MARK WASHOFSKY

concerns a case of mortal danger. By contrast, Arakhin 7a, which some read as permiting abortion for other reasons, is"indirect" because its main concern is penal law, not abortion. This rule, says Arusi, is especially helpful as a buffer against the ill-conceived use of analogies as a basis for drawing legal conclusions, especially permissive ones.’® Penal law in particular is a unique rubric of the halakhah from which no valid analogies may be drawn to other issues.

2. A ruling of an halakhic decisor(poseq) such as Rambam is to be preferred over a conclusion derived from the words of a Talmudic commentator, whose explanations may not be intended as halakhically binding. Since the stringent position on abortion is usually based on Rambam and the lenient one on Rashi , the former must prevail.

3. A ruling in an halakhic compendium, such as the Mishneh Torah, is more authoritative than a decision rendered in a responsum, since the former declares a general legal rule while the latter is often limited to a specific set of circumstances or even poorly reasoned. Since the strict position on abortion is declared in the"codes" while the lenient rulings are found primarily in the responsa literature, the stringent side wins again.

The stringent position is the correct halakhah on abortion, therefore, because it accords with Arusi's formal rules of decision-making. Arusi contends that these rules can function as a universal key to halakhic correctness, identifying the"right" answer to every controversial question by distinguishing the proper sources for decision. The problem, however, is that there is little evidence that halakhic authorities other than Arusi himself would accept this system as an objective standard of halakhic truth. Indeed, each of

Arusi's"rules" is vulnerable to critique.

1. The distinction between"direct" and"indirect" sources requires a criterion of classification that is foreign to and imposed upon the texts themselves."Penal law" is just such a criterion. While Arusi simply declares that Arakhin 7a is"about" the law of execution and not"about" abortion, the

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