Taking Precedent Seriously 55

10.

11.

194ff; Edgar Bodenheimer , Jurisprudence(Cambridge : Harvard U. Press , 1974), 426-427; A. L. Goodhart ,“Precedent in English and Continental Law,” Law Quarterly Review 50(1934), 40ff; Benjamin Cardozo , The Nature of the Judi­cial Process(New Haven: Yale U. Press, 1921), 149; Chaim Perelman , Justice, Law, and Argument(Dordrecht , Holland: Reidel, 1980) 132-134.

. This argument is developed by Kronman (see note 1) at 1047ff., drawing pri­

marily upon the thought of Edmund Burke .

. Ileave aside here the problem faced by the legislature in a community pos­

sessing a constitution, written or otherwise, which limits the exercise of leg­islative power, as well as the question of which agency is to interpret and apply the limits set forth in that constitution. My point is rather that a legis­lature, as the law-creating institution in a society, is not constrained in its lawmaking powers by anything save its own will. This applies to constitu­tions, which serve as the fundamental legislation of their communities. A constitution, that is to say, is itself a legislative act by which the community enacts limits upon the powers of future lawmakers. Judges, by contrast, according to the definition proposed in the text, do not enjoy the power to create law where none had before existed.

. Oliver Wendell Holmes, Jr. ,“The Path of the Law,” Harvard Law Review 10

(1897), 457-478, at 469.

. Compare D. Neil MacCormick and Robert S. Summers , Interpreting Prece­

dents: A Comparative Study(Aldershot , UK : Ashgate, 1997), 531-532: prece­dent plays a major role in the development of all major legal systems; at the same time, all systems accommodate change and evolution in precedent through judicial action.

. The following works deserve special mention: Moshe Zemer , Halakhah she­

fuyah(Tel Aviv : Devir, 1993)/ Evolving Halakhah(Woodstock , VT : Jewish Lights Publishing, 1999); the collected studies published by the Freehof Insti­tute of Liberal Halakhah and edited by Walter Jacob and Moshe Zemer (Dynamic Jewish Law, 1991; Rabbinic-Lay Relations in Jewish Law, 1993; Conver­sion to Judaism in Jewish Law, 1994; The Fetus and Fertility in Jewish Law, 1995; Death and Euthanasia in Jewish Law, 1995; Israel and the Diaspora in Jewish Law, 1997; Aging and the Aged in Jewish Law, 1998); Louis Jacobs , A Tree of Life: Diversity, Flexibility, and Creativity in Jewish Law(Oxford: Oxford U. Press , 1984); Joel Roth , The Halakhic Process: A Systemic Analysis(New York : Jewish Theological Seminary of America , 1986); Eliezer Berkovits , Hahalakhah: kochah vetafkidah(Jerusalem : Mosad Harav Kook, 1981). And by no means should we forget the many responsa written by liberal rabbis that serve as examples of liberal halakhah in practice.

But not always; at times, it is the liberals who base their arguments upon the accepted, seemingly literal reading of the texts while the orthodox defend their position through deft and creative reinterpretation of those same texts. For an example, see Mark Washofsky,“Halakhah in Translation: The Chatam Sofer on Prayer in the Vernacular,” in the forthcoming festschrift for Rabbi A. Stanley Dreyfus.

Following the“working definition” in Alan Watson , The Making of the Civil Law(Cambridge , MA : Harvard U. Press , 1981), 4:“a civil law system would be a system in which parts or the whole of Justinian ’s Corpus juris civilis have been in the past or are at present treated as the law of the land or, at the very