ABORTION AND THE HALAKHIC CONVERSATION

question has no obviously correct answer, it therefore has no answer at all until one is enacted.” A judge who rules on a disputed question must create a new rule of law. As an act of creation rather than one of interpretation, that ruling is not determined by the pre-existing legal materials. Like an act of the legislature it is a choice, guided by considerations of a political and social nature rather than dictated by the immanent logic of the law. This point was pressed in America by Oliver Wendell Holmes, Jr. , who wrote in a famous passage:

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a great deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

The insight that law owes much more to history, to economic and social forces than it does to formal logic was the guiding principle of the "American legal realists" who flourished in the law schools of the 1920's and 1930's. Realists largely discounted the belief in legal determinacy. Rules do not determine the law; they are but one factor among many which influence the actions of legal officials. The behavior of those officials is the law; its prediction, through the use of social science as a means of establishing patterns of regularity, is a more fruitful subject of study than are the supposed legal rules.”* Those rules are but ex post facto justifications for actions taken for reasons of policy. Talk of rules is a myth, a smokescreen covering the very wide discretion that judges enjoy in the creation of the law.”

The arguments of the realists or"rule-skeptics"’® were disturbing to those jurists committed to the proposition that determinacy of answers is a

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