Mark Washofsky

revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV . It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Yet precedent, which requires the judge to decide a ques­tion in precisely the way it was decided before, precisely because it was decided that way before, would seem to run counter to any sensible notion of legal progress.

I would argue that every successful legal system is charac­terized by a creative tension between a healthy respect for the doctrine of precedent and a cast of mind and a set of techniques to address and solve the problems that precedent causes.? By this I mean that a legal system must possess the means by which to reconcile its reverence for the past with the need to preserve judi­cial freedom. And“reconciliation” here is a must, for law cannot do without either side of the tension. Without precedent, the ten­dency for past decisions to influence or even constrain the deci­sions of present-day judges, the system is hardly a system of “law” as we understand law. And without some measure of judi­cial freedom from the constraint of precedent, judges would never be able to distinguish between the“law” and the at-times mistaken application of the law by their predecessors, nor would they be able to derive new solutions to new legal problems.

How does Jewish law(halakhah) reflect and respond to this challenge? Does Jewish law recognize the power of judicial precedent to constrain the decision-making freedom of present­day authorities, the poskim? If these constraints exist, how do the poskim cope with or, when necessary, evade them in the search for what they regard as the correct answer to a halakhic question? How do they respond to a perceived conflict between precedent, the accepted and settled understanding of halakhic texts and rules, and a situation that seems to call for a new approach to the law? These questions form the basis of the essay which follows. I ask them in part because I think that the issue of precedent in Jewish law holds some profoundly important implications for us as practitioners of liberal halakhah. Indeed, the answers to these questions will do much to determine whether we have a right to call our enterprise halakhah in any genuine and plausible sense of that term. While“liberal halakhah,” like most other intellectual disciplines, is difficult to define with precision and while we may disagree profoundly over any number of its aspects, I think I am