Gates of Conversion – On Violence and Good Intentions
With God's help
Akdamot – 2011
More on the Renewed Conversion Controversy
(Following Rabbi Yehuda Brandes's article, Akdamot 21)
Introduction
Rabbi Brandes describes in his article the dispute that has recently been raging over conversion, and he identifies its roots. He begins with a very important distinction between concern for the honor of a Torah scholar (Rabbi Druckman) and the substantive discussion of the conversion issue itself. As I wrote in another article,[1] the public discussion of these two aspects indeed suffers from a failure to distinguish between them, and generally we do not hear the views of the rabbis of Religious Zionism on the issue itself. This deafening silence (made even more palpable in light of the protest letters dealing with Rabbi Druckman's honor) hints that, with respect to the substantive issue itself, Rabbi Druckman's position apparently does not have many supporters.
Rabbi Brandes's Remarks
Addressing the substantive issue, Rabbi Brandes presents the position of Rabbi Sherman, a judge on the High Rabbinical Court, according to which the approach that requires full acceptance of the commandments as a necessary condition for the validity of conversion is the exclusive position in Jewish law. Rabbi Brandes praises Rabbi Sherman's courage in expressing his position with great forcefulness, but argues that he finds neither integrity nor fairness in his words. Rabbi Brandes maintains that there is a dispute regarding this aspect of the conversion process, and that there are quite a few respected halakhic decisors, including from previous generations, who adopted Rabbi Druckman's approach and dispensed with full acceptance of the commandments as a condition for conversion.
There is an entire spectrum of such moderate halakhic positions. In note 5 of the article, mention is made of the book by Tzvi Zohar and Avi Sagi, Conversion and Jewish Identity, which advances the most extreme position of all: that acceptance of the commandments is not needed at all as a condition for the validity of conversion. Tzvi Zohar repeated this in an article he published even before the current controversy arose, in the journal Eretz Acheret, issue 17, 2003. By way of illustration, let us quote the subheading of that article (p. 38):
The prevalent conception, according to which the religious court conducting the conversion must concern itself with the convert's motives and with the question whether he will observe commandments in the future, has almost no basis in Jewish law. It is a halakhic innovation from the end of the nineteenth century, caused by rabbis' anxiety over secularization in Europe.
There are also intermediate approaches, mentioned more fully by Rabbi Brandes, which do not require full acceptance of the commandments, but only partial acceptance (at one level or another). All of these stand in opposition to Rabbi Sherman's claim, which denies the existence of such halakhic positions.
True, the conversion courts apparently proceed from the assumption that the requirement is full acceptance of the commandments, and therefore they officially present this as a condition to candidates for conversion. But those candidates learn how one ought to speak before the judges of those courts, and the judges themselves turn a blind eye to the obvious presumption regarding most converts—which they know perfectly well—that they do not intend to observe commandments, and thus these conversions are carried out with a "wink."
Rabbi Brandes shares Rabbi Sherman's criticism of these "wink conversions," since they involve a desecration of God's name and a degradation of the process, but in his view the solution is to establish from the outset a state conversion process for mere "Israeliness" (and not for religious Judaism). In his reasoning, he says that in the past full acceptance of the commandments was required because the organizational framework of the Jewish people was based on commandment observance, but even then commandment observance was only an indication of joining the Jewish people. Since today the situation is different, he argues that people should be converted to "nonreligious Israeliness"—that is, conversion should be seen as a process of joining the Jewish people in a format suited to its present-day organizational frameworks, and commandment observance is no longer the proper criterion for that.
Rabbi Brandes therefore recommends creating a conversion process that requires observance of several principal commandments, integrated into a traditional lifestyle. Such a conversion would enjoy greater popularity among immigrants, would reduce the desecration of God's name and the deception involved in the process, and would be fairer and more honest than conversion as it is currently conducted. Ultimately, it too would constitute a fitting joining of the Jewish people, even if not in the religious sense that was accepted in the past.
Rabbi Brandes argues that continuation of the current policy, or adoption of the Haredi policy, will lead to the formation of separate groups within the Jewish people whose members will not be able to marry one another, thus creating an extremely grave social problem. He concludes by saying that this is a test for the state-oriented halakhic approach of the rabbis of Religious Zionism, who until now have not dared to oppose Haredi dictates even in this area. In any case, failure to change the policy will bring about the demise of the state-centered path charted in the past by the rabbinic leadership of Religious Zionism.
Is there really a view in Jewish law according to which acceptance of the commandments can be waived in conversion?
My first claim concerns the most extreme position in the moderate spectrum, that of Zohar and Sagi. A position such as theirs does not exist at all in Jewish law. I know of no halakhic decisor, from the Sages down to our own day, who is willing to waive acceptance of the commandments entirely as a condition for conversion. Not for nothing do even the "state-oriented" decisors resort to "wink conversions," for they too are unwilling to give up acceptance of the commandments (at least officially) as a condition for the validity of conversion.
The quotation from Tzvi Zohar cited above betrays ignorance. The sources for acceptance of the commandments as an essential component of conversion are found by the dozens throughout halakhic literature, beginning already in the period of the Sages. Note carefully: this is not a matter of one interpretation or another, but of facts that any beginner who opens a halakhic or Talmudic book can see. In any event, it is clear that presenting this as though it were an invention of the nineteenth century is nothing but distortion.
Moreover, even in sources where this requirement does not appear, that does not mean that acceptance of the commandments is not vital to the conversion process. On the contrary, that absence indicates that the matter is so simple and fundamental that there is no need to mention it at all. By analogy: if someone were to search in the Shulchan Arukh, in the laws of acquisitions, he would not find any explicit requirement that the transferor and the acquirer must intend to transfer or acquire the object. Could one infer from this that the requirement does not exist, or that it is not indispensable to the acquisition? Certainly not.[2] The intention to transfer the object is the very essence of acquisition, and this is the basic presupposition of Jewish law: transactions require intention. The acts are only an expression of that intention.[3] If so, why is this requirement not mentioned? Simply because it is the body and heart of the act of acquisition itself. Jewish law discusses a person who wishes to transfer or acquire something, and asks what he must do in order to realize that will. From this it is clear that there is no logic in presenting a halakhic requirement that a person have intent for the acquisition, since all these laws deal only with a person who already has such intent. The role of Jewish law is to guide him how to bring it into effect.
The same is true of conversion. According to the halakhic decisors—virtually all of them—the essence of conversion is acceptance of the commandments, and the acts that accompany it are meant to express it and bring it about. The halakhic discussion, naturally enough, concerns only those acts and not intentions. By analogy to the issue of acquisitions, we can say here as well that Jewish law instructs one who wishes to accept upon himself the yoke of Torah and commandments how he can do so. It does not instruct us to want to accept the yoke of the commandments, and there is no need for it to do so.
What, then, is actually disputed?
To be sure, one can find disputes as to the necessity of an explicit verbal act expressing the convert's intention to accept the commandments as part of the conversion process. Not all halakhic decisors agree that such an act is mandatory and indispensable to the conversion process (though this discussion, of course, long predates the nineteenth century). But the issue here concerns what the convert must say with his mouth, not what must be in his heart. Those decisors who hold that no explicit acceptance of the commandments is required do not mean that no intention or desire is required on the part of the convert; rather, they mean that no verbal expression—no explicit statement of that desire—is required.
Another dispute concerns whether the convert must be aware of the full scope of the commandments that will be incumbent upon him as a Jew. Quite a few halakhic decisors permit conversion even with only partial knowledge of the commandments, so long as it is clear that the convert accepts upon himself the yoke of the commandments, but simply lacks information. If he does not know that hunting on the Sabbath is forbidden, or does not know of the prohibition against slander, that is not necessarily a flaw in the conversion process. But if the convert announces in advance that he will not accept a certain commandment or another, then, to the best of my understanding, all halakhic decisors agree that the conversion is invalid.
Changing circumstances over the generations
It is important to understand another fact that stands in the background of this discussion. Throughout all the generations, when some gentile came to convert (apart from marriage conversions, which I shall discuss below), the halakhic decisors had no reason to think his intention was not serious. After all, by converting he entered a life of suffering, discrimination, and constant persecution (and at times even mortal danger), and precisely for that reason it was clear that such a convert intended to join the community of God's worshipers. Someone who did this for irrelevant reasons was almost insane (and we are also supposed to verify this by informing him that Israel at this time is oppressed and afflicted among the nations, and the like). Today, however, many candidates for conversion have come to the country, and even to the conversion program itself, for various reasons. Some do so in order to integrate comfortably and smoothly into Jewish society in Israel, while others perhaps merely for immigrant rights. We have no indication that their intention is to observe commandments and serve God.
Thus, it was the presumption that every convert comes from pure motives that led some halakhic decisors to argue that there is no need to investigate his motives (at most one must inform converts of some of the commandments, so that they understand they are taking upon themselves some yoke of commandments). This is not a halakhic approach according to which acceptance of the commandments is unnecessary; it is a factual assessment that in practice there is no need to examine it. As noted, in the past there was a clear presumption that the convert indeed came in order to observe commandments, but such a presumption no longer exists today.
Therefore, whatever our opinion may be regarding conversion to Israeliness, or joining the Jewish people without acceptance of the commandments, one thing is clear: the views of those halakhic decisors who waive these examinations are irrelevant to the discussion. No proof can be brought from there in any direction. The same is true regarding less-than-complete acceptance of the commandments. The waiver of full acceptance of the commandments does not stem from the fact that it is unnecessary, but from the assessment that if the convert accepts what he knows, there is a presumption that he will also observe what he learns later. Therefore, all such precedents are irrelevant to our discussion.
Marriage conversions
Another kind of precedent that appears in Rabbi Brandes's remarks is marriage conversions, or conversions motivated by one interest or another that were accepted by various halakhic decisors over the generations. But here too there is a failure to observe the distinction presented above. When those decisors accepted converts, male or female, for the sake of marriage, they most certainly did not waive acceptance of the commandments. At most, they understood that in such a case acceptance of the commandments was not motivated by love of God but by the desire to marry Jews. But the assessment was that this conversion did indeed include acceptance of the commandments.
This resembles the well-known halakhic topic of coercive sale ("he was coerced, yet sold"; see Babylonian Talmud, Bava Batra 47b-48a, and the commentators there), which deals with a person who was forced by threats to sell some object. The law is that the sale is valid. The accepted explanation for this (see Maimonides, Laws of Sale 10:1, and elsewhere) is that he does indeed have a desire to sell, even though that desire is nourished mainly by the fact that he does not wish to suffer. At the end of the day, there was a will to sell, and therefore the sale is valid.
The same is true of one who comes to convert for the sake of marriage. The assumption throughout the generations was that Judaism meant commandment observance. No one disputed this basic definition, even if not everyone observed every commandment, major and minor. Therefore the converting judges assumed that even if the converts came out of some other interest, they would presumably join the Jewish people and also observe commandments, only they would do so under compulsion (for that is what would enable them to live with Jewish spouses). For most halakhic decisors, such a process is valid after the fact, but not because acceptance of the commandments is unimportant. Its validity stems from the fact that, de facto, there is genuine acceptance of the commandments here, only not from proper motives. Precisely for that reason Jewish law rules that from the outset one should not convert in such a case.
What Rabbi Brandes proposes is something else. According to his approach, if someone comes to convert because of some interest (joining the nation, a desire to marry, immigrant rights, and the like), we should waive acceptance of the commandments in the conversion process. The fact that today many candidates for conversion, and much of the Jewish public as well, do not identify Judaism at all with halakhic commitment does not support that argument. On the contrary, it brings out the problem here. For now we can no longer argue that even if the convert is acting from self-interest, he will nonetheless observe commandments (only not from proper motives). The reasonable assessment now is that he will not observe commandments at all, for he never thought of doing so. If so, precisely the change in circumstances described by Rabbi Brandes is the most important reason not to waive acceptance of the commandments (certainly inwardly, but also verbally) in the conversion process.
I was quite surprised to discover the argument I have set out here in the words of an important halakhic decisor, who certainly cannot be suspected of lacking state-mindedness, or of lacking breadth and courage. All I had to do was leaf a few pages further on in the same issue of Akdamot and read the citation brought by Rabbi Benny Lau from Rabbi Herzog's responsum (see there, p. 103):
Know that although the law has already stood, since the time of the Tannaim, that after the fact they are all converts, I have a serious concern in our own time. For in earlier times among Israel, a transgressor was despised and persecuted by his people, and therefore when a gentile accepted Judaism upon himself, even if the first reason that moved him to do so was marriage, he nevertheless knew that his condition in Jewish society would be very bad if he did not conduct himself according to the Torah. Not so in our day, when there are so many secular people, and not only do they not suffer for this, they even stand at the head of the nation and the communities. Therefore there is reason to fear that he is not truly accepting upon himself to keep the commandments; rather, because of his motive he says so before us, but his heart is not with him… Therefore today the responsibility falls especially upon the rabbi to examine every case until he is satisfied regarding these people that it is likely they will truly keep our holy religion.[4]
Rabbi Herzog points here to several important foundations:
- There is no conversion without acceptance of the commandments (in the heart). What Sagi and Zohar call "the new invention of the nineteenth century" is, in his eyes, a self-evident assumption.
- In the past there were halakhic decisors who accepted converts even without a verbal declaration, and certainly did not invalidate the conversion after the fact.
- Marriage conversions were accepted only because, even if they were done for those motives, the reasonable assessment of the judges was that they contained de facto acceptance of the commandments.
- Precisely in our own time, when converts are not persecuted by gentiles, and certainly not persecuted by Jews if they do not observe commandments, there is room to tighten the criteria.
It is important to understand: the tightening of criteria proposed by Rabbi Herzog is not being done here as a reactive defense after the fact against fence-breakers, but as a matter of basic law, for exactly the reason I wrote above. Thus, even in the area of marriage conversions, all the sources from the past are irrelevant to the present discussion. This consideration is voiced here by a Torah scholar who was one of the fathers of the state-oriented halakhic approach in Religious Zionism, for which Rabbi Brandes expresses such nostalgia.
What are marriage conversions according to Rabbi Brandes's proposal?
According to all opinions, even those who hold that conversion for the sake of marriage is valid after the fact, it is agreed that one ought not to do so from the outset. So far as I understand, Rabbi Brandes and Tzvi Zohar do not dispute this. If so, why is conversion for the sake of integration into the State of Israel any better? Alternatively, what kind of conversion is not supposed to be accepted under Rabbi Brandes's proposal? Is there, in general, any conversion that should not be performed from the outset? Anyone who wants to convert, by definition, wants to enter the Jewish nation. Certainly someone who wants to marry a Jewish woman, and is willing to enter the Jewish people for that purpose, is a fully proper convert according to this proposal! Is there any form of belonging to the Jewish nation more than the desire to marry a Jewish woman and live among her kin? According to Rabbi Brandes's proposal, every convert for the sake of marriage should have been received with open arms (after all, this too prevents intermarriage). Well then, why did the halakhic decisors throughout the generations not think so? Why did they not permit it from the outset (at most, only after the fact)?
Let us examine how Rabbi Brandes proposes to interpret the sources that prohibit marriage conversions from the outset. It seems that on his view these sources refer only to a pathological situation in which a person wants to marry a Jewish woman but is unwilling to live among Jews and as part of the Jewish nation. Nevertheless, the woman insists that he undergo a conversion process, and that miserable fellow is forced to agree against his will out of deep hatred for the Jewish people (in the national sense as well, not only the religious one, of course). As I understand from his words, this almost fictional case is what all the halakhic decisors who dealt with marriage conversions had in mind. Is that plausible?
On conversion to nationality without religion
On the theoretical and interpretive plane, Rabbi Brandes's main claim is that, as a matter of basic law, conversion is not acceptance of the commandments but joining the Jewish people. True, in the past this joining was bound up with full acceptance of the commandments, but that was only an indication of joining the Jewish nation. Today, however, because of a change in the organizational framework of the Jewish public, the situation is different.
The discussion of this topic arises in our day because in recent generations an alternative has emerged that proposes defining Judaism in a purely national sense, with no connection to religion and commandments. Hence the question arises whether one can convert someone on the national plane, without the halakhic plane—that is, waive full commandment observance as the criterion and focus only on the essence (namely, the desire to join the nation).
It is important to understand that even if one sees commitment to Torah and commandments only as an indication of national affiliation—that is, not as a requirement standing independently (and perhaps there are thinkers who saw it that way)—this does not mean that the criterion is not necessary, or that it can be changed. One can certainly say that our nation is a nation only through its Torahs, and therefore this is an essential characteristic. One cannot join the nation without joining the religion, even though it is true that someone who is already inside is not thrown out even if he betrays his obligations.
Moreover, this definition of the conversion process does not meet the requirement of continuity. It is fairly clear that it runs contrary to all the halakhic conceptions that prevailed in the past, and also contrary to the view of all the leading halakhic decisors in our own day (regardless of worldview). Therefore there is no doubt that the burden of proof lies on whoever makes such a claim. Note carefully: he must prove two claims: 1. that this is indeed the conception underlying the conversion process. 2. that the indication of commandment observance can be waived (that is, that it is not necessary). These are two strong claims, and I have seen no proof for either of them in Rabbi Brandes's remarks. As I showed above, all the various precedents brought in this discussion (from marriage conversions, from allowing acceptance of only some of the commandments, or from waiving a verbal declaration of acceptance of the commandments) do not serve as proof for either of those two claims.
Between Jews by birth and converts
In the background of Rabbi Brandes's remarks stands the fact that a large part of the Jewish public has no connection to commandment observance (certainly not in the religious sense), and yet is considered fully Jewish. If so, it is hard to demand of converts that they meet standards higher than those met by the public that receives them.
But here too I do not agree with the argument. There is a difference between the demands made of someone who comes to "join the club" and the demands made of someone who is already a member. Everyone understands that an Israeli citizen who spends his entire life engaged in crime does not thereby lose his citizenship, while at the same time it is obvious to anyone with sense that a habitual criminal who wishes to join and become a citizen would not be welcomed in any country. A brother or a son who has committed crimes is still a brother or a son, but ordinarily I would not willingly form a bond with a criminal, even if he were sincerely to express a desire to do so.[5]
On state-oriented halakhic ruling and national responsibility
Not for nothing do most rabbis of Religious Zionism not propose changing the conversion process and its criteria (even though that process leads them and us to the distortion and desecration of God's name involved in "wink conversions"), for the state-oriented halakhic approach to which they are committed (and which I personally oppose[6]) holds precisely the opposite of what Rabbi Brandes proposes. It requires that nationality not contradict halakhic commitment, for the Religious Zionist conception—unlike my own—sees a certain identity between the two.
By the way, I do not understand why considerations of national responsibility and responsibility for the Jewish people as a whole should lead someone to the conclusion that one ought to be lenient in the conversion process. I clearly understand the fear that two peoples will arise here, with separate Jewish registries for each group and the prevention of marriage between the groups. But the "responsible" policy proposed by Rabbi Brandes itself creates such a situation, already today. The conversions carried out by that system are not accepted in the Haredi world, and not only there. Is this not the creation of duplicate registries and the prevention of marriage between groups within the Jewish people? Where is the broader Jewish responsibility in that direction? Must only the Haredim and Jewish law compromise, while nothing at all is to be demanded of the secular public?
Lack of consistency in the reasoning underlying the proposal
If this is indeed conversion to Israeliness, and if the process is severed from the indication of acceptance of the commandments that was relevant only in the past, I would have expected that the process Rabbi Brandes proposes would make no reference at all to commandment observance. The convert would declare that he wishes to join the Jewish nation and would be accepted even if he announced publicly that he has no interest in, or intention of, observing any commandment whatsoever, nor even of leading a traditional lifestyle. I cannot understand—especially against the backdrop of his remarks above—why such halakhic requirements nevertheless seem to Rabbi Brandes appropriate for conversion to Israeliness. Is a convert who does not wish to observe commandments not intending to join the Jewish people? Why, then, not convert him too?
One must ask further: does the average Israeli in fact bear these characteristics (that is, observe certain commandments and lead a traditional lifestyle)? Quite apart from my general view on the matter,[7] according to everyone there is a large and important group of Jews in Israel (and outside it) who observe no commandment beyond what any reasonable gentile does (that is, merely moral matters). So what is the status of someone who wants to belong to that group? Why not allow him to join the Jewish nation?
And in general, should such a conversion be conducted by religious courts and rabbis? And why is circumcision and immersion necessary? Do not all these requirements, which Rabbi Brandes also does not propose waiving, prove in and of themselves that conversion has a distinctly religious dimension that cannot be dispensed with?
And from another angle: Rabbi Brandes himself (pp. 92-91) explains that the later halakhic decisors (including Religious Zionist ones) who invalidated conversions that did not include acceptance of the commandments directed their words against Reform conversions, and not out of a conception that full acceptance of the commandments is really required. The question that naturally arises is this: why should that very same consideration not invalidate his own proposal? After all, it is very similar to theirs. Rabbi Brandes argues that the difference between Reform conversion and the conversion he proposes is that the Reform uproot the system of commandments. Well then, does their conversion not ensure a desire to join the Jewish nation? Does his own proposal not uproot the halakhic dimension from conversion? Will the average convert observe more commandments than a Reform Jew? Again, there is here an incomprehensible duality: on the one hand an attempt to cling to the traditional line of commandment observance, and on the other hand a proposal to abandon it high-handedly.
The logic of the proposal as a compromise
In light of this lack of consistency, I do not understand whether Rabbi Brandes sees his proposal for conversion as a proposal that is good from the outset (under present circumstances), or whether he is offering a halakhic compromise intended to solve problems. Until now I have argued against the validity of the proposal as an interpretation of the ideal, from-the-outset understanding of the conversion process. But even as a compromise I do not see the logic in it. First, it is not valid in halakhic terms, and therefore there is no possibility of compromise here. Second, even tactically the logic that underlies it is unclear to me.
It seems that Rabbi Brandes's proposal is founded on the conception that Jewish law serves the national idea and Jewish society in Israel. It is nothing more than a Zionist instrument, a tool from the toolbox of the Zionist movement. If a social problem arises—here, because of actors who are not committed to Jewish law at all—we are supposed to soften and change Jewish law so as not to harm them and in order to solve the problems they created. The Jewish Agency, and likewise the government and its institutions, have brought here, as a deliberate policy over many years, tens and hundreds of thousands of gentiles, and now the halakhic establishment is supposed to come and clean up the consequences. The secular public in the state, for whom Jewish law matters no more than last year's snow, demands to receive Torah-based legitimacy without lifting a finger for it, and the task is placed upon us to respond to these absurd demands; otherwise we will be accused of causing the social problems that will arise. All this in the name of the sacred but destructive identification of Israeliness with Judaism.
This opens the door to continued one-sided dictates on the part of the state, and to their imposition upon Jewish law. We are expected to support every step taken by the state authorities, and thus they will be able to continue, unhindered, to do whatever occurs to them. Instead of allowing the public to cope with the consequences of the deeds of its representatives, the rabbinic and halakhic establishment is supposed to sweep up and clean away the devastation they sow. This is a proven recipe for ensuring that such acts will have no end.
Between naturalization and conversion
The step called for in light of the situation Rabbi Brandes describes—a step I very much support—is the separation of religion and state. There should be defined an Israeli naturalization process, carried out not by rabbis but by some sort of public committees. The purpose of this naturalization process would be to turn an outsider into an Israeli citizen, exactly as many other states define for themselves, but it is certainly not conversion.[8]
This naturalization process would have to be accepted by broad Israeli civic agreement, and religious Judaism would be a part of it—but no more than that. Conversion should be left within the domain of Jewish law, to the experts in Jewish law, as it has always been. The right and straightforward solution to the problematic situation that exists today is not to empty the conversion process of its religious content, but to separate the civil procedures from the religious ones. One should create an agreed civil "conversion" process, whose results would not be Jews but Israelis. Even if Religious Zionism finds this displeasing—the burying of one's head in the sand, or the distortion of Jewish law and reduction of it to a caricature, will not change the situation.[9]
Annulment of conversion after the fact
As noted, one must distinguish carefully between the criteria for the validity of conversion and the possibility of annulling it after the fact. If it is indeed clear that at the time of conversion there was no intention to accept the commandments, almost all halakhic decisors (regardless of their political or ideological worldview) agree that the conversion is void even retroactively.[10] The great question, of course, is when we can know (if it can be known at all) what was in the convert's heart. Rabbi Brandes did not discuss this question, and I mention it only in order to complete the picture of the discussion.
On this question there is a difficult dispute, and there are arguments both ways. It is clear that the actual situation is that most converts (not all, of course) do not really intend to observe commandments, and this is already clear to everyone at the time of conversion. Many cite the words of Maimonides in the Laws of Forbidden Intercourse 13:17: even if the convert transgressed severe prohibitions after conversion, once he was circumcised and immersed he has left the category of gentiles, his betrothal is valid, and so forth. But here too one must remember the reality and circumstances that generally prevailed in the past. Throughout the generations, when a person converted, the reasonable assessment was that even if he did so for the sake of marriage, it was probable that he would observe commandments. Therefore, even if he violates commandments after the conversion, it is still possible that at the time of conversion he did not intend that outcome. When the Sages saw phenomena that occurred after conversion, they did not necessarily infer from them that this had also been the convert's intention at the time of conversion, and therefore they did not invalidate the conversion retroactively. Here the rule that unexpressed intentions have no legal standing applies. If the convert declared that he was doing this for the sake of accepting the commandments, what was in his heart cannot change his status—unless there is clear proof that already at the time of conversion that was not his intention.
However, as stated above, the situation in our own time is different, and that assessment no longer exists. Today, if we see that this person does not observe commandments, the simple presumption is (though it is not certain, of course) that he never intended to observe commandments. Therefore even these unequivocal words of Maimonides are not evidence for the case before us. This is another implication of the distinction regarding changed circumstances that I presented above, this time also with respect to retroactive annulment of conversion.
As a general matter, I would say that my personal view is that one cannot annul an act of a religious court unless we have clear proof that from the outset there was a specific flaw in it (not merely a flaw in the overall policy, which certainly exists here). But the point I wished to emphasize here is the lack of substantive seriousness in this discussion even on the halakhic plane. For some reason, the halakhic arguments advanced to justify this approach are in part exceedingly shaky (and I express myself mildly), yet they are repeatedly cited as the halakhic basis for the lenient approach without any note or challenge to their validity. Rabbi Dichovsky, an important judge who also served on the High Rabbinical Court of the rabbinate, and who is known as holding a more lenient approach in the matters before us,[11] brings in a ruling he wrote on this topic two proofs that a conversion should not be annulled retroactively.[12] These arguments have become entrenched as the basis of an approach that rejects the possibility of retroactively annulling conversions, although in my humble opinion, with all due respect to Rabbi Dichovsky, there is nothing to them.
Rabbi Dichovsky argues that regarding conversion, unexpressed intentions have no legal standing—even if there is clear proof that this was indeed what lay in the convert's heart. One proof he brings is from the passage in Sanhedrin 37, where the Talmud rules that in capital cases one cannot accept circumstantial evidence, however clear it may be, but only witnesses who rely on direct sight. There, indeed, the evidence is unequivocal circumstantial evidence (Reuven, sword in hand, ran after Shimon and entered a ruin after him. Reuven emerges from the ruin with blood dripping from the sword, and Shimon is found murdered inside), and the only deficiency is that no witnesses were present who actually saw the murder.
But the connection to our case is very puzzling. With respect to capital law, Maimonides already elaborated at length (see the opening of chapter 20 of the Laws of Sanhedrin) that circumstantial evidence is inadmissible. This is a special requirement in capital cases, apparently derived from verses ("on the testimony of two witnesses"). What place is there to derive from this to the law of unexpressed intentions? Shall we learn that if a person performs an act and there is a clear presumption (that is, what is in his heart and in every person's heart) regarding what is in his heart, we will ignore it? This would contradict all the rulings of the halakhic decisors mentioned above (see Shulchan Arukh, Choshen Mishpat 207:4). If there were a special source showing that in the laws of conversion there is such a rule, that would be different; but so far as I know there is no such source. Even in the laws of testimony, with respect to monetary matters, the situation is not like this. Circumstantial evidence is effective as a matter of basic law (see Maimonides, opening of chapter 24 of the Laws of Sanhedrin). If so, why should one derive the law of conversion from capital cases rather than from monetary cases? Shall we say that the conversion process must be conducted before twenty-three ordained judges, as in capital cases?
The second proof (or argument) brought by Rabbi Dichovsky is that there are situations in Jewish law in which a presumption creates reality, and therefore in conversion too, when the presumption instructs us to relate to the convert as a righteous convert, it creates a reality in place of the actual reality. He brings an example from a situation described by the halakhic decisors, in which menstruating women used to walk about in special clothes, and any woman who wore those clothes was presumed impure with menstrual impurity. In such a case, writes Nachmanides (see Tur and Beit Yosef, Yoreh De'ah, section 185), even if she is believed when she says that she did not see blood (and therefore is not impure), she is still obligated to immerse. Rabbi Dichovsky notes that according to the Ben Ish Hai she even recites a blessing over the immersion (even though she knows that she is pure, so that this would seemingly be a blessing in vain). He concludes that the presumption of impurity created by the clothes constitutes a reality of impurity, and argues that the same should apply to conversion.
But the ruling of the Ben Ish Hai is indeed very puzzling, and certainly cannot be brought as proof. To the best of my understanding, we have never found anyone who obligates a person to recite a blessing in a situation where, according to his own view, it is a blessing in vain (especially since the blessing is not indispensable to purity, so the absence of a blessing does not harm the husband or any other party). Even the ruling of Nachmanides, which is far less novel, is by no means simple. If the woman is believed, why obligate her to immerse? But in any event, even if we accept that view, one must distinguish between her credibility with respect to herself and her credibility with respect to the husband and the outside world.
But even if we accept these rulings as clear premises, what has that to do with our case? Does it follow that from now on a presumption is a substitute for reality? If a ritual bath is known to us with certainty to be invalid, should we uphold it on the presumption of validity that it had in the past? With the exception of very unusual cases, presumptions are intended to instruct us how to act in states of doubt, not to replace a reality that is known to us with certainty.
Moreover, where is there any presumption at all in the conversion process we are discussing here? In Nachmanides' time there was a presumption that a woman who walked about in such clothes was impure, and therefore there was an assumption that despite her words she was impure. But with regard to conversion, even if in the time of Maimonides and of the Sages there was a presumption that the convert's intention was for Heaven's sake, in our own time the presumption, if it exists at all, is the opposite. If so, precisely in light of these arguments, even if they had substance, the law ought to be that all conversions are void by force of the presumption that there is no intention here to accept the commandments—a presumption that changes the reality (that is, the act of conversion). The assessment of what lies in the convert's heart is an assessment of reality, not a law given at Sinai, and as such it is entrusted to the judgment of every judge in every generation according to the circumstances.
Conclusion: Is this really only about power struggles?
I wrote above that I do not wish to discuss here the disqualification of Rabbi Druckman and the judges with him, nor the coarse statements of the members of the High Rabbinical Court. There is no doubt that those statements are unworthy, and Rabbi Druckman is certainly a Torah scholar rich in deeds and merit. Still more clearly, it seems to me that he acts according to the best of his judgment, for the sake of the Jewish people and for Heaven's sake, and certainly not out of any interest or malicious intent.
Even so, the picture I have described indicates that despite the good intentions, at the end of the day Jewish law is being turned into a caricature here, in reliance on precedents that have no substance (and I am speaking mainly about conversion from the outset, and less about annulment after the fact). This is presented to the broader public as though there were here a dispute between two evenly balanced sides, and that is very far from the truth. It is hardly surprising that in such a situation pressure and distress arise, generating unworthy statements and responses of this sort.
Many see the "Haredi" criticism[13] as an expression of non-substantive power struggles between the Haredim and Religious Zionism. But that is not correct. There is an ideological struggle here being waged between different sides over an issue that is extraordinarily grave and painful. There is a struggle here, but not against Religious Zionism (a struggle that is itself legitimate, though not at the cost of people's suffering), but rather against some highly problematic fruits that stem from an unreasonable radicalization of its outlook. As noted, to the best of my understanding, most halakhic decisors (including Religious Zionist ones) agree with the position of the High Rabbinical Court on the substantive questions, and therefore they are careful only to protest the injury to Rabbi Druckman's honor and do not speak out on the substantive issues. They may think it appropriate to be lenient in the conversion process for state considerations (sometimes to the point of legal artifice, and perhaps even a "wink"), but they certainly do not intend impossible leniencies of the sort practiced in the conversion courts, and certainly not those proposed by Rabbi Brandes.
The fact—which Rabbi Brandes himself notes—that there is something unprecedented in the statements of those judges seems to me to indicate precisely the opposite of what he infers from it. The correct interpretation is that this outcry is not directed against Religious Zionism, nor is its purpose to diminish the stature of Religious Zionist Torah scholars. I see here an uprising that expresses despair and protest (even if by improper means) against a highly problematic conversion policy, in which a small minority of Torah scholars and judges has arisen and, in the name of responsibility for the Jewish people as a whole—a responsibility over which they supposedly hold a monopoly—has imposed upon all of us a very problematic conversion policy, without troubling to create any genuine broad agreement about it.[14] There is here an almost violent takeover (though certainly with good intentions) of the gate of entry to the Jewish people, and it is no wonder that this arouses harsh reactions.
To the best of my judgment, the results of this policy will be the opposite of what its architects hoped for. I anticipate that it will encourage the separation of conversion policy from naturalization policy in the State of Israel, and in fact the separation of religion and state. Religious Judaism will understand that state considerations will lead it to a complete emptying of Jewish law of its essential content, and it will itself establish non-state conversion systems, which will be friendly to the genuine convert and to Jewish law, though not necessarily to Israeli society as a whole. It is important to understand that part of the system's lack of friendliness today stems from the very fact that it imposes on the "converts" norms that they have no interest in, and therefore they must hide from it and adopt methods of falsehood and deceit that lead to desecration of God's name. Someone who comes to a private conversion system with sincere and genuine intent will enjoy, with respect to him, the same presumption that has always existed regarding converts, and there is no reason he should not receive the friendly treatment he deserves.
Such a lenient conversion policy, and likewise the inflammatory reactions of the members of the High Rabbinical Court, will ultimately lead to the abolition of the Chief Rabbinate of Israel and even to the abolition of the special conversion courts. That is the little light I can manage to see at the end of this dark tunnel.
[1] See Makor Rishon, Shabbat supplement, 24.7.2008. The article was written in response to Solomon Fisher's article ('The Truth of Peace,' Makor Rishon, Shabbat supplement, 10.7.2008), which will be mentioned below.
[2] See Mishnah Bava Metzia 10a, he saw the found object and fell upon it, and the commentators there.
[3] Although in yeshivot some have "investigated" whether the act itself constitutes the acquisition or only expresses an intention, I know of no halakhic position according to which an act without intention is effective in transferring an object. At most, what arises here is the consideration of the rule that unexpressed intentions have no legal standing, which says that the presumption is that what was in a person's heart was what was in his mouth or in his actions.
[4] Responsa Hekhal Yitzhak, Even Ha-Ezer, part 1, section 21, subsection 3.
[5] I do not intend to compare one who does not observe commandments to a criminal. See on this my article 'On Causing a Secular Person to Transgress,' Tzohar, 25, Spring 2006, p. 9.
[6] See my article '"The Third Way" or: On "Religious Zionism" Without a Hyphen,' Tzohar, 22, Tammuz 5765, p. 131.
[7] See my above-mentioned article, 'On Causing a Secular Person to Transgress' (above, note 5), where I argued that commandment observance without belief in the giving of the Torah at Sinai has no religious or halakhic significance at all.
[8] See Nadav Shnerb's article, 'Your People Are My People: The Trap of Israeli Identity in the Conversion Crisis,' Nekuda, 313, Av 5768, which pointed out the absurdity inherent in the very idea of "conversion" to citizenship in the national sense, not necessarily in Judaism. See there at the end of chapter 3.
[9] See my article '"The Third Way"' (above, note 6).
[10] Among these halakhic decisors are Rav Kook, Rabbi Moshe Feinstein, Rabbi Shlomo Zalman Auerbach, and many other decisors who are certainly not regarded as fossilized or lacking state-oriented vision and concern for the Jewish people as a whole. See several sources in Shnerb's above-mentioned article.
[11] Although I do not think he expressed support for Rabbi Druckman's policy. All of his cited remarks deal only with the question of retroactive annulment of conversion.
[12] I heard him present these two proofs (and only them) in a lecture he gave on this topic at a conference at Bar-Ilan University (mentioned in my above-mentioned article in Makor Rishon), and they were quoted again in Solomon Fisher's article (to which I responded there). These arguments seem very puzzling to me, and therefore I asked Torah scholars who were present at that lecture whether I had misunderstood them, and in their opinion as well there is no substance to them.
[13] Incidentally, as I was told, it is simply not factually correct that the judges who participated in the above ruling were all Haredim.
[14] Even if it is difficult to create a general rabbinic consensus, at least there would have been room to create a partial consensus. And certainly that does not justify a forceful takeover. Ridiculous actions such as establishing the "Sanhedrin," which also stem from despair over the functioning of the rabbinic establishment (a despair I too share), are appropriate for small children, not for genuine Torah scholars.
It must be remembered that establishing a Sanhedrin, like conversion policy, is not the concern of a private individual. These are public acts with important implications for all of us, and therefore they must be carried out on the basis of broad general agreement. It cannot be that someone who thinks he knows what must be done, and that all the other leaders are failing to function—even if he is right about that—may act as though the Jewish people as a whole were his private property.