Taking Precedent Seriously 33
that diverge from those that make up the consensus view shared by the recognized authorities.!” We must conclude, therefore, that the halakhic consensus is real, that it is a factor of considerable weight in identifying the“correct” understanding of Jewish law for the observant community, and that it functions as precedent, constraining the freedom of the halakhist to derive other decisions on the basis of the sources.
The Leeways of Halakhic Precedent: A Look to the Responsa Literature
What then is the role of precedent in Jewish law? The answer that emerges from the halakhic writings and the academic research cited above is equivocal or, better, dichotomous, revealing an apparently deep chasm between theory and practice. The theory holds that halakhah does not contain a doctrine of binding precedent. The law, the standard of Jewish practice, is to be derived from the recognized sources of the law, primarily the Babylonian Talmud and its cognate literature. The rulings and decisions of post-Talmudic scholars are not strictly speaking“law” but interpretations of the law; possessing no inherent authority, they do not constrain the freedom of the contemporary posek. The individual posek who finds such a ruling inconsistent with the Tal mudic sources is accordingly free to ignore it or to set it aside. In practice, however, the decisions of the post-Talmudic sages exert a powerful precedential force upon subsequent generations. As a matter of practice, a litigant legitimately expects that the judge will avoid judicial error, a ruling on a controversial issue that conflicts with the dominant opinion among the poskim. As a matter of practice, halakhists have adopted methods for deciding the law in accordance with the opinion of one post-Talmudic authority or a“banc” of such authorities. And as a matter of practice, the community will tend to identify the correct halakhah with the consensus view of its scholars, severely limiting thereby the likelihood that alternative points of view will enjoy a careful and considered hearing.
This theory-practice dichotomy ought to make us wary of conventional wisdoms. To put this another way: a theory is only as valid as the data it purports to explain. It is tempting to isolate a few key phrases and remarks that bob on the surface of the