ES ESA ER. cod

HALAKHAH AND ULTERIOR MOTIVES

before she gives birth and keeps her in his house. Rashba condemns what he sees as an act of unacceptable lewdness. Citing the Mishnaic prohibition against this marriage, he declares that in his own community"no one...even the most vile and base, would behave in such an arrogant fashion, to dally with a maidservant, convert her and marry her". It is inconceivable to him that the local authorities would permit the violation of the Mishnaic rule, especially since"it is probable that she did not convert leshem shamayim but only to marry him." Rashba seems not to have known of Rambam ’s ruling, and it is impossible to tell whether such knowledge would have influenced his decision. What is certain is that, where Maimonides is concerned that the sinner be aided in returning to the path of righteousness and so determines to deviate from the law, Rashba ’s goal is to strengthen the standards of community morality by insisting that the law be enforced to its fullest extent. None of this, of course, proves that either of these two sages was"right" or"wrong" in his ruling. It does indicate, however, that Rambam ’s deviation from the law was not required by the law itself. He could just as legitimately have concluded, as did Rashba , that the rabbinic prohibition against the conversion and marriage must be upheld. Rambam ’s decision, that is, is very much his decision. His ruling is a conscious choice, an act of rabbinic will.

Nothing in the halakhah, no preexisting legal norm forces the Rambam to arrive at his decision to deviate from the law. The ruling is valid because, in Rambam ’s view, he has the power to make it; the poseq may choose to overrule existing law when"it is time to act for the Lord". While Psalms 119:126 is applied in the Mishnah to the specific issue of rendering the Oral Torah in writing, the rabbis in general are said to have the power to set aside Biblical commandments on a temporary basis"in order to restore the multitude to religion...just as a physician may amputate a hand or a foot in order to save the patient's life".*” Posqim, therefore, need not always follow the law. They may go beyond the law, even negate it, when in their very subjective judgement the situation

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