36 Mark Washofsky
means of this argumentation, the responsum’s reader enters as it were the author’s study, catches a glimpse of the process of halakhic decision at work, watches as the meshiv reasons through to an answer to the question before him.'** As opposed to a “code” of halakhah, which might present the legal conclusion with no accompanying argumentation, a responsum represents a sustained attempt to persuade its readers why they should understand the halakhah on this particular issue in this particular way and why they should reject other possible but conflicting interpretations of the law. It is in this literature that we should expect to discover just how rabbinical decisors deal with legal precedents, since in justifying his ruling the meshiv will have to take cognizance of those past decisions by noted scholars that either support or conflict with his opinion. Whatever might be the“general” position of Jewish law on the subject, the responsum will offer the clearest indication of how the posek actually deals with the authority of precedent. Does he defer to it? Does he reject it? Does he“distinguish” it and thus explain it away? Or does he find a technique, a la Llewellyn, to transform that past ruling into something new and different in the history of halakhic interpretation?
It goes without saying—though in the interests of deflecting criticism I will say it anyway—that“a careful study of the rabbinical responsa literature” lies far beyond the scope of a single article. That sort of study, by which I mean an analysis of responsa as a genre of legal literature, would fill numerous monographs; although some useful preparatory steps have already been taken,'® the responsa literature awaits its Llewellyn. What I can try to do here is to offer but one responsum as an example of the“leeways” which a rabbinical authority can take with the legal precedents that would otherwise dictate his decision. This example, if and to the extent that it reflects a methodology that is typical among the poskim, may teach us much about how halakhists who honor precedent can nonetheless escape its constraining force when overriding considerations call upon them to do so.
The responsum I have chosen to study here was penned by R. Yitzchak b. Sheshet Perfet (Rivash ; 1326-1408), an eminent Spanish and North African halakhist, in answer to a query from the community of Tunis .’ The question, as rephrased by Rivash , concerns a certain Shmuel Aramah, who was to marry a ninety