IS OLD AGE A DISEASE?
legal materials from which the judge derives her ruling. This point of view has attracted legions of critics, who bear such labels as “positivists, realists,”*“pragmatists,” and“critical theorists.”” They are united by the proposition that judges do have discretion, the power to choose—in effect, to create—an answer to an indeterminate legal question, and are divided primarily over the extent to which that discretion exists. The same question is manifest in halakhic decision. To what degree is Rabbi Feinstein actually constrained to define the question of medical resource allocation as one centering on the comparative evaluation of purposes—the analogy to the talmudic sources in B. Bava Metzia 62a and B. Sanhedrin T4a—rather than the mitzvah of lifesaving and medicine? Was this choice the one and only“right” answer to the question, at least in Feinstein’s interpretation of the Halakhah ? Or was it actually a choice, a decisiun between two“good” alternatives, that because of its very indeterminacy is left to the discretion of the inspired posek?
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This is not the occasion to enter into a thorough analysis of these theories. Regardless of the extent to which halakhic decision is discretionary or determinate, it is customarily presented to the community of rabbinically literate readers in the form of argument. Even if the posek chooses one available answer over the other, and even if the“real” impetus for this choice is to be located in the social, economic, or cultural factors at work on his thinking, halakhic convention requires that should he convey his ruling in the form of a written responsum, he must justify it, explaining it in terms that his intended audience, though it might not accept it, will find potentially persuasive.