ABORTION AND THE HALAKHIC CONVERSATION

109. Out of a vast literature, the following works may be mentioned: Clifford Geertz , Local Knowledge: Further Essays in Interpretive Anthropology, New Haven , 1983; Clifford Geertz , "Blurred Genres: The Refiguration of Social Thought," The American Scholar, Vol. 49, 1980,

pp. 165-179; Donald N. McCloskey , The Rhetoric of Economics, Madison , WI , 1985; John Nelson, Allen Megill, and Donald N. McCloskey , eds., The Rhetoric of the Human Sciences, Madison , WI , 1985; and Hayden White , The Content of the Form: Narrative Discourse and Historical Representation, Baltimore , 1987.

110. See the literature cited in Mark Washofsky,"Responsa and Rhetoric: On Law, Literature, and the Rabbinic Decision," in the forthcoming festschrift for Professor Ben Zion Wacholder.

111. The preceding is heavily informed by the writings of James Boyd White , a leading"Law and Literature" theoretician . See his Justice as Translation, Chicago , 1990, Heracles’ Bow, Madison , WI , 1985; When Words Lose Their Meaning, Chicago , 1984; and The Legal Imagination, Boston , 1973.

112. This raises the controversial issue at the hub of contemporary hermeneutics: does meaning

reside in the text, in the reader's response to it, or in some combination of the two? This is not the place to discuss this complex question, which awaits sustained analysis from the standpoint of halakhic interpretation. In the meantime, see Sanford Levinson and Steven Mailloux, /nterpreting Law and Literature: A Hermeneutic Reader, Evanston , IL , 1988. The notion suggested here, that legal meaning is ultimately to be located within the shared assumptions and common practices of an"interpretive community," is the major contribution of the literary scholar Stanley Fish to the field of jurisprudence. See his Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies, Durham , NC , 1989, and /s There a Text in This Class?, Cambridge , MA , 1980.

113. Does Arusi begin with the instinctive sense that abortion is wrong, that halakhah surely forbids it in all cases save danger to the mother's life, and then seek to create a formal set of rules to lend the appearance of plain fact to this essentially controversial point of law? I think the answer is yes. I confess that my evidence for this is impressionistic, culled from the intensity of his language and the consistency with which he rejects any and all arguments offered by the lenient poskim. I may be wrong; still, it is difficult to escape the impression.

114. See Ramban's Introduction to his Sefer Milhamot HaShem, his defense of Alfasi from the criticisms of R. Zerahyah Hal evy, usually printed at the beginning of Alfasi Berakhot.

115. An example would be the laws of divorce. Any"halakhic" community worthy of the name would, upon reading Deut. 24:1ff. and its rabbinic commentaries, probably accept the requirement of a religious divorce effected by a written document before a woman can be allowed to remarry.

116. To continue with the divorce example: while the validity of civil divorce under Jewish law

could be argued as an extension of the doctrine dina demalkhuta dina("the law of the realm is

legally binding upon us"), the long tradition of Jewish legal autonomy in the area of personal status law makes it highly doubtful that a serious halakhic community would accept a civil decree of divorce in lieu of the Jewish legal procedure. See Solomon B. Freehof , Reform Jewish Practice, New York , 1976, Vol. 1, pp. 99ff,, who recounts the quasi-halakhic justifications offered for the American Reform movement's 1869 decision to accept civil divorce. The crucial point, that divorce in rabbinic law is a

88