Against Method 67
61. While both Hart and Fuller(see previous note) accept the need for interpretation in this case, they differ sharply over its nature. For Hart, the issue is one of the meaning of language. or all linguistic terms, such as“vehicle,” there is both a settled core of meaning(a set of instances that clearly fit within the parameters of the term) and a“penumbra” of unsettled meaning. The judge must decide whether the penumbral case does or does not fit within the anguage of the rule. This decision is an act of legislation, a creative attempt by the judge to make new law in accordance with some conception of public need or social policy. In Fuller’s view, the issue here is not linguistic—“what is a‘vehicle’?”-- but rather a matter of applying the yurpose of the law—what the rule“is aiming at in general”-to the case at hand. There is a significant difference between these two approaches to legal textual interpretation. For our urposes, though, it is sufficient to say that both regard the written rule as insufficient to decide
the case
62. Ex. 23:1; San. 27a; Yad, Hil. Edut 9:1ff. 63. Chief Rabbinate of Israel, Osef Piskei Din(1950), 337-338. The court refused a petition to annul a marriage on the grounds that the wedding was not conducted according to proper
halakhic form
64. For an analysis of the ruling see Menachem Elon , Miba‘ayot Hahalakhah Vehamishpat bBmedinat Yisrael(Jerusalem : Hebrew University , Institute for Contemporary Judaism, 1973), 22ff: What we can say is that the judges of the court were anything but obscure and insignificant figures in the world of halakhah. They included the two chief rabbis of Eretz Yisrael, Yitzchak Halevy Herzog and Benzion Meir Hai Ouziel, along with R. Meshulam Ratta, the well-known
author of the responsa collection Kol Mevaser.) 65. Burton(note 4, above), 21.
67. On Reform weddings, see R. Moshe Feinstein , Resp. Igerot Moshe, Even Ha ezer 1:76-77. 68. R. Yosef Eliyahu Henkin, Resp. Teshuvot Ibra, no. 76 69. Pound(note 52, above).
70. Dworkin (note 55, above), 22. Dworkin makes a sharp distinction between“principles” and “policies,” which he defines as desired social, political, or economic goals and which pertain more appropriately to the sphere of the legislature than to that of the judge. A number of scholars question whether a significant distinction can in fact be made between“principles” and “policies”; see Neil MacCormick , Legal Reasoning and Legal Theory(Oxford: Clarendon Press, 1978), 259-264, and Aharon Barak , Judicial Discretion(New Haven: Yale U. Press,