Taking Precedent Seriously 21
conventional wisdom among the scholars that Jewish law does not recognize a doctrine of binding precedent. In the final analysis, the judge enjoys the discretion to rule as he sees fit on any halakhic matter, even when his ruling flies in the face of the preponderance of post-Talmudic opinion. As Joel Roth puts it, this principle of judicial independence—"a judge must rule on the basis of his own best understanding of the law”%— is the“systemic principle” and the“sine qua non” of halakhic jurisprudence, its“ultimate judicial guide.”® The question remains, however, whether this description of the Jewish legal tradition is entirely accurate. For we can point to at least three indications which, contra the conventional wisdom, argue that the halakhic decisor is much more constrained by the rulings of the past than has been indicated thus far.
a. THE CONCEPT OF JUDICIAL ERROR
As noted above, halakhah speaks of two categories of judicial error that are causes for action by the losing party in a case at monetary law(diney mamonot).® The first is an error concerning devar mishnah, a matter of law that is clearly settled in the Mish nah or the Talmud. ®* Such a mistake is tantamount to deciding a case in a manner that contradicts the law itself. The decision is not“law” at all; the judgment is annulled and the case is retried.®” The second sort of error is a mistake of shikul hada’at,“the weighing of opinions.” In this instance, the case remains settled and the decision is a valid one. At the same time, the decision is erroneous, and the judge must compensate the losing party for the damage caused by his ruling. The Talmud defines this error as a case in which a judge rules according to one side of a tanaitic or amoraic dispute(“and it is not stated that the halakhah accords with either view”) while general judicial practice(sugya de’ alma)® is to rule according to the other view.
Two points are worth special mention here. The first is that Jewish law recognizes the possibility of judicial error at all. The decision of the court is not final; it can be overturned when it is wrong, when it does not conform with the law as that law ought to be decided. As we have seen, this reversal is not enforced by a“higher” court, since Talmudic jurisprudence does not know of a system of appeals. It occurs when the court that issued the decision is made aware of its own error. The second noteworthy point is that“general judicial practice” is a criterion for dis