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hence are not to be defined as apostates.”® We should not conclude from this list that all halakhic authorities since the days of Ettlinger have accepted tinok shenishbah as the proper legal designation for contemporary non-observant Jews . Such, as we shall see, is definitely not the case. These citations do suffice, however, to establish that the “captive infant” metaphor was a functioning element of halakhic discourse during the period of the Emancipation and its aftermath. Analysts who observe the halakhic process from a self-consciously external perspective are entitled, to be sure, to dismiss the metaphor as a“legal fiction,” but as I have indicated, legal fictions are legal as well as fictional; they play an essential role in legal conversation, and it is difficult to see how jurists could get along in their absence. At any rate, when we consider the halakhah from an internal perspective, from the point of view of those who participate in the process and shape its conclusions, the tinok shenishbah enjoys a long pedigree and continues to serve as a category of practical legal analysis.

Third, I would argue that the tinok shenishbah metaphor as Ettlinger uses it here is halakhicly legitimate precisely(and perhaps ironically) because a number of poskim explicitly reject it. One of these is R. Hayim Elazar Shapira(d. 1937), the rebbe of the Munkacz dynasty, who mounts perhaps the most direct assault upon the theoretical basis of Ettlinger’s pesak. There is no such thing, he notes, asa“half-way” observance of Shabbat . A Jew who works on the Sabbath is still a mehalel Shabbat even if he recites the tefilah and the kiddush before performing the forbidden labors. It may be, as Ettlinger claims, that this Jew acknowledges God as the creator of the universe, but by working on Shabbat he denies God ’s own cessation from creative activity on that day. Nor can we seriously imagine that the children of these Shabbat violators are to be exonerated from responsibility for their sins as“captive infants.” That metaphor may have fit the Karaites , who according to Shapira lived“far away from Jewish towns” and therefore had no way of learning proper Jewish