28 Mark Washofsky

scholars tell us, however, is that in theory as well as in practice the tendency to seek out and rely upon past decisions exerts con­siderable constraining force over the discretion of the contempo­rary posek. Facts such as these ought to give us pause before we proclaim, along with the“conventional wisdom,” that Jewish law does not recognize a doctrine of binding precedent.

¢. THE HaLakHIC CONSENSUS

Over time, a question that has long been a subject of lively dis­pute within a legal community will become settled. Though the community may have in the past entertained disagreement and divergent approaches to its solution, this multiplicity of views becomes out of place once a widely accepted answer has been arrived at. That answer now holds the status of“law,” so that the burden of proof rests heavily upon those who claim that it is not in fact the only correct answer or even the best answer. This process occurs in Jewish law whenever the community of poskim reach a consensus as to the right answer to a previously-disputed halakhic issue. At that point, while students of the halakhah will continue to study the“rejected” approaches, those will be regarded as purely theoretical possibilities. The law in practice(halakhah lema’aseh) will be identified by most observers with the consen­sus view among the poskim. Other, conflicting views, however plausible they may be as interpretations of the halakhic sources, will be seen as incorrect.

This consensus performs a precedential function in halakhah, a constraint upon the freedom of rabbinic scholars to derive solu­tions to legal problems that differ from the consensus view. We see evidence of this consensus throughout the history of Jewish law, every time a community adopts through formal or informal processes the practice of deciding their legal issues in accordance with a single posek or a group of poskim.'”” We see it in the form of“rules” for halakhic decision-making, designed to create a uni­form interpretation of legal sources that in theory could be read in two or more different ways.!® And we see it operating on sub­stantive halakhic questions as well, forging agreed-upon solu­tions to issues otherwise susceptible to a variety of approaches. In a significant sense, what we today call“Orthodox Judaism ” is an example of halakhic consensus, a collective stipulation by a particular Jewish community to adhere to the particular halakhic interpretations championed by a particular set of rabbinical