THE SEARCH FOR LIBERAL HALAKHAH
of the textual justification that could be marshalled in defense of such rulings.” Liberal rabbis, who deviate from the‘Massorah of conduct’ as defined by the preponderance of halakhic opinion, do not qualify as halakhic authorities; their writings, no matter how proficient in Talmudic analysis, are not to be regard as halakhic literature.>
Roth’s theory, which attempts to explain the halakhic process while explaining away the halakhic consensus, is a conceptual model which explains how halakhah ought to work. Like other liberal approaches, however, it does not account for the way in which halakhah functions in the concrete world of rabbinic practice. For example, Roth’s theory does not discuss the dominant role played by the gedolei hador, the leading halakhic authorities, in shaping halakhic practice. Unlike judges in a Kelsenian system, the gedolim are not selected through a rational procedure governed by systemic legal rules but by"a sure and subtle process which knows its leaders and places them in the forefront of a generation."' These men identify the halakhic consensus for their time and determine, in fact if not in theory, the parameters of legitimacy in halakhic argument.® To ignore their formal/informal function as a"Sanhedrin in exile" is to present an inaccurate picture of the halakhic system as it really is. Consider as well Roth’s treatment of the phenomenon of codification in halakhic history. Since the writing of codes tends to limit the exercise of judicial discretion, he seeks to minimize the importance of codification by citing the remarks of well-known opponents of the Mishneh Torah and the Shulkhan Arukh. In theory, he has a point. Perhaps the views expressed by Ravad, Maharsha , the Penei Yehoshua and the Sheelat Yaavetz opposing the exclusive reliance upon codes ought to be seen as the"royal road" of halakhic practice. Yet this fervent theoretical wish is controverted by the fact that codes have been written; that they have been produced in response to a perceived need for legal clarity and certainty; and that these books have functioned to limit the scope of permitted decision
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