The Talmud suggests the distinction between two types of judicial errors...

The Talmud suggests the distinction between two types of judicial errors: (1) a tolerable error, termed a discretional error ( ta’ut beshikul hada’at ) and which should not be reversed if occurred, as opposed to (2) error regarding the explicit teaching of the sages ( ta’ut bedevar mishnah ), which should be reversed and is considered a cause for compensation if it caused damage.[^64] The casuistic definitions of these categories underline the scholastic perception of the law, according to which the law is identified with the teachings of the sages.

Hence, adjudication is perceived as no more than a declaration of the existing law; and accordingly, a deviation from the sages’ teachings is intolerable and thus must be reversed and is subject to compensational remedies.[^65] On the other hand, when a judge deviates from those teachings that are not explicitly fixed, but only determined by second-order principles, his error is tolerable and his decision remains. Although the account of Sherira b.

Hanina[^66] on judicial error is based on the Talmudic typology of tolerable and intolerable errors, the meaning that he ascribes to these categories reflects a remarkable departure from the Talmudic meanings and a deep absorption of the Islamic theory of qiyas into Jewish jurisprudence. In that respect, Sherira’s embracement of Islamic jurisprudential concepts completely modifies the traditional setting of the law and the meaning of legal reasoning.

Consequently, he provides innovative accounts of what the law is, what adjudication is, and what judicial error concerns. Following the conceptual vocabulary of the law, he departs from the scholastic perception of the law and instead favors the objectivist notion of law combined of roots and branches. Judicial reasoning, accordingly, is about drawing analogical linkages between roots and branches.

Moreover, Sherira not only adopts Islamic theory of legal reasoning in preference to the Talmudic one, but he also introduces a conceptual development by suggesting a typology of judicial errors:[^67] In one of these two things judges err: either this legal case has a root, [which has] a tradition or ruling, and this judge did not know it has some resemblance [to that root], and [instead he] analogizes it to a different root – by that he errs in dvar mishnah .