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Taking Precedent Seriously 51

in the activity of“law” unless one accedes to law’s constraining element, an element symbolized by precedent as it operates in different legal systems. For liberal halakhists, this means we must recognize that the texts and sources of Jewish law do in fact constrain us; they limit what we are able to say, the claims we might reasonably make in the name of halakhah. 1 stress this point because we occasionally hear suggestions that the discipline of liberal halakhah be defined almost exclusively on the basis of moral principles. That is, we should identify those grand ideas and ideals in Jewish legal literature that are congenial to pro­gressive values and make our decisions directly on that basis. For example, since one of the fundamental principles of our reli­gious thought is social justice, and since we discern this ideal quite readily in our sources, we would say that any decision that upon serious reflection strikes us as“moral” or“just” is auto­matically and for that reason alone“halakhah” for us, regardless what the halakhic texts themselves—the Talmud and the accu­mulated precedents in the post-Talmudic halakhic literature— may say. While I do not doubt that a system so conceived would indeed be“liberal,” I cannot call it“law.” It is rather an exercise in ideological thinking, wherein decisions on specific issues are made by way of deduction from abstract“first” principles. Law, by contrast, is an exercise in textual thinking, which while informed by the ideologies—that is, by the general moral and political commitments—of its participants, proceeds by way of discussion and debate over the meaning of texts. And while the meaning of those texts may be contestable, equivocal, and not etched in stone, neither is it infinitely plastic. An argument over textual meaning implies that the text does mean something and therefore does not mean the opposite of that something; we are constrained from claiming for a text a meaning that it does not convey.'>? If we liberals are serious in saying that we are engaged in the practice of halakhah, we must accept the essential condition of that practice: the texts of halakhah—which serve as prece­dents—do in fact constrain the choices we can make.

The second legal value, language, flows directly from the first. If precedent constrains us to pay close attention to the texts of the past, it also requires that we argue over the meaning of those texts in the language of the halakhah. Law is a language Whose vocabulary consists of texts and whose grammar is com­Posed of the techniques by which the jurists who speak the lan­