48 Mark Washofsky

dent in relationship to other rules, cases, and considerations. The responsum we have examined, in which the obviously controlling precedents are both honored and set aside through the posek’s judicial rhetoric, is a powerful example of this phenomenon.

To think of halakhah as a rhetorical practice, then, helps account for the ambivalent role of precedent in Jewish law. This becomes a helpful tool with which to address more general issues of legal theory. One such issue is the controversy in the academic literature surrounding what has been called the“turn to Jewish law,” a scholarly motif that has emerged in response to a perceived crisis in American jurisprudence.’ The“crisis” is the breakdown of the liberal consensus that held sway in legal practice in the United States , among practitioners as well as aca­demicians, roughly from the 1930s to the early 1970s.1% In place of this consensus, which had encouraged the belief of main­stream scholars in the capacity of legal reasoning to arrive at obviously correct answers to legal questions, there now exists a cacophony of theories, ideologies, and“metanarratives” that lead to radically differing conceptions of the nature of law and of legal correctness. The dilemma: can American lawyers speak of their law as a coherent system when the legal community is char­acterized by broad behavioral and interpretive pluralism? Some authors have suggested Jewish law as a solution, seeing in it a model of a unified legal system that at the same time tolerates machloket(dispute) and a plurality of interpretations of legal truth.'¥” Others reject this model as a distortion of Jewish law. They stress that Judaism is an essentially religious system , in which law is the product of divine revelation. Belief in the revealed status of the law acts as a firm restraint upon interpre­tive freedom; the predominant demand in Jewish legal practice is for uniformity rather than plurality in decision.!*® This is a fas­cinating controversy; unfortunately, the writers on both sides tend to base their positions upon what I would call program­matic texts: that is, statements and stories in Talmudic litera­ture! that can be interpreted as providing definition or structure to Jewish law. The difficulty is that these texts are not necessarily meant to serve as essays in jurisprudential theory, nor do they operate in the world of practice as a constitution for a working Jewish legal system. They are abstract pronouncements whose applicability to the process of decision-making is, to put it mildly, ambiguous. Any attempt to define the nature of Jewish

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