MARK WASHOVSKY

making. A more balanced view of halakhic history would have to

place at least as much emphasis upon the factors which encourage

codification as upon those which argue against it,

If liberal theory holds that the halakhic consensus does not limit the freedom of the rabbinic judge, the halakhic facts are Rabbinic discretion gives way to consensus, which operates as a working,"systemic" principle that cannot be explained away by means of theoretical construct. Indeed, it is difficult to imagine halakhah without such a principle. The Talmudic sources of Jewish law are an incredibly rich and varied treasury of rules, principles, custom and commentary from which almost any analogy can be made and almost any distinction can be drawn. Rabbinic lore recounts examples of sages who could declare reptiles to be kosher: i.e., they could offer rational, logical argumentation for every possible halakhic conclusion, including those which are obviously false. A religious legal system that values coherence and consistency could hardly survive if it permitted its scholars a largely unlimited discretion to rule on the basis of its classical sources. A controlling device that determines which analogies, distinctions and conclusions are the correct one to draw from the sources is thus a virtual necessity. In halakhah that control has been exercised primarily by two factors: 1) the use of"discretion," of creativity in reaching halakhic judgement, is restricted to the handful of outstanding scholar-saints of the generation; 2) the"correct" answer to a halakhic question is that which is accepted by the preponderant majority opinion among these sages.”* Halakhah , in other words, is synonymous with the opinion of the gedolim, and the liberal innovations that run counter to the consensus view among them will be rejected as invalid. Any theoretical construct which ignores the very real power of this consensus is a description of something other than the halakhah as it operates in the real world. As long as the consensus stands unchallenged, no historical or analytical treatise can prove that halakhah is compatible with liberal values.

otherwise.

40