Taking Precedent Seriously 67

Ww 9

133.

of the Jewish community. The local ruler in this case summons the commu­nity leaders to respond to Shmuel Aramah’s indictment of them, and it would seem that he is well-disposed to Aramah’s claim.

2.1t would be absurd to describe R. Yitzchak b. Sheshet Perfet as a philosophi­

cal pragmatist, a forerunner of Pierce, James , Dewey, and Rorty . Pragmatism as a general approach to knowledge and action involves intellectual atti­tudes(most notably a thoroughgoing skepticism concerning metaphysical truth claims) that would have been foreign to the mind of a fourteenth-cen­tury rabbi. My reference indicates rather that in his handling of this question, Rivash displays some of the tendencies associated with legal pragmatism, which urges that jurists apply rules of law not as formal propositions to be developed by abstract logical reasoning but as instruments serving practical purposes that lie beyond the rules themselves. The good of the legal system as a whole is just such a purpose, and Rivash cites it here as the reason for rejecting the controlling legal precedents. On legal pragmatism, see John Dewey ,“Logical Method and Law,” Cornell Law Quarterly 17(December, 1929), 17-27; Benjamin Cardozo , The Nature of the Judicial Process(New Haven : Yale , 1921), 66(“The final cause of law is the welfare of society”); Richard Posner , Problems of Jurisprudence(Cambridge: Harvard , 1990), espe­cially 454-469(“A Pragmatist Manifesto”); and the essays in M. Brint and W. Weaver, eds., Pragmatism in Law and Society(Boulder, CO: Westview, 1991). That Rivash himself recognizes this is underlined by R. Yosef Karo , Beit Yosef EHE 154(fol. 74b), who cites the beginning of this responsum as proof that a divorce is coerced when the wife is beyond childbearing years. See SA EHE 154:10 and Beit Shmuel, no. 24. Significantly, Karo never mentions the second part of the responsum, in which Rivash notes that the practice of the courts is to refrain from coercion in these cases. R. Moshe Isserles, on the other hand, relies heavily upon this second part of the responsum for his ruling that“nowadays the custom is not to coerce on these matters”(SA EHE 1:3 and 154:10; and see Darkei Moshe EHE 1, no. 3). This method of selective cita­tion, in which the later authority refers only to that part of the precedential source that supports his own opinion, surely belongs in the category of“lee­ways” that jurists enjoy with respect to precedent.

134. The language and ideas here—notably that the responsum expresses a sense

135.

136.

of the ideal and while conceding the necessity of the failure to realize that ideal—are inspired by the observations of James Boyd White ,“The Rhythms of Hope and Disappointment in the Language of Judging,” St. John’s Law Review 70(1996), 45-50.

A wooden translation of Rivash ’s phrase nicha lah delipuk“alah shema de’ishut. She wishes, literally, to bear the title of“wife.” This may be a delicate way to avoid stating the obvious: that no actual ishut—marital relations—are likely to occur in this union.

See the mishnah on the page(M. Yevamot 6:6); Yad, Ishut 15:2; SA EHE 1:1 and 13.

137. Thus, lacking a valid claim for divorce, if you wish to leave the marriage you

will not receive your ketubah; Rashi, Yevamot 65b, s.v. la mipakadat.

138. Rashi, Yevamot 65b, s.v. chutra leyadah. 139. Llewellyn, The Common Law Tradition, 90.