[Avodah] Democracy and the Beit Din

[Arie Folger]

RMM wrote:
> Indeed. If one BD determines that the eidim of another BD were
> invalid eidim, or that the mikvah was not kosher, or that the milah
> was not kosher, etc. etc., then indeed, the giyur may be revoked.
> But if the second BD is basing itself on fallacious readings of the
> Gemara, such as by ignoring the sugya (or baraita? - I forget)
> about the ger who rises from the mikvah and immediately joins
> a passing troupe of idolaters, and yet whose giyur is valid - then
> this second BD's revocation is valueless and irrelevant. If the
> second BD is ignoring how many poseqim were willing to convert
> the non-observant (Rabbi Benzion Uziel, Rabbi D. Z. Hoffman,
> Rabbi Isser Yehuda Unterman), and pretending that these
> poseqim didn't exist, then that second BD's revocation is nothing.
> Or as Rabbi Henkin's article in Hakirah showed, the laws of Hoshen
> Mishpat do not in any way permit Rabbi Sherman's conclusion that
> Rabbi Drukman is an invalid dayan; IIRC, Rabbi Henkin concluded
> that even if Rabbi Drukman's opinions are all wrong, he would still
> be a valid dayan according to Hoshen Mishpat. But if the second
> BD has real basis for annulling the conversion, such as by saying
> that the eidim were not shomrei shabbat, then this revocation is
> valid.

You are confusing three issues. There is (1) the issue of the
implications of the halakhah of ger she'hazar le-suro (a convert who
reverted to his pagan ways, even soon after conversion), (2) the right
of people to hold views against those of some posqim, even bedi'avad,
and (3) the propriatey of the method of R' Scherman disqualifying R'
Druckman retroactively, and hence also retroactively disqualifying all
the latter's conversions, even those where higher standards were
upheld.

Re: (1): we don't interpret Talmud in a vacuum, but through the lens
of the posqim. The consensus seems to have established itself that we
distinguish between cases where there is a presumption that the
conversion was good and the convert only afterwards decided to sin,
and where the convert converted with the full intention of sinning.
Unless one is willing to ignore qabalat 'ol mitzvot (see point 2
below), we must then reasonably interpret the evidence of what the
convert may have been thinking at the time. If one says, on Thursday
morning, befeh male, that he will keep Shabbat, and he holds a
management meeting the next Friday evening, complete with powerpoint
presentation, it is obvious that much preparation had gone into his
transgression of Shabbat, and that at the time of his assurance that
he will keep Shabbat, he was lying through his teeth. The invalidation
of such a convert is not the disavowal of the previous beit din's
ruling, but a statement of fact that there is serious evidence that
the prospective convert fooled the system. The convert is being
invalidated, not the acts of the beit din.

(2) Since when is halakhah a matter of the lowest common denominator?
Against historical practice? So some recent major rabbinical figures
have been willing to do less than stellar conversions. That doesn't in
and of itself overturn centuries of practice. Those who argue for a
more lenient regime bear the onus of convincing the others. In matters
relating to yu'hassin, as well as in all matters impacting more than
one's own community, there is a long standing tradition of seeking
consensus. And there is no consensus that conversions without qabalat
'ol mitzvot (whatever that may mean, which is admittedly subject to
some disagreement) is valid even bedi'avad. If a beit din wants to
insure reasonable acceptance, it may not need to seek to adhere to
100% of views, but it should seek to rely on enough views. It is hard
to put numbers on these things, but you will readily recognize the
significance of, say seeking 85%-90% acceptance.

(3) R' Henkin (rightly IMHO) criticized the retroactive
disqualification of R' Druckman as a dayan and the therefore automatic
retroactive disqualification of all his conversions, including those
performed according to more widely accepted standards. However, there
is nothing in this argument to oppose the disqualification of
individual converts based on a determination that they never intended
to fulfill more than a tzivyon mitzvot, if even that.

Thus, the correctness of (3) does not imply that either (1) or (2) is correct.
-- 
Arie Folger,
Recent blog posts on http://ariefolger.wordpress.com/
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