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MARK WASHOFSKY

explanation of Ben Petura’s position), were it not for the midrash on Lev. 25:36, which constitutes a special exception that allows one to say“my life takes precedence over yours.”

19. Yad, Matanot Aniyim 7:13 and 8:15-18; S4 Yore De’ah 251:3, 8-9. 20. See note 18, above.

21. The halakhic outcome changes if the“water” belongs to neither“traveler” but to a third par­ty. In that instance, says R. Eliezer Waldenberg(Resp. Tzitz Eliezer 9:28), the life-sustaining resource may be given to the person who is in greater medical need of it; if both are in equal need, the law then follows the position of Ben Petura, who says the water must be equally shared. By “equal need,” I would presume that Rabbi Waldenberg means that both patients can benefit equally from the medicine, that both of them enjoy the same chances of recovery.

2. See the ruling of R. Yosef Teomim(Peri Megadim, Mishbetzot Hazahav 328, near the begin­ning) that when we are confronted by two patients, one of whom is in mortal danger(vesh bo sakanah) and the other is not, and we have but enough medicine for one but not both patients, we treat first the patient whose condition is critical. In other words, it is our duty to save life, and medi­cal efficacy is the criterion by which we determine how best to fulfill that duty.

23. This theory is most closely associated with Ronald Dworkin , who develops it in the following volumes: Law’s Empire(Cambridge : Belknap Press, 1986); 4 Matter of Principle(Cambridge : Harvard University Press , 1985); and Taking Rights Seriously(Cambridge : Harvard University Press 1977). Yet the effort to limit the theoretical scope of judicial discretion has a long pedigree in jurisprudence. We see it as well in the“Legal Process” school of American legal thought that arose as a critical response to the“realists”(cited below). See Neil Duxbury,“Faith in Reason: The Process Tradition in American Jurisprudence,” Cardozo Law Review 15(1993), 606-705. The most famous example of“process” thought may well be the article by Herbert Wechsler ,“Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73(1959), 1-35, which argues that judges ought to justify their decisions according to principles that they could maintain consistently through all areas of the law.

A, Most notably H.L.A. Hart, The Concept of Law(Oxford: Clarendon Press, 1961). Legal Positivism holds that“law,” as such, must be validated by systemic legal sources such as Hart’s“rule of recognition.” The judicial decision, inasmuch as it is not dictated by existing rules, is therefore an act of legislation and a matter of discretion. See also Aharon Barak , Judicial Discretion(New Haven : Yale University Press , 1988).

25. The“legal realists” tend to trace their intellectual origin to the legal skepticism of Justice Oliver Wendell Holmes, Jr. , famously expressed in“The Path of the Law,” Harvard Law Review 10(1897), 457-458, and The Common Law(Boston : Little, Brown, 1881). Their central point was the rejection of rules and logic as the controlling, determining factor in legal decision. For a history of the movement see Gary Aichele, Legal Realism and Twentieth-Century American Jurisprudence (New York : Garland, 1990).