140 Mark Washofsky
consent to the sale? An attempt is made to analogize his case to that of a husband who is coerced by the court into issuing a divorce to his wife, even though the law of the Torah explicitly requires that the husband freely consent to a divorce. If coercion does not contradict the fact of consent in the divorce case, perhaps it does not contradict it in the sale of property case. The Talmud , however, rejects the analogy. The divorce case is explicable by the principle that“it is a mitzvah to heed the words of the sages,” i.e., the court that requires the divorce: since one is obligated to obey the law and since one arguably wishes to do so, we can say that consent to the divorce, though elicited by pressure, is consistent with one’s“true” wishes(see Yad, Gerushin 2:20). This principle does not apply, obviously, to the sale of personal property, which involves no religious obligation. Note that the Talmud invokes a general principle to illuminate the differences between the cases
and hence to reject the analogy.
128 The term was first coined, it would seem, by the rabbi and philosopher Eliezer Goldman in a lecture he delivered at the Sth Conference for the Study of Jewish Thought(Tel Aviv , 1958). By“meta-halakhah,” Goldman meant those principles and conceptions- some of which are mentioned explicitly in the Talmudic sources while others are not- that, while not part of what he called the positive halakhah, are absolutely necessary for halakhic thought to function at all. See Eliezer Goldman . Yahadut I'lo ashlayah, ed. Dani Statman and Avi Sagi (Jerusalem : Shalom Hartman Institute, 2009), pp. 15-37. For a collection of essays devoted to the subject see Avinoam Rosenak , ed., Halakhah , Meta-halakhah ufilosofiah (Jerusalem : Magnes, 2011).
129. Elon, in Jackson(note 117, above), p. 84.
130. Edward L. Rubin,“The Practice and Discourse of Legal Scholarship,” Michigan Law Review 86(1988), pp. 1835-1905. The quotation is at p. 1848.
131. See at note 15, above.
132. The foregoing does not even begin to consider the“critique of methodology” offered by postmodernist theory, which emphasizes that, especially in the humanities and social sciences, the phenomena the scholars observe are more the products of construction than of discovery and that“reality” is contingent rathef than essential, created by language and enjoying no independent existence outside the linguistic universe. The literature on the subject is vast. I offer my own