Why do lawyers live in the past?

Because law is based on precedent. This applies to halacha as well as western legal systems. You could have a system based on what you think is “good” based on how you feel today, but how would anyone know what is legal? Indeed, China abolished its legal system in the mid-20th century, roughly for the reasons you suggested, and finally had to reestablish it. With a set of rules based on established practice, no one knows what to expect. Therefore a lawyer needs to learn those rules, and the rules that resulted in those rules coming into existence.

Suppose you had to decide if was permissable to cross the street. Due to laws based on past practices and customs, we know which side of the street the cars are coming from, what a red light means, who has to yield. Suppose everytime you got in a car, you had to decide which side of the road to drive on, or whether a “red” light meant stop or go. Suppose you had to determine if the right of way went to the person with highest social rank (as was the case until recently).

Suppose you had to determine the meaning of the prohibition of “milk and meat” anew everyday? No checking precedents or past decisions. Some days a “cheeseburger” made with chicken is kosher, some days it isn’t. Some days the prohibition can effectively be ignored by getting meat from a cow certified as a beef cow, precluding the chance the milk came from its mother. But no, we look back at years of case law.

In truth, medicals also consult the past. Did you really think they have to invent a new antibiotic everytime you get sick? Do you think they dream up a way to set a bone or deliver a baby without finding out what millenia of experience have determined.

To: PoPa Bar Abba

And what do you think the guys who wrote the treatises read?

You do realize that the Shulhan Arukh is mere a “restatement” based on the case law, designed for those lacking the competence to read the originals. In a system based on “common law” (meaning cases, as opposed to decrees and codes – which include both Jewish and common law), all law goes back to previous decisions. Note that in “code” systems such as Roman law, you read the code and decide for yourself what it means today based on original intent and your understanding – past practice counts for little.

Explanation:

In the common law, when a case is decided, it does not only provide guidance on what the law was, it establishes going forward what the law will be. Meaning, it has a force of its own.

So that, when a state court decides what rights a lessee has, that becomes the law. Other courts will not use it as only one indicator of what the law is, but will follow the previous case- because it was already decided, and has a force of law. (This is all post-Erie, for those of you who care. Pre-Erie we may have to say a different pshat.)

For example, if Justice Marshall had written a constitutional treatise, and had claimed that the Supreme Court had the right of Judicial Review, but Marbury v. Madison had never happened, nobody would have listened to him. A later court deciding on the issue for the first time would go whichever way it wanted. But since it was a court case, it became the law.

There is absolutely no comparable notion in halacha, and that is the integral difference between how we learn halacha, and how those backwards people study law. There is no greater weight to a teshuvas haRashba, than the chidushei haRashba.

That is why we mainly study treatises, and don’t have huge compilations of ?”?? from every din torah ever decided, and every shailah ever asked. Treatises are much easier to read from. The shulchan aruch is not a restatement of prior shailos and dinei torah, it is a restatement of prior treatises. Specifically, a restatement based heavily on the tur, which is based heavily on the rosh, etc.

True. We don’t follow precedent. But to an extent, we use precedent to figure out the halacha, which is based in the Gemara and our brains.

However, this isn’t entirely true. When there was semicha, a Beis Din had the power to actually be koveia halacha. The Gemara (I forget where at the moment) says that the reason the words of a minority opinion were recorded even though the halacha was hukva according to the majority, is so that a future Beis Din should have a precedent in case they wish to overturn the previous Beis Din’s halacha.

There is no greater weight to a teshuvas haRashba, than the chidushei haRashba.

That would only be true if it was a theoretical teshuvah. If it was for a real case, the idea of “ma’aseh rav” applies.

Popa – I hear.