THE SEARCH FOR LIBERAL HALAKHAH

necessary. He reasons similarly on the question of rabbinic annulment of marriage.’ While the sources dispute that question, he believes that the rabbis can indeed declare marriage null and void when the situation warrants such an extreme step. Morality demands that they utilize this power to improve the lot of the wife and protect her from exploitation.

Unlike Jacobs, Berkovits thus identifies the normative criteria of halakhic legitimacy. A proposed decision is valid in Jewish law 1) when it can be justified by source argumentation at least as plausible as that which supports other alternatives, and 2) when it expresses the principles of fairness and morality integral to the halakhic system. On this basis one may posit that the items on the liberal halakhic agenda fall within the parameters of legitimacy set by the internal processes of Jewish law. The only remaining question is whether today’s rabbis are empowered to diverge from the rulings and interpretations of the sages of past generations and adopt new and innovative solutions. Berkovits argues that they are. Over fifty-eight pages of text, quoting extensively from classic comments of the rishonim, he constructs a theory of virtually limitless rabbinic discretion in halakhic judgement® If a contemporary scholar, upon his honest reading of the sources and his estimation of the demands of the hour, determines that the halakhah must be understood differently than it has been understood in the past, he may rule accordingly. Even if the collective weight of legal tradition stands against him,"Jepthah in his generation is as Samuel in his own."*!

Why then, if Berkovits is correct, does such discretion almost never happen? The poskim, in fact, seldom diverge from traditional understandings of Jewish law to create innovative solutions to halakhic problems. It seems that in exalting the freedom of the contemporary authority, Berkovits ignores the very real and powerful limit which historical consensus exercises over halakhic decision-making. The issue of coercion of divorce on the claim of

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