34 Mark Washofsky
halakhic literary sea—"a judge must rule on the basis of his own best understanding...”,“Jepthah in his generation is the equal of Samuel in his generation”, among others—and to construct from them a general principle(in Joel Roth’s terminology, a“systemic principle”) that supposedly governs the halakhic process. It is all the more tempting to do this when such luminaries as Maimonides and R. Asher b. Yechiel make sweeping endorsements of the right of every halakhic authority to reach his own decisions on matters of Jewish law without having to pay deference to the rulings of judges who preceded him. Yet when the practice of a legal community so frequently and clearly diverges from the path set down in the theoretical statements which presume to account for that practice, then the least we can do is to consider the possibility that our theory is flawed. Perhaps the best that can be said for this particular theory is that it operates exclusively on the level of formality. That is to say, Jewish law does not insist upon a doctrine of binding precedent as an a priori requirement of legal correctness. Such a doctrine is lacking because halakhic theory insists upon a clear distinction between law and the interpretation of law. The rabbinical decision does not stand alone; it must in the final analysis be justified and supported by Talmudic argumentation. In that sense, Jewish law resembles both the European civil law tradition and the “declaratory” theory of Anglo-American common law in asserting that a judicial decision is wrong if it does not cohere with the ultimate legal sources. On the other hand, the notion that every rabbinical judge enjoys the discretion to issue whatever ruling seems correct to him, unconstrained by the opinions of past authorities, does not begin to describe the halakhah as it actually functions in Jewish life. It is here that I would differ from Roth: judicial discretion cannot be the sine qua non or the“systemic principle” of the halakhah because, simply put, the halakhah just doesn’t work that way. Jewish law, as it is lived and experienced by the community in its daily life, is not so much what the Tal mud says it is as what the rabbis say it is. On this level, the level of practice, the halakhah shares the tendency of other legal systems to pay great deference to precedent, to the accumulated weight of rabbinical legal thought and experience. The long history of pesak plays a role equivalent to that of precedent in other systems. True, in theory this precedent is persuasive in nature, takdim mancheh, formally non-binding, meant to guide but not to