MAMA SAID EAT YOUR VEGETABLES

Just some thoughts:

I have been giving a lot of thought lately to what "law" is. The reason is that, if you think that the rule of law is important, that begs the question -- what is law? Well, I'm not entirely sure what law is, but I have some ideas.

First, it would seem that the primary issue is bestowing the law with two things: objectivity and certainty. These two aspects would tend to go together, since if solutions to a legal questions are arrived at in an objective manner, only one answer is possible. If only one answer is possible, then that answer is in one sense certain and can be predicted. (If you predict the wrong answer, that only means that your reasoning was wrong, not that two results were possible.) A lot more could probably be said about the relationsip between an objective result and a certain one, but I'm not going to harp on it.

Here are some ways that law has sought objectivity (or at least the appearance of):

• trial by combat
• trial by ordeal
• appeal to deductive reasoning
• appeal to custom
• appeal to the social sciences
  
• appeal to economics/utility
• appeal to natural rights theories
• interpreting legal documents
  
• the myth of the dispassionate judge
• faith in the wisdom of the jury/unwillingness to examine the inner workings of the jury
• faith in the adversary system
  
• the practice of taking oaths
  
• (apparent) adherence to precedent
• the form of legal reasoning typical in the common law

As a postmodern person, and without any argumentation whatsoever, I will posit that objectivity is impossible in some (many) cases. I will also accept as uncontroversial the proposition that, at one level, the law is simply what the judges say it is. A right only means that a court will grant you relief if somebody takes some form of action against you, and nothing more.

Objectvity is possible in a lot of cases, though. Easy cases, aka the bulk of the law. Not just easy cases that make their way into the formal legal system, but the much larger part of the law's operation, i.e. the daily ordering of millions of people lives.

Objectivity becomes much harder, even impossible, when hard cases are considered. Two reasonable, well-meaning judges will often come to two completely different results.

In these cases, since objectivity is impossible, the question then becomes how do judges reach their results? What are the outer boundaries, if any, to the range of possible results? The most important restraint on a judge is that he is himself part of the society that he judges. Most likely, a result that would offend society at large will also offend him.

There are also procedural checks -- the right to appeal to other judges. In courts of last resort, however, the procedural checks that apply to lesser judges no longer apply.

But what limit is there when there is no custom to follow, no consensus among society, and no procedural check? In that situation, the law truly is what the judges say it is. A judge may feel contrained by precedent, but that "check" on his judgment is wholly internal. Like any other emotion or feeling, it can either be followed or ignored.
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