Taking Precedent Seriously 23

if the judge cannot do this, let him not take disputed property from either litigant and award it to the other, since in every case where the law is in doubt we leave the disputed property with its current possessor.... And if he is unable to decide according to either side of the dispute, then should he rule one way in a case where most scholars would rule the other way, this is an instance of an error of shikul hada"at.”?

Even though the posek is free to rule in accordance with the law rather than with precedent, in practice this freedom is enjoyed only by those poskim who possess the confidence to decide the law in cases where the authorities are in dispute. As we shall see, this confidence is a precious commodity in a discipline like halakhah that places much weight upon the opinions of much­admired predecessors. In any event, R. Asher’s words support the presumption that in most cases, where the presiding judge will not view himself as capable of declaring the law with such certainty, a departure from established precedent will be regarded as an instance of judicial error.

b. ExpriciT RELIANCE UPON PRECEDENT

Although most judges, and surely those who do not possess extensive Talmudic training, will rule in accordance with“gen­eral judicial practice,” R. Asher leaves the distinct impression that the truly knowledgeable authority may rule on questions of halakhah as he sees fit. So long as he decides in accordance with the law—that is, avoiding errors of devar mishnah—he is unen­cumbered by the constraints of precedent. Yet while this impres­sion comports with the“conventional wisdom” that sharply distinguishes between law and judicial precedent in Jewish legal theory, it is contradicted by a powerful stream of halakhic thought and practice. I refer to those scholars and sages who by rights ought to declare their freedom from precedent but who in fact argue that contemporary halakhic decision should conform to the rulings of the outstanding geonim of the past. Taken together, their statements constitute the second counter-argu­ment to the“conventional wisdom”; they create the contradic­tory impression that in almost all instances even the greatest authorities will adhere to precedent. This adherence, moreover, will not be a matter of convenience or scholarly habit. Rather, it is entirely right and proper for them to submit to the constraints of past judicial practice.