22 Mark Washofsky
cerning error. It is one thing to say that a judge’s decision is “wrong” if it contradicts a settled matter of Talmudic law. Had the judge but known of that passage in the Talmud , he surely would have ruled differently; thus, we can say that his ruling is invalid on its face. It is not so obvious, however, why a decision is erroneous when it conflicts with the general tendency of judges to rule differently on the matter at issue. The decision, indeed, remains a valid one despite this error, for so long as it does not clearly run counter to settled Talmudic law we cannot declare it unequivocally to be“non-law.” Still, the judge is said to be at fault, to owe compensation, because the litigants have a reasonable expectation that the judge will decide their case as most judges decide it, in accordance with the interpretations of the legal sources which prevail in their community. The judge, too, participates in this expectation. As Rambam explains the
“error of shikul hada at”:*°
for example, a matter comes before the court which involves a dispute among the tannaim or the amoraim, yet the halakhah has not been explicitly(be erush) declared in accordance with either side of the dispute. The judge rules in accordance with one side, yet he does not know that the universal tendency is to rule in accordance with the other side.
The implication, of course, is that had the judge but known of that tendency, he would have followed it. Not to follow that tendency is regarded as a mistake, something resulting from his lack of knowledge of the judicial practice that constitutes precedent within his community. The judge, in other words, wishes to rule according to precedent; the community expects that he will rule according to precedent; and if he does not so rule, his ruling— though it is not technically in contradiction to settled Talmudic Jaw—is nonetheless presumed to be in error.
This rule, of course, is subject to the strictures of R. Asher b. Yechiel recounted above. That is, the judge is technically permitted to dissent from the rulings of post-Talmudic authorities, inasmuch as his supreme duty is to halakhic truth—"for such is the path of Torah ”*'—rather than to precedent. Yet R. Asher explicitly limits this permit for judicial discretion to those judges who are intellectually capable of achieving the formidable task of “deciding according to one opinion or the other on the basis of clear and convincing proofs.” On the other hand,