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Mark Washofsky

Hebrew Union College - Jewish Institute of Religion, Rabbinics, Faculty Member

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Ephraim Kanarfogel

Yeshiva University

Jonathan Milgram

Jewish Theological Seminary of America

Ephraim Kanarfogel

Yeshiva University

Hebrew Union College - Jewish Institute of Religion

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Bar Ilan

Agunah Research Unit

The University of Manchester

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Papers by Mark Washofsky

The Commentary of R. Nissim b. Reuven Gerondi to the Halakhot of Alfasi: A Study in Halakhic History

Hebrew Union College Annual, 1989

A study of R. Nissim's Commentary to the Halakhot of Alfasi reveals a composed of three distinct ... more A study of R. Nissim's Commentary to the Halakhot of Alfasi reveals a composed of three distinct literary elements. The first is a running commentary to the text of Alfasi, for which R. Nissim relies heavily upon commentary to the Talmud and adapts that composition to the needs Halakhot. The second is an apparatus of annotation, a summary of Nahmanidean interpretation of Talmudic passages and legal issues, "updating" the Alfasi so that it can serve as an authoritative guide to halakhah the fourteenth-century Spanish community. Finally, R. Nissim's most striking contribution lies in the effort he devotes to commentary on the Mishneh Torah of Maimonides, exceeding all similar works in the extent to which he integrates the study of Maimonides' rulings into the study of their Talmudic sources. This helps explain R. Yosef Karo's designation of R. Nissim as a commentator on Maimonides. R. Nissim's Commentary exerts considerable influence upon Karo's Beit Yosef and Shulhan Arukh, both in Karo's explication of Maimonides and in his determination of the law.

Review of "The Boldness of an Halakhist: An Analysis of the Writings of R. Yechiel Mechel Epstein's the Arukh Hashulhan

H-Judaic, H-Net Reviews , 2008

Reform Halachah and the Claim of Authority: From Theory to Practice and Back Again

CCAR Journal, 2020

The category of thought called “Reform halachah” is a difficult thing to theorize. It isn’t easy ... more The category of thought called “Reform halachah” is a difficult thing to theorize. It isn’t easy to explain (let alone to justify) the existence of a genre of legal writing within a Jewish movement that famously champions personal religious autonomy. Lacking a satisfactory theological theory, Reform halachic writing perhaps should not exist. But then, it does exist, in impressive quantity. This paper argues that a “bottom-up” approach - the study of the practice of Reform halachah, in the form of a close reading of a Reform responsum - can lead us to the conclusion that Reform halachah does have a theory, a theological justification for its existence.

Is There a Jewish Version of the "Just War" Doctrine? Some Notes on the Nature of Halachic Interpretation

CCAR Journal, 2019

Is there a Jewish version of the theory of “just and unjust wars” found among Christian theologia... more Is there a Jewish version of the theory of “just and unjust wars” found among Christian theologians? Some say “no” and some say “yes,” and their answers seem to depend upon their notion of what counts as an authentic interpretation of the classical Jewish (principally halakhic) sources. So what is an “authentic” or valid interpretation of those sources? This article, written primarily for a Reform rabbinical audience, briefly surveys the theological and halakhic literature and discusses some of the major approaches to “the” hermeneutical question: how do we go about establishing validity in legal and halakhic interpretation?

Halakhah as Translation

Walter Jacob, ed., The Modern Child and Jewish Law (Pittsburgh: Solomon B. Freehof Institute of Progressive Halakhah, 2017)

Over the last several decades, scholars writing in fields as varied as law, literary theory, cult... more Over the last several decades, scholars writing in fields as varied as law, literary theory, cultural criticism, social science, and philosophical hermeneutics have come to view “translation” as much more than the process of reproducing a written or oral speech act from one language into another. The word is now frequently understood as a synonym for “interpretation” or, indeed, for the act of reading itself. This essay explores how the model of “translation” might help us understand the nature of Jewish legal discourse and the twin phenomena of continuity and change in the halakhah. It does so by focusing upon one specific example of such change: the Jewish law concerning the custody of minor children, which seems to have developed over the centuries from a collection of discrete rules to the broadly-defined standard of “the best interests of the child.”

You Shall Love the Ger: On Formalism, Instrumentalism, and Purpose in Halakhic Interpretation

The paper considers a responsum of Rabbi Moshe Feinstein in light of the classic dispute in legal... more The paper considers a responsum of Rabbi Moshe Feinstein in light of the classic dispute in legal theory between the "formalists," those who hold that the immanent rationality of the law determines judicial decision = and the "realists" or "instrumentalists," who believe that judidical decision is and ought to be determined much more by substantive, values-based considerations than by legal texts and concepts. Read through the prism of Aharon Barak's discussion of "purposive interpretation," Feinstein shows here that the state of things is not either-or. Rather, one can be both a formalist and an instrumentalist in one's approach to decision making.

What's So Special About Halakhic Reasoning? Cigarette Smoking, Jewish Law, and Rabbinical Decision Making

The article examines two questions. First, is halakhic reasoning special, i.e., a set of of rules... more The article examines two questions. First, is halakhic reasoning special, i.e., a set of of rules, procedures, tactics, and argumentative moves that are unique to the practice of Jewish law and rabbinical decision making (p'sak)? And second, does halakhic reasoning matter - that is, does it really account for rabbinical decisions on any but the most routine questions of Jewish law? Framing these questions within the context of the more general discussion among legal theorists of judicial reasoning, the artice examines them through an analysis of several t'shuvot (responsa) on the permissibility of cigarette smoking. It concludes with the suggestion that, while halakhic reasoning is not a unique form of reasoning and while it does not by itself determine or constrain the decisions of the rabbinical authorities (poskim), it still matters in ways that define halakhah as its own distinct discourse of speech, thought, and the construction of meaning.

"The Internet, Privacy, and Progressive Halakhah"

Walter Jacob, ed., The Internet Revolution and Jewish Law (Pittsburgh: Rodef Shalom Press, 2014), 81-142, 2014

Reform Halakhic Decision Making: On Law and Rhetoric in the Life of a Liberal Jewish Community [Heb.} הפסיקה הרפורמית: על משפט ורטוריקה בחיי קהילה יהודת-ליברלית

Avinoam Rosenak, ed., Hayahadut Hsreformit: Hagut, Tarbut, v'Hevrah. Jerusalem: Van Leer Jerusalem Institute/Hakibbutz Hameuchad,., 2014

"On the Absence of Method in Jewish Bioethics: Rabbi Yehezkel Landau on Autopsy"

Jewish Law Association Studies XVII, 2007, pp. 254-278

Halachah, Aggadah, and Reform Jewish Bioethics A Response

CCAR Journal, 2006

Some Reform Jews urge that, as a "non-halachic movement," Reform Judaism develop an approach to b... more Some Reform Jews urge that, as a "non-halachic movement," Reform Judaism develop an approach to bioethical theory based in aggadah, the non-legal sections of traditional Rabbinic literature. The present article offers a counter-argument. 1) Reform Judaism is decidedly not a "non-halachic movement"; 2) the Reform halachic tradition has produced a substantial literature on bioethical concerns; 3) the so-called "non-halachic" approaches to Jewish bioethics are in fact deeply grounded in halachah; 4) a sharp dichotomy between halachah and aggadah cannot be maintained, because halachic decision (Reform and otherwise) is a product of non-legal as well as formally legal elements.

Against Method: Liberal Halakhah Between Theory and Practice

Walter Jacob, ed., Beyond the Letter of the Law: Essays on Diversity in the Halakhah (Pittsburgh: Rodef Shalom Press, 2004), pp. 17-77

p. 17] I find the topic of this volume both fascinating and frustrating. It is fascinating becaus... more p. 17] I find the topic of this volume both fascinating and frustrating. It is fascinating because, well, this is what we liberal halakhists do. Much of our work, perhaps even its essence, centers upon the effort to go "beyond the letter of the law," to work toward a more exalted understanding of the halakhic tradition, a vision of halakhah that is more lenient, flexible, affirmative of contemporary values and morally uplifting than that promulgated in the halakhic writings of non-liberals. It is our guiding conviction that the stringent pesak or pesikah (halakhic decision making) of today"s Orthodox rabbinate, a trend that we associate with the "letter" of the law, represents neither the only nor the best available interpretation of Jewish legal thought on a host of important questions. To borrow a word or two from our teacher Moshe Zemer, to whom we pay tribute in these pages, we liberals believe in an "evolving" and "sane" halakhah, 1 one that is fully capable of yielding answers and guidance that cohere with our highest conceptions of religious truth. * To Moshe Zemer, whose life in halakhah and in its instruction is an example for us all.

The Woodchopper Revisited: On Analogy, Halakhah, and Jewish Bioethics

Walter Jacob, ed., Beyond the Letter of the Law: Essays on Diversity in the Halakhah (Pittsburgh: Rodef Shalom Press, 2004), pp. 17-77

Newman argues that "the meaning of a text lies less in the words themselves than in the interpret... more Newman argues that "the meaning of a text lies less in the words themselves than in the interpretive framework which the exegete brings to them." 9 Jewish ethicists, therefore, should beware of speaking in the name of "Judaism," as in "Judaism teaches that…". Rather, they should adopt a more nuanced style that reflects the nature of the interpretive process: the Jewish view on a particular ethical issue is "what we, given our particular interpretive assumptions and our particular way of construing the coherence of the tradition as a whole, find within the traditional sources." 10 Newman uses these theoretical insights to analyze and critique the writings of a number of Jewish ethicists concerning the treatment of the terminally ill. As is the case with the discussion of most ethical issues, this one is textual and interpretive in nature:

Taking Precedent Seriously: On Halakhah as a Rhetorical Practice

Walter Jacob and Moshe Zemer, eds., Re-examining Progressive Halakhah (New York: Berghahn Books, 2002), 1-70

"Halakhah in Translation: The Chatam Sofer on Prayer in the Vernacular"

CCAR Journal, v. 51, 2004

"Narratives of Enlightenment: On the Use of the 'Captive Infant' Story by Recent Halakhic Authorities"

Walter Jacob, ed., Napoleon's Influence on Jewish Law (Pittsburgh: Rodef Shalom Press, 2007), 93-147.

"Responsa and the Art of Writing: Three Examples from the Teshuvot of Rabbi Moshe Feinstein"

in Peter S. Knobel and Mark N. Staitman, eds., An American Rabbinate: A Festschrift for Walter Jacob (Pittsburgh: Rodef Shalom Press, 2001), pp. 149 - 204

Responsa and Rhetoric: On Law, Literature, and the Rabbinic Decision

John C. Reeves and John Kampen, eds., Pursuing the Text: Studies in Honor of Ben Zion Wacholder (Sheffield: Sheffield Academic Press, 1994), 360-409, 1994

David Novak. Natural Law in Judaism. Cambridge: Cambridge University Press, 1998. xii, 210 pp

AJS Review, 2002

Page 1. BOOK REVIEWS Herbert Chanan Brichto. The Names of God: Poetic Readings in Biblical Begin-... more

Robert Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture. New Haven, Conn., and London: Yale University Press, 1998. Pp. xxii, 382; …

Speculum, 1999

... and After 15 Se&#x27;adyah Gaon, Revolutionary Champion of Tradition 13 5 Se&#x27;ady... more ... and After 15 Se&#x27;adyah Gaon, Revolutionary Champion of Tradition 13 5 Se&#x27;adyah&#x27;s Career, 235; Se&#x27;adyah as Revolutionary, 139; Se ... two major foci with which these institutions were in competition: the Palestinian center and a variety of freethinkers and sectarian movements. ...

The Commentary of R. Nissim b. Reuven Gerondi to the Halakhot of Alfasi: A Study in Halakhic History

Hebrew Union College Annual, 1989

A study of R. Nissim's Commentary to the Halakhot of Alfasi reveals a composed of three distinct ... more A study of R. Nissim's Commentary to the Halakhot of Alfasi reveals a composed of three distinct literary elements. The first is a running commentary to the text of Alfasi, for which R. Nissim relies heavily upon commentary to the Talmud and adapts that composition to the needs Halakhot. The second is an apparatus of annotation, a summary of Nahmanidean interpretation of Talmudic passages and legal issues, "updating" the Alfasi so that it can serve as an authoritative guide to halakhah the fourteenth-century Spanish community. Finally, R. Nissim's most striking contribution lies in the effort he devotes to commentary on the Mishneh Torah of Maimonides, exceeding all similar works in the extent to which he integrates the study of Maimonides' rulings into the study of their Talmudic sources. This helps explain R. Yosef Karo's designation of R. Nissim as a commentator on Maimonides. R. Nissim's Commentary exerts considerable influence upon Karo's Beit Yosef and Shulhan Arukh, both in Karo's explication of Maimonides and in his determination of the law.

Review of "The Boldness of an Halakhist: An Analysis of the Writings of R. Yechiel Mechel Epstein's the Arukh Hashulhan

H-Judaic, H-Net Reviews , 2008

Reform Halachah and the Claim of Authority: From Theory to Practice and Back Again

CCAR Journal, 2020

The category of thought called “Reform halachah” is a difficult thing to theorize. It isn’t easy ... more The category of thought called “Reform halachah” is a difficult thing to theorize. It isn’t easy to explain (let alone to justify) the existence of a genre of legal writing within a Jewish movement that famously champions personal religious autonomy. Lacking a satisfactory theological theory, Reform halachic writing perhaps should not exist. But then, it does exist, in impressive quantity. This paper argues that a “bottom-up” approach - the study of the practice of Reform halachah, in the form of a close reading of a Reform responsum - can lead us to the conclusion that Reform halachah does have a theory, a theological justification for its existence.

Is There a Jewish Version of the "Just War" Doctrine? Some Notes on the Nature of Halachic Interpretation

CCAR Journal, 2019

Is there a Jewish version of the theory of “just and unjust wars” found among Christian theologia... more Is there a Jewish version of the theory of “just and unjust wars” found among Christian theologians? Some say “no” and some say “yes,” and their answers seem to depend upon their notion of what counts as an authentic interpretation of the classical Jewish (principally halakhic) sources. So what is an “authentic” or valid interpretation of those sources? This article, written primarily for a Reform rabbinical audience, briefly surveys the theological and halakhic literature and discusses some of the major approaches to “the” hermeneutical question: how do we go about establishing validity in legal and halakhic interpretation?

Halakhah as Translation

Walter Jacob, ed., The Modern Child and Jewish Law (Pittsburgh: Solomon B. Freehof Institute of Progressive Halakhah, 2017)

Over the last several decades, scholars writing in fields as varied as law, literary theory, cult... more Over the last several decades, scholars writing in fields as varied as law, literary theory, cultural criticism, social science, and philosophical hermeneutics have come to view “translation” as much more than the process of reproducing a written or oral speech act from one language into another. The word is now frequently understood as a synonym for “interpretation” or, indeed, for the act of reading itself. This essay explores how the model of “translation” might help us understand the nature of Jewish legal discourse and the twin phenomena of continuity and change in the halakhah. It does so by focusing upon one specific example of such change: the Jewish law concerning the custody of minor children, which seems to have developed over the centuries from a collection of discrete rules to the broadly-defined standard of “the best interests of the child.”

You Shall Love the Ger: On Formalism, Instrumentalism, and Purpose in Halakhic Interpretation

The paper considers a responsum of Rabbi Moshe Feinstein in light of the classic dispute in legal... more The paper considers a responsum of Rabbi Moshe Feinstein in light of the classic dispute in legal theory between the "formalists," those who hold that the immanent rationality of the law determines judicial decision = and the "realists" or "instrumentalists," who believe that judidical decision is and ought to be determined much more by substantive, values-based considerations than by legal texts and concepts. Read through the prism of Aharon Barak's discussion of "purposive interpretation," Feinstein shows here that the state of things is not either-or. Rather, one can be both a formalist and an instrumentalist in one's approach to decision making.

What's So Special About Halakhic Reasoning? Cigarette Smoking, Jewish Law, and Rabbinical Decision Making

The article examines two questions. First, is halakhic reasoning special, i.e., a set of of rules... more The article examines two questions. First, is halakhic reasoning special, i.e., a set of of rules, procedures, tactics, and argumentative moves that are unique to the practice of Jewish law and rabbinical decision making (p'sak)? And second, does halakhic reasoning matter - that is, does it really account for rabbinical decisions on any but the most routine questions of Jewish law? Framing these questions within the context of the more general discussion among legal theorists of judicial reasoning, the artice examines them through an analysis of several t'shuvot (responsa) on the permissibility of cigarette smoking. It concludes with the suggestion that, while halakhic reasoning is not a unique form of reasoning and while it does not by itself determine or constrain the decisions of the rabbinical authorities (poskim), it still matters in ways that define halakhah as its own distinct discourse of speech, thought, and the construction of meaning.

"The Internet, Privacy, and Progressive Halakhah"

Walter Jacob, ed., The Internet Revolution and Jewish Law (Pittsburgh: Rodef Shalom Press, 2014), 81-142, 2014

Reform Halakhic Decision Making: On Law and Rhetoric in the Life of a Liberal Jewish Community [Heb.} הפסיקה הרפורמית: על משפט ורטוריקה בחיי קהילה יהודת-ליברלית

Avinoam Rosenak, ed., Hayahadut Hsreformit: Hagut, Tarbut, v'Hevrah. Jerusalem: Van Leer Jerusalem Institute/Hakibbutz Hameuchad,., 2014

"On the Absence of Method in Jewish Bioethics: Rabbi Yehezkel Landau on Autopsy"

Jewish Law Association Studies XVII, 2007, pp. 254-278

Halachah, Aggadah, and Reform Jewish Bioethics A Response

CCAR Journal, 2006

Some Reform Jews urge that, as a "non-halachic movement," Reform Judaism develop an approach to b... more Some Reform Jews urge that, as a "non-halachic movement," Reform Judaism develop an approach to bioethical theory based in aggadah, the non-legal sections of traditional Rabbinic literature. The present article offers a counter-argument. 1) Reform Judaism is decidedly not a "non-halachic movement"; 2) the Reform halachic tradition has produced a substantial literature on bioethical concerns; 3) the so-called "non-halachic" approaches to Jewish bioethics are in fact deeply grounded in halachah; 4) a sharp dichotomy between halachah and aggadah cannot be maintained, because halachic decision (Reform and otherwise) is a product of non-legal as well as formally legal elements.

Against Method: Liberal Halakhah Between Theory and Practice

Walter Jacob, ed., Beyond the Letter of the Law: Essays on Diversity in the Halakhah (Pittsburgh: Rodef Shalom Press, 2004), pp. 17-77

p. 17] I find the topic of this volume both fascinating and frustrating. It is fascinating becaus... more p. 17] I find the topic of this volume both fascinating and frustrating. It is fascinating because, well, this is what we liberal halakhists do. Much of our work, perhaps even its essence, centers upon the effort to go "beyond the letter of the law," to work toward a more exalted understanding of the halakhic tradition, a vision of halakhah that is more lenient, flexible, affirmative of contemporary values and morally uplifting than that promulgated in the halakhic writings of non-liberals. It is our guiding conviction that the stringent pesak or pesikah (halakhic decision making) of today"s Orthodox rabbinate, a trend that we associate with the "letter" of the law, represents neither the only nor the best available interpretation of Jewish legal thought on a host of important questions. To borrow a word or two from our teacher Moshe Zemer, to whom we pay tribute in these pages, we liberals believe in an "evolving" and "sane" halakhah, 1 one that is fully capable of yielding answers and guidance that cohere with our highest conceptions of religious truth. * To Moshe Zemer, whose life in halakhah and in its instruction is an example for us all.

The Woodchopper Revisited: On Analogy, Halakhah, and Jewish Bioethics

Walter Jacob, ed., Beyond the Letter of the Law: Essays on Diversity in the Halakhah (Pittsburgh: Rodef Shalom Press, 2004), pp. 17-77

Newman argues that "the meaning of a text lies less in the words themselves than in the interpret... more Newman argues that "the meaning of a text lies less in the words themselves than in the interpretive framework which the exegete brings to them." 9 Jewish ethicists, therefore, should beware of speaking in the name of "Judaism," as in "Judaism teaches that…". Rather, they should adopt a more nuanced style that reflects the nature of the interpretive process: the Jewish view on a particular ethical issue is "what we, given our particular interpretive assumptions and our particular way of construing the coherence of the tradition as a whole, find within the traditional sources." 10 Newman uses these theoretical insights to analyze and critique the writings of a number of Jewish ethicists concerning the treatment of the terminally ill. As is the case with the discussion of most ethical issues, this one is textual and interpretive in nature:

Taking Precedent Seriously: On Halakhah as a Rhetorical Practice

Walter Jacob and Moshe Zemer, eds., Re-examining Progressive Halakhah (New York: Berghahn Books, 2002), 1-70

"Halakhah in Translation: The Chatam Sofer on Prayer in the Vernacular"

CCAR Journal, v. 51, 2004

"Narratives of Enlightenment: On the Use of the 'Captive Infant' Story by Recent Halakhic Authorities"

Walter Jacob, ed., Napoleon's Influence on Jewish Law (Pittsburgh: Rodef Shalom Press, 2007), 93-147.

"Responsa and the Art of Writing: Three Examples from the Teshuvot of Rabbi Moshe Feinstein"

in Peter S. Knobel and Mark N. Staitman, eds., An American Rabbinate: A Festschrift for Walter Jacob (Pittsburgh: Rodef Shalom Press, 2001), pp. 149 - 204

Responsa and Rhetoric: On Law, Literature, and the Rabbinic Decision

John C. Reeves and John Kampen, eds., Pursuing the Text: Studies in Honor of Ben Zion Wacholder (Sheffield: Sheffield Academic Press, 1994), 360-409, 1994

David Novak. Natural Law in Judaism. Cambridge: Cambridge University Press, 1998. xii, 210 pp

AJS Review, 2002

Page 1. BOOK REVIEWS Herbert Chanan Brichto. The Names of God: Poetic Readings in Biblical Begin-... more

Robert Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture. New Haven, Conn., and London: Yale University Press, 1998. Pp. xxii, 382; …

Speculum, 1999

... and After 15 Se&#x27;adyah Gaon, Revolutionary Champion of Tradition 13 5 Se&#x27;ady... more ... and After 15 Se&#x27;adyah Gaon, Revolutionary Champion of Tradition 13 5 Se&#x27;adyah&#x27;s Career, 235; Se&#x27;adyah as Revolutionary, 139; Se ... two major foci with which these institutions were in competition: the Palestinian center and a variety of freethinkers and sectarian movements. ...