5.
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1},
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MARK WASHOVSKY
See the version of Rav ’s ruling preserved in Y. Kid. 4:1. The rishonim suggest another justification. Even though the original conversion may have been prompted out of ulterior motivations, once the proselyte has begun to observe the commandments we can presume that he or she has subsequently accepted the obligation to do so(agav onsaiho gamru veqiblu), in much the same way as a person who is coerced into selling his property can be said to have consented to the sale, after the fact, as a result of the pressure brought to bear upon him(b. Baba Batra 47b-48a). See Ritva and Nimukei Yosef to Yeb. 24b. Here we find the roots of a distinction, of great importance to poskim such as Kook and Herzog, between"insincere" converts who observe the mitzvot and "insincere" converts who do not.
. b. Yeb. 24b, Tosafot, s.v. lo, Yad, Hil. Issurei Bi’ah 13:15.
for another interpretation of Rambam ’s ruling); Shulhan Arukh Yoreh Deah 268:12 and Bi'ur Hagra ad loc.
Legal textbooks are indeed likely to be cited as"authorities" in judicial decisions, as all who are familiar with names such as Blackstone, Wigmore, and Prosser can testify. The point is that these authorities are not legislators. Like Rambam and the Shulhan Arukh, they describe the law, but they do not make it. For a full treatment of the distinction between codification in Jewish law and in other systems see Menachem Elon , Hamishpat Ha'ivri(Jerusalem , 1988), pp. 938-948.
. b. Shabbat 31a, b. Menachot 44a; Tosafot, b. Yeb. 24b, s.v. lo.
Beit Yosef, Yoreh Deah 268, fol. 215b; Siftei Kohen, Shulhan Arukh Yoreh Deah 268, no. 23.
The"classic" treatment of this theme(i.e., one which delineates the issues which subsequent scholars return to and address) is Benjamin Cardozo , The Nature of the Judicial Process, New Haven , 1921.
Such as the"rule of recognition" proposed by H.L.A. Hart, The Concept of Law Oxford, 1961, the most influential of the contemporary legal positivists. Hart's work is a sympathetic critique of John Austin , The Province of Jurisprudence Determined(London , 1832), whose theory of"law as the command of the sovereign" developed a line of thought laid down by Hobbes and Bentham which was critical of natural law philosophy. Law, for positivists, is a strictly human enactment, whose source is to be found not in reason or nature but in social and political choices made within the context of a particular legal system. A similar"master rule" is Hans Kelsen '’s grundnorm; see The Pure Theory of Law, tr. Max Knight , Berkeley and Los Angeles , 1967.
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