Or else...

Or else, [when] this case is definitely a branch that has nothing in similar with, and that judge analogizes it to a root, which is not similar and has nothing in common with – by that he errs in shikul hada’at . This typology of judicial errors clearly ignores the Talmudic notion of error as a deviation from, or contradiction of, the teachings of the sages. For Sherira, judicial error is the failure to draw analogical links between roots and branches.

The difference between tolerable and intolerable errors is therefore articulated according to the botanic metaphor and the relations of roots and branches. By viewing judicial error as a fallacy of analogical reasoning, Sherira expresses a position that seeks to impose constraints on its use and therefore to limit the range of legal solutions that may thereby be obtained.

Not only does he reject the view of analogical reasoning as that of the jurist’s personal preference, but he also proposes a new approach according to which executing judicial analogy requires substantive correlations between the root and its branches. Such an attitude towards legal reasoning supports the use…