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On Judicial Discretion and Precedent

(Sources drawn from The Halakhic Process by Joel Roth) A. The Legal Right and Imperative of Judicial Discretion 1. Babylonian Talmud – Bava Batra 130b-131a

Rava said to Rav Papa and to Rav Huna the son of Rav Yehoshu’a, “If one of my decisions comes before you, and it seems to you to be refutable, don’t tear it up until you come to me. If I have some reason, I will tell you; and f not, I shall retract. If the same thing happens after I die, do not tear it up, but also do not use it as a paradigm on the basis of which to determine other similar cases. You should not tear it up, since were I alive I might have been able to explain it to you. You should not use it as a paradigm, for a judge must be guided by what he sees. 2. Rabbi Samuel ben Me’ir (Rashbam, ca. 1080-1174) …and this principle applies to a matter of judgment based on logical reasoning as well, in which the judge must be guided by the dictates of his mind. 3. Rabbi Me’ir ha-Levi Abulafia (ca. 1170-1244) – Yad Ramah to Masechet Bava Batra

…You should not use it as a paradigm, since a judge must be guided by what he sees. Therefore, you should judge future cases as it seems appropriate to you But do not tear up my decision, since perhaps some other arbiter will come along who will offer a reason for it, resulting in its resubstantiation.

who has heard them many times. and to extrapolate from those foundations. Rather. arbiters in the Me’iri’s day] disagree [with the clear implications of the Talmud]. innocent or guilty. occasionally.” without either knowing or paying heed to whether or not it was said correctly. and is such that by Talmudic law and on the basis of Halakha it should be judge as forbidden or allowed. they are motivated to take note of the identity of the speaker and they chance upon one of the greats of instruction. they [i. Rather. I have found many failings in such matters in my generation… . but also were not intended to dictate the decision in accordance with what is mentioned there. For the many precedents. were not recorded in the Talmud for naught. And if. Rabbi Menahem ben Shelomo ha-Me’iri (1249-1316) – Beit HaBechira [And this claim] is based upon my observation that this generation is failing in such matters. But that is not as it should be. and it is the obligation of the one who is judging a case or rendering a decision to ponder them in every matter that comes before him. to engage in the exercise of discretion and to render actual decisions appropriately. or whether it was stated as a definitive decision or by way of commentary or reconciliation of difficulty.e. They pay no heed either to the identity of the speaker or to what he said. Rabbi Abraham Maimuni (1186-1237) – Shut Rabbi Avraham ben HaRMB”M In sum: I affirm that a judge who is guided in his decisions only by that which is written and explicit is both weak and timid.4. which encompass a percentage of the laws. Ein lo la-dayyan ell amah she-einav ro’ot. the matters that are written constitute the foundation. Yet they shriek like a crane. and such a course will result in the annulment of the dictum. They pay no heed to whether or not it is true. For whenever some decision or case comes to our attention. fit or unfit. basing themselves on the haggard hair-splitting of novellae and tosafot and anthologies of quotations. they are intended to facilitate the ability of the sage. and without basing themselves upon the Talmud. impure or pure. 5. “Look what I found that so-and-so wrote. then what he said becomes absolutely definitive no matter what its content. to draw analogies between the case and things comparable to it.

when two tanna’im or two amora’im disagree with each other. then. whether for leniency or stringency. for any statement of theirs that comes to our attention and seems either novel or strange will be accepted by us only insofar as it supportable by Talmudic proofs or if it seems acceptable because of its eminent reasonableness…. his decision is reversible.And that is the implication of the Talmud’s later statement: “Shall we depend upon the forced resolution to a problem?” That is. Now. That is shikkul ha-da’at. is shikkul ha-da’at? Rav Papa said: “[It occurs. his decision is not reversible. Limitations on the Exercise of Judicial Discretion – Precedent 6. If such can be said of tanna’im and amora’im.] for example. except if it is accompanied by proof. [If he] erred in a matter of shikkul hada’at. B. and the judge acted according to the other. even to you and me. it is not appropriate to render decisions according to what may be found written by some scholar or codifier or commentator who has rendered a very novel opinion. “[Does it apply] even to Rav and Samuel?” He answered him affirmatively. . Babylonian Talmud – Sanhedrin 33a Rav Sheshet said in the name of Rav Asi: “[If a judge] erred in a matter explicit in the Mishnah. then let the ge’onim and rabbis forgo their honor. “Does it apply even to you and me?” He answered: “Yes. regarding all matters of decision-making and give-and-take.” Ravina said to Rav Ashi: “[Does the category of devar mishnah apply if] he erred concerning statements of Rabbi Hiyya and Rabbi Oshai’a [the authors of the Tosefta]?” He answered him affirmatively. Are we reed-cutters in the marsh?” What. then. and the law has no been determined according to either opinion. that we should put aside clear Talmudic passages or a baraita because of some reconciliation. but the general practice follows one of the positions.

Rabbi Menahem ben Shelomo ha-Me’iri (1249-1316) – Beit HaBechira .7.