Taking Precedent Seriously 31

would suffer if the wife were to enjoy such easy access to divorce." R. Tam’s position was adopted by virtually all sub­sequent rishonim, to the point that the Shulhan Arukh, which frequently recites Rambam '’s opinion as halakhah, makes no men­tion of his position on this issue." Riskin’s argument for restor­ing the practice of coerced divorce in these cases is two-fold: Rashi and Rambam present an interpretation of the Talmudic sources that is as good as if not better than that of R. Tam; and the social concerns which seem to have led R. Tam to his ruling are far outweighed today by the need to rescue deserted wives from their status as agunot. We have here, again, a, apparently legitimate halakhic argument, crafted by a rabbi whose solici­tude for halakhah is beyond reproach. Yet here again, his proposal is rejected out of hand by Orthodox commentators on the grounds that R. Tam’s opinion“has been accepted into the fabric of the Shulhan Arukh, the basic code of practice for halakhic Jewry.” Instead, Riskin is advised to join in the search for reme­dies for the agunah problem that have some chance of being accepted.!® The halakhic consensus once more makes itself felt. The consensus having been established—in this case, it has been established for centuries—a conflicting view of the halakhah is rejected out of hand, despite the plausibility of that view as a matter of textual interpretation. The rejected opinion certainly retains its theoretical and historical significance, for it is of deep interest to the scholar that Rashi and Rambam read the Talmud differently on this point than do R. Tam and his successors. The “scientific” scholar, too, may want to consider the social, cul­tural, and other factors that might have led to these variant inter­pretations. But the rejected opinion is not taken seriously as an alternative approach to the real-life application of Jewish law." Indeed, the very fact that it has been rejected by the halakhic con­sensus is itself a criticism against those like Riskin who might think to raise it again.

To all of this, one might respond that consensus is not a for­mal constraining rule in the halakhah but rather a social fact, the tendency within legal or religious communities to unify over time around particular resolutions to contentious issues. Once a resolution has gained wide acceptance, it may be quite natural for the community’s members to“gravitate”'? toward that reso­lution, affirming it as one of the accepted truths defining the community’s beliefs and actions. Those who question these long­