¹ Jackson, B. S., “Legalism” (1979) 30 Journal of Jewish Studies 1–22 esp. at 4–6.CrossRefGoogle Scholar

² E.g., Tammelo, I., “Law, Logic and Human Communication” (1964) 50 Archiv für Rechts- und Sozialphilosophie 331–366, at 350.Google Scholar

³ Cohn, Georg, Existentialism and Legal Science (Dobbs Ferry, N.Y., Oceana Publications, 1967) 25, 75.Google Scholar

⁴ The Times, 5th February 1980.

⁵ Combining, inter alia, elements of Weber's “logical formalism”, Friedman's “legalism”, and Cohn's “conceptual jurisprudence”. See Friedman, L. M., “On Legalistic Reasoning — A Footnote to Weber” (1966) Wise. L. R., 148–171Google Scholar, esp. at 149f. (on Weber), 167; Cohn, supra n. 3, at chs. 1–2, p. 47, et passim.

⁶ Perelman, Ch., “Justice Re-examined” (1980) 66 Archiv für Rechts- und Sozialphilosophie 77–84 at 77.Google Scholar What the judge told Perelman was that he conceived his role as searching out in every case the just solution as known to God. Perelman takes this to express “the Christian, Augustinian version of Platonism”, understood in the terms quoted in the text. In associating this attitude with the “right-hand” model, I assume that the Calvinist judge regarded the “just solution as known to God” as codified, and not constructed by human intuition.

⁷ Deborah Sanders urges, in response to an earlier formulation, that secular existentialism, taken to represent an extreme point on the left of the spectrum, does insist upon a “central norm—that actions should be taken in full consequence of dread/finitude/death/responsibility for one's essence”. But these are criteria which relate to the affective state of the person making the judgment, not the situation to be adjudicated.

⁸ See Fletcher, Joseph, Situation Ethics (London, SCM Press Ltd., 1966) 23, arguing against Gnostic antinomianism.Google Scholar

⁹ Supra n. 8, at 31. The difference between the two positions sketched in this paragraph is characterised thus by Packer, James, “Situations and Principles”, in Law, Morality and the Bible, ed. Kaye, B. N. and Wenham, G. J. (Leicester, Inter-Varsity Press, 1978) 151–167, at 153f.Google Scholar: “The rational situationism of the Anglo-Saxon Anglicans Fletcher and Robinson offers us a method of calculation; the existentialist situationism of the big Bs of continental neo-orthodoxy—Barth, Bonhoeffer, Brunner, Bultmann—takes the line of attuning us for particular self-authenticating commands from God which will reach us via Scripture, though they will not be identical with, nor will they be simply applications of, moral principles stated in Scripture. Neo-orthodox situationism may be called ‘pure’ as distinct from ‘principled’.”

¹⁰ On whom, see infra, text at nn. 17–21.

¹¹ Supra n. 3, at 3f.

¹² Ibid., at 109.

¹³ Ibid., at 118.

¹⁴ Ibid., at 113f.

¹⁵ Deborah Sanders comments that such revolutionary courts would appeal only to revolutionary goals. This seems to me to reinforce the parallel with existentialist adjudication, which appeals only to a general goal external to the situation being adjudged.

¹⁶ Introductory accounts of the legal theories here discussed may be found in Finch, John D., Introduction to Legal Theory (London, Sweet & Maxwell, 3rd ed., 1979)Google Scholar; Harris, J. W., Legal Philosophies (London, Butterworths, 1980).Google Scholar

¹⁷ Right of centre, not right. Dworkin disclaims any connection with the “mechanical” view attacked by the left. See Dworkin, Ronald, Taking Rights Seriously (London, Duckworth, 1977) 15f.Google Scholar I see Dworkin as distinct from the right-hand model largely in terms of the fourth feature (supra, p. 328): the premises in legal argument are not pre-determined and restricted, but are constructed by the judge, albeit in conformity with what he sees as the values of the legal system. Mark Weisberg comments that he cannot imagine Dworkin giving the official's answer to the education problem (supra, p. 328). On this, I am less sure. Dworkin seeks to maintain the distinction between (legally) “easy” and “hard” cases; the education problem would surely be regarded as “easy”, so that the rule prescribed by the regulation (which contains no exemption for twins) would be binding. whatever principle here might outweigh that of the literal application of the regulations? Do twins have a “right” to identical treatment?

¹⁸ Taking Rights Seriously 116; idem, “No Right Answer?”, in Law, Morality and Society. Essays in honour of H.L.A. Hart, ed. Hacker, P.M.S. and Raz, J. (Oxford, Clarendon Press, 1977) 58–84, at 84.Google Scholar

¹⁹ Taking Rights Seriously 31–39.

²⁰ Ibid., at 105.

²¹ Ibid., at 22–28.

²² Cf. Hart's pupil Raz, J., The Authority of Law (Oxford, Clarendon Press, 1979) 77Google Scholar: “The outcome of this discussion is that legal gaps are not only possible but, according to the sources thesis, inescapable. They arise, however, where the law speaks with an uncertain voice (simple indeterminacy) or where it speaks with many voices (unresolved conflicts). Contrary to much popular imagining, there are no gaps where the law is silent. In such cases closure rules, which are analytic truths rather than positive legal rules, come into operation and prevent the occurrence of gaps.” Raz's position regarding cases where the law is silent accords with that of Kelsen, infra n. 24. It is not clear that Hart would agree with this view of the status of closure rules.

²³ The Concept of Law (Oxford, Clarendon Press, 1961) esp. at 121–132. I have examined this aspect of Hart's work in some detail in a chapter of a forthcoming book on Semiotics and Legal Theory. For an excellent introduction to Hart and his work, see MacCormick, Neil, H.L.A. Hart (London, Edward Arnold, 1981)Google Scholar in the series: Jurists: Profiles in Legal Theory, ed. W. Twining.

²⁴ Kelsen, Hans, Pure Theory of Law, translated by Knight, Max (Berkeley and Los Angeles, University of California Press, 1967) 245–250Google Scholar; cf. Tammelo, supra n. 2, at 350.

²⁵ That is, they may not be determined before the judge, under authorization of a norm of the system, determines them.

²⁶ Something which Kelsen strenuously opposes.

²⁷ Pure Theory, supra n. 24, at 353–355.

²⁸ Ibid., at 351. This theme is even more prominent in Kelsen's later essays, on which see Jackson, supra n. 23.

²⁹ Ibid., at 354. For an interpretation of this problem in Kelsen, see Losano, Mario, Forma e realtà in Kelsen (Milan, Edizioni di Comunità, 1981) 99–104.Google Scholar See also Kelsen's approach to legal errata, discussed by Paulson, S. L., “Material and Formal Authorisation in Kelsen's Pure Theory” (1980) 39 C.L.J. 172–193.CrossRefGoogle Scholar

³⁰ For autobiographical material, and extra-judicial assessments of his own judicial activity, see Denning, Lord, The Discipline of Law (London, Butterworths, 1979)Google Scholar; idem, The Due Process of Law (London, Butterworths, 1980); idem, What Next in the Law? (London, Butterworths, 1982); idem, The Family Story (London, Butterworths, 1981). A pioneering recent study of judicial decision-making in the House of Lords is Paterson, Alan, The Law Lords (London, MacMillan, 1982)CrossRefGoogle Scholar (Oxford Socio-Legal Series). Deborah Sanders comments that Lord Denning would appear less unusual in many American jurisdictions, and cites Silkwood v. Kerr-McGee Corporation 485 F. Supp. 566 (1979) as an example of a bench in a conservatively-inclined court freely invoking social and economic factors.

³¹ [1972] 1 All E.R. 462 at 475. The reasoning as well as the criterion were innovative. See the discussion of Lord Denning's invocation of “the reason of the thing” by Stein, Peter and Shand, John, Legal Values in Western Society (Edinburgh, Edinburgh University Press, 1974) 109–111.Google Scholar

³² [1980] 1 All E.R. 17 at 35.

³³ At 37. See also at 24, 28.

³⁴ “To see just what is needed, in control of freedom to be arbitrary, while leaving the necessary freedom to be just, is a job for such (sustained) observation plus legal statesmanship”, quoted from Llewellyn, Karl L., Jurisprudence, Realism in Theory and Practice (Chicago and London, University of Chicago Press, 1962) 144Google Scholar, by Lloyd, Lord of Hampstead, , Introduction to Jurisprudence (London, Stevens, 4th ed., 1979) 509.Google Scholar

³⁵ Supra n. 3, at 53f.

³⁶ E.g., Viviano, Benedict Thomas, Study as Worship (Leiden, E. J. Brill, 1978) 194Google Scholar: “Jesus shared with his contemporaries a conviction as to the abiding value and normative character of Torah. His ethical seriousness is not less but more intense than theirs, and theirs was very intense. For him too the relationship between master and disciple was habitual and central. But he differed from them in his rejection of the Pharisaic development of Torah, its oral tradition, which, on account of its fatal arrogance (entailed in its complexity), excluded too many sons of Abraham, and from among these excluded sons he called forth his disciples.”

³⁷ E.g., Hart, supra n. 23, at 113f. on the importance of acceptance by the officials of the secondary rules as central to the existence of a legal system. Mark Weisberg challenges me to justify the location of Dworkin as right of centre in this regard. He takes Dworkin's “constructivism” as pointing in the opposite direction. But though the ultimate source of Dworkin's principles may reside in “community morality” (assumed therefore to be “popular” in origin), those principles become legal only when they attract sufficient “institutional support” (Taking Rights Seriously 40). The role of the judge remains supreme, both in creating principles by providing institutional support and in applying those principles so as to produce the one correct answer. And in that latter regard, only a judge of “superhuman abilities” (a modern version of the philosopher-king) could be relied upon.

³⁸ See, e.g., F. K. von Savigny, quoted in Lloyd, supra n. 34, at 654.

³⁹ Supra n. 23, at 79–88.

⁴⁰ Jurisprudence, supra n. 34, at 111–115.

⁴¹ “The form however in which law lives in the common consciousness of a people is not that of abstract rules but as the living intuition of the institutions of law in their organic connexion, so that whenever the necessity arises for the rule to be conceived in its logical form, this must be first formed by a scientific procedure from that total intuition. That form reveals itself in the symbolical acts which display in visible shape the essence of the jurai relation and in which the primitive laws express themselves more intelligibly and thoroughly than in written laws” (System, translated W. Holloway, as quoted in Lloyd, supra n. 34, at 654).

⁴² E.g., Max Weber on Law in Economy and Society, ed. Rheinstein, M. (Cambridge, Harvard University Press, 1954) 243.Google Scholar

⁴³ Supra n. 3, at 67–69.

⁴⁴ Ibid., at 122.

⁴⁵ SirMaine, H. S., Ancient Law (London, John Murray, 1861) ch. IIGoogle Scholar; Pound, R., Jurisprudence (St. Paul, Minn., West Publishing Co., 1959) vol. I, pp. 361–456Google Scholar (“The End of Law”, developed from his article in (1913–14) 27 Harv. L. R. 195; “Equity and Natural Law” is here the third stage (of five), succeeding “strict law”). Today, Roberto Unger discerns a movement in postliberal society away from formality and towards equity: Law in Modern Society (New York, The Free Press and London, Collier Macmillan, 1976) 203ff.; see esp. his formulation of the opposition between formality and equity at 205.

⁴⁶ Supra n. 31, at 99 (emphasis added). This is not an isolated example of a charismatic, religious authority being delegated to institutional functionaries. There are indications that rabbinic judicial authority was conceived as the successor to prophetic authority to judge. The value of equity, as a power to override the strict law in particular cases, was given powerful expression by the Talmud, where the failure to exercise it is offered as the cause of the destruction of Jerusalem: Babylonian Talmud; Baba Bathra 30a, and see Cohn, H. H., “My Jerusalem”, (1970) 80 Yearbook of the Central Conference of American Rabbis 109–113Google Scholar, at 110f. On the exercise of such equity in early Jewish law, see further, text at nn. 73–78, infra.

⁴⁷ The Essential Piaget, ed. Graber, Howard E. and Vonèche, J. Jacques (London and Henley, Routledge & Kegan Paul, 1977) 33Google Scholar (as translated by Gruber, and Vonèche, from Piaget's prose poem, La Mission de l'Idée, 1916Google Scholar). In citing this passage, I do not seek to dismiss Piaget's mature cognitive developmental theory (most relevantly, here, The Moral Judgment of the Child, translated M. Gabain (London, Routledge & Kegan Paul, 1932) or the work that has flowed from it. The value of scientific theories is not to be debated in terms of the historical influences which may have attended their genesis.

⁴⁸ Supra n. 3, at 141.

⁴⁹ I have argued that this provides a more promising model for the legal historian than does the Piagetian and Kohlbergian theories of moral development. See my Structuralism and Legal Theory (Liverpool, Liverpool Polythechnic Press, 1979), 47–50 (Occasional Paper, 20); “Towards a Structuralist Theory of Law”, (1980) 2 Liverpool L. R. 5–30, at 30; “Historical Aspects of Legal Drafting in the Light of Modern Theories of Cognitive Development”, (1980) 3 International Journal of Law and Psychiatry 349–369.

⁵⁰ See also Tammelo, supra n. 2, at 357.

⁵¹ Tapper, Colin, Computers and the Law (London, Weidenfeld and Nicolson, 1973) xv (Law in Context).Google Scholar

⁵² Recent work in the area includes Groupe de Travail sur l'Analogie (GTA), Recueil de textes No. 3, Sept. 1981; Deontic Logic, Computational Linguistics and Legal Information Systems, ed. Martino, Antonio A. (Amsterdam, New York, Oxford, North Holland Publishing Co., 1982).Google Scholar

⁵³ Orwell, George, Nineteen Eighty-Four (Harmondsworth, Penguin Books in association with Seeker and Warburg, 1954) 45, 242.Google Scholar For the “Principles of Newspeak” generally, sec 241–51.

⁵⁴ For Hart, see supra n. 23; see also Jori, Mario, “Hart e l'analisi del linguaggio” (1979) 9 Materiali per una storia della cultura giuridica 161–228Google Scholar; Mackaay, Ejan, “Les notions floues en droit ou l'économie de l'imprécision” (1979) 53 Langages 33–50CrossRefGoogle Scholar; Moore, Michael S., “The Semantics of Judging” (1981) 54 S. Cal. L. R. 151–294, esp. 181–202.Google Scholar

⁵⁵ See Danièle Bourcier, “Intelligence Artificielle et Droit: État des Travaux”, in GTA, supra n. 52, at 13–28, esp. p. 22, on Taxman II.

⁵⁶ Supra n. 53, at 248.

⁵⁷ See Tapper, supra n. 51, at ch. 4.

⁵⁸ Whether such correctness and consistency is attainable by cognitive means (upon which the possibility of such programming would depend) is a matter of current jurisprudential debate. It is instructive to contrast the approaches of Dworkin (supra, nn. 17–21) and Kelsen (supra nn. 26–29). Both reject the possibility of determining legal correctness cognitively, on the basis of the existing rules of positive law. But Kelsen would regard Dworkin's cognitive exercise on the basis of “principles” (but not “policies”) as itself an exercise in “legal politics” (Pure Theory, supra n. 24, at 353). He accepts the cognitive approach only to the extent of admitting the existence of a “frame” within which alternative interpretations are cognitively (though not necessarily legally: see n. 29 supra) superior to those outside the frame, but within which the choice of interpretation is a matter of will and not cognition. Moreover, it is the authorised exercise of the judicial will that makes an interpretation correct, not its consistency with cognitive criteria.

⁵⁹ Indeed, Tapper suggests that “many of the currently unassisted poor might well prefer a classless, impartial and knowledgeable machine to their conception of the average legal adviser”, supra n. 51, at 208.

⁶⁰ Interesting work is being done on the formalisation of intuitive judgments. See Körner, Stephan, Experience and Conduct (Cambridge, Cambridge University Press, 1976)Google Scholar; idem, “On Logical Validity and Informal Appropriateness”, (1979) 54 Philosophy 377–379; idem, “Intuition and Formalization in Mathematics” (1981) 4 Epistemologia 113–130.

⁶¹ Frank, Jerome, Law and the Modern Mind (Garden City, N.Y., Anchor Books, 1963) 214–218Google Scholar, et passim. For Frank, this was a need which ought to be superseded in adulthood: see esp. 259–269. Cf. Cohn, supra n. 3, at 47.

⁶² We should ponder the significance of the anthropomorphisation of computers implicit in giving them human names.

⁶³ See Lloyd, supra n. 34, at 178, on Bentham, , Works, V, p. 235.Google Scholar

⁶⁴ Lamm, Norman and Kirschenbaum, Aaron, “Freedom and Constraint in the Jewish Judicial Process”, (1979) 1 Cardozo L. R. 99–133, esp. 100–105Google Scholar; Hanina Ben Menahem, “Is There Always One Uniquely Correct Answer to a Legal Question in the Talmud?”, The Jewish Law Annual, symposium on the philosophy of Jewish law, forthcoming. The issue, of course, is not debated exclusively in terms of the talmudic passage referred to in the text, infra at n. 65.

⁶⁵ Talmud, BabylonianErubin 13b.Google Scholar I have myself offered an alternative interpretation, that the passage claims for God the power to transcend the law of contradiction: “The Concept of Religious Law in Judaism”, Aufstieg und Niedergang der römischen Welt (Berlin, de Gruyter, 1979) vol. II.19.1, pp. 33–52, at 52.

⁶⁶ Consider the “thirteen exegetical principles” ascribed to Rabbi Ishmael, which have entered the liturgy of the Jewish morning service: e.g., as in The Authorised Daily Prayer Book, with translation of S. Singer (London, Eyre and Spottiswoode) 13–14, on which see Porton, Gary G., The Traditions of Rabbi Ishmael (Leiden, E. J. Brill, 1976–1982) 4 vols., at 11.63–65, IV.160–211.Google Scholar

⁶⁷ Schacht, Joseph, An Introduction to Islamic Law (Oxford, Clarendon Press, 1964) 208.Google Scholar Schacht was the leading Western student of Islamic law of the last generation.

⁶⁸ Supra n. 53, at 169.

⁶⁹ See Schacht, supra n. 67, at 120f., on the categories: obligatory, recommended, indifferent, disapproved, forbidden.

⁷⁰ On the presentation of the modalities of law in binary oppositional pairs, see my forthcoming Semiotics and Legal Theory.

⁷¹ For the modern sociology of law, this distinction is a fact which is observed with regret. For Kelsen, it is an analytical truth (Pure Theory, supra n. 24, at ch. VIII). The most substantial denial of the distinction in contemporary legal theory comes from Dworkin—for whom, however, the books (like the judgments) really require to be written by a Hercules.

⁷² Jackson, B.S., “From Dharma to Law”, (1975) 23 Am. J. Comp. L., 490–512.CrossRefGoogle Scholar

⁷³ This latter phenomenon is noted in the thesis of Ben Menahem, infra n. 74, at 10.

⁷⁴ Extra-Legal Reasoning in Judicial Decisions in Talmudic Law (Faculty of Law, University of Oxford, 1978). For a partial publication, in Hebrew, see Menahem, H. Ben, “The Respective Attitudes of the Babylonian and Jerusalem Talmuds to Judicial Deviation from the Law”, (1981) 8 Shenaton Ha-Mishpal Ha-Ivri 113–134.Google Scholar

⁷⁵ Ibid., at 4.

⁷⁶ Babylonian Talmud Ketubot 50 b; Jerusalem Talmud Ketubot 6:6 (30:9).

⁷⁷ Ben Menahem, supra n. 74, at 76–82 (1978).

⁷⁸ Ibid., at 135–142.

⁷⁹ The questions have to be asked separately in relation to the historical Jesus and the earliest sources of Christian tradition. There is much room for debate regarding the attitudes exhibited in the various gospels, notwithstanding the fact that our access to them is more direct than to those of the historical Jesus. Recent studies include: Banks, Robert, Jesus and the Law in the Synoptic Tradition (Cambridge, Cambridge University Press, 1975)Google Scholar (SNTS Monograph Series, 28); Pancaro, Severino, The Law in the Fourth Gospel (Leiden, E. J. Brill, 1975)Google Scholar; Juel, Donald, Messiah and Temple. The Trial of Jesus in the Gospel of Mark (Missoula, Scholars Press, 1977)Google Scholar (SBL Dissertation Series, 31); Meier, John P., Law and History in Matthew's Gospel (Rome, Pontifical Biblical Institute, 1976)Google Scholar (Analecta Biblica, 71); Sanders, E. P., Paul and Palestinian Judaism (London, SCM Press, 1977) 474–510.Google Scholar

⁸⁰ For the latter view, see Cohn, Haim, The Trial and Death of Jesus (London, Weidenfeld and Nicholson, 1972).Google Scholar Amongst other studies which seek to reconstruct the historical circumstances attending the condemnation of Jesus, see Paul Winter, On the Trial of Jesus, revised by Burkill, T. A. and Vermes, G. (Berlin, de Gruyter, 2nd ed., 1974)Google Scholar; most recently, Imbert, Jean, Le Procès de Jésus (Paris, Presses Universitaires de France, 1980) (Que Sais-je?).Google Scholar

⁸¹ That is not to say that the attitudes of Matthew and the redactor of John were historically uniform. In “Jésus et Moïse: le statut du prophète à l'égard de la Loi”, (1981) 59 Revue historique de droit français et étranger 341–360, I argue that the form in which Jesus is made to endorse the wisdom-law tradition in Matthew itself reflects a claim to the special authority of a (non-eschatological) “prophet-like-Moses” (Deut. 18), since the law is presented in the prophet's personal formulation. In the synoptics, Jesus is not made to claim judicial authority to override the law, but the exercise of such authority in John appears to represent an alternative interpretation of the prophetic model.

⁸² E.g., Matthew 23:3, Mark 7:1–13.

⁸³ See Jackson, supra n. 81, at 358, on the bat kol, proof of legal propositions by miracles, the use of testes singulares, and aspects of the “prophet-like-Moses” tradition itself.

⁸⁴ Ben Menahem, supra n. 74, at 96–110 (1978), and in (1981), passim.

⁸⁵ Jackson, supra n. 81, at 359–360.

⁸⁶ Hanson, Bo, Application of Rules in New Situations. A Hermeneutical Study (Lund, CWK Gleerup, 1977)Google Scholar (Studia Philosophiae Religionis 3) esp. at 138–140.

⁸⁷ The act-initiation function is stressed by various versions of the command theory; the function of argumentation is stressed by Raz, Joseph, Practical Reason and Norms (London, Hutchison, 1975).Google Scholar

⁸⁸ Thus, the analytic distinction on which Kelsen insisted (supra n. 71) can be supported on functional grounds. Judicial pronouncements are not lacking in support. See, e.g., MacMillan, Lord in Read v. Lyons & Co., [1947] A.C. 156Google Scholar, at 175: “Arguments based on legal consistency are apt to mislead for the common law is a practical code adapted to deal with the manifold diversities of human life and as a great American judge has reminded us, ‘the life of the law has not been logic; it has been experience’.” (The reference is to Oliver Wendell Holmes).

⁸⁹ Ben Menahem, supra n. 74, at ch. 6 (1978).

⁹⁰ For an introductory survey of work in this field, see Lloyd, supra n. 34, at 468–476.