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HALAKHAH AND ULTERIOR MOTIVES

persuasive function, as evidence that the law, in all probability, is in accordance with their view. In our case, Uziel is on solid ground in basing his ruling upon that of the Rambam . Indeed, by hitching his wagon to a halakhist of towering prestige, he can claim that his lenient and seemingly radical decision is justified by the existing law. Its legitimacy, that is, does not depend solely upon his arbitrary act of discretion.

This point, however, does not save his decision from criticism. The problem here is not that Uziel relies on precedent but that he relies on this precedent instead of the available alternative, that of Rashba, who as we have seen took a stringent attitude on an almost identical set of facts. Uziel is aware of Rashba’s ruling, and he cites it in his responsum. If, therefore, he wishes to argue from the law rather than from his own subjective judgement, how does he know that the law follows one version rather than another? What legal rule, that is, allows him to favor Rambam over Rashba? A Dworkinian approach would be to apply the test of coherence, giving the nod to that ruling which better conforms to the legal "data" and is endorsed by the preponderance of scholarly opinion. Ouziel takes the opposite tack. He does not attempt to prove that Rambam is"right"; it is enough that Rashba is also not necessarily "right". The law, that is to say, might be according to either position, giving Uziel an opening to adopt Rambam ’s view as the best means to preserve Jewish identity and to save the Jewish spouse from the prohibition of intermarriage. Ultimately, then, Ouziel’s justification is consequentialist and not strictly legal: when the law is in dispute, we are entitled to choose that position which promises the better consequences for the community.*

Such, in brief, is the doctrine of legal pragmatism. Judges

should opt for that legal alternative which best supports the ends which the law itself is intended to achieve. In our case, to hold to

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