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MARK WASHOVSKY
See Moshe Zemer ,"Authority and Criteria in Liberal Halakhah," in Walter Jacob and Moshe Zemer , eds., Dynamic Jewish Law: Progressive Halakhah, Essence and Application Tel Aviv and Pittsburgh , 1991, pp. 9-24.
It is instructive that Berkovits , in his discussion of the principles discussed above, relies almost exclusively upon Talmudic sources. The absence of material from codes or responsa leads one to the conclusion that, following the end of its formative period, halakhah became much more rule-oriented and less likely to deviate from accepted precedent and pesaq. There are, however, some notable exceptions. R. Moshe Isserles violated a rabbinic prohibition and conducted a wedding on the night of Shabbat in order to preserve the match and safeguard family reputations(Resp. Harema, no. 125). R. Asher b. Yechiel declares that a divorce coerced from a husband when a wife claims that he is repulsive to her is invalid and her offspring by a subsequent husband are mamzerim. Yet he departs from his own logic and limits this ruling to future cases only (Resp. Harosh 43:6).
The formalization of law as a stabilizing and stultifying factor in legal change and judicial flexibility is a theme treated by Sir Henry Maine , Ancient Law, London , 1861, pp. 1-59. See also Alan Watson , The Evolution of Law, Baltimore , 1985, especially pp. 115119. Eliezer Berkovits , Not in Heaven: The Nature and Function of Halakhah, New York , 1983, pp. 85-112, argues that the codification of Jewish law has robbed the Oral Torah of its original creative energy. S. Z. Havlin suggests that the tendency for later generations to submit to the halakhic authority of their predecessors is a literary phenomenon, brought about by the redaction or composition of comprehensive legal works which demand the attention and assent of the community;"Al‘hachatimah hasifrutit’," in Mechkarim Basifrut Hatalmudit, Lieberman Tribute Volume; Jerusalem , 1983, pp. 148-192.
Resp. Tuv ta‘am veda‘at, no. 230. It is unclear whether by"new religion" is meant religious reform or cultural enlightenment and emancipation. To Kluger, at any rate, these phenomena were probably the same thing.
Note that Kluger deftly changes the terminology from that submitted to him by his correspondent(assuming that Kluger accurately reproduces the latter's communication). Where in the description of the case we are told that the couple have cohabited several times(kamah pa‘amim), here we discover that they have been together many times (harbeh pa‘amim). The strengthened terminology also strengthens Kluger's argument that the man’s lust has been quenched so that the request for conversion is not based upon his desire to marry her. On the tendency of judges to restate the facts of a case in order to stack the deck in favor of their decision, see Richard Posner , Cardozo: A Study in Reputation, Chicago , 1990, pp. 33-57.
On all of this, see b. Yeb. 24b and Rashi, s.v. de’amar rav asi: Tosefta Yeb. 4:5; Nimukei Yosef to Alfasi, Yevamot, fol. Sb.
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