MARK WASHOFSKY

believe that although the former will die in any event, the treatment will allow the latter to recover from his or her illness. Yet that adoption is not fixed by the Halakhah . Put differently, the legal sources on which the posek relies to justify his decision could support either classification, either criterion for determining the allocation of medical resources. The Halakhah allows of more than one possible answer, more than one conceptual approach to this question. The posek’s task is to choose between the alternatives.

It is indeed the posek’s central and essential task, in the performance of which he defines“Torah ” for his community. Pos­kim exist and function as authoritative decisors precisely because the Halakhah does not admit of straightforward and obvious answers to all questions, precisely because on many complex issues the law can be persuasively interpreted either way. The same is true, of course, of law in general, a fact that has given rise to an extensive scholarship on the nature of judicial decision. What factors, these writers ask, determine the judge’s choice when a choice must be made among two or more plausible alternative answers to a particular legal question, when the law or the legal system itself does not offer a clear and unambiguous rule or rules that require one decision or another? Some theorists hold that the judge enjoys no discretion whatsoever in arriving at the decision, which is dictated either by pure deductive logic, by obective principles, or by the judge’s own sense of“political morality,” a coherent theory by which the judge explains the rules and precedents, the“data” of the legal system.

According to this view, judges may contend legitimately

that there is but“one right answer” to any legal question, that answer being the interpretation that makes the most sense of the

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