118 Mark Washofsky

Shabbat befarhesya; as we shall see, at least one of Ettlinger’s critics makes this very point. In addition, the designation of today’s non­observant Jews as“captive infants” is hardly self-evident. As our discussion of the differing approaches of Rambam and Radbaz toward the Karaites indicates, there is simply no way to“prove” that any particular community of real, flesh-and-blood Jews fits the specifications of the abstract Talmudic concept tinok shenishbah. Ettlinger is entitled to apply that concept to the non-observant Jews of his day, but no other authority is required to accept that description as anything more than Ettlinger’s personal opinion. To put this another way, the opinion’s legal reasoning is tenuous, a fact that offers further evidence of its“fictionality”: that is, Ettlinger invents the argument in order to support a ruling he believes is“right” despite its lack of real halakhic justification.

Nonetheless, 1 argue against this assessment, and my argument rests upon three major points. The first is that the history of Jewish law is replete with examples of creative theories(hidushei halakhah) in support of decisions that“deviate” from precedent and from the“plain sense” of the authoritative texts. It was, in fact, Jacob Katz himself who frequently drew our attention to this elemental truth.® Katz devoted numerous studies to what he called“the limits of halakhic flexibility,” the extent to which particular ritual prohibitions might(or might not) be set aside when the pressure of social, economic, and intellectual conditions made such lenient rulings desirable. Those limits, in his view, are constantly tested by the tension between“the halakhah in action,” the set of rules, rituals, and other behaviors that characterize the religious behavior of the community, and“the halakhah in the texts,” the literary sources written and read by halakhic authorities as part of their study of Torah and their search for its correct interpretation. When the “living” halakhah diverges significantly from“textual” halakhah, the posek’s task is either to demand a change in that devant behavior Of to presume that the behavior is actually correct and that it reflects an