ABORTION AND THE HALAKHIC CONVERSATION

Given the indeterminacy of the precedents, Bacharach determines that the law must accord with that alternative reading that lies closer to the Torah's overriding purpose, to establish justice and holiness. His answer is both textually justifiable and chosen, over the other textually justifiable possibility, on the basis of criteria that are external to the texts but no less vital to the law as we know it must be.

Feinstein and Arusi, too, seem driven by considerations that pertain to practical reasoning. Feinstein, remember, sees abortion as hapirtzah hagedolah, a great outbreak of licentious behavior. It is not implausible that he begins his reasoning with an almost instinctive sense that abortion is wrong, a violation of all that is good and holy. Such a sense might account for the vehemence of his legal argument, his strenuous- and artificial- attempt to prove that the halakhic sources support the stringent view and only that view. Arusi seems motivated by similar moral commitments,’ as well as by his fear that in the absence of one objectively correct answer, the power and prestige of the halakhah will suffer. Neither of these motivations is inherent in the halakhic texts and sources on abortion, which support a lenient along with a stringent position. Thus, Arusi's"extra-legal" commitments lead him to "interpret" the law in his exceedingly formalistic manner.

When we say that the halakhist supports his decision by means of practical reason or rhetoric, we do not thereby imply that legal logic is worthless or false. We mean simply that these techniques are an inevitable component of halakhic reasoning. Halakhah , like law in general, is not a discipline that admits of scientific objectivity. This is hardly a revolutionary statement; no less an authority than Nahmanides openly concedes that demonstrable proof eludes the grasp of the Talmudist. "'* Halakhah , in its orthodox as well as in its liberal variety, becomes halakhah through argument, through persuasive speech aimed at eliciting the adherence of a particular legal community. To achieve persuasion, the argument must of course be textually sound, since the community's legal existence is founded upon a discourse of text. But it must be more than that. For when the texts could lead their readers toward more than one conclusion, argument of necessity becomes goal­

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