Mark Washofsky

If there is no such“method” external to halakhic practice by which to determine the correctness of a halakhic decision, does this mean that there is no such thing as a“wrong” decision? Are there no constraints upon what a posek might say in the name of Torah and halakhah? Not at all. There are constraints, and powerful ones, too, that severely hem in the range of rabbinical discretion. Like the judge (and, for that matter, like the participant in any other intellectual practice), the posek is constrained because he speaks and writes from within a particular community of practitioners. He is not free to say whatever he wishes, not because he is constrained by“foundations” or formal criteria of halakhic validity, but because he must address himself and his words to that community in a language that they will understand as the discourse of their practice. His ruling is an argument rehearsed before a particular audience composed of scholars who share his“situation sense” as to what constitutes acceptable halakhic argumentation. His interpretation is“correct” to the extent that it secures the adherence of that audience, that it persuades them to form a community around his words, that it brings them to interpret Torah and halakhah in the way that he reads them. It is this situatedness, the fact that the posek must speak in a professional discourse that defines a particular community of practice, that places real limits upon his discretion. The proper term to apply to this process is“rhetoric,” not “method.” If we insist upon using the term“halakhic method,” it can only mean the discourse and the rhetoric of the halakhic community. It will and must operate as part of the language and experience of textual analysis and argument. It will always be interpreted and modified as it is applied; thus, it cannot control its own application. Such a“method” is not a formula that declares in some objective, a priori way what halakhists ought to do. It is no more and no less than a description of what halakhists do in fact.

If halakhic practice always takes place within a particular community of interpretation, we should not be surprised that very different sorts of interpretation and consensus will emerge from