74 Mark Washofsky

principles), or reducible to policy choices and class interests, but that it is rather what I call a language, by which I do not mean just a set of terms and locutions. but habits of mind and expectations—what might also be called a culture... The law makes a world.”

121. This is a theme stressed again and again in the literature of the Critical Legal Studies “movement”(CLS): legal doctrine is largely indeterminate because the law, as a discrete, procedural discipline, allows for arguments in more than one direction. The only way to solve these disputes is through a substantive choice in favor of the arguments supporting one particular social vision over those that support another. This sort of choice, though, is political rather than legal. Hence, the title of David Kairys ’ The Politics of Law(New York : Basic Books , 1998), an important collection of essays by a variety of scholars associated with CLS.

122. Many halakhic authorities do believe in the existence of a single, uniquely correct answer to any question of Jewish law; see Shimshon Etinger,“Machloket Ve'emet: Lemashma ut She‘elat Ha'emet Hahilkhatit.’ Shenaton Hamishpat Ha'ivri 21(1998-2000), 37-69. For other views, see Avi Sagi , Eilu Ve'eilu: Mashma‘uto Shel Hasiach Hahilkhati(Tel Aviv : Hakibbutz Hame’uchad, 1996). My remarks in this essay, however, go to a more practical level of concern: even if there is one right answer to a question of law or halakhah, there is no reliable method by which the scholars of the field can identify that answer in any formal way. And this, at the very least, means that the authorities cannot summarily reject any and all divergent points of view from the legal conversation,

123.“Practical reasoning,” as distinct from formal logic, is often linked to the Aristotelian term phronesis. It is, in the words of Richard Bernstein(note 99, above, at 54)“a form of reasoning that is concerned with choice and involves deliberation... a judgment(in which) there are no determinate technical rules by which a particular can simply be subsumed under than which is general and universal. What is required is an interpretation and specification of universals that are appropriate to this particular situation.” In a legal sense, practical reasoning is the idea that judges should decide cases“not by deductive logic, but by a less structured problem-solving process involving common sense, respect for precedent, and an appreciation for society’s needs”; Daniel A. Farber ,“The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law,” Vanderbilt Law Review 45(1992), at 536-537. For discussion and bibliography see Thomas F. Cotter,“Legal Pragmatism and the Law and Economics Movement,” Georgetown Law Review 84(1996), at 2082-2091.

124. The most important exponent of this point of view is Karl Llewellyn , whose magnum opus is The Common Law Tradition: Deciding Appeals(Boston : Little, Brown, 1960). See especially the chapter entitled“Major Steadying Factors in Our Appellate Courts,” 19-61. The term“leeways” that I use in the text is taken from Llewellyn ’s treatment of“the leeways of precedent” in this work, pp. 624; A more accessible version of his approach is The Case Law System in America(translated by Michael Ansaldi. Chicago: University of Chicago Press , 1989); see especially at 76-78, along with editor Paul Gewirtz ’s excellent introductory essay, IX-Xxiii. Gewirtz notes the subtle but important difference between Llewellyn ’s approach and Stanley Fish ’s notion of practice and“communities of interpretation”(Doing What Comes