Narratives of Enlightenment 125
have made a conscious decision to adopt this nonobservant lifestyle as their own. To be sure, a conscious decision may result from a complex web of factors, and we may not wish to interpret it as a principled choice to reject Judaism in its entirety. Indeed, the fact that many of these Jews will continue to observe some of the mitzvot, such as synagogue attendance and the recitation of kiddush, can be taken as evidence that they are apostates“out of weakness” rather than apostates“out of spite.” Still, for whatever reason they have chosen to abandon the fullness of Jewish observance. We must take that choice seriously, for these social forces of modernity that have led them to this choice do not entirely overwhelm the faculty of reason. The non-observant Jews of today are not captive infants, waifs amid forces, absolved from responsibility for their decisions. They know what they are doing, and thus they must accept the logical halakhic consequences that flow from their actions.
To summarize: the tinok shenishbah may be a“legal fiction,” but it is the sort of fiction that is eminently legal: a metaphor, an act of figurative speech that expresses a substantive legal reality. First appearing in the Talmud as a purely abstract conception, it has been utilized ever since the time of Maimonides to describe large communities of“wayward” Jews who, in the opinion of some poskim, are not to be declared apostates despite their non-observant lifestyle. If some authorities refuse to apply this concept to the nonobservant Jews of their day, this does not indicate their rejection of itas a legitimate halakhic category but rather their conviction that the category does not fit the contemporary reality. The argument, to invoke Professor Katz’s description of his own research objective, concerns“the limits of halakhic flexibility”: are the boundaries of the “captive infant” concept sufficiently flexible so as to cover those Jews who, though raised in a non-observant environment, are nonetheless well aware of Orthodox Judaism , its faith and its lifestyle? Some poskim say“yes,” and others say“no.” Either answer Tests ultimately upon a narrative construction, the story that a