Taking Precedent Seriously 15

responsa are not actual cases but rather expressions of halakhic opinion. Therefore, they have the same weight and influence enjoyed by other legal sources(depending, of course, upon the rep­utation of the writer). A rabbinical court decision that emerges from a certain constellation of facts exerts no obligatory influence over the decision of another court, for the guiding rule has always been: “the judge must rule on the basis of what he sees.”

And finally, the comments of Menachem Elon , the doyen of mish­pat ivri scholars:%

. the doctrine of binding precedent conflicts with the basic approach of Jewish law to decision making... no code of Jewish law has ever been accepted which presents to the judge only a sin­gle opinion stated unqualifiedly as the law... Within this dynamic and flexible conception of law, there is, of course, no room for the doctrine that the ratio decidendi of a judicial decision can bind the judicial system to reach the same result in other cases.

This conventional wisdom draws its support from a number of factors. The first of these is what we might call linguistic evi­dence: the legal term“precedent” does not exist in the Talmud or in the other traditional legal sources. Modern Hebrew had to invent such a term—takdim®—which serves the purposes of the Israeli legal system that has followed the doctrine of binding precedent since the period of the British mandate. Traditional halakhic language does have terms which denote the judicial decision—pesak din, ma aseh beit din, or simply ma aseh—but these refer to the ruling of the posek or dayan in the instant case and do not carry the sense of“binding precedent.” The second factor is based upon evidence drawn from Jewish judicial practice. Tal­mudic law does not generally require that a court explain the reasoning behind its decision, and the absence of an explicitly­stated rationale—a holding or ratio decidendi—in turn renders it virtually impossible to draw analogies and to use the decision in one case as a precedent upon which to decide another.** This practice helps to explain why traditional Jewish law does not know of the appellate court:** the lack of arguments and expla­nations in the judicial ruling gives an appellate court nothing to critique and renders such an institution superfluous.® It helps to explain, as well, the Talmudic statement:“one should not learn the halakhah either from a theoretical statement(limud) or from a ruling in a case(ma‘aseh).” As Rashbam explains, we do not learn