136 Mark Washofsky

98. B. B'rakhot 19b, and Rashi, s.v. v'einah I'fi k’vodo; Yad, Kilayim 10:29. The exception: one who wishes to act at a higher level of ethical attainment(/ifnim mishurat hadin) may return the lost object even when his dignity would be violated

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in doing so; B. Bava Matzi'a 30b; Yad, G'zeilah ve'aveidah 11:17. 99. Responsa Maharam Padua, no. 87

100. Resp. Maharival 1:40

101. Responsa Rema, no. 125

102. Responsa Da at Kohen, no. 169. For an argument permitting women to serve as scribes for Torah scrolls see W. Gunther Plaut and Mark Washofsky, editors,

Teshuvot for the Nineties(New York: CCAR, 1997), no. 5755.15, pp. 177-183. 103. See, for example, Berkovits(note 85, above).

104. Sperber(note 85, above), pp. 17-43. His summary, on p. 42: k'vod hab'riyot outweighs the countervailing principle of k'vod hatzibur(“the dignity of the congregation”), which has traditionally been cited as the basis for the prohibition

of calling women to the Torah. 105. Blidstein(note 93, above).

106. Blidstein(note 93, above), p. 128. His discussion of the concept’s overall I I

absence from halakhic discourse is at pp. 128-131.

107. Roscoe Pound , An Introduction to the Philosophy of Law(New Haven : Yale University Press , 1954), p. 56-57. See also Haninah Ben-Menahem , Judicial Deviation in Talmudic Law(Chur , Switzerland : Harwood, 1991), p. 180:“Western legal thinking demands total obedience to the letter of the law, making no allowance for extra-legal considerations.” Ben-Menahem contrasts this with his own study, which suggests that Talmudic law“allows judges to deviate from the law if, in their opinion, such a course is justified”(ibid.). Ben-Menahem ’s observations are restricted to the legal situation as indicated in the two talmudim. The question: do they likewise describe the decisional tendencies of rabbis in post: Talmudic times? As I read it, the massive research into the history of the post Talmudic halakhah reveals a complex picture. The poskim do attempt to decide according to the rules of the law rather than in accordance with general, abstract principles of ethics and equity. At the same time, halakhic jurisprudence ensured that the individual posek enjoys a great amount of interpretive freedom, allowing him to construct arguments that to a great extent reshape the rules in accordance with the needs of his time and the requirements of the individual case. For mor¢

extensive consideration of this question, see my“Against Method”(note 13, above)