MARK WASHOVSKY

"systemically defensible." His may be a minority view, but by the systemic rules of halakhah it must be recognized as a legitimate option. The same would apply to other Conservative halakhic innovations, such as the kashrut of wines and cheeses, the counting of women in a minyan, and the resort to conditional marriage. All of these positions are justified through traditional methods of halakhic argumentation and issued by rabbis committed to the halakhic system and its basic norm. All of them may therefore claim validity, even though they run counter to the consensus positions among the poskim.

still, this theory of halakhic validity will not be persuasive

to most halakhists. Despite his sophisticated explanation of halakhah as a legal system, Roth, like Berkovits, underestimates the power of the halakhic consensus as a working factor within that system. Consensus, a widespread agreement among halakhic scholars on points of law, is more than a guide to and prediction of future rabbinic decision. It is itself a"systemic" principle, a controlling mechanism that restricts the rabbinic discretion which, according to Roth, is the ultimate"systemic" principle in halakhah. Rabbinic decision-making, in this view, involves considerably more than the purely intellectual confrontation between the individual scholar and the authoritative text. The halakhic tradition is more than text. It contains as well that which R. Joseph Soloveitchik calls the"Massorah of conduct," the generally accepted modes of Jewish religious observance. The effect of this Massorah upon the understanding of halakhah is underscored by an Orthodox critic in his review of Roth’s book."Once a particular opinion has become normative for the entire Jewish community," he writes,"it becomes an integral part of the'Massorah of conduct’ which can no longer be changed on the basis of purely intellectual considerations." Rabbis loyal to halakhah as traditionally conceived would never violate this practical Massorah. Thus, they would never permit driving to synagogue and turning on lights on Shabbat , regardless

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