Mark Washofsky

best they can under all the circumstances to reach a fair and just

disposition.’*

A glance at the literature reveals that virtually all contemporary legal theorists have abandoned the excesses of the formalist past in favor of a more realistic, pragmatic conception of the process of judicial decision making.'” The account I have rendered here of the ideologically centered nature of pesak and the inevitability of rabbinical-judicial choice between available alternatives fits firmly within this trend.

But if“foundationalism” is dead, what is to protect us from relativism and even nihilism in disciplines such as law? Where are the constraints upon judicial discretion? Is the law in fact whatever the judge or judges say it is? In the absence of objective, nonideological, and noncontextual reference points against which to measure our knowledge, are we not forced to conclude that“anything goes,” that our decisions and judgments are based upon nothing more solid than beliefs and opinions that cannot be adjudicated in any rational way? This dichotomy between objectivism and subjectivism, between “knowledge” and“opinion,” has of course been raging ever since Socrates battled the Sophists, and the Platonic literary record of that debate leaves us in no doubt that the former prevailed over the latter. Yet it is just possible that the Sophists have gotten a bum rap, that they were not suggesting that statements of truth in the spheres of politics, ethics, and law were based on nothing more than taste and mere opinion. Not a few contemporary observers have concluded that the Sophists in fact offered a middle ground, one that, though located through rhetoric and persuasive discourse rather than through “philosophy” and scientific proof, rescues us from the clutches of that false dichotomy.'” A similar observation can be made concerning the obsession with method that characterizes much of modern philosophy: perhaps we are dealing here with the“Cartesian anxiety,” the fear that “unless we can ground philosophy, knowledge, or language in a rigorous manner we cannot avoid radical skepticism.” Again, many theorists locate a middle ground between these two poles in the form