MARK WASHOFSKY

opposed to a logical or social-scientific one. And if there is much controversy within the broad parameters of this"Law and Literature" movement,''° there is a growing awareness that the legal(and especially the judicial) process is best understood as a form of"constitutive rhetoric," a discourse through which lawyers translate accepted texts into new ways of speaking about the legal world. A judge's decision is therefore a literary composition framed in light of certain rhetorical assumptions: the definition of the intended audience, the conception of the speaker's role, the notions of what kinds of arguments this particular audience will find persuasive. It is an invitation to the readers to think of the law in the same way that the writer or speaker talks about it." Its logic invokes all those criteria, such as shared values, custom, consequences, and common sense, which, though invalid in syllogistic reasoning, are accepted as persuasive within a particular community of legal interpretation. It seeks meaning not so much in any objective property inherent within the texts themselves as in the shared response of the legal community which, through its reading of and reaction to the texts, determines their actual significance.''? The goal is persuasion, not"proof." Indeed, the fundamental assumption of the rhetorical conception of law is precisely that legal validity cannot be objectively demonstrated. A"true" legal proposition is one which elicits the assent(adherence, to use Perelman's term) of the intended audience.

Viewed from this perspective, R. Yair Bacharach's prohibitive ruling is an instructive example of halakhic rhetoric, of practical reasoning employed in the service of justifying the desired conclusion. Bacharach, we will recall, begins by offering arguments which would permit an abortion for the repentant adulteress; then, after citing the"widespread custom" among Jews and Gentiles alike to prohibit abortion as a means of discouraging illicit sex, he refutes each one of these arguments, giving the law a stringent cast. His rhetorical strategy, I think, is clear: he sweeps the reader in his wake toward a lenient reading of the sources which clashes directly with the reader's moral sense, which in that day can be assumed to conform with the"widespread custom." Then, by showing how the sources can be understood so as to affirm the moral sense, he leaves the reader with the distinct impression that the prohibitive theory is the better of the two possible ways of reading the law.

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