MARK WASHOFSKY of halakhic authors and to understand the activity of pesikah.
8. The classic statement of this point is the Introduction to the Mishneh Torah(or Yad Hahatkah, or more simply, Yad) of Maimonides (Rambam ). As opposed to the decisions and rulings of post-talmudic authorities, he writes, the words of the Babylonian Talmud are binding on all Israel , since the Jewish people declared their acceptance of them(hiskimu aleyhem kol yisrael). The Talmud , in other words, is the ultimate and exclusive authority for halakhic decision, and a decision is binding only to the extent that it is based on an interpretation and application of the Talmud . Similarly forceful are the words of R. Asher b. Yechiel(Rosh), Hilkhot Harosh, Sanhedrin 4:6. Like Rambam , Rosh declares that the contemporary scholar is free to rule in accordance with his own best understanding of the Talmud , since only the Talmud (as opposed to the rulings of later scholars) is authoritative.
This portrait is somewhat simplified, of course, since sources other than the Talmud can be and are cited as support for halakhic decision. Prominent among these is minhag, or the custom of a particular community, a source of law that may or may not have clear roots in the Talmud . The force of minhag in the shaping of Jewish religious practice, even in contradiction to the apparent conclusions of the Talmud itself, has been particularly pronounced in Ashkenazic tradition, where the rabbinic response has over time sought to reconcile these two apparently conflicting sources of law; see I. Ta-Shema , Minhag ashkenaz hakadmon(Jerusalem : Magnes, 13-105), and Mark Washofsky,“Minhag and Halakhah,” in Walter Jacob and Moshe Zemer , eds., Rabbinic-Lay Relations in Jewish Law(Tel Aviv and Pittsburgh : Freehof Institute of Progressive Halakhah, 1993), 99-126. Yet the point remains: Jewish legal decision must be justified, warranted; supported by sources and argumentation other than the opinions and desires of any particular rabbi or group of rabbis,
9. The literary study of the responsa is a burgeoning scholarly field that is yet in its infancy. See, in general, Peter Haas , Responsa: Literary History of a Rabbinic Genre(Atlanta: Scholars Press, 1996); Solomon B. Freehof , The Responsa Literature(Philadelphia : Jewish Publication Society , 1955), especially pages 30-45; Menachem Elon , Jewish Law(Philadelphia : Jewish Publication Society , 1994), 1453-528; and Mark Washofsky,“Responsa and Rhetoric.”
10. In a forthcoming essay I hope to demonstrate that some of Rabbi Feinstein’s responsa do bear evidence of what we might best term literary-rhetorical artistry: that is, the careful construction of the responsum as a text whose literary elements help achieve its goal to persuade the reader to accept its conclusion as the correct answer to the problem under consideration.
IL The usually cited source for the mitzvah of pikku’ah nefesh is Lev. 18:5 and its midrash in B. Yoma 85b. Although the Talmud at first glance seems to define the practice of medicine as a Voluntary rather than an obligatory act(B.- Bava Kama 85a), medieval halakhists extended the permit” to the status of mitzvah. See Nachmanides , Torat Ha'adam(ed. Chavel) 41-42: since we Set aside the laws of Shabbat and Yom Kippur for the sake of piku’ah nefesh(see SA OC 328 and 618), and since we frequently make these determinations on the medical advice of physicians, it follows that medicine is the very definition of piku’ah nefesh. His formulation, in turn, is adopted by the Tur and the Shulchan Arukh, YD 336:1. Maimonides , for his part, derives the mitzvah of Medicine from Deut. 22:2, which speaks of the obligation to restore lost objects and which, by
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