Mark Washofsky

A better response to this charge would be to announce that Jewish law does not recognize a rule of binding precedent; we therefore violate no standard of halakhic practice when we depart from the interpretations of the past. This response offers an obvious advantage, enabling us to defend our innovations while claiming to stand well within the circle of halakhic legiti­macy. Unfortunately, as we have seen, it offers an incomplete and quite possibly misleading description of the process of Jew­ ish law. Halakhic authorities in both theory and practice do regard the decisions of previous authorities as exerting a con­straining force over contemporary pesak. In this, Jewish law fol­lows the pattern of law in general. Reliance upon precedent, upon the accumulated wisdom of the past, is characteristic of the activity we call law. As liberals, it is certainly in our interest to portray the halakhic system in a manner congenial to our pur­poses, but that picture ought to be an honest and accurate one. If we contend that the halakhah supports our interpretations of it, the halakhah of which we speak should be the discipline of Jew­ ish law as it actually is, not an idealized view of what we would wish it to be. And that actual, real-world halakhah is a legal process that respects precedent, honors it, and is suffused by it.

Our best recourse, rather, is that suggested by the title of this paper. If we describe what are doing as halakhah, then the way we do it must fit the contours of that centuries-old rabbinical prac­tice. If there is no law—or halakhah—without precedent, then lib­eral halakhah, too, must take precedent seriously. This implies more than lip service; it demands a commitment to the set of legal values that have defined and continue to define the practice of Jewish law. Three such values deserve mention here: con­straint, language, and tradition.

Constraint is an inherent element of any legal practice that honors precedent—which is to say, of any legal practice. The cen­tral function of precedent is to limit the discretion of judges and other legal actors. Constraint, of course, does not operate in a vacuum, independent of all other legal values. Another inherent element of law is innovation, the power to develop new answers and solutions to the problems created by an ever-changing social reality. The co-existence of the values of precedent and innova­tion produces an unavoidable tension in legal thought, and as we have seen, various legal systems have fashioned techniques to accommodate that tension. Still, one cannot plausibly engage

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