indeterminacy, see Duncan Kennedy ,"Legal Formality," Journal of Legal Studies, Vol. 2, 1973, pp. 351-398; Allan C. Hutchinson ,"Democracy and Determinacy: An Essay of Legal Interpretation,” University of Miami Law Review, Vol. 43, 1989, pp. 541-576; and Joseph W. Singer,"The Player and the Cards: Nihilism and Legal Theory," Yale Law Journal, Vol. 94, 1984, pp. 1-70. Closely related is an approach that attacks the mainstream legal tradition on feminist grounds; see Catherine A. MacKinnon , Feminism Unmodified: Discourses on Life and Law, Cambridge, MA , 1987.
91. The Talmudic shanei hatam("that case is different") and la kashya("the difficulty is only apparent") are early examples of this method.
93. Isay"tends in the direction" because few halakhists, however liberal, would argue seriously
that Jewish law supports the choice for abortion in the absence of sufficient cause. The lenient halakhic position differs from the stringent one in that it accepts a significantly wider range of causes as sufficient to warrant abortion."Pro-choice", as I understand it, leaves the entire matter to the discretion of the woman, whether or not she can cite any such cause which would be persuasive to anyone else.
94. On this"systemic" functioning of the halakhic consensus, see Mark Washofsky,"The Search for a Liberal Halakhah: A Progress Report," in Walter Jacob and Moshe Zemer , eds., Dynamic Jewish Law, Tel Aviv and Pittsburgh , 1991, pp. 25-51.
95. On the special role of the gadol in making discretionary halakhic decision, see Avraham Zvi Rabinowitz,"He'arot le-Nosei Mediniut Hilkhatit," Techumin, Vol. 2, 1981, pp. 504-512. On the charismatic halakhic authority of the gadol see Emanuel Feldman ,"Trends in the American Yeshivot: A Rejoinder," in R. Bulka, ed., Dimensions of Orthodox Judaism, New York , 1983, pp. 334f%.
96. This is not the place to enter into an analysis of the modes of rabbinic legislative or quasi-legislative authority. On these methods, the takanah(legislative enactment) and the da at Torah (an ex cathedra statement of opinion by a sage or group of sages instructing the faithful as to the path they should walk), see Elon, pp. 391ff, and Jacob Katz , Hahakhah beMeitsar, Jerusalem , 1992, pp. 18-20. All that needs to be said is that, on the abortion question, the poskim have eschewed these approaches in favor of the more traditional"judicial" approach: they wish to show that the law of abortion is dictated by the existing sources rather than imposed by rabbinic decree.
97. There is a huge literature on the subject of intellectual, cultural, and sociological influence
upon the direction of pesaq, rabbinic decision. The list of contemporary scholars in the field includes Jacob Katz , Israel Ta-Shema , Haym Soloveitchik (the professor , not the great Talmudist of Volozhyn), David Ellenson , and many others. For summaries see Mark Washofsky,"Medieval Halakhic Literature and the Reform Rabbi: A Neglected Relationship," CCAR Journal, Fall, 1993, pp. 61-74, and"The Study of Talmud and Halacha: A Survey of Some Recent Scholarship," Journal of Reform Judaism,
86