Rabbi Schertz received his semicha from Yeshiva University in 1969. He also received masters in Jewish Philosophy from YU’s Bernard Revel Graduate School. He has a second masters in the History of Ideas from New York University, and a PhD from New York University in the History of Western Thought. He taught Classics in Pennsylvania State University and Philosophy at Regis College in Denver, Colorado. Rabbi Schertz served as the Rabbi of Kesher Israel Congregation in Harrisburg, Pennsylvania for over 25 years and is currently retired and living in Harrisburg.
INTRODUCTION
In the traditional reading of the Torah, the term “ger” is taken to mean a stranger; that is, a non-Jew who lives within the Jewish community. It is the Rabbinic tradition from antiquity to the present that defined ger as a convert. It is thus implied by the Rabbis that the process of conversion, known as “gerut” was an acceptable process which was sanctioned by the Torah itself.
The Torah, however, never clearly discusses the nature of the process which enables a non-Jew to become a Jew. (It should be noted that the Torah similarly does not define the underlying criteria for the definition of Jew. It is the Rabbinic tradition that defines that issue. ) The Rabbis filled this void by establishing three principles which were required of the prospective convert. They were: 1. Acceptance of the commandments of the Torah; 2. Total immersion in a body of water called a mikvah; and 3. Circumcision, in the case of males.
The most important issue to my mind, that of the sincerity and intent of the prospective convert, however, was not clearly defined and is stated in contradictory terms in many sections of the Rabbinic tradition. How was sincerity to be gauged, and how much did it really matter? Are there any absolute standards for determining a convert’s sincerity which apply universally? That issue is still today the most troubling aspect of the conversion process. It seems that every rabbi or court establishes its own particular standards which differ markedly from other rabbinic venues. The amount of knowledge of Judaism which the convert is required to master differs from rabbi to rabbi. The amount of time that is necessary to conclude a conversion also differs greatly and is at the discretion of each rabbi and each court.
It is my intention to demonstrate that this wide latitude and, indeed, the confusion which it causes, is directly reflected in the rabbinic sources upon which the whole process of conversion is based.
THE POSSIBILITY OF CONVERSION
The Biblical tradition, as well as Western Thought, clearly demonstrates that the goal of all living things is to maintain their existence. Perseverance at all costs, whether individually or collectively, is the Raison d’ Etre of such beings. In the animal world the need to continue is expressed in the transmission of genes to following generations. Human beings have the additional need to transmit what is selectively called tradition or culture. No people has fought for its continued existence more than the Jewish people.
Historically there is a reciprocal relationship between Judaism, [both culture and religion] and the Jewish people. Judaism was the culturally unifying factor which both identified and defined the people, but it was the physical existence of the Jewish people which enabled the tradition to be transmitted. The concept of conversion was critical in this relationship. Thus, one who was not born a member of the people could, by adopting their religion and tradition, become transformed into blood kinship and would be able to transmit that tradition to a new generation of Jews stemming from him.
In an age when conversion to another religion is commonplace, we fail to appreciate the radical nature of this concept. In the ancient world it was primarily birth which defined identity and conferred status. A Greek could no more become an Egyptian than a cow could become a horse. Religion, culture, history and peoplehood were so deeply interrelated that it was difficult to understand how change in identity could be possible. This was especially true of Judaism where concept of blood relationship seemed so relevant in every aspect of life. What then is the basis for the possibility of conversion to Judaism?
The foundation upon which conversion to Judaism was based was two fold : A. It expressed the desire of God as revealed in the Torah; and B. It replicated the process which established Jewish identity.
God stated his acceptance of converts to Judaism directly in the Torah. “As to the congregation there shall be one Law both to you and the GER [stranger – this is normally understood as convert] who dwells with you, one Law throughout all your generations.” ( Numbers 15:15)
The Rabbis elaborated and vastly expanded the understanding of this verse. God’s intent was to maintain the possibility of conversion to Judaism for all time. Conversion was such an integral aspect of Jewish life and law that it would be valid even when, due to historical conditions, the process would have to be substantially modified.
We see this demonstrated in several passages in the Talmud and commentaries. “ Rabbi Netanel said that in the case of Gerut [conversion[ it must be possible … for all your generations which implies in every circumstance, Even though they [the Court] is composed of those who are not expert i.e. properly ordained. For by necessity today we do not have experts who are properly ordained, nevertheless, the term “ for all your generations” implies for all time. [Kiddushin 62:b Tosafot Ger] In addition, the Talmud indicates that during the process of notifying the prospective convert about the requirements that are necessary for Jewish life they were careful not to provide him with too much detail and too many restrictions in order, as Rashi comments, not to overwhelm him and frighten him away. [Yevamot 46:b]
The Rabbis operated with the principle of removing any blockage which would in any way hamper the process of conversion. “ Just as they were concerned about closing the door to those who needed to borrow money [due to the cancellation of debt during the Shmemita Year which would make lenders loath to lend money immediately prior to that time], they were concerned about closing the door before converts” [ Yevamot 46:b, Tosafot 46b Mishpat ]
It should be noted that not all Rabbis agreed with this attitude. The most notable exception was Rabbi Chelbo who viewed converts as a contagion to Israel and very destructive to the Jewish people. The reason offered by Rashi for this opinion was that they were so ingrained in a wicked and idolatrous life style, while being non-Jews, that they could not help but have a detrimental effect on Jewish life. He was thus not solicitous about sparing their feelings and thus stated that if they wished to walk away from us we will walk away from the conversion process. [Yevamot 46:b]
The process which the convert undergoes as an individual is a microcosm of what the entire nation of Israel underwent. In a true sense the people of Israel were not born into Judaism but were converted into it. All their patriarchs – Abraham, Isaac and Jacob, indeed even Moshe himself, were not considered the children of Israel but rather the children of Noach. It was only at the Revelation at Sinai that they were transformed or were converted into becoming what we call the Jewish people.
Thus, Rabbi Yehuda Ha’Nasi states, “ you are like your ancestors, just like your ancestors did not enter the Covenant except through circumcision, immersion and the sprinkling of sacrificial blood , so converts cannot enter the covenant except through circumcision, immersion and the sprinkling of sacrificial blood.” [K’ritot, 9a]
Maimonidies establishes this as a principle of law: “With three conditions Israel entered the covenant – circumcision, immersion and sacrifice. Circumcision occurred in Egypt …Our teacher Moses circumcisized them for they had all abandoned circumcision in Egypt, with the exception of the Levites…Immersion occurred in the wilderness before the giving of the Torah and so did the sprinkling of sacrificial blood…and thus for all following generations when a gentile would wish to enter into the covenant and be gathered under the wings of the Divine Presence and will accept upon himself the yoke of the Torah he requires circumcision, immersion and the offering a sacrifice.” [Issurei Biah 13: 1-4]
Two issues require clarification. First, in the days following the destruction of the Temple could conversion still occur in the absence of sacrifices. The Talmud offers various solutions to this problem for as we noted above under all circumstances conversion was a necessity in Jewish history. And thus all modifications to the process were legitimate to ensure its continuity. The solution accepted by Maimonidies is that the obligation of offering a sacrifice was never removed from the convert and he must offer it once the temple is reestablished (technically the temple could be reestablished at any moment). Nevertheless, it is a valid conversion even in the absence of a sacrifice.
Second, how are we to understand the statement of Maimonidies, “ and he will accept upon himself the yoke of the Torah?“ In the Torah itself it seems clear that acceptance of God’s commandments was a necessary element in the very process of becoming fully Jewish. “ and Moses came and told the people all the words of God and all the ordinances, and all the people answered in one voice and said all the words that God has spoken we will do.” [Exodus 24:3]
The words of Maimonidies are much less precise. If he meant to say that acceptance of the commandments was a necessary aspect of the process of conversion as he seems to indicate in Chapter 14, the text should have been written in the following manner, “if the non-Jew should want to enter the covenant and be gathered under the wings of the Shechina then he needs to accept upon himself the yoke of the Torah, circumcision, immersion and sprinkling of sacrificial blood.” Instead the phrase he “needs” which describe the conversion process applies only to circumcision, immersion and the sprinkling of sacrificial blood. The clause “and he will accept upon himself the yoke of the Torah” is expressed as a preliminary pre-condition that is associated with the converts desire to be gathered under the wings of the Shechina and enter the covenant. The major question we will pose is whether conversion is accomplished even in the absence of those pre-conditions. Can conversion occur without any knowledge of Judaism and thus any proper acceptance of its commandments? Why is Maimonidies vague in this section which sets forth the philosophical and Halachic underpinnings of the definition of conversion itself?
THE PROCESS OF CONVERSION
When viewed externally conversion is a process of change from one state of being into another. As in all processes change is rooted in a multifaceted causality. Aristotle had already noted in his Physics and Metaphysics that change could be understood as either mechanical or organic.
Mechanical change requires an external factor known as the efficient cause. A carpenter is the efficient cause to transform a block of wood into a chair or table. Although the potential of becoming a table is inherent in the block of wood, without the intervention of the carpenter no change could have occurred. In the relationship between the wood and the carpenter, the wood remains completely passive throughout the process while the carpenter is totally active.
In living beings, change could be understood as something organic. Change is the life process itself. That process is inherent within the object which undergoes the change. Nothing of significance may be injected from the outside. Ultimately causality is within the capacity and nature of the living being. All the power which enables an acorn to become an oak already exists within the acorn. The external factors which make it possible for the acorn to change, i.e. soil , water, sunlight do not define the acorn or create the inherent nature of that acorn. At most they are environmental preconditions which allow for the unfolding of change within time. It is the living being who is totally active in this relationship with the outside world while the external forces remain totally passive.
A proper understanding of these two methodologies of change is crucial in ascertaining how conversion is effected. If the conversion process is understood as a mechanical mode, then an external agent is necessary both to initiate and create the change from gentile to Jew. This external agent [efficient cause] is the Bet Din or the properly empowered Jewish court. Jewish law thus enables the Bet Din to transform human beings who are not Jews into Jews. In the conversion process the active party is primarily the court while the convert for the most part is passive. In Talmudic terms conversion was called Ma’aseh Bet Din or action of the court.
On the other hand if the conversion process follows the organic mode, then the Bet Din in no way creates or produces the change. It merely affirms or confirms it. The process or the power to change must fully reside within the prospective convert. From the moment of his birth he, therefore, exists as a potential Jew. The ability to become a Jew is fully part of his organic makeup, no different than the organic makeup of the acorn which becomes an oak tree. The transformation is not due to any element which is introduced from the outside. What is required is an internal act of the will to set it in motion. More accurately, it is a process which unfolds by necessity, due to emerging beliefs which the gentile is powerless to withstand. It is the natural unfolding of his mind as is the development of his body. The convert thus literally converts himself in realizing his greatest potential. The main function of the Bet Din would be to nourish that blossoming soul and remove any impediment which would prevent the completion of the process. The court is like a physician who can enhance the quality of life but in no way can create it. At best, it facilitates the process of conversion.
THE POWER OF THE COURT AND THE POWER OF THE CONVERT
The Shulchan Aruch describes the process of conversion in a complex manner. [Yoreh Deah 268:3], “ All matters pertaining to the convert, whether it is to inform him of the commandments in order that he should accept them, whether it is circumcision or whether it is immersion have to be in the presence of three who are qualified to judge and in the day-time. That is, however, before the fact but after the fact if he did circumcise or immerse only in the presence of two [or those related to one another] and at night or even if he did not immerse for the purpose of conversion but a man who immersed due to seminal effusion and a woman who immersed due to menstruation, he is a convert [ ger ] and is permitted an Israelite woman. [That is all correct] except for the acceptance of the commandments which nullifies the conversion if it is not done during the day and in the presence of three.
And to the Rif [ Rabbi Isaac Alfasi ] and to the Rambam [ Moses Maimonidies ] “.. even after the fact if he immersed and was circumcised in the presence of two or at night that nullifies the conversion and he is not permitted to marry an Israelite woman. But if he did marry an Israelite woman and had a male child, i.e. Ben with her, we do not disqualify the child “. To the Taz this last statement refers to publically announcing their faulty lineage and thus preventing them from marrying into the respected and fully Jewish families in Israel. To the Shach a female child of this union may marry into the priesthood unlike the case where the mother is Jewish and the father is fully gentile. To him the term “ben” is not meant to be taken literally, but just means child.
The essential ruling of the Shulchan Aruch that it is only the acceptance of the commandments which requires a Bet Din of three is explained by both the Shach and the Taz that this is the most crucial aspect of the conversion process because it is the beginning of the process and thus all judicial procedures must be followed. The other aspects of the conversion process i.e. circumcision and immersion are simply the concluding acts of the process and thus do not require any judicial procedure at all. Thus to the Taz one witness is sufficient and to the Rema [ Rabbi Moses Isserles] even disqualified witnesses are permitted and the procedure, as stated in the Shulchan Aruch, may even be done at night.
The explanations of the Shach and the Taz are rooted in the explanation of the Tosafists and the Rosh. The Tosafists state, “It seems that only at the acceptance of the commandments do we require three but at the immersion one is sufficient if he [ the convert ] had already accepted the commandments [Kiddushin 62:b, Ger ]. The Rosh states, “ We can say that our requirement for three is only for the acceptance of the commandments but not for the immersion… in addition acceptance of the commandments is like the beginning of the legal process and immersion is like the completion of the legal process, it can even be done at night. [Yevamot 4: 32]
To Maimonidies, both circumcision and immersion must be done in the presence of three because those two ceremonial processes are judicial actions which require a Bet Din and cannot be done on the Sabbath, on a holiday or at night. In stating the position of the Rambam the Shulchan Aruch maintains that if these actions occurred at night they would be nullified. In truth Maimonidies does not nullify an immersion that was done at night, even after the fact. [ Issurei Biah 13:6 ] and is thus more lenient than he is portrayed by the Shulchan Aruch. This is unlike Nachmanidies who did not grant the court such latitude. He insisted that a second immersion must be performed in the presence of three, in the daytime when a court would normally convene. He thus regards the ceremonial aspect of conversion as the essence of the judicial process. [see Magid Mishna ad locum] The Gra [ Rabbi Elijah of Vilna – the Vilna Gaon] explains this discrepancy in the following manner: “ by the fact that the Shulchan Aruch views the Rambam as being so adamant in maintaining that the ceremonial aspects of conversion are so crucial to the judicial process, all matters dealing with that process must be affirmed and no leniency can be shown after the fact. “, What is of utmost importance in this legal analysis of the process of conversion is that Maimonidies does not emphasize the primacy of acceptance over the other aspects of conversion. Nevertheless, this acceptance appears necessary only before the fact when the convert is notified of the commandments. [ Issurei Biah 14:1-7] This is amply described in the Talmud {Yevamot 47 a, b] . After the fact when circumcision and immersion have already occured with a tribunal, the importance of acceptance of the commandments appears to be much less significant. [Yorah Deah 268:3] and Yoreh Deah 268:12]
This is seen in the major discrepancy in the Shulchan Aruch between section Yorah Deah 268:3 and 268:12. In section 268:3, he clearly indicates that if no acceptance of the commandments took place then the process is totally nullified even after the fact. In section 268:12, however, he states, “When the convert comes to convert they check after him. Perhaps it is because of monetary gain or status or fear that he came to enter the faith. If he is a man perhaps he is attracted to a Jewish woman and if a woman we check perhaps she was attracted to a Jewish youth… and if no investigation is made or if he was not notified of the reward and punishment which ensues from observance of the commandments or the lack thereof and he was circumcised and immersed in the presence of three laymen he is nevertheless a convert. Even if it became known that he converted for an external reason, since he was circumcised and immersed , he is removed from the category of an idolater … and even if he went back and worshiped idols he is like an heretical Jew.” [Yoreh Deah 268:12]
Under these circumstances he is nevertheless considered a Jew for all matters even though there is a lingering suspicion about his intent. Even when he is later discovered to be an idol worshiper his Jewish status remains and he is considered an heretical Jew and not a gentile. There is no greater indication that acceptance of the commandments is not essential to the conversion process.
Two aspects of this law stand out and demonstrate how it directly contradicts the law stated in section 268: 3. First, the Shulchan Aruch clearly states here that no investigation was ever made of the non-Jew or any attempt to gauge the sincerity of his intent. In addition he was not informed about the crucial elements dealing with reward and punishment. The element of acceptance was not indicated at all. If acceptance had occurred, at best it was grievously incomplete and at worst it was duplicitous and invalid. Secondly, the law clearly states that for the process of circumcision and immersion three laymen or three members of a court must be present. The number three in this process is dispositive. If proper acceptance had taken place earlier, before three, there would be no need for three court members for the procedure of circumcision and immersion, for according to the Rosh and the Tosafists it is only for the acceptance of the commandments that we need three and once that is accomplished the other rituals of immersion and circumcision can take place even in the presence of one.
Finally, if no investigation about the convert ever took place and we really know nothing about him, what is the nature or the value of his acceptance? How can it be said that he accepted anything when it later becomes clear that he converted for completely improper reasons. We, thus, see section 268:3 in the Shulchan Aruch is based upon the analysis of the Rosh and the Tosafists while section 268:12 is rooted in the assumption and analysis of the Rif and the Rambam. In section 268:3 the role of the convert appears to be primary and it is his intent which creates the process, in section 268:12, however, it is the role of the Bet Din which is primary while the intent of the convert is of minimal or no importance.
The ruling of section 268:12 is even more clearly stated in Maimonides, “A convert who was not investigated and was not informed about the commandments and their punishment, who was circumcised and immersed in the presence of three un-ordained men is a convert. Even if it became known that he converted for some other purpose, once he was circumcised and immersed he is removed from the category of being and idolater but is nevertheless suspect until his righteousness can be verified and even if he returned to his old ways and worshiped idols he is nevertheless a transgressing Jew whose act of betrothal is valid and it is required to return his lost object, since once he immersed he becomes a Jew. [Issurei Biah 13:17]
Commenting upon this ruling the Magid Mishnah unequivocally states, “it is obvious that [lack of ] the notification of the commandments does not invalidate conversion after the fact.” [ad locum] Without any notification of the commandments how is any acceptance possible? What exactly is the content of that acceptance ?
The view of these codes is a direct outgrowth of a Talmudic discussion. “ whether a man converts for the purpose of a woman or a woman converted for the purpose of a man, and similarly one who converted for the royal table or to become one of the servants of Solomon, they are not proper converts … this was in accord with Reb Nechemia’s view that any conversion motivated by any external love or fear could not be valid. [Yevamot 24:b] The Talmud, however, rejected Rabbi Nechemia’s position and maintained the opposing view. “ Concerning this, it was stated that R’ Isaac bar Samuel bar Marta said in the name of Rav, ‘ the law is in accordance with the one who says that they are proper converts. ‘ [ibid ]
It should be noted that in the minor tractate called Gerim, it is the rule of Rabbi Nechemia that is accepted and not that of Rav [see Gerim:1 ] The authoritative Talmud clearly maintains that although such conversions were frowned upon, once the procedure was carried out the conversion was completely valid. The logical assumption for this position is the assumption which minimizes the role of the convert in the process of conversion. The primary role must be assigned to the court that carries it out.
It is true that the Talmud [Yevamot 47:a-b], which is cited by both Maimomidies [Issuei Biah 14 1-7] and the Shulchan Aruch [268:2] describe, in lengthy detail, the nature of the interrogation and the discussion that occurs between the convert and the court prior to his conversion. From this discussion it appears that the court attempts to elicit the level of motivation of the convert as well as provide him with a certain degree of information about the history and condition of the Jewish people and of Judaism, the essentials of Jewish belief and examples of the commandments of Judaism, both severe and light. This lends the appearance that the role of the convert is crucial and that his acceptance of what is being told to him is the determining factor in the conversion process. This, however, is highly misleading. What the Talmud seems to be stressing, over and over again, is not really an interrogation at all. What they are doing, repeatedly, is a process of notification of the commandments in various venues. First he is notified out of the mikvah and then while in the mikvah. It appears that the convert simply remains silent while being notified. Second, as we saw above, a conversion may occur without any of this information being provided. Finally, if no investigation is made about the convert himself and his intent, the conversion is still valid. In all of this process there is no mention about what is the minimal information and the minimal level of acceptance which is required. What are the established limitations of both knowledge and acceptance?
Finally, the nature of this interrogation goes against all aspects of Jewish law. When he comes for conversion the convert is in the status of being a non-Jew and there is no aspect of Jewish law where the testimony of a non-Jew can be acceptable. It is true that in verifying matters of fact a court could ask the information which a non-Jew possesses to establish the veracity of the facts if the non-Jew has no awareness of the gravity and purpose of that information. But here he is being asked to offer testimony in which he has an interest and which is self-serving. It is assumed that one wants to become a Jew because he ultimately understands that being a Jew is meritorious and worthwhile in and of itself. It thus becomes a benefit to him. How then can a court accept anything that he states about this matter? More than that, how can they establish a judicial ruling about an issue of personal status primarily upon testimony which by definition is invalid? At this point he is still a non-Jew and his testimony has no standing in Jewish law.
This process can only have meaning if we accept the understanding of Maimonides. To Maimonides notification and acceptance of the commandments are a preliminary requirement which begins the process of conversion, or a procedure before the fact which is no more important than circumcision or immersion. It may, in fact, be less important. At best the statements of the convert are not accepted as testimony but rather are considered an aspect of Birur or clarification of given facts which are ascertained by the court. It is thus a discovery of fact which enables the court to make an informed decision rather than an act of testimony. Therefore, it is at the vital aspect of the conversion process i.e. circumcision and immersion, where a court of three is truly necessary. In the analysis of the Rosh and the Tosafists, however, the process of conversion is dependent upon the intent and statement of the convert, which amounts to his testimony while he is still a non-Jew. More than just a factor in the conversion it encompasses the totality of the conversion itself. It is difficult to understand how this is possible with the underlying procedures of Jewish law.
To answer these questions we will have to deal with the following issues:
- The relative value of testimony derived from the observance of an action versus the testimony available through word and recollection
- Knowledge and acceptance
- The conversion of minors
- The concept of rejection as opposed to acceptance.
These questions will help us clarify the two positions which we found stated above in the Shulchan Aruch, that of the Tosafists and the Rosh and that which was emphasized by the Rif and the Rambam. We shall see in each instance that it is the latter’s position which is most meaningful in the halachic context of these crucial questions.
- THE RELATIVE VALUE OF TESTIMONY DERIVED FROM THE OBSERVANCE OF AN ACTION VERSUS THE TESTIMONY AVAILABLE THROUGH WORD AND RECOLLECTION
The Talmud describes two unusual cases which pertain to the process of conversion. In the first case it states that the slave of Rabbi Chiya bar Ami immersed a certain idol worshiper for the purpose of making her his wife. Rav Joseph said, “I am able to accept her as a valid convert as well as accept her daughter.” [Yevamot 45:b] Although there is no indication that there was any tribunal or witnesses present to witness this process it seems difficult to believe that the testimony of a slave is sufficient to establish a conversion process. Even if we accept the hypothesis of the Tosafists that the tribunal was only necessary for the acceptance of the commandments there must be some legal foundation for the validity of this action. The Tosafists thus conclude that since this event (given its unusual nature) was known to all it was as though all were present and witnessed the immersion. [Yevamot 45:b] It is important to note that this common knowledge establish a judicial process of a Bet Din and not simply a statement of witnesses. In all other cases of common knowledge known in legal terms as Anan Sahadi (we testify) it is an act of witnesses not of a court. In his commentary on this law [ Shulchan Aruch 268:3] the Taz offers a similar explanation but he uses the term, “ It is clear to us”. Again he does not explain how they knew for they clearly did not see the event. The Talmud also indicates a similar circumstance dealing with a non-Jewish male who immersed as a result of a seminal effusion. That immersion was also accepted for the purpose of conversion. [Yevamot 45:b]
What is important about these incidents is that the commentaries, [Rashi, the Ran and the Taz] clearly indicate that the subjects at hand never stated that they were immersing for the purpose of conversion but rather for the purpose of purification. It was, however, their action of performing a mitzvah which coincided with a necessary aspect of conversion immersion which established the validity of the conversion process. We thus see from the Talmud that evidence based upon an action related with conversion may be indeed stronger than evidence based solely on the testimony of the convert. Indeed one can say that what we view here is not testimony at all but rather again a Birur [ a clarification] that the convert is sincere or has a desire of behaving as a Jew. It is not his word or testimony which is dispositive but rather his actions. This is a powerful indication that in the process of conversion it is the opinion of the court and their judicial act rather than the word of the convert which creates the transformation.
Finally, it is ironic that the Shulchan Aruch utilizes these examples in exactly the opposite way than was understood by the Talmud to make them conform to his assumption that the acceptance of the commandments is the crucial element in the conversion process. In his analysis these unusual cases demonstrate the relative unimportance of the ceremonial requirement of immersion and circumcision. While in the Talmudic analysis these were the only elements which establish the conversion in the way they were explained by the Tosafists, Rashi and the Taz.
- KNOWLEDGE AND ACCEPTANCE
We have seen above that the Magid Mishnah maintains that according to Maimonides the lack of the notification of the commandments does not invalidate conversion after the fact. What we must now analyze is whether this principle holds true even before the fact. There is clear indication in the Talmud that the absence of notification imposes no impediment to conversion, that even imparting false information and erroneous principles having to do with Judaism is similarly not an impediment to conversion. The Talmud [Shabbat 31:a] records three incidents of prospective converts who approached the sages Hillel and Shammai and requested to be converted. Each came with a misunderstanding of both the process of conversion and demanded totally improper conditions in order to become accepted as Jews. One wanted to become a Jew but wanted to maintain his disbelief in the Oral tradition. Another requested the fulfillment of an impossible condition, i.e. to learn the entire Torah during the time frame during which one could remain standing on one foot. The third demanded the greatest impossibility of all, in open violation of the Torah itself. He would convert to Judaism only under the condition that would enable him to become the High Priest. As is well known only a male born legitimately into a priestly family has the possibility of becoming a High Priest. The inappropriateness of this demand was compounded by the fact that he wanted to gain that position only for material gain and personal glory.
In all of these cases Shammai was outraged and drove these people away. Hillel, however, readily accepted all as proper converts. The commentaries were at a loss to explain Hillel’s behavior. The explanation that was finally offered by the Tosafists [ Yevamot 24:a ] the Beit Yosef [Tur 268 ] and the Taz [ Shulchan Aruch 268 note 23 ] claimed “ Hillel was certain that ultimately they, the prospective converts, would accept Judaism properly for the sake of heaven.”
A similar story is related in the Talmud [ Menachot 44a ] where a prostitute seeks conversion for the purpose of marriage to a rabbinic student and is forthwith converted by Rebbe without further discussion.
We, thus, see that significant latitude was given to the rabbinic court by Jewish law to convert however and whenever the Court deemed it fit to do so. If in the opinion of the court the expectation existed that the convert would eventually become a properly observant Jew, he may be converted even if at the time of conversion the basis of his intent was improper and fraudulent. This general principle is expressed by both the Beit Yosef and the Taz cited above, “from here we can learn that everything that deals with conversion is based upon the prospective of the court.”
No greater evidence is necessary to demonstrate that the process of conversion is primarily a judicial process. It is an act of change which is initiated and carried out by the Bet Din according to their understanding. The proper understanding of acceptance of the convert is at best very minimal in this process and is even perhaps of no significance.
Finally, a more intense analysis of the irrelevance of the converts knowledge or even acceptance of Judaism is found in the following Talmudic passage, “a major principle was stated about the Shabbat. One who forgot the concept of the Sabbath and did many activities, on many Sabbaths, is only liable for one sin offering. How is this possible? A child who was captured by gentiles and a convert converted among the gentiles … is liable for one sin offering [ for the Sabbath ] and one for [eating] blood and one for [eating] sacrificial fat and one for [worshiping idolatry.” [Shabbat 68b]
From the above it is evident that we are dealing with a situation where a non-Jew converted into a system called Judaism which in his mind and understanding advocated desecrating the Sabbath, consuming blood and sacrificial fat and the worship of idolatry. These are the worst transgressions of Judaism. Nevertheless, he was considered a valid convert. When, however, he accepted that system was he actually accepting Judaism? If the non-Jew has no concept, even a rudimentary one, of what Judaism entails and actually accepts principles and formulations which are inherently contradictory to Judaism then in what sense logical or otherwise is he accepting Judaism. He merely accepts a word which lacks all content or substance. It is a term which in his mind has no real meaning.
Rabbi Moshe Feinstein [Iggoret Moshe: Yoreh Deah 159] is indeed troubled by this passage and tries his utmost to explain it with some coherence. He maintains that knowledge and acceptance are two separate concepts and that one may exist without the presence of the other. Thus, any act of acceptance, even one that lacks all content, is nevertheless an act of acceptance. This, however, does not explain the passage recorded in the Talmud. The conversion accepted in the Talmud is not based upon an acceptance which lacked content or information about Judaism and is in reality an acceptance of a system which is contradictory to Judaism. This form of acceptance renders Judaism utterly meaningless. This is akin to an act of testimony that black is white and up is down. No one would argue that such testimony can ever be accepted. Here, the prospective convert, is testifying about his acceptance of Judaism but states that Judaism which is the antithesis of idolatry is actually idolatry itself. There is no greater evidence that the intent or testimony of the convert really has little bearing on the process of conversion.
- THE CONVERSION OF MINORS
The issue which seems to indicate most clearly that the nature of conversion is totally a power invested in the court and that the convert has virtually no input into that process is the conversion of minors. A minor is incapable of comprehending or accepting any of the commandments. If then the acceptance of the commandments is crucial to the process of conversion how then can any conversion of a child be valid ? If conversion is, however, primarily a judicial and ritual act where the court is empowered to preform upon the body of the convert then the conversion of a child is no different than that of an adult who converts for improper reasons.
The Talmud discusses the underlying basis which allows for conversion of minors. Rav Huna said, “A minor convert is immersed through the power of the court. What does this teach us, that this [becoming a Jew] is beneficial to him and we are permitted to provide a benefit for a person even without his knowledge.” [Ketuvot 11:a ] Rashi explains this concept in the following manner: that the court are considered the father of the convert and that he becomes a convert through them and his status as a Jew is so complete that he is even permitted to touch wine without defiling it. The Rabbis prohibited wine touched by a non-jew to be drunk by jews because of the close association that existed between wine and idol worship.
The Tosafists, however, who had maintained that the acceptance of the commandments is crucial to the process of conversion, are thus left to explain the intent of this Talmudic passage which presents them with an obvious dilemma. Their resolution is to maintain that the intent of this Talmudic passage is to indicate that such a conversion is purely of Rabbinic origin, i.e. the conversion has standing as Rabbinic law but not Torah law. From the standpoint of the Torah, however, the minor convert is still considered a gentile. The lesson which this passage teaches us is that the rabbis even have the power to eliminate from the Torah positive commandments. In this instance rabbinic action would even allow this individual who is technically still a gentile to marry a Jewish woman which is forbidden by the Torah itself.
The controversy between Rashi and the Tosafists demonstrates the extremes to which the two positions on the nature of conversion can lead. These extremes seem to be modified by the following Talmudic statement. Rabbi Yosef says, “When they become adults they are able to renounce their conversion.” [ibid]
The statement of Rabbi Yosef seems beneficial to the Tosafists and problematic to Rashi. It is beneficial to Tosafists because the conversion is not complete until some form of acceptance has occurred. It is problematic to Rashi because if the conversion was fully valid when the convert is a minor, how is it possible to renounce it afterward?
The issue of the possibility of renunciation is seen throughout Rabbinic literature. The Rif in his abridgment of the Talmudic text recorded the statement of Rav Huna which allowed for the conversion of minors but did not record the modification of Rabbi Yosef which allowed the minor to renounce the conversion upon reaching adulthood. [Yevamot Siman 67] The Rif thus clearly implies that conversion is a completely judicial act which is not impeded by the lack of acceptance of the convert.
The Ramban attempted to explain the Rif’s omission of Rabbi Yosef’s caveat by maintaining that it applied only to a situation where a child was converted together with his parents. If the child, however, was converted solely under the aegis of the court then renunciation would be impossible. The Ramban, thus, maintains that the power of the court was even greater than the natural father.
The Ran, however, rejected this assumption and maintains that the presence of the natural father has a greater impact upon the validity of the conversion than simply the court, acting on its own accord, but nevertheless the modification set forth by Rabbi Yosef must apply to both sets of circumstances. “ As to the law we learn as Rav Huna said that a minor can be immersed according to the will of the court. This does not imply that the court is commanded to search out and circumcise gentiles but if a child comes by itself or was brought by his mother or whether the court took the initiative itself it is a proper conversion. We also maintain the law of Rabbi Yosef who said that when they reach adulthood they can renounce their conversion. This applies even to a situation of a convert who converts simultaneously with his children. [Rif on Ketubot]
We see from here that the Ran could accept the position of Rashi and declare the conversion complete but nevertheless still insisted that the will of the convert be expressed in adulthood. This appears to be contradictory, but is nevertheless maintained.
This apparently contradictory position has become the stated law in the Shulchan Aruch. “ A non-Jew, if he has a father, he is able to convert him [through a Bet Din] and if he has no father and he comes to be converted or his mother brings him to convert, the court converts him because it is beneficial for him and we may benefit a person without his presence or awareness. Whether he is a minor converted by his father or one that was converted by the court, he is able to renounce the conversion when he becomes an adult and he is not considered as a heretical Jew, but as a non-Jew. [Yoreh Deah 168:7 ] To the Shach [Note 16] it appears that a minor can request conversion on his own accord and even though he has no understanding, the court obliges him because it is a benefit for him. This indicates that the lack of understanding presents no impediment to conversion.
The position of the Rambam is most difficult to understand. In the main section dealing with conversion Issurei Biah chapters 13 and 14 he presents the law of the conversion of minors. He omits, however, any reference to the law of Rabbi Yosef that when the minor convert becomes an adult he is able to renounce the conversion. [ 13:7 ] In the laws of Kings, however, where the conversion of minors is presented incidentally he states clearly, “ and if the convert was a minor when the court immersed him he is then able to renounce the conversion when he becomes an adult and he then becomes a resident alien [Ger Toshav, i.e. a non-Jew who is permitted to live in the camp of Israel] [the laws of Kings chapter 10:3]
The commentaries on the Rambam do not attempt to explain this discrepancy. It is, however, discussed in the Responsa of the Chatam Sofer. The explanation is based upon the reversal of the analysis of the Ramban [ see above] “ Rabbi Yosef’s law can only be applied to a child converted without his parents. In a situation where a child converted with his father and was under his total control he may not renounce his conversion upon reaching adulthood. In such an instance there is no real issue of any coercion. With that issue eliminated the court simply exercises its full power to convert. Maimonidies thus omitted Rabbi Yosef’s law in Issurei Biah because that is a case of a child converting with his father. In the book of Malachim [Kings], however, Maimonidies deals with a child who converted only through the court and thus required the mitigating law of Rabbi Yosef. [Reponsa 253]
We will be dealing with the issue of coercion in the following section. But what is evident from this discussion is that ultimately the power of the court to convert is absolute even without the acceptance of the commandments. It is the court that creates the conversion and thus it could readily convert children.
According to our earlier understanding, those who maintain that acceptance of the commandments is the crucial element in conversion understand that in the case of minors circumcision and immersion are at best preconditions for conversion and have no Torah validity when they are enacted. It is purely rabbinic law which authorizes such conversions. It is only later upon reaching adulthood, when the process of acceptance can take place, that a Torah conversion originates and that is the beginning of the validity of all Torah statutes vis a vis the convert. This is the position of the Tosafists recorded in the analysis of Ketubot 11:a. as noted above.
There is, however, a radically different understanding that is presented by Tosafists in a different location [ Sanhedrin 68:b] According to this understanding the circumcision and immersion of a child are fully valid procedures as soon as they are enacted in accordance with Torah law and not merely a Rabbinic enactment. The act of acceptance, which occurs later in adulthood, merely confirms the validity of the conversion which occurred previously when the convert was a child. Thus, all aspects of Jewish law are valid retroactively once the acceptance occurs. This seems to be of the position of the Tosafists in their analysis. While still maintaining that it is primarily the convert who inaugurates and creates the process of conversion the principle under which such conversions occur have literally been turned on their head. What was previously accepted as the crucial aspect in conversion, i.e. acceptance of the commandments, is now relegated to an incidental and perhaps even insignificant role. The crucial elements in the conversion are the processes of circumcision and immersion, but rather than assigning those roles to the Bet Din as did Rashi, the Rif, and the Rambam, the Tosafists now place them within the province of the convert. In this way the role of the convert in his own conversion ironically becomes even greater. ….“It seems that the merit [benefit] of conversion does not compare to other merits, for the fact that the court immerses him they do not benefit on his behalf but rather he benefits by himself and in his body that he becomes a convert and enters under the wings of the Shechina …. and even a child that is without awareness is considered a convert … for the circumcision and immersion occurred in his own body. We also find that our ancestors entered the Covenant through circumcision , immersion and the sprinkling of blood and there were many minors during the time of the giving of the Torah. … Even though we said in Ketubot 11:a when they grow up they are able to renounce the conversion, we had nevertheless said that when they grow up and remain for one hour without renouncing their conversion they are no longer able to renounce it for the circumcision and immersion of childhood which occurred in their body is effective for them and they only lack the acceptance of the commandments and once they grew up and did not renounce for a short period, that is considered acceptance”
We see from the above statement how the Tosafists redefine the necessary elements of conversion. Not only are circumcision and immersion the crucial elements in conversion, as opposed to acceptance of the commandments, but the role of the court has been redefined as well. The court no longer is the instrumental force which acquires or establishes for the convert his conversion. It is the convert who renders the possibility of the transformation in his body. Although not irrelevant the court, at best, serves as the framework which enables the convert to convert himself. The halachic process which is used in this case is similar to other instances of acquisition, for example, a wife’s ability to accept a decree of divorce or the emancipation of Canaanite slaves. The benefit which is acquired in these cases is the acquisition of rights to their own body. This is done through the formula that the given right i.e. divorce [get] or emancipation [shichrur] occurs simultaneously with the right of acquisition to their own bodies [their hand] which enables them to acquire the above stated rights. This process is now applied to conversion. Conversion is a right acquired directly through the hand of the convert as he transforms himself into a Jew through the rituals of conversion. What is striking is that the Tosafists extend such rights even to a minor which does not occur in all other similar cases. The court oversees the process but the convert implements it. Thus one could truly say that according to the Tosafists the power of conversion lies within the convert and not the court. The dichotomy which we have presented at the beginning of this paper is now expressed in its greatest force. It is also striking to note what a radical transformation has occurred in the very nature of the acceptance of the commandments. Acceptance at one time meant a probing interrogation into both the knowledge and sincerity of the convert. Now it has become simply the absence of renunciation, which is purely a passive state.
I am aware that the following is pure speculation. Perhaps, the redefinition that Tosafists have now assigned to the process of conversion is due to the troubling question raised above to the validity of any self-serving testimony given by a non-Jew in his effort to convert. Such testimony should be as minimal as possible. It should be simply a statement of agreement to a procedure rather than a lengthy interrogation which in the final analysis signifies nothing.
Finally, as an aside, the Kesef Mishna [Mishne Torah – Laws of Kings 10:3] asks a deeply probing question. Although he recognizes that the Talmudic text {Ketubot 11:a] maintains that once a child reached adulthood and remains for one hour without renunciation he may no longer renunciate. Nevertheless, the Talmud does not specify any definite time frame when this renunciation is possible. If that is so the time frame may even be a split second and renunciation would no longer be possible. His answer is that even though renunciation past adulthood is non-binding it may be valid if upon reaching adulthood the child retains his renunciation that had begun earlier and was carried over into adulthood. This explanation defies logic. What is the value of renunciation if it occurs in a state when the child does not understand what he is rejecting? The time frame for rejection by definition must begin at the moment when understanding emerges. If that is impossible then the possibility of rejection is not tenable.
- COERCION AND REJECTION
The one element in the process of conversion with which all interpretations of the concept agree is the insistence that conversion may not happen under duress or coercion. The Talmud clearly states that a non-Jewish slave may be circumcised under duress [against his will] for becoming a slave, but a free man may not undergo such conversion. The Talmud gives the example of an adult who comes to be converted, nevertheless, he has no power to convert his adult son against his will. This is the opinion of Rabbi Shimon Eleazer as interpreted by Rava. The rabbis, however, go one step further and insist that even a slave, who is an adult, cannot be converted against his will. Thus, no adult can be coerced into conversion. [Yevamot 48:a]
In addition to such biblical analysis and exegesis there appears to be a logical underpinning to this conclusion. The Talmud stated in Ketubot 11:a that in cases dealing with minors one may provide them with Judaism without their awareness. This is based on the principle that one may provide another with any benefit [in this case the benefit is Judaism) without the consent or knowledge of the other. The corollary to this concept is that one may not impose any obligation upon another without that person’s awareness or consent. The Talmud assumes that in the case of an adult non-Jew, who has been raised as a non-Jew, the freedom that he enjoys in living as a non-Jew overrides any aspect of Judaism because Judaism entails a host of obligations. He is not anxious to limit his life style by the myriad of obligations which Judaism imposes despite the fact that Judaism may endow him with a higher spiritual life. Any attempt to impose such obligations upon him is tantamount to coercion and has no halachic validity.
The one other objection to the use of coercion is historical by nature. We have stated above that the foundation upon which the principles of conversion were established upon the conversion of the Israelites on Mt. Sinai. This was stated clearly by Maimonidies that in all future generations if a non-Jew wishes to enter the Covenant he must undergo the same ritual and requirements which the ancestors of the Jews underwent in the Wilderness [Issurei Biah 13:4]. This is similarly maintained by the Tosafists [Sanhedrin 68:b, under the heading Katan]. The Tosafists there maintain the various elements which allowed the Israelites to be converted into Jews, including the conversion of children. These principles applied to the future conversion of non-Jews.
Perhaps the most famous example of the invalidity of conversion when duress is an underlying issue, is the matter of the acceptance into Judaism of the Kutites. The Talmud discusses a controversy between Rabbi Yishmael and Rabbi Akiva whether the Kutites, who inhabited the Land of Israel after the Babylonian expulsion, were to be considered true converts (gerei emet) or converts who became so because of their fear of lions that roamed that area (gerei arayot). It is clear that if their conversion resulted from their fear, it was not acceptable in any sense. See Kiddushin 75 b.
The historical circumstances which demonstrated the inapplicability of coercion was stated in Tractate Shabbat 88:a. The Talmud introduced an Aggadic interpretation of the Biblical text which implied that the Israelites camped beneath Mt. Sinai. Rabbi Avimi bar Chama bar Chasa stated that this came to teach that God placed the mountain upon their head and threatened them that if they did not accept the Torah they would be buried in that location, which seems to be a coercive statement. Rav Acha bar Jacov derived from this incident that due to the coercive nature of the act it had no legal or moral authority. Thus, if God should attempt to indict the Jews for non-observance they could always respond that their conversion had no validity because it was done under duress. Rava then stated that the issue of duress was canceled during the days of Achashverous when the Jews willingly accepted their conversion.
We must note that there appears to be one discrepancy in the Book of Esther that may lead to an opposite conclusion. The text states that, “many from the nations of the land became Jews because the fear of the Jews fell upon them” resulting from the king’s decree which empowered Jews (Esther VIII: 17). This implies that conversion which resulted from fear was an acceptable conversion. One could reply to this question by pointing out that the text never stated the normal term for conversion mitgayarim, but rather a unique term mityahadim. That could easily be taken to mean that there was no real conversion, but that these people merely took upon themselves the external appearance of being Jews to avoid calamity. Rashi, however, does interpret that the term mityahadim means mitgayarim i.e. conversion. One could explain this interpretation by noting although the conversions were performed, there is no indication that these conversions were accepted by the rabbinic authorities of that day. This is similar to the case of the Kutites who also converted. If, however, they converted primarily out of fear, then it is agreed that their conversion was invalid.
The passage outlined above in tractate Shabbat 88:a is quite problematic. It implies that from the time of the Exodus until the Persian conquest of the Babylonians, a period of about 700 years, there were no real Jews in the world. One, thus, must understand that this passage is to be seen as hyperbole rather than an accurate historical record. It is important, however, because it demonstrates how much emphasis the Talmud placed upon the requirement that no coercion could be part of the conversion process.
An adult may reject any element of the conversion process with which he does not agree or finds offensive which in turn nullifies the conversion itself as long as it is done prior to the conversion. “If a non-Jew is ready to accept the Torah with the exception of one law we should not accept him as a Jew. Rav Jose the son of Rav Judah says, even if he rejects one point or detail of the laws established by the Scribes ( the Oral Law)” [Bechorot 30:b] In the case of the conversion of minors, following the view of Rabbi Yosef (Ketubot 11:a) upon reaching adulthood they may always reject their prior conversion.
There is however, one anomalous law in the Torah where the presence of coercion seems, to some extent, to acceptable. That is the case of the Y’fat To-ar to which we now must turn our attention.
The case of the Y’fat To-ar is stated in the book of Deuteronomy. [21: 10-15] A gentile woman who is captured in battle and whose beauty cannot be resisted by the Jew who captures her becomes subject to his sexual desires. There is a controversy among the commentators [ Maimonidies and Nachmanidies] whether the captor may rape her immediately in battle or whether he must first take her home and that she must undergo a process which will ultimately lead to a form of conversion which will allow her to be committed to him in marriage. The Rabbis in the Talmud states [Yevamot 47:b] that if she accepts Judaism she is immediately immersed and is allowed to marry her captor. Intercourse must be delayed by three months, as in any conversion, in order to ascertain the purity of any ensuing offspring. [Yevamot 48:b and also Mishne Torah Melachim 8: 5-6 ].
If she does not accept Judaism she is given a period of time [30 days] to mourn for the culture and religion she is about to abandon. [Yevamot 48:a-b, Melachim 8:7] If she is nevertheless adamant and refuses to convert she cannot be coerced into conversion and must be released after a year. She is then treated like any other Ger Toshav [resident alien in the land of Israel] and must abide by the Seven Noachide laws.
Rav Shimon ben Elazar voices the minority opinion which maintains that there is a way of having her become a Jew even without her consent. His recommendation is to have her captor 1. forcibly immerse her into a state of slavery and then 2. forcibly immerse her into a state of freedom. Once she is freed she becomes permitted to him as a wife. This demonstrates that conversion can occur even in the absence of any acceptance of the commandments. It is the act of liberation which establishes the conversion and not her personal acceptance of any of the commandments. [Yevamot 47:b, 48 :a]
The Talmudic commentaries recognize, however, that under the best of circumstances the captured Y’fat To-ar does not really believe in the new religion that she is about to adopt or which she allows to be imposed upon her. How much love or understanding can she have for the conquering people who captured and assaulted her against her will? At heart she still remains a gentile. The Torah nevertheless stated, “and you can take her” which the Talmud understands to mean, “she is marriageable to a Jew.” [Kiddushin 22:a] Rashi clearly states, “Marriage can apply to her even though she was an idolater, for she is not converting freely.” [Al Locum]
At best this must be seen as a Divine Revelation.
The Tosafists also viewed this concept with great difficulty. She is considered by them, by analogy, to be a kosher animal which is slaughtered by kosher means who is about to die anyway or in other words as repulsive meat even after her conversion. “It could be argued that she converts against her will and is not a complete convert.” [Kiddusin 22:a ad locum] Nevertheless the Tosafists maintain, “even though she converts against her will the Torah still made her into a complete convert.” [Ibid 21:b ad locum]
These opinions appear to be in direct contradiction to the Talmudic ruling indicated above [Yevamot 47:b] that no conversion may be made against the will of the convert even in the case of the Y’fat To-ar.
There is only one way to resolve this contradiction. Even though we know that the conversion is against her will and, in truth, in her mind she is still idolatrous, the Torah reveals to us in this case that the conversion is nevertheless valid as long as she does not object to the conversion process itself. It is clear that her belief in Judaism, or lack of it, is irrelevant to this process. Only her objection to the rituals of conversion i.e. immersion may void the conversion. If she allows the immersion that is sufficient to validate the conversion. There is no need to pursue further her state of mind or belief. We see that at best the concept of acceptance has basically been redefined to its least possible significance and meaning.
It is thus instructive to discover that in the most anomalous case, Y’fat To-ar, the two underlying bases for conversion are revealed to us. One, that the state of belief or acceptance of belief is minimal in the conversion process. It is the Bet Din process of conversion which is primary. Two, the only power which the convert truly has is that of rejection which releases him from any form of coercion.
THE DILEMMA OF CONVERSION
A gentile who is converted…. is like a child newly born and all blood relations that he had while yet a gentile … are no longer blood connections and if he and they converted he is not liable at all for having an illicit union with them. It is the law of the Torah that a gentile who converted may marry his mother or his sister, from his mother, if they too converted. The sages, however, prohibited this thing in order that it not be said that they entered from a higher sanctity to a lower one. For yesterday she was prohibited to him and today she is permitted. In addition, a convert who had sexual relations with his mother or sister while he is yet a gentile is no different than having sexual relations with any gentile. [Issure Biah XIV – 11,12]
It is clear that the transformation from a gentile state to a Jewish state occurs through an external force and is viewed in physical terms. The mutation is so complete that even the bonds of incest have been broken. The convert has undergone an act of birth. Significantly, despite all this, however, this transformation was not sufficient to totally integrate the convert into the Jewish community. The convert became an individual Jew, existing as an individual as yet set apart in profound ways from the Jewish People and from Jewish history. This becomes apparent in the following aspects of Jewish law.
First and foremost is the severe limitation set upon a male convert which restricts him from exercising or assuming any position of authority or leadership within the Jewish community. He may not govern, command or dispense justice to those who are naturally born Jews.
We do not establish a king from the community of converts even after many generations, until his mother is a born Israelite. For it is written … “ You may not place upon yourselves a stranger who is not your brother. “ This does not only refer to the monarchy but to any position of authority in Israel. He is not to be an officer in the Army, not an officer over 50 or 10; he is not even appointed to direct the flow of water to the fields. It goes without saying that a judge or president can only come from Israel. For it is written, … “ From the midst of your brethren you will appoint upon yourself a king. All appointments that are made can only be from the midst of your brethren. “
This restriction becomes more pointed when we realize that even a mamzer who was not permitted to marry within the Jewish community could, nevertheless, serve as a judge. (Mamzerut is a complex matter in Jewish law which has conflicting definitions among the rabbis. It normally refers to a child born of a relationship which was considered a capital offense, e.g. incest or adultery with a married woman.) A tribunal, even if composed completely of mamzerim, could judge with legitimacy. But if one member of an otherwise competent tribunal was a convert, then the entire body became disqualified. (Sanhedrin 37b, Mishne Torah – Sanhedrin 11-9) Similar debilitating restriction were placed upon female converts. Such a convert may not marry into the priesthood. To most authorities this decision was based upon the belief that even after conversion gentile women always retain the designation of being a zonah i.e. a legally defined prostitute.
A female convert, who is able to marry into the Jewish community, is thus also able to profane the priesthood. She is prohibited from marrying into the priesthood because she is a Zonah, even though she herself did not act promiscuously … and the reason for this is because she came from an idolatrous people who are immersed in promiscuity. (Tosaphot Yevamot 61a)
Although her conversion transformed her as an individual, conversion did not release her from her former racial and communal bond. This concept is further developed by Maimonidies: By definition all gentile women are legally considered to be prostitutes. “We have learned from Tradition that the Zonah that is mentioned in the Torah refers to anyone who is not a daughter in Israel.” (Issurei Biah XVIII-6) Conversion does not remove her from this status. “And likewise a female convert … even if converted … at an age of less than 3 years, since she is not a daughter in Israel, she remains a Zonah and is prohibited to the priest.” (Ibid 3)
The reference to her age is to demonstrate that Maimonidies adopted the majority position and rules against the Talmudic sage, Rabbi Shimon ben Yochai, who did allow females converted under the age of three to marry into the priesthood. (see Yevamot 60b) The normative position, however, disqualified all gentile women, without respect to their age or moral (sexual) activity. One who was born a gentile, in some respects, always retained that stigma and was disqualified from fully participating in the communal life of the Jewish people. It is evident that the rationale behind disqualifying women converts from marrying into the priesthood was similar to the one which prohibited males from assuming positions of authority. Priests were the source of leadership, learning and communal authority for the Jewish people. Converts could not be allowed to exercise even indirect authority through kinship. They could not marry into the ruling class nor produce children who would immediately be granted religious authority by virtue of priestly birth. It is noteworthy that Rabbi David ben Abraham (Ra’avid) disagrees with Maimonidies and refused to designate converted women a Zonah (prostitute). A righteous convert (Ger Tzeddek) should not be so designated. Nevertheless, he too agrees that they are disqualified from marrying into the priesthood because, …“They are not from Jewish seed.” Thus, although there is no trace of illegitimacy or negative connotation to the convert, as an individual human being or for that matter as an individual Jew, yet, for communal purposes they are not fully of the Jewish people.
The clearest indication that converts were not considered full members of the Jewish community was the fact that they were permitted to marry mamzerim. A mamzer could not marry other Jews for he could not, “enter the congregation of God” (Issurei Biah XV-l). The Rabbis, however, permitted converts to marry with Mamzerim because converts were also excluded from the concept and category of the congregation of God. They existed as individuals but could not form a community nor could they become part of the greater Jewish community. “A convert could marry a female mamzera and the child remains a mamzer because the community of converts is not a community.” (Kiddushin 72b)
It is clear that the prohibition placed upon mamzers is not marriage but acceptance within the community, and in turn stigmatizing it. There is no fear of such stigma when they marry converts because converts are not part of and have no effect upon the general concept of the Jewish community. Maimonidies fully develops this law:
A mamzer may marry a female convert and likewise a female mamzer is permitted to a male convert The children from both of them are mamzers for the child goes after the stigma. For it is written, …‘ in the congregation of God ‘ and the community of converts is not called the community of God. (Issurei Biah, XV-7)
What is more startling is that just as a mamzer does not lose that stigma in future generations, a child descended from converts is always considered a convert even to the extent of being permitted to marry a mamzer.
A female convert that married a male convert and they gave birth to a son, even though he was conceived and born in purity, is, nevertheless, permitted to marry a mamzer, and the case is so with his son and his son until the designation of convert is erased from him and it is no longer known that he is a convert. Then he is prohibited from marrying a mamzer. (Issurei Biah XV-8, see also Kiddushin 75a)
The designation or stigma of being a convert can be erased only if the convert, be he male or female, married a born Jew. Their child acquires full Jewish status vis-a-vis belonging as a full member of the community. The reasoning is based upon the Talmudic ruling that in a legal marriage, i.e. one in which there is no halachic impediment, the child follows the father. Since a born Jew may marry a female convert his child acquires his status (as a Jew) and not the stigma of the mother. On the other hand, when the mother is a born Jew who marries a convert the child again acquires her status because it is no worse than had the father been a non-Jew. In that instance the child fully follows the mother and so must follow her when she marries the convert as well.
Despite these communal limitations, converts are lauded and greatly respected by the tradition. Ruth is highlighted as the righteously converted ancestor of King David whose ultimate progeny would be the Messiah. The Torah and Rabbinic tradition emphasize that there was a special injunction to love converts and to refrain from oppressing them far and above the normal requirement which was to be accorded to those born Jewish. In his enumeration of the commandments, Maimonidies states:
We were commanded to love converts as the Almighty said, “…and you are to love the convert.” And even though he was included with an Israelite when it is said, “…and you are to love your neighbor as yourself,” for this convert is a righteous convert since, however, he entered into our Torah, God increased a measure of love upon him and designated for him an additional commandment ( of love ) as He did with the general warning, “…do not oppress and He said,’ and a convert you shall not oppress.’ “ And it has been clarified from the language of the Talmud that we are liable for oppressing a convert because of the verse, “…do not oppress,” and the verse, “…a convert you shall not oppress.” We are also obligated to love him from the verse, “..love your neighbor” and from the verse, “… and you are to love the convert.” There is no doubt about this explanation and I do not know of anyone who enumerated the commandments that rejected it. In most of the Commentaries they explain that God commanded us with reference to the convert as he has commanded us with reference to himself. He said, “…you are to love the Lord your God,” and He said, “…you are to love the convert. (Sefer HaMitzvot, Positive Commandment 207)
Such special treatment, however, may have been necessary precisely because converts were not fully regarded or accepted as Jews. They were excluded from any sense of status within the community and, indeed, were seen by certain Rabbinic authorities as a threat to the sanctity of Israel. Rabbi Chalbo considered them a heavy burden upon the body of Israel. (Yevomot 47b)
According to Rashi the burden is produced because converts still retain their earlier habits and are a bad influence upon naturally born Jews. (Ibid) The Tosaphists focused on the fact that converts may intermarry with born Jews. These marriages dilute the nation and hinder the Shechinah, or God’s Presence from dwelling among Israel, “ … for the Shechinah rests only upon families in Israel with legitimate pedigrees.” [Ibid] [See also Kiddushin 70b – 71a]
CONCLUSION
I believe that the legal conflicts dealing with the primacy of the court or the convert that we see presented in the Talmud and the subsequent Codes are in large part based upon the philosophical ambiguity we discussed at the beginning of our analysis. The heart of that analysis was whether conversion is primarily an external factor established by the court and applied in a mechanical way in the process of conversion or whether it was an organic process which developed and grew within the consciousness and psyche of the prospective convert.
We also saw that although conversion was welcomed and indeed required to continue in Judaism, at the same time it was feared and highly suspect. It was seen as highly desirable for the individual for it enhanced his spiritual life and well-being but at the same time there was a sense that it might be detrimental to the community at large by diluting its religious and historical core.
Thus the value of conversion was also dependent upon where it occurred. In the Land of Israel where Jewish courts have power and the entire society and culture are Jewish the will and the mind of the convert are of relatively minor importance. The court is of primary importance in effecting the change and the surrounding culture will assure that the proper information and patterns of behavior will be learned and adopted by the convert.
We see this overwhelming scope of judicial power by the fact that converts were not accepted during the reigns of David and Solomon. Those were the glory days of Israel and converts were suspected of duplicity. That, however, did not invalidate the conversions that the court chose to perform. In addition, we are told that Hillel accepted converts who presented themselves even with the most outrageous conditions. The Bet Yosef and others explain this Talmudic record by clearly maintaining that the court has full discretion in all cases where the option of rejection is not utilized by the convert.
Although the Talmud clearly states that the convert must accept the commandments, the concept of acceptance underwent a radical transformation. In this process it evolved into the power that the convert had into the ability to actively reject the conversion. We see this in various circumstances. An adult gentile can simply refuse the conversion. A child has no ability to refuse and is thus converted through the “mind” of the court. Nevertheless, when the child attains the age of understanding or consent he is able to reject the process and renounce the conversion. He is not, however, required to actively accept the conversion. This demonstrates that even to those who maintain that the acceptance of the commandments and inner will and intent of the convert is the most important aspect of conversion, even more so than the judicial process of the court, finally agree that the “act of acceptance” is really just the absence of rejection. This conforms to the general principle that one may not be converted against his will.
This was evident in the case of the Y’fat To-ar, a woman captured in battle. It is clear that her conversion was under duress and her assent was not sincere. Nevertheless, here too her conversion could not be accomplished [except for the position of Rabbi Shimon ben Elazar] if she actively rejected the process. It is clear that any extensive or intense act of acceptance was not truly necessary because at the time of the conversion the prospective convert was a non-Jew. As such his testimony on all matters, especially those that were self-servicing was invalid and could not be accepted.
Finally, I would like to suggest that the radical transformation which occurred in the last several hundreds of years where the technically legal issues of conversion became less important while the role of the convert and his sincerity assumed primary importance really had to do with historical necessity and not theological truth.
Although what was stated in the introduction to this paper that conversion seemed to be the best method of maintaining the existence of the Jewish community due to erosion which has occurred due to late marriages, falling birth rate, intermarriage and the gravitation of younger Jews to secularism and social liberalism and the doctrine of universalism, the rabbis sensed from a theological perspective that vast increases of converts into the Jewish community may in fact equally undo the existence of Jewish life. First, gentiles who come to Judaism bring with them a state of mind, use of language and attitude which are totally alien to a Jewish world view and understanding of God. In addition they feared that an infusion of converts may undermine what they considered the purity of the Jewish people and openly maintained that the increased presence of converts would radically dilute the Divine Presence among the people of Israel.
From an historical perspective, after the Exile, when Jewish courts no longer had hegemony upon Jewish life, the concept of rejection was transformed into a very necessary positive act of acceptance. It became crucial to the welfare of the Jewish community to properly gauge the integrity and intent of the prospective convert. His sincerity was of the utmost importance and this could only be ascertained by his knowledge and willingness to accept the commandments. This was necessary even though halachically it was unnecessary and legally insignificant. Not living in a totally Jewish culture and environment it was easy for him to revert to his prior way of life and even inflict harm upon the Jewish people. It was clearly evident from Jewish history that many converts became disenchanted with their engagement with Jews and with the basic inequalities i.e. their inability to obtain authoritative positions in Jewish life and thus their love of Judaism could turn into hatred. Thus, the acceptance by the convert of the commandments assumed an extraordinary importance. Conversion was now viewed from the perspective of the Jewish community rather than from the perspective of the convert. The question that was now raised was how to deal with the issue of conversion which would create the best benefit and least harm to the community as a whole. The welfare of the convert assumed much less importance. The lengthy interrogation which could last years and pursued every aspect of inquiry into the history and personality of the convert was not to fulfill any aspect of Jewish law, but rather to assure the safety and welfare of the community. This then can be the only resolution to the conflict between the law as it is written and the law as it is practiced. Unfortunately great tension arises with such a resolution which ultimately cannot be ameliorated.
THANKS
I would like to express my gratitude to my good friend and colleague, Dr. Sanford Silverstein, who stayed with me during the duration of a very difficult paper utilizing his computer skills.
The Lamdan 
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i thoroughly enjoyed your article! I have been researching and trying to gain understanding on Jewish patronymics. I was wondering if you would be able to help me better understand a section from the minor techtrate Gerim. There is a part which talks about a proylite being immersed in the name of G-d. And a phrase Leshem Shamayim. I was wondering if you better understood what was being referred to by this? And would the ger receive a new name at the immersion? I realize that is allot of questions😄 any help would be much appreciated! Thank you so much
Ryan Stanski
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