44 Mark Washofsky
hag, not simply because the courts have refrained from enforcing the Talmudic prohibition. Rather, the halakhah—the ruling of Rav Nachman, as re-read by R. Yitzchak b. Sheshet Perfet —positively approves of this marriage.
This re-reading is a good illustration of the ways—or, as Karl Llewellyn would say, the leeways—of precedent in Jewish law. The“precedents,” the applicable Talmudic law and post-Talmu dic decision on this subject, are clear. The accepted,“consensus” view of the law classifies the case of R. Shmuel Aramah and his intended bride under the mitzvah of procreation. The case, in other words, is“about” a man’s obligation to“be fruitful and multiply” and his consequent duty to marry a woman capable of bearing children, especially if he has not yet fulfilled that obligation. These obligations have been thoroughly discussed in the halakhic tradition; the relevant Talmudic sources and post-Tal mudic rulings, along with the accepted interpretations of these, are well-known. So long as it is defined in this way, the question before Rivash can have only one proper legal outcome, as he himself notes in his long introduction and discussion of the applicable halakhah. Now, however, Rivash invites his readers to define the question differently. He suggests that it is no longer“about” procreation but“about” a woman's legitimate need for a husband to support her in her latter years. He accomplishes this redefinition by locating a new“precedent,” a text that had not previously been brought to bear on the issue, and by fitting that text to the circumstances of the present case. This tactic can be said to parallel the“leeway” Llewellyn entitles:“Enlarging the Standard Set of Sources or Techniques,”'® introducing into the legal discussion of a question a new set of precedential material that allows the judge to issue a more innovative ruling than would otherwise be possible. Rivash thus pays deference to precedent, to the established understandings of the law, while at the same time finding the means to allow the law—using its own texts and sources—to expand beyond the boundaries of those understandings.