Against Method 75
Naturally, note 97, above, and Is There A Text In This Class? The Authority of Interpretive Communities(Cambridge , MA : Harvard University Press , 1980). Where Fish exalts the influence of practice over interpretation and suggests that rules do nothing to constrain it, Llewellyn posits a kind of dialogue between rules and practice, carried on by the professionallytrained practitioner. For an appreciation of Llewellyn ’s understanding of law, see Anthony T. Kronman , The Lost Lawyer: Failing Ideals of the Legal Profession(Cambridge , MA : Belknap/Harvard , 1993), 210-225.
126. This is a general descriptive statement, of course, and it is only as good as the evidence that can be brought to support it from specific decisions and responsa. Such evidence exists in abundance, scattered throughout numerous studies of halakhic development on particular topics. A common thread uniting all these cases is that the poskim arrive at rulings that are unexpected, given the“rules” that presumably ought to have dictated different outcomes. The techniques utilized to support these innovative(deviant?) decisions are varied; the rabbi in question either ignores the limiting rule, or reinterprets it, or finds another rule that“trumps” it. Taken together, though, these individual examples tend to buttress the theoretical approach I offer in this essay: namely, that the“rules” function within halakhic discourse but do not judge it. Rabbis use rules as arguments, as tools to construct the rhetoric of justification; the rules do not serve to evaluate
in some methodical way the correctness of rabbinical argument. I have addressed this point in a number of venues; see the article cited in note 8, above, as well as Mark Washofsky,“Taking Precedent Seriously: On Halakhah As A Rhetorical Practice,” in Walter Jacob and Moshe Zemer , eds., Re-Examining Progressive Halakhah(New York : Berghan Books, 2002), 1-70.
127. A classic example may be found in the first volume of J. David Bleich ’s Contemporary Halakhic Problems(New York : Ktav/Yeshiva, 1977), 78:“The deliberations and publications of the Rabbinical Assembly [specifically, the Committee on Jewish Law and Standards-MW] do not, in the ordinary course of events, properly come within the purview of a work devoted to halakhah. Much is to be said in favor of simply ignoring pronouncements with regard to Jewish law issued by those who have placed themselves outside the pale of normative Judaism . Yet from time to time a particular action is erroneously presented as being predicated upon authoritative precedents, and hence being within the parameters of halakhah. Since the unwary and unknowledgeable may very easily be confused and misled by such misrepresentations it becomes necessary to take note of the issues involved.”
128. See, for example, Rabbi Joel Roth ’s efforts to disprove Rabbi Moshe Feinstein’s declaration that Conservative Jews are apikorsim , or heretics, ineligible to serve on a beit din. Roth contests the ruling as a matter of law, but he tragically misses the point. Feinstein is addressing a community of Orthodox Jews who define and identify themselves largely on the basis of lines such as the one he draws in that ruling. For sources and discussion, see note 8, above.