increasing number of studies which examine Jewish law from the vantage point of the positivist/Dworkinian/realist debate.*’ For example, Haninah Ben-Menahem argues that during the Talmudic period the distinction between legal and extra-legal considerations was often ignored. Talmudic law was a system"governed by men, not by rules", tolerant of judicial deviation from the law in the interests of justice. Judges allowed themselves the authority to base their decisions upon extralegal factors and to set aside existing law without being authorized by the law itself to do so.” This pragmatic jurisprudence, law consciously employed to serve recognized social ends, is an extreme version of the realist approach.” Indeed, if Ben-Menahem is correct, the rabbis at this early stage of halakhic history did not feel compelled to restrict their frankly legislative activity to filling gaps in the law or to hide it behind a"smokescreen" of legal reasoning. Such judicial openness and flexibility, it would seem, is no longer present in rabbinic decision-making, and has been absent for a very long time. What is true of a legal system at its formative stage does not necessarily describe the same system at its later, more sophisticated(i.e., formal) state.?* Although liberal halakhic theorists tend to portray Jewish law as a dynamic, constantly-changing system which places an emphasis upon rabbinic freedom of decision, fifteen centuries of commentary and codification have had their say. The poseq, the rabbinic decisor, is no longer empowered to enforce justice at the expense of law. He is expected to operate within the framework of the halakhah, which is largely determined by the evolving consensus view held by the community of posqim past and present.®® The halakhic tradition, reflected in its voluminous literature has in effect settled many questions that were formerly open, and rabbinic discretion to deviate from these settled points has correspondingly declined.
On the other hand, there still exist hard cases in halakhah. Issues arise over which there is no general agreement among the posqim as to the correct legal answer. More than that rabbis at
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