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MARK WASHOFSKY
[ cry: amazement! amazement!®' How can one excise a whole responsum of Mabharit on the strength of such a fanciful supposition? This would be so even were there no evidence to counter his assertion; yet that evidence exists.”
Legal interpretation, Waldenberg would say, is not like the critical academic study of ancient literature. We are not permitted to emend troublesome texts, particularly when these have entered the canon and have for centuries been cited as evidence by scholars in their argumentation. If an authority seems to contradict himself between one text and another, the proper procedure is to accept that he wrote both and to utilize legal logic to resolve them.” We take the evidence as we find it; we do not take the"easy way out" and excise difficult texts from the law books.
Both of Feinstein's mechanisms are examples of what I have termed "halakhic method", the use of formal devices to derive the one"correct" answer to an halakhic question. Feinstein's method greatly simplifies the Jewish legal debate over abortion which is, to put it mildly, a complex one. As we have seen, there is much evidence in the texts and sources to support both the lenient approach which allows abortion in non-mortal cases as well as the more restrictive one which has become the halakhic consensus. This legal plurality is disturbing to Feinstein, who wants to show that the restrictive view is the correct interpretation of the law. His method, therefore, is designed to disqualify evidence which would support the opposing side. Declaring Rambam 's halakhic supremacy by fiat, he invalidates all opinions which differ from the latter's stringent ruling; claiming"error" and"forgery", he removes from scholarly consideration two important texts upon which the lenient position is based. These moves, it must be emphasized, are external to the legal sources; they are not demanded by the texts themselves or by agreedupon rules of halakhic procedure. In both cases, Feinstein invokes a deus ex machina, a factor from outside the texts which forces the halakhic discussion to a conclusion which it otherwise would not reach and which other competent authorities in fact do not reach. The result is an halakhic victory by default,
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