MARK WASHOVSKY

mais alai is a case in point. The"lenient" opinion of Rashi and Rambam is rejected in no uncertain terms by R. Tam, Ramban, R. Shelomo b. Adret, R. Asher b. Yehiel,? R. Nissim Gerondi, R. Yitschak b. Sheshet Perfet and other luminaries, a rejection so complete that the position is not mentioned in the Shulhan Arukh. The commentators are in no doubt that the law here follows the consensus opinion,” and that opinion has never been challenged by subsequent authorities.?* Thus, it is doubtful whether the rejected opinion is still an available alternative to the halakhist. What happens when a rabbi does challenge the historical consensus is illustrated by Berkovits himself. In 1966 he proposed his own halakhic innovation, a pre-nuptial stipulation agreed to by bride and groom that would annul the marriage in the event that the husband would one day arbitrarily refuse to issue his wife a divorce. This provoked a sharp response from R. Menachem Kasher, who contended that the Berkovits proposal did not overcome technical difficulties which had buried similar proposals in the past. Kasher's main point, however, was that Berkovits has no business contradicting the unequivocal ruling of the great poskim who prohibit the use of such a stipulation. During the course of the century a total of 1500 rabbis have explicitly rejected the institution of conditional marriage under any circumstances. The quality and quantity of this rabbinic opposition demonstrates that"there is no excuse to raise again a question which has already been examined and decided by all the sages of Israel . Their ruling must not be doubted.” Kasher expresses his scorn by never referring to Berkovits by name, but only as"a certain rabbi". Such is the fate of Jepthah when, even in the name of morality, he challenges the halakhic consensus.

This consensus, as understood by Kasher and by the leading halakhic scholars whom he cites, is not merely a tendency among rabbis toward extreme conservatism. It is presented as a working factor in halakhic theory, a principle that is recognized by the legal

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