1. The best article on historicism is Reimann, Mathias, Nineteenth Century German Legal Science, 31 B.C. L. Rev. 837 (1990)Google Scholar. Other English articles include Gale, Susan Gaylord, A Very German Legal Science: Savigny and the Historical School, 18 Stanford J. Int'l L. 123 (1982)Google Scholar; Wintgens, Luc J., From Law without a Science to Legal Science without the Legislator: The German Historical School and the Foundation of Law, 31 Statute L. Rev. 85 (2010)Google Scholar.

2. Reimann, supra note 1, at 843.

3. Id. at 848-49.

4. von Savigny, Carl Friedrich, Of the Vocation of the age for Legislation and Jurisprudence 137 (Hayward, Abraham trans., Littlewood & Co. 1831)Google Scholar.

5. Id. at 38-39.

6. Reimann, supra note 1, at 859-60.

7. Id. at 860.

8. Id. at 865.

9. Id. at 886-87.

10. For more on Classical Legal Thought, see generally Gilmore, Grant, The Ages of American Law (Yale Univ. Press 1979)Google Scholar; Duncan Kennedy, The Rise and Fall of Classical Legal Thought, unpublished manuscript, available at www.duncankennedy.net; Kennedy, Duncan, Three Globalizations of Law and Legal Thought: 1850-2000, in The New Law and Economic Development: A Critical Appraisal 29 (Trubek, David & Santos, Alvaro eds., Cambridge Univ. Press 2006)Google Scholar; Horwitz, Morton J., The Rise of Legal Formalism, 19 Am. J. Legal History 251 (1975)Google Scholar; Horwitz, Morton J., The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Oxford Univ. Press 1992)Google Scholar; Wiecek, William M., The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937 (Oxford Univ. Press 1998)Google Scholar. For a fresh, and thoroughly skeptical take on the existence of a defined and cohesive movement that can be called Classical Legal Thought, see Tamanaha, Brian Z., Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton Univ. Press 2010)Google Scholar.

11. The classic study of Langdell's contribution to legal science is Grey, Thomas, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1 (1983)Google Scholar.

12. Langdell, Christopher Columbus, A Selection of Cases on the Law of Contracts vi–vii (1st ed., Little Brown 1871, reprinted by The Lawbook Exchange, Ltd. 1999)Google Scholar.

13. See Grey, supra note 11, at 31.

14. Recent scholarship has pointed out some differences between the views of Langdell and those of his contemporaries in the United States. While it was true that many late-19th-century theorists in the United States believed that law was a system of principles that could be inductively uncovered from the existing cases and be deductively applied to new cases, these theorists disagreed as to the nature of the principles themselves. According to Thomas Grey's view of Langdell, the principles were amoral—they were human formulations of whatever best explained the most cases. See Grey, supra note 11, at 31. But others, such as Francis Wharton, James Coolidge Carter and Christopher Tiedeman, agreed with the historicists that the principles evinced by the cases were historical and that their coherence was due to their emanation from a certain national spirit. And yet others, such as Joel Bishop, saw the law's classical structure as a microcosm of the divine order found in creation. See Grossman, Lewis A., Langdell Upside-Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anticodification, 19 Yale J.L. & Human. 149 (2007)Google Scholar; LaPiana, William P., Jurisprudence of History and Truth, 23 Rutgers L.J. 519 (1992)Google Scholar; Siegel, Stephen A., Francis Wharton's Orthodoxy: God, Historical Jurisprudence, and Classical Legal Thought, 46 Am. J. Legal Hist. 422 (2004)Google Scholar; Siegel, Stephen A., Historism in Late Nineteenth-Century Constitutional Thought, 1990 Wis. L. Rev. 1431 (1990)Google Scholar; Siegel, Stephen A., Joel Bishop's Orthodoxy, 13 L. & Hist. Rev. 215 (1995)Google Scholar; Siegel, Stephen A., John Chipman Gray and the Moral Basis of Classical Legal Thought, 86 Iowa L. Rev. 1513 (2001)Google Scholar.

In a number of studies, Bruce Kimball has questioned even Grey's portrait of Langdell, and has asserted that Langdell's amoral approach is a myth perpetrated by the legal realists to explain why the entire classicist approach was fundamentally flawed. See Kimball, Bruce A., The Langdell Problem: Historicizing the Century of Historiography, 1906-2000s, 22 Law & Hist. Rev. 277 (2004)Google Scholar. Rather, Kimball identifies Langdell as a “moral classicist” of the type noted above. See Kimball, Bruce A., Langdell on Contracts and Legal Reasoning: Correcting the Holmesian Caricature, 25 Law & Hist. Rev. 345, 395 (2007)Google Scholar; see also Grossman, supra at 161.

Brian Tamanaha is generally skeptical of the existence of a classicist approach. He maintains that while academics often asserted idealized views which regarded the law as a logical system of principles, few practitioners seriously believed that law worked that way in the real world. See Tamanaha, supra note 10, at 31, 50. Furthermore, even academics often admitted that in practice, the law failed to live up to its principled theory. Id. at 51-54. Nevertheless, Tamanaha admits that these idealized views did exist, and that in Germany they were far more prevalent than in the United States. Id. at 26, 54.

15. For a book length treatment of Brisk's methodology, see Solomon, Norman, The Analytic Movement: Hayyim Soloveitchik and His Circle (Scholars Press 1993)Google Scholar. For more on the history and methods of the Brisker method and other Jewish conceptual movements, see Shapiro, Marc B., Review Essay, The Brisker Method Reconsidered, 31 Tradition 78 (1997) (review of Solomon's book)Google Scholar; Lichtenstein, Aharon, The Conceptual Approach to Torah Learning: The Method and Its Prospects, in Leaves of Faith: The World of Jewish Learning 19 (Ktav Publ'g House 2003)Google Scholar; Adler, Yitzchak, Iyun Be'Lomdut (Sha'ar Press 1989) (comprehensive methodological analysis)Google Scholar; Saiman, Chaim, Legal Theology: The Turn to Conceptualism in Nineteenth-Century Jewish Law, 21 J.L. & Religion 39 (2006) (Brisk's legal theology and comparisons to historicism and classicism)Google Scholar; Rosenberg, Shimon Gershon, Be-Torato Yehegeh: Limmud Gemara Ke-Vakashat Elokim 46-104 (Meor, Zohar ed., Mechon Kitvei Rav Shagar 2009) (comparison of Brisk and other Jewish conceptual methods from that period)Google Scholar.

16. For an excellent study of the yeshiva movement in general and Volozhin in particular, see Stampfer, Shaul, Lithuanian Yeshivas of the Nineteenth Century: Creating a Tradition of Learning (Taylor-Guthartz, Lindsey trans., Liftman Library 2012) (originally published in Hebrew in Jerusalem 1995)Google Scholar.

17. See Saiman, supra note 15, at 43-44. On the ideology of torah lishmah, see Lamm, Norman, Torah Lishmah: Torah for Torah's Sake in the Works of Rabbi Hayyim of Volozhin and His Contemporaries (Ktav PubPg House 1989)Google Scholar.

18. See Saiman, supra note 15, at 50-51.

19. Id. at 52. In particular, Soloveitchik would often say that Maimonides in his code accepted one side of the hakirah and that his interlocutors followed the other. For examples of hakirot, see id. at 53-62.

20. For more on the methods of Telz and the similarities and differences between Telz and Brisk, see Rosenberg, supra note 15 at 96-104. For further explanation of Shkop's particular approach and emphases, see Wosner, Shai, Ben Hovot Hitnahagut le-Hiyuvei Mamon: le-Virurah shel “Torat ha-Mishpatim” be-Mishnato shel ha-Rav Shimon Shkop, 24 Dine Israel 1 (2007)Google Scholar; Wosner, Shai, Hashivah Ontologit ve-Naturalistit be-Mishpat ha-Talmudi u-ve-Yeshivot Lita, 25 Dine Israel 41 (2008)Google Scholar.

21. See Saiman, supra note 15, at 41.

22. On Reines, see Bat-Yehudah, Geulah, Ish Ha-Meorot: Rabbi Ylzhak Ya'Akov Reines (Mossad ha-Rav Kook 1985)Google Scholar. For an English exposition of some of Reines's major philosophical ideas, see Wanefsky, Joseph, Rabbi Isaac Jacob Reines: His Life and Thought (Phil. Libr. 1970)Google Scholar. For a comprehensive study of Reines's religious philosophy based on his manuscripts, see Shapira, Yosef, Hagut, Halakhah Ve-Zlyonut: Al Olamo Ha-Ruhani Shel Ha-Rav Yizhak Ya'Akov Reines (ha-Kibbutz ha-Meuhad 2002)Google Scholar.

23. Reines, Isaac Jacob, Hotem Tokhnit (Reines, Abraham Dov Ber ed., Jerusalem 1934)Google Scholar. There are few studies on Reines's unique halakhic approach. Shapira, supra note 22, at 199-294, documents some aspects, but focuses primarily on Reines's unpublished manuscripts and has little to say about Tokhnit, Hotem. Jay M. Harris, How do we know this? Midrash and the Fragmentation of Modern Judaism 244-49 (SUNY Press 1995)Google Scholar, usefully discusses the novelty of Reines's approach to the connection between the Written and Oral Law and distinguishes it from the approaches of other thinkers.

24. Reines, Hotem Tokhnit, supra note 23, at 2.

25. See id. According to Hotem Tokhnit and other sources, Derekh ba-Yam's six sections were as follows. 1) The foundations of the Oral Law—which discussed the connection between the 2 Torahs. 2) Encyclopedia of concepts of the Oral Law—a list of the logical principles underlying the Sages' reasoning. 3) The concepts in reality—which explained how the concepts from the prior section were connected to sense data and higher order abstractions. Possibly, the main purpose of this section was didactic, in that it demonstrated how every unknown concept could be better understood by comparing it to a known concept. 4) The writing and the written—in which Reines addressed various issues in both the Written and Oral Law, such as rabbinic exegesis and rabbinic decrees. In this section, Reines may even have advanced a historical approach to the composition of the Mishnah. 5) Halakhic subjects and their divisions-this section seemingly would have addressed how halakha was or could be arranged in a systematic fashion, an idea to which 1 will later return. 6) The principles of the Sages' exegesis and their terminology. See id. at 4-5. My explanation of what was included in each section of Derekh ba-Yam is a composite of Reines's clarifications in Hotem Tokhnit and in a largely incomplete manuscript of Derekh ba-Yam from 1878 or 1879 (designated number 566) cited by Shapira, supra note 22, at 23, the two of which differ slightly. See also Shapira, supra note 22, at 375 (documenting the contents of the incomplete manuscript).

26. See Bat-Yehudah, Reines, supra note 22, at 24, who notes that she was unable to find Derekh ba-Yam among the many manuscripts housed in the archives of Mossad ha-Rav Kook. Bui see Shapira, supra note 22, at 23, 379, who says that the manuscript from 1878 or 1879 (designated number 566) is a mostly incomplete version of Derekh ba-Yam detailing a few examples from each of its six sections. This evidence from Shapira tends to demonstrate that it is likely that Reines never completed Derekh ba-Yam.

27. See Reines, Hotem Tokhnit, supra note 23, at 3; see also Shapira, supra note 22, at 374-75, who describes the content of Tzir Emunim and its current location in the archives of Mossad ha-Rav Kook.

28. Reines, Isaac Jacob, Urini Gedolim (Vilna 1886)Google Scholar. Reines published one other legal work, Edut be-Yaakov, in 1871 (Vilna), but it contains only localized discussions of the laws of witnesses and appears to employ little of the unique methodology Reines later describes in Hotem Tokhnit.

29. See Amiel, Moshe Avigdor, Helek ha-Zikhronot ve-ha-Ma'amarim, in Sefer ha-Yovel le-Khevod Rav Shimon Yehuda ha-Kohen Shkop 42 (2d ed., Netzah 1973)Google Scholar. Amiel states that he studied with Shkop from 1895-97. Shkop was also the most systematic of all the traditionalist conceptualists, and Amiel's work, while it far surpasses Shkop's in its systematic nature, may have been influenced by the works of his teacher.

30. For a biography of Amiel, see Bat-Yehudah, Geulah, Ish ha-Hegyonot: Rabbi Mosheh Avigdor Amiel (Mossad ha-Rav Kook 2001)Google Scholar; see also Kerstein, Solomon, Moshe Avigdor Amiel, in Guardians of our Heritage 661 (Jung, Leo ed., Bloch Publ'g Co. 1958)Google Scholar.

31. Amiel, Moses Avigdor, Darkei Mosheh: Derekh ha-Kodesh 2 vols. (1922, 1925)Google Scholar; Mosheh, Darkei: Darkei ha-Kinyanim 2 vols. (1928, 1931)Google Scholar.

32. Amiel, Moses Avigdor, Ha-Middot le-Heker ha-Halakhah 3 vols. (1939, 1942, 1945)Google Scholar.

33. See Amiel, ha-Middot (Introduction), supra note 32, at ii.

34. In general, all my citations to ha-Middot will be to the Mavo le-Heker ha-Halakhah in vol. 1. If otherwise, I will note the change.

35. As with Reines, there has been little critical study of Amiel's approach to halakha. For a good introduction to Amiel's methods and an explanation of some of the concepts found in Darkei Mosheh and ha-Middot, see Zevin, Solomon Joseph, Soferim U-Sefarim 39–79 (Abraham Zioni 1959)Google Scholar (containing separate introductions to each of the three volumes of ha-Middot followed by an essay on Darkei Mosheh); see also Fishman, Judah Leib (Maimon), Sefer ha-Yovel: Kovetz Torani Mada'i Mugash le-ha-Rav Mosheh Avigdor Amiel 112 (Mossad ha-Rav Kook 1943)Google Scholar (brief praise and description of Amiel's halakhic works on the occasion of his 60th birthday). For the relationship between Amiel's method and that of the broader conceptual school, see Solomon, supra note 15, at 110-14; see also Rabinowitz, Abraham Hirsch, The Study of Talmud: Understanding the Halakhic Mind 137–39 (Jason Aronson 1996)Google Scholar (explaining the purpose of Amiel's halakhic works and that his use of philosophical terminology distinguished him from the other traditionalist conceptualists). For a cogent explication of Amiel's approach to the history of halakha as found in his Mavo, see Tekochinski, Shelomo, Darkei ha-Limmud be-Yeshivot Lita be-Meah ha-Tesha-Esrei 143–48 (unpublished Master's Thesis under the direction of Emmanuel Etkes, Hebrew University 2004)Google Scholar.

36. Amiel, ha-Middot, supra note 32, at ii. It would appear that by 1925, when the first part of Darkei Mosheh was published, Amiel had already completed his manuscript of ha-Middot. See 1 Amiel, Darkei Mosheh, supra note 31, at pt. 2, p. iii.

37. Geulah Bat-Yehudah noted the similarities between the halakhic works of Reines and Amiel but asserted that Amiel's work was more influential because it was clearer and easier to understand. See Bat-Yehudah, Amiel, supra note 30, at 55.

38. Harris, Midrash, supra note 23, at 93. For a general discussion of rabbinic exegesis, see id. at 25-71; see also Halivni, David Weiss, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis 3–88 (Oxford Univ. Press 1991)Google Scholar.

39. Albo, Joseph, Sefer ha-Ikkarim 23:3, at 376–77 (Horev 1995)Google Scholar.

40. See Harris, Midrash, supra note 23, at 157. For more on German Reform, see Meyer, Michael A., Response to Modernity: A History of the Reform Movement in Judaism 3–224 (Oxford Univ. Press 1988)Google Scholar.

41. See Harris, Midrash, supra note 23, at 161.

42. Id. at 170-71.

43. In Tzir Emunim, Reines described the relationship between the Written and Oral Law in these terms. See Shapira, supra note 22, at 241.

44. Reines, Hotem Tokhnit, supra note 23, at 1-2.

45. For more on Malbim's approach to connecting the written and oral Torah, see Harris, Midrash, supra note 23, at 220-23.

46. Reines, Hotem Tokhnit, supra note 23, at 10 (Harris trans., in Midrash, supra note 23, at 246).

47. Id. at 11.

48. Id.

49. Throughout, I translate the Hebrew words kelal and perat as “principle” and “particular” instead of “generalization” and “specification.” “Principle” is the word most often used by historicist and classicist sources, and I believe that the definitions of “principle” and “generalization” are sufficiently synonymous.

50. Reines, Hotem Tokhnit, supra note 23, at 45-49 (with minor emendations).

51. Amiel, ha-Middot, supra note 32, at 27 (“The main task of the mind is to make from the particulars—that he grasps with his senses—general principles, and from the principles—categories. … But the task of the mind is not just from the particular to the general, but also the opposite, from the general to the particular.”).

52. Id. at 28. See also 2 Amiel, Darkei Mosheh, supra note 31, at pt. 1, p. ii (“I seek the subject of the verse, the category and principle that is within it.”).

53. Phelps, Edward J., Keener, William A., Tiedeman, Christopher G. & Christopher, C. Gray, Methods of Legal Education, 1 Yale L.J. 139, 153, 155 (1892) (Christopher Tiedeman essay)CrossRefGoogle Scholar.

54. Amiel, ha-Middot, supra note 32, at 13 (“[W]e abstract what is written or received or accepted from its external meeting and we see in it only its inner meaning, and from this we come to comparison, to compare a second thing to this, for although the external meaning of the second thing is completely different, nevertheless, the inner meeting is more important.”).

55. Id. at 14.

56. Reines, Hotem Tokhnit, supra note 23, at 137.

57. See id. at 1 (“By way of logical principles that were transmitted the Sages obtained all the rules of the halakhot from the holy spring of the written Torah.”).

58. See id. at 51-52. For Reines's use of a hakirah, see id. at 138-44.

59. See id. at 147-52.

60. See id. at 152.

61. See id. at 169-75.

62. In Moreh Nevukhei ha-Zeman, Nahman Krochmal (1785-1840), a Galician member of the Wissenschaft des Judentums circle, hinted to an understanding of the relationship between the two Torahs that was substantially similar to that of Reines and Amiel. Krochmal wrote, “They [the Sages] looked at the ways of explaining the written verses and the methods of extracting the principles from them in a particular matter, and they abstracted them from the specifics and established them as general principles.” Krochmal, Nahman, Moreh Nevukhei ha-Zeman 13 (Ravidovitz, Shimon ed., 2d ed., Ararat 1961)Google Scholar. Krochmal then proceeded to give an example from tort law, the same one given by Reines and Amiel:

Regarding the laws of damages, they extracted from the specific and unique examples that are in the Torah that which is essential to each of them and shared among all of them, and what distinguishes each type of damage from any other in its essence and therefore in its laws, and they called the principles by the name avot, and their particulars, which are numerous without end—toledot.

Id. Perhaps Reines was influenced by Krochmal's approach here. Curiously, Krochmal says nothing of this method when discussing the relationship of the Written and Oral Law later in his work. Id. at 189-90. See 1 Tchernowitz, Chaim, Toledot ha-Halakhah part 1, at 101–04 (Toledot ha-Halakhah Publication Cmte. 1934)Google Scholar, who points out this discrepancy. Tchernowitz himself maintained, similarly to Reines, Amiel, and perhaps Krochmal, that the written Torah spoke only of specific cases, and that the great creative enterprise of the Oral Law was to uncover the principles that lay behind them. Id. at 102-03. Interestingly, Tchernowitz also provides the same example from tort law cited by all three of the other thinkers. Id. at 103. It is certainly significant that both Krochmal and Tchernowitz were heavily influenced by historicism, particularly Savigny, in their approaches to the history of halakha. See Harris, Jay M., Nahman Krochmal: Guiding the Perplexed of the Modern Age 226–32 (N.Y. Univ. Press 1991) (discussing Savigny's influence on Krochmal)Google Scholar; Tchernowitz, supra, at 129-33 (citing Savigny, Puchta and the Historical School).

63. See Reines, Hotem Tokhnit, supra note 23, at 50.

64. Id. at 51.

65. See id.

66. Id.

67. Id.

68. See Rosenberg, supra note 15, at 100-01. Rosenberg contrasts this approach with that of the Briskers, who believed that the ultimate reason for every law remained hidden and could not be uncovered by human intellect. See infra Sect. II.E and note 133.

69. Rosenberg, supra note 15, at 102-03.

70. Reines, Hotem Tokhnit, supra note 23, at 41.

71. 2 Amiel, Darkei Mosheh, supra note 31, at pt. 1, p. ii.

72. Id.

73. See Exod 21:28-32 (goring ox); 21:33-34 (pit); 22:4 (grazing cattle); 22:5 (fire).

74. See Babylonian Talmud Bava Kamma 2a. Whether the term “ma 'aveh” in the Mishna refers to stray cattle or torts performed directly by persons is a dispute in the Talmud. See id. at 3b.

75. See id. at 3b-4a.

76. See id. at 2b-3b.

77. See id. at 2b.

78. See, e.g., id. at 6a-6b.

79. Reines, Hotem Tokhnit, supra note 23, at 52-53 (“We abstract ‘goring’ from its external form and establish it according to its internal concept. And the internal concept,… is the concept of ‘intent to do damage.’”). See also Amiel, ha-Middot, supra note 32, at 28.

80. Amiel, ha-Middot, supra note 32, at 28 (“In this itself we see two methods: inductive reasoning-to create from the particulars avot (primary categories) of damages; and also deductive reasoning-after that to extract from the avot a multitude of toledot (new particulars).”). See also Reines, Hotem Tokhnit, supra note 23, at 52-53.

81. See Reines, Hotem Tokhnit, supra note 23, at 53-54; Amiel, ha-Middot, supra note 32, at 28-29.

82. Amiel reasoned inductively from the Talmud, but did not reapply the principles he derived in a deductive or systematic fashion. Cf. Zevin, supra note 35, at 74.

83. See Reines, Hotem Tokhnit, supra note 23, at 4-5, where he discusses the contents of Derekh ba-Yam. Shapira notes that in the incomplete manuscript of Derekh ba-Yam from 1878 or 1879, the fifth section contains only a couple pages on the laws of betrothal and the rest is blank. See Shapira, supra note 22, at 23. While Reines cites the fifth section of Derekh ba-Yam in Hotem Tokhnit at least once, see Reines, Hotem Tokhnit, supra note 23, at 113, that does not preclude the possibility that it was largely unfinished.

84. See Reines, Urim Gedolim, supra note 28, at 1-4.

85. See. e.g., id at 7, 21.

86. See, e.g., id. at 56, 124.

87. See, e.g., Reines's discussions in Hotem Tokhnit, supra note 23, at 137-75.

88. For more on the early history of the Mishpat Ivri movement, see generally Radzyner, Amihai, Between Scholar and Jurist: the Controversy over the Research of Jewish Law using Comparative Methods at the Early Time of the Field, 23 J.L. & Religion 189, 193-99 (2008)Google Scholar; Likhovski, Assaf, The Invention of “Hebrew Law” in Mandatory Palestine, 46 Am. J. Comp. Law 339, 341–48(1998)Google Scholar.

89. 1 Gulak, Asher, Yesodei ha-Mishpat ha-Ivri vi (Dvir Co. 1967)Google Scholar.

90. Id.

91. See Englard, Izhak, Research in Jewish Law: Its Nature and Function, in Jackson, Bernard S., Modern Research in Jewish Law 42–45 (E.J. Brill 1980)Google Scholar.

92. Gulak, supra note 89, at 3 (as translated by Izhak Englard in Modern Research in Jewish Law, supra note 91, at 43-44, with minor modifications).

93. Gulak differed from Reines and Amiel in that he accepted Savigny's historical program in its entirety and believed that the source of Jewish law was the spirit of its people. He wrote, “[I]ts roots [the halakha's] are in the religious recognition of the nation,” id. at 7 (translation mine), and that, “the disparate laws of every nation are connected and united one to the other and one spirit resounds within them.” Id. at 3.

Gulak's systematic and comparative work is somewhat similar to the work of Herzog, Rabbi Isaac Halevi (1888-1959) The Main Institutions of Jewish Law 2 vols. (Soncino Press 1965) (originally published in London 1936)Google Scholar. Herzog, then chief rabbi of Ireland, presented a number of aspects of Jewish civil law systematically and compared them to English common law for the ease of the English reader. See id. at xv. Herzog's work has also been identified as an early example of Mishpat Ivri. See generally Radzyner, supra note 88. Herzog explicitly references his reliance on Gulak's work in his introduction, Herzog, supra, at xv, and Gulak was indebted to Herzog for his help as well. Gulak, supra note 89, at vii. However, although Herzog traces the halakha down from its principles to its particulars, he makes no references to historicism or classicism, and uses none of the language commonly employed by the adherents of those schools.

94. See Radzyner, supra note 88, at 228-34, who cites critiques of Gulak made by Rabbis Joseph Babad, Abraham Elijah Kaplan, and Jehiel Jacob Weinberg which all went along the same lines. These rabbis were also deeply skeptical of Gulak's use of modern scientific methodology to organize the halakha, as their conception of halakha's divine origin made halakha impervious to the tools used by other legal systems. For the same reason, these rabbis were particularly perturbed by Gulak's frequent comparisons between halakha and Roman law. For a similar modern critique of Gulak, see Englard, supra note 91, at 45, who maintains that Gulak's work is merely of a summary nature and that it presents general principles at the expense of their particulars. Englard also says that Gulak glosses over differences of opinion and ignores many important halakhic sources.

95. Reines, Hotem Tokhnit, supra note 23, at 9.

96. Short for Wissenschaft des Judentums, “the scientific study of Judaism.” This movement, which began in mid-19th-century Germany, involved Jewish scholars of varying religious backgrounds and beliefs studying the historical foundations of the Jewish religion. For more on Wissenschaft, see Schorsch, Ismar, From Text to Context: The Turn to History in Modern Judaism 158–73 (Brandeis Univ. Press 1994)Google Scholar.

97. Amiel, ha-Middot, supra note 32, at 3.

98. Id.

99. Id. at 6.

100. Id.

101. Id. at 26.

102. Id.

103. Id. at 40-41.

104. Id. at 43.

105. Id. at 43-44.

106. See id. at 52-54.

107. See id. at 15-20.

108. See id. at 21-22.

109. See id. at 26.

110. Id. at 21.

111. See id. at 22.

112. See id. at 20-21.

113. See id. at 21.

114. For example, the first of Amiel's twenty-three principles to which he believed all of halakhic reasoning could be reduced is “cause and effect.” One aspect of this principle is that every cause comes before its effect. If an owner of a field who cuts one stalk of wheat is now obligated to leave a corner of that field for the poor, that obligation—the effect of the cutting—cannot impart a similar obligation to the object causing the obligation—the first stalk that was cut. Therefore, one would not have to leave part of the first stalk for the poor. See Amiel, ha-Middot (not the Mavo), supra note 32, at 2. For a brief introduction elucidating each of Amiel's principles, see Zevin, supra note 35, at 39-72.

115. Amiel, ha-Middot (introduction), supra note 32, at ii.

116. Id. (Mavo) at 7.

117. Throughout Hotem Tokhnit, Reines, like Amiel after him, lists numerous modes or principles of reasoning that served as the foundation for both rabbinic exegesis and talmudic discussion. Many of the principles are the same ones later discussed more fully by Amiel, such as the principle of cause and effect noted above. All of Reines's and Amiel's modes of reasoning employ secular terminology that does not come from the Talmud itself, e.g., “cause and effect.”

118. See Reines, Hotem Toknit, supra note 23, at 45 (“[T]he point of this method of extraction is to make principles from the particulars. It is analogous to the synthetic and analytic judgments regarding physical things.”). See also Amiel, ha-Middot, supra note 32, at 27-28.

119. See Amiel, ha-Middot (introduction), supra note 32, at iii (“There is no wisdom in the world whose theoretical underpinnings are not based on firm rational attributes, and it is possible, through rational abstraction, to unpack the external issues with which one is dealing and find the rational point in them. And how could it be that the wisdom of the Talmud is just [based on] reasoning that hovers in the air, without any firm and lasting principles?”).

120. Recall Savigny, supra note 4, at 38-39, who compared law to geometry. To give another example of scientific analogy, a mid-19th-century legal scholar, William Hammond, wrote that the common law,

[M]ust be learned, like the laws of the physical world, inductively. The decided cases of the past are so many observations upon the practical working of these laws, from which the true theory is to be inferred, precisely as the astronomer infers the true form of the planet's orbit from his observations of its position at many different times.

Quoted in Bliss, Philemon, of Sovereignty 46 (Little, Brown & Co. 1885)Google Scholar.

121. Rernes, Hotem Tokhnit, supra note 23, at 41-42.

122. Id.

123. Elsewhere, in an unpublished manuscript, Reines claimed that halakha was even better suited to logical organization than the natural sciences. Reines said that discovery of new scientific phenomena that did not fit well into any existing category was common, and that it challenged existing rules and methods of classification. The Torah, on the other hand, does not contain “new phenomena,” but is a closed system in which every new law must by definition relate to an existing principle or category. In a sense, one might say that Reines thought halakha was more similar to geometry than to the natural sciences. See Shapira, supra note 22, at 236, citing manuscript no. 572 from the archives at Mossad ha-Rav Kook, described in id. at 373 n.21.

124. Amiel, ha-Middot, supra note 32, at 24.

125. Id. at 35.

126. Id. at 24.

127. Id. at 25.

128. See id. at 24.

129. Id.

130. See id. at 35.

131. See Saiman, supra note 15, at 76-84, and particularly 82-84. Most strikingly, Saiman quotes an idea attributed to Soloveitchik in which Soloveitchik demonstrates that even those commandments commonly attributed to reason are only reasonable because the Torah says so:

There are commandments, such as assisting one's fellow to load and unload his donkey, which are the foundation of civilized society. Similarly, commandments from which we are forbidden such as murder and theft prevent the destruction of society. One may think that the reason the Torah instituted these commands is in order for society to function. But in truth, the fact is the opposite. Because there is a commandment not to murder, therefore murder leads to destruction. Similarly, regarding charity, because the Torah commanded to give charity, such an act sustains the world.… Thus the universe is created in accordance with the Torah, and the Torah is the blueprint of the creation. For in truth, a universe could be created in which murder would sustain society and charitable deeds would destroy it—is the hand of God limited? Rather, because the Torah commanded us to perform charitable deeds and refrain from murder the universe was created in a fashion in which charity sustains the world while murder destroys it. Everything is in accord with what is written in the Torah; and not that the Torah was given on the basis of the world. The Torah predated the creation, as it is stated “God looked into the Torah and created the universe.”

Id. at 82-83. Amiel also states that even the commandments that appear rational are hukim—laws that one cannot understand the reason for. See Amiel, ha-Middot, supra note 32, at 22-23. Yet this is somewhat at odds with the approach of Amiel's teacher, Shkop, who disagreed with the Briskers and emphasized that one could grasp the reasons for halakha with one's intellect. See Rosenberg, supra note 15, at 98. And, as discussed extensively, Amiel often validated the importance of logic, reason and intellect. Perhaps the polemical nature of Amiel's work explains this discrepancy. Amiel agreed with Shkop that halakha could be understood by reference to physical concepts, and in particular, through logic. However, Amiel was unwilling to posit that the essence of halakha or its reasons could be understood in this manner because that would concede too much to Reform and the haskalah, who believed that halakha could be changed if its reasons were no longer relevant.

132. Reines, Hotem Tokhnit, supra note 23, at 45 (see asterisk on bottom). Reines's harmonistic view that found parallels between the physical and spiritual worlds is central to his views on Divine providence and God's role in history, which ultimately influenced his Zionist philosophy. See Schwartz, Dov, Faith at the Crossroads: A Theological Profile of Religious Zionism 49–52 (Stein, Batya trans., Brill 2002)Google Scholar.

133. Amiel, ha-Middot, supra note 32, at 23; see also at 36.

134. There are some interesting parallels between this aspect of Reines's and Amiel's thought and that of the classical thinker Joel Bishop in the United States. As noted above, Bishop saw the law's classical structure as a microcosm of the divine order observed in creation. See Siegel, Joel Bishop's Orthodoxy, supra note 14, at 232-35, 253-54.

135. See Wosner, Hashivah Ontologit, supra note 20, at 47 n. 14.

136. See Rosenberg, supra note 20, at 98-99. See generally Wosner, Hashivah Ontologit, supra note 20.

137. Wosner, Hashivah Ontologit, supra note 20, at 48-50.

138. Amiel did follow the Telzer approach when analyzing halakhic principles in the latter sections of ha-Middot. For example, he states that the concept of “cause and effect” operates the same way in halakha as it does in nature, and therefore, it is impossible for an effect to come before its cause. See id at 61; see also Amiel, ha-Middot (not the Mavo), supra note 32, at 2; supra Sect. II.D note 115.

The Briskers, unlike the Telzers, thought that halakhic principles were abstract and completely divorced from nature and the physical world. See Rosenberg, supra note 20, at 9899. For this reason, the Briskers believed that one could not fathom the reasons for halakha. The Telzers believed that in many cases, the human intellect could comprehend the reasons for individual halakhot. See id. at 96-98; see also supra Sect. II.B. 1 and Sect. II.E, note 133.

139. Savigny, supra note 4, at 38-39.

140. See Grey, supra note 11, at 16-20 for a discussion of the geometric certainty theorists like Langdell attributed to this classical system. But Brian Tamanaha questions the prevalence of this view in the United States. He notes that the early realists considered the notion of deductive certainty both the linchpin of classicism and its fatal flaw. See Tamanaha, supra note 10, at 2728. Yet Tamanaha asserts that there is little evidence supporting the idea that a sizable percentage of formalist academics or practitioners truly believed in the certainty of the law. To the contrary, Tamanaha demonstrates that most of those who are commonly labeled classicists had a healthy dose of realism when it came to this admittedly fanciful proposition. See id. at 49-56. Tamanaha admits that a belief in deductive certainty was much more common among historicists because the actual civil code could be applied in prescribed ways to the facts of new cases. See id. at 52.

141. Mayes, Daniel, Whether Law is a Science?, 9 Am. Jurist & L. Mag. 349, 355 (1833)Google Scholar.

Even Mayes said that while the rules of law were like mathematical axioms, their application was of substantial uncertainty because of human error and imprecision. See id. at 355-56.

142. See Shapira, supra note 22, at 236 and supra Sect. II.E.

143. See Reines, Hotem Tokhnit, supra note 23, at 11. It is interesting to consider whether Reines's and Amiel's logical and systematic approach to the Talmud affected the way in which they made practical halakhic decisions. Saiman noted that the Briskers were reticent to allow their method to influence the way in which they decided halakhic issues that came before them. Soloveitchik once even refused to examine the reasoning of another rabbi out of concern that he would be unduly influenced by his own conceptual methodology. See Saiman, supra note 15, at 73-74. I have not studied any of Reines's or Amiel's responsa, which, if extant, are unpublished. However, I would imagine that because of their traditionalism, neither Reines nor Amiel employed logic to interpret any area of halakha differently than the way in which it was commonly understood.

144. Reines, Hotem Tokhnit, supra note 23, at 178.

145. See Amiel, ha-Middot, supra note 32, at 59.

146. See id. at 63.

147. See id. at 66, where Amiel says that sometimes studying Talmud is more like mathematics, in that one must keep track of the discussion's logical steps, while at other times, it is more akin to science, in that one must find the proper logical concepts to frame the discussion.

148. Id. at 67.

149. Id. at 68-69.

150. Id.

151. Id. at 68.

152. Reines, Hotem Tokhnit, supra note 23, at 11. See also id. at 4, 12, 13. Similarly, in Yesodei ha-Mishpat ha-Ivri, Asher Gulak wrote, “By understanding the main principles and the structure of judicial institutions the [rest] of the structure arises of its own accord.” Gulak, supra note 89, at 4.

153. Reines, Hotem Tokhnit, supra note 23, at 13. Reines's focus here on accessibility is in tension with other parts of Hotem Tokhnit in which he asserts that the principles of the Oral Law were hidden within the written Torah in order that one would have to exert their intellectual energies to uncover and extract them. See id. at 50-51 and supra at Sect. II.B.1. Yet it is possible that Reines believed that it was the lot of the scholar to both unpack the hidden depths of the halakha and then to simplify and organize his discoveries so that they could be understood by the common practitioner of Jewish law. While torah lishmah was of paramount importance to the learned talmudist, more practical considerations could inform the study of others.

154. 1 Tchernowitz, Chaim, Kitzur ha-Talmud pt. 1 (Berlin 1919)Google Scholar (containing an abridgement of the tractates of Berakhot, Rosh ha-Shanah, and Yomd). Tchernowitz was a talmudist and critical scholar who founded a modern, Wissenschaft-style yeshiva in Odessa in 1907 and later taught in the United States at the Jewish Institute of Religion. Like Reines and Amiel, he also demonstrated an interest in teaching the halakha in a conceptual and systematic manner.

155. Id. at iv.

156. Id. at v. Tchernowitz also wrote, “Even more than this, this abridged Talmud will make it easier for the student to learn the Gemara—even its most difficult parts, and in a short time one will have in his hand an index of the Talmud for he who has enough patience to learn it in its entirety.” Id.

157. Another religious thinker of this period, Rabbi Hayyim Hirschenson (1857-1935), who lived in Palestine, Eastern Europe and the United States, also felt that in the modern era, there should be a new method allowing those without the leisure for full time Torah study to still amass a wealth of knowledge regarding the Oral Law. He proposed that the Oral Law should be scientifically systematized and studied like a university subject. In one of his early works, Mosdot Torah she-Ba'al Peh (1889), Hirschenson suggested an approach akin to Reines's—one of inductively derived principles that branched downward to specifics. Yet Hirschenson also believed that students must be introduced to the intricate give-and-take of the Talmud at the same time. See Schweid, Eliezer, Democracy and Halakhah 103–05 (Hadary, Amnon trans., Jerusalem Center for Public Affairs 1994)Google Scholar. Hirschenson was close with Reines; see Schweid, id. at xx, and perhaps borrowed some of his ideas. Hirschenson's approach is worthy of further study.

158. Methods of Legal Education, supra note 53, at 139-42 (Edward Phelps essay). See also id. at 150-58 (Christopher Tiedeman essay).

159. See supra Sect. II.C.

160. Reines's approach had plenty of detractors. For example, in 1905, ha-Peles, a conservative and anti-Zionist rabbinic monthly, attacked Reines for the modernism of both his Lida yeshiva (whose curriculum included traditional Talmud study and secular studies) and his halakhic methodology. See Maginei ha-Da'at (pseudonym), Yeshivat Ara'i, 5:11 ha-Peles 673 (1905) [hereinafter ha-Peles]. The article maintained that Reines's methodology, which used foreign (secular) terminology, was “new” and prohibited by R. Moses Sofer's (1762-1839) pun on the halakhic dictum, “All that is new (hadash) is prohibited by the Torah.” id. at 673-74. Furthermore, the article stated that Reines impliedly assisted the very scoffers he sought to disprove because one could infer from Reines's approach that earlier authorities who did not employ Reines's logical methods did not fully understand the Talmud. Id. at 674. In Hotem Tokhnit, Reines actually addressed the concern of “newness” by explaining that Sofer's pithy dictum arose in only one particular context and should not be extended to encompass every innovation in Torah study, especially those, like Reines's, which were based on firm traditional foundations. See Reines, Hotem Tokhnit, supra note 23, at 8 (asterisk on bottom). However, Reines still often insisted on the novelty of his halakhic approach. See id. at 7 (where he says that his book contains “novel paths not trod”). Amiel, on the other hand, tended to stress that his method was only one oft-revisited stage in the dialectal shift between generalization and particularization, in which each generation added only a little by standing on the shoulders of giants. See supra Sect. II.D and Amiel, ha-Middot, supra note 32, at 18-22.

161. Reines probably sent Urim Gedolim to a number of the rabbinic authorities of his day. Berlin, in his letter to Reines, states that he received “his [Reines'] book Urim Gedolim and his open letter.” Berlin, Naftali Tzvi Judah, She'Elot U-Teshuvot Meishiv Davar 5:44, 40 (Jerusalem 1993)Google Scholar. The term “open letter,” like the modern term “form letter,” was often employed when the same book and accompanying letter was sent to a number of recipients. I would like to thank Professor Jacob J. Schacter of Yeshiva University for helping me translate the difficult rabbinic Hebrew of Berlin's letter.

162. The letter is dated: “the thirty-first day of the count of the children of Israel, 1887,” which refers to the thirty-first day of the fifty day period between Passover and Pentecost. In 1887, that day was May 10.

163. Id.

164. Id.

165. Id.

166. See Hos 12:1 “ve-Yehudah od rad levavam im El—but Judah stands firm with God,” (Jewish Pub. Soc'y 2003)Google Scholar.

167. The title page to Urim Gedolim reads,

This book Urim Gedolim (Great Lights) includes correct explanations and deep inquiries into the source of laws, and many principles, rules, and teachings that forge a clear and straight path in the sea of the Talmud, and all who study it will say, “I saw a great light in the sea of the Talmud.” Reines, Urim Gedolim, supra note 28, at title page.

168. See Zech 14:6 “oryekarot ve-kipaon” (trans, uncertain).

169. See Rashi to Deut 22:17, s.v. u-farsu ha-simlah, “The matter [concerning the betrothed girl falsely accused of adultery] becomes clear like a garment.”

170. Id.

171. As noted above, contrary to Berlin's accusations, Reines did believe that Torah was complex and that one must toil in its study in order to see the fundamental principles that united its oral and written components. See supra Sect. II.B.1. Yet Berlin was correct in asserting that Reines intended to systematize the Oral Law for those not as adept in its study.

172. See Shapiro, The Brisker Method Reconsidered, supra note 15, at 78 n.l, who says that Berlin's critique of Reines is similar to the critique in ha-Peles because both were concerned with the newness of Reines's method. But while “newness” is an element of Berlin's critique, it is certainly not his primary focus.

173. See Elon, Menachem, Jewish Law: History, Sources, and Principles Vol. 3, at 1541–48 (Auerbach, Bernard & Sykes, Melvin J. trans., Jewish Pub. Soc'y 1993)Google Scholar; see also Schachter, Jacob, Talmudical Introductions down to the Time of Chajes, in Chajes, Zevi Hirsch, The Students' Guide Through the Talmud (Mevo ha-Talmud) xv–xx (Schachter, Jacob trans., Yashar Books 2005) (originally published in Zolkiev 1845)Google Scholar. Among the most prominent of these guidebooks were Sefer Keritut by Samson of Chinon (late 13th-century France), Halikhot Olam by Joshua ha-Levi (15th-century Spain), and Yad Malakhi by Malakhi ha-Kohen (18th-century Italy).

174. See Elon, supra note 173.

175. See, e.g., Reines, Hotem Tokhnit, supra note 23, at 260-61. Prior to listing the secular modes of logical reasoning underlying talmudic discussion, Reines asserts that the Sages used these same principles but called them by different names.

176. Luzzatto, Moses Hayyim, Derekh Tevunot (Sackton, Rabbis David & Tscholkowsky, Chaim trans., 3d ed., Feldheim Publishers 1997) (originally published in Amsterdam 1743)Google Scholar. Luzzatto, an 18th-century Italian poet, philosopher, and kabbalist, was an interesting and controversial figure in his own right.

177. See id. at 4-8.

178. In a manuscript containing paragraphs from 1878-82, Reines himself notes parallels between his works and some of these earlier guidebooks, including Luzzatto's. Yet Reines says that these guidebooks only used logic to explain terminology or the give-and-take of talmudic discussions, but did not use logic to penetrate the Talmud's true depth or essence. See Bat-Yehudah, Reines, supra note 22, at 23-24 & n.3.

179. See, e.g., Reines, Hotem Tokhnit, supra note 23, at 137-52. Reines employs a hakirah at 143-44.

180. See supra Sect. III.E.

181. See Reines, Hotem Tokhnit, supra note 23, at 260-61 (explaining that the Sages reasoned based on the same timeless modes of logic but used different terms); Amiel, ha-Middot, supra note 32, at 7, 22 (noting that the principles of logic are unchanging) and (claiming that the conceptual method itself is not really new, but merely a phase in the age-old dialectical shift between generalization and particularization).

182. See Saiman, supra note 15, at 96 (Briskers entirely disinterested in history).

183. Id. at 97.

184. Id. at 75, 97 (Briskers unreflective and unwilling to admit that their approach was innovative).

185. Amiel, ha-Middot (introduction), supra note 32, at i.

186. Id. (introduction) at iv.

187. See Schwartz, supra note 132, at 140.

188. See Amiel, Moses Avigdor, ha-Tzedek. ha-Sotziali ve-ha-Tzedek ha-Mishpati ve-ha-Musari Shelanu 7–8 (Hebrew side of the book) (Menachem, Rabbi & Slae, Bracha trans., The Rabbi Amiel Library 1992) (originally published in Tel-Aviv 1935)Google Scholar.

189. See Rabinowitz, The Study of Talmud, supra note 35, at 142 n.2. Rabinowitz actually heard from Amiel's son-in-law that Amiel himself attributed the genesis of his method to Reines.

190. There were other halakhic thinkers, with whom I have not dealt at any length, who were also influenced by various aspects of historicism and classicism. Nahman Krochmal's approach to halakhic development was influenced by Savigny. See Harris, Jay M., Krochmal, Nahman: Guiding the Perplexed of the Modern Age 226–32 (NYU Press 1991)Google Scholar. Similarly, the reliance of Rabbi Zechariah Frankel (1801-75), the intellectual forerunner of Conservative Judaism, on Savigny has been well documented. See Harris, Midrash, supra note 23, at 19394; Schorsch, supra note 96, at 256-63; Rivkah Horowitz, Hr.shpa'at ha-Romantikah al Hakhmat Yisrael, in Divrei ha-Kongres ha-Olami ha-Shemini le-Madaei ha-Yahadut 109–13 (ha-Iggud ha-Olami le-Madaei ha-Yahadut 1982)Google Scholar.

Chaim Tchernowitz, in Toledot ha-Halakhah, relied explicitly on Savigny's beliefs that custom came before written law and that the law's authority stemmed from the spirit of the nation. Tchernowitz used these ideas to explain halakha's genesis in the customs inherited from the Patriarchs and its history and development through the ages. See, e.g., 1 Tchernowitz, , Toledot ha-Halakhah 197–208 (1934–1950)Google Scholar (explaining how many of the laws codified in the Torah were examples of preexisting national practices, some of which originated from the Patriarchs and their encounters with God). Additionally, in supra note 62, I pointed out the similarity between Tchernowitz's conceptual approach and that of Reines and Amiel. Tchernowitz's theories are worthy of further study.

Interestingly, Shalom Albeck, a contemporary scholar, also approaches the theory, organization, and authority of halakha in a rigid, conceptual and formalist manner akin to that of historicism and classicism. See Shalom Albeck, Law and History in Halakhic Research, in JACKSON, supra note 91, at 1-20. See also the criticism of Albeck by Izhak Englard, id. at 57-65, and a response by Baruch Shiber, id. at 112-22.

191. See ha-Peles, supra note 1601, at 673-74.

192. In a circular that was probably distributed to members of the Mizrachi before the yeshiva opened, Reines stated that he wanted study in his yeshiva to be “[i]n accordance with correct logic and healthy pilpul with the general desire of establishing a conclusion that accords with the halakha.” Isaac Jacob Reines, Harza'at Devarim al Odot ha-Yeshivah ha-Hadashah 3 (found in the Archives of Mosad HaRav Kook in Jerusalem, “Reines file” no. 46-10 (Lida, 4 Nisan [Apr. 9] 1905)). This circular implies that Reines wished to teach his students his own unique approach to Talmud study. However, this did not come to pass. One of his students, M. Zinovitz, relates that Reines, knowing his methodology was controversial, decided to hew much closer to the “Lithuanian approach” of Soloveitchik and Shkop to avoid miring his already unusual yeshiva in further controversy. Furthermore, Zinovitz relates that because Reines was so busy with Mizrachi and other activities, he delegated most of the teaching to others, most notably to Rabbi Shlomo Polachek, whose pedagogical method was much more traditional. See Zinovitz, M., le-Toldot Yeshivat Lida, in Manor, Alexanderet al., Sefer Lida 104-05 (Tel Aviv 1970)Google Scholar.

193. See Englard, supra note 91, at 64.