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.