MARK WASHOVSKY
rabbinic prohibition of such marriages(M. Yevamot 2:8) is an apparently insurmountable obstacle. Uziel surveys various legal devices that have over the years been suggested as ways to circumvent the prohibition, but he concludes that all of them are halakhically defective. Ultimately, we are left with one sure remedy: the responsum of Maimonides discussed above. Indeed, as his other responsa on this issue suggest, Rambam ’s ruling is the linchpin of Uziel's position on both issues, the conversion as well as the marriage.” It shows us that we may deviate from the settled law in the name of higher religious purpose. Uziel declares that Rambam ’s lesser-of-two-evils argument"serves as a guide on all matters which do not involve an absolute prohibition(isur gamur; i.e., rabbinic as opposed to Toraitic prohibitions)": to avoid potentially tragic consequences to the Jewish people, the prohibition may be waived.
Uziel, in other words, uses Rambam as his precedent, which allows him to contend that he does not actually deviate from the law at all. If Maimonides , a post-Talmudic authority, can suspend Talmudic law on the basis of a"lesser-of-two-evils" argument, Uziel can do so as well. True, he does not have to do so, since Jewish law does not recognize a doctrine of binding precedent. The fact that a great authority ruled in a particular way on a question of halakhah does not obligate a subsequent scholar to rule likewise. The ultimate authority, after all, is the Babylonian Talmud , and the halakhist’s responsibility is to decide questions according to his best understanding of the Talmudic sources regardless of the opinions of other posqim.” Still, a past decision may count as a"precedent" to the extent that it influences the thinking of a contemporary scholar. In theory, rabbis are free to arrive at their own independent decisions; in practice, they customarily cite the decisions of postTalmudic predecessors in support of their own rulings. Even the eminent codifiers attribute decisive weight to precedent in their determination of the halakhah.” The opinions of past scholars do not automatically establish the halakhah, but they do serve a
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