Against Method 45

legal relativism, a situation in which, as a matter of law, anything goes; the activity of judging, or of pesak, is not constrained by law per se and is nothing more than the ad hoc, unprincipled enforcement of the judge’s subjective value commitments, be they based upon ethics, emotion, or“gut reasoning.” For all these reasons, the reader might conclude, it would be inaccurate(not to say disastrous) to reject the concept of method as definitive of the legal process.

I agree with almost everything stated in the preceding paragraph. To me, no less than to the reader to whom I impute these sentiments,“law” makes no sense if we cannot understand it as an autonomous discipline that, no matter how much it draws upon or shares in common with other bodies of thought, operates by its own procedures. Judicial decision accordingly must be constrained by the boundaries that law— and no other discipline— sets. A judge is a “judge” by virtue of the fact that her ruling is not simply her own opinion as to what ought to be but rather a judgment, an interpretation of legal doctrine made by a legal professional and its application to the case at hand. Judges, as far as I am aware, do not regard themselves as free to render whatever decisions they wish but as bound by their duty to rule in accordance with the law. Poskim similarly express a clear sense of the limits under which they work: the Torah and the halakhah constrain them to rule correctly, even when they would wish for a different outcome.” All this is an essentially persuasive account of legal and halakhic process. Yet from the fact that law constrains(or ought to constrain) the freedom of the decision maker, it does not necessarily follow that there exists a method that imposes this constraint in an objective way, serving as a barometer of legal correctness, as the formula by which the judge or posek can arrive at the“one right answer” to a question of law or halakhah. Legal decision, as I have indicated above, does not take place in a value-free zone or outside of an ideological context. The key fact here is judicial choice: judges and poskim are constantly confronted with plausible alternative interpretations and applications of legal rules and