Narratives of Enlightenment 117
halakhah(‘ikar hadin) judges the Shabbat violator to be an apostate, it follows that“those who act stringently and regard the wine of these transgressors as‘Gentile wine’ are to be commended.” Yet the reasoning he has just outlined allows him to add that“those who rule leniently do have halakhic support for their viewpoint.” That is, today’s Shabbat violator may not be an apostate, so that one may drink wine poured by the non-observant Jew “so long as it is not obvious that he knows the laws of Shabbat and has nonetheless decided to violate them presumptuously and in public.”
Having outlined the argument in R. Ya'akov Ettlinger’s employs responsum, we are in a better position to evaluate Professor Katz’s charge that it is essentially a“legal fiction.” By this, as I have indicated, I understand Katz to mean that the responsum is more accurately to be read as an essay in social policy than as an act of halakhic analysis.“Legal fiction” implies that the responsum’s
halakhic citations and discussion function primarily to lend it an air of legal legitimacy(to make it“sound” like law) and thus to disguise the“real” factors— social, cultural, and economic— that motivate its conclusion. Although I disagree with this claim, there are at least two good reasons why the reader might find it persuasive. The decision, first of all, is a transparently convenient one. As Katz presents him, Ettlinger was an Orthodox moderate and realist who recognized that observant Jews did not wish to isolate themselves from their nonobservant brethren who already constituted the maj ority of the Jewish community. Moreover, and unlike authorities of more extreme views such as the Hatam Sofer , he had no ideological objections to this stance of coexistence and accommodation. What he needed, therefore, was a halakhic theory that would justify this stance, and this ruling most certainly serves that purpose. The second reason 1s that, in terms of its substance, Ettlinger’s halakhic theory 1s innovative and controversial. For example, I am unaware of any authority prior to Ettlinger who argues that one who“remembers” the Sabbath while openly violating its prohibitions is not truly a mehalel