Friday, December 16, 2005

The other day I tried an odd little site, recommended on Waterbones, that claims the ability to tell one what sort of music one likes. Apparently the designers have undertaken to classify all (or at least popular) music by a finite number of qualities that a cut possesses, and to recommend music to a listener based on the qualities, independent of artist or genre, exhibited by a seed recording chosen by him. One can give it input along the way by approving or rejecting particular cuts it plays. I found it entertaining, though more for its failures than its successes.

The context in which the device actually contrived to play mucic I liked was when my seed artist or cut belonged to a fairly distinctive genre. I entered, for example, Desmond Dekker, and the thing played, surprise surprise, a stream of rocksteady, which I know I generally like. But whenever it tried to branch out at all, usually by emphasizing the "reggae feel" quality at the expense of others, it came up with a bunch of Bob Marley drivel. Likewise, in the realm of country music, "pop a top" by Jim Ed Brown generally brought up decent old songs by Conway Twitty and such like, but I continually had to admonish the program when it played vile modern C & W, which it seemed incapable of distinguishing from good old honky-tonk. More nebulous genres left the algorithm at an utter loss. Tom Waits's "Heart of Saturday Night" conjured up a procession of unspeakably fatuous singer-songwriter types.

There are several obvious reasons, I think, why any system of classicfication intended to define the things any given person likes about music is desined for failure. The first is of course that there are simply too many things a person might like or dislike in a song for any mortal to compile. Indeed, I believe the qualities I enjoy in rocksteady--vigorous High-Life-like dance beats and certain chord progressions--are quite incidental to whatever characteristics Pandora ascribes to it, which is why any departure from the genre deprives it of its appeal. Indeed, some of the criteria are too coarse for obvious reasons. At some point the program decided I liked the use of "slide/pedal steel guitar," which is half true and half decidedly untrue. I am very fond of the articulate pedal steel lines in old honky-tonk, but I am incensed by the self-consciously-hillbilly dobro used in most modern country music. Second, of course, a lot of music's characteristics are at least partially subjective. The compilers of the "Music Genome Project" couldn't well identify songs as having an "obnoxious vocalist," "vacuous lyrics" or "annoying overproduction," though these were all major factors in my rejection of most songs. Third, there are reasons for liking or disliking something as emotionally-associated as music which have nothing whatsoever to do with the music itself. No program could be expected to know, for example, that I don't really like to listen to Gordon Bok because my mother used one of his albums to put me to sleep for years, and I've grown weary of his voice.

So if your musical tastes incline toward some fairly obvious criteria (like a "busy brass section," or "ska roots") you may well get some good ideas from the site; otherwise you can just use it to reassure yourself of your superiority to haphazardly-concocted internet amusements.

Postscript: The one quality shared by most of the music I liked, in case anyone was wondering, is apparently "mild rythmic syncopation," which I take to mean that it has a certain danceability--hence, perhaps, rocksteady and honky-tonk, but not reggae or country. Moreover, I don't mean to say that I've discovered nothing of interest on the site: I ran across, for example, an entertaining Buck Owens cover of "Save the Last Dance."

Wednesday, November 16, 2005

I think the New York Times is being rather conciliatory on the issue of intelligent design, and in doing so illustrates what I believe to be the flaw in the entire discussion. I don't necessarily think, as some do, that the problem with intelligent design is that it fails to confine religion and science to their proper spheres. For one thing, religion defies nearly every sort of definition, since its nature and extent are determined solely by the whims of its founders and adherents. It irritates me, therefore, when the self-proclaimed arbiters of such things take the attitude that religion should be confined to affairs of the spirit, and science to the natural world--a sort of you-play-in-your-half-of-the-sandbox compromise that politicians might broker, but which is antithetical to the boundless claims of religion. I think, rather, that it is the purpose of science that has been misapprehended by most in the controversy. In particular, I take issue with the assertion that science's purpose is to "explain" things.

The issue of scientific explanation is touched on by the latest post at Querencia. The post itself concerns the relationship between art and science, and I won't comment on it. But it quotes a passage from one of Wendell Berry's more recent works, in which, characteristically, the author gets worked up about the inability of science to explain certain things, like art and other good stuff. Although Berry is never one for nailing down his terms, it seems from the context that by "explanation" he means something like reducing things to their elements. That is, he seems to think of scientific explanation as a process in which a multiplicity of things are reduced to their common principles, a very Peripatetic view of the scientific enterprise. He is terribly worried that just because we can discover the principles of certain things we will think we can do the same with all things, which grates on his artistic cum agrarian spiritual sensibilities. But I would advise him not to get his knickers in such a twist over science itself. The project of science since the renaissance has never been to explain things in the sense of discovering their fundamental nature. Indeed, the very success of science over the past several hundred years is entirely a consequence of its limited scope. Science's sole purpose, by definition and necessity, is to order phaenomena.

Science, as such, has only been concerned with one thing: predicting what we will perceive (there is, from an epistemological perspective, a potential disjunct between what one person and another might perceive, but science has given up on this issue long ago). That is to say, the only purpose of science is to order phenomena in the most comprehensive way possible, with the success of that project being determined only by how neatly the new phenomena fit into the old classifications. Thus, for example, the purpose of astronomy is to classify the movements of celestial bodies, and a good astronomer can predict eclipses. If he takes to imagining what the heavens tell him about the nature of God, he becomes a mere astrologer. The animating force behind scientific discovery is always a search for the power to predict, and often the power to manipulate what we see. This assertion is true even of sciences such as paleontology and evolutionary biology: even they can only be confirmed or disconfirmed by their ability to predict present phaenomena--the rest is woolgathering.

The problem arises when the statements made of phaenomena are construed to be statements about some thing, that is, that there's a world beyond the phaenomena out there that has some significance beyond the perceptions we have of it. To ascribe mysterious significance to phenomena is all very groovy, of course, and is what religions mostly concern themselves with: but science can't care about such claims. To the extent that it does care, it ceases to be able to make the unequivocal statements that it must. The purported controversy between actual science and theology is therefore strictly manufactured. To the extent that religious doctrine conflicts with what scientific observations imply about the "things" that are conceived to underlie them, it is quarreling with a straw man, since science can make no claims on this score. I, as a Humean, might scoff at the notion that we can ever "pretend to know body otherwise than by those external properties, which discover themselves to the senses"*; but everyone's entitled to his opinion. When one's receiving the Eucharist at a protestant church, I can assure you that the portions handed out in clear plastic receptacles, with none of the surreptition employed by papists, gives ample assurance from all five senses that one is consuming nothing but grape juice and crackers, yet it is in the refusal to believe these sensory impressions that religion resides. Furthermore, to the extent people actually deny the sensory impressions themselves, they are simply lying (or else, as mentioned above, there is no commonality of experience, and we all have much bigger problems).

I therefore contend that the N.Y. Times article spends an unnecessary lot of argument dithering over various definitions of the scientific method, in order to make the assertion that by removing the requirement that explanations be "natural" from the definition of science, the Kansas Board of Education has altered the fundamental traditions of scientific philosophy, as defined by a designated list of pointy-heads. The flaw in both definitions is that they both claim science explains things, though it does nothing of the kind. I find particularly muttonheaded the parting shot about how science is not incompatible with religion because both are ways to "understand the divine." Any remarks Galileo may have made to that effect assuredly derived from his and his audience's undue familiarity with Aristotle, and consequent inability to penetrate entirely the intellectual fog of the dark ages. As an example of science's true allegiance and purpose, witness that Galileo himself was not a cleric, but calculated gunnery tables for a living. I don't by any means wish to say that one cannot seek the divine by perceiving the natural world (as opposed to classifying one's perceptions of it), but that's a rather different subject.

* David Hume, A Treatise of Human Nature 64 (L.A. Selby-Bigge ed., 2d ed., 1978).

Wednesday, November 02, 2005

I must say I'm rather pleased with what I've heard about Judge Alito. He seems a reasonable sort, hated by all the proper factions (People for the American Way, Lambda Legal, etc.). Indeed, if the accounts I've read of his dissent in the machine-gun case are accurate, he was an early supporter of the new federalism, which is almost more than I can say for Scalia at this point. Witness how admiringly I gaze on his august countenance, unaware of the treachery that lurks in his heart even then, but I digress. In any case, the replacement of O'Connor with someone willing to constrain the subject matter of federal regulation would have no net effect, since she herself was one of the dissenters in Raich. It is, rather, on individual rights issues that we could probably expect better things from Alito than O'Connor.

One of the cases I've seen mentioned in the news as being one in which Alito's participation could alter the result is Rumsfeld v. Forum for Academic and Institutional Rights, a case out of Alito's own Third Circuit, but on whose panel he did not sit. The case is not, as FOX News claims, "a gay rights appeal that involves the Pentagon's 'don't ask, don't tell' policy." The legal issues have little to do with the military's policy on homosexuality, and nothing whatsoever to do with "gay rights." It is, rather, a First Amendment free expression case, challenging the Solomon Amendment, which conditions the receipt of federal funds by academic institutions on their granting military recruiters the same access and favor as the institutions give to other employers. Needless to say, most fashionable universities want nothing to do with the military, and resent being obliged to facilitate military recruiting in any way. In particular (and this is where the ignorant might derive the notion that homosexuality is somehow at issue), the plaintiff universities complain that allowing military recruiters on campus dilutes their message of tolerance and inclusiveness, because the military won't hire overt homosexuals. I suspect the outcome will depend on whether the Court buys the distinction the Third Circuit draws between this case and the National Library Association one decided in 2003.

But I would like to air one misgiving I have about Alito's opinions, as reported by newspapermen, which is his purported indulgence toward free exercise claims, and reluctance to apply the standard set forth in Employment Division v. Smith. Smith, as everyone knows, was the one involving religious use of peyote by members of the "Native American Church," and established the standard under which courts review claims that government is prohibiting a person's free exercise of religion, in violation of the first and fourteenth amendments to the Constitution. The case arose out of the plaintiff's being fired from his job for using peyote, and subsequently denied unemployment benefits by the state of Oregon. The case was only decided by the Supreme Court after the Oregon Supreme Court determined that state law prohibited the use of peyote entirely, with no exception for religious use. Consequently, the reasoning of Scalia's opinion is directed largely at the validity of this broader prohibition, rather than at the issue of unemployment benefits, on a sort of greater-includes-the-lesser theory. Scalia held that the Constitution does not prohibit states from enacting laws that place incidental burdens on religious activity. As he reasoned, religious activity potentially includes every sort of activity, and so carving out exceptions for every religious practitioner either makes every man a law unto himself, or places courts in a role that would almost certainly be repugnant to the framers--of deciding what is legitimate religious practice and what isn't. Instead, the Court held, the standard should only be one of whether government, in enacting the law, intended to place a burden on the practice of religion. This standard also has the advantage of requiring courts to perform a function to which they are better suited: lawyers are lousy at making policy decisions about whether a government objective is more important than the religious practices of individuals, but they are well-trained in determining the purpose of laws.

The new standard didn't sit well with a large section of the public, and therefore with elected politicians. The Congress passed the "Religious Freedom Restoration Act," which purported to ratchet the free exercise standard up to include the old effects test. But the Court rebuked it in City of Boerne v. Flores, holding that, because the Constitution does not protect free exercise against incidental infringements, Congress was not acting under its Fourteenth Amendment powers when it enacted the R.F.R.A., which was not supported by any other power and consequently invalid as ultra vires. (Cf. my earlier post on Tennessee v. Lane.) Evangelicals still don't like the decision, however, which is probably why social conservatives are proclaiming with such relish that Alito doesn't like it either. I don't really care as a matter of outcomes--O'Connor was the only justice really to bail on Smith when it came down to deciding Boerne, so Alito's appointment won't change anything even if he doesn't like Smith. But I do actually care about the shift from "balancing" to "intent" tests, which I consider one of the most significant contributions to judicial sanity by the Rehnquist court, and one that might be furthered by O'Connor's absence. Indeed, the only way I can begin to forgive Scalia for concurring in Raich is by telling myself that he did it all in the interest of returning to a purpose-driven analysis to the enumeration of powers (though a somewhat muddle-headed one), but the road to reconciliation will be long.

Friday, October 21, 2005

If anyone's wondering why I've become so prolific of a sudden, after six months of silence, it may have something to do with the sense of responsibility I feel at having been referred to as a "blogger" by Steve, or with the fact that I seem temporarily to have acquired a fan in the lovely and talented Larissa. But I must confess that the principal reason is my having recently gotten some work that, on an hourly basis, is reasonably lucrative (In your face St. John's College!), and which I must therefore avoid doing as long as possible. Ah, procrastination, my old love--how I've missed you in these months of idleness!

This article contains a few interesting points on New Mexico chile cultivation, including the observation that there are regionally developed variations within the variety traditionally identified with the state. I myself have noticed that I generally prefer northern-grown pods to the bitterer, more common ones from Hatch, but had always ascribed the difference to chile terroir (which may nevertheless be a factor). I am obliged to disagree, however, with Mr. DeWitt's observation that "[t]he earliest cultivated chiles in New Mexico were . . . considered a spice," and that "'[t]he No. 6 variety [bred in 1950] changed the image of chile from a ball of fire that sent consumers rushing to the water jug to that of a multi-purpose vegetable with a pleasing flavor'" (quoting Roy Nakashima). On the contrary, Josia Gregg observed on page 154 of Commerce of the Prairies, an account of his travels to New Mexico in the 1830s, that "[c]hile verde (green pepper), not as a mere condiment, but as a salad, served up in different ways, is reckoned by [New Mexicans] one of the greatest luxuries." We see then that the purported pungency of the more ancient varieties of chile was no impediment to Spanish colonists' eating it in its entirety; the breeding of milder, more consistent varieties could only have made chile-eating more accessible to wusses. Furthermore, the arid climate in New Mexico is usually prompting enough to rush for the water jug, but in any case add proper hydration to the myriad of other salubrious effects that may be ascribed to eating chile.

I just had my first look at the Alpha Environmentalist, whose author I was privileged to meet at the aforementioned nuptials. I very much like the general character of the blog--sort of like Ted Nugent if he were intelligent, cultured and genteel, so actually not much like Ted Nugent at all, but you catch my drift. I'm sorry to say that I've never attempted any of the first three things on his list of qualifications for being an alpha environmentalist, but I'd like to submit my application with the following substitutions: (1) I can start a fire with flint and steel; (2) I can clean, load and fire (with tolerable accuracy) a muzzle-loading rifle; and (3) I can make paper out of yucca and milkweed bast. Just to be on the safe side for any corners I may have cut on the remaining eleven, I'd also like to note that I can probably identify at least 50 species of reptile and amphibian, and average over eight miles an hour on cross-country skis. And, although I've never tried, I think I could probably hike almost 20 miles in a day if I put my mind to it. Peculiar and I did about 15 over uneven terrain after breakfast once, and still had time and daylight enough to get a burger in Mexican Hat.

Thursday, October 20, 2005

My favorite reason to hate the prospect of Justice Miers

I had a reprehensibly good time a few weeks ago at the marriage of Peculiar and Jack. The wedding was so happy and festive, the wedded couple so handsome, and their union so affectionate and true that it was almost enough to shake the foundations of my cynical weltanschauung; but I enjoyed myself anyway. At several points during the weekend, I found myself in heated agreement with Steve Bodio about the President's nauseatingly fatuous choice to replace Justice O'Connor. As he observed, it really is a pity that the two of us can't manage to talk about pleasant, trivial things when we're drunk, like most people seem to do, but must always turn our conversation to some dire question of academics or politics. The problem that arises from this habit in my case is that I frequently find myself struggling to express some opinion--carefully formed and considered while sober--through the fumes of a bottle or two of red wine, which are vying for leg room with the other clutter in my head. I therefore have a hazy recollection of shouting repeatedly "The real reason intellectual conservatives like us hate Miers is . . . ": but I can't recall what else, if anything, I managed to express. As a belated follow-up to that conversation, I'd like to offer a reason for hating the nomination beyond the handful or so that have been commonly cited by most conservative commentators.

The one nice thing the nomination has done is to reassure me that most conservatives are not mere heedless zombies under the spell of the Bush administration. I had begun to fear that Republicans would follow W over a cliff, if it came to that. But conservatives of all stripes have gleefully begun denouncing the nomination, and the administration with it, for reasons ranging from "her nomination solely because she is an evangelical woman cheapens the very meritocratic principles the Bush administration was supposed to champion" (the National Review) to "she's so butt-ugly she'll make Ruth Bader Ginsburg the pretty one on the Court" (my friend Bronson). But one reason, and one that fits nicely with the axes I usually grind, is that Miers has never, in her long career, evinced any inclination whatsoever for serious legal scholarship.

Now, I do not mean merely that Miers has no experience with constitutional law, which is irrelevant to my ultimate point, or that she's dumb, which on a Roberts-Scalia-Souter scale she almost certainly is, but which has been widely observed. What I mean is that she has never shown a capacity for taking difficult, analytical legal issues and teasing them out into a rational order. The U.S. Supreme Court does not just meet once a year and vote on whether states can place restrictions on abortion or the Ten Commandments on public property. What seems to escape many outside the legal field (including, apparently, Bush) is that the bulk of the work done by the Court does not involve weighty moral dilemmas or simple policy choices: it's the nitty-gritty of justiciability, arcane criminal procedure, commercial law, tax, etc. Harriet Miers, with her S.M.U. law degree and apparent history of having as little to do with the law as is possible for a professional lawyer, would probably contribute very little to this less glamorous struggle.

(Those of you--probably all of you--reading this post solely out of politeness may skip the following paragraph, as it contains most of the poorly-explained legal doctrine I always need to inject into my posts.)

I'll give a brief example of the sort of opinion I hoped would be produced less frequently by the Court after Bush's nominations, before my hopes were dashed to smithereens by this latest act of cronyism (doesn't W at least have some brighter cronies, damn it?). In Mosley v. Victoria's Secret Catalogue, Inc., the Court supposedly granted certiorari to decide an issue that had been plaguing the courts of appeals for some time. Without going into too much detail, the issue was whether, under the trademark dilution section of the Lanham Act, a plaintiff has to show that his mark has been actually diluted (i.e., that he has suffered some demonstrable harm from the dilutive mark), or whether a plaintiff can win merely by showing that the defendant's activity is likely to cause damage to the plaintiff's mark. For the first position, the arguments are that the statute actually says "causes dilution," and that it would otherwise be extremely easy for the owners of "famous marks" to enjoin nearly any use of marks similar to theirs. On the other side is the argument that the statute seems, in its general purpose, prophylactic; it would therefore make little sense to require plaintiffs to wait until the damage has been done before suing. A fairly complicated issue, but one presenting pretty clear alternatives. One would think the most sage court in the land could come up with a decisive reason for going one way or the other. And, sure enough, the Court voted unanimously and decided . . . nothing. At least nothing coherent. Stevens, writing for the Court, first noted that it indeed made no sense to require a plantiff to prove economic damage before suing for an injunction. He then went on to say that the statute required proof of actual dilution somehow (without suggesting any alternatives to showing economic damage), and remanded to the poor wretched Fourth Circuit for "proceedings consistent with this opnion," as if it weren't hard enough to make the opinion consistent with itself. To top it all off, Justice Kennedy wrote a "concurrence," which reads like an argument in favor of not requiring any proof of dilution, but somehow agrees with the majority in its reversal of the Fourth Circuit.

All this just goes to show that it can be really hard to get even a bunch of career nerds like the USSC to take enough of an interest in dull topics like trademark law to develop a coherent jurisprudence; yet these issues are just as essential to the Court's role--indeed more so, I would argue, since deciding them is something that can really only be done by them, as opposed to the sexier usurpations of legislative function that the Warren Court began. It is for this reason primarily that we need smart people who love the law, not policy, on the bench.

And so, Steve, at least one of the things that I'm sure must have been running through my head as we sprayed red droplets on each other's dress shirts in our haste to make our opinions known is that Harriet Miers, no matter how she votes or makes Republicans look, can can do considerable damage just by being scholastic dead weight on a court that is already struggling to maintain a consistent jurisprudence on the myriad of dull, commonplace issues that constitute 90% of its opinions. And I do hope your shirt came out as relatively unscathed as mine.

Friday, March 25, 2005

I had promised myself that I wouldn't comment on the lurid circus that has occupied the first slot in the news of whatever medium for the past week, although it does illustrate some points a propos of the general theme toward which my infrequent posts have tended. But then Voracious Reader joined the clamour and, as it were, invited my response. In failing to check myself, I admit I fall prey to that base, nearly universal impulse to prove one of my father's favorite maxims, namely, that opinions are like a---holes: everybody's got one.

As a preliminary matter, I should like the score to reflect another victory for my notion that the judiciary remains a largely non-political organ against the efforts of laymen and news media to reduce it to a product of judges' personal whims and politics. If you'll recall, as soon as the Congress passed the act giving jurisdiction to the Western District of Florida, the networks and papers al began to speculate intensely about how "conservative" or "liberal" judges on that district were, as though that issue would somehow be determinative of whether the parents would get their TRO. As it happened, the media's speculation seemed to be borne out in the district court, since the case was assigned to a Clinton appointee who denied the petitions. Encouraged by this succes, Fox News, if memory serves, began to speculate about the ideological composition of the 11th Circuit, noting that they were largely Republican appointees, and quoting some professor from Western South Central Florida Snobby-Eater College of Law and Brake Tuning, or some such, who driveled "if you get two Republicans on the panel, this gets overturned in a heartbeat." As it tuned out, the literal truth of his statement was never put to the test, since the panel comprised two Democrats and a Republican; but the Republican joined the majority that upheld the denial, and it was a Democrat who dissented. Moreover, on the motion for rehearing en banc, only two of the dozen judges voted to grant, meaning that at most one Republican on the entire court disagreed particularly strongly with the district court's ruling.

To top it all off, not one of the justices on the Supreme Court even wrote to disagree with the refusal to award emergency relief--not even Justice Scalia, whom the ignorant commonly regard as a tool of Papists and religious conservatives. Indeed, I think Scalia would be the first to recognize what everyone with a decent grasp of federal jurisprudence, regardless of their stake in the result, realized the minute they read the Congress's emergency legislation: there isn't even the shadow of a substantive claim under federal law. Nor, in any circumstance other than this one, would any sensible conservative want there to be. For example, Andrew McCarthy groans on about how the Constitution requires proof beyond a reasonable doubt in "death cases." I expect he would, however, be on of the first to come forward in defense of the ability (established in Kansas v. Hendricks) of authorities to prove by clear and convincing evidence the psychological propensity of someone to commit sex crimes and lock him up indefinitely under a civil commitment statute, though the right to liberty is protected by the Constitution in the same breath with the right to life. "How," you say, "can one compare the rights of a sex offender with those of an innocent?" But the law is blind to such distinctions, as it should be. The only recourse would be to alter the standard of proof somewhere in substantive law (although I've never heard of ratcheting it up in a civil case to proof beyond a reasonable doubt). And such an alteration would probably not even be supported by the people, since I doubt many people relish ex ante the thought of being preserved in a ghoulish state of half-death.

I'm not quite sure why it is that I seem to agree with nearly everything William F. Buckley says--even when I would expect him to disagree with me. In particular, I agree with his point that it is analytically unsound to equate affirmative refusal to preserve life with killing. Such a notion, with its sweeping implications for the moral necessity of a welfare state, is more commonly held by the most pinko socialist than the libertarian or institutional conservative. And yet it is precisely what all the rhetoric from the "right to life" culture postulates. This controversy has illustrated a point that went unnoticed in the past several years of Republican ascendancy, namely, that there is little or no inherent ideological union between limited-government conservatism and Christian social conservatism--it is largely a marriage of convenience. The most irksome thing to me about his whole affair is the toll that it may take on the integrity of Republican politics as the party struggles to keep fundamentalists in the fold. Whether we like it or not, Bill Rhenquist is going to be retiring this year, and it's going to be a long row to hoe getting someone to replace him to the right of David Souter unless Democratic obstructionism is overcome. This debacle could provide the perfect sort of ammunition for Democrats to lob, saying that all the Republicans' talk of "judicial activism" is merely a euphemism for judges who come to substantive conclusions that the religious right doesn't like. I also shudder to think that their loss in this case will ignite religious conservatives to try harder to appoint people for their moral rather than legal views; my blood curdles at the thought of a judge who would have granted a stay in this case because he thought it is what Jesus would have done. On the other hand, for the moment, I cannot fault, for example, W's willingness to sign the bill and utter a few platitudes. As a reassurance that our president is in his heart of hearts a true conservative, I was actually pleased to hear that Bush had been sensible enough to sign that law in Texas. It's dreadful to think of people being vegetables on the public nickel. But though I, as an irreligious structural conservative, might prefer if the Republican party were in a position to discard the useful idiots of the religious right like yesterday's linen, we cannot afford the luxury right now, with socialism attracting hordes of its own fanatics. Nevertheless we must remember that, when push comes to shove, there is nothing special impelling religious fundamentalists to prefer the rule of law and limited government if it conflicts with their religious notions.

So, then, in conclusion I would cordially disagree with Voracious Reader when she says that concerns of federalism should be subordinated to those of "life and death." Our system of government has been a bulwark to liberty against political storms and the tyrrany of men for hundreds of years; millions of people far better than the thing that lies expiring in a hospice in Pinellas County have died to build and preserve it. The rule of law is not better than the rule of man because it always produces results that we like: it is better because it is the law, impartial and unyielding. I, for one, will raise a glass when the political fuss dies down, and what was once Theresa Marie Schindler Schiavo is finally allowed to finish the death it began fifteen years ago.

Wednesday, October 27, 2004

I think I now see why Odious and I appeared to be disagreeing (apart from the fact that Odious and Peculiar's blogging endeavours, to say nothing of my own, are animated greatly by the desire to demonstrate that we're such disagreeable men). I believe Odious has been contemplating, in large part, why the law is, while I have been trying to make assertions about the more mundane question of what the law is. Odious is absolutely right that adopting a foolish or unjust rule cannot in any way be justified by saying that it keeps order. Some liberal relativists try to make the claim that the policy underlying all laws is merely arbitrary demarcation of societal boundaries in order to promote the common good; and they cite as examples things like conventions about the direction of traffic lanes. But there is no inherent moral conflict entailed in whether we drive on the right- or left-hand side of the road. To say that no one has any significant interest in the direction of traffic flow independent of whether the direction is regular is not the same as saying that no one has an interest in a legal rule because the rule is an average benefit to society. The latter statement denies the role of the individual, and, in doing so, already postulates the non-relativist assertion that the benefit of the many outweighs the detriment of the few.
Thus, it is is not an argument that society should have a particular law, law as opposed to anything else, or anything at all to say "it keeps order." ("Say what you will about the tenets of national socialism, Dude--at least it's an ethos.") Yet ordering human interactions is what law does--by its nature. Law may even produce social chaos, but its workings would remain as steadfast as ever, awaiting the hand of political reform to gut its mechanisms and replace them with something more sensible. I will even point out from my own experience with judicial decision making that, often as not, when a judge is faced with a question on the frontiers of the law, he will decide what justice requires first, and make his reasons consistent with existing law afterwards. But this process is not, strictly speaking, a legal inquiry. To such an extent as a judicial decision is not based purely on statutory interpretation, legal analogy or some similar method, it is really an extension rather than an application of the law.
To continue the metaphor of biological evolution, the law, as I see it, fills the role of genetic material. Its function is simply to preserve a particular order in the social body. That order may prove to be a bad one, dooming its possessor to extinction, but it is not the basic function of the nucleic acids to change the organization, but to preserve it. I even allow that it may be beneficial, for purposes of adaptation, to have an inherently limited organization (thus, the success of the United States could be attributed to its being a sort of legal cockroach). I also believe quite firmly that it is socially beneficial to have redundant laws of which any can easily come into play should it prove evolutionarily necessary--i.e., federalism is a sort of sexual reproduction, which theory fits pervertedly with the term "laboatories of democracy." ("Igor, bring me the same-sex-marriage law.") Under my metaphor, I suppose it makes relatively little sense to call a law or genes good or bad except to the extent they promote the ultimate health of their possessor. But I am trained not to change the law but to work within it. All my cavilling then, simply arises from a sort of technician's aesthetic--from a pointless fascination with the workings of an object, without any regard to its value. I imagine Odious will argue that it is impossible really to divorce the form of a device from its function, but I can only reply that I largely look at portions of the law so minute and removed from its overall impact that I am forced to hypothesize much of their context. And, though taking a step back from the rules I might see the laws I was studying were mere tools of tyranny and oppression, I would probably still remark, in fatuous admiration, "But they tyrannize and oppress so well."