Internet, Privacy, and Progressive Halakhah ———————————————————————————— eee A eee ete ee meee es eee
and“Taking Precedent Seriously: On Halakhah As A Rhetorical Practice,” in Walter Jacob and Moshe Zemer , eds., Re-examining Progressive Halakhah(New YorkaniBerghahn: Books, 2002), pp. 1-70, and al http://huc.edu/faculty/faculty/washofsky/takingprecedentseriously.pdf.
109 Ronald Dworkin , Taking Rights Seriously(Cambridge , MA : Harvard University Press , 1977), p. 26.
110 Mark Washofsky,“Against Method”(note 13, above), p. 38. Haim Cohen (note 108, above), p. 69, describes the application of general principles in language that evokes the famous High Holiday poem k’'chomer b'yad hayotzer(“Like clay in the hands of the potter...”).
111“Equity” is the name given to those procedures that at one time existed alongside the formal law and that served as a corrective to it in cases where the application of formal legal rules would lead to unjust results. Thus Aristotle :“This is the essential nature of the equitable: it is a rectification of law where law is defective because of its generality. It is because there are some cases for which it is impossible to lay down a law, so that a special ordinance becomes necessary”; Nicomachean Ethics 317(H. Rackham, transl., 1947) On the relationship of equity and formal law see, in general, Ralph A. Newman, Equity and Law: A Comparative Study(New York : Oceana Publications, 1961) and Roscoe Pound , The Decadence of Equity(New York : Columbia University Press , 1905). On“equity” and“law” in the halakhic tradition see Aaron Kirschenbaum, Equity in Jewish Law(Hoboken , NJ and New York : Ktav/Yeshiva, 1991).
[12“The discretion of a Judge is the law of tyrants: it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, Passion. In the best it is oftentimes caprice; in the worst it is every vice, folly, and Passion to which human nature is liable”; Lord Camden, L.C.J., Case of Hindson and Kersey, 8 Howell State Trials 57(1680). See also Blackstone, Commentaries on the Laws of England, 1:62(1765-1769):“Law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law, Which would make every judge a legislator, and introduce most infinite confusion, as there would be almost as many different rules of action laid down in our courts as there are differences of capacity and sentiment in the human mind.”;
113 See Pound(note 107, above), p. 58. See also Edgar Bodenheimer , Jurisprudence(Cambridge , MA : Harvard , 1974), p. 249: Equity, which originated as an ad hoc departure from the rigid rules of the common law when these would lead to an unjust result in a particular case,“became transformed into a‘rule of equity’ Jurisprudence.” Similarly, the Roman praetor’s equitable deviations from the fixed ius civile“became incorporated into a separate body of law known as ius