Mark Washofsky 51. Ibid, 119
53. This formulation is taken from Burton(note 4, above), at 13. Burton speaks only of “classes of persons” and not“things,” but the latter fits well with the classical conception of law as dealing with things(property, obligations, etc.) as well as with persons
54. See the definition of“black-letter law” in Bryan A. Garner , 4 Dictionary of Modern Legal Usage(New York : Oxford University Press , 1987). 88-89“legal principles that are fundamental and well-settled or statements of such principles in quasi-mathematical form.”
56. There are, of course, exceptions to this rule, such as the reliance upon the testimony of a single witness in order to establish a presumption of a state of ritual prohibition(ed echad ne‘eman be'isurin, Git . 2b-3a; Yad, Hil. Edut 11:7). Yet a rule can be formulated so as to account for its exceptions
57. M. Bava Kama 3:1.
58. Chief among these are the legal positivists, the most famous of whom is H. L. A. Hart, The Concept of Law(Oxford : Oxford U. Press . 1961). Hart defines law as entirely a system of primary rules(that is, rules establishing norms of behavior) and secondary rules(rules that stipulate how primary rules are established, enacted. or repealed). If a particular case cannot be decided by appeal to a rulethat is, if it falls outside the clear circumference of the established rules—then it is not properly speaking a matter of“law” at all. It is rather a subject for judicial discretion, in which the judge in effect reaches beyond the law in order to legislate a new answer to the question.
59. Something of this idea can be seen in the distinction in the common law tradition between the“holding” or“rule” of the judicial opinion, which is binding upon future judges, and everything else that the judge writes, which is called“dicta” and is not binding. See Rupert Cross , Precedent in English Law(Oxford : The Clarendon Press, 1977), 384.