Angle of Deflection

Whether law develops from within by its internal dynamics, or whether its motor force is social pressures and the personal predilections and ideologies of judges, is an ancient jurisprudential question. The formalists contend that the judge only applies the rules of the system to a specific case, while the realists contend that, in the final analysis, the judge rules, be it only unconsciously, in accordance with his personal and ideological inclinations. The controversy in jurisprudence between realists’ and formalists’ doctrines emerged from the study of civil, criminal, and matrimonial law as obtains in American law, common law, and Roman Law.

However, the halakhah, like Canon Law, deals not only with relations between man and his fellow man but also with those between man and God. Indeed, the large majority of halakhah consists of ritual law. Let’s make a rough estimate using Maimonides’ comprehensive code, the Mishneh Torah. It is divided into fourteen units. Only five of them deal with relationships between man and man—Nashim, Nezikin, Kinyan, Mishpatim,and Shofetim—that is to say, 37.5 percent. In other words, over 60 percent of the halakhah has little bearing on social and economic relationships. To be sure, there are some topics in ritual law which are fraught with social and economic significance, but despite their importance, they are but an exceedingly small percentage of the vast ritual corpus of Judaism.

Realism speaks of Zweckjurisprudenz—goal-oriented decisions. Can one speak of social and economic policy in whether one recites bore peri ha-ets or bore peri ha-adamah on strawberries? In using two or three matzot at the Seder? Whether the fruit of a potted plant with a hole in the base (atsits nakuv) is subject to tithing? Whether the blood of a sacrificed animal may be sprinkled on the altar after sundown (dam nifsal bi-shekiat ha-hamah), to take only four of thousands of instances? Would any jurist coming to the halakhah tabula rasa, surveying a system of which over 60 percent is ritual, ever assume that the system is predominantly goal-oriented?

I first learnt of Rudolph von Jhering’s notion of Zweckjurisprudenz when I was in the Semicha Program of the R. Isaac Elchanan Theological Seminary of the Yeshiva University in the early 1960s, and read with excitement the writings of Jhering, Karl Llewellyn, and Jerome Frank. I realized that this would mean that the mode of argument in Nashim and Nezikim, which are goal-oriented, would differ fundamentally from most arguments in the other four sedarim of the Talmud. I didn’t find the mode of reasoning in areas of bein adam le-havero (between man and man) different from that mode of reasoning in instances of bein adam le-makom (between man and God). I was unable to discover such a difference in my yeshivah days and have not succeeded in discovering it in all the intervening years, and not for lack of trying. Indeed, I would say that I have turned repeatedly to this problem over the course of my academic career.

The issue of formalism and realism is a jurisprudential controversy, not a legal one. The relationship of jurisprudence to law is similar, mutatis mutandis, to that of philosophy of history to history. Jurisprudence deals with the nature of the human activity called adjudication and the system that such an activity engenders, in other words, the nature of the judicial process; philosophy of history, with the nature of historical knowledge. The legists—that’s the best word that I could find for a group constituted by lawyers, judges, law professors, and historians of law—care as much for jurisprudence as historians care about the epistemological status of historical knowledge. The common denominator of philosophy of law and jurisprudence is that neither is an empirical discipline. Let’s leave aside philosophy of history and concentrate on jurisprudence, more specifically the distinction between realists and formalists. The claim that most adjudication—some insist that all adjudication—is goal-driven or a product of internal dynamic is a philosophical claim. It can never even begin to be verified empirically. Realism and formalism deal not with individual cases but with judicial systems as a whole. The number of cases that have been ruled upon, for example, in the American system in municipal, state, and federal courts for some 225 years totals, I am told, well over a million. How could one master even part of such a corpus? Even supposing the existence of a human computer, such as the Gaon of Vilna and Rav Ovadyah Yosef, how could either of them have documented his conclusion? How could one even make a representative sampling? Ten thousand cases? That would require some fifteen to twenty thick volumes of justification, at the very least, and it would still be less than 1 percent. What’s more, what does one know of the Weltanschauung of tens of thousands of individuals who have sat in judgment over this period? What is known of a Justice Steven Williams, who sat on the district court of Ohio in the 1870s, and thousands like him? One is hard-pressed to find such material even on most occupants of the Supreme Court. Read the articles of the realists. What documentation does the average article contain? Some forty cases at most. Even more to the point, what documentation is there of the socio-economic, religious-moral outlook of the judges of those case? None whatsoever, in so far as I could discover. Were this an empirical enterprise, one would imagine the writings of the realists to be replete with biographical material. There is none. Indeed, the only biographical information that I have come across in the discussions of formalism and realism is, for example, ‘BA Yale 1982, LLD NYU 1985’, i.e., biographical data on the author of the article, not on the judges whose worldview and personal predilections are so knowingly discussed.

Jurisprudents may well divide into realists and formalists; historians of law divide into no two such camps. Historians can neither postulate nor accept a postulate about the uniform conduct of any group over the course of centuries. They can only characterize the underlying reasons of specific rulings in specific cases, or the judicial outlook of a judge in his most notable cases. The claim that all or most opinions in a legal system uniformly derive from one source—be it the goal-orientation of the judge or the inner dynamic of the system—is, to a historian, ludicrous. First, there is no supportive data, there can be no supportive data for so broad a claim. Second, human nature is far too diverse and idiosyncratic for its actions over continents and centuries to be understood by any monocausal explanation. Outside of the natural sciences, universals exist in philosophy and theology, never in the sciences humaines, what we call the humanities and the social sciences. Particles have no individuality or choice, human beings do.

No one asks whether Morton Horowitz or G. Edward White (two eminent historians of American law) is a formalist or a realist. Nor has anyone posed that query about Otto Gierke, Karl von Amira, Frederick Maitland or Adhémar Esmein—some of the great historians of medieval English and Continental law. The categories of realism and formalism are meaningless in the empirical discipline of history. The sooner we banish these misplaced if sonorous terms, the sooner we will be able to treat the genuine methodological problems that confront the writing of the history of the halakhah.

Not that these categories are useless to the historian. The postulate of the realists, for example, is useful as a heuristic device, as is Marxism, which postulates the uniform primacy of economic interests. Such notions sensitize the historian to forces which may be operative in specific rulings and whose signals he may not otherwise have detected. This postulate of the realists is simply one more instrument in the large toolkit of the historian.

Where does the jurisprudent get his ideas? From his perforce limited knowledge of the system and from his feeling that there is a uniformity in its functioning. The legal term for a judge’s reason is called the ratio of the decision; its plural form in American law is, forgive the bad Latin, ratios. Realist jurisprudents announce that all ratios are but rationales. The legist replies, ‘That may be true, but not all rationales are equal, and our business is to evaluate them.’ This second misapprehension, I believe, underlies a good part of some of my colleagues’ belief that realism frees the judge from making a cogent argument. Since everything is but a rationalization, why trouble oneself with them, and what’s the difference between a good rationalization and a bad one? Rashi’s reasons didn’t really play a role, and Rambam often dispenses with reason altogether and simply rules as he wishes, plucks his decisions, as it were, out of thin air. This is a comforting thought for those who desire to write the history of halakhah but wish to be spared the heavy lifting of serious legal thinking, or to some scholars in Jewish studies who have little skill in handling rabbinic sources, but who must draw on such sources for their work.

Unfortunately, this comfort is illusory. Where a judge gets his ideas is as irrelevant as where a historian gets his ideas. The test of a historian’s idea is not in its point of origin, but in the degree of persuasive correspondence between his theory and the data it seeks to explain. The test of a judge’s ideas is the cogency and power of his argument. There is probably no decision in American history so shamelessly and ingeniously political as that of Marbury v. Madison. Yet there has been no more important and influential decision in American history: it established judicial review—the power of the Supreme Court to declare acts of Congress or of the President unconstitutional. Many of Marshall’s greatest decisions had a clear political purpose, were part and parcel of the agenda of the Federalist party to which he belonged—namely, to enhance the power of the Federal government at the expense of that of the states. Yet, because of their power and cogency, they carried the day; and the brilliant if irascible anti-Federalist, John Randolph of Virginia, could only cry out at one of Marshall’s decisions, ‘Wrong, wrong, totally wrong! But no man can tell why or wherein.’ He realized only too well that without such a ‘why and wherein’ these ideas would rule the judicial roost, as indeed they did. The rulings of Holmes and Brandeis had far more pith and power than those of their colleagues, Vandevanter and McReynolds, who represented the majority. Holmes’s famous dissenting opinion that freedom of thought is freedom for the thought you hate, and Brandeis’s similar opinion that the cure for bad speech is more speech, not enforced silence captured the hearts and minds of the younger generation, and when they attained to a court majority, they translated these dissents into law which obtains to this very day. They form one of the cornerstones of the current ‘civil liberties in America’. Arguments in law do matter—regardless of which side one takes in jurisprudential controversies.

The same fallacy underlies, I believe, a final argument against my criterion of angle of deflection. It has been argued that the entire notion of ‘angle of deflection’ is a formalist one, because the assumption of any realist is that law does not emerge from the sources but from the wishes and goals of the judge, so deflection from the sources is only to be expected, indeed, is inevitable. That may be the position of a jurisprudential realist; it will not be that of any legal scholar or historian. Judges are deemed great and their decisions read and held binding because of the force of their arguments, arguments which have held, at times, for centuries. When a great jurist does make a crude mistake, usually something is up, and the task of the historian is to find out what that something is.