MARK WASHOFSKY
Halakhic decision is in this sense an extended argument or conversation within a particular, self-defined Jewish religious community united by a set of commonly held legal values, orientations, and principles. And it is in this sense that the literary model for understanding responsa that I described above comes into play. When the argumentation of a responsum or the justification for its ruling is either weak or virtually nonexistent, it is a failure from a literary perspective. It fails because it does not succeed in creating and maintaining the kind of community of legal argument and conversation that halakhic writing is intended to serve. To this extent, we can say that a poorly written responsum—that is, one that fails as halakhic literature—fails on a legal level as well. To survive, to perform its special role in advancing the halakhic conversation, a responsum must explain itself, must argue in persuasive language for the acceptance of its ruling as the best understanding of Jewish law on this particular subject. A responsum that merely states its ruling without arguing for it, without explaining why it favors one alternative and available answer over another, does not fulfill the literary and rhetorical expectations that its intended audience rightly demands of it.
A LIBERAL HALAKHIC RESPONSE
For the reasons enunciated above, Rabbi Feinstein’s reponsa on medical resource allocation have to be regarded as literary and legal failures. They fail, that is, because, by providing but the barest and most minimal justification for their rulings, they do not help us as readers to understand why those rulings should persuade us that they are satisfactory and convincing interpretations of Jewish law. As such, their effect in the course of Jewish legal discourse is likewise bound to be a minimal one. To be sure, Rabbi Feinstein’s
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