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.