Internet, Privacy, and Progressive Halakhah 113

If principles are an important functioning element in halakhic thought, then Englard’s second objection to mishpat ivri scholarship loses much of its sting. A scholar’s claim that the halakhah includes general principles as well as discrete rules is well-founded in legal theory and is hardly evidence of a“value judgment” on her part. Moreover, while scholarly objectivity certainly ought to be the goal of every area of academic discourse, one ought not insist upon a super-human standard of that goal. As Menachem Elon asks rhetorically in his response to Englard,“in the humanities and the social sciences and the legal sciences is it possible to conceive pure objective scientific research without some degree of value-judgment deriving from the Weltanschauung of the scholar?”'® We must also take care to define“objectivity” in a way that is appropriate to the discipline in question. While some disciplines legitimately aspire to a sort of wertfirei scientific rationality, in much legal scholarship the prescriptive and normative concerns of the scholar often and appropriately take center stage.“The point of an article about a judicial decision is usually to remonstrate with the judge for the conclusion reached and for the rationale adopted. The point of an article about a statutory provision or a regulation is to expose the errors made in drafting it, and to indicate what should have been done instead.” If the natural and social sciences characteristically adopt a descriptive stance, the legal scholar displays a“penchant for prescription.”"*” That is to say, the rigid distinction between is and ought, which constitutes the central dogma of the creed of scholarly objectivity, may be impossible to maintain with precision in legal writing, where the normative goal is entirely legitimate. Consider, once again, the Warren and Brandeis essay on the right to privacy: described as“the most influential law review article in history,”"*! it is normative to its very core. Its authors certainly did not hide their ideology or their value commitments. Rather, they Proudly proclaimed them as a prolegomenon to their analysis of the law. Many of the other books and articles cited in the first part of this essay emerge from a similar commitment to the importance of privacy protection in the law or, in the case of Prosser and his