Working through 18th and 19th century halakhic sources (in this case, responsa) to get a bead on traditional Moroccan Jewish life prior to formal colonial period (prior to the establishment of the French protectorate in 1912), Shlomo Deshen said something interesting in this classic study about the Talmud and the casuistic style.
In a comment that should bedevil the work of any social historian who relies on this material, Deshen writes:
“The reasoning of Talmudic sage, as they advance towards conclusions, frequently leads them to describe scenarios that could theoretically have arisen in the case discussed. The sages describe ways of action that protagonists could have chosen and other eventualities that could have arisen. Sometimes these scenarios are based on elements of real-life possibilities, but more often they are the products of legal minds that are steeped in Talmudic literature and precedents of other times and places. Insensitive reading of the responsa material sometimes leads researchers to impute reality to casuistic statements that are completely imaginary” (The Mellah Society: Jewish Community Life in Sherifian Morocco, p.12).
The same sensitivity should be required also of Jewish philosophers when they write about law and authority, and also about scholars of rabbinics who perform symptomatic readings of the texts in order to get a grip on social history and social tensions. Key words in Deshen’s statement include “theoretical,” “could have,” “scenarios,” “products,” “literature,” impute” and “completely imaginary,” and also””frequently” and “sometimes.”