Taking Precedent Seriously 47

economic security. Measuring the matter in this light, the reader is more likely to agree that the case is no longer“about” procre­ation at all and that, therefore, the existing precedents are no longer relevant to it.

Note that Rivash in no way challenges the correctness of the precedents. The rule set forth in the Talmud and the codes is still good law. Note, too, his recognition that the rule clearly covers the circumstances of the present case, in which a childless man seeks to marry a woman incapable of conceiving. Yet while maintaining the utmost respect for the precedent, the posek sets it aside, ostensibly by locating an alternative precedent in the rul­ing of Rav Nachman. This alternative precedent is in point of fact new law; a woman's previously-recognized“right” to chil­dren now becomes, in the hands of the fourteenth-century posek, a“right” to marriage. Thus, through the innovative“translation” of the language and logic of the Talmudic tradition,'* a tradition his readers already accept as authoritative, Rivash the legal rhetorician seeks to persuade them that halakhah speaks with more than one voice to the situation at hand, that it offers more than one possibly correct answer to the she’elah, and that his own correct answer is more equitable and efficient than the other, more precedented one.

If law in general and Jewish law in particular exhibit a“cre­ative tension” over the role of precedent, we are now in a position, [ think, to better understand how that tension operates. The con­cept of precedent, as noted at the outset of this paper, is endemic to legal practice, and there exists a broad consensus among lawyers that precedent operates as a constraining factor upon freedom of legal decision. Yet it is the lawyers themselves, as the practitioners of the rhetorical discipline of law, who define the limits of that constraint. Precedent, like every other element of a legal tradition, is the material out of which jurists construct their discourse. It is this very discourse, the give-and-take of legal argument and the sustained effort to persuade the community of practitioners of the correctness of a particular answer, that will determine a case to be a“precedent” and precisely what that precedent means. Whatever the status of the doctrine of precedent in Jewish law, the influence of a precedent upon the ruling of a contemporary scholar is a matter to be determined by the scholar himself, operating as the practitioner/rhetorician of the halakhah within a community of fellow practitioners, placing that prece­