14 Mark Washofsky
“legislative” in origin while the latter is at heart“judicial’—both
display the sort of creative tension over the concept of precedent which I have suggested is symptomatic of legal systems. Both traditions pay deference to the rulings of the past and established judicial practices; even civil law courts cite cases and tend to follow the general thrust of judicial interpretation. And both traditions also have means of freeing the contemporary judge from the fetters of precedent when this is necessary; even common law judges(and, perhaps, especially the common law judges) have developed sophisticated techniques for doing so. I now want to turn to the consideration of Jewish law in the light of these realities. In what ways does the Jewish legal tradition acknowledge the power of precedent as a constraining factor upon a rabbi’s freedom to decide an issue of halakhah? And in what ways does it accommodate the value of adherence to the authority of the past with the need for flexibility and innovation in halakhic decision?
1. The Conventional Wisdom: There Is No Binding Precedent in Jewish Law.
Among the scholars grouped under the rubric of mishpat ivri, the academic study of Jewish law, we encounter a broadly-accepted consensus that precedent exerts no binding, obligatory constraining force over the decision-maker in any case at rabbinic law. The words of Zerach Warhaftig , who has produced a major work on the subject, summarize this consensus rather well:5
A decision found in the responsa literature or among a collection of court cases is a valuable source from which to learn the halakhah... but the court is not constrained to follow a previous ruling. The judge’s task is to render the correct decision as he sees it. He is permitted, and even obliged, to seek advice from those more knowledgeable than he, to study the sources and the precedents, but the decision is his and his alone. We therefore learn that the precedent (takdim) in Jewish law(mishpat ivri) may have a persuasive value (mancheh), but it is not binding(mechayev) upon the judge.
To these we might add the observations of Eliav Shochetman:8
A rabbinical court is indeed required to consult the rules of decision-making as formulated in the halakhic literature, a literature which includes responsa based upon actual cases. Yet these
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