ABORTION AND THE HALAKHIC CONVERSATION

text itself neither says this nor demands such an interpretation. The text refers both to a condemned female prisoner and to her fetus: it is not"about" capital punishment more than it is"about" abortion unless and until the interpreter says so. True, penal law may seem a plausible classification for this text. But plausibility is not to be confused with fact, and it is a fact that leading posqim have understood Arakhin 7a to refer to the status of the fetus relative to the needs of its mother. Thus, to use this source to learn about the law of abortion is not necessarily an improper,"apples-to-oranges" analogy. Moreover, though Arusi is certainly justified in warning against the reliance upon poor or forced analogies as the bases for legal judgment, it is also a fact that halakhists have for centuries arrived at their rulings through the use of the inductive method. And it is impossible to say in advance just how a text should be read, just which analogies are good ones and which are forced. Such determinations are made by the interpreter during the act of interpretation, and they are seldom

made in accordance with a formal system of classificatory rules such as Arusi's.

2. To rank a poseq over a commentator is to forget that the poseq is perforce also a commentator.® All halakhic decision draws its validity from the text of the Talmud , the authoritative source of the law. Every ruling therefore assumes an interpretation of that text In our case, the dispute between Rambam and Rashi is not so much a dispute between a poseq and a commentator so much as a disagreement between two commentators over the interpretation of M. Ohalot 7:6 and Sanhedrin 72b. If Rambam 's ruling is "correct", it is not because he is a posek but because his understanding of the texts is more correct than Rashi's. Conversely, those posgim who reject his view do not rank him below Rashi: rather. they find Rashi's interpretation of the texts in this case a better one. The standard of Judgment is not the relative prestige of the two authorities but the extent to which one offers a more persuasive understanding of the Talmud itself© Jt is according to this

criterion, the standard of persuasiveness, that the poseq no less than the commentator must be measured.