MA'ASEH (Heb. מַעֲשֶׂה), a factual circumstance from which a halakhic rule or principle is derived; as such it constitutes one of the Jewish law sources. A legal principle originating from ma'aseh is formally distinguished from those originating from one of the other legal sources of Jewish law – such as Midrash (see *Interpretation), *takkanah, *minhag, and *sevara (see *Mishpat Ivri) – by the fact that in the latter cases the legal principle appears in selfstanding form, whereas in ma'aseh it is integrated with and bound to a particular set of concrete facts, from which it must be separated and abstracted if it is to be enunciated. As will be seen below, this formal distinction is also of substantive importance. The term ma'aseh is customarily used in tannaitic sources (Shab. 24:5; BB 10:8; Eduy. 2:3); in the Babylonian Talmud the equivalent term is uvda and in the Jerusalem Talmud sometimes dilma (see, e.g., TJ, Ber. 1:1, 2c; Pe'ah 3:9, 17d; et al.).
Substance of Ma'aseh
Ma'aseh constitutes a legal source in two ways: one is represented by the judgment given in a concrete "case" before the court or competent adjudicator (halakhic scholar) – as in other legal systems; the other, by the specific act or conduct of a competent halakhic scholar, not necessarily in his capacity as judge or posek. In either case ma'aseh serves as a source for the determination of a halakhic principle as regards both civil law (dinei mamonot) and ritual law (dinei issur ve-hetter).
Citation of a halakhic principle by way of ma'aseh does not in every case warrant the conclusion that such ma'aseh is necessarily the source from which the principle was evolved – since the principle may possibly have been in existence before and the halakhic scholar only having had applied it in such case. In this event, the ma'aseh is not constitutive but only declarative of the existence of the particular halakhic rule (see below). However, ma'aseh – even when only declarative – lends the particular halakhic principle a special validity, as ma'aseh rav ("an act is weightier," Shab. 21a) or ma'aseh adif ("an act is preferred," BB 83a), since a rule tested in the crucible of practical life is regarded by the scholars as having a different force from one for which there is no evidence of its practical application. Hence, once a particular halakhic principle has been followed in practice – even though its application is subject to dispute – it may no longer be varied, since "what has been done is no longer open to discussion" (RH 29b, concerning blowing of the shofar on Rosh Ha-Shanah when it falls on a Sabbath).
The particular force of a halakhic principle originating from ma'aseh is tied to the substantive principle underlying the entire halakhic system, namely that the Torah was entrusted to the authority (al da'atan) of the halakhic scholars (see *Authority, Rabbinical; *Mishpat Ivri), it being presumed that the judicial decision and conduct in daily life of the competent halakhic scholar are the outcome of his penetration and correct understanding of the halakhah. The scholars were fully aware of the power attached to an act of deciding the law and for this reason exercised great care before doing so (Git. 19a, 37a, and Rashi thereto). In particular, the halakhic scholar is held to reveal, by his conduct, the active image of the halakhah and therefore "the service of the Torah is greater than the study of it" (Ber. 7b); one of the ways by virtue of which the Torah is acquired is "attendance on the sages" (Avot 6:6), since practical application of the Torah leads to appreciation of the living and active halakhah, its correctness and creative force. For this reason it was required of the halakhic scholars to act with much forethought in their day-to-day conduct of halakhic matters (Tosef., Dem. 5:24 concerning the discussion between R. Gamaliel and R. Akiva); R. Ishmael explained his particularly careful approach toward a certain rule concerning the Keri'at Shema in these words: "lest the pupils see and lay down halakhah for generations" (Ber. 11a; Tosef., Ber. 1:6).
In Jewish law, ma'aseh constitutes a legal source, not because it has the force of binding precedent which (as will be seen below, the Jewish legal system generally does not recognize as a principle), but because the scholars recognized it as a lawmaking source from which to derive halakhic principles becoming part of the general halakhic system. The fact that it remained permissible to dispute a halakhic principle derived from ma'aseh did not serve to deprive it of its substantive character as one of the legal sources of Jewish law – just as, for instance, Midrash remained such notwithstanding the fact that different and contradictory halakhic principles were often derived from it by the use of different methods of Bible exegesis.
An Act of Deciding the Law
The laws derived from ma'aseh form a very substantial part of the general system of Jewish law – the latter representing, in its nature and path of development, a classic example of a legal system founded on a series of legal acts or "cases," adding up to a comprehensive system of case law (see also *Codification of Law). This character was already stamped on the halakhah in the Torah, in which there are many laws enjoined in relation to a particular act or event, as, e.g., in the matter of the blasphemy of the Name (Lev. 24:10–23), the gathering of sticks on the Sabbath (Num. 15:32–36), the law of inheritance concerning the daughters of Zelophehad (Num. 27:1–11), and the law of the second Passover (Num. 9:1–8).
Talmudic sources are replete with halakhot, in all fields of the law, quoted in the form of an act of legal decision or in the form of an independent ruling which is, however, either preceded or followed by the facts of the relevant case. The case described does not always form the original source of the halakhic rule, but frequently, and in various ways, it is possible
Sometimes derivation of a halakhic principle from the ma'aseh is not expressly acknowledged, but from the content it may be deduced that the principle was derived from the adjacent case description. Thus, according to ancient halakhah, suretyship for a loan undertaking was valid only if made prior to establishment of the principal debt, i.e., the creditor as it were agreeing to grant the loan on the strength of such suretyship. However, R. Ishmael, in a case that came before him, extended the scope of suretyship by holding it valid in certain circumstances, even if made after grant of the loan, i.e., if the person standing *surety signed after the signature by the witnesses of the deed of loan. Ben Nanas differed, maintaining that the suretyship had to precede grant of the loan. The new principle enunciated by R. Ishmael is earlier stated in the Mishnah, in the form of a selfstanding legal rule (BB 10:8; for further examples, see Ned. 8:5; BM 30a).
Conduct of a Halakhic Scholar
Talmudic sources also contain a great number of halakhot, in all fields of the law, stated in the form of a description of the conduct of a halakhic scholar and in like manner to the statement of acts of legal decision. Thus in one instance the Mishnah (Shab. 24:5) first quotes several halakhot concerning permissible labors on the Sabbath in the form of independent rules: "they may stop up a light-hole or measure a piece of stuff or a mikveh"; in continuation, it is stated that in the time of R. Zadok's father and in the time of Abba Saul b. Botnit there occurred a case in which such labors were done on the Sabbath and in conclusion it is stated that from such occurrence the permissibility of these labors on the Sabbath was learned. An analysis of the halakhot thus stated offers proof that even when the selfstanding halakhic ruling is stated in the Mishnah before the ma'aseh, it does not exclude the possibility that chronologically speaking the ma'aseh preceded such a ruling and that the former is the source of the latter – except that the compiler of the Mishnah saw fit to state first the ruling and then the ma'aseh. At times disputes concerning a tradition entertained by the halakhic scholars and relating to the conduct of a particular halakhic scholar led in turn to disputing opinions as regards the halakhic principle to be derived from the aforesaid conduct (see, e.g., Suk. 2:7 concerning the dispute between Bet Shammai and Bet Hillel, arising in connection with the ma'aseh of R. Johanan b. ha-Ḥorani).
Just as a halakhic principle acquires special force and significance from the fact that it has been applied in a practical case, so the latter fact entails the risk of possible error in the manner of deduction of the principle from the practical case. Hence, in deduction of the principle it is required that two important distinctions be made: first, the factual aspect of the case must be precisely distinguished from the legal aspect; secondly – and more difficult – the part that is not material and has no bearing on the halakhic conclusion must be distinguished from the material part which leads to the halakhic conclusion. This distinguishing process is sometimes directed toward a specific purpose, for instance toward restriction of the halakhic principle derived from a case when the need for it arises in a concrete matter for decision. In English law – which has the system of case law – the process of distinguishing is also greatly developed, and here too one of the main functions of the process is to distinguish between the ratio decidendi and mere obiter dictum. The distinguishing process has been of primary importance to the development of both legal systems.
The phrase commonly employed in the Mishnah for the act of distinguishing is einah hi ha-middah, "that is not the inference" (Pes. 1:6–7), and in the Talmud, "This was not stated explicitly but by implication" (BM 36a, et al.; see also BB 130b and Rashbam thereto, S.V. halakhah adifah), or "Tell me what actually transpired!" (BM 70a, et al.). The process of distinguishing is well illustrated in Bava Meẓia 36a. Rav is quoted as holding that a bailee who entrusted a bailment to another bailee is not liable – i.e., for any more than he would have been liable had he kept the bailment himself – since he entrusted it to a person having understanding (ben da'at); however, R. Johanan is recorded as holding the first bailee liable for all damage occasioned to the bailment while it is deposited with the second bailee, since the owner might say to the former that he entrusted the bailment to his personal care and did not wish it entrusted to another (see *Shomerim). In the continuation of the discussion it is stated, "R. Ḥisda said: This was not stated by Rav explicitly but by implication," i.e., that Rav's rule was deduced by implication from a legal decision he gave in a practical case, but that the rule was deduced in error because no proper distinction had been made. The facts of the case decided by Rav were as follows: gardeners used to deposit their spades every day, on completion of their work, with an old woman; one day they deposited their spades with one of their members and the latter, wishing to join in some festivity, deposited them with the old woman, from whom they were stolen; when the other gardeners sought compensation from the bailee gardener for the loss of their spades, Rav held the latter exempt from liability. From his decision it had been erroneously concluded that the latter held in favor
The Talmud (BB 130b) provides basic guidance on the manner of deriving a legal conclusion from a case without apprehension of error: "The halakhah may not be derived either from a theoretical conclusion or from a practical decision (without knowing the facts of the case) unless one has been told that the rule is to be taken as a rule for practical decisions; once a person has asked and been informed that a halakhah was to be taken as a guide for practical decisions (and therefore knows the facts), he may continue to give practical decisions accordingly" (see Rashbam, ad loc.). In the 13th century the approach to ma'aseh and the distinguishing process was expressed in these terms: "Not in vain were the many practical cases embracing various rules written into the Talmud, not so that the law concerning the relevant matter be applied in accordance with what is stated there, but so that the scholar, by having frequent reference to them, shall acquire the art of weighing his opinion and a sound approach in giving practical decisions" (Resp. Abraham b. Moses b. Maimon no. 97).
In Post-Talmudic Times
Ma'aseh, both as an act of legal decision and as the conduct of a halakhic scholar, continued to serve as an important legal source in post-talmudic times. The halakhic scholars of this period derived many legal conclusions from practical cases in talmudic literature. Thus Maimonides decided that a person engaged in study of the Torah shall stop studying and recite the Keri'at Shema whenever it is the time to do so; however, a person engaged in public matters shall not desist from such activity, even if meanwhile the time for Keri'at Shema passes (Yad, Keri'at Shema 2:5). Maimonides derived this halakhah from an account in the Tosefta stating that R. Akiva and R. Eleazar b. Azariah omitted to recite Keri'at Shema because they were preoccupied with public matters (Tosef., Ber. 1:4; see comment of Elijah Gaon to Sh. Ar., OH 70:4).
In like manner, ma'asim of the post-talmudic scholars, in the form of both practical decisions (see below) and conduct, served as a legal source for the deduction of halakhot by subsequent scholars. Ma'asim of the latter kind are frequently quoted in post-talmudic halakhic literature in the form of testimony by pupils to the conduct of their teachers in different matters of the halakhah. Special books of halakhah were even compiled in which a considerable part of the material was based on the author's observation of the conduct of his eminent teacher, for he had not only acquired the latter's teachings but also served him in daily life. An example of such a work is the Sefer Tashbeẓ of Simeon b. Ẓemah *Duran, a pupil of *Meir b. Baruch of Rothenburg, which deals mainly with the laws in the Shulḥan Arukh's Oraḥ Ḥayyim and Yoreh De'ah, and to some extent also with matters of family and civil law, largely quoted by the author as the manner in which he had seen his teacher conduct himself (see, e.g., sections 1, 7, 18–23, et al.).
The Responsa Literature
With the development in post-talmudic times of one of the main branches of the literary sources of Jewish law, namely the responsa literature, ma'aseh came to fulfill an important role as a lawmaking source. The responsa literature represents the case law of the Jewish legal system. A concrete problem that arose in daily life – whether in matters between individuals or in matters of man's relationship to the Almighty, in matters of civil or ritual law – was brought before the local dayyan or halakhic scholar, and they, whenever they experienced any doubt or difficulty in reaching a solution to the problem at hand, turned to the distinguished halakhic scholars of their generation. Certain matters, particularly disputes between the individual and the public or its representative bodies, came directly before the most prominent halakhic scholars. They deliberated all the factual and legal aspects of the case and submitted their findings and conclusion in a written responsum to the questioner. The she'elah u-teshuvah – question and response – accordingly represents a classic example of an act of legal decision, and answers to all the requirements set by the talmudic sages for recognition of ma'aseh as a legal source, since this procedure is a true application of "having asked and been informed that a halakhah is to be taken as a guide for practical decisions …" (above; BB 130b). This character of the responsa literature has served to lend the legal principle emerging from it a particular standing and force exceeding that of a principle derived from the commentaries and novellae and even, in the opinion of the majority of halakhic scholars, exceeding that of a principle derived from the books of halakhot and pesakim (see *Codification of Law) in cases of inconsistency between the two. Hence, "more is to be learned from the conclusions stated in the responsa than from those stated by the posekim [in the codes], since the latter did not write their conclusions in the course of deciding the law in a concrete instance" (Resp. Maharil no. 72). Similarly, "when halakhah is laid down in practice there is greater penetration to the heart of the matter than in the course of theoretical study; there is also greater divine guidance (sayata di-shemaya) in a practical case … for a conclusion that comes in answer to a practical case is preferable and more directed to the real truth than what is forthcoming from mere theoretical study" (Meshiv Davar, pt. 1, no. 24).
Jewish Law and Binding Precedent
Recognition in Jewish law of ma'aseh as a legal source from which may be derived the principles that emerge from it is
PRECEDENT IN OTHER LEGAL SYSTEMS
The legal "case" occupies a very modest place in the source hierarchy of the Roman legal system; certainly the latter does not recognize at all the principle of binding precedent. Justinian expressly laid down that judgments be given according to laws and not precedents: "non exemplis, sed legibus iudicandum est" (C. 7. 45. 13; see J. Salmond, Jurisprudence (196612), 141f.; C.K. Allen, Law in the Making (19647), 342f.). Most continental legal systems, following that of Rome, exemplify the codificatory system of law, and in these the decisions of the courts represent no more than material of a theoretical and persuasive nature, without binding force (Salmond, ibid.). The position is different in English law: "The importance of judicial precedents has always been a distinguishing characteristic of English law. The great body of the common or unwritten law is almost entirely the product of decided cases, accumulated in an immense series of reports extending backward with scarcely a break to the reign of Edward I at the close of the 13th century… A judicial precedent speaks in England with authority; it is not merely evidence of the law but a source of it" (Salmond, p. 141). As regards the extent to which the courts are bound by precedent, Salmond goes on to say: "It is necessary to point out that the phrase 'the doctrine of precedent' has two meanings. In the first, which may be called the loose meaning, the phrase means merely that precedents are reported, may be cited, and will probably be followed by the courts. This was the doctrine that prevailed in England until the 19th century, and it is still the only sense in which a doctrine of precedent prevails on the continent. In the second, the strict meaning, the phrase means that precedents not only have great authority but must (in certain circumstances) be followed. This was the rule developed during the 19th century and completed in some respects during the 20th" (p. 142). The merits of this development toward the strict meaning of precedent have not remained unquestioned, and in recent times there has been increasing discussion of the correctness and efficacy of this approach (ibid., p. 143 and see note, p. ix, concerning the extrajudicial statement made in the House of Lords in 1966, relaxing the rule of being bound to follow its own previous decisions "when it appears right to do so").
COMPARISON OF PRECEDENT IN ENGLISH AND IN JEWISH LAW
At their respective starting points the two legal systems have much in common in their approach to precedent but they diverge in their manner of development. In both "case" constitutes a source of law; both are, to a large extent, built up around case law, and have developed in consequence of concrete legal decisions in daily life; the basic material at the heart of most Jewish law codifications is likewise the product of legal principles derived from day-to-day legal decisions (see *Codification of Law), and from this point of view the main difference between the two legal systems is that the Jewish law equivalent of the "immense series of reports," namely the responsa literature, dates from the geonic period onward, i.e., from the middle of the eighth century and not, as in England, from the end of the 13th century (see *Mishpat Ivri). On the other hand, Jewish law has not accepted the doctrine of precedent in the strict meaning of the term – as has English law, commencing from the 19th century – and the power of ma'aseh in Jewish law has been confined to that of precedent in the loose meaning of the term, as described by Salmond, "precedents are reported, may be cited, and will probably be followed by the courts." For two reasons, each of which will be dealt with below, Jewish law has been unable to adopt the doctrine of a binding precedent which imposes its inherent halakhic conclusion on the dayyan when deciding the matter before him: first, because of this legal system's conception of the substantive nature of a judgment given between the two parties to a suit; secondly, because of the method and approach of Jewish law toward deciding of the halakhah in general.
SUBSTANTIVE NATURE OF A JUDGMENT IN JEWISH LAW AND THE PROBLEM OF PRECEDENT
In Jewish law, the finality of a judgment is subject to many reservations, even in relation to the instant parties themselves. According to the original Jewish law, no judgment is absolute and final in the sense of res judicata in Roman law, except insofar as it accords with the true objective state of affairs as regards both the facts and the law. Hence, it always remained possible for a judgment given by the court on the available facts to be set aside, and for the matter to be heard afresh when either of the parties was able to produce new evidence. Since this possibility posed a serious obstacle to the due administration of justice and to orderly economic life, which demand an end to litigation, the practice was introduced of having the parties acknowledge – in court and prior to judgment – that they had no further evidence whatever to adduce, thereby annulling in advance the efficacy of any further evidence they might later wish to bring (see Sanh. 31a; Yad, Sanhedrin 7:6–8; Sh. Ar., ḤM 20). Similarly, the original law held that any judgment which transpires to be wrong in law – i.e., in case of error as regards decided and clear halakhah – is inherently invalid, although not so in case of an erroneous exercise of discretion. Here again the way was found to ensure the stability and finality of a judgment (Sanh. 33a; Yad, Sanhedrin 6:1; Sh. Ar., ḤM 25:1–3 and Rema thereto; see also Gulak, Yesodei, 4 (1922), 175–83, 201–3; and see *Practice and Procedure (Civil)).
A judgment in Jewish law accordingly has a dual nature: theoretically it is not final until the truth has been fully explored; in practice reservations were laid down – which would be accepted by the parties and normally would apply automatically – aimed at ensuring an end to litigation between the parties to a dispute and at acceptance of the judgment as decisive and as determining the respective rights of the parties.
The stated theoretical nature of a judgment, which applies even as regards determination of the law for the instant parties themselves, has necessarily entailed the conclusion that a judgment shall not have the force of a binding precedent in relation to a similar problem arising between different parties; hence "if another case comes before him even if it be a like case in all respects – he may deal with it as he sees fit, since the dayyan need only act according to what his own eyes see" (Nov. Ran to BB 130b; Nov. Ritba, BB ibid.).
METHODS AND APPROACH OF JEWISH LAW CONCERNING DECIDING OF THE HALAKHAH AND THE PROBLEM OF PRECEDENT
The doctrine of binding precedent also conflicts with the very method and approach of Jewish law concerning deciding the halakhah (see *Mishpat Ivri; *Authority, Rabbinical; *Codification of Law). The fact of halakhic difference of opinion, as the latter developed in the course of time, is regarded as a phenomenon that is not only legitimate but also desirable and indicative of the vitality of the halakhah and of the possibility of different approaches, based on common general principles, in the search for solutions to new problems that arise. The decisive yardstick in a case of halakhic dispute, is the correctness of each opinion "in accordance only with the Talmud of R. Ashi" (i.e., the Babylonian Talmud: Piskei ha-Rosh, Sanh. 4:6) and based "with definite proof on the Talmud, as well as the Jerusalem Talmud and Tosefta, when there is no definite decision in the Talmud" (Yam shel Shelomo, introd. to BK). For this reason no codification of Jewish law was accepted which laid before the dayyan deciding the law one single, arbitrary, and final opinion on any given matter. For the same reason Jewish law accepted the doctrine of hilkheta ke-Vatra'ei ("the law is according to the later scholars"), which was designed to ensure freedom of decision for later scholars – albeit with due reference to and regard for the decisions of earlier scholars. The basic rule applicable is that the judgment of a person who has erred because he was unaware of the decisions of earlier scholars shall be of no force as soon as that person gains such knowledge and realizes his error; however, "if he does not find their statements correct and sustains his own view with evidence that is acceptable to his contemporaries – the authority of Jephthah in his generation was as that of Samuel in his, and there is only the judge that 'shall be in those days' – he may contradict their statements, since all matters which are not clarified in the Talmud of R. Ashi and Ravina may be questioned and restated by any person, and even the statements of the geonim may be differed from… just as the later amoraim differed from the earlier ones; on the contrary, we regard the statements of the later scholars to be more authoritative since the latter knew not only the legal thinking of their contemporaries but also that of the earlier scholars, and in deciding between the different views they reached the heart of a matter" (Piskei ha-Rosh, loc. cit.).
This conception of a flexible and dynamic legal order naturally left no room for the doctrine that especially a conclusion springing from a practical decision should impose itself on the judicial process. The court which is apprised of a matter has the task of referring to, and taking into proper consideration, all the available relevant laws and certainly the rules emerging from earlier practical decisions, particularly when the halakhic principle emerging from the practical decision has been accepted without exception in a series of legal decisions ("daily practical acts of decision," Ket. 68b; BB 173b; etc.). However, if after such study the judge should, in reasonable manner and in reliance on the halakhic system itself, come to a different legal conclusion from that reached by earlier scholars, he will have not only the right but also the duty to decide as he sees fit; such decision will take precedence over an earlier decisionin a like matter, since the judge will also have known the legal thinking of earlier scholars and have decided as he did by going to the root of the matter.
Thus ma'aseh constitutes one of the significant lawmaking sources of the Jewish legal system, and every principle emerging from it becomes part of the accumulated body of laws comprising this system, in accordance with which the judge must decide. In standing and validity such principles are like any others deriving from the statements of posekim and halakhic scholars, and embraced by the common rule that the judge must consider every law on its substantive merits and decide, in the concrete case before him, according to his own knowledge and understanding deriving from due examination of all the relevant rules of Jewish law.
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