HALAKHAH AND ULTERIOR MOTIVES

. After the famous aphorism of Justice Holmes in his dissent in Southern Pacific Co. v.

Jensen, 244 U.S. 205, 221(1917). Cardozo, p. 113, concurs that unlike a proper legislature the judge"legislates only between the gaps", within the"open spaces" of the law.

Ronald Dworkin, Taking Rights Seriously, Cambridge, MA, 1977, and Law’s Empire Cambridge, MA, 1986.

This determination of the law by non-enacted principles resembles natural law theory, but as Bernard Jackson notes, it differs in one important respect. Dworkin’s"right answer" is derived from the morality and political values of a particular community and not from universal reason or morality. See Jackson, Semiotics and Legal Theory, London, 1985, p. 7.

See especially Jerome N. Frank, Law and the Modern Mind, New York, 1930. The central themes of legal realism have been taken up and developed by the Critical Legal Studies movement, which sees the development of law as determined by the political worldview of societies and legal elites. See Mark Kelman, A Guide to Critical Legal Studies, Cambridge, MA, 1987. Some of the strongest criticism of legal realism as an explanation of how judges make decisions comes from judges themselves. See Aharon Barak, Judicial Discretion, New Haven, 1989, pp. 37-38, who questions whether even the extremists among these groups truly believe that judicial discretion exists in every case.

See John Dewey,"Logical Method and Law", 10 Cornell Law Quarterly(1924), 17ff. Such institutional requirements, rather than any inherent logic in the law and its rules, account for the tremendous consistency and stability in judicial decision within a particular system; Karl Llewellyn, The Common Law Tradition(Chicago, 1960).

The point is stressed by Shalom Albeck, Mishpat Umusar Bemesoret Yisrael, Mehkarei Mishpat, v 1, 1980, pp 40-57.

See Avraham Z. Rabinovits, He‘arot Lanoseh Mediniut Hilkhatit Vehandasah Genetit, Techumin, v. 2, 1981, pp. 504-512.

Thus, for example, Menachem Elon adopts the Grundnorm of Kelsen and the legal sources described in Salmond’s Jurisprudence as descriptive of the Jewish legal system. In this, he is followed closely by Joel Roth, The Halakhic Process: A Systemic Analysis(New York, 1986, and see the review essay by Gordon Tucker in Judaism, v. 38, Summer, 1989, pp. 365-376). See also Norman Lamm and Aaron Kirschenbaum, "Freedom and Constraint in the Jewish Juridical Process", 1 Cardozo Law Review(1979), 99-133; Elliot N. Dorff,"A Methodology for Jewish Medical Ethics", B.S. Jackson and S.M. Passamaneck, eds., Jewish Law Association Studies VI, especially at pp. 46 ff.; and Bernard S. Jackson,"Secular Jurisprudence and the Philosophy of Jewish Law", Jewish Law Annual, Boston, 1987, v. 6, pp. 3-44, as well as the other articles in that volume.

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