Against Method 37

A second reason why law is not exclusively a function of rules is that even when the definition and circumference of a particular rule are tolerably clear, it may not be certain whether that rule or an alternative rule is the one that fits the facts of the case. In such an instance, because the competing rules do not by themselves determine their application,” the judge must choose between them. An example of this phenomenon in Orthodox jurisprudence is the question of the halakhic validity of marriages between Jews solemnized in the civil courts or in a Reform synagogue. One approach denies any validity whatsoever to these wedding ceremonies, on the grounds that they do not conform to the rules that define the contracting of Jewish marriage (kiddushin).” A conflicting approach recognizes these ceremonies as halakhically valid, not because the halakhah approves of civil marriage or Reform Judaism per se, but because the rule of common-knowledge testimony(anan sahadei,“we are witnesses”) establishes the evident desire of the Jewish couple to live together legally as husband and wife, and that desire is sufficient evidence to the intent to form a valid Jewish marriage.®® The Orthodox halakhist may utilize either of these two sets of rules to define the marital status of the couple. Each set is thoroughly steeped in halakhic doctrine; neither is more obviously“right” than the other. The posek must choose between them. It is a fateful choice indeed, for it will determine whether either spouse requires a gef prior to remarriage. But it is a choice, a decision that the rules themselves do not dictate in advance.

A third reason why law cannot be understood simply as a system of rules is that judicial decision rests upon other sources of law much less precise and objective than rules. Among these other sources are legal principles,“general premises for judicial and juristic reasoning.”® A principle is“a standard to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality.” A principle differs from a rule