Mark Washofsky honorarium.”

114. Dworkin first put forth his theory sy stematically received in Taking Rights Seriously(note 111, above); for its most recent elaboration, see Law's Empire (Cambridge , MA : Belknap Press, 1986). The quotations in the text are taken from his 4 Matter of Principle(Cambridge , MA : H: arvard University Press, 1985), pp 1587. There, he offers his famous comparison of flegal interpretation to develops his understanding of the nature of legal interpretation to the writing of a chain novel Like the latest author in such a chain, the judge in the instant case must“interpret what has gone before because he has a responsibility to advance the enterprise in

hand rather than strike out in some new direction of his own”(p. 159).

115. Dworkin calls legal positivism, rooted in the w ritings of Jeremy Bentham and John Austin ,“the ruling theory of law”; Taking Rights Soxomnlyings 114, above), p. ix. The leading modern exposition of the theory is H.L.. Hart , The Concept of Law. Second Edition(Oxford: Clarendon Press , 1994); the f irst edition of that work, to which Dworkin responds, was published in 1961. Fora good survey of the theory and its criticisms, see the essays in Tom D. Campbell, egal Positivism(Aldershot :

Ashgate, 1999).

116. On the judge's role as an“interstitial” legislator, see the dissent of Justice Oliver Wendell Holmes, Jr. , in S. Pac. Co. v. Jensen, 244 U.S. 205, 201(1917):

| hut th

so only interstitially.” See also Benjamin Cardozo , The Nature of the Judicial Process(New Haven : Yale , 1921), p. 113: the courts do legislate, but only within

“the open spaces of the law.”

117. Itzhak Englard,“Research in Jewish Law: Its Nature and Function,” 10 Bernard S. Jackson , ed., Modern Researc hin Jewish Law(Leiden: Brill, 1980),), PP: 21-65. The original Hebrew version of E nglard’s article appeared in Mishpatim

(1975-1976), pp. 34-65. The term*‘uncompromising” is Jackson 's description; see

his Preface, p. vii.

118. Englard(note 118, above), p. 52.

119. Ibid., pp. 53/1.

120. Englard(note 118, above), p. 52. Assaf Likhovski makes a similar point in his “The Invention of‘Hebrew Law' in Mandatory Palestine,” American Journal 0]

Comparative Law 46(1998), Pp. 339-374, available al

http://sstn.com/abstract=1117796(accessed May 17, 2011).