Mark Washofsky
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.I have argued this point elsewhere. See Mark Washofsky,“Responsa and the
Art of Writing: Three Examples from the Teshuvot of Rabbi Moshe Feinstein, ” in A Festschrift for Walter Jacob (forthcoming), and“Responsa and Rhetoric: On Law, Literature, and the Rabbinic Decision,” Pursuing the Text: Studies in Honor of Ben Zion Wacholder, London , Sheffield Press, 1994, pp. 360-409. Anthony T. Kronman ,“Rhetoric, ” University of Cincinnati Law Review 67 (1999), 677-709. The quotation is at 687.
On the“ethical” appeal see Aristotle , On Rhetoric , translated by George A. Kennedy (New York : Oxford U. Press , 1991), 1.2(37). The reference is to ethos, one of the three classic pisteis(means of persuasion in public address, the others being pathos and logos). Ethos is the moral character of the speaker as presented in the speech. The point here is that Rivash , in his ample description of the established law, portrays himself as one who displays the virtues requisite of the good scholar. His readers can therefore trust him to arrive at an answer that is carefully considered and well-warranted according to the procedures of halakhic thought.
[ have in mind here the observation of Richard Weisberg that“great[judicial] opinions, like great novels, strive to put a narrative structure around a specific and observable reality, and thus to create a more lasting universe” “Law, Literature, and Cardozo’s Judicial Poetics,” Cardozo Law Review 1 (1979), 288. To put it somewhat more bluntly, in a judicial opinion, reality is what the judge says it is. The“great” opinion will do this with evident literary success.
On this notion of“translation,” the creation of new meaning from old texts by placing those texts in new relationships with others, see James Boyd White , Justice as Translation(Chicago : U. of Chicago Press, 1990).
to the Jewish Legal Model in Contemporary American Legal Theory, ” Har vard Law Review 106(1993), 813-894.
On the development of this consensus, its breakdown, and the various attempts by legal theorists to find alternative bases on which to reconstruct it, see Laura Kalman, The Strange Career of Legal Liberalism(New Haven: Yale U. Press, 1996).
The leading voice in this“turn” is that of the late Robert Cover, whose muchdiscussed“Forward: Nomos and Narrative,” Harvard Law Review 97(1984) 4ff., suggests that the plurality of“metanarratives” in American culture renders problematic any attempt by the courts to speak with a unitary voice in the name of the law. Cover regards this plurality, which challenges the traditional liberal conception of a“correct” meaning of the law accessible through reason, as a positive thing, and he looks to Jewish law as the paradigm of a legal system that can tolerate a multiplicity of judicial views; see his“Obligation: A Jewish Jurisprudence of the Social Order,” Journal of Law and Religion 5(1987), 65-90. See also, among others, Samuel J. Levine, “Halacha and Aggada : Translating Robert Cover’s‘Nomos and Narrative’,” Utah Law Review 1998(1998), 465-504; Perry Dane,“The Maps of Sovereignty: A Meditation,” Cardozo Law Review 12(1991), 959-1006; Norman Lamm and Aaron Kirschenbaum,“Freedom and Constraint in the Jewish Judicial Process,” Cardozo Law Review 1(1979), 99-133; and Sanford Levinson , Consti tutional Faith(Princeton : Princeton U. Press , 1988). And see David R. Dow,