[Avodah] Those Whose Halakhic Status Is Questionable

[Jay F. Shachter]

(Discussion moved to Avodah from our sister mailing list Areivim,
because the focus of the discussion has changed)

>
>>
>> ... If it is the mother who is the one with questionable lineage,
>> there is still no problem, for less obvious reasons, because she
>> has converted.  The requirements for conversion today are the same
>> as they were for our ancestors when they stood before Mount Sinai.
>> There are four: circumcision, immersion, a qorban geruth, and the
>> acceptance of the Torah.  We are postulating that the mother is
>> Torah-observant, so that takes care of acceptance of the Torah;
>> that's already happened.  The qorban geruth is not necessary, if
>> circumstances prevent us from bringing qorbanoth.  Circumcision
>> doesn't apply to women.
>>
>> That leaves only immersion.  But hey, we're talking about a
>> Torah-observant woman, so she's been to the miqveh.  Torah-observant
>> women are generally either pregnant or nursing for most of their
>> childbearing years, but she's still been to the miqveh; she at least
>> went before her marriage and after the birth of every child.  So we've
>> got immersion too.
>> 
>> But, you may say, the immersion was not done with the intent of
>> converting (in fact, if she thinks she was born Jewish, we can be
>> close to certain that she had no such intent).  But since when does
>> immersion require kavvanah?
>>
> 
> Tevilah must be in front of a beis din, and yes, it absolutely must be 
> lesheim giyur.  That is clearly stated in hilchos giyur.
>

Yes, that is clearly the halakha, but I'm not sure that it's the halakha.
First of all, when you say a beis din, I assume you mean, lav davqa a
beyth din, since we see from Hilkoth Issurey Biah 13:6, and from the
better-known Hilkoth Issurey Biah 13:17, that an actual beyth din is
not needed bdi`avad.

>
> You may be thinking of the gemara "Mi lo tavla lenidasah", but that
> simply means that if we see that she is observant we assume she must
> have been converted properly by some beis din, somewhere.
> 

That's a reasonable assumption, but actually I was thinking of Hilkoth
Issurey Biah 13:8, according to which it is possible for there to be
evidence that establishes that you are a nokhri, but does not
establish that your children are the children of a nokhri.  If
contemplating this idea makes your brain explode, let me do what I can
to help.

Personal status is not a matter of fact, it is a matter of halakha.
That is why Eliyahu will not tell us who the mamzerim are.  A prophet
can tell us facts; a prophet cannot tell us halakha.  A prophet can
give us a hora'ath sha`ah, but it is we who tell him the halakha.
Eliyahu can have one vote on the Sanhedrin, if he wants a seat on the
Sanhedrin, and if we let him have one; and that is all.

Matters of halakha are determined by rules of evidence, which are not
the same rules of evidence that are used to determine matters of fact.
This is a concept with which everyone on this mailing list is
familiar, and it should not make your brain explode.  No one on this
mailing list has a problem with the notion that a man can be convicted
of, e.g., adultery with a married woman, while the woman is acquitted
of the same crime.  I am not talking about cases where the mens rea is
different, like the woman thinks he is her husband, or the man doesn't
know the woman is married.  Even in cases where the mens rea is
identical, the man can be convicted and the woman can be acquitted on
the same evidence, like if, e.g., the corroborating evidence
establishing the man's guilt comes from the woman's son.  Everyone on
this mailing list understands that the son's testimony is competent to
establish the man's guilt but is not competent to establish the
woman's guilt, and no one says, "How can the man be guilty of the
crime, if, on the same evidence, the woman is innocent of the same
crime?"

It is equally plausible for there to be evidence that establishes,
lhalakha, that you are an X, and, at the same time, that your children
are not the children of an X, and we don't ask, "How can my children
not be the children of an X, if I am an X?"  Thus it was from Hilkoth
Issurey Biah 13:8 that one can have the idea that, if a Torah-observant
mother goes to the mikveh -- which every Torah-observant mother does
-- her children are Jews, and we don't have to worry that changes to
conversion practices will permanently rupture the Jewish people.

The idea will be easier to understand, if we recall the original
posting, and if we review some Jewish history.  The original poster
("OP") had written an article asserting that upcoming changes to
conversion practices in Israel will bring about the end of Jewish
unity.  He does this about 20 times a month.  I do not think that this
is an exaggeration, but if it is, it is only a slight one.  Religious
Jews in Israel will not know whom they can marry.  The problem is only
in Israel.  There is no problem with the religious Jewish communities
outside of Israel.  Okay, now I admit that I am exaggerating the OP's
position, slightly.  But the Jews outside of Israel are in much better
shape than the Jews of Israel.  There is only so much of this claptrap
that an intelligent person can take, and it is much less than 20
articles a month, and therefore an article appeared, quoted above,
arguing that the OP was trying to alarm us with a non-issue.  It
proposed a mechanism in halakha in support of the argument.  I admit
that I am less sure of the argument than I am of the conclusion to
which it leads.  I feel a little embarrassed admitting that, but the
fact is that you see that sort of thing in psaq all the time.  More
among the Ashkenazi posqim than among the Sfardi posqim, but you see
it among the Sfardi posqim too.  There really isn't any good reason
why you can't use electricity on Yom Tov, except that everyone knows
you can't.

Some knowledge of Jewish history will help.  Rambam wrote a tshuvah,
someone had asked him, Are we allowed to marry Qaraites?  He answered,
Of course we can marry Qaraites, ut iz nish kin kashe (those were his
exact words, I think).  They don't teach this history in the yeshivoth
and bais yaakov schools, but the fact is that at the height of the
schism, the Qaraites were the majority.  They weren't just the
majority of the hamon `am, they were the majority of the scholars,
Qaraite scholarship was at the heart of our nation's most vigorous
intellectual enterprise.  With radically different notions of halakha,
I am certain that there were people whom the Qaraites considered Jews
whom we did not, and vice-versa.  We had wise leaders like Rambam, and
somehow it worked out, we're still here, and we're not worried about
whom we can marry and whom we can't.  And that's probably why they
don't teach that history (or, really, any accurate Jewish history) in
the yeshivoth and bais yaakov schools, because the yeshivoth and bais
yaakov schools, like the OP, want us to be in a perpetual state of
alarm, which a strong knowledge of Jewish history protects us from.

We've always had schisms.  Schisms are our minhag.  You can be
strongly opposed to them -- and, for the record, I am -- but it's like
being opposed to glaciers.  Every generation thinks that its schism is
different from all the previous ones, it's the one that will lead to
the end of the Jewish people.  And, in fact, you could wonder whether
one of the earlier schisms did lead to the end of the Jewish people:
you could wonder whether we are the inheritors of a schism that ended
authentic Judaism, maybe authentic Judaism no longer exists.  But I
find -- this is my personal opinion, and I respect the intellectual
integrity of someone who disagrees (although no one on this mailing
list will) -- I find that we are living, today, lives that are
identical, absolutely identical in all the important ways, to the
lives that are described in the Talmuds, and in Josephus, and in the
Books of Maccabbees.  Beyond that I am frankly not sure -- I'm not
sure if our ancestors in Biblical times (or, more precisely, one of
the factions among our ancestors in Biblical times, because there were
factions even then, of course) lived lives that were identical, in all
the important ways, to the lives that we live today.  But at least
going back to the late apocrypha -- I recognize those people as
Torah-observant Jews, they are just like me, in all the important
ways.  So the schisms have not ended the Jewish people; the right
faction, the Torah-observant faction, always ended up prevailing over
the others, and, moreover, we've never had to worry much about whom we
can marry (even Beyth Hillel and Beyth Shammai intermarried, and
their disagreements were much more serious than anything that could
possibly happen in Israel now).

(The deviant sect that I worry about, more than I worry about Reform
Judaism, or Conservative Judaism, or Reconstructionist Judaism --
those people are no threat at all -- is Kollel Judaism, a deviant sect
that believes that you can be paid for learning Torah, which is
totally contrary to the halakha.  Those are the people who are
seriously threatening authentic Judaism, and I do worry a little about
that, because I don't see them dying out, yet; but still my knowledge
of Jewish history assures me, intellectually even if not emotionally,
that the Kollel Jews will eventually shrivel up and die, they will go
the way of the Sabbateans and the Frankists, whereas authentic Judaism
will remain.)

So we are left with the conclusion that the eartlier article addressed
to the OP.  It bears repeating.  It is not a good use of your time, to
post 20 articles a month intending to alarm us about this non-issue.
If you want to promote the survival of a unified, Torah-observant
Jewish community, the best way to do that is to ignore the non-issues,
and retrieve the endless hours you spend trying to alarm other people
about them, and use those hours to just live your life in such a way
that encourages people to follow the Torah, by setting a good example
to the members of your community, and to the members of your family.

                        Jay F. ("Yaakov") Shachter
                        6424 North Whipple Street
                        Chicago IL  60645-4111
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                                jay at m5.chicago.il.us
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                        "Quidquid latine dictum sit, altum videtur"