Against Method 39

more upon“background” factors the judge’s ethical and social values, perhaps as upon more technically legal ones.

The final reason why law cannot be reduced to the application of rules is that judicial decisions inevitably depend upon and cannot be made in isolation from the very sorts of“metalegal” factors that Professor Shapiro wishes to distinguish from the more purely legal aspects of pesak. My point is that, in practice,“meta-halakhah” simply cannot be distinguished from“halakhah.” This is not to say that some of the source materials that judges and rabbis cite in their rulings are less formally“lawlike” than others. It is to say simply that all of these sources are essential to the making of what is ultimately a legal ruling, a halakhic decision. During the past century and more, legal scholarship has fairly well demolished the ideal of elegantia juris, the notion that law is best characterized as a system displaying formal logical integrity,” in favor of a conception that includes political, social, and moral commitments within the disciplinary confines of law. The“legal realism” movement that flourished in American jurisprudence during the first half of the twentieth century taught that the true motivations of law’s development lay not in its formal, inner logic but in its social, economic, and political context. A judicial decision, in other words, owes as much if not more to the judge’s Weltanschauung as it does to the more purely technical,“objective” (wertfrei) legal factors mentioned in the opinion.” Prominent jurists began to recognize that social values play a vital and inevitable role in the judicial function. Benjamin Cardozo gave this idea its classic literary formulation in his description of how a judge actually decides

cases:”’ The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence.... Logic and history and custom have their place. We will shape the law to conform to them when we may; but only within bounds. The end which the law serves will dominate them all. There 1s an old legend that on one occasion God prayed, and his prayer was“Be it my will that my justice be ruled by my mercy.””® That is a prayer which we all need to utter at times when the demon of formalism tempts the intellect with the lure of scientific order. I do not mean, of course, that judges