The following critique of Morris R. Cohen's paper on Absolutisms in Law and Morals, first published in 1936 in the University of Pennsylvania Law Review and reprinted in his book Reason and Law, may be opened with an example of absolutism which appears in a passage of Scripture read in the Synagogue.

In the levitical law of the Sabbatical Year (Lev. 25:1–7) we read in the introduction that “God said to Moses on Mount Sinai, speak to the people of Israel” … The Rabbinical interpretation in Sifra, ad loc, remarks:

States have their nationals and religions have their religionists, each of whom shares in a distinct and inherited identity. In considering whether Jewry is one of those communities which consists of dependents born into it, three distinct variations arise: there are those who recognize that Jewry is a unitary group with the right to have a National Home; there are those who hold that Jewry, as a community, must be combatted as an enemy; there are those who view Jewry as a group of individuals, the interests of which Jewish organizations (not necessarily of a Zionist orientation) have found it to be their responsibility to safeguard in situations where their interests were not safeguarded as nationals of specific States.

In politological terms, the first and third combine positively and the second and third negatively, but in each combination Jewish organizations were faced with the obligation to act on an international level under conditions and by means so novel in terms of international practice that they were termed unprecedented and sui generis, and for which international law had no place to integrate the kind of non-governmental protective activity which was evoked, or to illustrate how a victim's experience creates law, or how scattered communities operate generically, within patterns exclusive to them.

In his essay on Justice Holmes and the Nature of Law, Morris Raphael Cohen makes it clear that a fruitful science of law cannot be built if we restrict ourselves to the study of law as uniformities of behavior. He warns us against “doing away altogether with the normative point of view in law”. We regard legal rules as binding norms, says Cohen, and not just as mere descriptions of uniform behavior. Insisting on the normativity and bindingness of legal rules, Cohen anticipates contemporary legal philosophy, which takes this normativity and bindingness of law to be a pre-analytic datum to be accounted for by legal theory.

“The theory of law as coercive orders”, says H.L.A. Hart, “… started from the perfectly correct appreciation of the fact that where there is a law, there human conduct is made in some sense non-optional or obligatory…In building up a new account of law… we shall start from the same idea”. Ronald Dworkin starts his discussion of jurisprudence by asking: “Why do we call what ‘the law’ says a matter of ‘legal obligation’? Is ‘obligation’ a term of art, meaning only what the law says? Or does legal obligation have something to do with moral obligation?’

Accounts of the normativity of law resorting to morality, to sanctions and those viewing legal duty as a term of art, are amongst the commonest solutions to the problem under discussion.

By “legal ontology” I mean the religious or philosophical view which is the basis of a system of law and by “legal reasoning” I mean the totality of techniques which legal theorists and lawyers use to adjust that system to the requirements of adjudication; these requirements essentially being security and justice. Since the role of the judge is to proclaim the law in each specific case, we want his decisions to be not arbitrary, to be predictable in that they treat cases which are basically similar in the same way. We also want them to be seen as equitable, appropriate to the circumstances, the ways and the customs of the community. In reconciling stability and flexibility, the various systems to be compared in this article, i.e. Jewish law, Continental European law and Common law, allocate differently the powers of judge and legislator, regarded as complementary to one another. It will be seen that this division of powers changes at different times, while at the same time the ontology according to which the allocation of powers is effected becomes more flexible.