40 Mark Washofsky

formal logic of the law. In making this point, he cuts the legal ground from beneath the feet of the authorities of Tunis. The case, as he presents it, is no longer to be decided by“law,” the interpretation of the Talmudic sources and post-Talmudic prece­dents, but by the practical consequences that can be predicted from the application of that law according to its clear and unam­biguous understanding. The authorities cannot act upon their eminently legal desire to frustrate the wedding plans of Shmuel Aramah without creating the sort of“strife and contention” that as responsible leaders they surely wish to avoid. Since they man­ifestly wish to view themselves as responsible leaders, they have no real alternative but to allow the marriage to proceed.

What does this opinion tell us about precedent in Jewish law, at least in the eyes of R. Yitzchak b. Sheshet Perfet? Since he advo­cates that the communal authorities defer to the practices of the courts, even though these practices conflict with the Talmudic legal standard, it would seem at first glance that precedent plays an influential role in determining his decision. Indeed, we might say that his approach accords with that of the positivistic theory of the common law, the notion that law is judge-made: we follow precedent because the judicial decision is law, whether or not it agrees with the earlier sources upon which it is putatively based. Yet Rivash does not in fact say this; he does not make a claim for the validity of the courts’ practice. The judges do what they do for good and practical reasons, but their minhag remains in conflict with the halakhah. It is still, in that sense, a deviation from correct law. Such a deviation cannot exist in the positivist theory, which sees the judicial decision as a self- authenticating act. Moreover, the minhag is itself a departure from precedent, from the consen­sus view of the law among poskim like Maimonides whose rulings have already achieved the status of precedent in this community. Deference to the past would have requited the judges to follow those rulings, but they clearly have not done this.

Nor does Rivash ’s decision support the opposite view, the “conventional wisdom” that binding precedent does not exist in Jewish law. True, he endorses the courts’ departure from the existing legal standard, the authoritative precedent as handed down by the poskim, but he never rejects their ruling as the cor­rect reading of the legal sources. It remains the law; it continues to express the halakhah, the legal ideal, the goal to which the community is called upon to aspire and by which it is to measure