32 Mark Washofsky

accepted truths will be seen as dissenters, troublemakers per­haps, for raising issues that had been thought settled. But a fact of social life should not be confused with the theory of law by which the group lives. That theory may well permit the commu­nity’s members to revive arguments that have lain dormant for some time. So, too, in the halakhah: regardless of the tendency of the community to coalesce around the“accepted” opinions, this social fact does not—in theory—prevent competent scholars from reconsidering other opinions that, though not reflected in communal practice, still exist as plausible interpretations of the legal sources. Against this, however, we can discern two major reasons why the halakhic consensus operates as a precedential force in Jewish law. First, the examples cited above show that the existence of a consensus does constrain the decisions of rabbis, making it much less likely that they will issue rulings that con­flict with the widely-accepted view of the scholarly community. True, this constraint may be one of practice rather than abstract theory, but it is after all practice which decides the law. Against this reality, theoretical possibilities may matter very little; the halakhah that the people actually know will be the halakhah that is constrained by consensus. And second, some writers do attempt to construct theoretical justifications for the workings of the halakhic consensus. One such theory attributes special insight, an almost charismatic knowledge to the gedoley hador, the leading halakhic sages of the day; the view that they accept should accordingly be seen as the correct one, even if other interpreta­tions of the sources could be advanced.'?! Another approach, that of R. Yosef Dov Soloveitchik, derives a distinction between two types of authoritative tradition(masoret) in Jewish law: a“tradi­tion of learning,” the Talmudic arguments and proofs that lead to legal rulings; and a“tradition of practice,” formed when the community(kelal yisrael) adopts particular behaviors as its way of performing the mitzvot. This“tradition of practice,” the way in which the halakhah is observed in fact, bears a strong affinity to what I have termed the halakhic consensus, and as Soloveitchik notes,“reasoning and proofs cannot prevail against a tradition of practice... in such a case, it is the tradition itself and not Talmu­dic reasoning which determines the observance.” It is because of this“tradition of practice,”“which can no longer be changed on the basis of purely intellectual considerations,” that obser­vant Jews will reject out of hand interpretations of the halakhah