52 Mark Washofsky

guage explain and apply these texts. The task of the lawyer is to translate the bare facts of a case, drawn from social reality, into legal language, a discourse of rules, principles, and concepts that inhabit the world of the jurist; the law can resolve the case only by working its way through these rules and principles and con­cepts.'®® Halakhah , similarly, is a discourse in which issues are talked about in a particular textual language, to the point that lit­erary expressions that deviate from this linguistic context are not recognized as truly halakhic. Liberal halakhists have always rec­ognized this. From the inception of the Reform movement in Europe , legal scholars associated with the cause have utilized halakhic texts and argument to explain and justify its ritual inno­vations.!>* Reform responsa are themselves halakhic documents; though written in the vernacular of the sho’el and the meshiv, they speak the classical rabbinic language of Talmudic text and analy­sis.!% These points should be kept in mind when we hear calls for a new and different style of Reform responsa-writing that is less dependent upon halakhic text and that draws more heavily from other Jewish and non-Jewish literary genres. Taking prece­dent seriously requires that place ourselves firmly within the boundaries of Jewish legal practice, and that practice is con­ducted in the textual language that has served as the medium of expression for Jewish law for two millennia. Responsa that arrive at their conclusions without working through the texts and lan­guage of Jewish law are not responsa in the truest sense, precisely because they depart from that practice.

Finally, the recognition of precedent as an essential compo­nent of legal practice implies that we are working within a tradi­tion. I have in mind here the concept of tradition as defined by Alisdair MacIntyre:“a living tradition then is an historically extended, socially embodied argument, and an argument pre­cisely in part about the goods which constitute that tradition.”** A tradition so conceived is the moral and cultural context within which the participants of any argument must stand if they hope to persuade their fellow participants of the rightness of their position or even to make themselves understood to each other.'” A traditional discourse is rooted in the texts of the past(“histor­ically extended”), is carried on with conversation partners who likewise participate in that tradition(“socially embodied”), and its common life is comprised largely of an argument over the precise meaning and application of those texts to questions and

|}