114 Mark Washofsky

the positivist philosophy. As we have seen, not all legal theorists embrace positivism, certainly not in such a pure form;“few positivists would assert that scholars are restricted in their critique to the use of binding sources” and are forbidden to consider more abstract entities such as principles.” Some academic scholars of Jewish law argue strongly that principles, no less than rules, are an inherent aspect of the halakhah because the legal“data”— the massive number of binding halakhot— would be unintelligible were it not for the general principles that lend them coherence and meaning.'”® This reality has long been recognized by rabbis, the very authorities whose rulings, in Englard’s view, constitute the whole of Jewish law. While traditional halakhists may prefer to reason from hard and fast rules rather than from abstract general principles, they frequently resort to principles in order to justify and explain their decisions. Consider the phenomenon of analogical reasoning, an endemic feature of halakhic as well as of legal thinking. Rabbis constantly draw conclusions about instant questions on the basis of observed similarities and differences with past, previously-decided questions. Were they not able to do so, the law would be frozen in place; as the Talmud puts it, analogical reasoning is the way we develop the law in virtually every field (veha kol hatorah kulav damo’i medaminan lah; B. Bava Batra 130b). Analogies are therefore central to the halakhic enterprise, and they do not suggest or justify themselves. The decisor who makes an analogy must explain why and on what grounds the instant case resembles or does not resemble the precedential case, and such an explanation requires a degree of abstraction and conceptualization that is not stated explicitly in the rules— the cases— themselves. These abstract and conceptual constructions are often presented in the form of general principles.” When the academic scholar relies upon principles, in other words, he does not diverge from the path of the rabbi, as Englard insists; he actually follows the rabbi’s lead. Principles—what some have called“meta-halakhah™®®- no less than discrete rules, arc essential to the working of the Jewish legal system, and the phenomenon called“halakhah” does not exist and cannot be understood without reference to them.