20 Mark Washofsky
of“error”: that is, whether ignorance of the opinions of post-Tal mudic authorities is equivalent to a mistaken understanding of the Talmud itself. And it most certainly takes issue with Rabad’s statement that the knowing departure from the rulings of past authorities constitutes“blatant error.” Rosh, for his part,* champions the principle of judicial freedom. The test for the correctness of any halakhic decision is not its coherence with some prior judicial ruling but its agreement with the Talmudic sources of all halakhah. Just as the later amoraim, Rosh writes, permitted themselves to dissent from the rulings of the earlier amoraim, despite the fact that“earlier” sages tend to enjoy greater intellectual stature in our eyes, so does every posek possess that authority. Thus,“in a case where two prior sages disagree, let the judge not say‘I shall rule in accordance with whichever one I wish’; such is a false judgment.” Rather, the judge should determine the law on his own, according to proof and evidence drawn from the texts.
In its essence, Rosh’s statement parallels that of Rambam , described above, in drawing an unmistakably clear distinction between the law as formulated in the Babylonian Talmud and interpretations of the law represented by the rulings of post-Tal mudic authorities. The former is binding, the latter is not; when confronted with a decision by an earlier posek that appears to conflict with the correct understanding of the Talmud , the later judge has the discretion to modify that ruling or to overturn it. The law constrains the judge’s freedom; precedent, in the form of earlier judicial decisions, is not law and therefore does not constrain.“Precedent ” does exist, to be sure, in Jewish law, since it is assumed in all these discussions that the judge will at least give careful consideration to the words of his predecessors. In this way, Jewish law reflects the tendency of all legal systems to rely heavily upon the record of past thinking and action. But this “precedent,” it would seem, is not of the binding sort(takdim mechayev); it is a“persuasive precedent”(takdim mancheh) in the manner of the civil law and of the“declaratory theory” of the common law.
The evidence considered thus far, proof drawn from linguistics, legal practice, and legal theory, supports what I have called the