MARK WASHOFSKY

II. LEGAL FORMALISM AND INDETERMINACY.

The foregoing is reminiscent of a complex debate among contemporary jurists, who like halakhists argue over whether and how a "right" answer can be derived from legal sources which bear more than one plausible interpretation. A brief summary of that argument may prove helpful in understanding the struggle over abortion in Jewish law.

One side of the debate in secular jurisprudence is denoted by the term "legal formalism" or some equivalent thereof. Formalism conveys a theory of judicial decision-making according to rule, the use of deductive reasoning to yield correct answers to even the most difficult questions of law. A purely formalistic approach would deny to a judge the element of choice in reaching a decision. There is no need for judicial"discretion," no need to appeal outside the law itself for materials to help decide the case. The legal system is "gapless": it contains antecedently existing right answers for every conceivable legal question, answers discovered through the rational development of its fundamental rules and principles.’” The classic expression of legal formalism is associated with the Englishmen Edward Coke and William Blackstone and the American Christopher Columbus Langdell , the father of Harvard 's "Socratic method" of legal instruction. These jurists tended to see law as a complete and consistent body of dogmatic rules, objective in nature, and autonomous from such non-legal concerns as politics and economics. In this conception the judge discovers the law through the application of right legal reason; he does not create it by means of judicial legislation."The authority and weight of judicial opinions is the authority of an expert reporting his or her findings, not the final or formal authority of an official whose saying makes itso,"

This doctrine came under serious attack in the nineteenth century from such scholars as Jeremy Bentham and John Austin and their twentieth-century disciple H.L.A. Hart. These spokesmen of the doctrine of"legal positivism" argued that law is not the perfection of reason but rather a matter of social fact. Law is law because it is posited by some act of law-making; if a legal

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