Taking Precedent Seriously 4

long and rather complex history. It originated in geonic times as a rule of thumb to help decide the halakhah in disputes among the sages of the Talmud :“even though the Rabbis may declare that‘in disputes between scholar A and scholar B the halakhah follows scholar A,” when later amoraim share the opinion of B, the law is in accord with his view.”'%? During the Middle Ages, rab­binical authorities began to apply the rule to disputes among post-Talmudic poskim. The question which divides contempo­rary observers is this: when the medieval poskim cite the rule hilkheta kevatra’ey, do they refer to a particular group of authori­ties in the recent past, or do they include among“the latest authorities” the scholars of their own generation?!” The differ­ence here is significant. If hilkheta kevatra’ey means that the deci­sions of the contemporary sage take precedence over those of all previous generations, then we do not have here a rule of“prece­dent” at all but a rule that permits, very much in the spirit of the remarks by Maimonides and R. Asher, the individual judge to decide questions of halakhah on the basis of his own independent reading of the sources. If, on the other hand,“the latest authori­ties” are an identifiable group of relatively recent sages and books, then the demand that the halakhah be decided in accor­dance with their opinion is indeed a rule of binding precedent, albeit a different standard of precedent than that set by R. Yosef Karo and the Sefardic tradition. However other halakhic schol­ars defined this rule, there is little doubt that R. Moshe Isserles adopted the latter definition. We are not the“latest authorities; the batra’ey are rather the most recent authorities whose written decisions are customarily followed in our communities.’ These authorities, rather than the“banc” of earlier scholars(rishonim) assembled by Karo , are our teachers. While Isserles disagrees with Karo as to the source of binding halakhic precedent, the two are in accord on the notion that there is such a thing as binding precedent in halakhah, a set of past rulings which ought to deter­mine our legal practice and cohstrain the freedom of the con­temporary halakhic authority.

Like the concept of judicial error, the reliance upon prece­dent displayed by both Karo and Isserles is no absolute guaran­tee of the absence of judicial discretion in the halakhah. Rabbinical authorities are still entitled to rely upon their independent judg­ment in determining the law,'% particularly on matters their pre­decessors have not adjudicated. What the examples of these