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."

I suppose I'm now almost as much to blame for this ongoing exchange. I believe Odious's and my impressions are coming closer together, in the sense that each of us is now allowing that the object resembles both a snake and a pillar. In furtherance of this progression, I note that I too have remarked the picture of law's impotence in Njal's Saga. When the law fails adequately to comprehend the conflicts of human interaction, it is powerless and nugatory, for the law, as such, is really a paper tiger. It can frighten and cajole, but its enforcement powers have always been limited to a great extent to the amount of awe it can inspire. And, to a surety, such awe is both amplified by people's belief that the law is just, and voided when the law demands more than awe can be expected to give. I don't, however, think that the law itself needs to be seen as striving toward great principles in order to be respected. Indeed, I would say that people's present deferential attitudes toward the legal system are as much influenced by the law's incomprehensibility to the layman, its impenetrable jargon and the ceremonial robes judges wear as by the notion that the law tries to give everyone a fair shake. What is most important is that the law have an air of inevitability and otherness. While a man might play poker knowing full well that his opponent will be dealt seven cards to his five--it is in human nature to make foolish gambles--he would never play if he knew the deck was stacked. In law, the relentlessness of its workings is more important than their effectiveness.
I feel that the public respect for the legal system has suffered somewhat in this country. As much regard as I have for Holmes and the truth of his opinions, the doctrine that the law doesn't exist somewhere out in the aether has removed at least one potential reason for its inevitability. I can only hope that the increasing popularity of elected judges and legislative tampering with the courts don't break the law's spell or loosen its hold on people's minds. But as long as courts retain their quirky customs and inscrutible ways, we're probably safe.
Nevertheless, as I've said, I do believe that the law benefits from being as unobtrusive as possible--from making as many concessions to human nature and frailty as possible, without seeming to compromise its ironclad principles. In the old Anglo-American legal system, this release-valve function was performed by the courts of equity, which were really an arm of the executive rather than the judiciary, and did not profess to have anything to do with the law. Now that we have conflated the two (law and equity), it is incumbent on judges to preform a second role as human beings, and try to the best of their ability to make sure individual justice is done without doing to much violence to the law. I don't have any Holmes to quote for my assertion that the law, even if it is not based in a priori reasoning, must still have at its core a hard-hearted formalism that abhors change and is blind to fairness. But there is an oft-quoted chestnut in the legal profession: "hard cases make bad law." That is to say, when the outcome of a case is based too much on a tough decision of what a fair result must be, the rule of the case ends up being muddled or even inconsistent. I have watched judges consider cases, knowing full well that they cannot in good conscience refuse to grant relief that they know to be required by justice and nature, but unable to fit such relief neatly into the strictures of legal doctrine. The opinions resulting from such cases are usually, in the proper sense, bad law. They are unprincipled and incoherent. They detract from the law's appearance of inevitability. I realize that these decisions are sometimes eventually codified in a more consistent manner, and become the groundwork of new, fairer law, through the evolutionary process Odious and I mutually admire as a matter of policy; but the law itself detests such mutations, and will usually only preserve them if they do not greatly threaten the health of the legal body as a whole.
I could go on somewhat at this rate, with more dry examples, but I'm afraid I've run out of metaphors.

Odious has obliged me with a commentary on my last post (incorporating, I believe, some reactions to my older post on Blakely). I expect it was my gratuitous jab at philosophers that roused him. As usual, his remarks are both well-reasoned and supported by example--either of which is more than I can usually boast. Moreover, I must confess that the sentiments he voices are nearer to my heart than most of the cynical ones my training in law occasionally elicits from me. Nevertheless, he obliges me to explain myself, and so on his head be it if what arises takes the appearance of a dialogue.
I would certainly not dispute that government frequently purports to be founded on axioms or first principles. Recitations like the ones Odious quotes have been pretty standard fare as prologues to founding constitutions and the like for centuries; and, if I am to judge from those I've read, U.N. pronouncements of nearly any stripe must begin with a maddening string of "whereas," "recognizing that," "with a view to," and such like. But those lovely, inspiring, memorable enunciations almost never serve as positive sources of law. Neither the Declaration of Independence nor the Universal Declaration of Human Rights has ever had any legal force (the Declaration being a sort of diplomatic "dear George" letter and P.R. brochure, and the Universal Declaration a mere aspirational document, meant to enumerate the imagined groovyhoods of a brave new world and denounce, inter alia, Hitler's Germany). Indeed, the very reason that you will seldom find statements of this sort directly implemented as laws is that, as Odious points out, to the extent they have concrete meaning, they are generally internally inconsistent, and to the extent they don't, they are pointless as laws. Indeed, the Universal Declaration reads rather like a strange kind of political rally speech ("Who's for equal pay for equal work?"--"Huzzah!" "Who's for universal sufferage?"--"Huzzah!" "Who thinks the rights we've just enumerated should be exercised to the detriment of the rights we've just enumerated?"--"Hiss!"). These aspirational principles tend to become internally inconsistent directly in proportion to the degree of concrete meaning they are given. For example, although the simple points enunciated in the Declaration of Independence seem innocuous enough on paper, one has merely to try giving them substantive meaning to see how easily two "rights" that seemed like a good idea individually can trammel each other up big time. Perpend the famous case of Shelly v. Kraemer, in which the Court held that the right to own property and to contract did not extend to obliging the government to enforce a racially discriminatory covenant. I will grant that there are better-defined and simpler axioms than the vague aspirational terms discussed above, and that they might recommend themselves more, from an analytic standpoint, upon which to base a system of laws. But I have found that more abstract principles generally either state empty formulae (e.g. "efficiency") which can only be filled by unobtainable empirical data, or are so driven by the desire to prove a particular result, such as the justness of redistribution, that they consist in propositions and have corollaries that no one of sound mind could accept.
Odious suggests that there must be some a priori source of law, because nobody would obey a law that goes too much against the grain of justice, human nature, etc. I should first observe that my notion of law may differ somewhat from Odious's, in that I regard civil law as the most fundamental example of law, and criminal law as a more recent anomaly. The notion of governing laws, as opposed to men, regulating and keeping the peace is only something that crops up here and there in world history. The fact that our constitution found it necessary to prohibit ex post facto laws and bills of attainder attests to how recent, at least in western Europe, is the idea that crimes should be defined by universal law. Therefore, I tend not to regard law not as something to be obeyed, as the will of the sovereign, but as a dispute-resolution mechanism.
But I think the point at which Odious's arguments and mine pass each other in the night is the issue of to what first principles are applied. For when I say that I don't believe law can be derived from first principles, I mean that I don't think one can start with a sensible postulate, apply sound deductive reasoning and arrive at any particular section of the United States Code, or even of the Constitution, nor even an approximation thereof. Odious, if I understand, professes to take issue with the notion that there are no principles underlying laws, because people do not enact laws based solely on the tautology that whatever the majority dictates is right--they account for them with notions of justice and God's will. In saying this, Odious already assumes that the ultimate arbiter of laws is the masses--either because they cause the law to be enacted, or because they refuse to obey it if it is not good. I believe we have largely been describing two different parts of the elephant. I certainly do not dispute that people look at the outcomes of laws and evaluate them for fairness. I applaud the process whereby laws that cause more annoyance than they prevent are relegated to the democratic waste basket--often, as Odious observes, not by actual repeal, but by general lack of popular support, as in the case of criminal adultery laws. I too have faith in the universality of the human experience, and the ability of ordinary people to look at a conflict and decide, generally, the outcome that would be best, in most people's estimation. The only problem with basing laws on the justness of their effects is that the process breaks down when there is a sufficiently severe division between different people on what the appropriate result is in a particular situation--I'm sure I don't need here to give a list of politically divisive moral issues. I usually find such lurid issues rather pointless in comparison with the common ground people can usually find on the subject of justice, but it is from those intractable moral controversies that cynics assert the essential relativity of the principles underlying laws. Furthermore, even if everyone agrees on what the appropritae result shold be in certain circumstances, it is certainly not the case that one can derive from such certainty what ought to be the result in other circumstances. I submit that the principles and process by which we determine the justness of outcomes is not analytical, or a priori, but inductive and a posteriori. I believe that I can usually judge what constitutes an infringement of the God-given right to liberty; I know it when I see it. But I can hardly begin to formulate a meaningful rule that could serve as a touchstone for such infringements, even in limited circumstances. Therefore, my only point (with which I believe Odious argues only to a limited extent, if at all) is that substantive law is not and cannot be analytical in its foundations. Or, as Holmes famously wrote, "the life of the law has not been logic: it has been experience."
So don't go pissing on those Toastie-Oats just yet. The fact that the ideas of liberty and fairness are not scientific principles does not prevent them from guiding human political actions. In that sense, perhaps my irritation with political rhetoric is misplaced, for some reckless bandying about of analytically hollow but emotionally pregnant ideas is exactly why we don't have pointy-headed political scientists with internally consistent but empirically idiotic schemes of government running the world. But I disclaim the existence of any universal principle or series of universal principles that can everywhere be applied to protect one's breakfast from micturition. One must simply trust the forbearance of one's fellow man, and try to remind him that it could be his cereal next. (N.B.: I recognize that the golden rule might seem a superficially appealing foundation for a set of laws, but I've watched Rawls and other liberals try, and it's not pretty.)

The only unfortunate consequence of the analytically elusive nature of principles like justice is that, because the very purpose of written laws is to be rigorous and formal, and to enumerate rules that cannot be derived from the ideals inspiring them, they will at best only approximate what the people who enacted them would have called justice. Yet, as I argued in my post on Blakely, this is not a defect in the law, as such: the law derives its primal function from its ability to keep order. People may sometimes submit more willingly to its decisions when they imagine it to be "just" or otherwise deserving of reverence, but as long as it does not wreak such overt abuses that people will not follow it, the law has performed its function as a neutral arbiter, whether between individuals or individuals and government. The law is historically associated with the procedural rules and the magic formulae required to invoke the attention of courts and other arbiters than with substantive policy. A fine example is to be had in Njal's Saga, where good lawyering is invariably associated not with any substantive knowledge or persuasive power, but in familiarity with fine points of procedure that have little to do with logic and nothing to do with justice. Indeed, the policies it enforces may be ill-advised and its impact harsh, but the law itself does not cognize such matters. Thus, while government may continually concern itself with truth, justice and the American way, the law merely serves as a conduit through which government attempts to pass its policies to individual situations. Such has ever been the nature of law--it is a tool, and only as just or as unjust as the government or individual who wields it. In my view, to say that a law is good or bad qua law is to pass not on the truth or beneficence of the intentions underlying it, but on how clearly it is written, how ordered a solution it concocts for the task at hand. I would hold up certain sections of the Internal Revenue Code as being the most brilliant examples I have ever seen of coherent solutions to an inherently insoluble problem of drafting--even though, to the extent they have any moral content at all, it is the evil one of stripping away the labor of one for the benefit of many. The law is, in itself, a morally neutral thing, except to the extent that, like Hobbes, one ascribes inherent moral worth to obeying the established order.

I realize that most of my handful of readership that were not already put off by the dreary, insipid subjects of most of my posts have abandoned me utterly during the last two months without posts. Unlike Peculiar, I have no particular excuse for my silence, except that my time is now occupied with actual (as opposed to speculative) involvement with the judiciary process. Nevertheless, I intend, once I can do the reading necessary to support my treatment with concrete points, to post another dressing-down of NPR for its fatuous decision that the summary rehearing order the Supreme Court handed down on the Texas redistricting case was somehow newsworthy. Honestly, I sometimes wonder if they have a legal analyst look at any of their Supreme Court stories before they shoot their magnetomotive mouth off.
A propos of foolish liberals, and a recent post by Odious, I must confess I have become rather cynical about the comparative inherent worth of various sources of law--whether power derives from a mandate from the masses or some farcical aquatic ceremony. I may myself value individual liberty over distributive justice, but it gives me no pleasure to discuss my reasons, since I am now convinced there is no conclusive argument that can be brought to bear on the subject. It is, I grant, possible to argue by setting up hypothetical parameters, just as it is theoretically possible to compare apples and oranges by assumed common criteria: but such is the work of philosophers, who have experience discussing matters that, in order to be discussed at all, must be hypothesized into irrelevance. What I cannot stand about politics, and particularly liberal politics, is the lack of any attempt to establish an analytical framework, so that all arguments reduce to the bald assertion that the one doing the asserting is right, along with all his cohorts, and everyone else is wrong. Even liberals in law school learn to define their terms and state their postulates--otherwise, there is no argument to be had. All that one can do in response to an unformulated statement is concede and throw back some vituperation. Therefore, when someone asks how the Unites States can say Saddam Hussein is a bad man, because we haven't spent nearly the amount of money the World Health Organization thinks we should to sponsor AIDS treatment in the third world, I will only shrug and answer: "Yes, I am a Republican, and therefore bent on humanity's destruction; but I think for now I could could content myself with yours."