Taking Precedent Seriously 35

bind the contemporary authority. But in practice, the record of past halakhic decision can shape the legitimate expectations of the members of the community. It becomes codified; it may achieve the status of consensus among the system's practition­ers. When it does so, it can exert upon the decision-maker a con­straining force tantamount to that of takdim mechayev, binding precedent, making it exceedingly unlikely that he will stray far from the course charted by his predecessors.

Yet this portrait of the Jewish legal process is not yet com­plete. We saw in our analysis of the role of precedent in the two great Western legal traditions that deference to the rulings of the past is a hallmark of those systems; even civil law courts tend to follow the general thrust of judicial interpretation. We also saw, however, that these traditions have developed means to free the contemporary judge from the influence of precedent when nec­essary. Even common law judges, supposedly subservient to the doctrine of binding precedent, employ a set of techniques—*lee­ways,” in Karl Llewellyn ’s terminology—that enable them to expand, contract, escape or re-create a precedent or a series of precedents which would otherwise prevent them from reaching the“right” answers in cases at law. Through the use of these techniques, judges exploit the“creative tension” between the respect for the past and the solicitude for judicial freedom that lies at the heart of their legal tradition. With this in mind, we turn to consider whether Jewish legal practitioners have at their dis­posal similar techniques for exploring the leeways of halakhic precedent. Granted that the posek is expected in practice to adhere to the path of halakhic tradition, to what extent does this practice grant him the flexibility, similar to that recognized in other legal systems, to turn this expectation on its head?

The only way to answer this question with accuracy is through a careful study of the rabbinical responsa literature (she’elot uteshuvot). This is because, far more than any other genre of halakhic writing, the responsum(teshuvah) conveys its author’s considered answer to a specific question(she’elah) of Jewish law. This question might be a theoretical or hypothetical one, or it may stem from an actual case. In either event, the ques­tioner(sho’el) seeks from the responsum’s author(meshiv) an opinion as to how the issue should be decided. The meshiv will send his answer, almost always accompanied with a detailed dis­cussion of the halakhic argumentation which supports it. By