MARK WASHOFSKY

the abortion question in the halakhic texts. Yet despite their efforts the goal of"correctness" eludes them. They have not uncovered the indisputably right answer through interpretation of the sources. On the contrary: they have created it. Through the invention of new halakhic concepts, the arbitrary elimination of inconvenient evidence, or the institution of a contestable system of decision-making rules, they force their version of the right answer upon sources which otherwise support more than one conclusion. Each of them thus circumvents the indeterminacy of the halakhah by an act of legislation masking as interpretation. They make the correct halakhic practice appear to be a plain fact when, in point of fact, it is highly controversial. And this, ultimately, is the chief sin of formalism: the use of artificial technique, a procedural or logical device which, appearing to dictate the exclusively correct conclusion, disguises the reality that the"right" answer is the product of a rabbinic choice among available alternatives.

[I.7THE MODEL OF CONVERSATION

This situation arises, I believe, out of a rigid misconception of the nature of legal reasoning. In the thinking of many orthodox halakhists there can be but two alternatives: either there is a single, correct solution to every legal problem, or there is no correct solution at all. Either the sources dictate a right answer to an halakhic question, or that answer is not to be found in the texts and must be imposed from without. The latter alternative is unpalatable, because it implies that in hard, contestable questions, halakhic truth does not lie within the Torah of Moses but is rather legislated by an act of rabbinic discretion, a choice determined largely by the debatable religious, cultural, or ideological tendencies of the rabbi or rabbis who make it. To concede this point, argued by many academic scholars of Jewish law,” is to concede that halakhic truth is developmental and historically conditioned rather than fixed, eternal, and immutable. But to affirm the existence of a single correct answer derivable from the sources raises the difficulty that on many issues these sources will inevitably support more than one plausible interpretation. The result is mahloget, the stubborn legal dispute. In theory, orthodoxy can tolerate differences of opinion as the necessary price of the halakhist's

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