Taking Precedent Seriously 45

innovate. Respect for precedent is demonstrated by the defer­ence that halakhists customarily pay to the established and accepted understandings of Jewish legal texts and rules. The readiness to innovate expresses itself in novel interpretations of halakhic material and applications of halakhic texts. The responsa literature awaits its Llewellyn, a researcher who will detail the techniques by which individual poskim adapt their precedents to fit the context of the she’elot that confront them. In the meantime, the example of R. Yitzchak b. Sheshet Perfet indicates the sorts of technique that are available, the potential for creative application of precedential material that rests in the halakhist’s hands.

It also suggests a more general point, namely that halakhic reasoning, like legal reasoning in general, can be best understood as a species of rhetoric.!* By“rhetoric,” I do not mean eloquence, the embellishment of language. Rather, I use the term, as do a number of contemporary scholars, to refer to the discourse of argumentation, the methods and processes by which speakers seek to justify claims of value to particular audiences. Rhetoric in this sense can be defined as“a discipline for mobilizing the social passions for the sake of belief in a contestable truth whose valid­ity can never be demonstrated with mathematical finality.”'*! Pesak, especially in the form of a responsum, is“rhetoric” in this sense because the meshiv not only lays down the law but seeks to justify his answer to a particular reader or audience of readers. His answer must be justified because it is not the only possible or plausible reading of the legal sources that both he and his read­ers accept as authoritative. His answer is a claim of meaning, a call to his readers that they should understand their tradition in this manner, that they should favor this answer over the other available readings of the sources. His answer will be judged “correct” to the extent that he succeeds in persuading his audi­ence to accept his interpretation and to act upon it. To the extent that we accept this approach, we place less emphasis upon judg­ing the“correctness” of a halakhic decision as measured against some putatively objective standard and more emphasis upon understanding the manner in which its author presents it.

In our example, the goal of the analysis is not to determine whether Rivash ’s ruling was right or wrong but to chart the argumentative structure by which he justifies his answer in terms that his projected audience—his“ideal reader”—will presum­ably find convincing. This structure can be usefully divided into