16 Mark Washofsky
from the ma‘aseh because“one may mistake the reason upon which that particular ruling is based; indeed, this mistake is frequently made.” The inference is that the actual ruling was generally not accompanied by the sort of argumentation that allowed one to learn from it and to apply it as a precedent to other cases.
The third factor which diminishes the binding power of precedent in Jewish law is that of legal theory, by which I mean the understanding of the nature of law and its authority in the halakhic system. A powerful stream of rabbinic jurisprudential thought insists upon a clear and definite distinction between “law” on the one hand and applications of that law by judges on the other. The law is declared in the Torah , both written and oral, and given its authoritative literary formulation in the Babylonian Talmud and its cognates. All subsequent decisions by Jewish legal authorities are based upon the Talmud and are correct insofar as they comport with the halakhah as set forth in the Talmudic sources. The ruling(pesak) of any decisor is not to be identified as “law” but rather as an interpretation or application of the law. The decision does not make law; at best, it serves as evidence of what the law truly is. It follows, then, that on this subject Jewish legal thought parallels the dominant theory of the civil law and the declaratory theory of the common law: no prior decision can constrain a judge from ruling as he sees fit in the case before him. The duty of the posek is to interpret the law—that is, the Tal mud —according to his own best understanding, regardless of the opinions of other judges. As the Talmud puts it:“a judge must rule on the basis of what he sees”(ein ladayan ela mah she einav ro’ot).%®
Two statements of this legal theory, both of them“classics” in the literature of Jewish jurisprudence, illustrate this point with special clarity. The first is taken from the Introduction to the Mish neh Torah (Yad Hachazakah) of Maimonides (Rambam ), wherein the author spells out the guiding methodology of his massive undertaking. Rambam draws a sharp distinction between two different sets of legal materials: those interpretations, legislative enactments and other practices which are included in the Babylonian Talmud and those which arose following the Talmud ’s redaction.“All Israel is obliged to follow the decisions of the Babylonian Talmud ... because all Israel accepted these decisions upon themselves (hiskimu aleyhem kol yisrael).” By contrast, those legal materials cre