Taking Precedent Seriously 59

49.

50.

52.

53.

54.

55.

“The Demystification of the Law,” in his Essays on Bentham (Oxford : Claren­ don Press , 1982), 21-39.

A famous American expression of this idea is that of Supreme Court Justice Oliver Wendell Holmes, Jr. , dissenting in case of Southern Pacific Co. v. Jensen, 244 U.S. 205, 222:“The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified.”

On the decline of the declaratory theory see Cross, 26-35. Gerald Postema, “Some Roots of Our Notion of Precedent,” in Goldstein, 9-33, traces the influ­ence of Hobbes and Bentham on the changing notions of precedent in Eng­land. See as well his Bentham and the Common Law Tradition(Oxford : Clarendon Press , 1986), 192-196. The“school” of Anglo-American legal pos­itivism was founded, according to all accounts, by Jeremy Bentham [see The Limits of Jurisprudence Defined(New York : Columbia U. Press, 1945) and A Comment on the Commentaries, ed. J. H. Burns and H. L. A. Hart(London : Athalone Press, 1977) and developed by his student John Austin (d. 1859; see his The Province of Jurisprudence Determined(Indianapolis : Hackett, 1998). Bentham and Austin hold that law must be defined as a command, an order of a sovereign; hence a judge who formulates a previously undeclared legal instruction can do so legitimately only if his ruling is understood to be a form of legislation authorized by the sovereign authority of his jurisdiction. The theory has been modified somewhat in the twentieth century by H. L. A. Hart, whose The Concept of Law(Oxford : Clarendon Press , 1961) presents law as a system of rules rather than individual commands.

. Atiyah and Summers, 120-124. They follow here their general assertion that

the English legal practice is more formalistic and less flexible than the American .

Cross, 176ff. On the analogical nature of legal reasoning, see Edward H. Levi , An Introduction to Legal Reasoning(Chicago : U. of Chicago Press, 1949), and Cass Sunstein , Legal Reasoning and Political Conflict(New York : Oxford U. Press , 1996).

See the following works of Karl Llewellyn : The Common Law Tradition: Decid­ing Appeals(Boston : Little, Brown, 1960); The Case Law System in America, edited and with an introduction by Paul Gewirtz , translated by Michael Ansaldi(Chicago : U. of Chicago Press, 1989); and“Remarks on the Theory of Appellate Decision,” Vanderbilt Law Review 3(1950), 395-406. On his life and work, see William Twining , Karl Llewellyn and the Realist Movement(Lon­ don : Weidenfeld and Nicolson , 1973). It is my view that Llewellyn ’s work is a highly useful tool for the understanding of the process and realities of halakhic decision-making. I hope to expand upon this observation in a future work.

See Llewellyn , The Common Law Tradition, 19-61, for the“Major Steadying Factors in Our Appellate Courts.” These“social and professional factors” do not exclude intellectual influences; among Llewellyn ’s steadying factors are the existence of an accepted legal doctrine and the necessity for writing an opinion that explains the decision. These are“professional,” however, to the extent that a judge must justify the decision in a form that the members of the craft will find acceptable.

Fitzgerald, 178.