54 Mark Washofsky
force” to describe the degree to which an analogical inference is judged to be
41. The same point is made by Michael Avraham in his discussion of the traditional rabbinic“hermeneutical principles”;“Ma-amadan halogi shel darkhei haderash,” Tzohar 12(2003), p. 20.
42. Weinreb(note 36, above), pp. 12-13:“In law as in life, analogical argument is a valid, albeit undemonstrable, form of reasoning that stands on its own and has its own credentials, which are not derived from abstract reason but rooted in the experience and knowledge of the lawyers and judges who employ it. Some analogical arguments are good and some are bad. Ordinarily, we know how to tell one from the other and are able to reach a fair degree of agreement about which is which. The human capacity for reasoning by analogy presents complex and difficult epistemological questions, but its use is commonplace and, carefully used, its conclusions are generally reliable.” Charles Fried (note 24, above) makes a similarly strong claim for analogy.
43. The term is drawn from Brewer(note 24, above), pp. 951/f, who classifies the theorists into the categories of“mystics”(those who have strong confidence in the reliability[“rational force”] of analogical argument) and“skeptics,” who have little such faith. Brewer places himself firmly in the soft middle ground, in a category he calls“modest-proposal rationalists.” I'd place myself there, as well.
44. See Burton(note 25, above), pp. 165-166.
45.1 do not wish here to enter the venerable controversy over the precise relation between law and ethics, whether as a general matter or in the context of Jewish observance. For the latter see Avi Sagi , Yahadut: bein dat lemusar(Tel Aviv : Hakibbutz Hameuchad, 1998). I have previously touched on the question, at
least as it relates to the issue of halakhic judgment and rabbinical decision making. Put briefly, my view is that it is inappropriate to distinguish between the strictly “legal” and the“nonlegal”(“metalegal,”“ethical”) aspects of the rabbinical decision, inasmuch as the ruling cannot help but draw upon both sorts of consideration. See“Against Method” and“Halachah , Aggadah , and Reform Jewish Bioethics: A Response,” note 14, above).