MARK WASHOVSKY
particularly the works of Hans Kelsen and John Salmond, ” in helping to identify the"systemic" structure of rabbinic law. From Kelsen he adopts the notion of a Grundnorm, a postulated, pre-legal principle from which all other precepts of the legal system are derived. Such a concept exists in every system; in the halakhic system, the Grundnorm would read:"the document called the Torah embodies the word and will of God , which it behooves man to obey, and is, therefore, authoritative"(p. 9). Roth borrows Salmond ’s classification of all legal questions into questions of law and questions of fact, with the former divided into questions of law in the first sense(questions which the law has definitively answered) and questions of law in the second sense(questions as to what the law is). A question of law in the second sense is also a question of fact: that is, the judge must determine the true meaning of the words of a text, statute, or precedent. In the early stages of a legal system, most questions fall into this latter category. Over time, matters of uncertainty are gradually transposed into fixed, precise definitions and presumptions. Here the halakhic system differs from most others, since with the disappearance of the Sanhedrin there is no universally recognized body empowered to turn questions of fact into questions of law in the first sense. This implies a wider range of judicial discretion in halakhah than that existing in other systems. On all matters of legitimate mahloket that is,"such that none of the positions can be legally demonstrated to be untenable or false"- the rabbinic arbiter remains free to exercise his discretion, even when an earlier authority has decided
otherwise.
This discretion thrives in the halakhah even though a sense of the holiness of his task and of his inferiority compared with earlier scholars may deter the contemporary halakhist from rendering a decision"at variance with common practice or precedent." His freedom is guaranteed by the principle which Roth calls"the sine qua non of the system": ein ladayan ela mah sheeinav
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