98 Mark Washofsky

halakhic, and like most teshuvot it features the sort of source citation and argumentation that are characteristic of rabbinical pesak(legal ruling). Yet not all observers perceive it in this way. Jacob Katz , in particular, dismisses Ettlinger’s“captive infant” theory as“of course, a transparent legal fiction, born out of the necessity to justify the prevailing practice in which observant Jews did not break off contact with their non-observant brethren. Indeed, they continued doing business with them, maintained family relationships with them, and even married them when opportunity presented itself.”'* In other words, Ettlinger’s ruling is not to be taken as an example of serious halakhic thought but rather as a thin, sketchy, and rather unconvincing effort to offer some sort of legal rationalization for what Orthodox Jews , out of social and economic necessity, had to do, were already doing, and would in any event continue to do.

What follows in this essay is, in part, my response to this judgment.” It begins with the observation that Katz writes here precisely as a social historian and not as a halakhist or a legal theorist. This is important because the disciplinary boundaries within which scholars pursue their inquiries do much to shape the things they see as well as the things they say. As a historian, Professor Katz sees a rabbinical ruling that, through the application of a conceptual category that cannot be taken literally(for after all, the non-observant Jews of whom Ettlinger speaks were never kidnaped as infants by their Gentile neighbors), supports a conclusion congenial to many of the Orthodox Jews who sought guidance from him. What counts for Katz is the legal result, which because it reflects powerful social realities of the time must have been dictated from the outset, rather than the process by which the posek pretends to derive it. This does not mean that Katz regards the study of that process as a waste of time. Historians, he writes, ought to pay careful attention to the specifically legal reasoning of a rabbi’s decision in order“to discover between the lines of the posek’s analysis traces of those non-halakhic or extra-halakhic motives that ultimately guided his thought.”"* Yet