THE SEARCH FOR LIBERAL HALAKHAH
It is questionable, however, whether any historical treatment, even one as extensive as A Tree of Life , is really helpful to contemporary halakhists who advocate specific solutions to these problems. Halakhah , like law, is a normative, rather than a historical discipline. An innovation in law is legitimate, not because lawyers have always made innovations, but because this innovation is justified by the criteria of validity recognized by the relevant legal system.'® Historical factors which induce changes in a legal system are not to be confused with the internal rules that govern the system and its procedure.'’ That sages in the past have rendered decisions which can be seen as"liberal" does not by itself establish the halakhic validity of any particular innovation suggested to contemporary authorities. For example, that Jewish law has historically provided economic and social relief to women the ketubah, the permit for the agunah to remarry through the relaxation of Toraitic rules of evidence, and the takanot of Rabbenu Gershom are examples which come readily to mind--does not mean that any measure undertaken to improve the status of women(e.g., annulment of marriage, inclusion of women in a minyan, their acceptance as witnesses) is halakhically legitimate. To win acceptance, each of these proposals must be justified through convincing halakhic argumentation rather than by appeal to the invisible hand of history.
The historian may respond that the notion of"criteria of halakhic legitimacy" is a fiction, a rationalization that hides the real motivation of the rabbinic judge. Jacobs, at the beginning of his book, assumes this position. The halakhist, he tells us(pp. 11-12), approaches a legal question by first determining the best answer according to his own understanding of Jewish "ideals"; he then searches for halakhic rules and principles-"acceptable legal ploys," Jacobs calls them- to support his opinion. This account of rabbinic reasoning is, of course, an anathema to Orthodox scholars.!? Still, if Jacobs is correct in his reading of halakhic history, then any decision which is just and compassionate can, in the hands of a
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