MARK WASHOVSKY

all. It is a choice which Kluger makes between two legitimate alternatives.

The difficulties with that choice can be seen in the ruling of R. David Zvi Hoffmann(Germany , d. 1921), who cites Kluger’s hidush(though not the responsum itself) as the basis for his permissive decisions in two cases where Jews are either married to Gentiles according to civil law or contemplating such marriage.’ Since the conversions sought in these instances are not technically for the sake of marriage, we may allow them. Yet at the same time, Hoffmann cannot regard the prospective conversions as evidence of religious sincerity;"how can the Bet Din accept a proselyte who does not convert leshem shamayim?" Unlike Kluger, therefore, Hoffmann turns outside the established law, supporting his decision with arguments of principle and policy. For his principle, he relies upon II Samuel 24:17("and these sheep, how have they sinned?"), stressing that the future children of these couples ought not to suffer for the misdeeds of their parents. As his policy consideration, he notes that should we refuse the conversion, the non-Jewish partner will be converted by a liberal rabbi. This will produce unfortunate consequences, since the public will then consider that partner a Jew even though liberal conversions are invalid under halakhah. Thus,"it is better to seize the lesser of two evils" and permit the conversion. *?

Hoffmann’s approach nicely illustrates the difference between"legal" and"extralegal" arguments in a responsum. Legal arguments are based upon rules whose applicability to the case at hand is unquestioned and which are subject to demonstration by means of textual analysis, even if that analysis does not persuade other scholars. Extralegal arguments are by their nature controversial; they cannot be"proven", merely advocated. Their applicability to the case at hand is likewise controversial.” For example, in a similar case R. Chaim Ozer Grodzinsky(Lithuania , d. 1940)>* rejects out of hand his correspondent’s concern that

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