Taking Precedent Seriously 39

Rivash thus sets up the sharpest kind of contrast between halakhah and minhag, between the clear and undisputed interpre­tation of the Talmudic sources and the actual practice of the courts. This gap, he confesses(“Yet what can I do?”), is a serious intellectual problem for the judge. The halakhah, in this case con­firmed by the rulings of Maimonides and other poskim,'® would demand that he support the Tunis authorities in their bid to pre­vent this marriage. Yet the practice of the courts ignores the law, and Rivash must decide whether to acquiesce in that practice. He answers this question in the affirmative, supporting the courts on strictly practical grounds.

If the courts were to rule according to the letter of the law in all its detail in matters concerning proper marriage arrangements (zivugim), it would be necessary to compel divorces in all these cases. Since most of these wives would have to receive their ketubah and dowry, and since there is no ketubah which is not the subject of financial dispute, strife and contention would increase. For this rea­son the sages have over many generations ignored these issues. They have not sought to block these marriages from taking place, to say nothing of trying to separate the couples who marry in viola­tion of these rules. So long as the union does not violate the laws of forbidden relationships(ervah) or the laws concerning prohibited marriages to priests, it is enough to leave them alone unless the couple bring a marital dispute before the judges.

This is a“practical” defense of the custom because it offers no theoretical justification for it. Rivash does not adopt here the ten­dency of many medieval poskim to reconcile the practice with the controlling halakhic standard or to show that it enjoys its own independent legal validity.’ On the contrary: he concedes the technical correctness of the claim that these marriages do depart from the halakhic standard. Yet he invites his readers to look beyond the formality of the law to the wider purposes of the legal system, arguing that the attempt to enforce these admit­tedly valid halakhic requirements would lead to chaos in the administration of justice and to an increase in social discord.’ It is to avoid these devastating consequences that the sages of many generations have wisely chosen not to enforce them. Rivash here sounds not unlike a twentieth-century legal prag­matist, 1%? suggesting that in this instance the legal reasoning of the judges has been determined(and rightly so) by their concern for the ends and purposes of the legal system rather than by the