ABORTION AND THE HALAKHIC CONVERSATION

intellectual independence. In practice, however, especially when the question at hand is one of vital religious or ethical concern, it"knows only too well that some conclusions are ruled out from the beginning even if these appear convincing from the point of view of abstract logic and pure legal theory." And when the question is abortion, some halakhists are prepared to rule out the"wrong" conclusions in the most arbitrary manner. By resorting to such egregious formalistic devices, they unwittingly lend support to the contention of the Critical Legal Studies movement that legal reasoning places no objective constraint upon judicial discretion, that a decisor can manipulate the texts so as to arrive at whatever answer is dictated by his or her value-preferences, that "law"(read: halakhah ) is but"politics"(or theology, ideology, and so forth) by another name.

Liberals need not accept these two stark alternatives. Nor, for that matter, should any honest student of the halakhic process. There is another conception of Jewish legal decision which does not insist upon the existence of one right answer to a question of halakhah. 1 call it"the model of conversation," and I want to sketch it here in the broadest outline.

The term"conversation" implies a discourse between two or more speakers, each of whom is open to learning from the others. A"legal conversation" is an exchange between several points of view whose legitimacy is mutually recognized by the conversants."Legitimacy" means that each position represents an acceptable interpretation of the law, one which is justified by analysis and reasoning which that particular legal tradition(as experiences and understood by the participants) holds as adequate. Together, these alternatives chart an intellectual map whose boundaries mark the range of interpretive freedom available to the decisor.

The notion of a legal conversation requires two theoretical commitments. The first is that there are legitimate interpretations of the law, from which it follows that others are illegitimate. The conversational model accepts the fact of boundaries, limits which legal reasoning exerts upon a judge's freedom of choice. True, legal"realists" and critical scholars can cite

68