ABORTION AND THE HALAKHIC CONVERSATION
65. That even the accepted rules of decision-making possess only tentative validity--that is, they "work" only when the posgim decide not to ignore them--is stressed by Eliezer Berkovits , HaHalakhah:
66. See, for example, his essay in Dinei Israel, p. 123, n. 13.
67. Arusi, Tehumin, p. 520.
68. Eruvin 13b. The heavenly voice, of course, declared that the halakhah follows the opinion of the school of Hillel.
69. See once again R. Yosef Caro 's introduction to the Beit Yosef:"As a result of our long years of dispersion and wandering,‘the wisdom of its sages has disappeared’[cf. Isaiah 29:14]. The Torah has become not two Torahs but innumerable Torahs (torot ein mispar) on account of the many books that have been written to explain its laws." The difficulty at discerning the correct judgment is one of the chief reasons Karo cites for his composition of the Beit Yosef.
70. For good summaries of the doctrine of legal formalism, the reader might consult Frederick Schauer
,"Formalism," Yale Law Journal, Vol. 97, 1988, pp. 509 ff; Raymond Bellioti, Justifying Law, Philadelphia , 1992, pp. 4-5; Richard A. Posner , Problems of Jurisprudence, Cambridge , MA , 1990, pp.9-33; H.L.A. Hart , The Concept of Law, Oxford, 1961, pp. 121-132.
71. Gerald J. Postema, Bentham and the Common Law Tradition, Oxford, 1986, p. 9. See also Thomas C. Grey,"Langdell's Orthodoxy," University of Pittsburgh Law Review, Vol. 45, 1983, pp. 1-53.
72. 1 focus here on legal positivism's implications for judicial decision. As a full-blown jurisprudential theory, positivism emerged as a reaction against natural-law thinking: law should be understood as something separate from morality. This theoretical turn was useful to liberals, since by"demystifying" the law they rendered it more hospitable to reform through enlightened legislation. See, in general, H.L.A. Hart , loc. cit., as well as Joseph Raz , The Authority of Law, Oxford, 1979, pp. 37-45, and Mario Jori, ed., Legal Positivism , New York , 1992.
73. Oliver Wendell Holmes, Jr. , The Common Law, Boston , 1881(rev. ed, Boston , 1963), p. 5. Consider as well his dictum in Southern Pacific Co. v. Jensen:"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;" 244 U.S. 205(1917), Holmes , J., dissenting.
74. See Oliver Wendell Holmes, Jr. ,"The Path of the Law," Harvard Law Review, Vol. 10, 1897, pp. 457-478, and Karl N. Llewellyn , The Bramble Bush, New York , 1951, pp. 12-13, and The Common Law Tradition, Boston , 1960.
75. The sharpest presentation of this view is that of Jerome Frank , Law and the Modern Mind, New York , 1930.
84