Against Method 35

witnesses are required to establish proof in a Jewish court;*® and that one who inadvertently breaks a pitcher that was left lying in the public thoroughfare is exempt from liability.’ It is quite easy to tell the difference between a legal rule and some other, less definitive statement in a legal text. Were law to consist entirely of rules, as some scholars indeed suggest,® then it would be relatively easy to distinguish between“legal” and“nonlegal” elements of judicial decision making: any statement by a judge that does not conform to or apply a legal rule would by definition be a statement of nonlaw, “meta-law,” or at least something other than“law.”*

Yet law cannot be reduced to rules and their logical application. Rules must be applied to cases or questions, specific instances of reality for which a legal response is sought. It is the job of the judge or decision maker to determine the legal rule that best fits the circumstances of the case or question. This, however, is no simple task. Even when it is clear to legal observers that a particular rule disposes of a case, it may be far from obvious just how the rule is to be applied. To take a famous example:* suppose there is a law that forbids a person from taking a vehicle into a public park. This prohibition would seem clearly to forbid the entrance of automobiles into the park. Does it apply as well to bicycles, roller skates, or toy automobiles? What about a military truck placed on a pedestal as a memorial to the soldiers who fought in the last war? The rule does not simply and obviously answer any of these questions. The judge called upon to decide this case will have to interpret the rule to make it yield an answer.’ Consider a well-known rule of Jewish law: the Torah disqualifies the“wicked” person(rasha) from serving as a witness, and those who habitually violate the Torah ’s commandments are customarily defined as“wicked.”® Question: in the opinion of Orthodox jurists, does the exclusion enunciated in this rule apply to Jews in our day who for a variety of reasons do not adhere to an Orthodox standard of religious observance? Many Orthodox authorities disqualify non-Orthodox Jews from serving as witnesses at