34 Mark Washofsky

correctly, through the diligent application of halakhic method. This is, on the surface, an eminently reasonable distinction. Surely, Professor Shapiro suggests, when we read halakhic responsa we can tell the difference between arguments that are halakhic and arguments that are more properly ideological or“meta-halakhic” in nature.’ By“halakhic” factors he means the hard, textual, and formal-legal elements cited in a ruling, while“meta-halakhic” describes all those considerations, arguments, and reasons given by the posek that“are not subject to proof or disproof on the basis of textual sources, but depend upon an overall view of which ruling will best serve the community a view which other authorities need not share.” From this it follows that a rabbinical decision that rests significantly upon meta-halakhic factors is more a matter of ideology than of law, even if that decision is conveyed in a halakhic responsum and is expressed in traditional Jewish legal language. It also follows that a ruling not based upon meta-halakhic factors could well be determined by the operation of the objective, ideologically neutral legal method that, in the Orthodox account of things, serves to distinguish the“right” from the“wrong” halakhic answers. Yet though it be reasonable I do not accept this distinction, and I want at this point to suggest why I think that Professor Shapiro is wrong. Professor Shapiro is wrong because his distinction between halakhah and meta-halakhah is based upon the common but erroneous identification of legal(and halakhic) discourse as a matter of rules,“definite, detailed provisions for definite, detailed states of fact,”** abstract or general statements of what the law permits or requires of classes of persons or things in classes of circumstances. Rules tend to be statements of black-letter law that we look up in codes and apply in a formal, mechanical, and quasi-mathematical fashion® to a specific set of facts: if the facts the rule stipulates are given, and if the rule itself is valid, then there is no recourse but to accept the answer it supplies.*> Examples of rules in the halakhah include: that the flesh of a pig is forbidden for consumption; that two