The problem with the Gordimer approach as sketched on the current Cross Currents as I understand it is this:
Instead of deciding the truth of the halacha based on the best arguments, arguments themselves must first “be vetted by the greatest halachic masters of the generation (gedolei ha-dor), who are trained and attuned to the Ruach Ha-Halacha and can discern whether a certain practice conforms thereto” OK. What is “Ruach Halacha”? Only the greats can say. What does and does not conform to “Ruach Halacha?” Again, only the greats can say. And what are the criteria for determing whether or not something fits “Ruach Halacha?” Well, sorry, but criteria are impossible to provide. Its entirely case by case.
This reduces the halachic process to an entirely ad hoc system. The greats, by virtue of their greatness, get to toss out what appear to winning arguments without being required to produce any – let alone better- arguments of their own. They can just say, “Sorry guys, nice try, but your argument doesn’t fit the spirit of the law, as I see it .”
This is a great device for keeping things the way they are, but a terrible way to mantain the integrity of a system. Just as, eg, Antonin Salia has to produce pages of tightly reasoned arguments to justify his interpretations of the constitution, “the greatest halachic masters of the generation” must do the same. If we let the greats dismiss arguments with nothing more than a wave of their hands, we put ourselves at the mercy of their caprice. And though, I’ll concede that the greats aren’t as likely as you or I to game the system for personal gain, or to allow themselves to be corrupted, they are still men, and as James Madison observed in the document that made the best case ever presented for checks and balances, men are not angels so any system of government must include safegaurds that oblige the men who make up the government to control themlselves.
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