MARK WASHOVSKY

to the fact that these authorities have chosen to read the law as they have. The motivation for their choice might lie, as it clearly does for Hoffmann, in an estimate of policy, of what is best for the Jewish community in this particular situation. Kluger and Grodzinsky make no such claim; they do, nonetheless, make a choice. In this, they confirm the positivist model: judges facing"hard cases" answer them through the exercise of discretionary, virtually legislative power, even when their choices are expressed through the medium of conventional legal argumentation.

Il. Kook and Herzog: Principles and Interpretation

Those willing to permit conversion for the sake of marriage rely upon the premise that the conversion, even if prohibited by rabbinic enactment, is Toraitically valid(bedi‘avad) should it take place. This premise is challenged in decisions issued by two chief rabbis of Palestine/Israel , R. Avraham Yitzhaq Hakohen Kook and R. Yitzhaq Halevy Herzog.®” A good argument can be made for the invalidity of these conversions, even though the notion is a minority opinion.”® The argument is Dworkinian in nature: it answers a"hard case" according to that theory which in the judge's view is the most coherent account of the legal"data" on the subject, regardless of the consequentialist(=policy) implications of that answer.

Kook addresses a responsum to R. Shaul Setton, one of the authors of a 1927 rabbinic decree banning conversion in Argentina.*® Kook thinks the ban is a good idea and supports it by showing that the"data" of Jewish law overwhelmingly oppose the acceptance of religiously insincere converts. Indeed, as we learn in Bekhorot 30b,"one who accepts the entire Torah with the exception of the tiniest detail is not allowed to convert". This position is held universally in the halakhic world, says Kook, who is therefore puzzled that the great codes omit this statement entirely. This is reminiscent of Dworkin ’s"theory of mistakes": when

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