MARK WASHOVSKY

The halakhic"codes", it is true, do not possess intrinsic authority. Unlike the codes of other legal systems, which are promulgated by recognized legislative bodies and are regarded as binding statements of the law, those in Jewish law more closely resemble legal textbooks that in the opinion of their authors render accurate descriptions of the law as it is derived from its real source, in our case the Babylonian Talmud. ® Still, a clear and unequivocal description of the halakhah by the codifiers is a persuasive argument that the law is in fact according to their interpretation of it. It is significant, then, that the position sketched above is uncontested by the major codifiers. Nowhere do we find a declaration to the contrary, namely that the rabbinic court(Bet Din) may in principle accept for conversion those who come to us for the "wrong" reasons. To be sure, a certain amount of flexibility is built into the law. The Tosafists, for example, note that the Talmud records instances wherein Hillel and Rabbi Hiyya accepted converts who were driven by a desire for prestige or marriage. To resolve the apparent contradiction between the law and these two case rulings, the Tosafists suggest that the rabbis in question were certain that these proselytes would eventually adopt Judaism out of sincere religious motivations.’ Later posqim(decisors) adopted this explanation, declaring that"we learn from here that the entire matter is left to the judgement of the court"(hakol lefi re’ut einai Bet Din). Since this gloss has made its way into the annotated editions of the"codes", we must adjust our statement of the mainstream halakhic position as follows: those wishing to become Jews out of ulterior motives are ineligible for conversion, but the decision in each individual case is left to the discretion of the rabbinical authorities on the scene.

The word"discretion" raises an important theoretical issue concerning the nature of judicial decision-making. A large body of literature in the field of jurisprudence is devoted to the question of judicial discretion: to what extent is the judge empowered to choose an answer-in effect, to make new law-in a case which comes

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