MARK WASHOVSKY

times are in dispute over questions which at first glance do have such an answer, explicitly stated in the codes and ratified by generations of consensus.” Ours is such a hard case. Despite the unambiguous rulings of the Mishneh Torah and Shulhan Arukh, some rabbinic authorities permit the acceptance of converts who come to us out of clearly ulterior motives. Conversely, despite the authoritative gloss which leaves the final decision in the hands of the individual Bet Din, some authorities deny that rabbis are entitled ever to employ this grant of discretion. The question at hand is thus excellent material for a study of the nature of disagreement in the halakhah.

This essay is intended as a first step toward that study. I do not pretend to offer an exhaustive analysis of the legal issues involved, especially since others have worked this field.*” I simply wish to examine the rabbinic disagreement over the issue from the perspective of theoretical jurisprudence. Does the dispute stem from the fact that, as the positivists would have it, there is no one "correct" answer and that the rabbis, like it or not, are constrained to create new law to fill the gap? Do we say, with Dworkin, that a correct answer exists and that the rabbis are arguing over interpretation rather than seeking to legislate according to extra­legal considerations? Or do we follow the realists and conclude that what appears to be halakhic argumentation simply masks the policy choices which are the ultimate cause of the rulings the poskim hand down? The Conclusion, in addition to a summary of the findings, will offer some comments as to the application of this kind of study in our efforts at delineating liberal halakhah.

I. Maimonides: Extreme Pragmatism and Its Discontents A questioner poses the following case to the Rambam . A young man has scandalized his family by engaging in sexual

relations with a Gentile maidservant he has purchased. Should the rabbinic court forcibly separate them, or does the principle of the

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