126 Mark Washofsky

particular halakhist tells in order to ascribe meaning to the events of his time.

ON THE EVALUATION OF NARRATIVE

As a matter of descriptive legal analysis, this is about as far as one can go. A posek tells his story, and another tells a different one; there exists no systemic rule or meta-principle in the halakhah to determine that the one narrative construction of the historical data is“correct” while the other is“incorrect.” In the case under consideration, no descriptive analysis— that is, an analysis that proceeds from the perspective of an outside observer— can determine with any certainty whether the non-observant Jews of our time truly meet the criteria of tinok shenishbah.’® All we can say is that the claim has been asserted by some and contested by others and that each claim is potentially correct because it has the capacity to

persuade its intended readership that it is the best available interpretation of Jewish law on the subject.

Recall, however, that some Law and Literature scholars insist that there is a way to proceed beyond the purely descriptive level of inquiry toward a deeper, more normative evaluation. Their goal was primarily an ideological one, to critique the underlying narratives of the legal culture from the perspective of the outsider. I wonder, however, whether it might be possible to evaluate the writings of poskim on more specifically literary grounds. After all, if law can be conceived of in some way as akin to literature, then surely it can be critiqued in the way we criticize literature. A literary critique of the use of narrative in halakhic writing, therefore, would not rest content with simply cataloging the stories that halakhists tell. Rather, just a3 we recognize that the existence of multiple narrative constructions in the law does not imply that all of them are equally good, legal scholarship must assume the task of judgment:“what stories shoul we tell?” By“judgment” I do not mean the activity of the jurists