MARK WASHOVSKY

disagree as to the"right answer"; that such an answer exists, however, is clear. It is an answer consistent with the fundamental principles of the law, not created by resort to considerations outside the law.!® A third approach, denoted variously as"legal realism" or"rule-skepticism", tends to minimize the binding character of legal rules altogether. The law"is" as it is applied in practice, by courts and other adjudicatory bodies; rules, by contrast, are purely theoretical until enforced by such agencies. In its extreme expressions, legal realism denies that rules limit the discretion of the judge in any significant way, even in so-called"easy" cases. Rules are fictions, serving as a smokescreen of legal argumentation disguising the true motivations--social, psychological, political--of the judge.'” Legal reasoning does not account for the decision. It reflects at best a"logic of exposition”, an institutional requirement that judges explain their rulings to the community.’® That judges accompany their rulings with reasoned opinions should not, however, blind us to the fact that a judicial decision is an act of legislation, a choice prompted by"extra-legal" factors, rather than of interpretation.

These schools of thought in secular jurisprudence bear a more-than-passing connection to our topic. As in other fields of research, scholars of Jewish law may attain a better understanding of their subject matter through the use of methodological tools developed for the analysis of similar, non-Jewish literary genres. We should be wary, of course, of drawing improper analogies. The theories of jurisprudence to which 1 refer were formulated to describe the workings of secular(primarily Anglo-Saxon ) legal systems; their basic presumptions, accordingly, may not fit the realities of the halakhic process. Religious law, for one thing, does not make a sharp distinction between legal and moral norms in judicial reasoning.” In Jewish law, moreover, which lacks a recognized legislature, it may be as legitimate for the rabbinic decisor(poseq) to base his rulings upon policy considerations as upon strict rules of law.%° Still, recent years have seen an

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