MARK WASHOVSKY

skillful textual scholar, be proven legally valid. Jacobs here is reminiscent of the"realist" school which once exerted much influence over American jurisprudence. Like Jacobs, the extremists among the"realists" downplayed the importance of legal rules, contending that judges begin with predetermined conclusions and move"backwards" to formal justification by means of the manipulation of the"paper" rules of law.” Legal realism in its extreme form is today considered passé; the dominant jurisprudential theories recognize that analytical reasoning places firm, objective limitations upon judicial discretion.™ Jacobs eventuaily admits as much with respect to rabbinic law. In an appendix, he considers the plight of the mamzer, the offspring of an incestuous or adulterous union whose status is"the most stubborn and embarrassing problem traditional Jewish law has to face"(p. 257). He concludes that this injustice cannot be remedied through textual interpretation. The traditional halakhist, no matter how liberal his sensibilities, is ultimately bound by loyalty to the sacred texts of the Jewish legal tradition. He may read these texts in a creative manner, but he is not free to ignore them or make them say what they manifestly do not say. Unlimited judicial discretion does not exist in halakhah. When the clash between liberal values and sacred texts is unavoidable, it is the texts that must prevail.

To solve such intractable problems, Jacobs calls for a"non­fundamentalist” halakhah which would combine tradition with the dynamism and flexibility that Jewish law has displayed through the ages. While committed to the tradition, non-fundamentalist halakhic scholars would be willing to change the law, whether or not that change can be supported by the legal texts, whenever the existing halakhah leads to"the kind of injustice that reasonable persons would see as detrimental to Judaism "(p. 236). Jacobs thus abandons the attempt to demonstrate the legal validity of liberal halakhic innovations. It is not the text but the"higher values of Judaism " which establish the correctness of a decision. In this way,

30