Gate Six: Legal Implications — Law and Halakha

← Back to list | ℹ About

This is an AI-generated English translation of a chapter from the book The Spirit of Law (רוח המשפט) by Rabbi Michael Avraham. Translated by OpenAI’s GPT-5.4 model with high reasoning effort. Read the original Hebrew (PDF).

← Gate Five: General Overview of the Two Roots — Halakhic and Meta-Halakhic MeaningsContentsGate Seven: The Philosophical Foundation — The Synthetic A Priori →

From the book The Spirit of Law by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

Legal Implications: Issues in the Relationship Between Law and Halakha (Jewish law)

In this gate we will examine civil legal systems through the lens, or within the conceptual framework, developed in this book. We will seek to identify both the similarities and the differences between them and Halakha, and we will see that the problems that have concerned us throughout this book also concern legal thinkers, and the broader public as well. The seventh gate, which will propose a conceptual framework for the kinds of solutions suggested in the first two parts of the book, may also shed further light on the legal-level problems that will be presented here.

We will see that legal discussion clarifies and sharpens the descriptions of Halakha that we proposed in the first two parts, and conversely, that the halakhic descriptions can help in understanding fundamental ideas with which jurists, legal theorists, and philosophers of law have struggled quite a bit.

Chapter 1: Halakha and Law: Maimonides’ Two Roots in Light of Civil Legal Systems

Introduction

Many have already written about the question whether Halakha is a legal system, and in what senses. There is no doubt that it has legal dimensions, such as courts, rules of evidence, criminal and civil law, procedural law, punishment, and the like. On the other hand, there are important and essential differences between Halakha, as a religiously rooted halakhic system, and civil legal systems.¹

In this chapter we will not address that general question. Rather, we will try to sketch in broad outline the concepts parallel to those with which we have dealt thus far in the halakhic context, especially with respect to Maimonides’ first two roots, within the context of general jurisprudence.

A Schematic Description of Aspects of the Civil Legal System as Compared to the Halakhic One

The first point we will discuss is the concept of the separation of powers. A foundational principle of democratic government is precisely that principle. It establishes as sharp a distinction as possible among several governmental authorities, mainly in order to prevent the excessive accumulation of power in the hands of any one authority and to create a balance among them. Modern political theory identifies several governmental functions in this context: the executive branch, the legislative branch, the judicial branch, and the sovereign authority, which may be one of these. Each of these authorities is structured hierarchically. For example, the executive branch includes the government and beneath it the bureaucracy and implementing ranks. The legislative branch is the parliament, which sometimes consists of two houses. The judicial branch is the system of courts of various kinds: traffic, labor, juvenile, magistrates’, district, supreme, and the High Court of Justice. There are also additional authorities, such as enforcement agencies, meaning the police, and security bodies, meaning the army and security services, which are subordinate to one or two of these.

By contrast, in Halakha the concept of separation of powers is very limited.² There is indeed a king, though not always. The division of authority between him and the other authorities, that is, the court, is not sharp or clear. There is a prophet, who has almost no defined powers in the public sphere, except in situations such as going to war and the like. And there is the system of courts, headed by the Sanhedrin in the Chamber of Hewn Stone.

If we take as an example the powers of the Great Court, we see, as can be seen in the Mishnah at the beginning of tractate Sanhedrin, that it engages in legislation, adjudication, and execution as well. This begins already with Moses our teacher, who fulfills for Israel all the functions: king, priest, judge, and prophet.

Beyond this, in Halakha there is a supreme authority, the sovereign, who is God, or more precisely, the Torah. After the giving of the Torah, we no longer take account of additional information given to us from above, for “it is not in heaven,” but only of what is written in the Torah or what emerges from our own reasoning, whether interpretive or creative, as discussed in the earlier units. Even so, the root of everything remains the fulfillment of God’s will and His service, and all the channels just mentioned—reasoning, Torah, and the Oral Torah—are only different paths to that will.

At the beginning of the first unit we saw the distinction between the two basic operations in relation to any legal system: legislation and interpretation. This distinction also exists in general jurisprudence, and as we shall see, it raises similar problems there as well. In principle, in a democratic state legislation is entrusted to parliament and interpretation to judges and the courts. In Halakha there is no sharp distinction between these two instances.

It is important to remember, as background, that in the halakhic system there are no acts of primary legislation at all, no constitution, since the One who established the basic law was God, and that law cannot be changed. What we can do is either interpret the law or enact new rabbinic ordinances and decrees. In the civil counterpart there may indeed be a constitution, but the sovereign is always authorized to change it through some proper process defined by law. There is no one above the sovereign, that is, above the Knesset.³

Beyond that, there is activity known in civil legal systems as secondary legislation, that is, subordinate legislation enacted by institutions authorized to do so by the legislator. Such actions also exist in the halakhic system. There, these are the Sages, who can institute ordinances and decrees and the like. In the civil system, these are governmental authorities, which belong to the executive branch. For example, a minister, or any responsible official in his sphere, is empowered to enact subordinate regulations that are binding by virtue of the authority delegated to him by the legislator. This is the civil counterpart to “do not deviate” in the terms of the first root, that is, “do not deviate” as grounding the delegation of validity and authority. Just as the Torah delegates legislative authority to the Sages, the law delegates the authority to issue regulations to various bodies within the governing authorities.

Beyond this, there is also interpretation of law, which in the framework of Halakha is performed, in the authorized and binding sense, again by the court, this time as a judicial, or quasi-legislative, authority. Within civil law, this is done by the court, or more generally by the judiciary. A court that interprets law or Halakha is not conceived as a legislator but as an interpreter. It functions as a judicial authority, not as a legislative one, and is of course subordinate to the original intent of the law, or of the legislator.

Thus, the two roles that have occupied the lion’s share of our discussion until now—secondary legislation and interpretation—were both carried out by the Sages, or by the court. In the civil system these roles split apart: interpretation is performed by the courts, whereas legislation, primary legislation, is performed by the legislature, or by institutions belonging to the executive branch in the case of secondary legislation.

In light of the picture presented here, the civil system makes the division between the two functions discussed in the first two units appear far more natural. The executive systems need delegated authority in order to legislate, because in themselves they are not legislative systems. Judicial systems, by contrast, need, if anything, delegated authority for interpretation of the law, because in themselves they are systems entrusted with adjudication and not with interpretation.⁴ These are precisely the two aspects of “do not deviate” with which we have been dealing.

We can now turn to examine the significance of the two principles found in Maimonides’ first two roots in relation to civil legal systems.

The Civil Principles Parallel to the Expansion of Validity: The First Root

The principle with which the first root deals is the authority to enact secondary legislation. We saw there that there are two possible ways to understand the authority of the secondary legislator:

Maimonides, according to the accepted understanding, held that the Sages, or the court, act by the power of, and as agents for, the primary legislator, that is, God, or the Torah. Since a person’s agent is considered as the person himself—or so, ostensibly, the argument would run—their secondary enactments seemingly receive the status and force of primary legislation, as if the legislator himself had enacted them. For this reason, most interpreters of Maimonides, as discussed in the first unit, understand that one who violates a rabbinic prohibition has in fact violated a biblical prohibition, as though the matter had been legislated in the Torah itself.
Nahmanides, by contrast, held that the basis of the secondary legislator’s authority is not the verse “do not deviate.” There is some other basis, external to the explicit statements of the legislator—perhaps what one might call “the spirit of the law,” or, in the terminology of the second unit, “a matter of biblical significance.” According to this approach, the halakhic status of the laws of secondary legislation is indeed lower. But here the question immediately arises: what external source to the legislator can obligate us to obey the secondary legislator? Why listen to the Sages if this is not actually commanded by the prohibition of “do not deviate”?

In the civil context, the situation is theoretically parallel, but in practice very different. As noted, the secondary legislator usually belongs to the executive branch. He receives his authority from the primary legislator. His laws are regarded as the laws of the primary legislator. It seems that the alternative possibility would not even arise there: namely, that such laws have a different and lower status and that the basis of their validity comes from an external source rather than from the primary legislator. There is a clear distinction there between legislator and executor, something that does not exist in Halakha.

There is a basic datum that differs between the two systems. In the halakhic system, tradition has handed down to us that secondary laws stand at a lower level than primary legislation; they are laws of rabbinic origin. This is the basic motive for seeking a different source that will ground their validity outside the Torah itself. In the civil system there is no reason to do so. Therefore, in an ordinary legal system it has no real meaning to speak of two levels of legal force. All laws derive their force from the legislative system, and even when it delegates some of its powers to governmental authorities, that is as though it had itself enacted the subordinate law. Even when, in the event of a conflict between primary and secondary legislation in an ordinary legal system, we usually decide in favor of the superiority of primary legislation, this is explained by the fact that the primary legislator himself, as the source of authority that also underlies the secondary legislation, established that rule of priority. We are not dealing here with a difference in the force of those laws, but with an explicit decision of the legislator.

Let us recall that even in the halakhic context, Nahmanides raised the possibility of explaining Maimonides in the first root by saying that the halakhic status of rabbinic laws is lower than that of biblical laws because “they said it, and they said it”—that is, their status is not really lower, but the Sages themselves determined that their own enactments would yield before biblical laws and would occupy a lower rank, for example, that doubts concerning them would be treated leniently. This suggestion of Nahmanides leaves the force of rabbinic commandments equal in principle to that of biblical laws, except that the Sages themselves, as it were, “waived” their own status. In principle, they could have chosen not to do so. It seems that this is precisely what bothered Nahmanides about his own proposal when he rejected it without explanation, saying, in his glosses to the first root, p. 22:

“These are not proper arguments, nor do they go to the root of the matter.”

What bothered Nahmanides was that, at least theoretically, this would mean that the Sages’ status is not that of secondary legislators but of the primary legislator himself, and that they voluntarily give up that status. This seemed unreasonable to him. The comparison we are making here helps clarify precisely what disturbed Nahmanides in his own proposal for explaining Maimonides.

The natural explanation for the phenomenon that rabbinic laws have a lower status is the opposite one, and it fits exactly what happens in civil systems: the Torah itself, that is, the primary legislator, which delegated authority to the Sages to enact secondary legislation, also established the priority rule according to which rabbinic laws would have lower status. This is the principle of “they said it, and they said it” from the opposite direction: the Torah said it, and the Torah said it, not the Sages, as Nahmanides suggested. Why, then, does Nahmanides not consider this possibility as a viable interpretation of Maimonides?

It seems that Nahmanides assumes that if the obligation to obey the Sages were indeed derived from the prohibition of “do not deviate,” then one could not understand the Torah itself as having determined that their status is lower. The reason apparently lies in another difference between the halakhic and civil systems: in the halakhic system, primary legislation reflects reality and not merely a conventional legal norm. If rabbinic commandments were truly on the level of biblical laws, then they could not also be essentially lighter biblical laws than ordinary biblical laws. The modes of treating biblical law are not matters of conventional normative decision; they reflect the law’s real ontological status. Biblical laws must have a defined standing precisely because they are biblical. One cannot conceive of laws that are biblical and yet whose halakhic standing is essentially different, unless there is explicit disclosure of this in the Torah.⁵ In civil law, by contrast, the legislator can always assign different standing to certain laws, because there law and its status arise from convention, that is, legislation.

Maimonides, by contrast, held that when there is a biblical prohibition whose entire content is merely command, with no substantive layer, then in cases of doubt we should be lenient. A doubtful instruction is no instruction, and rebellion against it is no rebellion. This principle was not necessarily received by tradition, as Nahmanides expected, but follows from simple reasoning, from the very definition of the concept of rebellion, which is a foundational element in the prohibition of “do not deviate.” In other words, this is a result of our own interpretation of that prohibition.

In our language in the first unit, we formulated this by saying that according to Maimonides, leniency in cases of doubt concerning rabbinic law is itself required by the Torah: in cases of doubt about rabbinic law, biblical law mandates leniency, even though, in his view, the rule that doubt in biblical law is treated stringently is itself rabbinic. This formulation is entirely parallel to what we saw in civil legal systems. There too, the leniency in our treatment of secondary legislation derives from the primary legislator’s own instructions. He prohibited, that is, obligated us to obey, or delegated power to the secondary legislator, and he also permitted, that is, he set a priority rule giving primary legislation precedence over secondary legislation. The reasoning we proposed regarding the meaning of the concepts of rebellion or command restored the symmetry between Halakha and civil legal systems. We can now adopt the same solution in the halakhic framework with respect to the force and status of secondary legislation.

The same was true of the general principle that rabbinic laws are lighter, not only in the area of doubtful cases. That reasoning operated by the following mechanism: through the verse “do not deviate,” one can show that the Torah itself intends there to be a halakhic-juridical status for rabbinic laws, but all this without an explicit command. Therefore the status of these laws is lighter, like “a matter of biblical significance.” The legislator himself determined that these laws would have lighter status, for they express His will, but not His command.

It therefore seems that with respect to the first root, the difficulty that existed in the halakhic context does not arise in the general legal context. The solution there is simple and natural. The root of the difference is that in civil legal systems, laws do not reflect reality but conventional normative determinations. Conventional systems can be designed at the discretion of those who shape them. The primary legislator who delegates authority and power to the secondary legislator can also determine that the level of obligation toward him will be lower. One does not even need a special line of reasoning to ground such a principle; the expressed will of the primary legislator suffices. Usually he also says so explicitly and does not leave it to our interpretation. By contrast, the Torah says nothing about the standing of rabbinic laws, while leaving in our hands the categorical distinction between rabbinic and biblical laws. Therefore, had we concluded that rabbinic commandments are merely specifications of “do not deviate,” we would have had to treat them as biblical laws. Only Maimonides’ original reasoning, that is, the mechanism of branching out, if our proposal regarding his view is correct, succeeds in changing that situation.

Up to this point we have dealt mainly with the principle addressed by the first root: the extension of validity, or delegation of force. Here the discussion was not about a substantive relation between the primary and secondary law, but about the delegation of authority to legislate a secondary law. The question is not whether the law is correct, or whether it expresses the legislator’s intention, but whether the secondary legislator had authority to legislate it. We now turn to examine the situation in civil legal systems with respect to the principle addressed by the second root: the expansion of content, or analogical interpretation.

The Civil Principles Parallel to the Expansion of Content: The Second Root

The second root deals with the question of how to understand the interpretive expositions of the Sages. According to Maimonides, this is a category he calls “the words of the scribes.” Some understood him to mean that laws derived by rabbinic interpretation are rabbinic laws in every respect. Others understood that Maimonides was discussing only the source of these laws, while in halakhic status they are biblical laws. Both sides agree that the Torah cannot be expanded. One may interpret what is already contained in it, or legislate secondary legislation that is added to the primary legislation. One cannot add to the primary legislation, for that is entrusted to God alone.

In the context of civil law we can repeat the same process, and it seems that here the move will be almost completely parallel, apart from the theological consideration. We may ask ourselves: how can law be expanded? As we saw, when the legislator does so, that is new legislation, and in the civil context, unlike the halakhic one, this is not problematic at all. But here we are dealing with a different situation, for in the halakhic context it is not a case in which God changes the commandments of the Torah. We are dealing with a situation in which the Sages, that is, the court, interpret the law, but this interpretation is expansive, something like legislation. How should we understand that? Seemingly, if there is legislation here, then that belongs exclusively to the authority of the legislator. And if this move is interpretation, then there is no problem at all, for that is precisely the role of the court.

Thus, in the context of the second root, the situation in Halakha and in civil law appears completely parallel. The simple assumption is that one cannot expand the law, but only either legislate a new law, and that only by the legislator—God, or, by contrast, parliament, the legislative house—or interpret the existing law and understand what is already in it.

Yet it is difficult to assume that the court does nothing more than uncover what is already in the law. At times its interpretation seems to go far beyond what is latent in the law as such, certainly when it fills a lacuna. In that situation, using Maimonides’ halakhic terminology, we would say that the court is engaged in derash (expansive interpretation), not peshat (plain-sense interpretation), of the law. But then exactly the same question arises that arose for us in the second unit: if interpretation merely uncovers, then there is no problem. But if interpretation also expands, then it is unclear how the court can perform a function that clearly belongs to the legislator.

Just as in the halakhic context, here too we will want to say that there is an intermediate state. The court is not legislating, for it has no authority to do so, but neither is it engaged only in uncovering the law’s meaning in the narrow sense. Sometimes the court also expands the law in a way that, on the logical level, may be regarded as analogy. In such an expansion, the interpretive outcome is connected to the law, but its conclusions are not contained in the law itself. They are the product of the interpreter and not of the bare text alone, but they remain related to the law being interpreted. This is not mere deductive disclosure, but neither is it legislation.

In the present gate we will expand on this topic and show that it is nothing other than a reflection of the interpretive problem known as the hermeneutic circle. We will propose for it a theoretical-philosophical basis that can serve as a conceptual and intellectual framework for the entire family of solutions of the type of “the third way,” in Halakha and in law, as well as in many other contexts.

Chapter 2: Concepts and Fundamental Issues in the Philosophy of Law: A Selective Introduction to Jurisprudence and Legal Interpretation

Introduction

In this chapter we will detail more fully the legal aspects of the problems discussed with respect to the two roots, along with the solutions that general jurisprudence offers for them. We will sketch the various domains in which these problems can arise, and the conceptual system developed to address them in those contexts. In the end we will see that the problems with which ordinary legal systems struggle are very similar to those we have seen until now. In the seventh gate, which concludes this unit and the book as a whole, we will propose a conceptual framework that makes it possible to find a theoretical basis for solving these problems, given that their main root is of a general philosophical character and not specifically a legal one. Therefore, as we shall see, the comparison between Halakha and general legal systems will prove helpful and illuminating for both sides alike.

I should preface all this by saying that I am not an expert in law, and therefore various errors due to lack of knowledge or legal misunderstanding are entirely possible, and if so, the fault is mine.⁶ Even so, I decided that there is great importance in surveying the general legal analogue to our discussion here, because it sheds light on the problems that accompanied us in the halakhic sphere and gives the discussion a broader context. And conversely, it seems that the halakhic and meta-halakhic analyses undertaken here may also offer legal theorists solutions to problems that accompany them as well. “And never let the blessing of an ordinary person be light in your eyes.”

One further brief comment by way of concluding the introduction. Because of the meta-halakhic context, we will deal mainly with aspects of interpretation and relations of authorization in jurisprudence. We will not enter directly into questions concerning other functions of the court, such as resolving conflicts between competing values, or of the legal system, such as legal paternalism, except indirectly. As background to the discussion, we will consider the main disputes concerning the fundamental approach to jurisprudence, chiefly around positivism, and especially their expression in the interpretive context.

Here we arrive at an important point that requires attention. Interpretation in jurisprudence is not examined only in terms of truth, reliability, and fidelity to the source. Those involved in the legal system, and therefore also those involved in legal theory, are interested in principles of stability and social order no less, and perhaps more, than in the fidelity of interpretation and its fit to the source. Such considerations are part of interpretation itself no less than considerations of truth and fidelity, and at times much more so. In that sense, legal interpretation is not a distinct domain, and it constantly mixes with the domain of legislation, as we shall see below from several of the aspects with which we will in fact deal. It differs in essence from interpretation in other fields, which we will discuss in the next gate, and in this respect it seems to differ from Halakha as well.

In the first two parts of the book we dealt mainly with the question whether the halakhic norm is valid and whether the interpretation is faithful, that is, directed to the will of the legislator, namely the Torah. Considerations such as stability of the system did not enter the discussion, because, to the best of my understanding, they really do not play a role there.⁷ The accepted assumption is that if we indeed arrive at the correct interpretation of the Torah’s will, then the other legal problems should also be resolved. If not, then there is room to enact rabbinic ordinances. In any event, this is not part of the theory of halakhic interpretation, which is examined only in terms of the faithfulness of the interpretation and its relation to the source.

I am already placing the conclusion here in order to focus the reader’s attention. The goal of halakhic interpretation is to descend to the Torah’s will, whereas legal interpretation seeks additional aims, and at times one finds there an ignoring of the problem of interpretive fidelity and a complete concentration on the bureaucratic design of its rules and on finding structures of authority to establish and ground them. We will return to this question at the end of the gate.

What Is “Law”?

First we must preface the discussion with a brief note about “law” in its legal sense.⁸ One of the basic questions with which jurisprudence deals is this: what is the difference between rules that describe human behavior and rules that obligate human beings to behave in a certain way? In many cases there are rules that prevail in society and are accepted by everyone, but they are not regarded as law, at least not in the legal sense of the term. Only rules that obligate the citizen may be called legal law.

A legal norm is a rule that guides behavior, that is, it is prescriptive,⁹ unlike a law of nature, which is a principle that describes the behavior, that is, it is descriptive, of some system, whether human beings, animals, or inanimate objects. An observation of the system described by a law of nature that yields a negative result, meaning that it shows the system does not behave according to the law, would prove that the law is incorrect. By contrast, behavior contrary to a legal law does not nullify the law or its validity.¹⁰

We should also note here that legal law differs in essence from moral law, as discussed further in appendix 5. Formally, the difference lies in the fact that in the case of moral law there is no command. But that formal fact reflects a principled difference between these two categories. The legal category constitutes a basic framework required of everyone, whereas moral law is not conceived as a binding norm, at least not in a sense that allows punitive sanctions to be imposed.¹¹ If we want to include some moral rule among the basic obligations imposed on every citizen, meaning that we wish to impose sanctions on one who violates it, we must legislate it as law. It is not enough that everyone understands that there is such a moral principle. Because of these differences, legal norms are treated as a distinct category. Jurists say that the legal norm binds because of its legal validity and not for any other reason.¹²

All this is true according to the positivist conception. According to the approach known as natural law, the two systems of law have very similar significance, and the difference between them, if there is any at all, is merely one of degree and strength: very basic moral laws will be included in the legal system. On this point, though not necessarily with regard to positivism as a whole, there is agreement among most contemporary jurists. Legal thought today tends more toward positivism, aside from cases of extreme immorality. We will discuss this below.

Relations of Authorization

The Austrian legal thinker Kelsen, one of the fathers of legal positivism, conceived the world of law, like every positivist thinker, as a system of norms connected by what he called “relations of authorization,” that is, relations between an authorizing norm and an authorized norm.¹³ This is essentially the logic of the legal system, meaning the book of laws, as distinct from the entire legal system. At the top of the whole pyramid stands a fundamental rule, “the master rule,” in Dworkin’s terminology, which is of a different character from all the other legal norms. From this rule the entire pyramid of the normative system is built and derived. In Kelsen’s thought this is the “basic norm,” and in Hart’s it is the “rule of recognition.” We will not enter here into the differences between them. The structure is built as a deductive logical system of relations among the different norms: from the parent norm to the norms lower than it in the hierarchy, and so on.

Kelsen divides relations of authorization between norms into two main types:[^311]

Dynamic relations of authorization. These are not based on a substantive-logical relation between norms, but on institutional relations of delegated authority. The validity of the norm is not proved by pointing to another norm from which it is derived or inferred, but by pointing to another norm, itself valid and duly authorized, that authorized the procedure for creating the authorized norm. For example, there may be a general norm providing that the minister of the interior who establishes a local council shall determine its functions, powers, and obligations. This norm authorizes the specific norm that takes the form of a ministerial order laying down regulations concerning street cleanliness. This is dynamic in essence, because it does not determine the authorized content but only the possibility of creating it. The substantive question, namely which norm to create, is entrusted to the authorized authority. Let us note that some regard inheritance law, that is, a person’s right to bequeath his property, as a kind of dynamic authorization relation, because it authorizes the testator to determine the legal status of his property after death. Such a relation of authorization is what we called above the extension of validity, that is, the delegation of powers by the bearer of authority. The dynamic character of this relation means that it does not concern content. There is an empty variable here, which the authorized body may fill as it wishes.
Static relations of authorization. Such relations are based on a substantive-logical relation between the authorizing norm and the authorized norm. The relation between them is one of deduction and logical derivation. For example, there may be a general norm that one may not infringe another person’s private property and rights to use it as he wishes. This norm authorizes the specific norm that theft is forbidden. These relations are static because, unlike the previous case, here the authorizing norm also determines the authorized content. It is already fixed within the authorizing norm and is not left to anyone’s choice. This is an expansion very similar to what we called the expansion of content, except that it speaks only of deduction, and therefore there is in fact no real expansion here.

These two kinds of relation also define two kinds of systems of norms, according to the character of the authorization relations prevailing in them. We will not deal with that here.

One can immediately see that this division is exactly equivalent to the distinction we made between Root 1 and Root 2 in Maimonides. Root 1 deals with a dynamic relation of authorization, namely particularization, whereas Root 2 deals with static relations of authorization, that is, interpretation by way of analogy, or branching. In the previous chapter we already considered the relation between civil systems and the halakhic system in these two contexts. Here we encounter the very same distinction from a somewhat different angle: Root 1 is dynamic, whereas Root 2 is static.

From a straightforward look at what we covered in the first two units, it is hard to accept this division. To understand this, we must first discuss a very important difference between Kelsen’s definitions and our own. In Kelsen’s definition of a static authorization relation, the derivation of one norm from another is by deduction, that is, by logical inference. By contrast, as we saw in the second unit, the “static” relations of authorization between verses and the laws derived from them through methods of derash are analogical rather than deductive. A deductive authorization relation is not included at all in the discussion of the second root, since it yields an ordinary biblical law. It uncovers what is already in the verse, that is, in the law, rather than expanding it.

We explained this phenomenon by saying that an authorization relation of a deductive character simply uncovers what is already present in the authorizing norm. It is not really an authorization relation at all, because once we expose the derived law, it becomes clear that it is part of the source law. There are not two norms standing in relation to one another, but a general norm and a partial norm that is one of its own limbs. Thus, in ordinary plain-sense interpretation, and likewise in deductive derivation generally, we do not need the concept of relations of authorization at all, because the law produced by such a process is the very law already present in the text.

Even with respect to the dynamic relation of authorization, the picture Kelsen draws is not identical to what we saw in Maimonides. Kelsen speaks about the particularization of validity, that is, delegation of authority, which transfers to the secondary legislation the force of the primary legislation. By contrast, rabbinic laws are not particularizations of “do not deviate,” except where there is an intention of rebellion. They branch out from it. The verse reveals to us indirectly that rabbinic law has validity as to its content, and directly that the Sages have authority to legislate it. Kelsen’s conception fits the simplistic interpretation of Maimonides. According to that reading, the prohibition of “do not deviate” functions only with respect to the lawmaking persons and not with respect to the norms themselves.

With respect to laws derived by rabbinic interpretation as well, the prohibition of “do not deviate” authorizes the analogical derivation of the authorized Sages and gives it binding legal force, and therefore one who disagrees with them is not permitted to act otherwise. The norms themselves do not draw their power from “do not deviate,” but from the fact that the analogical derivation is indeed correct, and therefore the laws created in this way are included in the Torah verse. From there they draw their validity.¹⁴ The prohibition of “do not deviate” merely instructs us to obey the persons who interpret the verses in that way. By contrast, in the first root, which deals with a dynamic relation of authorization, the prohibition of “do not deviate” there too authorizes the persons who institute ordinances and decrees, and indirectly, through analysis of the concept of rebellion, grants force to the norms as well. But in that context there is no Torah source at all for the content of the norms themselves, that is, they have no static relation of authorization. They belong to a different normative sphere altogether, namely rabbinic law.

As noted, in the halakhic world, at least according to Maimonides, we distinguish between deductive interpretation, which uncovers what is already present in the verses, that is, in the authorizing norms themselves, and analogical or inductive interpretation, which expands what is present in the verses. Analogical relations of authorization stand in between. They are neither wholly dynamic nor wholly static. This is the root of the unease mentioned above, which is based on the difference between Kelsen’s definitions and the distinctions we made between the two roots.

If so, a substantive relation of authorization of an analogical character is not truly static. Its product is not determined in a deterministic way from the authorizing norm, that is, the verse, and a substantial part is contributed by the thoughts and values of the authorized interpreter. Therefore this product contains a significant dynamic element.

Does there exist such an analogical relation of authorization in civil systems as well, namely a substantive relation of authorization that is partly dynamic and partly static? Seemingly, yes. We saw that the courts do not deal only in deductions, but certainly make use of analogies and inductions as well. The question is what justification jurisprudence gives for such inferences.

On Legal Positivism and What Lies Beyond It

Jurisprudence distinguishes between the approach of natural law and legal positivism. Many legal norms stand in relation to, or even overlap with, moral norms or with some kind of natural lawfulness, where “natural” means external to the legal sphere. For example, morality is a primary substantive source for the system of legal norms. Is the morality of a norm a condition of its legal validity? Is there any relation at all between the sources of a legal norm’s content and its validity? Can one test a norm belonging to the legal system against some law of nature and say that it is correct or incorrect?

Seemingly not. As we saw above, at least according to the prevalent approach, the validity of a legal norm derives from the fact that it is such, meaning that it was enacted through proper procedure, and not from any other, extra-legal source. The legal prohibition against murder is not connected to the moral prohibition against murder, but to the fact that the legislative institution prohibited it. It was indeed influenced by the moral principle, but the legal validity of the prohibition derives solely from the legislative act. However, as already mentioned, the school of natural law disagrees. It sees the morality of the norm as a condition of its legal validity. According to this approach, the distinction between legal and moral validity becomes very blurred.

As already noted, the positivist school disconnects the question of legal validity from the question of morality. Positivists make a sharp distinction between the question whether the law is valid and the question whether it is moral, and perhaps even the question whether the law should be obeyed. In their view, there may be a valid law and yet no obligation to obey it, or at least there may be legitimacy in disobeying it. Everything depends on the formulations of different thinkers. Natural-law jurists tend to blur the distinction between these questions.

In another formulation, one can say that according to positivism there is no relation between the content of the law and its validity. Validity depends only on the sources and procedures of legislation, not on any comparison to some external source, moral or otherwise. There is no meaning to the claim that some law is correct or incorrect. We do not compare a law to any external standard, but examine it only according to the procedure of its acceptance: was it properly enacted or not? At this point one can easily understand why positivism regards dynamic relations of authorization as the core of the legal normative system. Everything depends on whether the body that enacted the law was authorized to do so. The content of the law, that is, its relation to other principles, is unimportant.

In yet another formulation, one may say that positivism distinguishes between what is and what ought to be, whereas natural law does not tend to do so. According to natural law, the law is found in conformity with some external lawfulness, moral or otherwise. Therefore it is possible to examine the law according to standards of fit to that lawfulness, that is, to what ought to be, and if there is a substantive mismatch, then even if it was properly enacted it is considered a null law. It is commonly said that according to advocates of natural law, law is subject not only to the categories of good and bad, or legal and illegal, but also to those of truth and falsehood.¹⁵

The main philosophical criticism of the natural-law approach rests on the fact that it draws evaluative conclusions from factual data. Natural lawfulness is a fact, and is examined in terms of truth and falsehood. But facts do not create norms, which are examined in terms of good and bad. The normative dimension of law cannot be merely the product of some natural fact, and therefore there must stand behind it a process of legislation and normative determination. Advocates of natural law argue that there are norms that are themselves facts, and that one discovers them through a certain kind of “observation.” We “see” that some act is evil, and this is an empirical fact. See on this appendix 5 and the next gate.¹⁶

Positivism grew against the background of the optimism of the Enlightenment, which trusted in the human spirit and human reason, and in their ability to reach nearly unequivocal conclusions in almost every area on the basis of reason alone. The human being, as a rational and thinking creature, can reach a clear conclusion regarding any question through necessary rational considerations. Natural law, by contrast, at least in its ancient forms, places God, and not man, at the center of the stage. Its prominent representative in legal literature is Thomas Aquinas, the important Christian philosopher and theologian of the thirteenth century. Positivism, at least in its contemporary form, is a newer approach, its banner borne mainly by twentieth-century thinkers, that is, the positivist century.

Thus positivism places man at the center, whereas natural law places God, or some objective authoritative factor, at the center, and His creations—the truths, both normative and evaluative—are the sources from which we draw laws.

In a formulation that does not refer to the sources of law, one may say that the dispute between these two approaches parallels the broader philosophical dispute between empiricism and rationalism. Natural law advocates a kind of legal empiricism, that is, the view that “observation” of some lawfulness in nature yields the laws. Positivism, by contrast, advocates rationalism, that is, the formation of laws on a normative-human, or social, plane that is rational-scientific in character and detached from any observational element. There is here something like a division between the conception of adjudication as legislation, meaning positivism, and its conception as observation and interpretation, meaning natural law. We will deal with these analogies in the next gate.

At first glance the distinction between positivism and natural law is sharp and polar, but it is important to note that in practice the picture is not so dichotomous. In situations of extreme immorality in a norm or in a legal system as a whole, many positivists too will say that the law lacks validity, and certainly that there is no duty to obey it. Some will anchor such claims in some universal framework, perhaps in international law, or even independently of it, which cancels the law’s validity. These are all formal solutions whose purpose is to anchor the same conclusion: the validity of law is not completely independent of its morality.

Let us now summarize. The positivist examines the validity of law through the question of its sources—legislation, precedent, custom, and the like—which have been recognized in the political-legal system as legitimate procedures for creating legal norms. The natural-law jurist, by contrast, examines it through the question of the character and content of the law, for example, its morality. In the terminology of relations of authorization, we may say that the positivist emphasizes dynamic relations of authorization—that is, whether the institution that created the law was authorized, meaning whether authority was properly delegated to it—whereas the natural-law jurist emphasizes static relations of authorization, that is, relations among norms and their justification as such.

This is not the whole picture, at least with respect to positivism. It is clear that the positivist must also examine the question of the substantive relation between the norm and the legal system. Interpretation is a legitimate tool in the positivist world as well. By contrast, an extreme, hypothetical natural-law jurist would not need to examine dynamic relations of authorization at all, but only fit to the relevant external standards, morality and the like. Therefore the picture sketched here regarding him ought to be more complete.

Interpretation: Analytic and Synthetic Tools

At the end of the previous section we saw that both kinds of jurists must examine static relations of authorization, that is, substantive relations between norms. This is an expression of the process called interpretation. The legal interpreter, a judge or someone else, examines whether norm B, which he is considering, can be derived from norm A, which already belongs to the legal body—legislation, precedent, custom, and the like. He also examines each norm to see what specific legal consequences are derived from it.

Sometimes the goal of interpretation is to understand a relation among existing norms, or to add a norm to the legal system. At other times the goal of interpretation is the concretization of the law, in Zussman’s term,¹⁷ that is, extracting a ruling in the concrete case before us, which may indeed become a precedent, but in itself does not join the legislative system as such.

Natural law disagrees with positivism on a philosophical and theoretical question, that is, on legal epistemology: how the judge comes to know his legal conclusions. Is this observation of natural law, or only study of enacted law? But is there also a difference between them in interpretive approach? Do their interpretations themselves look different? Usually there is a difference in interpretation as well. The positivist tends to use deductive tools, whereas the natural-law jurist will also use non-deductive interpretive tools.

For what follows, let us define the terms analytic and synthetic.¹⁸ Analytic tools are logical-deductive tools that uncover what is contained in the premises. The analytic argument is necessary because its conclusion is contained in the premises. It tells us nothing new beyond what we already knew when we posited those premises. See on this the second unit, in the fourth gate. Synthetic tools, by contrast, expand our circle of knowledge beyond what is contained in the premises themselves.

It is important to understand that this distinction has two opposite meanings. On the one hand, synthetic tools are more powerful, because they teach us things that were not known when we posited those premises. Analytic tools only expose what is already contained in the premises. But this very property is also the weakness of synthetic tools, because they are not necessary, and doubt always accompanies them. Analytic tools yield certain conclusions, since they add nothing. Synthetic tools add information, and therefore always involve some measure of speculation.

As we saw above, Kelsen’s definition, and Kelsen was a clear positivist, is that static relations of authorization are based on deductive derivation. Deductiveness is analyticity. A deductive inference tells us nothing beyond what is already contained in the premises, and therefore it is logically certain. Why does the positivist recognize only deductive-analytic tools as legitimate? The reason is very simple. We saw that in the positivist’s eyes the law is only what was enacted through an agreed and authorized process, and nothing more. Anything beyond that does not bind and does not belong to the legal system. Hence only deductive inference can be acceptable to him, because only it uncovers what is already in the law itself. An inductive or analogical inference adds information beyond the enacted law, and therefore it does not bind. The judge has no authority to legislate. His role is at most to uncover what is already in the enacted law and apply it. Hence the judge may use only analytic tools.

We saw in the second unit that according to Maimonides there is a distinction between analytic, that is, deductive, derivation, which is called peshat, and synthetic derivation, analogical or inductive, which is usually associated with derash. Both kinds of interpretation appear in Halakha, and this is agreed by both Nahmanides and Maimonides. Their dispute concerns the halakhic status of the products of these two interpretations. Nahmanides claims that both have the same halakhic status, namely biblical, while Maimonides holds that deduction yields biblical laws and analogy yields rabbinic laws.

Is there legitimacy in civil law for the use of synthetic tools? As noted, extreme positivists tend to think not. They understand the relations among norms as based on rigid deduction, and therefore there is not much room for static interpretation, while the main concern is with dynamic relations of authorization. The positivist assumption, and this also appears in general philosophy, as discussed in the second unit of the first book, is that the legal system is a rigid axiomatic system, and that there is one correct answer to every question, an answer that can be extracted and determined by deductive logical tools. According to the positivists, the legal system contains no gaps or degrees of freedom, and therefore everything is based on relations of delegated authority and deductive relations among norms. What the legal interpreter does is derive norms from the law, nothing more. Any other inference is in fact legislation, and that is not within the interpreter’s authority.

Natural-law jurists, by contrast, tend to see the system as more open, and therefore in their view there is room for moral discretion, which usually is not specifically deductive in character. Moreover, moral laws are not set by the legislator but are fixed and standing, and therefore the interpreter routinely engages in legislation as well, that is, in discovering and applying moral laws. He has no reason to cling only to enacted law, since he must rely no less on natural law. It therefore seems that their interpretation too will be more flexible and of a different character from that of the positivists.

There is another difference between natural-law jurists and positivists. Natural-law jurists are prepared to recognize first principles as valid in an immediate way that does not require justification. We saw a fine example of this in our proposal for explaining Nahmanides in the first unit, where we grounded the obligation to obey rabbinic ordinances and decrees on the duty to fulfill commitments, a duty prior to command and not conditioned on it. We saw there that obedience to command itself is probably based on that duty. Many of them ground such principles in some divine source. Positivists, by contrast, who place man and his reason at the center of the stage, naturally regard human intuition with suspicion, and therefore they ground everything in a rigid system of formal principles and rules of deductive derivation. There is no law that is right or wrong, only a law that was properly enacted or improperly enacted.

Natural-law jurists examine the validity of laws by substantive tests and not by procedural ones. Their assumption is that moral rules, and substantive rules generally, are self-evident and do not require justification, nor even a deliberate act of legislation, except perhaps by God who created them together with the world itself.

From this follows also the difference we saw above between these positions with respect to interpretation. Natural-law jurists treat first principles as self-evident in interpretation as well. Expansive interpretation may be accepted by them as valid, that is, as disclosing the intention of the law, just like deductive interpretation. Positivists, by contrast, accept as valid only deductive derivation, and therefore in interpretation as well they are unwilling to adopt first principles, but only deductive processes. This is the connection between one’s view of the source and character of law and one’s view of the modes of its interpretation. We encounter here the analytic-synthetic dispute as it was presented in the earlier books of the quartet. We will see this dispute in a broader perspective in the next gate.

Enthymematic Interpretation

Despite everything said so far, it is difficult to believe that positivists do not understand that many times their own interpretation does not reflect a strictly deductive process. It is hard to find even a single judgment in which the result constitutes a rigidly logical interpretation of the law in the deductive sense. Discretion is always involved in the process, and often it is influenced by the judge’s own views, however positivist he may be. It is true that at times positivists tend to deceive themselves into thinking that every process they undertake is nothing but deduction, but any sensible person sees that this is an illusion.¹⁹

As noted, it seems that even positivists recognize that the explicit modes of interpretation are not analytic. But many of them maintain that they are everyday-language formulations of interpretation that is entirely analytic. Sometimes a deductive consideration can be formulated in language that is not entirely precise, and yet it expresses a full deductive consideration. In logic such a formulation is called an enthymeme.²⁰ In the view of the positivists, a valid interpretive consideration can always be translated into proper deductive reasoning by filling in the missing gaps in the everyday formulation.²¹ The logical validity of the interpretive enthymeme derives from its full logical structure. The difference between that and the everyday formulation is only rhetorical, since everyday language is an imprecise and insufficiently rigorous mode of expression, not logical. Hence, in the positivist view, when we examine the validity of such an inference we must complete its logical structure so that all components of the argument are explicit, and only then determine whether it is a deduction and therefore a valid inference.

Two Planes of Analytic-Synthetic Discussion

At first glance, one can propose a deeper meaning for positivism, both legal and general. One can propose a positivist schema that is not so naive and dogmatic if we first distinguish between two levels of discussion. A parallel distinction was made in the second unit in the discussion of the dispute between Maimonides and Nahmanides over the second root.

One may ask the question about the analyticity and syntheticity of relations of authorization on two different levels:

What are the relations between the legal norms themselves? Are they analytic, that is, necessary, or synthetic, that is, contingent?
By what routes do we arrive at the norms derived from the norms already known to us? Are those routes analytic, meaning deductive, or synthetic, meaning analogy and induction?

One can imagine a situation in which we arrive at norm A, which is derived from another norm B, by analogy or induction, and yet the relation between those two norms is a deductive and necessary one. Let us bring an example from the natural sciences, from the relation between concepts and theories and phenomena. One may think that the property of being attracted to another mass is inherent in the very fact that object A has mass. Yet our way of reaching this property is through empirical examination and inductive generalization. From several cases that we examine we arrive at the generalization that there is a general law according to which every mass attracts its counterpart. From this one can derive the conclusion that mass B too attracts mass A. Thus the built-in property of mutual attraction between any two masses, although it may follow from the very definition of the concept of mass, is learned by the researcher inductively. After reaching that conclusion inductively, he asks himself the first-level question: what is the real nature of the relation I have found? Is it a necessary, deductive relation, or is it itself analogical in essence, that is, contingent, not necessary and not following from the definition itself?

Another example, already brought in the first book and to be discussed further below, is the philosopher Saul Kripke’s claim concerning analytic a posteriori propositions. His claim is that there are analytic propositions, that is, logically valid ones, that we learn from experience. For example, the law that two plus two equals four may be learned through examples, that is, by induction. Yet once we arrive at it, it is clear to us that it is necessarily valid, as though a deduction were involved. The induction is only the way of arriving at the conclusion, but the conclusion itself follows necessarily from the premises, or from the concepts involved in it, in our example the numbers two and four, the operation of addition, and the relation of equality.

This distinction can be defined in legal contexts as well. A judge may derive the obligation to permit publication of certain material from the evaluative norm of the public’s right to know, or from the norm of freedom of the press, by synthetic means of analogy and induction, and by comparison to other legal inferences and to other relations between similar norms. After the derivation, one may think that the instruction to permit publication of the material in question is a necessary consequence of the law. It is contained within it. In the terminology of the first unit, it is a particularization of it and not merely something branching out from it.

A positivist of this type generally agrees that the legal interpreter operates also, and perhaps chiefly, by synthetic means, meaning by analogy or induction. But his conviction is that he thereby uncovers the necessary, essentially deductive, relation between the authorizing norm and the authorized norm, or the specific practical directive. Therefore the result of his interpretation was already contained in the law itself, and therefore this result is indeed legally binding.

In the second unit we explained the dispute between Maimonides and Nahmanides over the second root in a similar way.²² Maimonides explains that laws derived by rabbinic interpretation branch out from Torah verses and do not simply unfold from them. Nahmanides was certainly aware of the analogical character of interpretive methods, yet he still held that the result of the midrashic analogy constitutes disclosure of a law that is already present in the Torah verses. The analytic relation between the law and the verse exists on the essential plane, even though the method used to uncover that relation is synthetic.

Maimonides, unlike Nahmanides, held that even the substantive relation itself is not deductive. In other words, the law learned from the exposition is not present in the Torah verses at all. Not only was the method used to uncover it synthetic, but the very relation between the verse and the law derived from it is itself non-necessary and non-deductive.

According to this proposal, the positivist jurist uses synthetic interpretation of law exactly as does the natural-law interpreter. The main difference between them lies not in the question of methods, though differences of that kind do exist, but more in the way they understand the laws they discover through those methods. Thus the issue of relations of authorization can be applied also to the relations among the norms themselves and not only to the methods for discovering those relations.

Examples: Literal and Purposive Positivism

Every book on jurisprudence describes various interpretive methods that help the interpreter extract the meanings implicit in the law and infer conclusions from them. There are different approaches to these methods, but usually there is no philosophical discussion there of the question of their validity. The disputes between advocates of different approaches concern mainly legal policy and conceptions of the legal system, not the question of the faithfulness of the interpretive tools themselves.

Interpretive techniques are many and varied, and they have a long history.²³ Perelman describes a three-stage historical process beginning in the nineteenth century, when literal-dictionary interpretation ruled the day, as described in chapter 1 there. This technique was widespread primarily in the nineteenth century, and its dominance waned at the end of that century. In the next stage, with the start of the twentieth century, functional interpretation arose, for example through the goals of the law and its sociological causes, as described in chapter 2 there. That approach was dominant until the middle of the twentieth century. At the end of the process, from the middle of the twentieth century onward, interpretive approaches began to appear that relied on broader and more flexible principles, as described there in chapter 3.

As Perelman explains, the first two periods were different kinds of legal positivism, whereas the last constitutes a kind of mediating position, more flexible and complex, between the two poles of positivism and natural law. Today, approaches are common that use all of these techniques in various ways, with differing emphases and order. For illustration, let us look at a few examples of literal or purposive interpretations of law:

Perelman, p. 53. Section 242 of the German criminal code defines theft as follows: “The secret taking of a movable object belonging to another with the intention of making it, contrary to law, the property of the taker.” The Supreme Court of Imperial Germany twice refused to regard the theft of electricity as an offense covered by section 242, since electricity is not an “object.” Consequently, the German parliament had to enact a new section, 248, which turned that act into punishable theft. But since the new section clarified that this was theft by means of a current conductor, the Supreme Court of Imperial Germany again refused to apply that section to a different situation, such as inserting a counterfeit token into an automatic machine. For that purpose, parliament enacted a third section, 265 of the criminal code, concerning unlawful use of automatic devices. By contrast, the Supreme Court of the Netherlands applied to the theft of electricity the section of the Dutch criminal code dealing with taking property.

Let us note that today there are similar debates over interpretations that try to derive copyright in an abstract work from rights in a material object.²⁴

The positivist will tend toward legal formalism, and therefore he will be the one who rejects the extension to theft of current, since it cannot be deduced from the language of the law. This is literal positivism. But there will also be positivists who adopt this extension and see in it an interpretive deduction. This is functional positivism. In our terms, this is an expansion that reveals what is implicit.

Perelman, p. 35. There is a sign in a train station informing passengers that it is forbidden to enter the platforms accompanied by a dog. May the station supervisor permit entry to a passenger leading a tame bear on a leash? The question is whether to adhere to the language of the law or to its content and spirit. Again, the two possibilities mentioned above arise.
Perelman, p. 50. From a purely linguistic standpoint, together with the formal-analytic a fortiori inference, if there is permission to buy three bottles of liquor from a retailer, then it is obvious that one may also buy one bottle. At least at the linguistic level, this seems to be a wholly deductive consideration. Yet the Vandervelde Act of 1919 permitted the sale of alcoholic beverages in Belgium only on condition that at least two liters be sold. The reason was that the law sought to protect the worker’s family from the squandering of the average weekly wage on strong drink, since in those days the price of two liters of liquor was higher than the average weekly salary. Here the purposive interpretation sounds much more reasonable as a way of reaching the law’s true meaning. It is precisely this interpretation that is the more important tool, rather than the literal one.

In the approaches common today, see Perelman in chapter 3, and below in the discussion of Dworkin, the primary interpretive layer uses techniques that rely on the language of the law at the literal-dictionary level. Afterward, if we do not reach the desired result, one may also rely on the purposes and aims of the legislation as reflected in the language of the law, or even in the context in which it was accepted, in parliamentary discussions before enactment, or by examining the defect that led to its enactment, what legal interpretation calls the “mischief rule,” and the like.

Extreme positivism, such as that of Kelsen, does not accept legal interpretation based on the intention of the legislator. In his view the law is a pure concept standing on its own. It is not to be linked to any fact external to it, whether from morality or sociology, or even the legislator’s intentions and aims. According to Kelsen, law is a science, and one must treat it as an axiomatic system with a pure logical structure. Since, in his view, legislative aims are not relevant to the law, they also cannot serve to interpret it. But more flexible positivists are prepared to adopt functional interpretive techniques through the aims of the legislator and the like.

Modes of Interpretation: Judicial Discretion and “Judicial Legislation”

Through the whole array of these methods we try to arrive at the correct interpretation of the law. If these methods fail, we also have recourse to analogy, which allows the interpreter or judge to transfer conclusions by way of analogy from one context to another. The difference between these two procedures is very similar to the relation between peshat and derash. Plain-sense interpretation parallels a kind of interpretation that reveals the legislator’s intention. Derash perhaps attributes to the legislator intentions that it would be fitting for him to have, similar to analogy. Yet it may still be seen as a kind of disclosure.

Up to this point we have dealt with ordinary interpretation, which reveals the content of the law by deductive tools. We have also dealt with interpretation by analogy, which can also yield products that constitute disclosure of what is contained in the law itself. Aharon Barak maintains that all the semantic methods of interpretation determine only the interpretive framework: whatever falls within them counts as a legitimate interpretation. But within this framework the interpreter is to determine, by means of the other tools, some of which we mentioned above, the meaning of the law according to its purposes and aims. The interpreter’s task should be to reveal the goals of the law and the policy it was intended to realize, not the policy that seems proper to the interpreter.

But even this is not the end of the road. Barak goes on to say that the judge, as interpreter, also possesses judicial discretion.²⁵ In such a case the judge acts as a kind of legislator, in several different ways. Barak enumerates three planes of judicial activity in which judicial discretion appears:

When there are several alternatives that are all legitimate within the interpretive framework. The judge acts as a secondary legislator, since the legislator delegated to him authority to interpret the law.
When there is a lacuna²⁶ in the legal system, whether in legislation or case law. In such a situation there is no norm in the legal system that applies to the case in question. The judge fills the gap and acts as a legislator.
When there is an internal contradiction within the legal system, or some other need to change it, for example when it leads to absurdity. In such cases the judge creates a new judicial norm and again acts as a legislator.

This is “judicial legislation,” which has aroused so much controversy in recent years. When a judge makes such decisions in a controversial way, sometimes against the opinion of the majority of the public, and probably of the majority of legislators as well, he is acting as a legislator. In such cases criticism arises, because he is engaging in an activity for which he was not authorized. There are cases in which judicial legislation creates norms according to the judge’s own values, and their connection to enacted law is very tenuous. In such situations, the public feels that he is really taking over a domain that is not his.

The Question of Justification

Up to this point we have seen three modes of action by the judge as interpreter:

Ordinary interpretation through various considerations, which tries to understand the law, or some judicial ruling, from within itself. This is akin to peshat.
Interpretation by way of analogy. This interpretation tries to grasp the character of the law by non-local means. This parallels revealing derash.
Judicial legislation, which is an expansion of the law in various situations. This parallels creative derash.

The question that arises here is what justifies a judge in expanding the law. With respect to analogies, one could adopt the doctrine of revealing analogy, according to which even when one uses synthetic interpretive tools, the result is a disclosure of a deeper layer that was latent in the law itself. But in the last cases, that is, when we are dealing with judicial legislation, it is clear on its face that the “interpretive” product is not a disclosure of what is in the law, not even indirectly, as in analogy. Here the judge consciously expands the existing law beyond the legislator’s determinations. How and why does the judge have authority to do so? Here we are no longer dealing with interpretation in any sense, but with indirect forms of legislation.

This difficulty exists under every meta-juridical position. But it becomes much sharper under the positivist position. Seemingly, according to the positivist there are no lacunae in the law at all.²⁷ In his view, where the law does not address something, there applies a “negative arrangement,” meaning a legal vacuum that instructs the court to do nothing, to leave the situation as it stands and let the parties resolve it themselves.

This can be understood better if we note that the very concept of a lacuna, at least in its positivist sense, contains an internal contradiction. On the one hand, the law says nothing about the situation in question. On the other hand, the law is supposed to say something about that very situation, for otherwise what does it mean to call it a lacuna? If the law does not speak about such a situation, then there is no legal obligation here, no right, no punishment, and no other legal norm.²⁸ But for the positivist there is no meaning to the claim that the law ought to say something, because, as we saw above, in his view the law is only what was actually said and not what ought to be said.

In any event, most positivists do admit the existence of lacunae. It is not clear how they ground the very treatment of a situation as a lacuna, since from their perspective it is an impossible state of affairs. Moreover, it is not clear how they ground the judge’s ability to act in such situations. Where there is no clear logical derivation of the conclusions from the existing law, that is, where there is a lacuna, then from the positivist point of view the judge is acting in a completely arbitrary way. This is what we earlier called judicial discretion.

In the next chapter we will discuss the justifications given for such judicial activity, and we will see that they usually rest on necessity and on considerations of legal stability, social order, and the like. There is no consideration of whether these expansions are true or correct, but only whether they are legitimate. The assumption is that they are not meant to be true, and there is no point in examining them on that plane.

To sharpen the point, let us say that according to an extreme natural-law jurist, and here we are referring to his conception of law and not necessarily to his theory of interpretation, one may say that there are no lacunae in law at all. After all, wherever there is a lacuna, he can decide according to external moral principles, regardless of whether they were enacted or not. But as we saw, according to natural-law theories every legal decision is of that kind. A true lacuna exists only when the objective-natural data say nothing about such a case. But in such a situation, the natural-law jurist too will say that a negative arrangement applies here: no relevant law applies to the situation, and none need apply.²⁹

Surprisingly, then, the lacuna is specifically a product of the positivist approach. According to natural law it may not really exist in any essential way. On the other hand, according to positivism there is no reasonable justification for a judge’s filling lacunae, except the justification of necessity. It will say that this is an arbitrary act, even if a needed one. We see that extreme formalism, and the demand for rigid deductive justification, are precisely what lead to nihilism and arbitrariness, emptying that totalizing justification of content.³⁰

The Logical Reason for Adopting a Positivist Position

To sum up, we see that positivism is a very rigid approach, and it seems not to stand the empirical test. It may perhaps constitute a desirable description, at least in the eyes of positivists, of the legal system, but in practice the system does not operate in purely positivist ways. Why, then, do many continue stubbornly to cling to the horns of the positivist altar? Why adopt such an implausible position?

The theoretical reason for adopting a positivist approach to law is clear. If indeed the judge or interpreter does not operate deductively, then he exceeds his authority. Legislation is the function of the legislative branch, and the judicial branch is supposed only to derive from the legislator’s words what is imposed upon it. Whenever a judge performs an act that depends on his own discretion, at least in the latter two modes, analogy or expansion, he is acting as a legislator. In such a situation it follows that he is actually acting outside his theoretical authority, for he was not chosen to perform a legislative function.

Modern Post-Positivist Theories of Law: Dworkin

Dworkin saw himself as a student of Hart, who is usually regarded as a positivist, but he criticizes him and tries to correct and refine his theory. Dworkin begins by defining positivism as an approach built on three central assumptions:

There is a basic norm from whose force all other norms are created or identified. This is the “master rule” mentioned above.
Legal duties exist only where there are legal rules.
Since positivism sees the legal system as a closed logical system, judicial discretion becomes unavoidable wherever the system contains no answer, that is, in the filling of lacunae, as discussed above.

Dworkin criticizes positivism on all three assumptions, and he does so on two planes: the plane of the law as it ought to be and the plane of the law as it actually operates.

On the plane of the law as it ought to be, Dworkin argues that the fact that positivism necessarily leads to lacunae leads to the absurdity that the judge is engaged in legislation and acts on extra-legal grounds, such as legislative aims, policy considerations, and the like. Such a state of affairs contradicts the democratic principle that the body that ought to engage in such matters is only a body elected for that purpose, namely parliament. This is essentially the problem we presented above.³²

Dworkin also argues that such actions amount to retroactive legislation, because the law is created only after the fact. If the court creates the law while sitting over the case, then that law did not exist beforehand, that is, when the events under discussion took place. A law of which the parties were unaware when they acted as they did is a problematic law.

Even on the plane of existing law, Dworkin argues, positivism fails to describe the way the concrete, real court actually operates. The core of the matter is that the court does not always operate solely on the basis of norms derived from some master rule. In addition, the real legal system does not interpret the law only through analytic-deductive tools. Dworkin further argues that the legal system includes, besides legal rules, what he calls principles and policy considerations.

Here we arrive at the alternative Dworkin proposes to positivism. It is based on the claim that the legal system contains, alongside legal rules, both principles and policy considerations. Principles are rules from the sphere of universal morality, such as justice, fairness, and equality, whereas policy considerations are rules directed by the social, economic, or political goals of the society in question.

All of these, unlike rules, are more flexible principles. Their application is not necessary and is not dictated by a rigid and binding principle. Their weight is entrusted to the judge’s decision, and one may even choose not to apply them, or to assign them varying weight according to the circumstances.

In practice, according to Dworkin, in situations of lacunae, or in interpreting general concepts, what Hart calls “open-textured concepts,” judicial discretion should also be based on principles,³³ and not only on rules. Thus, whereas according to positivism, in such situations the judge decides according to extra-legal principles that are subject to the arbitrariness of his own heart and personal views, according to Dworkin he acts according to principles, and these are an integral part of the legal system. In other words, this is authorized action and an application and interpretation of law, not the creation of a new law.

It should be noted that Dworkin is part of a process of return from the positivism of Austin, Kelsen, and Hart toward natural law. He finds principles that are not written in the law but stand behind it—what he calls a “coherent political theory” for the society and its legal system. He uncovers them by means of various interpretive and reflective tools. To be sure, this is not a full return to natural law, because Dworkin does not regard these principles, and certainly not policy considerations, as universal principles that can be uncovered by observing the world. These are principles that stand behind the concrete legal system with which we are dealing, and they are uncovered mainly through study of that system itself. They are not fruits of natural law, but the result of social development, which may perhaps be universal, but is not examined in terms of truth and falsehood. The techniques by which we uncover such principles are clearly synthetic. Once the principles are found, it is possible that Dworkin too would agree that the interpretation is full deduction, though at times in enthymematic formulation.

It is important to understand that although Dworkin retreats somewhat from positivism in the direction of natural law, there remains in him a strong positivist dimension as well. For example, in the case of the Nahmani couple’s fertilized eggs, the question under discussion was the right to motherhood. The law did not address such a right at all, and therefore there is a lacuna here. According to Hart, one would have to act according to judicial discretion based on extra-legal principles. According to Dworkin, the judge has no legitimacy to act outside the framework of law, which includes both principles and rules. In that sense he is a positivist. His whole construction is intended to show that the judge does not exceed the role of interpreter, unlike the natural-law approach. Therefore, in his view, if neither the rules nor the principles yield a clear result, then there is a negative arrangement here, meaning that the law says nothing on the subject, and each litigant may act as he sees fit. If the principles do yield some result, then the court must decide accordingly. The very fact that the court addresses questions such as this at all, that is, questions of rights not mentioned in the law, and usually does so in terms of legal rights, shows that positivism does not provide an empirically correct description of reality. Of course, if we can decide the case on the basis of the principles of the coherent political theory, then that decision certainly lies within the judge’s authority.

Summary: What Is the Relation Between Dworkin’s Approach and Positivism? The Move to Realism and a New Critique

At first glance it may seem that Dworkin does not offer a method essentially different from positivism. What they call “extra-legal discretion,” he will call “principles,” and incorporate into the legal system. In the end, there seems to be no principled difference between the two practices, because both must acknowledge a certain relativity and subjectivity in the interpretation of law. The principles guiding interpretation are not supposed to constitute interpretation in the usual sense, that is, to reveal the content of the existing law, at least in its narrow sense, but rather to proceed in the way that leads to the most just arrangement possible. If one also inserts principles of justice and morality into the law, then one may indeed describe the interpretation as revealing the content of the law. But this seems like a merely semantic trick.

Yet this is not the full picture. We can see this through another example brought by Dworkin himself, the well-known case of Riggs v. Palmer, in which the American court ruled that a grandson would not inherit from his grandfather if he himself had murdered him in order to do so. The ruling is based on the principle that a wrongdoer should not profit from his wrong, even though there is no hint of this either in American legislation or in precedent. Dworkin argues that according to Hart’s positivism, the court should have allowed the grandson to inherit, because that is what the formal law states. He, by contrast, argues that the principle that no wrongdoer should profit from his wrong is also de facto included in the law.

In principle, Hart too could have argued that this principle itself may be applied as an extra-legal rule, that is, as an exercise of discretion. As we saw, he too recognizes the validity of such principles where there is a lacuna in the law. But here the situation is one in which there is no lacuna, and the law, in its formal-positivist sense, gives the inheritance to the grandson. Therefore, according to the positivists, there is no room here for applying extra-legal principles. Beyond that, as we saw, according to the positivists the validity of law does not depend on its morality or any other external measure, but on whether the legislative process was proper, and here it certainly was. This case nicely illustrates the real difference that nevertheless remains between Dworkin’s approach and positivism, and why we are not dealing here with a merely semantic shift.³⁴

In the end, Dworkin creates a more reasonable theoretical balance between positivism and natural law, in a way that better fits court practice while also satisfying standards of conceptual-theoretical coherence. This process is described in more general terms by Perelman in the first part of his work, in the transition from chapters 1 and 2 to chapter 3. He shows there that this is part of a broad historical phenomenon marking a return of legal thought toward natural law, though in a softened, more flexible, and more complex way.

The New Approaches

Because of the difficulties that all the approaches described so far try to contend with, several newer approaches have recently arisen that deny the very attempt to create a coherent “science” of law. The realist approach, originating in the United States in the first half of the twentieth century, holds that law is part of the social sciences and proposes something like a legal behaviorism. Psychological behaviorism is the view that there is no point in investigating the depths of the soul and the hidden and dark forces operating within it, but only the manifest behaviors of human beings and their behavioral correlations, nothing more. We should stick to observable facts and not slide into speculation. That is exactly what legal realism proposes with regard to legal systems. One should study them as real phenomena and not build theoretical structures said to stand within them and at their base. Those who advocate this approach argue that in order to understand how the legal system operates, we need look only at how courts actually operate. The only place relevant for understanding, distinguishing, knowing, and defining the legal system is the court.

This is a highly problematic approach theoretically, because it offers no understanding and certainly no guidance for the legislator or the judge himself. He is sovereign to do whatever he wishes. We, as researchers, are supposed only to observe his behavior and infer conclusions from it, while he himself remains free. In many respects there is positivism here, because according to this approach what the legislator determines is legal truth. But on the other hand, the courts enjoy sovereignty and autonomy, and it is unclear why, or whether, they are supposed, in any clearly legal sense, to obey the law.³⁵ According to the realists, what the courts do is the law. They may consider policy considerations of social welfare and social order as they see fit.

The relation between these two autonomous authorities is determined by social structures, and perhaps even by power struggles, which already characterizes the critical approach to be described immediately. There is no legal theory capable of understanding, and certainly not of criticizing and guiding, the legal system as a whole and the relations of power within it. That is a matter of power struggles and politics, which belong to the social sciences. In practice, what we have here is a surrender of the effort to understand the rationale underlying legal systems, and more broadly this can be seen as part of the postmodern despair of criteria.

From here, the path is short to the next step in the process, namely the critical approach to law, which arose in the second half of the twentieth century. This is an approach postmodern in its essence, and in its more radical parts it denies the possibility of studying law as a distinct discipline, and perhaps even denies the existence of any universal truths or values, presenting everything as the result of interests and power struggles.

These last two approaches are part of much broader movements than mere factions within philosophy of law. Realism is part of American pragmatism, and the critical approach is part of postmodernism. Positivism and natural law also have broader philosophical contexts, and the process described here is a reflection of a broad historical development described in detail in the first book.

Chapter 3: Interpretation, Convention, Stability, and Discretion: Between Halakha and Law

Introduction

The entire description given in the previous chapters revolved around the question how and whether a judge can interpret the law, and whether he can and is authorized to expand it. The different approaches disagree on this question, and each offers a different way of solving it.

At first glance this seems to be a question of interpretation, and we would expect the debate to proceed on a hermeneutical basis, that is, on the basis of the fidelity of interpretation. The question should be: how can we best hit upon the intention of the law and the legislator? But in practice only a very small portion of the arguments raised in these debates concern the question of interpretive fidelity and the truth of the interpretive product, that is, its fit with the law’s true meaning. Most of the debates revolve around questions of legitimacy and authority, around possible consequences if a certain course is not taken, and the like.

An Implicit Consensus in Jurisprudence

This raises the question: what is interpretation? By what criteria does it operate? Are we looking for the intention of the legislator, or for the intention of the law itself?[^^334] Are we looking at all for the fidelity of some interpretation, or only for reasonable justification for judicial activity?

Let us sharpen the point. Throughout the discussion we saw that the arguments raised by legal theorists are rooted in the question of which judicial actions are justified. Should one take into account the intention of the legislator, or the intention of the law, or the aims of the law? Should one adhere only to the language and a literal interpretation, or also to its purposes?

What is the criterion around which these disagreements revolve? It is unlikely that everyone is seeking the same thing and only differing about the route, namely how to arrive at the true interpretation. If all of them were seeking the legislator’s intention, there would be no objection to trying to track the tendencies of legislators in debates before the law’s enactment. And why are there disputes over whether to consider the public climate, or only the language of the law itself? What are the sides of the dispute over whether to adhere to the law’s language or also to consider its purposes? Is this dispute really about which method will yield the truest result?

From the way the discussion is conducted, and from the different positions presented in it, it emerges that these disputes do not revolve around the question of which interpretive route will yield the best fit to some “correct” interpretation. The debate is over the very question of what a “correct” interpretation is. One thinks that a correct interpretation is only what emerges from the language of the law. Another thinks that the correct interpretation is what the legislator intended. A third argues that since there is no correct interpretation, the judge should take into account decisions that suit the judicial policy he regards as appropriate. In other words, he turns into a kind of legislator and is not looking for an interpretation of the law at all. Someone else argues that there is no correct interpretation at all, and that we should do what seems most just to us.

Because all these criteria do not even attempt to arrive at the “correct” interpretation, it is no wonder that in recent years the currents of realism and the critical approach have arisen. Their advocates, in a much more open, straightforward, and honest way, do not even try to discuss the question of the fidelity of legal interpretation. Such a parameter does not appear there at all. This phenomenon parallels the deconstructionist approach to literary and artistic interpretation generally, on which see the next gate.

In fact, only positivism proposes a direction that places the interpretive question at center stage. For it, every law is examined within itself and out of itself, and the interpreter seeks only what is already in the law itself. The interpretive product is assessed by its fit to the law and to its true meaning, not by side criteria. If in the other approaches the dominant criteria are the stability of the legal system and other external considerations, then in the positivist picture the only question is: what does the law say? From here arise the questions from which we began: what is a faithful interpretation? Is only deductive interpretation faithful, or perhaps analogical and inductive interpretation as well?

Those who hold the softer approaches also apparently agree that inductive interpretation is a kind of speculation. Therefore these legal theorists move over to criteria of stability of the legal system and policy considerations, and do not engage at all in the question of fit to the intention of the law or to the “correct interpretation.” In other words, both the hard-line thinkers who insist on sticking to the law and using only deductive interpretations, and the softer thinkers who are prepared to adopt non-deductive interpretations, agree implicitly that the interpreter cannot reach the intention of the law except by deductive means. Those who justify non-deductive means do so by appeal to foreign considerations, not considerations of interpretive fidelity, but various utilities and the like.

The Theory of Halakhic Interpretation

As we saw in the earlier parts, in Halakha the situation is different. Synthetic interpretation, meaning inductive and analogical interpretation, is a legitimate tool for arriving at the intentions of the Torah. According to Nahmanides, these tools reveal the Torah’s own meaning, somewhat like the complex model we proposed above for a more sophisticated positivism, according to which synthetic tools reveal necessary relations of inclusion. According to Maimonides, analogy and induction sometimes reveal and sometimes expand and create laws. But it is crucial to note that even in his view, a law derived by rabbinic interpretation is not an expansion intended to preserve stability, answer newly arising problems, or fit some external criterion. It too is to be assessed in terms of truth and falsehood, and in terms of conformity to the intention of the legislator, that is, the Giver of the Torah. True, the legislator, for His own reasons, chose not to command such a law explicitly, and from that its different halakhic status follows. But in the broad sense, interpretive expansions too are part of decoding the legislator’s intention. They are His desires, what He expects us to realize, though without commanding us to do so. This differs from secondary legislation, namely rabbinic ordinances and decrees, which create new laws and do not decode God’s will. As we saw in the second unit, laws derived by rabbinic interpretation are an deciphering of God’s will even though they are not matters of explicit command. In this they differ from ordinances and decrees.

In light of the picture we have presented so far, in the legal sphere, unlike the halakhic one, when the judge, that is, the interpreter, operates by deductive means, he reveals the intention of the law itself. But when he operates by synthetic means, analogy and induction, the assumption is that he is acting like one who issues new regulations and is not at all bound by the legislator’s intention. Therefore such a mode of activity is not legitimate at all for the positivist; but even advocates of other approaches do not regard it as a tool for revealing the meaning of the law, only as a legitimate tool for judicial use for side reasons, stability, social order, and the like. For this reason, within general law interpretation is not nearly as central a tool as we find in Halakha. There the more relevant criteria are stability and order, and less so questions of fidelity to the meaning of the law.³⁶

Halakha, by contrast, recognizes synthetic tools as tools of disclosure and not merely as tools legitimately available to the interpreter. Derash reveals something that the Torah conveys—true, not a content already inside it, but God’s will as expressed through it—and therefore the result is judged in terms of truth or falsehood: did God want this, or not? In the terminology of the earlier books, this is exactly the dispute between analyticity and syntheticity. The analytic approach treats synthetic tools, meaning analogy and induction, as speculation. Their conclusions are neither acceptable nor valid, and even if one uses them, one does so only for arbitrary reasons. These are not tools for reaching truth. The synthetic position, by contrast, holds that synthetic tools too have force, though not certainty. This is what we discover here in halakhic jurisprudence. In broad terms we may say that general jurisprudence tends toward analyticity, whereas halakhic jurisprudence tends toward syntheticity.

We will now bring two clear examples of such a conception, specifically from thinkers who speak in apparently “objectivist” ways: Perelman and Barak.

Example A: “Agreement” in Perelman’s Formulation

In this section we will discuss one solution, certainly a representative direction, that contemporary legal thought offers for the questions we have raised thus far. For this purpose we will discuss the proposal presented in the second part of Chaim Perelman’s Legal Logic, most of which is devoted to this very aspect of legal thought. We will briefly describe his proposal and its implications as he himself presents it, and then discuss whether there is indeed here a truly synthetic conception of legal logic.

Perelman’s book is composed of two parts. The first deals with describing the emergence of the newer approaches in jurisprudence. The second part of his book is devoted to a theoretical discussion of legal logic and to analysis of its relation to rhetoric in general, and legal rhetoric in particular. Already in the introduction he states that once legal thought reached the third period, it became clear to everyone that legal inference cannot be grounded solely in deductive rules of interpretation. Legal inference and legal decision are now examined on two different planes:

The legal test: grounding in enacted law.
The test of acceptability: conformity to principles of justice, reasonableness, and acceptability.

There is here a certain return toward natural law, which treated principles of justice and fairness as a kind of objective fact. It is therefore no longer possible to ignore questions about the meaning of evaluative considerations and of values generally. Do evaluative claims express subjective drives and feelings, or is there some sort of logic regarding such claims as well, with rational standards applicable to them?

According to the positivist approach, values are determined by feelings, by force, and perhaps even by violence. The argument for this claim is based on the assumption that there is no rational way to handle them. At this point the positivist joins hands with the postmodernist, as we shall discuss below. As Perelman writes, positivism does not recognize “practical reason,” that is, a kind of reason that pertains to practical and evaluative decisions. Rational cognition deals only with science and with sharp and clear facts. Positivism holds that choosing values and making behavioral decisions is not a rational act but an arbitrary one.³⁷

Perelman reports that after examining many texts that deal with arguments in ethics and aesthetics, he concluded that the way to address moral and aesthetic matters does not involve a special logic, but mainly rhetoric and methods of argument and persuasion, dialectic or topical reasoning. This is the method he recommends for a judge who wishes to decide matters of reasonableness and acceptability in arguments and decisions.

He concludes the introduction with the book’s central thesis, namely, that rational decision in value-laden fields is based not on proofs but on agreement. The goal of argument is to create agreement and not to prove something. The techniques for creating agreement in such ambiguous matters are called rhetoric. The value claim should not be assessed according to criteria of truth and proof, but according to the criterion of social agreement concerning it.

Perelman writes as follows at the end of the introduction to the second part:

Reliance on dialectical or rhetorical inferences, designed to create agreement on values and on their application where these are disputed, is necessary whenever there are no techniques accepted by all that can create such agreement.

Thus the importance of the concept of agreement becomes clear—a concept neglected by rationalist and positivist philosophical theories, which see the truth of a claim as the main thing and agreement as a mere surplus added after truth has been established by observation or logical proof. But the concept of agreement becomes central wherever methods of proof are lacking, or where methods of proof are insufficient, and above all when the subject of dispute is not the truth of a claim but the value of a decision, a choice, or an action, and whether they are regarded as just, fair, prudent, timely, honorable, or faithful to the law.

From there Perelman proceeds to analyze specific methods of argument and to classify various techniques of persuasion, legal and general. We will not enter into them here, for all of them are only elaborations and implementations of the thesis just cited.

The direction proposed by Perelman does not claim that there is truth with respect to evaluative claims. In that sense he accepts the positivist axiom. The empirical fact that it is difficult to create consensus around evaluative claims, and that they vary from society to society and from age to age, also serves him as proof that we are not dealing here with questions of truth and falsehood. In these respects this hardly seems to be a return to natural law. But Perelman proposes replacing the concept of truth with concepts such as agreement.

The question is what that agreement reflects. Is it not merely the result of rhetorical manipulation? Perelman himself argues in his book against the common conception of rhetoric as a branch of deception and demagoguery. In his view, rhetoric is a type of activity relevant precisely in those places and contexts where it is impossible to produce proofs and compel agreement intellectually. At first glance this seems to be objective discourse. But if in fact there is no truth or falsehood in these fields, then how is his claim different from the positivist claim that value judgments are nothing but feelings or the exercise of force? To be sure, the force here is subtler, since it is verbal coercion. But it is quite clear that even in his view we are not dealing with a process of arriving at truth, but with creating agreement by one technique or another. According to Perelman, technical skill in rhetorical tools is a kind of power that can lead to agreement where there is no truth.

At the beginning of chapter 1, Perelman defines the field of rhetoric as follows:

The aim of rhetoric is to study the methods of argument intended to induce people to adhere to the theses presented to them, or to strengthen their adherence to them.

The conclusion, then, is that Perelman remains on positivist ground. The change is mainly cosmetic, while the conceptual system remains in place. He simply gives up the desire to arrive at legal truth, and his notion of agreement is only a fig leaf covering that surrender. In the map he himself draws, between rationalism and positivism, agreement is not a compromise or a middle way, but another name for a positivist solution.

Perelman’s main claim is that rhetoric is a domain in which there is room for skill and rational action, and that is perfectly true. But on his view, the goal of this rational action is practical, not intellectual. The goal is to create a state of agreement in the direction to which I aspire, not to find what it is right and fitting to agree upon. Rhetorical tools do not differ in essence from tools used to build a house or manufacture a table. Rational action, talent, and skill are certainly required, but if truth is not being sought, then it is not rational action in the full sense. The decision that is ultimately created is based on social agreement, not on arriving at truth. The path to creating agreement requires skill and the exercise of reason and logic, but it is the path, not the result, that requires them.

Perelman’s goal, even if he does not say so explicitly, is agreement itself, not necessarily agreement in some correct direction. For if the goal were agreement on the “correct” conclusion, then there would be nothing novel in his words as against natural law.

Have we not, then, simply returned to the second age, the one he describes in chapter 2 of the first part, the age before Nazism, from which this legal thought is trying to flee? What if agreement is created among the citizens of Nazi Germany on actions of the kind practiced there? Does that seem reasonable? We began from the assumption that such actions are certainly unacceptable and indefensible. It is precisely because of this that the need arose for the new legal theory or approach. If so, it already seems clear at the starting point that there is an implicit assumption that some kind of universal evaluative truth exists. But if that is so, then agreement certainly cannot serve as a substitute for it independently of content.

True, truth in these areas is less unequivocal and less sharp, but there is a normative and evaluative framework that we must uncover. I do not mean to say that for every moral or legal question there is necessarily only one correct answer. I mean only that it is not true that there is no correct answer to any question. There is a correct framework, within which there is some breadth. Within that breadth there are degrees of freedom, and there is room there for the use of rhetorical tools to create agreement. Within that framework it may well be that agreement is not compelled toward one particular content in terms of truth and falsehood. But it is not correct to describe agreement as a substitute for interpretation.

To conclude, let us quote the continuation of the definition cited above from the beginning of chapter 1. Perelman notes there that the techniques meant to lead to agreement involve speech, and that physical acts such as violence or caressing should be excluded from rhetoric. At the same time he adds:

It would be difficult to exclude from rhetoric threat and promise, for these too use language and speech in order to obtain agreement.

He ends his remarks there with the words:

Rhetoric concerns agreement more than truth. Truths are impersonal, and the fact that people acknowledge or deny them does not alter their status. Agreement, however, is always the agreement of one mind or of many minds to whom the speech is addressed—in other words, the agreement of an audience.

This is the concluding chord of Perelman’s presentation of his renewed position. But, as we have seen, there is not much that is genuinely new in it. It is a more comfortable covering for the positivist thesis. For this reason we stated above that the solution Perelman offers only resembles a “third way,” because it remains within the world of the assumptions and concepts of the earlier stages. It merely changes the terminology, replacing arbitrary force with “agreement,” and “truth,” which does not exist, with something else. It parallels the first type of maturation we described above. It is a maturation that remains with the underlying assumptions of the thesis or antithesis, but certainly does not create a synthesis.

Example B: Legal Objectivism in the Formulation of Aharon Barak

Aharon Barak is one of the most prominent among legal thinkers who advocate legal objectivism. He speaks a great deal about the “science of law,” in Kelsen’s sense, and supports the objectivity of interpretive rules and the existence of a “true” interpretation in many cases, even though he is fully aware of the non-analytic character of these rules. It is therefore worth pausing briefly over his approach precisely in order to sharpen further the difference between it and the synthetic position.

In the introduction to his book Interpretation in Law, he writes:

The legal text does not speak “in itself.” It stands before the reader only after being interpreted by him, consciously or unconsciously… Indeed, according to the rules of interpretation, the legal meaning of a legal text is extracted from its range of linguistic meanings. There are different methods of interpretation for carrying out this “extraction.” The basic question is how to perform this extraction: according to the intention of the creator of the text, the subjective approach; according to the understanding of the reader, the objective approach; or according to a fusion of the two…

There is no “true” method of interpretation, that is, no interpretive method that gives the text the true meaning latent within it, because there is no pre-interpretive meaning to be found.

According to Barak, as he goes on to explain, the legal norm is the result of interpretation and not its object. We do not interpret legal norms but legal texts. Interpretation is the extraction of the binding norm from the legal text. In his view, the legal text has no normative meaning in itself, but only serves as a legitimate substrate from which norms may be extracted, unlike other texts. Norms are a product of interpretation and do not exist before it at all. Hence interpretive tools are assessed in terms of legitimacy and not fidelity. In that sense this is a kind of positivism, except that the authority lies with the interpreter rather than the legislator.

These formulations strongly recall the deconstructionist conception in hermeneutics, according to which the meaning of the text is created by the act of interpretation. It does not reveal meaning but creates it, on which see the next gate. In the first book we already noted that deconstruction is a product of analyticity.

From here also comes the root of the “judicial imperialism” that he advocates, according to which the judge plays an active and central role in legislation. In fact, one may say that according to Barak, only the judge is the legislator, while legislators merely create a text from which the judge is permitted to extract, or “pull out,” norms. See Barak, p. 44.³⁸ The legislator creates a text, and the interpreter creates a norm from it.

Barak indeed devotes much attention to the objectivity of the rules of interpretation, but not from a logical perspective. Rather, he does so because of the necessity that the legal system be effective. A system in which there are no firm rules, and therefore judge or citizen does whatever seems right in his own eyes, produces a farce of law. But what ought to be is no guarantee of what is. Who assures us that such objective interpretation really exists? Do we create it out of nothing, or is it the legislator who determines the meaning of the law?

Later in the book Barak writes, p. 93:

Indeed, rules of interpretation are vital to law. A text without rules for its interpretation becomes an instrument for the interpreter to use as he wishes. In place of the will of the creator of the text comes the will of the interpreter. The text loses its independent character. Legal science becomes an exercise in the psychology or sociology of the interpreter. Law becomes a caricature of itself. Whoever acknowledges the existence of law must acknowledge the existence of binding legal rules for interpreting the legal text.

He repeats these claims in many places in this book and in his other writings. At first glance there is here a fanatical objectivism, almost dogmatism. But closer inspection shows that the focus of Barak’s argument is need and necessity, not a logical-philosophical foundation. He himself, despite his strong tendency toward legal objectivism, acknowledges the flexibility and indeterminacy of legal rules. But because of the need for an effective legal system, there is no choice but to adopt a relatively rigid system of interpretive rules. Let us note that in most cases these interpretive rules are themselves the product of interpreters, not of the legislator. So in what sense are they supposed to be rigid? Why is one interpreter bound by other interpreters? If there is no legislator at the top of the pyramid, this objectivism is emptied of content.

In chapter 3, section 6, Barak discusses the relation between the body of the law and its soul. The body is the language that expresses the norm, and the soul is the norm hidden within the body. As mentioned above, according to Barak literal-linguistic interpretation is supposed to map the range of linguistic possibilities in which the text can be understood, and only then does one extract the norm hidden within it by using interpretive rules of a legal, not linguistic, character. Later in the chapter he discusses “objective” interpretation in its various forms, and apparently returns to syntheticity. But a closer reading of his words there yields a different picture. He writes on p. 125:

The interpreter thus seeks a legal meaning from among a range of linguistic meanings. This binding possibility—that is, the legally “correct” norm—is the fruit of interpretive activity. It is a creative normative activity. Indeed, the interpreter does not discover a “true” meaning latent in the text. The interpreter seeks a binding meaning, which he creates against the background of the interpretive rules accepted in his legal system. In this creativity the flexibility of the law and its ability to adapt itself to changing life are revealed. At the same time, it contains uncertainty and hence generates lack of certainty. Indeed, proper “extraction” of legal meaning from among a range of linguistic meanings should take this reality into account by balancing the need for security and stability against the need for flexibility and change.

Everything here is presented as the result of balancing needs—stability, flexibility, and change—while truth “will be absent.” The terminology that speaks so much about objectivity, and about the norm hidden in the language of the law, is only a cover for a view driven by needs and external considerations, not by the accuracy and fidelity of interpretation itself. The norm is not hidden there but created by interpretation. One can therefore see clearly that the true legislator is the judge, not parliament. Parliament creates texts, not norms. Those are not even hidden within them. The texts are canonical entities from which the interpreter carves out and creates the norm, as it were ex nihilo, on the basis of his own considerations, while taking account of certain external constraints, which in most cases he himself defines.

As we have already noted, in Halakha the situation is the opposite. The main question, if not the only one, is what is in the Torah, or what does the legislator want from us? The law is the Torah itself, and interpretation is done with respect to the norm in the text, not to the text itself. No halakhic interpreter experiences himself as a legislator, except in the case of rabbinic ordinances and decrees. It is clear to everyone that the Torah contains norms, as well as verses of another character. There are even linguistic indicators for this—”beware,” “lest,” and “do not” are expressions that indicate a norm. What we understand from the text and from the norms it contains is only a means, admittedly not a certain one, of reaching the Torah’s intention itself.³⁹

The Basis of the Difference Between the Interpretive Approach of Halakha and That of an Ordinary Legal System

Why has such a difference arisen between the systems? It seems that there are three main reasons for this:

A difference in the character of the systems. The halakhic system is based on the conception that the legislator, God, forgets nothing. The Torah is supposed to include everything that is needed, and Halakha need only quarry it out of it. A legal system dealing with a flesh-and-blood legislator obviously does not make such assumptions. Within Halakha, there is no reason to assume that we can complete the legislator’s work, except on the rabbinic plane, whose role is to cover the “holes” that arise because of changing reality, not because of any deficiency in the legislator. This is one reason that Halakha is more positivist, meaning that the halakhic interpreter assumes that everything is already in the law itself.

By contrast, as we already noted, Halakha is based on some ontology. Halakha only reflects it on the normative plane. The norm really is hidden in the Torah text prior to the act of interpretation, unlike the legal text. Therefore Halakha can be studied in much the same way as science. One observes “facts” and, through generalization and comparison, arrives at principles and general laws. Halakha naturally leads to an approach like natural law, which subjects norms to the tests of right and wrong. This is precisely a reason to adopt a natural-law-like approach within halakhic jurisprudence.

Beyond this, in an ordinary legal system, uncovering the legislator’s intention is impossible and usually not even well defined. Who is that legislator? The language of the law represents the wording of several members of the legislature at the time the law was enacted. Moreover, the law is often the product of negotiation and compromise among several sides with different desires. In such a case there is no single defined intention of the legislator. At most one can think of a hypothetical intention belonging to some fictive rational legislator.⁴⁰ This problem is solved if one focuses on revealing the intention of the law rather than the intention of the legislator. Aharon Barak says of this that he is engaged “only in analysis of the law, not in psychoanalysis of the legislator.” By contrast, in Halakha there is a clearly defined legislator, and we are supposed to try to understand his mind.

Trust in synthetic tools. Throughout the discussion we have seen that within the legal system there is an inbuilt distrust of synthetic interpretive tools. Deductive tools yield results that are already in the law itself, and therefore they are accepted interpretive tools. But vaguer tools are always viewed with suspicion. The judge is suspected of importing his own views into the interpretation of the law. Many prefer to do this openly and to allow the judge, in places considered lacunae, meaning cases for which no solution can be found in the law by deductive tools, to perform quasi-legislative procedures of expansion. But unlike midrashic expansion, this expansion is not connected at all to the legislator’s intention, and it is certainly not found in the law. It is an expansion whose legitimacy derives from system-wide considerations and not from quasi-interpretive considerations of the sort operative in halakhic midrash. It is judged not in terms of truth or falsehood but in terms of legitimacy.
The main difference lies in the aim, and therefore the nature, of the systems. Halakha is not designed to organize social life. It reflects normative truths, and therefore these are not subject to change. Considerations of stability and social order can enter it only through ordinances and decrees, but not on the plane of the core law itself.⁴¹ Halakha is a collection of normative truths, and therefore the way to reach it is through interpretation, by understanding what the divine truth is. Other considerations aimed at arranging life and achieving various utilities are not its concern.

The conclusion is that even if we treat Halakha as a legal system, there is in its character something of natural law and something of positivism, and on both planes it differs from ordinary law. The fact that at its base there is some ontology and metaphysics brings it closer to natural law in terms of its general jurisprudence. On the other hand, because it contains no essential lacunae, in terms of interpretation Halakha actually comes closer to positivism. On the plane of biblical law there is no room for legislation by the Sages. They can only try to interpret the intention of the Torah, that is, to engage in disclosure. The derashot that involve expansion also do not go beyond God’s will, but reveal intentions and desires of His regarding which He chose not to command us explicitly. This is expansive interpretation, meaning interpretation that uses synthetic tools, but in the end it does not add to the law; it reveals the legislator’s will. Real legislation occurs only on the rabbinic plane. As we saw, plain-sense interpretation in Halakha reveals what is in the Torah itself, namely that about which we are commanded. Halakhic midrash reveals God’s will, but one not found in the Torah, and therefore not something about which we are commanded. Ordinances and decrees are legislative acts.

Therefore the use of synthetic tools in Halakha cannot be justified by considerations such as stability and social order. If these tools do not help reveal the truth, that is, if they are not valid inferential tools, then there is no justification for using them in interpretation of the Torah.

Summary: What Is “Interpretation”?

The overall picture that emerges from this is that the main questions that trouble Halakha, such as the fidelity of interpretation, hardly trouble the general legal system, while the questions that trouble the ordinary legal system, such as systemic justification and questions of system stability, hardly trouble Halakha. In Halakha one seeks almost exclusively the correct interpretation.

The two systems understand the concept of interpretation differently. Halakha sees interpretation as a system of tools for revealing the divine will, in derash, and the divine command, in plain-sense interpretation. General law, by contrast, sees interpretation as a collection of tools to be used when the naked law provides no answer to the situation before us. The justification for these “interpretive” tools is generally not given in terms of fidelity and fit to the “true” meaning, but in terms of side considerations.

In the next chapter we will deepen this distinction and examine its roots.

Chapter 4: Analyticity and Syntheticity in Law, Halakha, and Philosophy

Introduction

In this chapter we will consider the relation between the picture described in the present gate and the picture described in the two previous units. We will see here that the perplexity in jurisprudence exactly parallels the perplexity described there concerning legislation and interpretation in Halakha. In both cases we are dealing with an analytic position, and the failures that accompany it stem from its skepticism regarding synthetic inferential tools.

Truth and Legal Stability

In every book that deals with legal theory, there is discussion of the relation between truth and stability. A legal system does not strive only for truth or justice, but also for legal stability. Take, for example, a case in which one person owes another a sum of money, and the creditor files suit to collect the debt only many years later, after the statute of limitations has already taken effect. From the standpoint of legal truth, there is no doubt that the borrower owes the lender that sum forever. But from the standpoint of the system’s interest in legal stability, the debt has become time-barred. Thus, the value of stability overrides the value of truth.

This can be presented as a clash of values: legal stability versus legal truth. But many writers add the argument that objective and complete truth can never be known, and therefore it is not always worth striving for it. Some go further and add that, for this reason, truth is not the goal of the legal system at all.⁴²

Analytic and Synthetic Reasoning in Law and Halakha (Jewish law)

The standard explanations for the failure of natural-law theory rely on the fact that morality is relative, and therefore it is difficult to produce clear proof that a given law is just or unjust. Every society has a moral law that naturally appears true, but this changes from society to society and from one period to another. One may think, for example, of the institution of slavery, which seemed self-evident and justified in societies that practiced it. Non-positivism, following David Hume, criticizes natural law precisely at this point: moral norms are not objective and universal, or at least they cannot be verified and defended in any sharp way. Hence they are unsuited to serve as the basis of a legal system.

At the root of this criticism stand two basic sources: a philosophical source and a jurisprudential source. From the standpoint of legal theory, it is difficult to adopt such a vague and non-objective system, since this undermines the stability and coherence of the legal order. The philosophical source concerns the very reliability and determinacy of natural norms. Beyond considerations of stability, how do we know that these are truly the correct norms? After all, norms cannot be perceived by the senses. As part of this criticism, Hume raised his naturalistic fallacy, according to which no normative or evaluative conclusions can be derived from facts. See Appendix E at the end of the book.

It should be noted that this criticism comes from the direction of non-positivism. Positivism itself criticizes natural law from the opposite direction: there is no need to deal with extra-legal aspects, because everything is already contained in the law. According to the positivist, deduction is a sufficient tool for extracting everything that is present in the law.

Thus, there emerges an almost wall-to-wall agreement that non-deductive tools are not sufficiently reliable for us to rely on them in interpreting the law. For this reason, some legal thinkers move jurisprudence in a positivist direction, using only analytic-deductive tools. For the very same reason, others—who recognize that not all interpretive tools are deductive in character, and that deductive tools alone are insufficient—move jurisprudence in the direction of social-political conventions. According to this approach, synthetic tools are indeed legitimate, but they are not tools for interpreting the law itself; rather, they are tools for extending and developing it in various ways.

For these reasons, the situation has arisen that we described above: jurisprudence scarcely deals with the reliability of interpretations. Deduction is reliable in a trivial sense, while synthetic tools do not even try to uncover a correct and true interpretation of the law; they are meant to extend the law for various aims and tendencies.

We now arrive at the heart of the argument. This dispute is very similar to those we described in the first two divisions, and it arises from the same foundations. There too we saw that, at the dichotomous stage, the assumption is that legal acts divide sharply into legislation and interpretation. Interpretation is the extraction of content hidden in the verses themselves, and anything that is not that is legislation. Hence the dichotomy concerning midrash (interpretive exposition): some see it as interpretation that yields laws of Torah status, while others see it as a new creation, in which case we are dealing with rabbinic laws, that is, products of legislation.

A similar picture appeared in the first division. At the dichotomous stage there were two possibilities for viewing rabbinic laws: either as legislation, in which case they have no connection at all to the verses of the Torah; or as a specification, though not an interpretation, of the command “do not turn aside,” in which case they have the status of Torah law. In both cases, our claim was that there exists an intermediate synthetic mechanism, which we called “branching,” and which is based on non-deductive inference. The claim is that such inference is admissible. Even if it is not deductive, its conclusions are valid, and they disclose something in the interpreted text. According to Nahmanides, they disclose its normative meaning; according to Maimonides, they disclose God’s will and the spirit of the verses. Thus, the perplexity regarding legislation and interpretation in halakha, as they appear in Maimonides’ first two principles, is very similar to the perplexity regarding interpretation and legislation in general jurisprudence. The basis of the perplexity is a dichotomous approach that sees deductive logic as the exclusive tool for disclosing truth. All other tools are justified only by external considerations, and in halakha there is no room for such a possibility at all.

Here we reach the importance of the analytic-synthetic distinction. As we have seen so far, the shift in the discussion from the question of the interpretation’s reliability to the question of the justification of speculation and extension stems mainly from a skeptical attitude toward the reliability of synthetic modes of thought and interpretation—that is, from an analytic outlook. In the previous books of the quartet, as well as in the first two divisions, we saw that synthetic tools create a situation that is a “third way” between legislation and interpretation. But in halakhic interpretation there is no escape from seeing them as tools of disclosure, and not merely as tools whose use is legitimate.

As we have seen, jurisprudence is aware that not all legal activity can be reduced to legislation and interpretation, even among positivists, and therefore intermediate paths arise there as well. These are called “judicial legislation,” or “legislative judging,” or “discretion.” But it is clear that this extension does not extend the law itself; that is, it does not find branches that grow out of the law itself. The legal third way constitutes something like an additional normative system, as with Dworkin’s principles, standing alongside the fundamental law enacted by the legislative authority, the parliament. By the end of this process, jurists do not even ask themselves how legislation by courts is to be justified; they simply treat it as a fact of nature, in the realist and critical approaches.

By contrast, within halakha, the attitude toward midrashic extension—that is, toward the use of synthetic interpretive methods—is not that of a separate category, but of an extension that grows out of the verses of the Torah, in Maimonides’ formulation in the second principle: “branches issuing from the roots.” It is no wonder that halakha, precisely, develops a detailed formalization of the system of analogical inference, in the form of the hermeneutical rules by which the Torah is interpreted.

Formalization of the System of Analogical Inference in Law

It should be noted that there is an unusual example of this even among legal thinkers. Tarello, cited by Perelman on p. 48, examined experienced jurists and distinguished thirteen kinds of arguments that make it possible to interpret statutory language in light of the legislator’s specific intention. Here there is attention to the modes of inference themselves, including inferences on the basis of purposes and tendencies, though not to policy goals or extra-interpretive considerations such as filling lacunae. All of these are arguments of a synthetic character. Some rely on non-deductive reasoning—a fortiori argument, analogy from a single text, and induction from two texts—and some are textual or formulary considerations. Deductive considerations are not included among these interpretive methods, because what they disclose is already present in the laws themselves. This is not interpretation but extraction.

These works are not typical of legal scholarship. What we have seen so far is an intensive discussion of the question of the judge’s basic policy, that is, the question of the legitimacy of interpretation, while almost entirely ignoring the question of its validity—that is, its fit with the intention of the legislator or the law. By contrast, Tarello and Perelman try to examine the logic of interpretive arguments in terms of their fit with the legislator’s intention or with the law.

Even they, however, are mainly occupied with mapping these interpretive methods, and scarcely at all with their principled justification. We have already noted that these questions belong to general philosophy, or hermeneutics, and not specifically to the philosophy of law. Still, the various approaches in jurisprudence are derived from philosophical-hermeneutic conceptions that treat the truth-disclosing power of synthetic inference with great skepticism.

This is the place to note that jurists, almost without exception, are lawyers and not philosophers. That fact also determines the way they approach these issues. The justification of these techniques, and attention to their philosophical root, is not their concern. They describe and map, but they do not explain and justify.

The Meaning of Syntheticity: Maimonides, Dworkin, and the Modern Conception of the Relation Between Legislation and Adjudication

Thus, a deep analytic infrastructure underlies modern theories of law. Most of them do not believe in synthetic tools as a means of uncovering the meaning of the law itself. It should be noted that on this issue there are disagreements among different European legal systems. As already mentioned, in Swiss law analogy is a kind of interpretation, while comparison with other legal systems is treated as the filling of a lacuna; in German law, by contrast, analogy is treated as the filling of a lacuna, while comparison with foreign systems is treated as interpretation.⁴³

Yet even systems that place greater trust in analogy, such as the Swiss legal system, which sees analogy as interpretation, do not distinguish between the various modes of inference. There is interpretation that discloses the meaning of the law, and there is extension that receives the status of legislation or subordinate legislation. Are there no intermediate cases? What is the status of analogy?

Apparently, in the Swiss approach, which sees analogy as a kind of interpretation, the assumption is that analogy discloses what follows from the legislator’s intention, rather than filling lacunae in places where the legislator has said nothing. That is, the syntheticity is only a technique, but the result is an expression of the legislator’s will. This is precisely like the position of Nahmanides that we saw above. It seems that the analogical method is not conceived as an intermediate type of relation between the interpreted halakha and the interpretive product itself, but only as another method for uncovering such relations. On this view, Maimonides seems closer to the German approach, which sees analogical inference as filling a lacuna. What is created here is an extension of halakha beyond what is hidden in the Torah verses themselves.

Even according to Maimonides, however, midrashic inference should not be seen as mere filling of a lacuna, that is, as full-fledged legislation. As we have seen, there is also an interpretive dimension here. We disclose God’s will, as it is expressed in the spirit of the verses, even if not His commands. Thus, both Maimonides and Nahmanides see analogy as a device of disclosure, that is, as interpretation in some sense, and not merely as filling a lacuna. The dispute concerns whether there are different levels of disclosure, arising from different levels of affinity to the text, or not. Nahmanides sees midrashic analogies as disclosing the content present in the interpreted verses themselves, whereas Maimonides sees them as tools for discovering outcomes related to the verses. The product is a law of “half-Torah” status. We saw Maimonides’ approach through the prism of the Sorites paradox. We constructed a continuum of degrees of connection to the Torah, beginning with subordinate legislation whose contents are not connected to the Torah at all, and ending with laws that constitute analogical interpretation whose result is the disclosure of what is in the Torah itself—when there is a tradition for the exegetical move we have made, namely type-1 laws. In between stand many degrees of connection to the Torah and to what is found in it: from mere scriptural supports, through revealing derivations, and up to plain-sense interpretations.

Can a similar situation be found in general legal thought? We have seen that a synthetic approach, which grants legitimacy to analogical interpretive considerations, can indeed be found, for example in the Swiss legal system. But can we also find concepts such as a “half-law,” or a law with half-validity?

A possible candidate is subordinate legislation. We saw in the first division that rabbinic laws have a lower status because they only branch out from the verses and are not specified directly from them. But in general legal systems, subordinate legislation will not give us such a result. As we saw, the lower validity of subordinate legislation is merely the artificial result of a decision by the legislator itself, and not a substantive conclusion from the character of those laws. The legislator enacted the laws, and therefore he is also entitled to grant them a different level of validity—somewhat like the explanation proposed by Nahmanides for enactments and decrees according to Maimonides; see the first division above. In principle, he could also have granted them full validity, like statutes enacted directly by himself—that is, like laws of Torah status. This is how most commentators, including Nahmanides himself, understood Maimonides in the first principle.

It seems that, in a certain sense, such a meaning may be found in Dworkin’s thought. We have seen that he proposes adding to the legal system itself additional juridical entities, such as “principles” or “policy considerations.” We noted that he regards these additional components as part of the law itself, unlike Hart, who is prepared to use them only in cases of lacuna, and even then he would not regard the result as a disclosure of the law but as de facto legislation by the interpreter or judge for various purposes.

What is the logical-juridical status of Dworkin’s principles? Are they ordinary laws, merely not explicitly written in the statute book? Or are they laws of a different kind? Dworkin himself answers this question,⁴⁴ saying that they are laws of lower status, and that they do not require application in every situation. They do not decide; rather, they guide in certain respects.⁴⁵ It may be that this is the will of the legislator, not necessarily the concrete legislator, but it is not an expressed will, since no command concerning them appears in the statute book. Therefore these are laws of a lower status. This is worth noting. Their status is lower not because the legislator decided that this would be their status, at least not by explicit decision, though perhaps implicitly insofar as he did not write them explicitly into the statute book. This lower status is a substantive result of their character, not the result of an artificial legislative definition. These are “half-laws,” similar to what we saw in Maimonides. Dworkin also notes that there are different kinds of principles, that is, principles with different force and different modes of application. This is reflected in the way they are used, through terms such as “unacceptable,” “unjust,” “negligent,” “meaning,” and the like. This too parallels Maimonides’ conception of a continuum of intensities and connections to the source.

Thus, at first glance Dworkin appears to express a legal conception similar to that which we saw in Maimonides. There is a continuum of laws of varying force, and they count as part of the legal system, though with a different status from rules, which bind in every situation and determine every case to which they apply. We shall soon see that this identity is not complete.

Perelman concludes the second chapter by noting that in the third period, in the second half of the twentieth century, under the influence of the Nazis’ crimes, all committed under the authority and protection of the law, and the worldwide reverberation of the Nuremberg trials, there arose a tendency to alter the relation between legislation and adjudication and to give judges more power than they had previously possessed, in order to regulate and criticize governmental legislation. He cites the statement of Marcic, who spoke in this context of the transition from the state governed by laws to the state governed by judges.

It is interesting in this connection to note the words of Hanina Ben-Menahem, who argues that contrary to the common saying that reflects the ideal of Western thought, “Governed by Rules—not by Men,” that is, the judicial process is governed by laws and not by persons, the spirit of halakha, at least in its practical sense, is better captured by the opposite formulation: “governed by men and not by rules.”⁴⁶ We see here that in contemporary legal thought a certain rapprochement has taken place between these two systems.

To be sure, rule by judges does not mean only granting them legislative possibilities, but also broader interpretation and broader modes of inference. Hanina Ben-Menahem points out that this feature of halakha is inseparably bound up with the trust it places in judges. Unlike the Western conception, which sees the judge as primarily a professional authority, while the legislator is supposed to be the moral and evaluative authority that determines the content of the law, in halakha judges are also moral and intellectual authorities, and not merely professional technocrats.

It seems that in this field as well a change has occurred in modern legal thought. Perelman, at the close of chapter 2, adds that alongside this new conception of the relation between legislation and adjudication, there also emerged a new conception of legal inference, and especially of judicial inference, which still dominates the field today. Granting judges broad interpretive powers points to a tendency to strengthen their standing as moral-evaluative authorities, who will serve as a counterweight to the erosion of trust in legislative institutions, that is, government, in the aftermath of the Second World War, as noted above.

It is important to note that Hanina Ben-Menahem attributes this to the pluralistic character of halakha. That is, in his view the judge’s interpretive-legislative freedom stems from the fact that halakha does not expect one specific ruling, but rather one among several possible rulings. Therefore the danger of errors resulting from the open character of halakhic policy, in which every judge can also legislate and offer far-reaching interpretations, is not so great. “Both these and those are the words of the living God.” This is a very important point, because it reflects an essential element in Western legal thought that apparently has not changed.

But there is another possible way to understand the broad authority that halakha gives to the judge. It may rest not only on the assumption that the judge is morally reliable, and therefore that his decisions will be morally correct, but also on trust in the tools available to him for reaching the true meaning of halakha. Hypothetically, even a judge who is thoroughly wicked morally and religiously, if he uses synthetic interpretive tools and if we trust their reliability, will arrive at the correct halakhic conclusions.

Hanina Ben-Menahem does not raise the possibility that this interpretive freedom and these governmental powers stem from trust that judges’ interpretations will be appropriate and will hit upon the legislator’s intention—that is, the Torah. On the contrary, he attributes them to the claim that the Torah as such has no intentions at all, and therefore whatever the judge does will be fine, provided it passes the moral test. In the terms of the fourth gate of the first volume, one could say that this is pluralism and not tolerance. But the rationale that hangs everything on halakha’s trust in the judge’s rulings contradicts that explanation. To speak of such trust presupposes that there is a legal-moral-evaluative truth; it is just that we assume the judge will reach it even without overly tight guidance, and perhaps precisely in the absence of overly tight guidance, since precise guidance cannot be given for every case.⁴⁷

This is also what we described above, when we determined that even in those parts of general legal thought that grant the judge freedom of action, this stems from legal policy and not from trust in the reliability of his interpretation, which is less important in general law than in halakha.

Is the situation different in Dworkin? And what about those legal thinkers discussed by Perelman in the third chapter? Does the authority they are willing to grant the courts stem from synthetic trust in the reliability of judicial interpretation, in its ability to hit upon the intention of the law and the legislator? It would seem, rather, that it stems from a desire to balance them against the governing authorities, that is, the legislative branch, even at the cost of harming the latter’s legal sovereignty.

It is important to notice that such balance is achieved precisely through the conception that the judge is not merely an interpreter and discloser. On the contrary, it is achieved precisely insofar as he sometimes allows himself to act not in accordance with what the law itself would indicate. If the judge always does his best to hit upon the legislator’s intention and the law’s meaning, then there is no process of balancing here at all. In the end, the conclusion will be nothing but the legislator’s intention, and no more.

Perelman expresses this as follows, on p. 73:

This dialectic, embodied in the search for the persuasive solution that will restore juridical peace, thanks at one and the same time to its reasonableness and its fidelity to the law, establishes a new relation between the judicial and legislative powers. The former is not in a state of absolute subordination to the latter, nor does it, of course, stand against it. It is its necessary and complementary partner, and the task assigned to it is not merely legal but also political: to establish harmony between the legal plane, whose source is legislation, and the prevailing opinions, in a given social context, concerning the nature of justice and fairness. This is why the application of law, which effects the transition from the abstract rule to the concrete case, is not merely a deductive process, but a continual adaptation of legal provisions to values that conflict with one another, as these are expressed in judicial controversies.

Around this passage, Perelman devotes considerable space to clarifying the role of law and legal scholarship as the development of a dialectic capable of grounding the value intuitions prevailing in society on foundations rooted in positive law, that is, enacted law. Put differently: every judge decides the case according to what appears just in his eyes, and the reasoning comes only afterward. Its purpose is a dialectical effort to place the just arrangement on reasonable legal foundations, or, in Perelman’s words, “to unite fidelity to the legal system with the reasonableness and acceptability of the decision.”⁴⁸ In the final analysis, every judicial ruling is judged through the universal justice embodied in it, and not through its fit with the intention and meaning of the law. The legal justification of the ruling is only a necessary constraint for the sake of the system’s stability, so that there will not be arbitrary decisions that vary from case to case. This is what we earlier called the value of the legal system’s “stability.”

Justice A. Witkon says this explicitly:[^348]

In all honesty, we must admit that quite often we are not “neutral” with respect to the outcome; rather, the outcome we desire is already clear to us even before carrying out this logical process. In such a case, the citation of a rule of interpretation comes only afterward, ex post factum, and its whole role is merely to legitimize a process that at its core is intuitive, and perhaps even arbitrary.

It should be noted that even Witkon, who bases interpretation on intuition, does not view intuition as a tool for the investigation of truth, but as a tool for reaching justice. The interpretation that justifies the de facto desired result is sometimes completely “arbitrary,” by his own testimony. Barak, who criticizes him for this approach, see Barak, p. 94, believes that the rules of interpretation are supposed to serve as an anchor for rationalizing these subjective intuitions. But, as we have already noted, these too are not tools for reaching a correct interpretation, but rather for reaching an objective and effective interpretation.

Barak himself, in the section that follows immediately afterward, points to the importance of rules of interpretation as rules of legitimation, and not as tools for disclosing any truth. Later as well, on p. 106, when he discusses the decline of interest in interpretation and its later revival, Barak writes that the reason for the revival was the need to provide a framework of legitimation for judicial creativity and judicial legislation. Thus, the rules of interpretation in law, even according to those who recognize their importance and objectivity, are not tools for uncovering the meaning of the law, but tools for granting legitimacy to judicial legislation. If interpretation were a tool of disclosure rather than creation, there would be no room here to speak of judicial legislation.⁴⁹

It therefore seems that in the world of legal thought there is no real principled disagreement on this matter. The picture that emerges is that the focus of the change in the second half of the twentieth century is not trust in judges as interpreters, or in synthetic interpretive tools, but trust in them as legislators, as persons of moral and evaluative quality superior to that of legislators. On that basis there develops an expectation, and a tendency, that they will balance the actual legislators and mediate between written law, which is fixed and petrified, and prevailing societal conceptions of justice and fairness. This is virtually a summary of Dworkin’s conception concerning the introduction of “principles” into the legal system itself, often with a status higher than that of enacted laws.

Indeed, anyone who studies Dworkin’s article in question will discover that the “principles” he speaks of are simply additional laws used by judges in legal decision-making, even though they do not appear in the statute book.⁵⁰ Usually they do not serve to interpret the existing laws, that is, the rules, and certainly not to uncover the intention of the law or the legislator.⁵¹ What is the source of these laws? According to Dworkin, they are universal principles of morality and justice. If so, they are in no way connected to the enacted legal system or to its meaning. These are principles additional to the legal system, and the fact that their source is universal morality testifies overwhelmingly to the motivation we identified earlier: to balance the legislative branch. The same emerges from the entire discussion in chapter 3 of Perelman, who generalizes this point to the whole development of legal thought over the last half-century. To be sure, according to everyone who is not a positivist, the nature and function of these principles differ from those of ordinary legal rules, that is, laws. But it seems that this difference is not in the same sense that we found in Maimonides.⁵²

This division is not sharp. One may relate to these principles as part of the law also in the sense of the meaning of enacted law. If we assume that the law is not merely the collection of statutes included in the statute book, but also that which arises from the social-political tendencies of the society with which we are concerned, then Dworkin’s principles may be treated as a kind of interpretation that discloses the meanings of the law itself, rather than as an addition to it or refinement of it. It should be noted, however, that this is not the common meaning of “principles” in Dworkin.

It is specifically the “policy considerations” to which Dworkin points that are closer to interpretive principles whose aim is to disclose the meaning of the law. These considerations can sometimes serve as arbiters between different interpretations. Moreover, such principles really are drawn from the social-political system out of which, and into which, the law speaks. With respect to such principles, it is highly plausible to treat them as expressing the will of the legislator, or of the society within which he operates. These “policy considerations” are far closer than the “principles” to a synthetic interpretation of the legal system.

However, as we already noted above, Dworkin sees the use of these policy considerations as something non-binding. Their use is possible only for interpretation, and not for creating an independent binding norm, since that is entrusted only to the legislator, unless what is at stake is a principle rather than a policy consideration. It therefore appears that it is specifically these principles that constitute a legal analogue to Maimonides’ conception of halakha.⁵³ It should be noted that precisely for this reason they are accorded an inferior status.

To sum up: in Dworkin one can find a kernel of a synthetic conception, similar to what we saw above in Maimonides, both in the principles and in the policy considerations. But it is quite clear that the status of these components is limited, and it is mainly over them that the debate about Dworkin is waged in legal thought.

Thus, the picture that emerges is that legal thought does not place high trust in the ability of synthetic tools to uncover truth. About this our Sages already said that in the age immediately preceding the Messiah, truth will be absent; see Mishnah, Sotah 9:15.⁵⁴ In the next section we shall discuss a synthetic alternative to jurisprudence, one that will draw it closer to halakhic jurisprudence. The next gate is devoted to clarifying the question of scientific, legal, and halakhic truth.

A Synthetic Alternative to General Jurisprudence

The synthetic position presented throughout this quartet offers an alternative to the prevalent analytic approach in jurisprudence, without being dragged into pragmatic formulations in the style of Aharon Barak. There really is a true answer to the meaning of the law, and it lies within the law, hidden there even before the act of interpretation. Interpretation merely discloses this normative meaning, and therefore it does aim at some objective entity. Synthetic interpretive tools likewise disclose rather than create, except that according to Maimonides this disclosure is an expansive one. We disclose the spirit of the law, not what is actually present in it. This is not legislation but a kind of interpretation, and therefore it is entirely legitimate for a judge to engage in it—not because it is necessary, but because it is reliable and justified, and reasonably tracks the meaning of the law.

According to the synthetic approach, rules of interpretation are not formal rules intended to achieve effectiveness and stability in the legal system, but rules for uncovering the true meaning of the law. The distinction between genuine syntheticity, of the sort proposed here, and pragmatist syntheticity has several implications. Here I shall briefly note two of them:

The good faith of the interpreter. According to the synthetic proposal, the interpreter is not supposed to insert his own values into his legal ruling. He is supposed to disclose the spirit of the people, which is something objective, and not merely arrive at a decision that is legally legitimate. If his own spirit does not identify with the spirit of the people, he is supposed to subordinate his own spirit to the spirit of the people and the law. He is not supposed to hit upon some universal justice, but upon the intention of the legislator and the law. Legal good faith is extremely important, because the interpreter is supposed to efface himself before the law and not feel that he creates it, as is suggested by the tone that blows from Barak’s writings.

It should be noted that in halakha the situation may be different. In halakha there is no human legislator, but a divine one, and He is not present before us. The reasonable assumption is that what He wants is that what ought to be done should be done. Therefore, what appears right to me is probably also what, in my view, is considered right in the eyes of the Legislator, namely the Holy One, blessed be He. Hence it is specifically the halakhic interpreter who has justification to act in accordance with his own values rather than effacing himself before the law. Of course, this is true only if his interpretation is possible within the language of the law, and not when he forces the law to conform to it.

By contrast, in a world of pragmatism, only the linguistic framework and the deductive tools are binding. Within that framework, the interpreter may choose the option that seems right to him, on various grounds. Those grounds are not tools for reaching any truth; rather, they are tools that create a framework granting legitimacy to his decision, which in essence is arbitrary, in the sense that it has no connection to any truth. This is a formal system that creates an artificial analytic substitute for substance. According to this approach, there is no need at all for good faith. The interpreter may consciously adopt an interpretation while knowing that he is using his own values. After all, it is a reasonable option, and also legitimate so long as it fits within the framework of verbal interpretation.

Barak discusses good faith in chapter 3, section 10, pp. 130-131. He finds a very thin, and highly amorphous, meaning for this concept as applied to the judge and the interpreter, and the main demand for good faith is directed toward the person to whom the norm applies, not toward the interpreter or the judge. Thus he writes:

The requirement of good faith is absorbed within the requirements of the judicial role. Nor can it be said that the requirement of good faith is directed toward the method of interpretation. Thus, for example, the principle of good faith does not prefer a subjective method of interpretation, that is, legislative intent, over an objective method of interpretation, that is, the intention of the law as understood by the reasonable interpreter. What, then, is the place of good faith in interpretation? It seems to me that the principle of good faith is directed toward the person upon whom a legal norm imposes a duty or grants a right: he must act in good faith in the meaning he gives to the legal text…

Barak empties good faith in interpretation of its content, because he sees no defect in tendentious interpretation. Interpretation does not disclose some hidden meaning in the law, since the meaning, and the norm itself, are created only with the interpretation. Barak does not advocate a syntheticity that expresses genuine objectivity, but rather objectivity in some formal sense, one that is very vague.

With respect to the importance of awareness as well, on p. 111 Barak stresses that it is very important for the judge to engage in interpretation consciously and not unwittingly. By contrast, in the synthetic-objective approach it is specifically more advisable to proceed unconsciously. If the judge is not aware of his tendencies and of the rules he is using, there is a greater chance that he will arrive where the legislator directs him, and not where he himself wishes to arrive for tendentious reasons.

Formalization. As he writes in several places, Barak attaches great importance to the development of a comprehensive interpretive theory. He tries, so far as this is at all possible, to formalize and mechanize the procedures and rules of interpretation. The goal of this process is to create public trust in the judge. That trust is based on the reliability of the procedure and its objectivity, and not on the quality of the result. In other words, it is based on the authority to interpret, and not on the reliability of the interpretation itself. This approach too expresses an analytic outlook. In a synthetic world there is trust in the judge, based on his integrity and on the results he reaches, because they accord with the spirit of the law. The procedure matters less.

This last point brings us to the importance of a consensual state of affairs in a society that accepts the authority of the legal system. In a non-consensual society there is indeed no unified spirit, and there is no trust in the judge, because the result will always seem wrong to some part of the public. In such a situation, it is indeed proper to mechanize the processes as much as possible. In such a society one should proceed in as positivist and formalist a way as possible. On the other hand, in such a situation it is not correct to adopt Barak’s policy of judicial imperialism. On the contrary, the legislator should be much more dominant than the judge. Formal positivism, insofar as one can at all be a pure positivist, is the recommended stance for a non-consensual society. Authority should lie with the elected legislator, not with the judge and the interpreter, who is a single accidental individual and not an elected representative body.

Thus, to a large extent Barak’s legal-interpretive theory is a necessary product of its environment, at least in its formalist component. By contrast, the dominance of the judge is certainly not such a product, as we explained above.

The Problem of the Philosophical Grounding of Synthetic Tools: Jurisprudence as a Branch of Philosophy

We have reached the point at which the picture can already be summarized. We saw that Maimonides and Nahmanides agree that non-deductive arguments can yield conclusions that disclose what is latent in the premises. That is, reliable interpretation need not be deductive in character. On the other hand, we saw that they disagree on the status of such interpretation. According to Maimonides, it is a substantive extension of what is found in the Torah, that is, not a disclosure of what is found in the verses, but also not a speculative creation, namely legislation. One may say that it is a disclosure of God’s will. According to Nahmanides, by contrast, it is not an extension at all, but a disclosure of what is actually found in the Torah itself, namely God’s command.

As we have seen, these theses are not popular in the world of legal thought. Even after the rejection of positivism, natural law did not regain its former prestige. We have seen that even the newer legal thought does not treat synthetic modes of inference as a reconstruction and disclosure of the intention of the legislator or the law, but as legislative authority of the judge, that is, judicial legislation. The anchor found by objectivists such as Aharon Barak is likewise grounded not in logic or in a philosophy of interpretation, but in the need for the effectiveness of the legal system. We have seen that rules of interpretation are usually not created by the legislator, but by the jurist.

Thus, syntheticity is not popular even in the post-positivist age of general law. The reasons for this are clear. Synthetic modes of inference really are problematic, and they lack the reliability and objectivity of deduction, especially in a non-consensual society. Beyond this, it is not clear toward what exactly we are to apply synthetic rules. What are we supposed to disclose by means of them? After all, no concrete legislator is defined here, unlike the case of the Torah and halakha. The spirit of the people is an undefined notion in the analytic and non-consensual world in which we live.

The synthetic claims we have seen are of two kinds:

Synthetic interpretation can serve as a reliable and reasonable reconstruction, even if not a certain one, of the intention of the legislator or the law. In the context of general jurisprudence, this means the law in its broad sense.
Synthetic modes of inference constitute a non-subjective extension of the law. That is, the interpretive product is indeed not latent in the interpreted law, but it branches out from the law and from its spirit, and does not constitute an autonomous creation of the interpreter and judge. These are not additional considerations beyond the framework of the law, artificially appended to enacted law. Rather, they are modes of extension that define how enacted law itself branches and expands, thereby bringing additional intentions of the law, or the legislator, into actuality.

Both of these claims require explanation and justification, from two aspects:

How can we have confidence in the power of non-deductive claims to disclose what is hidden in the law, or in the Torah? There is, after all, a subjective component here, dependent on the interpreter or the judge. Does he not import into the result his own private thoughts? It is important to understand that the problem is not the fear that the judge or interpreter does not work properly, or is not honest, or is simply mistaken. The problem is inherent in the non-deductive method itself. At first glance, it seems incapable, in principle and essentially, of reaching true conclusions. But in fact one may perhaps say more than this: there is no truth at all to be sought by synthetic tools. There is nothing in the law except what can be extracted from it by deductive means. Everything beyond that is unrelated to the law and in fact constitutes judicial legislation, not interpretation.

As we have seen, this was precisely the positivists’ claim. What would the jurist of the second half of the twentieth century answer to this? What would Dworkin say about the “policy considerations” in his theory? Are these not merely fig leaves for the judge’s own values and principles? And on the practical level as well: what will become of the legal system’s stability if each judge reaches his own conclusions according to his own principles, his own considerations, and his own policy?

Beyond this, we must understand the meaning of the claim embedded in Maimonides’ view, according to which there are several levels of connection to the Torah. Or, in the terminology we used in discussing Dworkin: what is a “half-law,” or a law that is “half-binding”? At first glance, either we say that a given rule is binding, in which case it is a law like any other, or it is an extra-legal rule, in which case it would seem that it should not bind us at all. More generally: how can one ground the existence and significance of links of less than full strength? Such links are substantive analogy: the relation between premises and conclusion reflects a similar relation, that is, a non-full relation, among the facts of the world itself. This is not merely a loose method for discovering full-strength relations of warrant, but a fitting method for discovering weaker relations of warrant.

As stated, all these are general philosophical-hermeneutic questions, and we shall discuss them in the next gate. Within jurisprudence they do not receive much attention, since, as we noted also with respect to Aharon Barak, jurists are generally lawyers and not philosophers. The philosophy of law is conducted by lawyers, and therefore alertness to problems of philosophical root is not widespread within it.

Perelman, one of the leading thinkers who deals with both sides of the legal-philosophical equation, writes as follows on p. 104:

Legal reasoning places greater demands than philosophical reasoning, because law, unlike philosophy, which may content itself with general and abstract formulas, must concern itself with solving the difficulties that arise when these general formulas are used as tools for solving particular problems. Philosophers are satisfied when they succeed in formulating a general principle, such as the categorical imperative… or the utilitarian principle… but the jurist cannot be satisfied with formulating such principles… All those engaged in practical philosophy would do well to learn a lesson from the way jurists examine these problems.

Perelman describes here only one side of the coin: what jurisprudence can teach philosophy. But there is also another side to that coin. Jurists place excessive emphasis on solving practical problems, and they do not sharpen the philosophical root of those problems. Even when they address problems at their philosophical level, they are concerned mainly with mapping the positions and methods, and less with their philosophical justification.

In this respect, it would seem that they specifically should learn from their philosophical colleagues. Jurisprudence is in fact a branch of philosophy, even if this classification does not reflect the accepted attitude in the academic world, where it is seen as a sub-discipline of law. The reason is that, as we have seen several times, the various approaches in jurisprudence have direct and practical implications for the world of law itself. This is not merely a meta-legal debate among those trying to understand how law works, but a discussion that is part of the legal discipline itself. Judicial rulings can look completely different if they are issued from a different jurisprudential approach. The resulting conclusion is that the ambiguity lying at the philosophical foundation of jurisprudence, as described above, has a price in the legal world itself.

The next gate is devoted to attempts to explain the philosophical basis of the intermediate approaches we have seen. What troubled those who wrestled with these problems and did not see the solution of the “third way”? And what is the philosophical basis for that kind of solution? As we saw above, the synthetic mechanism that we shall propose can provide an alternative way out of the theoretical distress of general jurisprudence. It will provide a foundation for a genuinely objectivist synthetic formulation of jurisprudence, as opposed to pragmatism in objectivist garb in the style of Barak, a formulation that will be close to Maimonides’ halakhic jurisprudence.

Footnotes

See on this my articles “Is Halakha Jewish Law?” Akdamot 15 (2005), and “The Meaning of Ownership of Property: Between Halakha and Law,” Shnot Chaim 2009. ↩
On this, however, see the writings of Stuart A. Cohen on the model of the three crowns—Torah, priesthood, and kingship—in Halakha, where he specifically tends to see a decentralization of authority beyond what is usually recognized in the halakhic model. He argues that the sages in the destruction period worked to increase their own power and secure their place within the governing structures. See: The Three Crowns, Cambridge University Press, 1991. See also the master’s thesis of David M. Puchtwanger, one of his students in political science at Bar-Ilan University, “Political Aspects in the Midrash Sifrei on Deuteronomy: The Model of the Three Crowns as a Hermeneutic Approach,” Tammuz 2000, and the references there. ↩
Formally, one may compare universal moral laws to Torah law. In common conceptions they stand above positive law, or in another formulation: positive law cannot contradict them. If it stands in sufficiently substantial contradiction to them, then it is null and void. ↩
Some would say that the judging systems are sovereign in interpretation and require no permission or authority in order to interpret. In that sense, the Knesset as sovereign—even if not as the actual legislative body—does stand above them and grants them the authority to issue authoritative interpretations. ↩
Of course there are Torah laws of varying degrees of severity, but not of varying degrees of legal force. We are equally bound by all of them. Only the punishment and the relations of override may vary, and even that only where the Torah itself tells us so explicitly. No such revelation exists regarding laws enacted or decreed by the sages. ↩
In addition to personal knowledge from various sources, I relied most regularly on the following books: Torat HaMishpat VeHaMussar, Ron Delumi and Menashe Cohen, Mishpatim Press, Bnei Brak, 2003; Legal Logic, Chaim Perelman, translated by Ora Gringard, Magnes, Jerusalem, 1983; Philosophy of Law (An Introduction to Legal Theory), Michal Bassa-Hassin, Etika Press, Netanya, 1998; and Interpretation in Law, especially volume 1, “General Theory of Interpretation,” Aharon Barak, Nevo, Srigim, 1998, third printing. Details of additional books used will be given in their place. ↩
See my above-mentioned article in Shnot Chaim. ↩
See also on this Appendix 5 at the end of the book. ↩
Kelsen does not regard law as a rule guiding behavior but as a rule addressed to the authorities, obligating them to enforcement and the imposition of sanctions in certain cases. This, however, is not the view of all positivists. Austin, for example, sees the sanction as a motive for obedience, unlike Kelsen, who sees it only as a legal consequence of noncompliance. Hart, unlike both, sees the sanction as a response to noncompliance with law, but justified only where there already exists an obligation to obey the law. ↩
In Jewish law there is a rule applicable to rabbinic enactments and decrees that if they did not spread among the the public they lapse. This is a different matter, and in any case it concerns only rabbinic laws. ↩
See on this my above-mentioned article in Akdamot, in the discussion of the law “Do not stand by your fellow’s blood.” We may note that according to Kelsen’s approach, the moral law establishes the norm of conduct—for example, “it is forbidden to steal”—whereas the legal rule establishes the duty to impose sanctions—for example, “one who stole must be punished.” ↩
Even if the law has obvious moral content, its binding force in legal terms comes only from the fact that it is part of the law. Its moral content is not, as such, a legal matter. ↩
See briefly Torat HaMishpat VeHaMussar, Ron Delumi and Menashe Cohen, Mishpatim Press, Bnei Brak, 2003, chapter 3, section 3. ↩
Thus we saw in the previous gate the distinction made by later authorities regarding whether an oath can take effect on commandments, between rabbinic commandments and commandments learned by derivation. Both relate to “do not turn aside,” yet whereas in rabbinic commandments the violator transgresses “do not turn aside,” in laws learned by derivation he transgresses the verse that serves as the source of the derivation, not “do not turn aside.” ↩
See in this context Maimonides’ interpretations at the beginning of the Guide of the Perplexed, and the author of Nefesh HaChaim, on Adam’s sin. They explain that after the act he became “knowing good and evil,” meaning that he identified good and evil—the conventionally accepted—with truth and falsehood—the intellectually grasped. ↩
This question is discussed more fully in the third book. ↩
In his article “Some Reasons of Interpretation,” Sefer HaYovel LePinchas Rosen, 1962, p. 147. ↩
See above in the second unit, when we dealt at length with midrashic extension by way of analogy. See in more detail below in the seventh gate, and in the first gate of the first book. ↩
Most of the first book is devoted to this point. There I discuss the analytic position, namely the view that every exercise of human judgment is deduction. I show there that such a rigid position naturally leads to the opposite result: every position becomes as valid as every other. Positivists deceive themselves into thinking that there are valid positions supported by logical-analytic proofs, but precisely because validity in their view rests on a logical platform of proof, the only thing universally accepted is the derivation of conclusions from premises. The premises themselves are arbitrary. Thus postmodernism grows out of positivist rigidity, though it appears to be its opposite only superficially. In the legal world there remains a positivist nature reserve which, despite being under increasing attack, still preserves a naïve positivism—illusions that the philosophical world has long since discarded. One reason is that philosophy of law cannot be detached from law itself. It is therefore mainly lawyers who deal with these issues, and the philosophical examination of them remains deficient. I think the main reason is that philosophy of law is conducted by lawyers rather than philosophers. A similar phenomenon exists in the halakhic world, as in any field whose philosophy and content cannot easily be separated. We will see this below even more powerfully and in greater detail. ↩
See Irving M. Copi, Introduction to Logic, translated by Hanan Rotem, Yachdav, Tel Aviv, 1977, pp. 226–228. See there several examples of inferences of this sort. See also the opening of Chaim Perelman’s Legal Logic, sections 1–5. ↩
Ordinary-language argument sometimes skips logical steps necessary for its validity. It simply does not formulate them explicitly, for various reasons: sometimes because of inattention; sometimes because they seem self-evident, at least to the speaker; and sometimes as a demagogic technique that tries to persuade the opponent while concealing the problematic and disputed steps in the argument. ↩
See also my article “Analogy and Induction in Halakha,” Tzohar 15. ↩
See on this Perelman’s Legal Logic, hereafter Perelman. The entire first part is devoted to these questions. ↩
See on this my article in Tehumin 25. ↩
See Aharon Barak, Judicial Discretion, 1987, pp. 29–51. ↩
Perelman distinguishes among three types of lacunae. See his Legal Logic, part 1, section 30. ↩
Raz, and also Dworkin, argues that for this reason there is no need for analogical inference at all. Aharon Barak adopts a more moderate approach, according to which after the use of analogy almost no lacunae remain; see on this my above-mentioned article in Akdamot 15. Analogy is, for Barak, a sufficient technique to cover nearly all cases. For this reason he sees no possibility of applying Israel’s Foundations of Law Act of 1980, which directs the judge in case of lacuna to law and precedent, then to analogy, and only finally to the principles of freedom, justice, equity, and peace of Israel’s heritage. According to Barak this has no meaning, because after analogy no lacunae are ever left. To do this, however, he greatly expands the concept of analogy, since he himself defines, as we cited above, the three contexts in which the judge functions as a legislator. See the next chapter. ↩
See Perelman, Legal Logic, part 1, section 30. ↩
As we explained, a lacuna exists only if in the judge’s or interpreter’s view some legal norm ought to apply to the case at hand. If no such norm should apply, then there is no lacuna. ↩
See below in presenting Dworkin’s critique of positivism. We may note that, as I showed in the first book, this paradoxical phenomenon characterizes every positivist approach, not only in law. The demand for rigid deductive justification itself leads to the postmodern nihilism in which all truths are of equal standing. See there in chapter 1 of the third gate. ↩
Another critique of natural law, based on the relativity of values, will be discussed below. ↩
This argument is not so strong, however, because the positivist can claim that the judge is authorized to do this by the legislative authority; this would be a dynamic chain of authorization, and his legal discretion would then have a status similar to subordinate legislation. The burden then falls on him to show in enacted law that the legislator indeed delegated such authority to him. Usually this does not appear in legislation, and the courts take this authority for themselves. The case of Aharon Barak in Israel is an especially extreme example of such self-assumed power. ↩
Considerations of policy, according to Dworkin, are not binding norms at all, though under certain circumstances the judge may also employ them. ↩
Hart might be able to argue that even if this is indeed the law, the obligation to obey law can still depend, even for positivists, on its contents—as we noted above. If so, the court itself, as one of the law’s addressees, may in such a case refrain from enforcing an inheritance law, in a kind of conscientious refusal. That would be a discussion on the practical plane, but on the theoretical plane this case sharply clarifies the difference between the approaches. ↩
With respect to precedent, it is indeed well known that according to the realists precedent has no real significance, and each court in each decision ought to propose the relevant solution for that place and that case. Even with them, however, subordination to the legislator and to enacted law—as opposed to precedent—remains in force. ↩
See on this my above-mentioned article in Shnot Chaim. ↩
See on this at length in the third book, especially in the appendix on Yeshayahu Leibowitz. ↩
It is important to note that even these “retrieval rules” are usually not determined by the legislator; see Barak, chapter 2, section 2, p. 59. They are discussed by jurists, and by jurists alone. In the Foundations of Law Act, where the legislator tried to prescribe rules of interpretation and “rescue,” Barak rejected this outright. The Interpretation Act of 1981 likewise does not deal with rules of interpretation but with “pseudo-interpretation,” that is, the meaning of terms rather than a general interpretive approach; see Barak, p. 35. Thus the legal world determines the rules of proper interpretation and also carries out the interpretation itself. In this way Barak’s legal doctrine leaves the legislator, and also the entire public that elected it, effectively orphaned, despite the lofty slogans about separation of powers that can be found in Barak, p. 44. The alternative to this is the synthetic approach to interpretation, which maintains that the law has genuine meaning, however difficult it may be to define. We will elaborate on this below. One can see here how a theoretical and abstract issue such as the one discussed in this book can have very important practical implications. As Barak writes in his introduction, p. 24: “For my part I have always found that the most practical thing is a good theory.” If I may add: especially when you are the one who decides whether it is good. ↩
Here we touch on the issue of “these and those are the words of the living God.” According to the pluralist interpretation of that rule, it would seem that even in Halakha the interpreter creates the norm rather than revealing it. But that interpretation of the rule is incorrect. See my article “Is Halakha Pluralistic?” HaMa’ayan 47:3. ↩
See Perelman, part 1, end of section 32. ↩
I discussed this at great length in my above-mentioned article in Shnot Chaim. See also my article in Akdamot 9. ↩
See, for example, Delumi and Cohen, chapter 18, section 7. ↩
See Perelman, chapter 1 around note 47. ↩
Especially in his article “Taking Rights Seriously.” See also the summary in Bassa-Hassin, p. 153 onward. ↩
He adds that they are indeed binding, but in a different sense. To be bound by them means to act in accordance with them in different circumstances and with different weights. ↩
He discusses this at length in his book: Judicial Deviation in Talmudic Law – Governed by Men Not by Rules, 1991. See also his article “Jewish Law and the Constitutional Order in the State of Israel,” in Masa El HaHalakha, Amichai Berholz, ed., Yediot Aharonot, Sifrei Chemed, and Beit Morasha, Tel Aviv, 2003, especially chapter 3. ↩
Of course there is also the dimension of pluralism expressed in the rule “these and those are the words of the living God,” but all this exists only against the background of synthetic trust in the substantive validity of the decision, namely trust that obviously erroneous decisions will not be accepted. For a similar argument, see my article “Autonomy and Authority in Halakhic Decision-Making,” Meisharim 1, Yeruham Hesder Yeshiva, 2002, especially chapter 4. See also my article “Is Halakha Pluralistic?” HaMa’ayan 47:3, 2007. On synthetic trust, see also below and in the next gate. ↩
Often this is done by means of what Perelman calls legal “topics,” that is, rather vague principles used by nearly every judge in interpretation and judicial decision. Such “topics” were not popular in the positivist era, but returned to center stage in the second half of the twentieth century as a tool for connecting what is reasonable and acceptable with what is faithful to the law. ↩
One striking implication of this approach is the need for the interpreter’s awareness of his own decisions. Barak argues, p. 111 and references there, that the judge’s and interpreter’s self-awareness is very important for the legitimacy accorded to his decisions. But if interpretive rules were rules of disclosure, then specifically lack of self-awareness would lead to a better result. A self-aware judge will use flexible interpretive rules as a tool for inserting his own values into the legal text. specifically lack of self-awareness is the guarantee of good faith and of an attempt to reach the meaning of the law itself. In the halakhic world this distinction is very important: between a change made as good-faith interpretation and a conscious change in Halakha. I discussed this in the second book. ↩
Compare Barak’s remarks, p. 53, where he sees interpretive rules as “rules” or “principles” in Dworkin’s terms. ↩
On the differing functions of principles, see Bassa-Hassin, p. 195, section 5. ↩
The clearest indication that this is Dworkin’s intention is that at the beginning of the discussion he offers two possibilities for viewing these principles: first, as part of the legal system itself, which is his own view; second, as additional extra-legal laws, which is the positivist view. He does not present the whole range of intermediate options generated by the heap paradox. ↩
There are also differences between considerations of policy and Maimonides’ conception of the interpretive rules—which create derivative laws—and I will not enter into them here. ↩
See Maharal’s remarks in Netzach Yisrael, discussed in the first book, p. 234. ↩

← Gate Five: General Overview of the Two Roots — Halakhic and Meta-Halakhic MeaningsContentsGate Seven: The Philosophical Foundation — The Synthetic A Priori →

Legal Implications: Issues in the Relationship Between Law and Halakha (Jewish law)

Chapter 1: Halakha and Law: Maimonides’ Two Roots in Light of Civil Legal Systems

Introduction

A Schematic Description of Aspects of the Civil Legal System as Compared to the Halakhic One

The Civil Principles Parallel to the Expansion of Validity: The First Root

The Civil Principles Parallel to the Expansion of Content: The Second Root

Chapter 2: Concepts and Fundamental Issues in the Philosophy of Law: A Selective Introduction to Jurisprudence and Legal Interpretation

Introduction

What Is “Law”?

Relations of Authorization

On Legal Positivism and What Lies Beyond It

Interpretation: Analytic and Synthetic Tools

Enthymematic Interpretation

Two Planes of Analytic-Synthetic Discussion

Examples: Literal and Purposive Positivism

Modes of Interpretation: Judicial Discretion and “Judicial Legislation”

The Question of Justification

The Logical Reason for Adopting a Positivist Position

Similar Problems in the Natural-Law Position

Modern Post-Positivist Theories of Law: Dworkin

Summary: What Is the Relation Between Dworkin’s Approach and Positivism? The Move to Realism and a New Critique

The New Approaches

Chapter 3: Interpretation, Convention, Stability, and Discretion: Between Halakha and Law

Introduction

An Implicit Consensus in Jurisprudence

The Theory of Halakhic Interpretation

Example A: “Agreement” in Perelman’s Formulation

Example B: Legal Objectivism in the Formulation of Aharon Barak

The Basis of the Difference Between the Interpretive Approach of Halakha and That of an Ordinary Legal System

Summary: What Is “Interpretation”?

Chapter 4: Analyticity and Syntheticity in Law, Halakha, and Philosophy

Introduction

Truth and Legal Stability

Analytic and Synthetic Reasoning in Law and Halakha (Jewish law)

Formalization of the System of Analogical Inference in Law

The Meaning of Syntheticity: Maimonides, Dworkin, and the Modern Conception of the Relation Between Legislation and Adjudication

A Synthetic Alternative to General Jurisprudence

The Problem of the Philosophical Grounding of Synthetic Tools: Jurisprudence as a Branch of Philosophy

Footnotes

שתף