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I often see halacha paskened differently between rabbis. Sometimes, a rabbi will cite a rabbinic opinion made by an aharon and other times a rabbi will cite the Talmud, Shulchan Aruch, or Mishneh Torah, or some other legal compilation, to come to a decision.

So my question is this: Methodologically speaking, is halacha decided through a civil law system, where law is decided through codified statues, or is it a common law system, where law is derived from halachic opinions decided from poskim? Is it both? Does halacha favor one process more than the other?

  • I'm no lawyer but I don't think "civil" is the right term (at least as opposed to criminal). Maybe statutory? Halacha is both application of statute and creation of new common law from cases. – rosends May 21 '15 at 0:09
  • @Danno en.wikipedia.org/wiki/Civil_law_%28legal_system%29 For example, Louisiana, the state where I attend college, operates on the Napoleonic code, which is a civil law system. – rosenjcb May 21 '15 at 0:13
  • I see. I was using this distinction diffen.com/difference/Civil_Law_vs_Criminal_Law – rosends May 21 '15 at 0:40
  • @Danno I was thinking that. – rosenjcb May 21 '15 at 0:47
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    There is an intermediate form, on which many nations operate, which has a codified legal structure (e.g. Shulchan Aruch, Tur, M"T) as well as a body of case law (e.g. Igrot Moshe, Shu"t Yechave Da'at, et c.). I suspect from what I know of halacha that this intermediate form is the retro-actively applicable model – Noach MiFrankfurt May 21 '15 at 1:45
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Marylin Raisch, who's credentials include an expertise in Civil and Common Law, opines about Jewish Law:

There is no appeal or stare decisis; one can ask the court to correct an erroneous judgment or re-open a criminal case. The tradition is much closer to that of the European civil law in that regard.

According to the Wikipedia entry you linked in the comments, stare decisis - the legal doctrine that previous rulings are binding on future judges - is a fundamental pillar of the rationale behind common law, in that it is regarded as unfair that two people with the same relevant facts get a different result.

That being said, the idea that Halacha has no stare decisis is overstating it, as at a certain point previous rulings do become authoritative for precedential reasons. For example, the Talmud Bavli is the final word in the Halachic disputes that precede it, and so forth. However, that mechanism has to do with its acceptance and the inability to reverse that acceptance rather than a philosophical commitment that two people receive the same result.

And although there is no appeals court in the method of English Common Law, there were layers of authoritative courts in the times of the Beis HaMikdash, as seen by the description of a Zaken Mamrei in Sanhedrin, where he would go through layers of appeals before getting the final ruling from the Sanhedrin that sat in the Temple.

So in the end, it seems that Halacha is its own thing, with characteristics which have similarities to Civil Law, and others which have similarities to Common Law. One aspect of Common Law that Halacha definitely doesn't have is dicta - the idea that an opinion expressed in a decision that doesn't have a bearing on the direct case being decided is non-binding.

  • Re dicta: I think it's reasonable in some cases to add more weight to a position that someone actually implemented Lemaaseh and didn't just speak theoretically about. – Double AA May 21 '15 at 4:39
  • I think there is no appeal system in Jewish Law. In Israel they have somehow got round this. There were no 'layers' of authoritative courts. Each dayan was equally qualified. @DoubleAA – cham May 22 '15 at 12:09
  • Jewish law does not fundamentally have an appeal system like the secular courts. However, the Beth Din of America allows “requests for modification” as part of its rules, unlike most other batei din. Decisions are only overturned if the appellate judge reviewing the case finds a clear mistake in the original decision, but not merely if the judge would have decided differently himself. bethdin.org/docs/PDF1-Layman's_Guide.pdf – cham May 22 '15 at 12:13

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