6 Mark Washofsky
therefore, between tradition and continuity on the one hand and legal progress and flexibility on the other. I want to argue that Jewish law, too, achieves this balance through the use of techniques that are particularly well-suited to its history and development. I will conclude with some observations on the application of these findings to our liberal halakhic endeavor.
Precedent in the Civil Law Tradition
“Civil law” is the term generally used to describe the legal traditions of continental Western Europe (excluding Scandinavia ), Latin America , and other jurisdictions such as Louisiana and Quebec whose law is presently or was at one time identical with or heavily influenced by Justinian ’s Corpus iuris civilis."" Of the many substantive and procedural differences between the civil law and other legal systems, the one that concerns us here has to do with what we might call the ideology of lawmaking. In civil law systems, legislation holds pride of place as the dominant source of the law.!? This flows partly from its Roman antecedents.!® Justinian viewed his Code as the single, exclusive source of authoritative law in his empire, which sought“to replace and did replace all former statements of law, both in literature and in legislation.” The ideology of this“post-classical” period of Roman jurisprudence therefore saw the Emperor as the source of all law. Where legalists had previously preferred that their law remain flexible and adaptable to new circumstances,“under an absolute monarchy all law tends to be thought of as royal command.... Thereby further juristic controversy would be precluded, the uncertainty attending all juristic law[i.e., law as it had been developed by prior legal scholars— MW] would be got rid of, and stability of law would be produced. What had previously floated on the mobile waters of juristic doctrine would now be solidly based on statute.”!® Civil law ideology is based as well upon the intellectual trends that dominated the West during the late-eighteenth and nineteenth centuries and that led to the widespread activity of legal codification in Europe during this period. One of these, nationalism, expressed itself in the politico-legal doctrine of state positivism: only the sovereign state can make law, and only statutes enacted by the legislative power can be law.’ Customary law, which pre