Shiur #07: The Beit Din Le-Giyur (1)

  • Rav David Brofsky
 
Introduction
 
 
The Sages taught: [The verse states that Moshe charged the judges of a court:] "And judge righteously between a man and his brother, and the convert with him” (Devarim 1:16). From here [based on the mention of a convert in the context of judgment in a court], R. Yehuda said: A potential convert who converts in a court is a valid convert. However, if he converts in private, he is not a convert.
 
Similarly, the Talmud (ibid. 46b) relates:
 
Rabba said: There was an incident in the house of R. Chiyya bar Rabbi – and as R. Yosef teaches it, R. Oshaya bar Rabbi was also present, and as R. Safra teaches it, a third Sage, R. Oshaya, son of R. Chiyya, was also present – in which a convert came before him who was circumcised but had not immersed. He said to the convert: Remain here with us until tomorrow, and then we will immerse you.
Rabba said: Learn from this incident three principles: Learn from it that a convert requires a court of three [people to preside over the conversion]. And learn from it that one is not considered to be a convert until he has been both circumcised and immersed. And learn from it that the court may not immerse a convert at night.
 
The gemara asserts that a conversion must be performed in the presence of three. R. Yochanan explains that this is based on the fact that “judgment is written with regard to him," as the verse states: “And one judgment shall be both for you and for the convert that sojourns with you” (Bamidbar 15:16), and legal judgments require a court of three judges.
 
Although the Talmud clearly states that the conversion must be performed by a beit din of three dayanim, the Rishonim disagree as to which part of the conversion process (i.e. the mila, the tevila and/or the kabbalat mitzvot) must be performed in their presence.
 
Furthermore, based on a passage (Yevamot 45b) that implies that the immersion in the mikveh does not require the presence of a beit din, the Rif (Yevamot 15b) explains that while le-khatchila (preferably) the conversion should be held in front of three judges, and only in such a case may the convert marry another Jew, if the convert did immerse (i.e. convert) alone, his child is considered to be Jewish. The Rif's opinion was the topic of much discussion among the Rishonim and Acharonim
 
The Rishonim debate numerous other fundamental questions regarding a beit din le-giyur (conversion beit din), including the necessary qualifications of conversion judges. In addition, we might question whether the beit din rules upon the conversion, as in other court cases, or whether they function as the quorum – as representatives of the Jewish People, in front of whom the non-Jew converts.
 
 
Giyur Be-Zman Ha-Zeh – Modern Day Conversion
 
The gemara (ibid. 46b) strongly implies that a conversion court is no different than other batei din. Due to this comparison, many Rishonim assume that a beit din le-giyur must be comprised of three dayanim semukhin, judges who have the original semikha passed from generation to generation beginning from Moshe Rabbeinu. Interestingly, however, the requirement that the dayanim of a conversion court have semikha does not appear in the Talmud. Furthermore, the Talmud records incidents of conversion long after the cessation of semikha. Given that this semikha no longer exists, how is it possible to continue converting non-Jews?
 
Shelichutayhu Avdinan
 
Some Rishonim (Tosafot, ad loc., s.v. mishpat; Ramban, Sanhedrin 3a) suggest that just as other areas of Jewish law are adjudicated by rabbinic judges who are not semukhin, based on the principle "shelichutayhu avdinan" – they are doing their agency – the same is true regarding conversion. This principle appears in the Talmud (Gittin 88b) regarding the ability of rabbinic judges to adjudicate certain areas of law:
 
Abaye found R. Yosef sitting in court as the judge and compelling husbands to give their wives bills of divorce. He said to him: But are we not ordinary people, not ordained judges (dayanim semukhin)? … R. Yosef said to him: We see ourselves as agents of the ordained judges in Eretz Yisrael, and we are performing our task as judges on the basis of their agency, just as is the case with regard to cases of admissions and loans [=monetary losses], which we attend to on the same basis. [The gemara asks:] If so, why is the halakha that judges living outside Eretz Yisrael do not judge in cases of robbery and personal injury [=fines and penalties]? [When we perform our tasks as judges on the basis of their agency,] it is with regard to common matters [such as cases that pertain to the halakhot of admissions and loans, which arise frequently between people]. But with regard to uncommon matters [such as cases of robbery or personal injury], we do not perform our tasks as judges on the basis of their agency.
 
The Talmud concludes that although nowadays, ordinary judges may adjudicate cases of financial loss, certain cases, such as those involves fines and penalties, may not be adjudicated, as they are not "common." The gemara (Sanhedrin 3a) explains that common matters may be adjudicated by ordinary judges "so as not to lock the door in the face of potential borrowers."
 
Elsewhere (Bava Kama 80b), the gemara further limits the authority of a court of ordinary judges:
 
When we perform the agency of [the judges of Eretz Yisrael, we do so] only in a matter that is common and involves [payment for] a monetary loss. But in a matter that is common but does not involve [payment for] a monetary loss, or in an uncommon matter which does involve [payment for] a monetary loss, we do not perform the agency of [the judges of Eretz Yisrael].
 
Although the coercion of a get is a "common matter," regarding financial matters, the gemara concludes that ordinary judges may adjudicate only when the matter is "common" and involves "monetary loss."
 
The Rishonim question how this principle may be applies to conversion. First, is conversion a "common matter"? The Talmud (Gittin 85b) explicitly describes conversion as "uncommon." But the Ran (Gittin 88b, s.v. ki) explains that "bringing someone under the wings of the Shekhina, while not common, is preferable to a financial matter, which is common." In other words, conversion is so important that the rabbis extended their agency to this matter as well. (See also Sema, Choshen Mishpat 1:1.)
 
Second, the Rishonim ask how this principle can be extended to conversion, as "shelichutayu avdinan" appears to be a rabbinic enactment. Regarding financial matters, this enactment is supported by the principle of "hefker beit din hefker" – i.e. matters of ownership can be uprooted by the rabbis. Similarly, regarding marriage and divorce, the rabbis teach that "one who betroths [a woman] does so with the intention of the rabbis in mind, and they have the ability to invalidate the kiddushin" (see, for example, Ramban, Yevamot 46b).
 
However, if the authority of a court of ordinary judges to convert is based on a rabbinic edict, how are they authorized to convert non-Jews? This question led R. Yaakov Lorberbaum of Lissa (1760-1832), author of the Netivot Ha-Mishpat (1), to conclude that the principle of shelichutayhu avdinan is actually of Biblical origin and force. R. Aryeh Leib HaKohen Heller (1745–1812), in his Ketzot Ha-Choshen (34:1), appears to disagree with the Netivot, suggesting that the authority to convert may be based upon the rabbis' ability to "uproot a matter from the Torah" (Yevamot 90b).
 
Other Rishonim suggest that while the principle of "shelichutayhu" is considered to be rabbinic, there is a verse that enables ordinary judges to function as agents of prior dayanim semukhin when semikha is no longer extant. They derive this from a Talmudic passage (Keritut 9a) that explains that while a convert was obligated to bring a korban during the time of the Beit Ha-Mikdash, after the destruction of the Temple, the absence of this offering does not prevent future courts from performing conversions:
 
If that is so, then in our time, when there are no offerings, we not should have the ability to accept converts. R. Acha bar Yaakov says that the verse states: “And if a stranger sojourn with you, or whosoever may be among you, throughout your generations” (Bemidbar 15:14). [This teaches that converts may be accepted throughout the generations, even when there is no Temple and sacrificial offerings are therefore impossible.]
 
The Rambam (Yevamot 46b, s.v. shemat) asserts that "the Torah enables ordinary judges (hedyotot) to judge as agents of the [earlier] experts" when it comes to conversion.
 
Interestingly, the Acharonim question whether the notion of "shelichutayu avdinan" may, at times, lead us to conclude that a conversion performed in an inappropriate manner is invalid, as the beit din did not properly carry out the agency afforded them by the earlier courts. For example, R. Naftali Tzvi Yehuda Berlin (Netziv) suggests in his Meshiv Davar (2:46) that if a beit din disregards the instructions of Chazal and accepts a convert who does not accept upon himself all of the mitzvot, this may violate their mandate to accept converts and thereby undermine the validity of the conversion. Although the Netziv later rejects this assertion, R. Avraham Yitzchak Ha-Kohen Kook (Daat Kohen 150 and 152) accepts it and questions the validity of certain conversions based on this logic.
 
Similarly, R. Tzvi Pesach Frank (Har Tzvi, Yoreh De’ah 216) was asked regarding conversion performed in Argentina despite the communal edict forbidding the acceptance of converts. R. Frank suggests that since the conversion were performed against the will of the rabbinic establishment, the batei din that perform such conversions are not fulfilling the agency of previous batei din, and the conversions are therefore invalid. R. Bentzion Chai Uziel (Piskei Uziel, She'elot Ha-Zman 68), however, insists that each beit din was given the authority to function as the agents of prior batei din, and a community's enactment cannot undermine that agency.
 
R. Yitzcḥak Schmelkes (1828–1906), in his Beit Yitzchak (Yoreh De’ah 100:5), rejects the notion that we may challenge the agency of a beit din, and R. Moshe Feinstein (Dibberot Moshe, Yevamot 35) arrives at the same conclusion. They note that the Talmud's assertion that conversions performed for ulterior motives are valid after the fact appears to contradict the notion that an improper conversion may undermine the beit din's agency.
 
Le-Doroteikhem
 
The R”i (see Ritva, Yevamot 46b, s.v. dilma; Nemukei Yosef, Yevamot 16a, s.v. tanu rabannan) suggests that when dayanim semukhin are no longer available, ordinary dayanim may perform conversions based on the verse cited by the gemara, “And if a stranger sojourn with you, or whosoever may be among you, throughout your generations (le-doroteikhem)” (Bemidbar 15:14).
 
Other Rishonim understand that this verse teaches that there is no requirement of semukhin at all. For example, the Rashba (Yevamot 46b, s.v. dilma) explains that "le-doroteikhem" teaches that although a conversion must be performed by a court of three, the three judges need not be semukhin, even in the times when there were dayanim semukhin.
 
The Rambam also appears to maintain that conversions may be performed by ordinary dayanim. Indeed, in a well-known passage regarding the "wives of Shimshon and Shlomo," the Rambam (Hilkhot Issurei Bi'ah 14:15) distinguishes between conversion performed by "hedyotot" and those performed by a regular beit din. Since both types of conversions are halakhically valid, we see that the Rambam does not require that conversion be performed by dayanim semukhin.
 
Although three ordinary dayanim suffice, the Talmud (Yevamot 46b) describes how the three "talmidei chakhamim" inform the convert of the mitzvot while he is immersed in the mikveh. This requirement appears in other Rishonim (Meiri, Yevamot 47b; Tosafot R”i Ha-Zaken, Kiddushin 62:2) as well. The Rambam omits the phrase "talmidei chakhamim," as does the Shulchan Arukh (YD 268:2); the Rema adds the phrase "talmidei chakhamim." R. Moshe Feinstein (Iggerot Moshe, YD:159) rules that is it sufficient that one Torah scholar inform two others who join with him to form the beit din of the basic laws of conversion.
 
Next week, we will continue our discussion of the beit din le-giyur.