Let No Ger Spend the Night Outdoors
So giyyoor being a misvah giyyoor was sacrosanct. Or at least so
early last year news broke of men and women who had converted to Judaism under
the auspices of respected Israeli rabbis and were now being declared gentiles.
The initial perplexity that greeted the news turned into disbelief as reports
began to speak of conversions anulled in the hundreds and thousands by
we managed to procure a copy of that court’s decision that allegedly set in
motion the overturning of conversions. The following is the picture as it
emerges from the pages of that document.
The court informs the couple that it is impossible to get divorced unless one
was first married. Jewish law, it explains, does not recognize marriage between
a Jew and a gentile. And because the woman is a gentile, the court does not
look upon them as husband and wife. Having lived in the belief that she was
Jewish ever since her conversion many years prior, the woman is flabbergasted. She
appeals to the supreme rabbinic court in
august body issues its reasoned pesaq
in a 53 page document that essentially upholds the
Din’s Pesaq of February 2008 (hereafter BDP) is problematic in at least three
areas. First, it makes assertions that are inconsistent with the facts. For
example, it states that all the posqeem
(=halakhic decisors) throughout the generations have ruled conversion
retroactively invalid if the convert fails to live up to his/her commitments.
When we consult the posqeem - whether
it be Rambam,
Now in order to appreciate the
Hagahot Mordecai’s position we need to recall the talmudic passage from which
he claims to derive the idea of retroactively invalid giyyoor. The Mishnah at Yebamoth 24b reads:
A man who
was alleged to have had relations with ... a non-Jewish woman and she later
converted he shall not marry [the woman]. If, however, he married her they
shall not be separated. If a man was alleged to have had relations with a
married woman and she was subsequently divorced, then even if they went ahead
and married they shall be separated.
The convert of this Mishnah is one whose motives for
conversion cannot help but raise doubts. Nevertheless, in ruling that “if
married they shall not be separated”, the Mishnah implies the conversion to be
valid. But can this implication be correct when it would seem to contradict
another tannaic source? That is what the Gemara wants to know, and it begins by
citing the counter source.
have learnt in a Baraitha: Whether it is a man who converts for the sake of a
woman or a woman for the sake of a man; whether the person converts for the
sake of the royal table or to be employed by Solomon - none of these are
converts according to R. Nehemiah. For R. Nehemiah would say: those who convert
for fear of lions; those who convert on the prompting of a dream; those who
converted in the days of Mordecai and Esther - none of these are converts ...
Inasmuch as he invalidates conversions undertaken for
less than the purest motives, R. Nehemiah is irreconcilable with our Mishnah -
or rather with the inference the Gemara had drawn from it. So ought that
initial inference to be rejected? No, says the Gemara, because apropos of this
very issue R. Yitzhak bar Shemuel bar Marta transmitted in the name of Rav that
the law is KE-DIBRE HA-OMER (=according to the one who says) ‘They
are all converts’ (Yeb. ibid.).
licence not granted other amoraim. However, it is not on the strength of his
quasi-tannaic status that Rav rules here at Yeb. 24b, but rather does he side
with the anonymous tanna who disagreed with R. Nehemiah and “says ‘They are all
converts’”. Hence the Gemara’s original inference is vindicated; for though it
places our Mishnah at odds with R. Nehemiah, it keeps it in line with the tanna
cited and seconded by Rav. And it is the decision of Rav (which the Gemara
identifies as consistent with the Mishnah) that post talmudic halakhists follow
almost to a man. But as noted earlier, there is a dissenter: Hagahot Mordecai.
Talmud rules there [at Yeb. 24b] that they are all full proselytes, we could
say that it refers only to cases where we see them rectifying their ways even
if their initial motive was marriage etc. ...
prefer this interpretation to the alternative which would posit an amora [i.e.
Rav] ruling not in accordance with the baraitha of R. Nehemiah. Moreover, the
undisputed baraitha [cited Yeb. ibid.] that says no converts were accepted in
the days of David and Solomon [for fear of ulterior motives] supports us.
What I have written here is my own opinion, not what I received from my
teachers; and my understanding should not be relied upon.
to wonder whether Hagahot Mordecai had the words KE-DIBRE HA-OMER in
his copy of the Talmud. Be that as may, there is nothing anomalous about a
halakhist relying upon a variant reading of the Talmud. Similarly, halakhists
will occasionally argue for following a da‘at
yaheed (=minority opinion). However, what is so disconcerting about BDP is
its insistence that the exceptional view of Hagahot Mordecai is shared by all posqeem throughout the generations.
second bone we have to pick with BDP is over its ad hominem slurs. Stooping to the level of personal attacks is
usually a sign of desperation. How else to explain its ploy of declaring
venerable members of named Israeli judiciaries to be resha‘eem? And classifying people resha‘eem is tantamount to impugning their credentials to act as
witnesses - and by analogy also as judges.
The prohibition to accept the
testimony of a rasha‘ is derived from
Scripture, as explained by the Talmud and conveniently codified by Rambam:
“Resha‘eem [=unjust or guilty persons; felons] are disqualified from giving testimony
as it says [Exod 23:1] ‘You shall not make common cause with a rasha‘ to be a witness of hamas. Tradition understands this
scripture to be saying ‘Do not let a rasha‘
be a witness’.” (Yad, Edut 10:1)
Proclaiming a dayyan (= judge of a rabbinic court;
plural: dayyaneem) a rasha‘ is a
grave matter and one would expect to learn which court of law convicted him and
on what count. Instead BDP arrogates to itself the authority of ruling fellow
dayyaneem resha‘eem without even hearing
the men’s defence. If that were not egregious enough, the primary charge it
cites against the dayyaneem rests on the following circular reasoning.
Conversion requires a beth din (see Yeb.46b). Since they are resha‘eem, their court is no court, and
consequently the people they convert remain gentiles. The Torah pronounces a
curse on anyone who leads a blind person astray (Deut 27:18 cf. Lev ). In making the people they convert
believe themselves to have become Jews when in fact they are still gentiles,
they are guilty of the sin of leading the blind astray.
Hence such dayyaneem fall into
the category of resha‘eem.
charges bandied about by BDP include: 1) forgery, 2) heresy and 3) brazenly
disparaging Torah. The forgery charge alleges that the rasha‘ judge signed conversion certificates presided over by
dayyaneem other than himself. Now these types of certificates begin with the
formulaic opening be-mothab telatha ka-hada (= the three of us sat in judgment etc.) - because it is
the same three judges who form the converting beth din that also go on to sign
the certificate. Needless to say, a judge who did not personally sit on the
court cannot lawfully put his name to such a document. But that, alleges BDP,
is precisely what the ‘delinquent’ dayyan went and did. If true, nobody would
dispute the impropriety of such behavior. However, the Talmud lays down a
principle sheluho shel adam ke-motho.
course misvot she-begufo i.e. duties
that demand personal involvement cannot be deputized; and signing a document
that claims its signatories were party to the transaction described in that
document is surely such a duty. Yet it is conceivable that a senior judge
might, albeit mistakenly, think of his trusted juniors as emissaries.
Furthermore, unlike a bill of divorce or even a marriage contract, a giyyoor certificate has no halakhic
function whatsoever. It is granted merely to serve the convert as ready proof
in the future when facing bureaucracies and the like. All in all then, the
forgery indictment seems a stretch.
heresy charge (levelled originally by the
is even more baffling. The actual term used is epiqoros - which in popular parlance is generic for heretic. The
Talmud, however, defines the epithet more narrowly. The tenth chapter of
reprobates who forfeit their share in the world to come. One of them is the epiqoros. And it is in the course of
expounding the Mishnah that the Gemara records the following definitions.
Rav and R.
Haninah both say he [the epiqoros] is
somebody who insults a Torah scholar. R. Yohanan and R. Yehoshua b. Levi say he
is somebody who insults his fellow in the presence of a Torah scholar. Now
those who classify the epiqoros as
somebody who insults his fellow in the presence of a Torah scholar, the one who
insults the scholar himself they classify as megalleh paneem ba-torah shelo ka-halakhah (= a brazen disparager
of Torah). But for those who define epiqoros
as one who insults the scholar himself, what kind of person is the megalleh paneem ba-torah? He is somebody
like Manasseh son of Hezekiah
Since BDP does not elaborate, one cannot be sure which
definition of epiqoros it has in mind. On reflection, though, it is
probably the vernacular meaning since it would be rich beyond belief for BDP to
accuse another of disparaging a Torah scholar! More substantively, what is the
point of BDP branding the dayyan of its disfavor an epiqoros?
Talmud (San. 27a) records a dispute between Abayye and Rava as to whether or
not hamas modifies rasha‘. Rava holds that the word hamas modifies rasha‘; hence anti-social behavior is
prerequisite for witness disqualification. For Abayye, on the other hand, even
non-hamas wrongdoing (e.g. ritual delinquency that is a
matter between a person and God), is sufficient to lose a witness his credibility.
Thus Abbaye would disqualify not only a mumar
but also a mumar le-hakh‘ees. But even according to
Abbaye a person is disqualified to testify by virtue of wrong action. Yes;
wrong action, not unorthodox thought. Yet Rambam, writes:
the Sages had no need to name in their list of people unfit to give
evidence because they listed only Jewish miscreants. But such rebellious
infidels are worse than idolaters...” (Yad
Nevertheless, by means of an ingenious a
fortiori argument of Rambam’s own devising, heresy is made a crime for
courts to discover and to act upon - in this case invalidating the testimony of
such that are found to be heretics.
dragging in heretics Rambam breaks new ground. Magistrates on the watch for
heresy are a far cry from the Talmud’s standards of objectivity, and, what is
more, seem dangerously close to the murky realm of inquisitions and thought
police. So the question is, Why would Rambam have introduced this drastic
innovation? We know it was not conformity to the Talmud that impelled him,
because the Talmud never mentions heretics in connection with testimony.
Moreover, as we saw, Rambam makes no secret of the fact that heretics transpired
as a result of his own extrapolation. Something other than the Talmud, then,
must have impelled Rambam to bring up
heretics. In any event, once epiqorseen
are blacklisted and Rambam’s ruling is adopted by later codes, declaring
someone an epiqoros immediately
impugns his eligibility to testify or to adjudicate. Hence, in levelling its
heresy charge, BDP aims to undermine the authority of its targeted beth din.
related aspersion megalleh paneem
ba-torah shelo ka-halakhah (again, borrowed and endorsed by BDP p.4) is meant to inculpate the dayyan
in question with insulting scholars (rather than imitating Manasseh - see San.
99b cited above).
ask ‘which scholars? What insult?’ BDP has its answer pat. We have already met
BDP’s assertion that ‘all the posqeem
throughout the generations have ruled conversion retroactively invalid if the
convert fails to live up to his/her commitments’. That being BDP’s premise, it
follows as night follows day, that to flout such a unanimous ruling of
halakhists down the ages is nothing short of brazen effrontery.
from those it purported to convert. Now qabbalat misvot is an integral component of giyyoor and in the opinion of many posqeem it is also a sine qua
non. That any beth din could skip
qabbalat misvot seems incredible. Yet that is what happened according to
the allegation repeated over and over in BDP.
we supposed to make of this document and its extraordinary contentions?
Manifestly the 53 page screed is animated by more than sober halakhic logic;
dare one say by something akin to polemical zeal? But whereas the written word
has a life of its own and must be judged on its merits, people should always be
given the benefit of the doubt. Indeed, because of the imperative to judge men
there is no denying the attempt in certain quarters to fuse the ideas of
nationality and divinity in a manner redolent of the old Baalism. What follows
is an example of this phenomenon.
Rambam’s words we learn that candidates for conversion must express their wish
to join, simultaneously, both the people of
Torah. ‘Entering the covenant’ [in Rambam’s formulation, Issure Bi‘ah 13:4] refers to the congregation of
consists of children of the covenant. ‘Taking shelter under the Shekhinah’s
wings’ [Rambam’s formulation ibid.] means living as a member of the Jewish
religion ... The requirement to express this twofold identification with the
Jewish nation as well as with its God and Torah, was learnt by our sages of
blessed memory from Ruth the Moabitess. When seeking to impress her
mother-in-law Naomi of her [Ruth’s] spiritual and practical preparedness to
cast her lot with Judaism, Ruth speaks the words “... Your people is my people
and your God is my God”. The equal emphasis on the people and its God as the
objects of [the convert’s] adoptive identity clearly demonstrates that the
religion and the nationhood are a single indivisible entity in Judaism ...
Clearly, then, already in such an early era [as Ruth’s], conversion was
conceived of as a procedure simultaneously both religious and national, whose
elements are inseperable.” (Mi Hu Yehudi?
by Avner Shaki, vol. 2 Jerusalem 1978 p. 343).
Shaki’s enunciation of the nation-divinity amalgam would
not merit citation were it not that he invokes Scripture, Sages and Maimonides
in support. But seeing that he does, it behooves us to examine these sources’
alleged espousal of ‘Shakian dualism’. Ruth’s “Your people” we shall consider
shortly. As for the unsubstantiated claim that the sages deduced from Ruth “a
twofold identification with the Jewish nation as well as with its God and
Torah” we are unable to comment upon, since no source is indicated.
certainly mentions covenant: “Similarly throughout the generations, when a
non-Jew wishes to enter the covenant and take shelter under the Shekhinah’s
wings...”. The only question is whether Rambam was using the phrase ‘entering
the covenant’ as shorthand for joining the polity of the children of the
covenant. Rambam’s classic commentators refer us to a baraitha in Keritot that
mandates all subsequent conversions to reenact, as it were, the conversion
leading up to the Sinai/Horeb covenant.
says as with your forefathers so with [proselytes] throughout your generations.
Just as your forefathers did not enter into the [Sinaitic] covenant except
through circumcision, immersion and propitiation by means of blood [sacrifice]
neither shall they enter the covenant except through circumcision, immersion
and propitiation by means of blood [sacrifice] (Ker. 9a).
covenant Rambam alludes to is the very one
under discussion in Keritot; which, in turn, is the Torah’s covenant mediated
by Moses between God and the people who were to become the covenantal
community. In other words, the pledge made at Sinai as understood by tradition
was to God rather than to a group of human beings. Hence, the proselyte’s
entering into the covenant, modelled on the Sinai prototype, is about the
neophyte’s commitment to God rather than to a group that Shaki calls ‘children
of the covenant’.
to say, among Jews who take their faith seriously, equating a person’s
political choices with his/her choice to ‘enter under the shekhinah’s wings’
must seem to border on the sacriligious. Without belittling one iota tribal and
national allegiances, they are surely of a different order from the plighting
of one’s troth to Hashem. Moreover, the Talmud categorically forbids
associating the Name of Heaven with anything else.
Hence the extreme unease that
attempts such as Shaki’s to politicize giyyoor
engender in the bosom of many a Torah-oriented Jew who ponders Scriptures
such as 2Kgs 17:26-28.
reported to the king of Assyria saying ‘The peoples that you deported and settled
in the cities of Samaria do not know the law of the god of the land and he sent
among them lions that are devouring them because they know not the law of the
god of the land’. The king of
should be sent back in order to teach them the law of the god of the land. So
one of the priests who had been exiled from
Two irreconcilable voices speak to us in these verses.
The first is the voice of paganism whose gods are territorial, each presiding
over his/her national borders. Then in verse 28 we hear the Torah’s voice, that
instead of the idolatrous ‘god of the land’, speaks of fearing Hashem. A
closely related pagan concept to the territorial, is the national god that is
essentially an apotheosis of a people and its collective identity and
aspirations. Naomi recognizes the nation-god nexus of Moabite religion when she
says to Ruth ‘Behold your sister-in-law has gone back to her people and to her
gods’ (Ruth ). Perhaps Ruth was projecting some such Moabite
territorial theology onto Hashem when she responded ‘Your people shall be my
people and your God my God’ (v. 16).
if one shares BDP’s dismay at the way politics has come to invade and dilute giyyoor (and other aspects of religion),
it is quite another proposition to condone the methodology it employs to
counter the lamentable trend (assuming such trends to be BDP’s driving gripe).
Besides, even a cause worthy in the abstract, has to yield if it leads to real
people suffering. This was the way of our Sages who opened a back-door for gereem gerureem when conventional giyyoor was inapplicable.
even offered a halfway conversion whereby a person attained the status of ger toshav (as distinct from ger sedeq). Ger toshav is not a mere synonym for Noahide. No. The ger toshav formally forswore idolatry
and accepted faith in Hashem and belief in revelation.
Withal, never did the Sages
say let idolaters stew in their idolatry. Today, when the ger toshav option has fallen into desuetude, extra vigilance is called for. Not so much in order to catch and
keep out ‘rotten apples’ (though that too), but to ensure that no seeker after
Hashem is left out in the cold.
The word ‘mostly’ is used
advisedly because some - notably priests whose status was inherited - seem to
have conceived of Jewishness as also being hereditary. The Talmud suggests that
there were priests who looked askance upon both converts and conversion (see
Mihnah Rosh Hash. 1:7; Yom. 71b et al).
The author of the glosses known
as Hagahot Mordecai remains elusive. R. Hayim Yoseph Daveed Azulai (HYDA d.1806) surmizes
that he lived a century or so after R. Mordecai b. Hillel ha-Kohen (d. 1298)
whose work he glossates.
These words of the Hagahot imply
that if the convert’s subsequent behavior does not exhibit “rectitude of ways”,
then the conversion is retroactively null and void.
Since it does not address the be-de‘abad (=post factum) situation, it
is unclear how the David-Solomon baraitha supports R. Nehemia. On the contrary,
had the David-Solomon baraitha emanated from the
it would have been worded. For at Yeb. 76a-b we learn the reason converts were
not accepted in the halcyon days of David and his son “because their motive is
likely to have been the royal table”. And conversion undertaken with an eye on
the royal board is invalidated by R. Nehemia even be-de‘abad : “whether the person converts for the sake of the royal
table or to be employed by Solomon - none of these are converts”.
More than a century ago when R.
Yitzhak Schmelkes chose to follow the Hagahot Mordecai he did not dissimulate
his own predilection for the tentative proposal of Hagahot Mordecai. Rather did
R. Schmelkes opt for full disclosure: “Although he [Hagahot Mordecai] wrote
that his understanding was not to be relied on, we rely upon his understanding”
(Beth Yitzhak vol. Yore De‘ah responsum
Actually a judge’s moral
qualifications are spelled out in the Torah (see Exod 18:21; Deut 1:13, 16:18).
Nevertheless for a ruling to be anulled on grounds of the judge’s unfitness,
there would have to be evidence of resha‘
Literally ‘one’s proxy is like
oneself’. As a legal concept it means that a person can appoint a shaliah (=proxy) to deputize on his/her
behalf in carrying out non-personal duties. The Talmud provides numerous
examples such as priests offering sacrifices on behalf of the laity; tithing;
effecting betrothal by conveying the medium of betrothal from a man to his
destined bride; most familiar, perhaps, is the shaliah sibboor or precentor who recites the prayers on behalf of
the congregation (see Qid. 41b-42a et al.).
Described earlier on San. 99b as a
man who would use his sermons to mock Torah: Did Moses have nothing better to
write than ‘Lotan’s sister was Timna’ (Gen 36:22)? or ‘Timna was a concubine to
Eliphaz’ (Gen 36:12)? or ‘Reuben went in harvest time and found mandrakes’ (Gen
Hamas is often translated violence. Rabbinic sources render some
occurrences of hamas ‘robbery’ or
‘armed robbery’ (see Targums and Rashi to Gen 6:13). At San. 27a the rasha‘ of hamas is defined as someone who in the act of transgressing misvot
causes material harm also to fellow humans - which definition embraces also
venal folks who will do anything for lucre.
Literally ‘a renegade out of
expediency [or for pleasure]’ e.g. a person who eats non-kosher food because it
is cheaper than kosher (see Rashi San. 27a s.v. h”g mumar okhel nevelot le-te’avon).
In many printed editions the text
continues “and mumars”. Others omit mumars (see Lehem Mishneh ad loc.). The editio
princeps (Rome 1480) instead of mumars has “sectarians (minin) and apostates (meshumadin).
Or at least treacherous speech.
While some reckon speech as ‘action’, according to all tannaim wrong thought is
outside the purview of the courts (see San. 65a-b et al).
Especially when we recall Rambam’s
own definitions of epiqorseen as
persons guilty not of wrong speech but of heterodox opinions (even if they
happen to verbalize those opinions). “There are three that are called epiqorseen: 1) the person who denies
prophecy and the possibility of knowledge reaching the human heart from the
Creator; 2) one who denies the prophecy of Moses our teacher; 3) one who says
the Creator has no knowledge of the affairs of man. Each of these is an epiqoros” (Yad, Teshubah 3:8 and see Kesef Mishneh’s comment ad loc.).
Both the long form megalleh paneem ba-torah shelo ka-halakhah and
the short megalleh paneem ba-torah
occur at San. 99b and are used there interchangeably, as we saw. At Avot 3:11
most MSS have the short form whereas printed editions typically the long.
Incidentally, the dispute over the definition of megalleh paneem seems not to have been resolved; hardly surprising
seeing that there are no ramifications for earthly bate din. Thus Rashi
explains the megalleh paneem of Avot
with reference to Manasseh, while Rambam identifies the megalleh as one who brazenly and ostentatiously defies Torah.
Literally: acceptance of misvot.
The requirement for the prospective ger to
express his/her acceptance after being apprised of the liabilities as well as
the privileges inherent in Judaism is laid down in the baraitha.“They acquaint
him with some of the easier misvot and some of the heavier misvot; they
acquaint him with the sin of [neglecting] to leave behind for the poor fallen
or forgotten sheaves or the ‘corner’ and of [neglecting] to give the tithe of
the poor. Furthermore... they say to him ‘hitherto if you ate suet you were not
liable for kareth; if you desecrated
the Sabbath you were not liable for seqilah
but henceforth you will be liable’... And just as they acquaint him with the
punishments for [breaking] misvot similarly do they acquaint him with their
[the misvot’s] rewards. They say to him ‘Know that the world-to-come is
reserved for the righteous, but Israel at present is unable to receive (le-qabbel) either great good or great
travail’. They do not burden him with more [words] or with stringencies. If he ACCEPTS, he is circumcised forthwith...” (Yeb.
“The woman bringing the appeal did
not accept observance of misvot” (p.1); “qabbalat misvot did not occur in the
case of the appellant” (p.3); “an additional transgression is their declaring a
non-Jew who did not accept to observe the misvot of Hashem’s Torah... to be a
Jew” (p.7) etc.
E.g. “The conversion of [a
certain] deaf-mute will not bring her to a state of misvah observance... The
only possible consequence of the conversion would be a social one - something
that neither constitutes conversion nor bestows any zekhut (=spiritual advantage)...” ( p.19); “There is certainly no
misvah upon a beth din or any other Israelite to make efforts to bring non-Jews
into the Israelite fold [sic] - a
fortiori when the person’s only attachment will be of a national kind and
not an attachment to the God of Israel and the Torah of Israel.” (p.20);
“Despite what was said, national or social goals must not be recognized ...
they see themselves belonging to the Jewish people only in the national-social
sense without any inward religious connection ...” (p.21) etc.
If anything, the Talmud would seem
to invest Ruth’s ostensibly national ‘Your people' clause with religious
significance. “She [Naomi] said to her ...‘We have 613 commandments’. She
[Ruth] replied ‘Your people is my people...’” (Yeb. 47b).
Rabbinic sources typically
consider the Hebrews to have had the status of Noahides prior to the giving of
the Torah (see, for example, Rashi at San. 82a “It was prior to Sinai that
Moses had married Jethro’s daughter, all at that time having the status of
Noahides. When the Torah was given they all, she [Jethro’s daughter] as well as
proselytes of the mixed multitude included, entered into full misvah-hood”).
Boaz, while applauding both,
separates her commitment to God (Ruth 2:12) from her national and familial
loyalties (v. 11). Moreover, the distinctive phrase la-hasot tahat kenafaim (taking refuge or shelter under wings) Scripture uses exclusively of the
relationship between an individual and Hashem (cf. Ps 36:8, 57:2, 91:4).
“The person who accepts them [the
seven misvot] is called a ger toshav;
but the acceptance must be solemnized in the presence of three haberim [that constitute a beth din].
Whoever accepts the seven misvot and is careful to keep them behold he is of
the pious among the nations and has a share in the world-to-come. That is
provided he accepts them and does them because Hashem commanded them in the
Torah...” (Yad, Melakim 8:10-11; cf. Issure Bi‘ah 14:7).