[Avodah] Halachic Methodology

[Michael Makovi]

> Halachists, of course, do not approach text this way. Neither do ninth
> graders with serious gemara background. When they see conflict between
> sources, they generally endeavor to reduce the tension as much as
> possible, ...Does the chevra agree with this analysis of halachists approach?  Is
there a specific source for the approach?

>
> R' Rich Joel quoting Cross Currents

Certainly, this approach seems valid and true. But all the same,
sometimes, you have to call a spade a spade and declare a machloket.
As I recently said, for example, I was delighted when I saw Rabbi
Howard Levine declare a machloket between Rav Hirsch and Mesilat
Yesharim on the purpose of life, because I've been saying the same for
some time.

I don't know enough about the sources on giyur to declare anything
definitely, but there's obviously something going on. Rabbi Shmelkes,
and those following him, declare unequivocally that giyur without
comittment to observance is invalid, totally and completely.

But then, on the contrary, we see:

--- Rabbi Shlomo Kluger (quoted in Rabbi Henkin's recently article in
Hakira) says kabbalat mitzvot is a machshir d'rabanan, and I saw Rabbi
Berkovits saying the same (Professor Shapiro, in a footnote in his
book on Rabbi Weinberg, says Rabbi Berkovits is following Rabbi
Weinberg here, but I forget the details, and I don't have the book on
hand)
--- Rabbi Uziel follows his shita,
--- Rabbi D. Z. Hoffmann permits a non-observant person to be
converted for the sake of marriage. He never explicitly says the
person is nonobservant, but he does say that her motivation is for the
sake of marriage and not spiritual, and he does say her coming to the
beit din for conversion shows some sort of concern for Orthodoxy's
opinion, legitimizing her conversion. The invocation of such an
argument, however - viz. that her coming to the beit din at all shows
some commitment to halakhah -  implies she is not ritually observant,
because then, the argument given would be irrelevant. I would add that
in 19th century Germany, I doubt Rabbi Hoffmann could take it for
granted that the woman would be observant; Rabbi Herzog's argument
that in times of old, everyone could be naturally assumed to be
observant, certainly is not applicable to Germany! Rabbi Hoffmann
implies strongly that she is nonobservant, and he never gives the
slightest indication that she intends to keep halakhah. I am relying
on a translation I found of his YD 83, where he says, "We can derive
the principle that whether to convert such candidates or not depends
on the judgment of the court." This sounds remarkably like Rabbi Hayim
David Halevi, who said that the laws of giyur are vague and inchoate
so as to allow the judges of every generation to be as lenient or
strict as they desire.
--- Professor Shapiro, at
http://seforim.traditiononline.org/index.cfm/2008/8/29/Responses-to-Comments-and-Elaborations-of-Previous-Posts-III
lists many teshuvot of various rabbis performing conversions for
nonobservant spouses of Jews. In one case, the Aderet questioned the
propriety of converting nonobservant gentile spouses, not on grounds
of kabbalat mitzvot, but on grounds of michshol, causing this
non-observant candidate to be a sinning Jew, violating niddah and
Shabbat and kashrut. Apparently, the Aderet assumes that
nothwithstanding kabbalat mitzvot, the conversion is valid anyway, and
thus, the convert will be sinning egregiously. (According to Rabbi
Shmelkes, this is all false; the convert, according to him, is still a
stam gentile, and so there is no issue at all of violating kashrut and
niddah and shabbat.)
--- Professor Zvi Zohar, at
http://www.jewishideas.org/responsa/halakhic-conversion-of-non-religious-candidates,
quotes:
1) Rabbi Moshe haCohen, a leading rabbi in Jerba and later a dayan in
Teverya: "[A]ccepting the commandments does not mean that he must
commit himself to observe all the commandments. Rather, it means that
he accepts all the commandments of the Torah in the sense that, if he
transgresses, he will be liable for such punishment as he deserves...
And if so, we do not care if at the time he accepts the commandments
he intends to transgress a particular commandment and accept the
punishment. This is not considered a flaw in his acceptance of the
commandments."
2) Rabbi Raphael Aaron b. Simeon, Chief Rabbi of Cairo: "We overlook
this [lack of committment to be observant] and accept them... and this
is what we do in such cases. We make a condition and explain to the
woman proselyte that her intention must be that even if her husband
does not wish to marry her after this, and abandons her, she
voluntarily accepts the religion, and that the reason for her giyyur
is not contingent upon her [interest in] marriage to him. And she says
'yes'. And although we know what is in her heart, we are not very
meticulous." One of the questions the beit din asks her, according to
Rabbi Raphael, is "Do you willingly accept punishment for
transgressing the lenient and harsher commandments we have explained
to you when you accepted the religion of Israel?" They do also ask her
whether she is converting lishma, but we already saw him say that in
truth, they are not makpid on her answer to this question. Apparently,
like Rabbi Moshe haCohen (op. cit.), Rabbi Raphael considers
acceptance of onesh as a sufficient kabbalat mitzvot.

I do not know enough about the laws of giyur to be definitive on what
exactly is going on here. Indeed, Rabbi Broyde's review does
convincingly point out a few errors by Professor Zohar. (For example,
contra Zohar, you cannot derive from a tinok's conversion sans
kabbalat mitzvot, that an adult lacks this requirement as well, just
as you cannot derive from female converts that males do not require
milah.) But it is obvious that there IS a machloket, of some sort,
even if Professor Zohar does have some errors. Rabbis Moshe haCohen
and Raphael Aaron ben Shimon both declare that kabbalat mitzvot is
primarily acceptance of onesh, Rabbi Shlomo Kluger (and Rabbi
Berkovits, and perhaps Rabbi Yehiel Weinberg) says it is all d'rabanan
anyway, and Rabbi D. Z. Hoffmann also converted non-observant
intermarried gentile spouses. (Should we surprised if Rabbis Weinberg
and Hoffmann held the same shita here? This seems not unlikely.)
Should we assume that Professor Zohar forged the teshuvot of Rabbis
Hoffmann, haCohen, Raphael, Uziel, and Shlomo Kluger?

I don't know enough to say whose view has more textual validity. But
it is obvious that these sources - which Rabbi Michael Broyde failed
to answer definitively - indicate a view different than the normative
contemporary one. And it is obvious that Rabbi Uziel's opinion was not
exclusive to him, even if he was its most famous exponent.

It is for this reason that Rabbi Angel, following Rabbi Hayim David
Halevi. said that while one may be as personally strict as he desires,
he must nevertheless respect the lenient opinions. If one wants to be
strict, that is his prerogative. But others have the full right to
follow Rabbi Weinberg, Rabbi Hoffmann, Rabbi Uziel, Rabbi Moshe
haCohen and Rabbi Raphael Aaron ben Shimon, etc. No one today has any
right to declare these opinions invalid; he may choose them to eschew
them himself, but does he have a right to deny others use of these
shitot? (We might make a parallel to Beit Hillel and Beit Shammai on
mamzerut, but this example would prove the opposite of what I'm trying
to prove. I'll admit this. Tzarich iyun. I'll admit that I am very
troubled for what this precedent of Beit Hillel/Shammai would mean for
the minority view of giyur today.)

Michael Makovi