historical stages, in order to establish the central principle which lies at the basis of all periods.”'*' The point is to enable legal reform according to the needs of contemporary society; once we know the central principle of a legal institution, we can alter (modernize) its specific details while supposedly remaining true to the institution’s historical essence or spirit. Englard dismisses this “positive-historical” approach as overtly ideological, reminiscent “of the Jewish Conservative Movements philosophy,” which “emphasizes the need for change in Jewish law, to be introduced through a true understanding of its historical development.” Elon and his mishpat ivri colleagues are entitled to what Englard describes as their“value-approach,” but they are not entitled to call it“scientific” or objective." Englard’s article drew sharp responses from Elon and others in the mishpat ivri movement,'” and little wonder: taken literally, his critique denies the very academic legitimacy of that movement and its scholarship. With respect to our discussion here, his position would mean that, on two grounds, one cannot properly speak of privacy as a“protected value” in the halakhah. First, it is illegitimate to posit the existence of substantive halakhic content that the rabbis and poskim, the “religious authorities” whose rulings determine the substance of Jewish law, have themselves never posited; and second, the attempt to derive that value’s existence is tainted by the practical (ideological) goal, which Nachum Rakover openly acknowledges, of integrating Jewish law into the legal system of the state of Israel !
Englard’s first objection is well-taken, however, only to the extent that we concur with his definition of law in general and of Jewish law in particular. That definition, which identifies the substantive content of Jewish law exclusively with the binding halakhot, the recorded decisions of the poskim, is a rather extreme version of legal positivism. There is, admittedly, something to be admired in this tough and rigorous approach to legal thought. Positivism demands that the jurist stick to the objective, observable facts of the law and avoid fanciful theorizing, and that, in general is a good thing. Yet there is more to the law than that which is dreamt of in