Taking Precedent Seriously 41
the rightness of its actions. So long as the precedent remains good law, the minhag of the courts—though necessary and unavoidable in practice—is legally incorrect. The long introduction to the responsum, in which Rivash presents the halakhah in great detail, serves to underline the enduring gap between law and minhag, which is also a gap between legal aspiration and social reality. Such a gap represents a disappointing failure by the community to live its life in accordance with the ideals to which it purportedly pledges its allegiance.'*
There is, however, a hint in this teshuvah that the meshiv wishes to close the gap. In a reference to a Talmudic passage that until now has not figured in his discussion, Rivash indicates a new interpretation of the“law” in support of the judicial practice.
Therefore, in the present case, if this elderly woman desires to be known as“married,”!3 to have a husband in place of a son to be a staff in her hand and a hoe for burial(hutra liyadah umarah lekevurah); and if she has found this man who is willing to marry her on account of his difficult economic situation(mipnei dohako), even though he has no children—if you wish to avert your eyes in the way that many great and good communities, communities full of scholars and sages, have done—you may do so.
This passage is a brilliant example of legal rhetoric. I want to say more in principle about that subject below; for now, it is enough to point to several examples. First, like any good rhetorician, Rivash shifts the burden of proof from Shmuel Aramah to those who would deny him the right to marry this woman. Where the community describes Shmuel as acting out pure greed—hence, their mention of the eighty gold doubloons and their statement that “his goal is not marriage, but her wealth”—the meshiv now portrays him as a man suffering under severe economic pressure. We are no longer to regard him as a transgressor against accepted communal standards but as a human being like all others, seeking to make the best of his difficult lot. Second, Rivash appeals to the authority of the“great and good” communities and scholars who have permitted this sort of marriage in the past. Even though the Tunis communal leaders have the halakhah on their side, they surely do not imagine that they are holier and more righteous than those luminaries. In this way, the meshiv suggests that it is the Tunis authorities, and not Shmuel, whose conduct departs from the desired norm. Third, Rivash lets us hear the“woman’s voice”