MARK WASHOVSKY

serve as digests of those interpretations of the law that the codifiers view as correct. Precedent, in the form of the emerging halakhic consensus, works to distinguish the correct view of the law from other possible and even plausible interpretations. Eventually, the "right" answer will be identified with the opinion which commands the assent of a preponderance of halakhists over a significant period of time, and the minority opinions, though studied avidly in the yeshivah, will lose whatever authoritative power they once possessed. The achievement of consensus, it can be argued, is an indispensable aspect of rabbinic legal practice; how else, in the absence of a Sanhedrin that could declare the law by fiat, is one to know what"the" halakhah demands on any given issue?* And it is perhaps just as indispensable that the system itself view the emergence of consensus opinion as the reflection of the ongoing Divine will. The gedolei hador, the recognized halakhic decisors, derive the proper judgement through the dispassionate, value-free exercise of logic and analysis upon the relevant sacred texts. In this sense, they can be said to function as"oracles" of the law, its interpreters and not its legislators.®’

The method employed in this study suggests that these attempts to force an objective correctness upon halakhic decision are doomed to failure. If our findings with respect to the responsa on conversion hold true for other areas of Jewish law(and there is no prima faciae reason to suppose they do not), then rabbinic discretion is endemic to the halakhic process as a whole. In addressing hard cases, that is, rabbis cannot avoid the necessity of making choices. They choose whether to subject their texts to narrow or broad construction; they choose whether to resort to policy considerations(and which considerations those shall be) as a means of resolving legal ambiguity; they choose whether to take judicial notice of opposing viewpoints; they choose which rulings of their predecessors shall serve as precedents; they choose whether to adhere to the established legal standard or to deviate from it. All of these choices, which as we have seen lead directly to the poseq’s

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