Tuesday, September 25, 2012

The Danger of Disregarding Precedent


"Stare decisis et non quieta movere"   (stand by decisions and don't disturb the undisturbed)

In 200 C.E., Yehuda haNasi broke with precedent.  He took a legal system based on oral transmission and converted it into a written tradition.  

What's the big deal with violating precedent?  Who cares, right?  

You should.  And here's why...




First, let's define precedent.  In legal terms, precedent is an authoritative judicial opinion or piece of legislation.  If there was no precedent then there would be no law.  And it's important to understand that not all precedents carry equal weight.  For example, in the United States, a relevant decision from a higher court in the same jurisdiction as the current case will carry more weight than a decision from a lower court.

Let's look at an illustration. What would happen if the President decided that he was going to start issuing laws without the involvement of Congress?  If he announced that Congress could not be trusted and that he was going to be Congress from here on out, what would people do?  I'm guessing there would be some sort of civil war.  People wouldn't want to follow a President who disregarded precedent.  He would lose all credibility.

But in 200 C.E., that's exactly what happened.  Up until that point, the Oral Tradition had been transmitted in dialogic fashion, from teacher to student, going back to Moses our teacher.  The Oral Tradition was framed by the Israeli Constitution (i.e. Written Torah).  And halachic authority vested in local Torah-teachers (Matt. 23).  The Sanhedrin did not settle halachic differences.  Differences of opinion between halachic schools (e.g. Hillel, Shammai) were permitted and encouraged.  The Sanhedrin respected this precedent and everyone got along fine. Halachic was flexible and even when Yeshua was accused of violating this "law", He was able to utilize the flexible halachic system to argue for an alternative point of view.  But that all changed forever when Yehuda haNasi wrote the Mishnah.  

I described the purpose of the Mishnah yesterday on James' blog:

"If you are walking along and find a clock, you’re able to learn something about the clockmaker. A clock tracks the progression of time. Therefore, we know that the clockmaker believed that it was possible to track time and that the clock would do it. In the same way, when we peruse the Mishnah, we see that purports to systematize and archive the oral tradition in written form. This tells us that its creator (Yehudah) believed it was possible and permissible to systematize and archive the oral tradition and that the Mishnah (textual transmission) was the way to do it."

There are always consequences when someone disregards precedent.    Not only is the credibility of the legal institution destroyed but a brand new precedent permits the law to evolve in a completely different way.  In this case, that way was towards a rigid, monologic Code system.  Judaism now has Codes which have rendered halacha monolithic.  

Another consequence of the Codes is that there is no authority left for the local community.  The old system in which the local Torah-teachers had the authority is abolished when everyone can simply look at a Code that states the law for "every" eventuality.

Another consequence is that any halachic developments in the New Testament must be overruled on the basis of a higher authority:  the Codes. 

But is it possible that any of the decisions rendered by a discredited institution can be rehabilitated?  Of course.  But we cannot appeal to the authority of the discredited institution.  We must appeal to a higher authority--that of Scripture.

I propose that we utilize the oral tradition of the Talmud but that we filter it through the Scriptures (i.e. Tanak and New Testament).







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