Mark Washofsky

arguments, whether by way of a“hunch” or of a general impression that “this is how the question ought to be decided.” Louis Jacobs suggests that this indeed is the way rabbis answer halakhic questions: they begin with a general impression drawn from their personal Judaic values and then search for legal arguments to support this preconceived conclusion. See his A Tree of Life(Oxford: Oxford U. Press , 1984), 11-12. Still, the reasoning as conveyed in the teshuvah is a vital component of the answer, for without that reasoning the meshiv cannot justify his decision to his readers; he cannot advocate that they adopt his view of the halakhah unless he shows them in some reasoned form—that is, through some pattern of argument that they might conceiv­ably accept as“halakhic”—why they ought to adopt it.

. Peter Haas ’s Responsa: Literary History of a Rabbinic Genre(Atlanta: Scholars Press, 1996) is an effort in this direction. What I mean by a“literary study” of the responsa is indicated in my“Responsa and Rhetoric: On Law, Literature and the Rabbinic Decision,” in John C. Reeves and John Kampen, eds., Pur­suing the Text: Studies in Honor of Ben Zion Wacholder(Sheffield: Sheffield Aca­demic Press, 1994), 360-409. Menachem Elon , Jewish Law, 1453-1528, offers what is currently the best discussion of the responsa as“literary sources” of law in the Judaic tradition. And for detail and characterization of the she’elot uteshuvot, Solomon B. Freehof ’s The Responsa Literature(Philadelphia : Jewish Publication Society of America , 1955) is still unsurpassed.

126. Resp. Rivash, no. 15. See Abraham M. Hershman, Rabbi Isaac Ben Sheshet Per­ fet and His Times(New York : Jewish Theological Seminary of America , 1943), 39, who posits that this responsum was written soon after Rivash arrived in North Africa in the wake of the persecutions of 1391 in Spain .

127.The halakhic tradition derives this requirement from Gen. 1:28; see Sefer Hachinukh, mitzvah no. 1. The relevant halakhic sources are M. Yevamot 6:6, BT Yevamot 61b-62a and 65b, Yad, Ishut 15:2ff., and SA EHE 1.

128. On this, see BT Pesachim 49a and SA EHE 2:8.

129.See, e.g., Alfasi, Ketubot, fol. 36a, and Hil. Harosh, M. Ketubot 7:20 and M. Yevamot 6:16.

130. The classic method is to demonstrate that the apparently deviant minhag in fact constitutes a correct interpretation of the Talmudic sources. A good example is the defense by medieval Ashkenazic halakhists of the practice of conducting commerce with non-Jews on a Gentile religious festival, an apparently clear transgression of the prohibition laid down in M. Avodah Zarah 1:1. Compare the straightforward presentation of the law in Alfasi, Avodah Zarah , fol. 1a-b, with the treatment it receives in Hilkhot Harosh, Avo­dah Zarah 1:1. On the relationship between halakhah and minhag in medieval halakhic literature, see Yisrael Ta-Shema, Minhag ashkenaz hakadmon (Jerusalem : Magnes, 1992); Jacob Katz , Halakhah vekabalah (Jerusalem : Magnes, 1984); Haym Soloveitchik ,“Religious Law and Change: The Medieval Ashkenazic Example,” AJS Review12(1987), 205-222; and Mark Washofsky,“Minhag and Halakhah: Toward a Model of Shared Authority on Matters of Ritual,” in Walter Jacob and Moshe Zemer , eds., Rabbinic Lay Rela­tions in Jewish Law(Pittsburgh and Tel Aviv : The Freehof Institute of Pro­gressive Halakhah, 1993), 99-126.

131. An unstated motivation—but one I think cannot be far from Rivash ’s mind—

is the desire to keep the Gentile authorities from intervening into the affairs

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