Taking Precedent Seriously 69 &\

149. 150.

152

155,

“Constitutional Midrash: The Rabbis’ Solution to Professor Bickel’s Prob­lem,” Houston Law Review 29(1992), 581:“Jewish law teaches that it is possi­ble for competing foundational norms to reside peacefully and beneficially in a single legal system as long as the interpreters of these norms possess cer­tain characteristics—as long as they are wise.”

.On the tendency of Jewish lawyers to exaggerate the supposed similarities

between American and Jewish law—two vastly different systems, see Jerold S. Auerbach , Rabbis and Lawyers: The Journey from Torah to Constitution (Bloomington: Indiana U. Press, 1996), xviii.

See Stone, note 145.

These include such famous examples as the“eilu ve'eilu” resolution of the halakhic controversy between the schools of Hillel and Shammai in BT Yeva­mot 13b and the“oven of Akhnai” story in BT Bava Metzi‘a 5b.

. This scholarly controversy provokes the same observation that I apply to the

arguments over the role of precedent in Jewish law: a theory is only as valid as the data it purports to explain. Or, as Justice Holmes might have put it: “General propositions do not decide concrete cases”; Lochner v. New York, 198 U.S. 45(1905), Holmes, J. dissenting.

2. Here I wander dangerously close to the precipice of modern(and postmod­

ern) literary theory, in which the question of what, if any, meaning texts and language may have is deeply and irremediably controversial. I do not wish to fall off, at least not here. A thorough analysis of this subject would demand at least a brief reference to such approaches as deconstruction, hermeneutics, reader-response theories, and the objectivity-in-interpretation school of E.D. Hirsch, Jr. Let me instead make this observation: the activity of law is a con­versation in which the parties involved commit themselves to the proposi­tion that the texts do mean something and that this meaning is sufficiently discernible by the parties. I cannot imagine a coherent legal conversation that does not proceed from this assumption. If texts can mean anything, they therefore mean nothing, and if they mean nothing, no point can be served by citing them as part of the conversation. Meaning can be arrived at and agreed upon even when the discussants acknowledge the semantic reality that“objective” meaning does not inhere in words. Rather, meaning is an activity of speech or writing; it can be inferred by more-or-less reliable evi­dence as to what the speaker or writer had in mind when saying or writing the words. See Gerald Graff,“Keep Off the Grass,”‘Drop Dead,” and Other Indeterminacies: A Response to Sanford Levinson, ” Texas Law Review 60 (1982), 405-413.

-For example, the bare facts of an auto accident—"he ran right into me while

I was making a left turn”—are devoid of any meaning until translated into the language of tort law, which speaks of causation and negligence.

4.See, in general, Walter Jacob , American Reform Responsa(New York : Central

Conference of American Rabbis, 1983) ,xv-xviii, and Alexander Guttmann, The Struggle Over Reform in Rabbinic Literature(New York : UAHC, 1976).

See Solomon B. Freehof ’s essay“Jacob Z. Lauterbach and the Halakah, ” Judaism 1(1952), 270-273. The hundreds of teshuvot penned by Freehof him­self, of course, are clear testimony to the halakhic language of Reform

responsa.