A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American Law

A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American Law Author(s): Alina Semo Kofsky Source:
Journal of Law and Religion, Vol. 6, No. 2 (1988), pp. 317-353 Published by: Journal of Law and Religion, Inc. Stable URL: http://www.jstor.org/stable/1051155 . Accessed: 24/02/2011 15:15
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A COMPARATIVE ANALYSIS OF WOMEN'S PROPERTY RIGHTS IN JEWISH LAW AND LAW ANGLO-AMERICAN Alina Semo Kofsky*
Woman is a slave, from the cradle to the grave. Father, guardian, husband-master still. One conveys her, like a piece of property, over to the other. -Ernestine Rose In the past several decades there has been a growing movement within the Jewish community to improve the self-image and status of women in Halachah (Jewish law). There is no doubt that this movement was largely affected by the women's liberation movement that has been taking place since the beginning of this century. Despite the assertion of many rabbis and scholars that the role of women in traditional Judaism has been noticeably superior to that of other contemporary civilizations,' critics frequently point to the many religious activities from which women continue to be excluded. In the past, women were not accepted as witnesses in a trial; did not inherit equally with their male siblings; were not required or expected to perform the daily religious duties assigned to men; and had to sit separately from the males in the congregation.2 Only recently have Jewish women been ordained as rabbis and relied on as cantors; allowed to serve on congregational boards as presidents of congregations;3 granted equal access to study, and allowed to perform all mitzvot; counted in a minyan, the quorum needed for a public worship service, and called to the pulpit for aliyot during the Torah service; and able to ignore the formal requirement of providing a get, the bill of divorce, although it can still be requested.4
* Associate, Hopkins, Sutter, Hamel & Park, Washington, D.C.; B.A., 1985, Univeristy of Maryland-College Park; J.D., 1988, Georgetown University Law Center, Washington, D.C. This article was written in the context of a seminar at Georgetown University Law Center, "Judaic Sources of American Law," taught by Professor Sherman Cohn, Rabbi David Saperstein, and Dr. T. Forcht Dagi. 1. See, e.g., RABBI R. GITTELSOHN,LOVE, SEX AND MARRIAGE:A JEWISH VIEW 191(e) (1976) [hereinafter GITTELSOHN]. 2. Id. at 191h. 3. Only about five percent of all Reform congregations in the United States have women as presidents and vice-presidents, and only four percent of the Union of American Hebrew Congregations members are women. RABBI S. PRIESAND,JUDAISMAND THE NEW WOMAN 35 (1975) [hereinafter PRIESAND]. 4. It should be noted that these developments have been predominantly characteristic of
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In the wake of these modern developments,the focus of this paper is to inquire into the nature of propertyrights that women have enjoyedin Jewish law, and to examinetheir developmentthroughout history. A discussionof women'spropertyrightspossessedby American and English women will then be examined, and will include a historical look at the common law roots of the coverture laws. Finally, the two systems will be comparedin orderto ascertainwhether one is more advantageousthan the other, and whether one legal system more adequately recognizes women's interests and desires for equality. The primary premise of this paper is that Jewish law afforded more property rights to women, and at an earlier time than Anglo-Americancommon law. Propertyrights are an essentialstepping stone to definingwomen as first-classcitizens who can co-exist equallywith men. It is only when women are finallyable to enjoy the same legal rights and privilegesas men, such as contracting,writing wills, and owning and devising real and personalproperty,that they will be able to achieve the independenceand respectthey have sought for so many centuries,and no longer be classifiedtogether with deaf mutes, minors, and the insane.5
I. A LOOK AT JEWISH WOMEN THROUGHOUT HISTORY
A. Biblical Women The Old Testamentbegins with Genesis-the story of the creation of mankind. Two differentversionshave been generatedby religious scholars:accordingto Genesis one, man and woman are created equal;but in Genesis two, the woman is created from the man's rib.
the Reformed Jewish movement; the early leaders of the Reform movement in Germany wanted to give women equality, and has ordained women as rabbis since 1972. Currently, the Conservative movement has also attempted to grant women more equality by allowing them to sit together with men in the congregational pews, and decreeing that women may now be counted in a MINYAN and be ordained as rabbis. The Conservative movement is currently considering whether women may be allowed to perform the MITZVOT of wearing a tallit. S. Basinger, Preserving the Covenant-A Challenge for Jewish Women, in THE LIFE OFTHE COVENANT: THE CHALLENGE OF CONTEMPORARY JUDAISM 1-2 (J. Edelheit ed. 1986); GITTELSOHN, supra note 1, at 191j; F. KLAGSBURN, VOICES OF WISDOM 135 (1980). Nevertheless,
the Orthodox branch has steadfastly resisted any such changes, deeming them impermissible. 5. Deaf mutes, minors, and the insane have had no legal standing in Jewish courts. Their statements, either as litigants or as witnesses, have never been accepted in a court of law.
M. MEISELMAN, JEWISH WOMEN IN JEWISH LAW 73 (1978) [hereinafter MEISELMAN]. Fur-
thermore, as late as the nineteenth century, American and English common law also classified women in the same way. In 1847, Benjamin Hall writes in THE LAND OWNERS'MANUAL that in New York, "all persons except idiots, persons of unsound mind, married women, and
infants" might devise realty in a will. N. BASCH, IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN THE 19TH CENTURY NEW YORK, 67 (1982) [hereinafter BASCH].
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These varying interpretations led to the Jewish legend of the Lilith myth:6 When God createdAdam, He also createda wife for him out of the earth. This first woman was Lilith. Adam and Lilith, however, did not make a happy couple. Becausethey were both of the same origin, she consideredherself his equal and refused to obey him. They quarreledwith one another until in a moment of rage, with the help of the ineffablename of God which she uttered, she flew away from Adam and vanishedinto the air. Adam complainedto God that the wife He had given him had desertedhim. God sent three angels to bringher back. The angels found her in the Red Sea, in the very spot the Jews later passed in the Exodus from Egypt. The angels tried to make her return, threatening that if she would not, hundreds of demon children would die daily. Lilith preferredthis punishmentto returningto Adam. Again the angels threatened: they would drown her in the sea. She imploredthem to spareher, and in returnedshe grantedthem a concession. She told them that her purpose in life was injuring babies. Until the eighth day, after their birth, she could injure boys; and girls until their twentiethday. But, she swore, whenever she would see the names of these three angels written in a home, she would keep away from child and mother, and would do no injury. The three angels releasedLilith after she had taken that oath. And to this day, the names of these three angels are written on amulets and hung upon the walls of the room where a woman lies in childbed.7 The Lilith legend is significant in that it recognized the status of women in the Jewish community. Although Lilith wished to be equal with Adam, this was not permitted, and she was ultimately punished for her desire to be independent.8 This legend was perpetuated in Jewish law, which regarded the woman as the ruler of the household, the dominating, central figure of influence and love;9 but that was the extent of her domain. The predominant role of the Jewish woman was that of a wife and mother, and every Jewish girl was reminded of this each Shabbat when her father would say the blessing: "May you
6. PRIESAND, supra note 3, at 3. 7. Id. at 3-4. 8. Id. at 4. 9. Brayer,TheRole of JewishLaw Pertainingto the JewishFamily,JewishMarriageand Divorce, in JEWS AND DIVORCE5 (J. Freid ed. 1968).
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be like Sarah, Rebecca, Rachel and Leah."' The ideal woman, according to Proverbs31:10-31,was one who worked from early morning until late in the evening,spinningand weavingand workingin the field, supervisingthe household, and caring for her family.11In con10. PRIESAND, supra note 3, at 6.
11. Id. Proverbs 31:10-31(Oxford)states:

A CAPABLEWIFE
Who can find a capablewife? Her worth is far beyond coral. Her husband'swhole trust is in her, and childrenare not lacking. She repayshim with good, not evil, all her life long. She chooses wool and flax and toils at her work. Like a ship laden with merchandise, she bringshome food from far off. She rises while it is still night and sets meat before her household. After carefulthought she buys a field and plants a vineyardout of her earnings. She sets about her duties with vigour and bracesherself for the work. She sees that her businessgoes well, and never puts out her lamp at night. She holds the distaffin her hand, and her fingersgrasp the spindle. She is open-handedto the wretched and generousto the poor. She has no fear for her household when it snows, for they are wrappedin two cloaks. She makes her own coverings, and clothing of fine linen and purple. Her husbandis well known in the city gate when he takes his seat with the elders of the land. She weaves linen and sells it, and suppliesmerchantswith theirsashes. She is clothed in dignity and power and can affordto laugh at tomorrow. When she opens her mouth, it is to speak wisely, and loyalty is the theme of her teaching.
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trast, her rights were much more limited in the larger community.12 The biblicaldiscussionof women is not completelydevoid of positive treatment. Miriamwas a greatprophetess,Deboraha judge, and Huldah was said to be a woman of great wisdom and learning.'3 Ruth's loyalty and conversionto Judaismcaused the rabbisto regard her as King David's great-grandmother, while her devotion to Naomi was unequaled.'4 Finally, there was Esther, who saved her people from the cruel Haman, and was able to approachthe king becausehe loved her.15 B. Women in the Talmud The primaryrole of women as homemakersremainedgenerally unchangedduringTalmudictimes. Rabbi Yossi is known for saying, "Never have I referredto my wife as 'my wife' but rather as 'my home.' "16 An additional responsibilityof the wife was to allow her husbandand sons to engagein the study of Torahwhile she tended to the household and raising of the family.'7 But even during these times some exceptional women emerged. Rachel, the wife of Rabbi Akiba, became the example of the ideal wife who sacrificedherself in order that her husband could study Torah. Rachel fell in love with Rabbi Akibbawhile he was tending sheep for her wealthy father. She
She keeps her eye on the doings of her household and does not eat the bread of idleness. Her sons with one accord call her happy; her husbandtoo, and he sings her praises: 'Many a woman shows how capable she is; but you excell them all.' Charmis a delusion and beauty fleeting; it is the God-fearingwoman who is honoured. Extol her for the fruit of all her toil, and let her laboursbring her honour in the city gate. 12. See infra notes 37-42 and accompanyingtext for furtherdiscussion. 13. PRIESAND, supra note 3, at 6.
14. Id. 15. Id. 16. Shabbat 118b cited in Hauptman, Women in the Talmud, in THE JEWISHWOMAN: 161 (L. Koltun ed. 1973) [hereinafter Hauptman]. AN ANTHOLOGY 17. Id.
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married him against her father's wishes, and lived in poverty while he was studying at the great yeshivot. When he finally returned several years later as a great teacher and charismatic leader, he publicly acknowledged to his students that all of his acquired knowledge was attributable to his wife Rachel.18 The wife of Abba Hilkiah was said to be so virtuous that when they both prayed for rain, a cloud appeared and it began to rain first in the comer where she was praying.19 When asked for an explanation, Abba Hilkiah answered: Becausemy wife, being all day in the house, gives food to the poor, something that brings them more good than money, for if I give them money they must firstbuy the food beforethey can eat it .... We have had neighbours,who are greatrogues,and I prayfor their death, but my wife prays that they should repent and turn away from their evil deeds. Moreover,she takes the children to school and fetches them from school, she helps in bringing them up as good and virtuous men; she looks after the house-on her alone depends the happinessof the home and family life. Thereforeher merit is far greaterthan that of a man and her prayerswere heard first.20 One of the greatest women of this period was Beruriah, the daughter of Rabbi Hanina ben Teradyon, and the wife of Rabbi Meir.21 Beruriah was recognized as a religious scholar, and the Talmud records her opinions.22 It is said that she was able to absorb over three hundred laws each day, and that some of her legal decisions were accepted as Halachah, despite the opposing views of some Rabbis.23 Unfortunately, her active participation in the male-dominated religious community also gave rise to negative comments. Many stories portray Beruriah as "a cantankerous woman who use[d] her mental abilities to mock her husband and his colleagues."24 Nevertheless, she represented an exception to the Talmudic portrayal of women as "lightheaded, emotional, prone to gossip and incapable of
18. Id.
19. L. Kuzmack, Rabbinic Interpretations of Biblical Women in Aggadic Literature 20 (April 21, 1975) (unpublished M.A. Thesis: Baltimore Hebrew College) [hereinafter Kuzmack]. 20. Gaster, Some Stories About Jewish Women, in L. JUNG, WOMAN18-20 (1970), quoted in Kuzmack, supra note 19, at 20. 21. Kuzmack, supra note 19, at 20. 22. PRIESAND,supra note 3, at 26. 23. Kuzmack, supra note 19, at 20; Hauptman, supra note 16, at 162. 24. Hauptman, supra note 16, at 162.
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serious study."25 Rashi tells the story, which has never been confirmed, that Rabbi Meir convinced one of his students to seduce Beruriah,because she mocked the Rabbinicdictum that "womenare light-minded."26Apparently the student succeeded, and Beruriah committed suicide.27 The stories of Jewish women throughoutBiblical and Talmudic times are significantin that they convey a sense of the role and status of women in the Jewish community. With only a few exceptions,women were regarded as primarily homemakers,wives, and mothers. They were forbiddento remain idle,28while at the same time they were not allowed to have careers because of the belief that a home supported by a woman would not receive divine blessings.29These concepts were largely responsiblefor the shapingand developmentof women's propertyrights within Jewish law.
II. PROPERTY RIGHTS OF WOMEN IN JEWISH LAW
A. Biblical Times In early Biblicaltimes, a woman was herselfregardedsimply as a piece of property. From birth until the end of her life, she was dependent on, and continuallyunder, someone else's ownership:her father, her guardian, or her husband.30 Marriage symbolized a business transaction,in which the groom purchasedthe bride from the father
25. Id.
26. Kuzmack, supra note 19, at 22.
27. Id. Beruriah'swisdom was further demonstratedby the manner in which she informed her husbandof the death of their two sons: When [RabbiMeir] returnedhome to celebratethe Sabbath,she welcomedhim as if no sorrow had befallen them. When he asked for his sons, she said that she would explaintheir absenceafterthey had finishedthe Sabbathmeal. She then asked
his advice in a very important matter.
A strangerwho had given her some jewels to take care of, she said, had now returnedand demandedthat she give the jewels back. She had grown very fond of them and wantedto know if she had to returnthem. RabbiMeir was astonishedthat a woman as wise as his wife would ask such a foolish question,and he repliedthat certainlyshe must give them back. At that point Beruriahtook him into the room where their two sons lay dead and in his grief she comfortedhim. 'They werejewels she given to us by God for safekeeping,' said, 'until he demandedthem for Himself once again.'
PRIESAND,supra note 3, at 26. 28. As Maimonides declared: ". ..[S]he should not sit idle, without work, because idleness BOOKIV-THE BOOKOF THE CODE OF MAIMONIDES: leads to immorality." MAIMONIDES, WOMEN 131 (I. Klein trans. 1972) [hereinafter MAIMONIDES]. 29. PRIESAND,supra note 3, at 27. 30. Id. at 6.
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much like the purchasingof a slave.31For a certainpurchaseprice, or mohar, the groom and his family acquireda wife who would tend to the household tasks, while the family of the bride lost a valuableand productivepiece of property.32Throughoutthese times, the woman had few legal rights, and her role was limited to tending to household chores and raising her family. Nevertheless, a change in attitude slowly began to emerge,and Jewish women began to be regardedless as a man's possessionand more as humanbeings in their own right.33 Jewish law witnessed an ever-growingexpansion of women's rights over a period of a thousand years.34 Talmudic Times In rabbinictimes, marriagecontinued to be a business transaction, but Jewish law created new devices such as the ketubah35 and dower through which women received somewhat more legal protection.36 The status of Jewish women in the medievalworld, for example, was far betterthan the women of other nations. Womenbegan to participatemore frequentlyin communityactivitiesas their economic emancipationexpanded.37Although women were counseled not to
31. Id. 32. Id. The concept of the Leviratemarriageperpetuatedthe status of women as property. Biblical law provided that the widow of a man who died childless should marry her brother-in-law.(Deut. 25:5-10). The rationalefor this ancient traditionwas to prevent the inheritancefrom passingoutside of the family;to continuethe name of the deceasedbrother: ("the firstborn that she bearethshall succeedin the name of his brotherthat is dead, that his name be not blotted out of Israel";and to preventthe widow from becominga burdenon the community. The widow thereforebecamethe propertyof her husband'sfamily,and by requirto ing her brother-in-law marryher, the family'spropertyright in her was maintained. Although this tradition was popular in deuteronomictime, (seventh century B.C.E.), whereit was considereddisgraceful the brother-in-law refuseto marrythe widow, by the for to fourth centuryB.C.E., the ceremonyof halitsah,(in which the brother-in-law freedthe widow and allowed her to marry whomevershe wished) became customary. G. HOROWITZ, THE SPIRITOF JEWISHLAW 283 (1963) [hereinafter PRIESAND, supra note 3, at 10HOROWITZ]; 11. 33. PRIESAND,supra note 3, at 8. In Exodus 20, for example,the last of the Ten Commandmentssays: "Thou shalt not covet thy neighbor'shouse ... thy neighbor'swife, nor his nor nor manservant, his maid-servant, his ox, nor his ass, nor anythingthat is thy neighbor's." 5 Interestingly,in Deuteronomy the prohibitionagainst coveting thy neighbor'swife is listed first, thus leading to the conclusionthat the woman had now achieveda higher status. 35. The ketubahhas been describedas a "legaldocumentembodyingthe essentialpoints agreedupon by the partiesand sanctionedby the law as to the mannerof their living together
34. HOROWITZ, supra note 32, at 253.
PEOPLE (L. Schwarzed. 1956) [hereinafter JEWISH 294 Roth].
as husband and wife." L. EPSTEIN,THE JEWISHMARRIAGECONTRACT (1927) cited in 2 PRIESAND, supra note 3, at 14. 36. PRIESAND, supra note 3, at 14. 37. Roth, The Successof the MedievalJewishIdeal in GREAT AGESANDIDEAS THE OF
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appear frequentlyin public, many women during this time attended services, appearedin court, and engaged in the daily activities of the
community.38
Women often participatedin the businessworld, not just as widows carryingon their deceasedhusbands'businesses,but often during their husbands'lifetimes.39Later,it becamecustomaryfor the wife to engage in businesstransactionsand tradingso that her husbandcould engage in the study of Torah.40 Along with this growing economic freedom,women also gained exposure to the cultural aspects of society. The averageJewish woman likely knew how to read and sometimes write, knew many Hebrew words and phrases used in daily speech, and memorized the most common Hebrew prayers.41The Jewish woman was therefore exposed to a much higher level of culture,achieveda more prominent status in her community,and was able to reap the benefitsof her elevated social position at an earliertime than her contemporarycounterpartin other societies.42 C. Jewish Women's PropertyRights
1. The Ketubah
A majorityof the propertyrights that a woman possessed arose in the context of the marriagerelationship,because it was assumed that she would be in that state for most of her life. The mohar, or purchaseprice, which in earliertimes had been paid by the groom to the father of the bride, became merely symbolic. According to the Rabbis,the ancientmoharwas also the source of anothervery important developmentin Jewish law: the ketubah.43The Talmud states that it became customary for the father to give the mohar to his
38. Rabbi J. Kravetz, Divorce in the Jewish Tradition in JEWSAND DIVORCE171 (J. Freid
ed. 1968). 40. Id. Many responsaduring this time that dealt with problemsinvolving women includedthe statement: "Nowadays,it is commonplacefor womento engagein business." MEI41. Id. at 294-95. 42. Id. at 295. 43. One scholarhas arguedthat the ketubahwas a contractin which both partiesparticipated equally,thus attemptingto dispel the image of the wife as the husband'sproperty. Jewish law recognizestwo types of contracts:the kinyanissur-a contractwhich causes a change in ritual status; and the kinyan mamon-a contract which effects a monetarychange. Marriage, and thereforethe ketubah,it is argued,is really a kinyanissur,becauseof the resulting bond betweenthe brideand the groom. But criticshave arguedthat in fact the kinyanmamon more accurately describesthe marriage,whereby the woman becomes the acquiredobject. MEISELMAN, supra note 5, at 96-97.
SELMAN, supra note 5, at 83.
39. Roth, supra note 37, at 294.
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daughterin the form of a separateestate in orderto protect her in the event the marriagecame to an end.44 Later, it was ordainedthat because the property could be lost or dissipated, the husband should commit himself to paying his wife a pre-establishedsum upon his death or their separationor divorce.45Finally, during the period of the Second Temple, Simeon ben Shetah, Queen Alexandra Salome's brother(76-67 B.C.), passed an ordinancedeclaringthat the ketubah was to become a "statutory"lien on the husband'sestate, therefore ensuringthat the wife would be able to collect her ketubah.46 The originalpurposeof the ketubahdocumentwas to ensurethat the widow would be providedfor in the event of divorce or the death of the husband.47With time, it becamecustomaryto also add specific obligations the husband was expected to fulfill, such as support and conjugalrights.48Accordingto the Talmud,the ketubahimposedten obligationsupon the husband,some of which were derived from the Scripture,and others from Rabbinicallaw.49 In communitiesoutside of Europe where the general prohibitionagainst polygamy was not followed, a clause was added to the ketubah stipulating that the groom promised not to take a second wife during the bride's lifetime.50 The ketubah endowed the woman with certain property rights.
44. HOROWITZ, supra note 32, at 297. 45. Id. 46. Id. 47. PRIESAND, supra note 3, at 20. 48. HOROWITZ, supra note 32, at 308. 49. Id. These obligations were: (1) food; (2) clothing; (3) conjugal rights (Ex. 21:10); (4) care and cure in sickness; (5) redemption of the wife from captivity; (6) provision for her burial; (7) payment to her sons by him of the amount of the ketubah upon her death (the obligation of the benin dikrin); (8) support after her death of any daughters that she may have brought with her at marriage, until they came of age or until they were married, if that occurred while they were still minors; (9) support during her widowhood until she collected the ketubah or remarried; and (10) that the lien of the ketubah was to be a charge on all his property binding on himself and his heirs. 50. Id. at 309-10. The form of the document most commonly used today reads as follows: since the "On the ..... day of the week, the ..... day of the month, in the year ...... Creation of the World, the era according to which we are accustomed to reckon here in the State of ..... United States of North America: City of ..... said to the virgin ..... daughter of..... 'Be "Whereas, the groom ..... the son of..... thou my wife according to the law of Moses and Israel, and I will work for thee, honor, support, and maintain thee in accordance with the custom of Jewish husbands, who work for their wives, and honor, support, and maintain them in truth. And I will give thee 200 zuz as mohar of thy virginity which is due thee, and thy food, clothing and necessaries, and cohabit with thee according to universal custom;' and consented and became his wife; and "Whereas, this virgin ..... daughter of..... "Whereas, the dowry that she brought from her father's house in silver, gold, ornaments,
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She could sell it if she wished, but the buyer only obtaineda life expectancywith a right to collect only if the marriageterminatedwithin her lifetime.51 She could also sell it to her husband, but a new one would have to be drawn up containingthe statutoryminimumof 200 zuz.52 The bond of the ketubahwas collectible from the entire estate of the husband,as decreedby the Geonim, and it became customary to stipulate that it was collectible from his best lands.53 Finally, it seems clear that no statute of limitationsexisted to bar the collection of the ketubahby the woman.54
the clothing, household furnishingsand bed-clothes,amountingin all the value of ...... groom has taken upon himself;and "Whereas,the groom has consented to match that sum by adding thereto the sum of ..... making a total in all of...... "Wherefore the groom ..... the son of..... did declarethus: 'I take upon myself and of my heirs after me the responsibility this shetarof ketubah,of the Dowry, and of the Addition, that all shall be paid from the best of my propertyand my possessions,wheresoever situate,that I now possessor may hereafteracquire,both real and personal. All my property, even the mantleon my shouldersshall be securityfor and subjectto this shetarof ketubah,this Dowry, and this Addition, in life and in death, from this day and forevermore.' "The responsibility the full force of this shetarof ketubah,the Dowry, and the Addiand tion did the groomtake upon himselfwith the full force and effectof all shetarsof ketubahand their additionsas is customaryfor the benefitof daughtersof Israel,and as madein accordance with the institutionof our sages (may their memorybe for a blessing),not as a penalobligation nor as a mere form of document. "We have taken kinyanby means of an articlefit for the purposefrom the groom ..... the son of..... on behalfof the virgin ..... the daughterof..... with respectto all that is hereinabovewritten and set forth. And all is valid and established. Witness .......... Witness .......... 51. Id. at 312. 52. Id. Zuz or denars was a form of coin used during ancient times. Today, it is estimated that one zuz would equal 15 cents, which, duringthat period of time, would have had substantialpurchasingpower. 53. Id. at 313. Maimonidesstated: The Geonim in all the academieshave ordainedthat the wife may collect her ketubahafter her husband'sdeath even out of movables.... Likewise,all the other conditionsstipulatedin the ketubahare in this respectsubjectto the same rules as the ketubahitself, and may be collected out of movablesas well as out of land .... Maimonides,supra note 28, at 100. 54. Maimonidesstated: A widow who producesa ketubahmay swear an oath and may then collect her ketubah indefinitely,even a hundred years hence, whether she resides in her husband's house or in her father'shouse. If she cannot produce a ketubah, she is entitled to nothing, not even to the statutoryketubah,and not even if she demandsit on the very day of her husband's death. The same appliesto a divorcee,who is not entitledeven to the statutoryketubah until she producesthe documentitself. When does this apply? In places where it is the practice to write a ketubah. Wherethe practiceis not to write a ketubahbut to rely on the terms establishedby the court, she may collect the statutoryketubaheven if she cannotproducethe documentaryketubah,whethershe has been divorcedor widowed,whethershe residesin
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Today, the ketubahas a bond of indebtednesshas become obsolete; the law of each country now protects the propertyrights of women.55 The ketubah is still used as a ceremonial document and religious remembranceof the past by observantand orthodox Jews, although it has lost its legal validity.56
2. Melog and "Iron Flock" Assets
Jewish law gave the husbandmany rights in the use and enjoyment of his wife's property.57The husbandwas entitled to his wife's chance findingsthat producedgains, as well earningsand services,58 as acquisitions of ownerless property.59The wife in turn expected support, food, clothing, shelter and care from her husband.60 Although the benefitson each side might have appearedinequitable,a Jewish woman possessed many more propertyrights than her counterpartin other societies. The married woman's property was divided into two different categories:melog assets, literally meaning "plucking,"and assets of "iron flock," tzon barzel. Melog assets representedpropertyacquired both before and after the marriage,but which belonged only to the wife.61 These included any assets which she had brought into the marriagebut had not deliveredto the husbandas part of the dowry, and had not been designated"iron flock" assets in the ketubah;gifts received before or during the marriage;and inheritancesand collection of damages for personal injuries.62The husband'srights in the
her husband'shouse or in her father'shouse. She is not, however, entitled to the amount unless she producesclear proof. supplementary What is the time limit for a widow entitledto collect the statutoryketubah,in a place whereno ketubahis written? If she residesin her husband'shouse, she may do if so indefinitely; she residesin her father'shouse, the time limit is twenty-fiveyears. If she comes to collect after twenty-fiveyears,she is entitledto nothing,becausehad she not waivedher right to it, she would not have kept silent all this time. Inasmuch to as she is not residingwith the heirs, she cannotclaim, 'I was embarrassed demand paymentfrom them while they reside with me in the same house.' Maimonides,supra note 28, at 104-05. 55. HOROWITZ, supra note 32, at 315.
56. Id. 57. Id. at 295.
58. The Mishnah spells out seven labors for which the wife was responsible:grinding corn, baking,washing,cooking, nursingher children,makingbeds, and workingin wool (but not in flax, which was consideredmore strenuous). KetubotV, 5 cited in HOROWITZ, supra note 32, at 297.
59. Id. 60. Id.
61. Id. at 300. 62. Id. Maimonidesstated:
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wife's melog assets were very limited. He could make expenditures based on them, but if he spent everythingand made no income, upon divorce he could be reimbursedonly for the improvementshe had made upon the property.63The husband'spersonal creditors could not collect from the melog assets.64And although the husbandcould not sell any of these assets, he could inherit them if his wife died.65 Although at first glance one would presumethat such limitations on the husbandwould allow the wife full rightsover her property,this was not entirelythe case. The wife could sell these assets, but only as to the corpus, thus conveying a bare title, with the actual possession, enjoymentand use deferreduntil such time that she becamewidowed or divorced.66Full title and possessioncould be conveyed simultaneously only when both the husband and wife joined in the conveyance.67The wife could, if she wished, transferher melog assets to her husbandby means of either a gift or a sale transaction.68 "Iron flock" assets, in contrast to melog assets, included properties that the wife brought to the husband,the dowry, and the assets that the husband set aside for her, and for which he acted as an insurer against loss, damage, or impairment.69Although the husband was free to spend these monies and commoditiesbecausehe was ultimately responsiblefor their repayment,he could only have the use and enjoymentof lands and chattels.70He could never sell real property that was "iron flock," even with the apparent approval of his
registeredin the ketubah, but remainingin her own possession, or property that came to her by way of inheritancesubsequentto her espousal,or by was of gift-all such property is likewise called melog property, since it all remains under her authority. Maimonides,supra note 27, at 99. "If, however, [the husband]does not become surety for the dowry, and it remainsunder the wife's authority,the rule is that if there is a depreciation, must bearthe loss, and if there is she an increment,it belongs to her. Such propertyis melog property." Id. at 98-99. 63. Id. 64. Id. at 298. 65. Id. at 299. 66. Id. 67. Id. at 299-300. 68. Id. at 300. 69. Id. The assets "werelike a flock of sheep becausethey produceda yield which the husbandenjoyedand they were like iron becausethey were indestructible propertyof the wife by virtue of his guaranty." Maimonidesstated: "If the husbandbecomessuretyfor the dowry,so that it comes under his authority,the rule is that if it depreciates,he must bear the loss, and if it goes up in value, the incrementbelongs to him. This is what is called 'iron sheep property.'" Maimonides, supra note 28, at 98.
70. HOROWITZ, supra note 32, at 301. [A]ll property belonging to the wife and not brought by her to her husband, nor
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wife, becauseof a presumptionthat she had agreedto the transaction only to please her husband, and had therefore not consented to it freely.71 The husband inherited the wife's "iron flock" upon her death.72 On the other hand, when the husband died, only the sons from their marriagewere entitled to the assets.73 The wife had no possessoryrights to the "iron flock" assets, nor could she sell, mortgage,or pledge real estate or movableswithout her husband'sconsent.74But she could execute a binding transferof the assets if she had freely taken the initiative to do so herself, and her husbandlater ratifiedit.75 In situationswhere the marriageended in divorceor death of the husband,the wife could claim her "ironflock" assets at the value set in the ketubah.76 3. Capacity of Women to Contractand Incur Obligations Interestinglyenough, no levy could be imposedon a marriedwoman's propertybecause it was consideredto be under the husband's influence.77 Nevertheless, a married woman could incur debts, be sued, and sufferjudgments against her.78 Only when she became divorced, widowed, or a "femme sole" (a "single female"), could her propertybe levied against.79The Geonim later passed an ordinance which requiredthe husbandto pay any debts his wife might have incurredbeforemarriageif she had providedreal and personalproperty to the marriage.80Furthermore,any debts that the wife incurredfor her maintenanceand support or for household needs had to be paid by the husband,becauseshe acted only as his agent, and he was therefore liable as principalfor all of her business transactions.81
71. Id. In Rif and Rosh's opinion, a husbandcould neverthelesssell real "iron flock" property,although the conveyancewould still be subjectto the terminationof the marriage within the wife's lifetime. 72. Id. 73. Id. See infra notes 95-125 and accompanyingtext for furtherdiscussionof inheritance rights. 74. Id. 75. Id. 76. Id. 77. Id. at 304. 78. Id. 79. Id. 80. Id. 81. Comparewith Sharpev. Buckstaff, Wis. 2d 114, 299 N.W.2d 219 (1981), infranote 99 136. the Furthermore, husbandwas obligatedto supporthis wife in the mannerto which she was accustomed,and to comport with her situation in life, as well as to local custom. The that even the pooresthusband Talmudalso fixeda minimumamountof food and maintenance
had to provide. HOROWITZ, supra note 32, at 302.
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4. The Wife's Separate Estate In addition to the melog assets, discussedearlier,over which the wife had predominantcontrol, there were several other situations in which the husband had little or no influence over his wife's property.82 For example, a wife could sell her dowry, ketubah or melog assets to a third party who would take possession when she became widowed or divorced;she could use the money from the sale in any way she wished.83Or the husbandand wife could draw up an agreement stipulatingthat he would have no rights in the wife's property.84 Finally, the wife could preventher husbandfrom acquiringany rights in her propertyby transferring to a third party trustee prior to the it The trustee held the legal title for the wife, and the husmarriage.85 band could not enjoy any rights in the property.86 5. The Dowry The amount of the woman's dowry was usually stipulatedin the ketubah87and representedthe daughter's share in her father's estate.88Although a fatherwas not legally obligatedto providea dowry for his daughter,due to ancient custom it was deemedto be his social and moral obligation to do so, and was considereda mitzvah of the highest merit.89 In later times, the dower became a parentalobligation intended to entice potential suitors.90 The husbandmost commonly became the surety for the amount of the dowry as stipulatedin the ketubah,which was then converted into "iron flock" assets.9' But if the propertybroughtby the wife as
82. Id. at 305. 83. Id. at 306. 84. Id. at 306 n.12. Nevertheless,a stipulationin such an agreementthat the husband would not inherit from his wife was invalid.
85. Id.
86. Id. at 306-07. Even though such trustswere legally valid, they were frownedupon by often being kept secretfrom the Talmudists,who claimedthat they were by naturefraudulent, husband. Mar Samuelof Nehardea,a famous masterof Talmudicalcivil law, once declared: "I formallyexpoundand teach that if a 'shetarpisis' [the name of the trust] were presentedto me, I would tear it up and destroy it." 87. Maimonidesstated that "[t]he propertythat a wife brings to her husband,whether real estate, or movables,or slaves, even though registeredin the ketubahdocument,is nevertheless called not ketubah,but dowry." Maimonides,supra note 28, at 98. 88. PRIESAND,supra note 3, at 15. 89. HOROWITZ, supra note 32, at 307. In fact, becauseof the importanceof providinga dowry, the court had the duty of setting aside a portionof the father'sestate for the dowry of the orphaneddaughterin case the heirs failed to providefor one. 90. PRIESAND,supra note 3, at 15. 91. HOROWITZ, supra note 32, at 307.
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dowry was not specificallymentioned in the ketubah, it was considered melog propertybelonging to the wife only.92 Local custom dictated the amount of the dowry; it was either overstated, out of courtesy, or understated, out of modesty.93 Although the Rabbishad declaredthat the ketubahwas to be written according to the custom of the specific place, only the true value of the dowry was to be binding,regardlessof whetherit had been understated or overstated.94 6. Inheritancein Jewish Law In Jewish law, the dispositionof both real and personalproperty could only be effectuatedby a living person.95 Therefore,property immediatelypassed on to the statutory heirs upon a person's death, unless the dying person designateda differentheir upon their deathbed through a deathbedgift (a gift causa mortis).96 In effect, therefore, very few wills existed in Jewish law, although there were many other methods by which a person could transfertheir propertyprior to death.97 The laws of inheritancein Halachah have often been criticized for their discriminationagainst women, although others have argued that the one-sided laws tend to favor women more than men.98
a. The Husband's Right to the Wife's Estate
According to Jewish law, the husbandinheritedhis wife's entire estate upon her death, and acquiredfull and complete title to all of the property.99Such propertyincludedthe ketubahand any property that was in the wife's possession at her death.1 Although the husband did not inherit the wife's debts and expectancies,he did inherit
92. Id. Mohammedan law on dowry differed in an important way from Jewish law. Jewish law did not allow the wife to waive her dower rights in favor of her husband, but Mohammedan law allowed this. The Koran states: "Give them their dowry according to what is ordained, but it shall be no crime in you to make any other agreement among yourselves. If they [the women] voluntarily remit unto you any part of it, enjoy it with satisfaction and TO advantage." D. AMRAM,THE JEWISHLAW OF DIVORCEACCORDING BIBLE AND TALMUD 115-16 (1968). 93. HOROWITZ, supra note 32, at 307. 94. Id. at 308. 95. MEISELMAN, supra note 5, at 87. 96. Id. 97. Id. See also notes 111-14, 122-25 and accompanying text for further discussion. 98. Id. at 84. See infra note 104 and accompanying text for further discussion. 99. Id. 100. Id.
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debts from the melog assets, because such propertywas in their joint
possession.101
b. The Wife'sRights to the Husband'sEstate The wife's powers of inheritance,on the other hand, were much more limited. She was not considereda legal heir of the husband,but instead was deemed to be a creditor.102 Therefore,her claim represented a lien on the estate, and had priorityover other creditorssubsequent to the marriage.103The widow had priority even over the claims of the daughters and other heirs, and could take the entire estate, if needed, to satisfy her allotted share.'04 The wife was entitled to her ketubah,which usually includedthe property that her husband had set aside; to the "iron flock" assets which she had broughtas dowry;and to supportout of her husband's estate in the form of food, clothing, and shelter, which was to be in accordancewith the station in life to which she had become accustomed.'05 The right to support ended as soon as the widow claimed her ketubah, upon her betrothal to another man, or upon the sale, The Talmud was of the opinion pledge, or release of the support.106 that if none of these events occurred, the estate was liable for the widow's supportfor the remainderof her life. In later times, this began to seem unfair to the heirs, and it was decreed that after three months the heirs could pay the widow's claims and thus terminateher 107 support. During the time that the widow was receivingsuch alimony, her labor belonged to the heirs who were supportingher, although the income of her own estate, and any other gifts or inheritances she might receive belonged solely to her.108If the heirs chose to sell the estate while the widow was still receivingsupportfrom it, she had the
101. Id.
102. Id. at 389; MEISELMAN, supra note 5, at 89.
103. MEISELMAN, supranote 5, at 90. The Mishnahstates: "Onewho dies and leavessons and daughters,at the time that the estate is large, the sons inherit and the daughtersare supported. If the estate is small, the daughtersare supportedand the sons go begging from door to door." 104. HOROWITZ, note 32, at 390. "SaidR. Aba in the name of R. Asia: 'They place supra the widow with respectto the daughterin the same positionas the daughterwith respectto her brothersif the assets are few.'" 105. Id. at 389. 106. Id. 107. Id. 108. Id. at 391.
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right to enjoin the sale if it deprivedher of further support.109 In order to alleviate the seeming unfairness of the widow's designationas a creditor, a husbandcould provide an extra share of his estate to his wife througha shetar,a bond which providedher with The principalof the estate yet anothercreditor'slien on his estate.110 could be invadedand sold to satisfy this claim if the income from the estate was not sufficient,and the widow had legal authorityto transfer the title."' In later times, a custom developedwherebythe husband would leave his wife an additionaltestamentaryshare along with his sons.ll2 It also became common for the wife to be appointedthe administratrixof her husband's estate, and a presumptiondeveloped that when the husbandwilled his entire estate to his wife, he intended that she act as trustee for their children.113
c. The Daughter's Rights to the Father's Estate
A daughter,in contrastto the widow, seldom inheritedany portion of the estate, unless there were no male heirs.114She was only entitledto supportor alimonyfrom the estate until she becameof age, 15 (customarilytwelve years and one day), or married. The ketubah explicitly provided for this.16 She was also entitled to a marriage portion out of the estate, which was to serve as a dowry upon her Both the alimony and the marriageportion represented marriage.117 liens against the father's estate, including movables, and the heirs were forbiddento sell it while a daughterwas still being supportedby
109. Id. at 390. 110. Id. 111. Id. 112. Id. 113. Id. 114. Id. at 392. 115. Id. The Talmudprovidedthe followingdiscussion:"As far as inheritance goes, a son as is preferable; far as harvaha[interpreted as alternatively 'support'and 'gifts'],a daughteris preferable." RabbenuGershom'sinterpretation is: As far as inheritancegoes, the son is given preference, he is kam tahtav,i.e. for he replacesand takes over the functionsof the father. As far as dispositionof the estate by gift is concerned,a daughteris given preference a largersharethan the and sons becauseshe is not in a positionto go out and earna living, as it says: 'The entire glory of the daughterof the king is on the inside.' [Ps. 45:14]. A son, on the other hand, can go and earn a living whereverand wheneverhe wants and is therefore given less. MEISELMAN, supra note 5, at 93. 116. HOROWITZ, supranote 32, at 392. "[F]emalechildrenthat you may have from me, if they became orphans in my house, shall be supported from my property until they be married." 117. Id. at 392. See supra notes 87-94 and accompanyingtext for a discussionof dowry.
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the it."18Furthermore,if the heirs had transferred estate, the daughter had the legal power to seize it from the grantees to satisfy her lien.19 Her lien was neverthelesssubordinateto the claims of creditors and her mother's ketubah;and if she failed to claim her dowry when she got marriedor when she came of age, the daughterwaived her rights to the estate.120 In Germany, in an attempt to remedy the inequities of the junior claim, it becamecustomaryin the Jewish communidaughter's ties for fathers to provide for their daughtersby will, often assigning them a share equivalentto one half of the brother's.121 This "deed of or "Shetar of Half of the Male Share" was a kinyan 122 which will," representeda presenttransferof title, with possessionbeing delivered upon the father'sdeath.123Unfortunately,this did not improve matters, because the "Shetar of Half of the Male share" was still subordinateto the debts of the decedent and the mother's ketubah and alimony.124 The above discussion of women's propertyrights in Jewish law demonstratesthat the Jewish communitywas ahead of its other European neighbors in recognizing women, particularlymarriedwomen, as personsin their own right, who possessedthe ability to own, manage, and devise real and personalproperty,managetrusts on behalf of their families,and conduct businesstransactionsin the world at large. The rights of Jewish women remainedfairly constant throughoutthe Middle Ages, with the Bible, Talmud, and other Rabbinic writings servingas guides for how to treat women. It was not until the 1800s, which interestingly coincided with the American women's reform movement, that the rights of Jewish women began to change. The effect of the Reform movement was to modernize and update many religiousdoctrinesand practices.125 Simultaneously,religiousleaders to acknowledgethe growingimportanceand equalityof Jewish began women in the community.126
118. 119. 120. 121. 122. Id. Id. Id. Id. at 393-94. See supra note 43 for definition.
123. HOROWITZ, supra note 32, at 394.
124. Id.
126. Id. at 30-31. In July 1845, the Conferenceof the Rabbisof Germanyin Frankfortam Main declared: One of the markedachievementsof the Reform movementhas been the change in the status of women. According to the Talmud and the RabbinicCode, woman
125. PRIESAND, supra note 3, at 30.
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Despite these attemptsto achieveequalityfor women, the Jewish

can take no part in public religiousfunctions,but this Conferencedeclaresthat woman has the same obligationsas man to participate from youth up in the instruction of Judaismand in the public servicesand that the custom not to include women in the numberof individualsnecessaryfor the conductingof a publicservice(a minyan) is only a custom and has no religiousbasis. in 91 Report of Committeeon Ordinationof Women,CCAR Yearbook (1956). Furthermore, 1846, the BreslauConferencegrantedtotal equalityto women: The halachic [legal]position of women must undergoa change,and it is hoped that all memberswill be unanimouson that subject.... [Jewishwomen] have received assurancesof their capabilitiesfor emancipation, without, however,being indeed permitted to become emancipated. It is useless to argue why the religious situation of women has become impaired.... To be sure, accordingto their viewpoint, the rabbis were absolutely right in systematicallyexcluding the female sex from a significantpart of religiousduties and rights, and the poor woman could not complainabout being deniedexalted spiritualblessings,for it was believedthat God himselfhad pronounced damningverdictover her. In the face of so manyoffendthe ing slights in civic life, she could not even complainabout the fact that the house of God was as good as closed to her, that she had to beg the rabbi'spermissionfor the daily expressionof her Israelitishfaith, as one begs for alms. She was permitteda share neitherin religiousinstructionnor in certainsacredparentalduties. The execution of sacred acts was now permitted,now forbiddento her; and finally,though the man'sdaily benedictionfor the good fortuneof not havingbecomea woman,she had to experiencethe most bitteroffensein the very house of God. And yet, all this appearsmost mild when comparedto the conferencesof a ChristianCouncil in the Middle Ages, debatingwhethera woman had a soul at all! For our religiousconsciousness... it is a sacredduty to expressmost emphatically the completereligiousequalityof the female sex. Life, which is strongerthan all theory,has indeedachievedquite a bit in this regard;however,a greatdeal is still of lackingfor the achievement absoluteequality,and even the little that has occurred alreadyis still devoid of all halachic strength. It is thus our task to pronouncethe equalityof religiousprivilegesand obligationsof women in so far as this is possible. We have exactly the same right to do this as the synod under R. Gershom, eight hundredyears ago, which also introducednew religiousdecrees in favor of the female sex.... Esteemedgentlemen,the Committeeherewithsubmitsthe following proposals for your examination:The RabbinicalConferenceshall declare the female sex as religiouslyequal with the male, in its obligationsand rights, and pronounceaccordingly as halachic: 1. That women must observeall mitzvot,even though they pertainto a certain time, in so far as these mitzvothave any strengthand vigor at all for our religious consciousness; 2. That the female sex has to fulfill all obligationstowardchildrenin the same manneras the male; 3. That neitherthe husbandnor the fatherhas the right to absolvea religiously maturedaughteror wife from her vow; 4. That from now on, the benedictionshelo assani ishah (who has not made me a woman), which was the basis for the religiousprejudiceagainst women, shall be abolished; 5. That the female sex shall, from earliestyouth, be obligatedto participatein religiousinstructionand publicworship,and in the latterrespectalso be countedin a minyan;and finally, 6. That the religiouscomingof age for both sexes beginwith the age of thirteen. W. Plaut, TheRise of ReformJudaism 253-55 (1963), cited in PRIESAND, supranote 3, at 3132.
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community has been slow to change. As was discussed earlier, not until recentlyhave women been ordainedas rabbis,allowed to participate in a minyan, and called to the bema to participatein aliyot. It is difficult to change a tradition and a mental attitude rooted in thousandsand thousandsof years of history. In observantJewishcircles, women's rights continue untouchedby such reformmovements. The discussion of Anglo-Americanwomen's propertyrights that follows is intended to reaffirmthe fact that women, regardlessof the culturethey belongedto, played a secondaryrole in society, a concept that is perpetuatedto this day. As will be seen, Jewish women were accordeda much higher status in society than women in Englandand America, and consequentlywere affordedmore propertyrights and a greater ability to function as first-classcitizens at an earlier time in history.
III. PROPERTY RIGHTS OF WOMEN UNDER ANGLO-AMERICAN COMMON LAW
A. Early Developments in English Common Law During the thirteenth century, the concept of "coverture"was created in the English common law.127 This invention was largely responsiblefor the absence of legal rights availableto American and English women in the eight hundred years that followed. Furthermore, the concept of coverture,having survivedinto the modernera, has helped perpetuatethe status of women as helpless and inferior
members of the society.128
Under the common law scheme, a woman essentiallylost all of

127. Chused,Married Women's Law: 1800-1850,71 GEO.L.J. 1359, 1386 (1983) Property [hereinafterChused]. Coverturerefers to the legal status of the woman once she becomes married. Several centuries later, Sir William Blackstonereemphasizedthe condition in his Commentaries: [T]he very being or legal existenceof the woman is suspendedduringthe marriage, or at least is incorporatedand consolidatedinto that of her husband:under whose wing, protectionand cover,she performseverything; is thereforecalled in and is our law-frencha femme covert, or foemina viroco-operta; said to be covert-baron, underthe protectionand influenceof her husband,her baron,or lord;and her condition during her marriageis called her coverture.
W. BLACKSTONE, 1 COMMENTARIES THE LAWS OF ENGLAND430 (Oxford 1765), cited in ON Ely, Book Review, 31 UCLA L. REV. 294, 295 (reviewing N. BASCH,IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN NINETEENTH-CENTURY NEW YORK (1982)
[hereinafter Ely]. 128. The inferiorstatusof marriedwomenhas its roots in both the religiousand metaphysical concepts perpetuatedby the Westernculture. The Old and New Testamentsoften portrayed women as having a subordinatestatus, while the doctrine of marital unity was likely derived from the concept of the unity of the flesh. BASCH,supra note 5, at 19.
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her legal rights upon marriageand became one with her husband.129 The wife was significantlylimited in her rights to own or managethe propertythat she brought to the marriage,which included gifts, inheritancesand her own labor.130 Even though the title to any land the wife owned remainedwith her, the husband gained complete power and control over her freeholdestate (a fee simple or life estate) for the length of the marriage,or if a child was born to the marriage,for as long as the husbandlived.131The common law husbandhad the right to use and encumberthe land, as well as to sell, mortgage,or lease the interest he possessedin his wife's property,and was able to keep any profits that resulted from the estate.132This interest was calledjure uxoris.133 Furthermore, because divorce was not possible in early common law, throughjure uxoris, the husbandgained the use of his wife's estate for the life of the marriage.134 A wife's rights, on the other hand, were much more limited. During the marriage,she was merely entitled to supportand maintenance from her husband.135 Although she could buy "necessaries"136
129. See, e.g., Thalerv. Thaler,N.Y. Journal14 (1977) (at commonlaw, "the husbandand
wife were one and the husband was one....");
130. Ely, supra note 127, at 295. 131. Chused,supra note 127, at 1386;Ely, supranote 127, at 296. A husbandwhose wife possessedpropertyand gave birth to a child duringtheir marriage,gained a "tenancyby the curtesy." This gave the husbanda life estate in his wife's property. When the child was born, the curtesywas combinedwith thejure uroxisestate, resultingin a delay of the returnof the
land to the wife's heirs until after the husband's demise. R. CHUSED, A MODERNAPPROACH TO PROPERTY 300 (1978). 132. CHUSED, supra note 131, at 300; Ely, supra note 127, at 296.
BASCH,supra note 5, at 15.
133. Id. 134. Id. The ecclesiasticalcourts made an exceptionto the "no divorce"rule by granting the wife a separation in from bed and board,particularly cases of adultery. BASCH, supranote 5, at 20. In summary,the husbandhad the following common law rights: * May sue on behalf of his wife without her consent * Owns wife's personaltyoutright * Can reduce wife's choses in action to his possession * Controlsmanagementof wife's realty * May charge wife's realty,but may not devise it * Responsiblefor wife's necessaries * Responsiblefor maintenanceand custody of children * Responsiblefor wife's debts incurredbeforemarriage * Cannotalienatewife's dower without her consent (cannot alienatehis own realty without her consent); * Entitledto tenancy in all of wife's realty for as long as he lives * At his death, wife's realty revertsto her family if there are no living children
BASCH, supra note 5, at 54-55.
136. In Sharpev. Buckstaff, Wis. 2d 114, at 117-18,299 N.W.2d 219, at 221 (1981), the 99 court discussedthe common law of "necessaries": The husbandis underlegal obligationsto supporthis wife, and nothingbut wrongful
135. Ely, supra note 127, at 296.
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and enter into certain contracts as long as she represented her husband, she was unable to contract separately from her husband, and had an extremely limited testamentary capacity.137 The result at common law was to "reduce the wife to complete economic dependence
and legal invisibility."138
By the fifteenth century, the wife had also gained an "interest" (commonly referred to as "dower") in her husband's land upon marriage; however, this interest did not rise to the level of an "estate."139 The interest became effective only upon the death of the husband, which rendered the wife's ability to control her husband's property during his lifetime useless.140 Dower entitled the wife to a one-third life interest in the property for which the husband had a fee simple or a fee tail interest at any time during coverture.141 Dower rights originally extended only to real property, but the 1670 English Statute of Distribution allowed the wife to take an interest in personal property as well, although nothing could prevent the husband from willing or giving such property away to other persons.142 Yet another disadvantage of the dower scheme was that the widow's share was calculated after all of the husband's debts had been paid from the estate.143 This presented a problem only for those widows whose husbands' estates were small, but small estates were the most common.144
conducton her partcan free him from such obligation. If he fails to provideher with suitable and proper necessaries,any third person who does provide her therewith, may maintainan action againsthim for the same. And, in general,we may say, that necessaries such articlesof food, or apparel,or medicine,or such medicalattendare ance and nursing,or such providedmeansof locomotion,or providedhabitationand furniture,or such provisionfor her protectionin society, and the like, as the husband, consideringhis ability and standing,ought to furnishto his wife for her susteof nance, and the preservation her health and comfort. 137. Chused,supranote 127, at 1386;Ely, supranote 127, at 296; BASCH,supranote 5, at 20. 138. BASCH,supra note 5, at 55.
139. CHUSED,supra note 131, at 300. 140. Id. at 300-01. 141. Id. at 301. Compare with the definition of "curtesy":
The estate to which by commonlaw a man is entitled,on the death of his wife, in the lands or tenements of which she was seised in possession in fee-simpleor in tail during her coverture,provided that they have had lawful issue born alive which might have beencapableof inheritingthe estate. It is a freeholdestatefor the termof his naturallife."
459 (5th ed. 1969). BLACK'SLAW DICTIONARY 142. MEISELMAN, supra note 5, at 85.
143. Id. at 86. 144. Id. In summary,the wife had the following rights and duties at common law: * Entitled to support
* * Cannot contract except for necessaries and as her husband's agent Cannot sue or be sued in her own name
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B. The Equity Court Exceptions to Women's PropertyRights The Englishcourts of equity145 attemptedto alleviatesome of the common law disabilities of women by creating equitable devices which allowed them some economic independencefrom their husbands.146 Recognitionof the wife's separateestate began at the end of the sixteenthcentury. The courts allowed a wife whose husbandwas at sea, or who had abandonedher, to convey her propertyto a trustee in order to protect it.147By the seventeenthcentury,the marriedwoman could create a trust that entitled her to treat the propertythat she possessed as a separateestate.148 By 1769, English courts of equity began to recognize antenuptialcontracts between the husband and wife in which the wife was able to hold her estate separatefrom the husband'scontrol.149Later,the courts accepteda wife's equity to a settlement;and if a husbandwished to reach his wife's assets while subject to the court's jurisdiction, he had to provide for her support.150In some cases, even postnuptialagreementsreservinga separate estate for the wife were recognized.151 Despite the increasingprotectionsaffordedto marriedwomen by the courts of equity, the legal rights of most women remainedunaffected. It was only the exceptionalwoman, with enough assets, foresight, and ability to skillfully maneuverher estate, that was able to gain a degree of economic autonomy after she married.'52Furthermore, the equitablerelief availablewas very limited.153The terms of the documentscreatinga separateestate for the wife had to be created with great care, because in most cases, ambiguitieswere resolved in
* Cannotmake a will except with her husband'sconsent * Cannotalienateher realty except with her husband'sconsent * Entitled to tenancy in one-third of husband'srealty as long as she does not remarry * Entitled to her paraphernalia * May lose custody of childrenby husband'swill BASCH, supra note 5, at 54-55. 145. The court of equitywas a conceptborn in thirteenthcenturyEnglandwhose basis was fairnessas opposed to legal strictness. Equity offeredspecial remedieswhich were not available in the court of law, and filled in the gaps createdby the stringencyof the common law. BASCH, supra note 5, at 20-21. 146. Ely, supra note 127, at 296. 148. Id. at 73. See also note 160 for furtherdiscussionon trusts. 149. BASCH,supra note 5, at 73. One of the results of coverturewas that a husbandand wife could not contractwith one anotherunder normalcircumstances.
150. BASCH,supra note 5, at 21. 152. BASCH,supra note 5, at 21. 147. BASCH,supra note 5, at 72-73.
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favor of the husband'srights at common law.154And a majorityof marriedwomen did not possess the legal sophisticationand expertise requiredto successfullytake advantageof the equitableremedies.155 C. The Influenceof English Common Law on American Common Law Although the Americanlegal system was influencedby the English the common law with regardto women's propertyrights,156 legal status of women actuallyvariedfrom colony to colony.157 Some colonial wives were known to hold tavern operators' licenses, manage large propertiedestates, take advantageof marriagesettlements,and have the protection of dower.158The Dutch women of New York were also an exception;they were able to act as agentsfor their husbandsin courts of law, makejoint wills with their husbandsthroughthe eighteenth century, and make antenuptialagreementswithout the use of trusts.159 The concept of dower that was transferredfrom English to American common law experienced some changes during colonial times. Dower was treatedsomewhatmore favorablyin some colonies than in others.160Some of the early dower statutes that were passed
154. Id. 155. Id. 157. BASCH, supra note 5, at 22. Interestingly,Puritan Connecticutand Quaker Pennof sylvania, both representative religious dissention from the English view, did not provide such common law protectionsas conveyancingand dower to wives.
158. Id. 156. See, e.g., BASCH,supra note 5, at 22-23; CHUSED,supra note 127, at 1389.
159. Id. at 72, 78. The trust originallywas a device most commonly used by parentsfor their daughter,entitlingher to a life interestwith no powers. Basch describesthe development as follows: A conveys propertyto B, who administersit on behalf of C. A is the settlor or or trustor,B the guardianor trustee,and C the beneficiary cestui que trust, the one who trusts. B's ownershipis consideredlegal while C's is consideredequitable.... [A] trust allowed a fatherto endow his daughterwith propertywhile keepingit out of the hands of his son-in-lawby conveyingnominal ownershipto a trustedfriend, who administeredit on behalf of the daughter. A woman with assets and with the permissionof her intendedhusbandcould create a similartrust for herselfin anticipowers that ordinarilywent to the trustee, thereby making the trust function as a kind of legal fiction. Later, courts in some jurisdictionscompletelyeliminatedthe use of the trust by married women, and allowed the creationof a separateestate without the need of conveyingproperty to a third-partytrustee. See, e.g., Bradish v. Gibbs, 8 Johns. Ch. 523 (1818) (holding that creationof a trust, even one that functionedas a legal fiction, was not necessary). 160. Chused,supranote 127, at 1393. For example,only some colonies awardeddower in equitableestates. Some states awardeddower from land held during coverture,while others awardedit only in land held at death.
pation of marriage .... [N]ext ... it became possible to reserve to the woman the
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contained a provision allowing the widow to reject the dower or the share set out in her husband'swill in favor of a statutorily defined share of the estate.161 Usually, if the widow chose to take her statutory share she waived her dower rights.162 During the eighteenthand nineteenthcenturies, statutes were passed allowing the widow to receive her dower in cash upon her husband'sdeath.163This effecteda releaseupon the fee simple of the estate, and facilitatedthe transferof but land, free from encumbrances; it also had the unfortunateeffectof the protection of marriedwomen's propertyrights.164One reducing differencefrom the English common law that soon surfaced in the colonies was the frequent land transfersoccurring during the eighteenth and nineteenthcenturies.'65Evidence shows that colonial women, sometimes married women, received land grants through warrantyand quit claim deeds.166For the most part though, the husband's common law dominance continued through the seventeenth century and a large part of the eighteenthcentury, with the court of equity exceptionsfunctioningas the only meansfor a woman to retain No control over her property.167 dramaticchangesoccurreduntil the nineteenthcentury, when the movementthat led to the enactmentof the MarriedWomen's Acts in most states was born. D. The MarriedWomen's PropertyActs of the 1800s In 1835, the territoryof Alaska adopted a little-knownpiece of legislationin 1835 that protecteda wife's propertyfrom the debts inIn curredby her husbandprior to marriage.168 1839, Mississippibecame the firststate to pass a statuteallowinga marriedwoman to own propertyshe had brought to the marriage,or which she had later reThe statute also protectedmarried ceived as a gift or inheritance.169 women's slaves from their husband'screditors.170 Most of the other states soon followed suit by passing similar reformatorymeasures. For example, Michigan's 1844 statute exempted the wife's property
161. Id. at 1394-95. This electiveschemedid not alwaysallow the widow to take her share prior to the paymentof her husband'sdebts. 162. Id. at 1395. 163. Id. 164. Id. 165. Id. at 1392. 166. Id. at 1389. 167. Id. at 1390. 168. Id. at 1398-99. Alabama seems to be the only other state which adopted similar legislation.
169. BASCH,supra note 5, at 27.
170. Id.
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from her husband's creditors.171In 1845, a statute in the State of Massachusettstook into account the practicesof the courts of equity and limited the wife's separateestate to the provisionsof the antenuptial agreement,but also requireda specific written agreementfor the creation of a separateestate.172The best known of the early statutes was the 1848 New York Act.173The act protecteda marriedwoman's propertyfrom her husband'screditors,stating that it "shall continue her sole and separateproperty, as if she were a single female," and also protected property that a woman would receive in the future "fromany person other than her husband"by allowing her to hold it "to her sole and separateuse, as if she were a single female."174 Subsequently, the 1860 New York EarningsAct, the most advanced of the statutes, gave wives the right to sue and be sued, and considered their wages as part of their separateestate.175Although a numberof legislaturespassed statutes that only protectedwomen's real property most other states included both real from their husbands' debts,176 and personalpropertyunder the protectionof the statute.177 Twenty nine states had passed some type of marriedwomen'sstatuteby 1865, but the process was not completed until the end of the nineteenth
171. Id. 172. Id. at 27-28. 173. Act of Apr. 7, 1848,ch. 200, 1848N.Y. Laws 307, cited in CHUSED, supranote 127,at 1410 n.266. 174. Id. at 1410-11n.266. The full act read as follows: AN ACT for the more effectualprotectionof the propertyof marriedwomen. Passed April 7, 1848[qc] in The People of the State of New York, represented Senateand Assemblydo enact as follows: 1. The real and personal propertyof any female who may hereaftermarry, and which she shall own at the time of marriage,and the rents issues and profitsthereof shall not be subjectto the disposal of her husband,nor be liable for his debts, and shall continue her sole and single property,as if she were a single female. 2. The real and personalproperty,and the rents issues and profitsthereof of any female now marriedshall not be subjectto the disposalof her husband;but shall be her sole and separatepropertyas if she were a single femaleexcept so far as the same may be liable for the debts of her husbandheretoforecontracted. 3. It shall be lawful for any marriedfemale to receive,by gift, grant devise or bequest,from any personother than her husbandand hold to her sole and separateuse, as if she were a single female, real and personalproperty,and the rents, issues and profitsthereof,and the same shall not be subjectto the disposalof her husband,nor be liable for his debts. of 5. All contractmadebetweenpersonsin contemplation marriageshall remainin full force after such marriagetakes place.
175. BASCH,supra note 5, at 28.
176. Chused,supra note 127, at 1399. The states includedMaryland,Connecticut,Iowa, Kentucky, Indiana,Vermont,North Carolina,and Tennessee. 177. Id. at 1399.
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century. 178 The appearance of this wave of legislation has sometimes been explained in light of the widespread economic problems that had existed in the first part of the eighteenth century, problems which demanded changes in debtor's laws, and caused the exemptions of property from attachment by creditors to be a source of growing concern.179 Furthermore, in the early part of the nineteenth century, legislation had been passed which attempted to deal with some of the unfair consequences of the common law of coverture.180 The status of abandoned women and widows presented legal problems which the common law could not deal with adequately.l18 The focus of legislators had therefore shifted onto family law, the condition of coverture, and the role women played in the society at large.182 Despite such seemingly sweeping changes in the laws, commentators have observed that in practice, the married women's acts did not have a major impact on the property rights of women.183 In New York, for example, the courts construed the statutes very narrowly and conservatively, thus demonstrating the laws' weaknesses in contrast with the common law.184 It has therefore been argued that the married women's acts were not truly a revolution, because they failed to break down the common law barriers that women had faced for thousands of years.185 Ambiguities in documents were frequently resolved in favor of the husband's common law rights, thus perpetuat178. Id. 179. Id. at 1400. 180. Id. 181. Id. 182. Id. 183. See, e.g., BASCH,supra note 5, at 225 ("[m]any of the changes wrought by the New York Legislature were illusory"). 184. BASCH,supra note 5, at 200, 202-03. Basch argues that the judiciary accomplished the limitation of the statutes in three ways: First, by declaring sections unconstitutional and void, they narrowed the applicability of the statutes. Second, by relying on equity precedents that required the delineation of the married woman's estate to be clear and unambiguous, they limited the number of estates affected. Third, and most important, by professing their faith in the propriety and the desirability of the old common law fiction of marital unity, and by applying that fiction to the countless situations the statutes did not spell out, they eviscerated the spirit and intent of the legislation. Id. at 202-03. See, e.g., White v. White, 5 Barb. 474, 477-79 (1849) (statute was not applicable to wife who had been married in 1819 and had inherited realty in 1828, and could not prevent husband from interfering with her rents and profits, because husband's rights were vested).
BASCH,
supra note 5, at 204. 185. Id.
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ing the legitimacy of the common law.186The courts continued to regardthe wife as though she was under her husband'spower, treating her statutory right to a separateestate as merely a bufferagainst special circumstances,such as the husband's debts acquired before Furthermore,courts continued to be plagued by the ismarriage.187 sue of whether a marriedwoman with a separateestate could enter into a binding contract.188 The only women who seemed to benefit from the new statutes were those who brought their own property to the marriageor received property during the marriage.189 In such situations, the statutes enabledthem to keep the propertyin a separateestate, free from their husbands'common law encumbrances. It is beyond the scope of this article to pursue the details of the developmentof Anglo-Americanwomen's propertyrights up to the present. Sufficeit to say that changes have been gradual and have come late in the day in the view of many women activists. Complete and absolute equality between men and women has not yet been achieved. The flavorof the common law doctrineof coverturecontinues to permeate the thinking of some judges and legislators to this day. Courts today continue to view the woman primarilyas a wife and mother, and her career as an addition to her primary role of Critics point out that the modernjudiciarycontinues homemaker.190 to define women according to the functions they serve in relation to men, and that it is the coverture concept that has deprivedwomen, both single and married,of legal personhood.191 The questionthat remainsto be resolvedis what similaritiesand differencesexist between Jewish law and Anglo-Americancommon law, and whetherone system has been more successfulthan the other in protectingwomen's rights.
186. See, e.g., Switzer v. Valentine, 10 How. Pr. 109 (N.Y. Super. Ct. 1854) (assets whose ownership was uncertain were treated as property of the husband). Ely, supra note 127, at 299 n.25. 187. BASCH,supra note 5, at 213. 188. Id. at 213-14. See, e.g., Van Allen v. Humphrey, 15 Barb. 555, 559 (1853) ([i]n order to carry out the spirit of this statute, it will become necessary for the courts to adopt, to its full extent, the equity rule that a wife having a separate estate, shall be taken to have bound it to the payment of debts contracted by her"). Not all courts were of the same opinion. 189. Id. at 222. 190. Id. at 232. 191. Id.
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IV.
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WOMEN'S PROPERTY RIGHTS IN JEWISH LAW VERSUS ANGLO-AMERICAN COMMON LAW
A comparisonof the propertyrights affordedJewish women in Halachah (Jewish law) and Anglo-Americanwomen at common law reveals that the Jewish woman had a greaterability to own and dispose of propertyfree from her husband'sinfluence,and was able to do so at an earliertime in history than her Anglo-Americancounterpart. Several comparisons are illustrative of the Jewish wife's superior propertyrights. of First, the melog assets192 the Jewish wife correspondedto the common law wife's separateestate, which was later recognizedby the Anglo-Americancourts of equity and the marriedwomen'sacts of the law wife acquiredeither before or after marriage,belonged solely to her and was not subjectto her husband'sdebts. She could keep all of the profitsgeneratedfrom that property,and was liable for any losses in both legal systems. However,the Jewish wife was limited to conveyinga bare title in melog assets, with the actual possession,enjoyment,and use deferred until she became widowed or divorce;she could only convey full title along with her husband. The marriedwomen's propertyacts of the mid-1800s representedan improvementover Halachah in that they allowed the common law wife to hold her separateestate as though she were a "femmesole." This "single female" status permittedthe Anglo-Americanwife to do as she wished with her separate estate. Unlike the Jewish wife, she did not need her husband'spermissionto convey full title. Nevertheless, such devices as antenuptialagreements and trusts, which Jewish women had been using throughout the Talmudic period, only began to be recognized by the courts of equity in the seventeenthcentury. These tools enabledJewish wives to maintainseparateestates long before the American statutes of the 1800s allowed Anglo-American wives to do so.194 Second, the Jewish wife's "iron flock" assets195 correspondedto
192. See supra notes 61-68 and accompanyingtext for discussionof melog assets of the Jewish wife. 193. See supra notes 146-52 and 169-79 and accompanyingtext for a discussion of the recognitionof the common law wife's separateestate by the courts of equity, and a similar recognitionby the marriedwomen'spropertyacts of the 1800s. 194. See supranote 86 and accompanying for discussionof trustscreatedby womenin text Jewish law, and the fact that Talmudistsfrownedupon them. text for discussionof "iron flock"assets of 195. See supra notes 69-76 and accompanying the Jewish wife.
1800s.193 This property, which both the Jewish wife and the common
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the propertythat the Anglo-Americancommon law wife brought to the marriage.196 Although in both legal systems the wife maintained legal title to such property,the husband acquiredvarying degrees of control over these assets. Jewish law placed some advantageousrestraints on the husband that the common law did not. Most significantly, the Jewish husbandcould not sell his wife's "ironflock"assets or subject them to his debts; he could only have the use and enjoyment of the lands and chattels. By requiringthe husbandto become an insureragainstthe loss, damage,or impairmentof the "ironflock" assets,Halachah managedto furtherprotect the interestsof the wife's assets. In contrast, Anglo-Americancommon law grantedthe husband complete power and control over his wife's property. Due to the fact that he acquireda life estate in such property,the common law husband was free to sell, mortgage, or lease the interest he possessed in his wife's assets, as well as subjectthem to the demandsof his creditors. This scheme did not affordmuch protectionto the Anglo-American wife, but was nevertheless consistent with the common law concept of coverturewherebythe wife's propertyand identity merged with that of her husband'sat the time of marriage.197 A furtheradvantageof Halachah was that it allowed the wife to execute a binding transfer of "iron flock" assets, provided that she had freely taken the initiative and that her husbandlater ratifiedthe transaction. The Anglo-Americancommon law wife could not execute such a transfer;at most, she could incur debts based on such assets only while acting as an agent on behalf of her husband. Third, Jewish law was more advanced in that it recognized the ability of the wife to incur debts, be sued, and sufferjudgmentagainst her long before the common law did. Generally,when enteringcontracts, both the Anglo-Americanwife and the Jewish wife were limited to acting as their husband's agent, and the husband was held liable for his wife's business transactions.198 Furthermore,the husband in both systems had the obligationto support and maintainhis wife, and to provide her with the necessariesand comforts of life to which she had become accustomed.199 Despite these limitations,the
196. See supra notes 130-35 and accompanying text for discussion of the Anglo-American wife's rights in property she brought to the marriage. 197. See supra notes 128-35 and accompanying text for discussion of the concept of coverture and the minimal rights afforded to common law wives. 198. See supra notes 81, 137, and 130 and accompanying text. 199. See supra notes 48, 81, and 137 and accompanying text, which demonstrate that both
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Jewish wife achieveda degree of economic autonomyduringthe Talmudic periodthat her Anglo-Americancounterpartdid not enjoy until the mid-nineteenthcentury. This was due in part to the ability of the Jewish wife to conduct certain limited conveyancesthrough her melog assets and those assets specifically set aside in a separate estate.200 Lastly, the inheritancerules in Jewish law and Anglo-American common law each offered women their own set of advantages and disadvantages. The Jewish wife's inheritancerights in her husband's propertydifferedin significantways from the Anglo-Americancommon law. The Jewishwidow was considereda creditorand was therefrom her husband's fore allowed to collect her "statutory"portion201 estate beforeother creditorsand the legal heirs. The Anglo-American common law widow, on the other hand, was only entitled to dower, a one-thirdlife interestin the propertyin which her husbandhad held a fee simple interestduringcoverture. The majordrawbackof the common law dower was that the widow was only able to claim her share after all of the husband'sdebts had been paid off. This was clearly for disadvantageous a widow whose husband had a small estate and debts. The advantageof the Halachic inheritancescheme was many that it assured the widow of some financialsupport by allowing the collection of her "statutory"share to take precedenceover all other claimants. The disadvantagelay in the fact that it preventedthe Jewish widow from claiming a share of the estate along with the other for heirs, which, in some cases, may have been more advantageous her In if a large estate was involved.202 both systems, however, local custom attemptedto alleviate the apparentharshnessof the inheritance
Jewish law and Anglo-American common law placed the same obligations on the husband to provide his wife with the basic necessities of life. 200. See supra notes 66-68 and 82-86 and accompanying text for further discussion. 201. See supra note 69 and accompanying text. This "statutory portion" included the ketubah and the "iron flock" assets which the wife brought to the marriage as dowry. 202. Meiselman argues that Jewish women were actually better off in the inheritance scheme because their claim preceded all other creditors and heirs. "The choice," he claims "represents a realistic approach to the needs of women. The [Jewish] law recognizes that it is easier and preferable foi men to go out and earn a living than for women." Supra note 5, at 90-91. Many women today would take offense at Meiselman's claim, particularly because in our society it has become increasingly easy for women to obtain jobs to support themselves. A second problem with his argument is the assumption that Jewish widows benefitted from their position as creditors vis-a-vis their husbands' estates. Although in some situations this could have proven advantageous, many Jewish women would have preferred to stand in line with the other heirs, particularly when a larger estate was involved. Inequity also stemmed from the fact that women were limited to the portion of the estate to which they were statutorily entitled, and depended on their husbands' and fathers' good will to assign them more than their
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scheme, and husbandsoften designatedspecificshares of their estates to their wives in addition to the "statutory"amount. It is difficult to assess which legal system was ultimately more advantageousfor women. The two systems cannot be consideredin a vacuum, because many other historical and social factors shaped the developmentof Jewish law and Anglo-Americancommon law. Nevertheless, even this cursory glance at the two legal systems supports the premisethat Halachah (Jewishlaw) has been much more progressive in its tolerancefor the propertyrights of women, and recognized the existence of women as valid participantsin the legal scheme at a much earlier time in history than Anglo-American common law. This much is readily apparent;but the more difficultquestion is why this is so. An examinationof the concept of marriagein each legal system provides a plausibleexplanation. a Accordingto Sir WilliamBlackstone,203 man and a woman theas equals and were consideredpotenoretically approachedmarriage tial partiesto a civil contract.204 such, they had to be willing and As able to contract, and had to contract in fact in order for their marriage to be deemed valid.205This image of marriageas a contract between two able and equal individualsgave rise to some serious imand plications,206 at this point Jewish law and Anglo-Americancommon law diverged. At the core of the Anglo-Americancommon law of marriagelay a single prevailingconcept: the mergingof the wife's legal identity into that of her husband's,the concept of coverture.207 By giving up her identity and her economic and legal freedom, the common law wife was relegatedto the tasks of producingand raising offspring,and tending to household matters. Sir Blackstone'stheory that such a bilateral contract could be negotiated freely, and both sides could set the terms they desired,was simply not true in reality, and was overriddenby the "husbandand wife as one, and the husband as the one" image.208The manner in which Anglo-American common law viewed women while in a state of coverture,as nonlegal
statutory share. See supra notes 110-13 and 121-24 and accompanying text for further discussion of Jewish women's inheritance rights.
203. W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND IN FOUR BOOKS (T.
Cooley ed. 1899) cited in BASCH, supra note 5, at 48. 204. Id. at 48. 205. Id. 206. Id. 207. Id. 208. See supra notes 127-29 and accompanying text for a discussion of the common law doctrine of coverture and its effect on Anglo-American women.
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entities, infected how society in generalviewed Anglo-Americanwomen: as second-classcitizens. In contrast, the essence of marriagewas regardedmuch differently in Jewishlaw. Despite the earlybiblicalimagesof the husband's acquisition of a wife as analogous to acquiringa piece of property, Halachah later departedfrom such concepts and began to view women as citizens in their own right. Sir Blackstone'scontract theory, while equally applicableto the Jewish law of marriage,was actually fulfilledin reality. This "marriage contract,"signifiedby the ketubah, representedthe individualterms and desiresof the husbandand wife, and allowed them to enter into marriageas more or less equal conAs tractingparties.209 a result,Jewishwomen attaineda higher status in the Jewish communityat a much earliertime than women in other societies. They were viewed as an essentialpart of a man's life, and a Jewish man was regardedas incomplete without a wife. Critics often point to the exclusion of Jewish women from many religiouspracticesas a sign that women have had a lower social status in the Jewish community. A possible explanationis that Jewish women were excused from such time-consumingreligiousobligationsin order that they could devote their full attention to household and family matters. The sphere of activities of Jewish men was simply differentthan that of Jewish women. Jewish men devoted their lives to the study of the Torah,while Jewish women occupied themselves with family and home; one activity was no less important than the other. Jewish men and women were thus equals in one sense of the word, while operatingin two differentspheres of equally important religiousobligations. It was this favorableview of Jewish women that helped to enhancetheir legal status in Halachah, and helped them to achieve greater legal rights at an earlier time in history than their contemporarycounterpartsin other cultures.
V. CONCLUSION
This article has examined the propertyrights that women have historically been affordedin Halachah (Jewish law) and in AngloAmericancommon law, and has drawncomparisonsbetweenthe two legal systems. Jewish women were highly respectedin their communities for their essential roles as homemakersand mothers, and were therefore accorded more legal property rights than their contemporaries in Anglo-American society. Although Halachah did not ac209. See supra note 50 for an example of a typical text of the ketubah.
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cord them the full panoply of legal propertyrights enjoyed by their male counterparts,Jewish women were able to contract, sue, and be sued, incur debts, and conduct businesstransactionsat an earliertime in history than women in other cultures. Unlike the Anglo-American common law wife, who experiencedan almost complete loss of legal property and social rights upon marriage,the Jewish wife enjoyed a degree of economic independencefrom her husband due to her ability to own and control propertyseparatefrom her husband. This reinforcedthe Jewish woman's ability to assert herself, both legally and symbolically,as an essential and indispensablemember of the Jewish community. It is true that even today Jewish women do not enjoy complete religious equality in Halachah. Furthermore,the remains of coverture have not completely disappearedfrom Anglo-Americansociety and continue to affect the status of women in the Anglo-American culture. Women in both legal systems have been forced to compete and unchangeablesocietal concepagainst seeminglyinsurmountable tions of their roles as second-class citizens and slave-like property, based upon thousandsand thousandsof years of tradition. Although such deeply-rooted conceptions have been resistant to change, advancements are possible, and the Women's Liberationmovement of the past severaldecadeshas been proof that changescan occur. Judaism has taken the lead in the past by affordingJewishwomen superior property rights, and recognizing women as legal entities and viable citizens of the Jewish community. Judaismmay be able to do so today by granting the religious equality so eagerly sought by Jewish women, and thereforeonce againset an examplefor all other cultures.
352

BIBLIOGRAPHY
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1. Amram, David. TheJewishLaw of DivorceAccordingto the Talmud. New York: Harmon Press, 1968. 2. Basch, Norma. In the Eyes of the Law: Women,Marriage,and in Property NineteenthCenturyNew York. Ithaca:CornellUniversity Press, 1982. 3. Basinger,Suzanne. "Preservingthe Covenant-A Challengefor Jewish Women"in The Life of the Covenant: The Challengeof ConJudaism, edited by JosephEdelheit. Chicago:SpertusColtemporary of Judaica Press, 1986. lege 4. Chused, Richard. "Married Women's Property Law: 18001850." 71 Geo. L.J. 1359 (1983). 5. Chused, Richard. A Modern Approachto Property. St. Paul: West PublishingCo., 1978. 6. Ely, James. Book Review. 31 UCLA L. Rev. 294 (1983) (reviewing N. Basch,In the Eyes of the Law: Women, Marriage,and Property in NineteenthCenturyNew York(1982)). 7. Falk, Ze'ev. Jewish Matrimonial Law in the Middle Ages. London: Oxford University Press, 1966. 8. Gittelsohn, Rabbi R. Love, Sex and Marriage: A Jewish View. New York: Union of American Hebrew Congregations,1976. 9. Horowitz, George. TheSpiritof JewishLaw. New York: Central Book Company, 1963. 10. Brayer,Dr. M. "The Role of Jewish Law Pertainingto the Jewish family, Jewish Marriageand Divorce" in Jews and Divorce,edited by Jacob Freid. New York: Ktav PublishingHouse, Inc., 1968. 11. Klagsburun,Francine. Voices Wisdom. New York:Pantheon of Books, 1980. 12. Kuzmack, Linda. "RabbinicInterpretations BiblicalWomen of in Aggadic Literature"(unpublishedM.A. thesis: BaltimoreHebrew College, April 1, 1975).
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13. Meiselman,Moses. Jewish Womenin JewishLaw. New York: Ktav PublishingHouse, Inc. & Yeshiva University Press, 1978. 14. Priesand, Rabbi Sally. Judaism and the New Woman. New York: BehrmanHouse, Inc., 1975. 15. Roth, Cecil. "The Success of the Medieval Jewish Ideal" in GreatAges and Ideas of the Jewish People, edited by Leo Schwarz. New York: The Modern Library, 1956. 16. Hauptman,Judith. "Womenin the Talmud"in TheJewish Woman: An Anthology, edited by Liz Koltun. Waltham, Mass.: Response, 1973. 17. The Code of Maimonides: Book IV-The Book of Women, translatedby Isaac Klein. New Haven: Yale University Press, 1972.

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A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American Law Author(s): Alina Semo Kofsky Source:

JOURNAL OF LAW& RELIGION

JOURNAL OF LAW & RELIGION

11. Id. Proverbs 31:10-31(Oxford)states:

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PEOPLE (L. Schwarzed. 1956) [hereinafter JEWISH 294 Roth].

39. Roth, supra note 37, at 294.

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61. Id. at 300. 62. Id. Maimonidesstated:

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WOMEN'S PROPERTY RIGHTS

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123. HOROWITZ, supra note 32, at 394.

125. PRIESAND, supra note 3, at 30.

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Despite these attemptsto achieveequalityfor women, the Jewish

Under the common law scheme, a woman essentiallylost all of

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BASCH,supra note 5, at 15.

135. Ely, supra note 127, at 296.

WOMEN'S PROPERTY RIGHTS

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151. Ely, supra note 127, at 296.

153. Ely, supra note 127, at 296.

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supra note 5, at 204. 185. Id.

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WOMEN'S PROPERTY RIGHTS IN JEWISH LAW VERSUS ANGLO-AMERICAN COMMON LAW

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JOURNAL OF LAW & RELIGION

PROPERTY WOMEN'S RIGHTS

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A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American Law

A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American Law