Chapter 1

TAKING PRECEDENT SERIOUSLY On Halakhah as a Rhetorical Practice

Mark Washofsky

The concept of precedent is both characteristic of and unique to the activity of law. By“precedent,” I mean the practice of decid­ing disputed questions on the basis of earlier decisions. By“char­acteristic,” I mean that deference to precedent is endemic to every system of thought and practice that we call law. Every legal system, each in its own fashion, recognizes precedent as a factor which to some extent constrains the freedom of decision enjoyed by the present judge. And by“unique,” I mean that in no other intellectual discipline does the doctrine of precedent enjoy the respect and acceptance that law accords to it. No other field of inquiry is as receptive to the argument from precedent, the claim that something ought to be done or an issue ought to be resolved in a particular way now precisely because it was done or resolved that way in the past. Other disciplines, to be sure, have histories, records of past achievement which command the respect of the practitioners of the field. Yet the past as such has no

Notes for this section begin on page 54.