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Understanding the Transformation of Spousal Law

Honors Lecture Explores Marriage and Family in the Context of Civil and Religious Law 

20170208-Lifshitz-Honors-Lunch-037_300 Dr. Shahar Lifshitz speaks about spousal law.

On February 8, Dr. Shahar Lifshitz gave a fascinating lecture on spousal law both inside and outside of Israel as part of a collaboration between the Jay and Jeanie Schottenstein Honors Program at Yeshiva College and the Zahava and Moshael Straus Center for Torah and Western Thought. Lifshitz is dean of the School of Law at Bar-Ilan University in Ramat-Gan, Israel, and founder of the Bar-Ilan Institute for Jewish and Democratic Law. He is an expert in the fields of family law, human rights and Judaism, multiculturalism and contract law.

He began by describing the model of marriage, divorce and family in Western society in the 19th and 20th centuries and its evolution from a structure he called “public, family-as-unit and non-egalitarian” in the 19th century to one that is “private, individualistic and egalitarian” in the 20th century. The model became more liberalized over time, in the sense that there was less focus on social role and more on individual autonomy.

The form of the model at any one time reflected the current “metanarrative” of the society’s moral and economic beliefs about what constituted the accepted interactions among men, women and the state (through its legal system).

Lifshitz pointed out that while these metanarratives provide social cohesion, they also limit our ability to consider alternatives as people’s individual and social lives change.  This is especially the case in Israel, where the Western models described by Lifshitz do not apply to a society where civil and religious law about marriage and the family are so often in a seemingly intractable conflict.

For instance, he described the current contentious debate in Israel over civil, common-law and traditional marriage as well as civil unions and cohabitation, with everyone at loggerheads with everyone else and a system of family law that sometimes feels arbitrary and improvisational in its workings.

Lifshitz’s desire is to find what he described in a 2013 article as “another form of dialogue, one which is not based exclusively on majority rule or ‘negotiations’ based on power [and] involves an understanding of the other side, and a genuine willingness to compromise.”

Towards that end, he proposed what he called a theory that blends public and private interests in a way that acknowledges society’s stake in establishing stable relationships (especially considering the welfare of children) while also honoring liberal values of autonomy and equality within the spousal relationship (including a “right of exit” with some moderate limitations).

He recognized that putting his “new theory” into practice will take time and will not be easy, but its value lies in affording Israeli society the chance to break out of its metanarrative so that the contending parties can find new ways to have their interests honored and the happiness of everyone increased. “The goal of my project,” he said, “is to try to break the normative thinking that keeps people stuck in their ideas so that they can take on different options.”