80.
81.
82.
83.
84.
85.
86.
87.
88.
MARK WASHOVSKY
On the other hand, in Mishpetei Uziel, YD, no. 25, he offers an argument of principle. The case of the yefat to'ar proves that"whenever the Torah estimates that a man cannot release himself from the grip of the evil impulse, it gives him an opening for repentance so that he might not sin." As we have seen, however, the notion that we are permitted to deviate from halakhic standards in the name of some"higher purpose" is not a consistent halakhic principle. Rambam ’s reasoning-"better that they eat the sauce than the fat"- and his analogies to yefat to’ar and taganat hashavim are contestable, and Rashba is but one example of the countless posqgim who reject those analogies, explicitly or implicitly. See above at notes 33-35.
See note 80 and the discussion of Grodzinsky’s responsum, above. Posner, Problems of Jurisprudence, p. 95.
For an overview see Peter Haas,"The Modern Study of the Responsa,” in D. Blumenthal , ed., Approaches to Judaism in Medieval Times, v. 2, Chico , CA , 1985, pp. 35-71. The basic monograph is still Solomon B. Freehof , The Responsa Literature, Philadelphia , 1955.
This is especially true of the Mishpat Ivri school, whose leading current representative is Menachem Elon . See his Hamishpat Ha'ivri, pp. 1213-1281, and his introductions to the volumes of the Mafte’ach Hasheelot Vehateshuvot Jerusalem , 1981--, an index oft the
responsa literature of Spain and North Africa during the period of the rishonim(ca. 1000- ca. 1500).
For example, R. Ya‘akov b. Asher in his introduction to Tur Hoshen Mishpat complains that every litigant can rely upon that poseq who agrees with his position, a practice
which runs counter to the search for legal truth. R. Yosef Karo , in his introduction to the Bet Yosef, recites a familiar refrain that"the Torah has not become two Torahs ; it has become innumerable Torahs , owing to the many books written ostensibly to clarify its laws." On this topic generally, see Menachem Elon , Meni‘im Ve'ekronot Bekodifikatsiah Shel Hahalakhah, in Y. Eisner, ed., Hagut vehalakhah, Jerusalem , 1973, pp. 75-119.
See Washofsky,"The Search for a Liberal Halakhah". That consensus is a necessary factor
in attaining even a modicum of objectivity in law is a point stressed heavily by Posner, Problems of Jurisprudence, pp. 125-129.
For a succinct statement of this theory, see J. David Bleich , Contemporary Halakhic Problems I, New York, 1977, pp. xii-xviii.
See Dan Cohn-Sherbok ,"Law and Freedom in Reform Judaism", Journal of Reform Judaism, v. 30, Winter, 1983, pp. 88-97, and"Law in Reform Judaism: A Study of Solomon Freehof," Jewish Law Annual, v. 7, 1988, pp. 198-209. For a response see Walter Jacob and Mark Staitman in the afore-cited Journal of Reform Judaism, pp. 98104. For detailed treatments of Freehof ’s halakhic method, which tend to contradict
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