58 Mark Washofsky

arguments in which we participate. But they will do much to see to it that what emerges from our debate will be a result that can command our attention, our respect, and our assent.

Notes

* To Moshe Zemer , whose life in halakhah and in its instruction is an example for us all.

1. Moshe Zemer , Evolving Halakhah: A Progressive Approach to Traditional Jewish Law (Woodstock , VT : Jewish Lights Publishing, 1999). This is the translation of Rabbi Zemer ’s Halakhah Shefuyah(Tel Aviv : Devir, 1993)-i.e., a“sane” halakhah. In this way, he teaches us that Jewish law can remain sane or healthy only so long as it is free to respond in a positive way to the changes in outlook, technology, and social reality that occur in every age.

2. Yitzchak Englard takes a similar view of Jewish law from the perspective of academic jurisprudence: there is no“Jewish law” apart from the actual decisions of the rabbis. For discussion and critique of his position, see Bernard S. Jackson . Modern Research in Jewish Law (Leiden: Brill, 1980), especially the articles by Englard, Menachem Elon , and Bernard S. Jackson in that volume.

3. use the term“method” in the sense that Edward L. Rubin uses the term“methodology.” See his“The Practice and Discourse of Legal Scholarship,” Michigan Law Review 86(1988), 1838, n. 21:“*Methodology’ means any independent, systematic set of arguments or criteria which claims to arrive at a true or accurate account of the subject matter under consideration.” Rubin’s “true” and“accurate” parallel my term“objective” a conclusion is“objectively” correct when its correctness can be satisfactorily determined by the application of criteria that are internal to the particular discipline, such as law or halakhah.

4. It is difficult to define“legal formalism” with absolute precision, since it is used in the scholarship to refer to a number of different phenomena. The common denominator that runs through all the descriptions is that legal decision is a matter of decision by rule. Formalists hold that all valid legal decision flows from a complex of authoritative legal rules that are themselves grounded in some authoritative legal principle. These rules and principles comprise a system that is sufficiently comprehensive to answer any and all questions that arise under the law; this system—the“law™~-dictates the ruling of a judge in a contested case. The decision of the judge, who must rule in accordance with the“law” rather than with his or her personal predilections, takes the form of a deductive application of the rules and the principles of the relevant legal institutions. The decision is“correct” because it is determined by the workings of an objective set of techniques that constrain the judge’s discretion and lead to the one right outcome; it is determined, that is, by legal method. For extensive discussion, see: Steven J. Burton, An Introduction to Law and Legal Reasoning(Boston : Little, Brown, 1985), 167-169; Neil Duxbury, Patterns of American Jurisprudence(Oxford: Clarendon Press, 1995), 10; Gary