Precedents all the way down: halakha as a common law system (part 1)

1. Introduction

The question of authority

What laws must a Jew obey? Concretely, this may be an easy question to answer: shabbat, kashrut, shatnez, etc. etc. But in the abstract, it becomes a trickier question (though no less an important one). What makes something a ‘mitzvah’ (deoraita or d'rabbanan)? How can one know what is required and what is merely a custom, stringency, or a mistake, especially when there seems to be so much disagreement? When a question is in dispute, how does one choose between the different sides? Is there even a ‘correct’ answer? It may seem that for a religion so preoccupied with law, it isn’t easy to identify what ‘the law’ actually is.

The puzzle is compounded by the paradoxical nature of halakha (Jewish law). On the one hand, the law comes from Divine revelation, is eternal and unchanging. On the other hand, halakha develops over time, and in non-predictable ways. Rabbis cannot change the law, at least without a Sanhedrin, yet halakha is often described as being different for different communities, communities which emerged long after the Sanhedrin’s demise. Halakha is alternately immutable and flexible; general, but tailored to circumstances; fixed and eternal - but everywhere subject to dispute. These issues, more often than not, are left underexplored. As a practical matter, halakhic questions are typically narrowly focused on some specific issue. Regarding the more general questions, most people are content with general (and often vague) or piecemeal answers which either, respectively, don’t spell out a system leading from primary sources to pesak halakha - or they do spell out such a path for a specific instance without acknowledging its inconsistency with the path taken in other cases.

Most real attempts to come up with systematic answers suffer from a number of common shortcomings. Most often, Jewish law will be described in modern, formalist terms familiar to the citizen of a modern democracy: the Oral Law is presented as deriving its authority from having been legislated by an body or individual with formal national authority - or, alternatively, that certain texts have such authority as a result of having achieved universal acceptance among the Jewish people. Major exponents of this view include Hakham José Faur z”l and Rabbi Nachum Eliezer Rabinovitz z”l, both of whom (in different ways) read the Rambam’s Introduction to Mishne Torah as claiming that the Talmud Bavli holds formal national authority.¹ Other theories, such as the ones advanced by the Hazon Ish z”l², accord similar authority to the Shulhan Arukh. An important implication of such positions is that Jewish law is essentially fixed until such time as the Sanhedrin is reconvened (or someone or some text can gain universal acceptance of all rabbis); rabbinical authority is therefore limited to applying ‘the law’. Effectively, this is a ‘civil law’ account of Judaism, as we will see in subsequent posts.

Though superficially, such accounts may seem accurate, a closer look suggests that civil law models do not mesh well with halakhic reality or practice, for several reasons. Most importantly, they provide a poor representation of rabbinic reasoning and decision-making, both past and present. In fact, they suggest that large parts of both past and modern-day Jewish practice is not just misguided or questionable, but downright wrong. Unsurprisingly, it often seems that exponents of such models themselves merely suggest them when answering the general question of authority, but do not apply them with any consistency to other halakhic questions. Moreover, accounts of the evolution of Jewish law undergirding these models are generally ahistoric and fail to answer how, legally, these specific texts became formally binding on the Jewish nation as a whole.

It’s not surprising that faced with these challenges, some essentially just throw in the towel on offering a serious explanation of how halakha functions as a legal system. One form of this answer might be termed the ‘cultural’ approach: that Judaism is simply ‘what Jews do’, without addressing questions of halakhic decision-making or change substantively. See for example Rabbi Aryeh Kaplan z”l. If civil law models are over-specified in terms of halakhic prescriptions, cultural models are under-specified: as long as a practice is widespread enough, it seems, it is deemed to be halakhic. If taken seriously, such a model makes posekim or communities essentially infallible, leaving halakha anarchic and indeterminate. Some versions of that view render halakha a kind of democracy (which, if nothing else, still suffers from the implication that large minorities on many halakhic questions are sinners), though how majorities are determined in the absence of central decision-making is usually kept vague. Moreover, the process of halakhic change is often made arbitrary and illogical: deviations from current practice (absent extreme pressure) is not allowed, even though many current practices are known to deviate from a previous status quo. Some have tried to explain halakha by means of a model based on an entirely different kind of phenomenon (in one case, language). Others are more direct, suggesting that Jewish ‘law’ simply isn’t a legal system at all.

A new theoretical framework for understanding halakha

For at least some of us who want answers, part of the problem may be that our frame of reference for how law works is shaped by modern and highly formalist notions of law and political institutions. To characterise halakha more accurately, then, answers are more likely to be found in legal systems which are more ancient and have a more central role for judge-made law. My model of halakha incorporates two main arguments. Firstly, I argue that halakha involves both formal and informal authority. If some question is not covered by any law backed by formal authority, that does not imply a carte blanche with no obligations relevant to pesak halakha. Instead, just as other legal systems have practitioners regarded as ‘authorities’ on a certain area of law, authority in halakha can derive from perceived knowledge of halakha, as well as one’s wisdom and analytical skill in reaching outcomes perceived as both just and consistent with precedent. Past rulings may also possess informal authority through widespread acceptance and even achieve canonical status with conventional authority. Such dynamics have become especially central since the demise of the Sanhedrin and semikha (ordination), but as I will discuss below, such formal authority played a relatively small part in the canonisation of Hazalic literature.

Secondly, I suggest that halakha is more analogous to common law than to civil law. One reason is the role of informal authority: in common law, past rulings are considered authoritative for courts when adjudicating a case - and this is not just true of rulings by higher courts. The way different precedents influence current law is governed by various rules and principles established by convention. Rulings achieve greater authority by a gradual crystallisation and formation of consensus. Institutionally, common law, like halakha, is a system of judge-made law, where judicial and legislative powers are separate more in theory than in practice. It is a system in which judges’ discretion is strongly counterbalanced by the imperative to adhere to precedent. Ultimately, this approach may be rationalised by the need to ensure legal certainty. This approach to legal certainty is very different from civil law, which seeks to create legal certainty by separation between the legislative and judicial functions and by the legislation of codes that aim to be comprehensive and thereby restrict judicial discretion to a minimum. For common law, the point at which justice ‘happens’ is not at the formulation of the general rule (an excessively rigid and unrealistic way to produce justice in reality), but instead at the application of legal expectations (informed by statute and precedent) to a specific case.

Just like the Common Law, halakhic literature is not an orderly body of legislation but a complex collection of rulings, case law, responsa, commentaries, codes, custom, and even anecdotes of rabbinic behaviour (ma’ase rav). Few of these precedents were issued or compiled by bodies which could be said to have formal authority over the entire Jewish people. But this fact does not mean they are devoid of authority, as a positivist outlook (i.e. one espousing the principle of legality)³ may lead one to conclude. Instead, halakha is based heavily on forms authority of a less formal nature. Like a common law judge, the posek’s job centres not around locating the appropriate legal provision but finding relevant precedents for the case before him. The choice among precedents is made based on their relevance and the perceived degree of informal authority possessed by the texts in question or their authors.

For some learners and practitioners of halakha, comparing it to other legal systems may seem strange or even suspicious. What have we to learn from other nations? This is certainly a valid question. My main answer is that a comparative perspective is crucial for understanding any complex human institution. In the words of Seymour Martin Lipset, ‘a person who knows only one country knows no countries’. Indeed, a comparative approach can actually help avoid unwittingly taking on ideas and assumptions from foreign philosophies and frames of reference. If one is ignorant of the details of non-Jewish frames of reference, it is much easier to make the mistake of unwittingly taking them on. When one does not realise where an idea comes from, it is much harder to be on guard for it. Nonetheless, let me be clear that my aim is to explain halakha, certainly not to bend halakha to any other models.⁴ One might say that civil law and common law are merely ‘parables’ which help make my argument. It is far more important to me to get my description of halakha right than my description of any other legal system. Nonetheless, there will be simplifications - all models are wrong, but some are useful.⁵ Having pondered these questions for several years, I have found this model to be a very useful one.

Having introduced the main questions, the next two posts in this series will introduce some of the main concepts in more detail. In part 2, I define the distinction between formal and informal authority (conventional authority is a subset of the latter). Part 3 will explore the main differences between common law and civil law. While civil law centres on the application of general rules spelled out in positive law, common law empowers judges to develop law from specific cases to the general rules based on the extension of precedents by analogy. I see these differences as originating with a distinct philosophy of law and justice: common law accounts for pre-existing social norms and obligations and the unique circumstances of individual cases, while civil law fits better with a liberal understanding of justice and a separation of justice. In part 4 I will set out my argument regarding halakhic authority. Though some have argued that the authority of certain texts has formal status, I find such a case wanting. Instead, I argue that texts’ canonical authority is still ultimately founded on convention (a form of informal authority). Lastly, sections 5 and 6 explores in more detail the role of precedents in halakha. As in common law, positive law is interpreted not directly but primarily through the lens of precedent, and the halakhic process as a whole is deeply committed to upholding precedent. Moreover, its oral origins and identification with Sinaitic traditions have shaped it to be deeply conservative. Thus, the relative absence of formal authority, while making civil law impossible, facilitates a common law-like emergent halakhic order. The resulting system of halakha may be a bit messy, but as I show, understanding halakha as analogous to common law helps see the forest through the trees.

1. See also Kessef Mishne on Mishne Tora, Hilkhot Mamrim 2:1, perhaps the earliest explicit statement of such a view.

2. See, for example, Bleich (1993).

3. I will discuss positivism in more detail in the next few parts of this series. I argue that it is very much a modern legal philosophy, and it is based on some assumptions which are hard to reconcile with traditional Jewish sources.

4. Indeed, this model feels to me like it simply fits the data much better than other models I have known, which frequently seemed to require such ‘bending’.

5. It might be accurate to understand my framework as an exercise in meta-halakhic ‘lomdus’ - an attempt to identify the overall arc of halakha. In this vein, the question ‘is halakha a civil law system or a common law system’ is akin to the question: אשו משום חיציו או משום ממונו?