MARK WASHOFSKY

The very fact of an halakhic consensus is of sufficient importance as to warrant its own study.’ In this essay, I want to explore the making of this halakhic consensus. I do not seek to evaluate its"correctness" as a statement of Jewish law; my goal is rather a study in approaches to halakhic reasoning. By what means has the restrictive position on abortion achieved the status of consensus? If, as liberal halakhists contend, there is more than one plausible halakhic response to the abortion question, how do orthodox halakhists justify theirs as the correct answer? I will argue that this"correctness" has been established by means that are excessively mechanical and formalistic, by scholarly procedures imposed upon the law from without, by a pure conceptualism that is at once intellectually interesting and halakhically unpersuasive. This has occurred, I believe, because halakhic authorities view their enterprise as a kind of scientific inquiry, a search for"the" objective truth. Halakhah in this conception can permit of only one correct answer to any legal question. When confronting a serious issue for which the sources provide a plurality of approaches, therefore, these authorities require a method that will allow them to banish uncertainty, to locate the single right answer from among the available alternatives.

Against this tendency, I will argue that halakhah is neither mathematics nor an exact science which operates according to rules that produce sure and certain knowledge. Any attempt to fashion such rules will betray its own intellectual inadequacy. Indeed, our issue provides a case study in the artificiality of halakhic"method." Like law, I will suggest, halakhah is better understood as a rhetorical practice than as a science. It is a field where, in the absence of objective certainty, the participants search for meaning through a process of ongoing argument. Its proper language is that of practical reason rather than scientific method. Halakhic"truth" is not the product of some systemic criterion of validity; rather, it is the always-tentative result of a never-ending discussion aimed at eliciting the assent of the community of halakhic practitioners. The model of halakhic reasoning is not that of scientific method; it is what I would call the halakhic conversation, a reasoned if impassioned dialogue among all the potentially correct interpretations of the

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