Taking Precedent Seriously 49
law on the basis of these texts is thus unlikely to advance beyond the realm of speculation.’”! A more promising way of measuring Jewish law’s capacity for pluralism is to study its concrete practice, the decisions rendered by halakhic authorities in actual cases. To the extent we find these poskim engaging in creative interpretation and application of their legal materials—making use, we might say, of the leeways of precedent in Jewish law— then and only then might we be able to identify Jewish law as a model of a legal system that—in practice if not in theory— accommodates a variety of conceptions of legal truth.
The rhetorical conception of Jewish law also speaks to our own situation as practitioners of liberal halakhah. As I stated near the outset of this essay, we stand accused by the Orthodox of misunderstanding(at best) or distorting(at worst) the substance of the halakhah because we diverge from the path of our predecessors. This implies that liberal halakhah is illegitimate: the decisions we render and the intellectual processes by which we reach them, precisely because they defy the weight of precedent, transgress against the canons of acceptable halakhic practice. How do we respond to this charge? We might, of course, decide to ignore it completely.“Liberal halakhah,” we might say,“is our own business. We are the ones who determine its definitions and proper procedures; it is legitimate because we say so, contrary assertions by Orthodox critics notwithstanding.” Yet however satisfying this response might be as polemic, it fails to suffice as a matter of theory and substance. The underlying assumption of our work as liberal halakhists is that what we are doing is legitimate, that our thinking and writing are quite at home within the halakhic tradition, and that our decisions—though they diverge from those issued by non-liberal scholars—are deeply informed by and rooted in the legal values that are the common heritage of the Jewish people. We do not imagine that we have invented an entirely new discipline and called it“halakhah”; rather, we call it “halakhah” because however new it seems it is seamlessly consistent with the discipline of Jewish law as practiced by rabbis for two millennia. Our position, indeed, is that our rulings and interpretations represent this halakhah at its best, that they develop the Principles and insights inherent in our legal sources in a way that is compatible with our liberal Jewish values. To establish this assumption, we need a substantive answer to the contention that our work is invalid because we diverge from precedent.