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 Yehoshua, If one of my decisions comes before you, and it seems to you to be refutable, dont 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 Meir (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 Meir 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.

4. Rabbi Abraham Maimuni (1186-1237) Shut Rabbi Avraham ben HaRMBM

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, and such a course will result in the annulment of the dictum, Ein lo la-dayyan ell amah she-einav root. But that is not as it should be. Rather, the matters that are written constitute the foundation; 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 draw analogies between the case and things comparable to it, and to extrapolate from those foundations. For the many precedents, which encompass a percentage of the laws, were not recorded in the Talmud for naught, but also were not intended to dictate the decision in accordance with what is mentioned there. Rather, they are intended to facilitate the ability of the sage, who has heard them many times, to engage in the exercise of discretion and to render actual decisions appropriately. 5. Rabbi Menahem ben Shelomo ha-Meiri (1249-1316) Beit HaBechira

[And this claim] is based upon my observation that this generation is failing in such matters. For whenever some decision or case comes to our attention, and is such that by Talmudic law and on the basis of Halakha it should be judge as forbidden or allowed, innocent or guilty, fit or unfit, impure or pure, they [i.e. arbiters in the Meiris day] disagree [with the clear implications of the Talmud], basing themselves on the haggard hair-splitting of novellae and tosafot and anthologies of quotations. Yet they shriek like a crane, Look what I found that so-and-so wrote, without either knowing or paying heed to whether or not it was said correctly, and without basing themselves upon the Talmud. They pay no heed either to the identity of the speaker or to what he said. And if, occasionally, they are motivated to take note of the identity of the speaker and they chance upon one of the greats of instruction, then what he said becomes absolutely definitive no matter what its content. They pay no heed to whether or not it is true, or whether it was stated as a definitive decision or by way of commentary or reconciliation of difficulty. I have found many failings in such matters in my generation

And that is the implication of the Talmuds later statement: Shall we depend upon the forced resolution to a problem? That is, that we should put aside clear Talmudic passages or a baraita because of some reconciliation. If such can be said of tannaim and amoraim, then let the geonim and rabbis forgo their honor, 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.

Now, then, regarding all matters of decision-making and give-and-take, 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, whether for leniency or stringency, except if it is accompanied by proof. B. Limitations on the Exercise of Judicial Discretion Precedent 6. Babylonian Talmud Sanhedrin 33a Rav Sheshet said in the name of Rav Asi: [If a judge] erred in a matter explicit in the Mishnah, his decision is reversible. [If he] erred in a matter of shikkul hadaat, his decision is not reversible. Ravina said to Rav Ashi: [Does the category of devar mishnah apply if] he erred concerning statements of Rabbi Hiyya and Rabbi Oshaia [the authors of the Tosefta]? He answered him affirmatively. [Does it apply] even to Rav and Samuel? He answered him affirmatively. Does it apply even to you and me? He answered: Yes, even to you and me. Are we reed-cutters in the marsh? What, then, is shikkul ha-daat? Rav Papa said: [It occurs,] for example, when two tannaim or two amoraim disagree with each other, and the law has no been determined according to either opinion, but the general practice follows one of the positions, and the judge acted according to the other. That is shikkul ha-daat.

7. Rabbi Menahem ben Shelomo ha-Meiri (1249-1316) Beit HaBechira