extreme limitations of the law of ben sorer umoreh, both cases where the law as explained by our rabbis in the Talmud is significantly more lenient than a plain reading of the biblical text would suggest.
However, to claim that this leniency is in fact the reason for this difference, that our rabbis were warping the biblical law to accommodate the “contemporary Jewish lifestyle,” is controversial at best. The Talmud explains the exegetical basis for these discrepancies from the plain reading, and one may easily posit that it was this exegesis, on the basis of a tradition going back to when the biblical law was originally given, that was the true motivation for this discrepancy. (As a lawyer, I trust Mr. Mallin is aware that the layman’s reading of a legal text may at times differ significantly from that of an expert.)
Furthermore, even if one does accept the concept that the leniency was imposed by necessity, it still requires the grounding in the text. To extend this concept to a situation where no such grounding exists, and simply permit something that is prohibited by the previously stated law, would be not merely controversial but fully outside the bounds of Orthodoxy. It is a general legal principle that those tasked with interpreting a law do not have the right to ignore that law; if this is true of human laws, all the more so for those given by the Creator of the Universe.
This said, some attempts have been made to find a solution roughly along these lines; while a “constructive get” has no basis for validity to the best of my knowledge, nullification of the original marriage by the beit din (which would have much the same effect) does have some basis, and some suggestions have been made along these lines. However, such attempts remain controversial, raising another issue:
Of all the areas of Halacha where one might potentially be lenient, that of a get is (at best) one of the worst places to do it. If someone is incorrectly lenient regarding most mitzvot, they have unintentionally violated a prohibition, but the error ends there. In a few cases, there may be some additional complications (e.g. needing to kasher or replace utensils after an error in the laws of kosher), but these additional complications are not too difficult to manage.
However, if a woman is married, and then divorces and remarries without a proper get, any offspring of the second union have the status of mamzer, as do their descendants. By being overly lenient in issues of get, one replaces the suffering of one agunah with that of many more people whose ability to marry any Jew (outside certain rare cases) will become a matter of controversy.Yitzhak Kornbluth