18 Mark Washofsky
ers, what of it? Such is the way that legal traditions in general, and the halakhic tradition in particular, develop and grow.“One naturally relies upon a crystallized and respectable tradition, knowingly or unknowingly drawing upon it.” So long, however, as Maimonides insists upon his freedom, and that of every other halakhic authority, to make his own decisions according to his best understanding of the Talmud , then we are safe in citing his writings on halakhic theory as evidence that Jewish law does not recognize a doctrine of binding precedent.
The second“classic” statement affirming the halakhic jurist’s independence from binding precedent is that of R. Asher b.Yechiel, or Rosh(d. 1327), the author of a renowned halakhic compendium(Sefer Hilkhot[or Piskey] Harosh) that takes the form of a supplement or commentary to the Halakhot of R. Yitzchak Alfasi. Rosh, a leading student of the tosafist R. Meir of Rothen burg , emigrated from Germany and arrived in Spain in 1305, eventually settling in Toledo, where he maintained a Talmudic academy until his death. His biography plays a significant role in most estimations of his approach to halakhic decision-making. Born and bred in the halakhic traditions of Ashkenaz , Rosh expresses serious reservations over the tendency of poskim in his adopted land to rely uncritically upon the decisions of Rambam '’s Mishneh Torah for legal guidance. These reservations stem partly from Rosh’s dissatisfaction with the literary form of the Maimonidean Code—Rambam presents the law without accompanying source citation or argumentation”’—and partly from the fact that Rosh believes that the teachings of his own countrymen offer a superior interpretation of Talmudic law than do those of the Sefardim .”* Rosh, moreover, exhibits a more general opposition to the reliance upon legal precedent, whether that of Maimonides or anyone else, which brings us to the“classic” statement found in his Halakhot. ”> His discussion relates to the Talmudic sugya on the two forms of judicial error, specifically the more blatant error which causes a judgment to be annulled (hato eh bedavar mishnah) and the lesser error which leaves the judgment intact but which imposes a duty of compensation upon the offending judge(hato’eh beshikul hada’ at).”® 1 shall have more to say on this question; here, I want only to consider Rosh’s reaction to a previous dispute, between the twelfth-century Provencal scholars R. Zerachyah Halevy(Razah) and R. Avraham b. David (Rabad). Razah” quotes the opinion of an unnamed sage that