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is no dominant consensus view among halakhists) we must resort to the principle sofeiga de’oraita lehumra, doubt in matters of Toraitic law requires us to rule stringently. In this case, the stringent ruling would hold the marriages valid(i.e., a get would be necessary to dissolve them). In this way Herzog avoids the potentially devastating consequences which Kook’s opinion, if accepted, would exert upon Jewish communal stability, Jewish identity and the like. Yet it should be noted that he does not mention these consequences as the justification for his ruling. Like Kook, Herzog approaches his"hard cases" as a Dworkinian. His argumentation rests upon principle, not policy. His conclusion is supported by means of legal reasoning, by tools internal to Jewish law which come into play to resolve issues of doubt, rather than by the extralegal concern over what effect a different decision would have upon the community.”
For all their devotion to matters internal to law, Kook and Herzog nonetheless exercise wide discretion in rendering their decisions. The key to this discretion can be found in Herzog’s acknowledgement that, while conversion for the sake of marriage is certainly prohibited and very possibly invalid should it take place, some halakhic precedents allow them(he cites Rambam and Kluger) and some communities accept proselytes in these cases. Kook, who is obviously aware of these facts of precedent and practice, ignores them completely, a studied ignorance which enables him to issue his unequivocal condemnation. Herzog, on the other hand, takes judicial notice of these facts, which serve as the basis for an alternative interpretation of the halakhah. If he is not persuaded by that interpretation, he at least recognizes its existence as a legitimate(if inferior) understanding of the law. He therefore has grounds to accept, if grudgingly, the custom of some rabbinic courts to permit conversions in situations where he personally would not. In the end, he leaves it to the discretion(shiqul da‘at) of the local rabbi to determine whether in each individual case the proselyte meets the halakhic requirement of religious sincerity and
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