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MARK WASHOFSKY

3. Many halakhists hold, contrary to Arusi, that a ruling found in a responsum is to be preferred over one contained in a"code". As R. Naftali Zvi Yehudah Berlin puts it:"when one rules in a concrete case(halakhah lema aseh), he comes to a deeper understanding of the law than does the one who reaches the same decision by way of theoretical learning."

Halakhic authorities, in other words, can and do dispute Arusi's iron rules of classification, and they do not feel obliged to decide the law in accordance with them. Thus has it always been. For every R. Yosef Caro , who posits a set of rules for decision-making, there is a R. Moshe Isserles who offers a different set of rules,*® and there is a R. Shelomo Luria who rejects them both.** Arusi's system is therefore a failure. For any system of decisory rules to"work", to yield the indisputably correct legal solution, the rules themselves must be above controversy. They must be accepted as"the rules of the game" by the preponderance of those who play it. They cannot function merely as suggestions; as authoritative indices of correctness, they must be perceived as valid a priori constraints upon the freedom of the interpreter. Yet no such perception is current among the rabbis.®® Indeed, Arusi is forced to spend a great deal of time critiquing all those eminent posgim- Trani, Bacharach, Waldenberg , R. Benzion Ouziel, R. Yehiel Ya'akov Weinberg, R. Shaul Yisraeli- who do not analyze the abortion question according to the rules he finds obvious.®® Arusi may assert normative validity for his system; perhaps this is the way the Jewish legal process ought to work. But as a matter of description it is in error: the halakhah, as it exists and has been decided by posqim for centuries, simply does not work this way. Arusi"finds" that the lenient posqim are objectively wrong, but in fact they are wrong only because he says so, because they fail to conform to his own version of proper legal procedure. He therefore cannot argue that he has identified the objective standard of halakhic correctness.

To design a system of rules suggests a purpose, a goal which the system seeks to achieve. Consider Arusi's words:®’

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