61

58.

59.

60.

62.

63.

64.

65.

66.

67.

68.

69.

MARK WASHOVSKY

See above at notes 3, 4, and 5.

See Moshe Zemer ,"The Rabbinic Ban on Conversion in Argentina", Judaism , v. 37, Winter, 1988, pp. 84-96.

Kook does provide for the rare"sincere" proselyte: he or she can travel to Jerusalem , to be examined there by Kook’s own bet din.

Dworkin , Taking Rights Seriously, pp. 118-123. Yad, Hil. Issurei Bi'ah 13:17; Shulhan Arukh Yoreh Deah 268:12.

Kook relies here upon a distinction used by Tosafot, Hulin 3b, s.v. kasavar, to explain the Talmudic dispute over whether the Samaraitans were valid proselytes. Those who say they are not valid proselytes hold that the Samaritans , who converted originally out of the ulterior motive of fear, never observed Judaism properly. Thus, in Kook’s equation, insincerity plus subsequent nonobservance equals an invalid conversion.

See note 5, above.

This is not to say that such policy considerations cannot lie below the surface of Herzog’s rulings. My concern here is with the jurisprudential question of the process by which a rabbinic decision is argued and justified, rather than with the psychological or sociological inquiry as to how a rabbi actually"thinks up" his answers. The former, as the realists would assert, may well be a smokescreen concealing his"real" motivations, but it is through his written argument that a rabbi or a judge influences the future development of the law. On the distinction between these two levels of judicial thinking, see Richard Wasserstrom, The Judicial Decision, Stanford , 1961.

See M. Eduyot 1:5, Rambam ad loc. in the Kafich edition of his Commentary to the Mishnah and Kafich’s note 31.

Resp. Igerot Moshe, Even Ha'ezer, v. 2, no. 27, and Yore Deah, v. 1, no. 160

Although Orthodox halakhists accept Feinstein’s judgement concerning Conservative

rabbis(J. David Bleich , Contemporary Halakhic Problems, Volume Ill New York, 1989, p

91 at n. 6), it is subject to the logical-- and jurisprudential-- criticism that the poseq assumes facts not in evidence. See Roth, pp. 71-74.

See b. Yevamot 47a-b(the proselyte is informed of"some[i.e., and not all] of the lighter and weightier commandments") and b. Shabbat 68a-b(one who converts among the Gentiles is a valid convert, even though out of his ignorance he violates the most important commandments).

44