Professor Arye Edrei
University of Tel-Aviv
Louis Jacobs’s main concern in his monumental work, A Tree of Life, was halakhah, ‘Jewish law’, in a changing reality. This lay at the heart of his concerns throughout his life, in his literary, philosophical and theological writings, as well as in his public activity and debates. The subtitle of that book, Diversity, Flexibility and Creativity in Jewish Law, reveals the direction that the author wished to take, and the principle that he viewed as an overarching tenet of halakhah. Jacobs dealt expansively with this idea in his introduction, entitled ‘Halakhah and Aggadah’, in which he presented the aggadah as the theoretical foundation of the halakhah. Jacobs used the term aggadah in its broad sense to represent the world of values and ideas that underpin Judaism, and which the Jewish normative system – halakhah – is designed to put into practice. The halakhah must therefore be developed and interpreted in its light. In the second edition of the book (published in 2000), Jacobs expanded this idea significantly, presenting the fundamental ideological foundation that underpins his literary activity and philosophical worldview. It gives a basis to his arguments regarding the development of the halakhah, and the relationships between halakhah and society, halakhah and reality, and between the normative world of Judaism and its underlying moral, philosophical and theological worlds.
During my stay in Oxford I studied and explored the Jewish laws of conversion – the process of becoming a Jew – in modern times, from the French Revolution to the current heated debates in Israel and the Diaspora. Conversion is one of the most important issues in the Jewish world today, and has created a storm of controversy. This is because of what Jacobs identified as a primary catalyst for halakhic change and development, the connection between halakhah and aggadah – i.e. the ties and affinity between the halakhic position of a certain authority and his ideological positions and policies regarding the nature and future of the Jewish community. In exploring the discourse on conversion, it is very difficult to distinguish the relationship between the halakhic positions of the ruling authority from his ideological world and values. Indeed, one of my main interests in looking at the history of halakhic discussions on conversion in modern times is to identify and characterize the ‘aggadic’ concerns of the ruling authorities, and to illuminate how these penetrate and shape the halakhic discussions and decisions. My work shows that the various polemics on conversion in modern times are not formalistic halakhic debates devoid of dogma, but rather halakhic controversies that flow from policy considerations designed to shape the character of Jewish society in the critical transitional period from the traditional community to the fragmented society of modern
times. I therefore propose a reading of the halakhic sources that harmonizes the associated ideological discourse with contemporary historical and sociological events. All are essential parts of the halakhic debate.
What is unique about the contemporary debate over conversion? From about the middle of the eighteenth century, Jewish communities in Central and Western Europe experienced far-reaching changes in status, compared to the situation in the Middle Ages. External political processes exposed Jews to previously unattainable opportunities for residence, higher education, culture, employment and more. Through the Enlightenment Movement and other internal processes, Jews discovered the modern world – its values, beliefs and the scientific approach it embraced. This brought about a blurring of the previously sharp boundaries between the Jewish community and its surrounding society, and the creation of a new Jewish society that was much less unified than before. This was a complex process that unfolded in a different manner and at a different pace in diverse communities. In the final analysis, the European Jewish community became much less homogeneous than it had been previously, and it now included a broad range of types that differed vis-.-vis their concepts of Jewish identity and their dedication to halakhic observance. It also led to the rise of intellectual and religious movements that consciously sought to implement changes to the Jewish religious tradition and the halakhah. The blurring of the physical separateness of Jews reduced the
cultural gap and the sense of estrangement between Jews and non-Jews, and led to personal interactions that ultimately resulted in intermarriage. The decline of the status of religion and the separation of church and state contributed to this phenomenon, as the responsibility for administering marriages was transferred from the religious realm to the civil authority. Usually, intermarriage led to a break with the Jewish community. Nevertheless, the halakhic literature of the period documents situations in which an intermarried couple wished for a variety of reasons to attach their family to the Jewish community, even after years of marriage and, towards that end, to request the conversion of the non- Jewish spouse. This reality engendered a fascinating halakhic discourse on the subject of conversion that lies at the heart of my research. A formalistic reading of the talmudic sources would lead to the conclusion that such conversions are prohibited because they are not ‘for the sake of Heaven’, but rather for the sake of marriage. Furthermore, in the Middle Ages it was clear that a convert to Judaism was joining a structured and homogeneous community that naturally lifestyle. This was not the case in the modern period, following the split up of the community and the variety of existing lifestyle options that it offered. As such, it could no longer be assumed that conversion would lead to the adoption of a halakhically observant lifestyle within a traditional Orthodox community. On the other hand, the impact of not accepting the convert would be the loss to the Jewish community of the Jewish party in the intermarried family. Thus, the discourse on the laws of conversion cannot be separated from the debate over the ideological question of how to relate to the new Jewish community.
Let us demonstrate this halakhic and ideological controversy through two responsa that I analysed in depth as part of my work, and which serve as the foundation stones of the subsequent discussion. Rabbi Shlomo Kluger (1785– 1869) of Brody in Eastern Galicia was asked the following question at the beginning of the nineteenth century:
There was an episode in which a person’s son was a soldier and intermingled with non-Jews, and he fell in love with a gentile woman and had relations with her several times and then returned with her to his father’s house, and her intent is to convert. They asked him [the rabbi] what to do. In his response, Rabbi Kluger raised several innovative arguments. The first is that in terms of modern reality one cannot say that a person converts for the ‘sake of marriage’ in the talmudic sense, since he already has a marital relationship with her. The second argument is that in this context, we can view the very desire to convert as sufficient positive motivation:
For if he wanted to, he could convert from Judaism and remain in the locale of the gentile woman. Who forced him to come to his father’s house? … But since, even though he could convert, he wants only to be a Jew, and for her to convert, this proves that their intent is for the sake of Heaven.
The third argument is: ‘And one should not be stringent in such a situation,when there is a concern that he will fall into evil ways’. Rabbi Kluger argues that since intermarriage is legal within civil law, we cannot identify any added value that is inherently gained by conversion. Therefore, we cannot view this conversion as one motivated by ulterior motives, and it must be viewed as ‘for the sake of Heaven’. In a reality in which every person has the option to choose which community he wishes to belong to, the very choice to become part of the Jewish community in itself defines the conversion ipso facto as a conversion ‘for the sake of Heaven’. Rabbi Kluger distinguished between the realities in his own and in talmudic times, arguing that the talmudic concept of conversion for the sake of marriage implies that the conversion is desired because without it, the convert could not live with his/her Jewish partner. In the modern reality, however, the opposite is true – conversion after the couple is already married is paradoxically the decisive proof that the conversion is genuinely motivated. Nevertheless, it seems that this is not Rabbi Kluger’s primary innovation. He knew that the Jewish partner was already living with a gentile, and that the alternative facing his family and thecommunity was conversion to Christianity. He clearly realized that the issues of faith and the choice of a halakhically observant lifestyle were not motivating the couple. He therefore suggested that we view their initial impetus and desire to become part of the Jewish community as the essence. Furthermore, instead of viewing the threat of conversion to Christianity as a proof of the insincerityof the conversion, Rabbi Kluger chose to use it as a consideration for leniency – in order to save the Jewish partner from conversion to Christianity.
A completely different approach was adopted by Rabbi Yitzhak Shmelkes, one of the most important halakhic authorities of that generation. In 1876 he dealt with a similar case, and concluded that:
If he converts, but in his heart he does not intend to keep the commandments … then he is not a convert at all, and it is not relevant to say that thoughts of the heart are not substantive. … Such a person is not a convert, even though she said that she accepted everything, as they taught her to lie. Rabbi Shmelkes chose to emphasize the fact that the candidate for conversion would not fulfill the mitzvot, in contrast to Rabbi Kluger’s focus on her free choice to become part of the Jewish community. The argument of Rabbi Shmelkes was that in the past, one who converted and attached himself to the Jewish community, even if motivated initially by ulterior motives, would ultimately adopt the behavioural norms of the community, because there was no Jewish existence outside of the context of the traditional community. This is not the case in the modern reality, and there is therefore no credibility to the convert’s declaration that she accepts the commandments, since they taught her to lie. In contrast, Rabbi Kluger’s argument is based on the fact that in the past one had to convert in order to marry a Jew, which is not the case in the modern reality. These two halakhic authorities did not argue about the modern reality. Rather, they argued about which part of that reality would be the determining factor in the halakhic discourse. The choice of each of these authorities to grasp a different element of the reality led them to diametrically opposite rulings. The important question is why each authority chose the path that he did.
I believe that the particular choice of each authority did not flow from a pure study of the halakhic sources, but rather from a consciously adopted halakhic policy that was part of a larger strategy for dealing with the crises and complex processes that the community experienced in the transition to the modern period.
Rabbi Kluger was aware of the winds of change and the weakening of religious discipline, but did not feel that this could lead to the dissolution or fragmentation of the community. He therefore strove to maintain the wholeness of the community. Toward that end he accepted this candidate for conversion in order to keep the Jewish spouse within the Jewish community. In contrast, Rabbi Shmelkes preferred the classical Orthodox reaction, which can countenance the dissolution of the community as long as it serves to preserve a smaller pure community that is faithful and traditional. Rabbi Shmelkes saw the dire face of the new reality, and was not prepared to accept an intermarried family, knowing full well that they would not join the Torah-observant sector, and was prepared to pay the price of losing the Jewish spouse in the process.
The controversy between Rabbi Kluger and Rabbi Shmelkes was a fundamental ideological one that engulfed the generation as a whole. The main issue was how to relate to Jews who have cast off the yoke of halakhah. As is well known, the Hatam Sofer, who was active in Hungary at the same time, gave up hope for the wholeness of the community, and struggled to separate and isolate. The concern that ‘he will fall into evil ways’, a classical halakhic concern that mandates battling for each and every Jewish soul, lost its validity in the eyes of the Hatam Sofer. In his opinion, a Jew who married a gentile had already ‘fallen into evil ways’, so there is no longer a reason to struggle on his behalf. Moreover, in his eyes, the damage caused by a halakhic concession on behalf of such a person is much greater than its benefit. Rabbi Samson Raphael Hirsch for similar reasons wanted to separate Orthodox from non-Orthodox communities in Germany.
Many others opposed this approach, however, and sought an umbrella organization for the community as a whole. The controversy over conversion is merely a reflection of this larger ideological conflict. The ruling of each halakhic authority on conversion was associated with the fundamental worldview of a specific camp regarding the character of the contemporary Jewish community – the groups being divided over de facto recognition of Jewish identity as attachment to the community versus recognition of Jewish identity based solely on Torah observance, or over fortification and seclusion on one side versus an attempt at inclusiveness and the preservation of communal wholeness on the other. It was thus the ideological reaction to Reform Judaism and modernity that ultimately determined the halakhic position of these rabbis on the issue of conversion, although it should be added that some of the halakhic authorities hid their ideological considerations behind formalistic halakhic arguments and interpretations.
Another part of my work deals with the halakhic challenge regarding conversion posed by the rise of nationalism in general and Jewish nationalism in particular, and even more specifically, by the establishment of the State of Israel. The conversion debate in the State of Israel has sharpened the concepts of religion and nationalism, and the distinction between them, and has acutely raised the question of whether the basis of conversion is religious or national. It seems likely that the rulings of the halakhic authorities on conversion in the State of Israel reflect a similar connection between halakhah and ideology – in other words that their rulings are directly connected to their positions regarding Jewish nationalism and the Zionist movement – and are another layer in the controversy of the previous century. The essential question is the same, but it is now presented much more sharply, as the Zionist idea offers a nationalist alternative to religious Jewish identity. In the nineteenth century the halakhic authorities asked themselves if one could view a desire to attach oneself to the community out of free choice as an acceptance of the yoke of Judaism. In Israel during the past few decades, the halakhic authorities have asked themselves if one can view immigration to Israel as a conscious and willing desire to connect to the Jewish people and the Jewish state and to identify with them. As in the nineteenth-century debate, the arguments of the halakhic authorities line up in accordance with their ideological stances vis-.-vis support for the Zionist idea and the State of Israel.