Taking Precedent Seriously 19
nowadays, when all of Jewish law has become halakhot pesukot (“decided law”), the second,“lesser” error no longer exists. Since the law is so clear and available to all, all judicial errors are errors over the obvious and decided truth, serious enough to annul the judge’s decision and to warrant a new trial. Razah rejects this position:“blatant error” is only the ruling which can be proven beyond doubt to contradict the law as formulated in the Mishnah or the Talmud . By contrast, legal rulings of the post-Talmudic “geonim” do not enjoy the status of decided law. Thus, an error concerning those rulings is not the“blatant” sort of mistake which nullifies the ruling. Rabad”® defends the opinion of the unnamed sage: the opinions of post-Talmudic authorities do carry substantial precedential weight. Indeed, he goes farther, extending the sage’s words beyond the range of“error” to cover even intentional departures from the rulings of the geonim. He writes—uncharacteristically for him”—that“we do not have the authority to dispute the ruling of a gaon on the basis of our own opinion, neither may we interpret a text differently so as to support a legal decision that departs from that of a gaon, except in the case of a well-known halakhic controversy.” To all this, R. Asher draws a clear distinction between“error” and“intention.” If a judge, unaware of the decisions of the geonim on the matter before him, issues a ruling that contradicts those decisions, and if that judge would surely have ruled differently had he known of the geonic precedents, then his ruling is annulled. This applies, says the Rosh , not only to the decisions of the outstanding geonim of the past but even to the writings of the sages in one’s own generation. This surely stands to reason: if knowledge of any decision, even a recent one, would cause a judge to alter his opinion, ignorance of that decision must qualify as the sort of“blatant error” that strips his ruling of its validity. However,
if he knows of a geonic ruling yet finds it unconvincing, and if he can support his own view with evidence that persuade his contemporaries, then we apply the rule“Jepthah in his generation is the equal of Samuel in his generation.” That is, you have no judge save the one who lives in your own time.®’ And that judge may depart from the decisions of his predecessors, for one is entitled to depart from, expand upon or even reject all rulings not clearly supported by the Talmud of Rav Ashi and Ravina...
This goes beyond the somewhat more circumscribed opinion of Razah, who confines his remarks—at least here®'—to the concept