MARK WASHOVSKY calls for that action.

This is the language of extreme pragmatism, of the variety which Ben-Menahem claims was exercised by the Talmudic rabbis. Law must be applied so as to achieve the recognized political, moral, and social goals of the community. When existing law clashes with those goals, the judge may adjust or set aside the law. As the dispute between Rambam and Rashba attests, reasonable judges may disagree as to whether this is truly a"time to act for the Lord", whether the law ought to be set aside in a particular case. In the pragmatic view, however, that determination lies entirely with the judge, in his own evaluation of the needs of the hour. He is not restricted to judicial-style interpretation of settled law; he is endowed with the power of choice, the discretion to create new law and annul the old. In exercising this broad grant of discretionary power, the pragmatic judge thus functions openly as a legislator, and not necessarily an"interstitial" one.

Rambam ’s pragmatism in dealing with this question constitutes a major exception to the rule described above, namely that rabbis no longer see themselves entitled, in this post-Talmudic age, to deviate from accepted and settled law as a means of securing the law’s"higher" purposes. Were this exception to become the rule, it could serve as the foundation of a kind of pragmatic halakhic jurisprudence, in which rabbinic authorities would consciously and explicitly direct their decisions according to those purposes. The sources contain a good deal of material which supports this approach to halakhic decision. Dicta such as"you shall do what is just and good"(Deut. 6:18),"the court may coerce individuals not to act in the manner of Sodom","its ways are ways of pleasantness"(Prov. 3:17), and"he is exempt from culpability under human law but liable under divine law" are occasionally cited in Talmudic literature to explain legal decisions which deviate from what is considered the fixed standard of the law.*® One could make a case, based upon a strong interpretation of these principles,

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