As I practice law, I often catch myself thinking: "There is only one logic; the rest is politics." What does this mean? I'm not entirely sure, but it seems to capture the idea that we, as humans, can never really obtain the Truth. We sometimes come close to Truth, but mostly the facts of any situation are tainted by our perceptions and judgments. We never reach truly logical conclusions because we always base our conclusions on some implicit assumptions. Law is no different.

What does this crap have to do with the study of law? And how will it help me? Well, let's get immediately to a sample case.

The land has been sold twice. The white seller claims rights to sell the land trough a grant of the land to him by the state (or the King or whatever). The Indian claims he has a Natural Right to sell the land.

The two buyers come into conflict. Who now owns the land? Which buyer wins? We must determine which seller had the better claim to the land.

Both theories of how the sellers got the land seem "logical." Both men's basis for claiming ownership to the land seems "right", "just", and "legal." Who wins? Well, the white guy, who else.

This case came before the Supreme Court in March of 1823. Johnson v. M'intosh. The Court had two parties before it. Both had undisputable claims of right to the land. But one party had to win and one had to loose. The Court had to decide which party would get the help of the police to possess the land. This is not some philosophical question. In any legal action, ultimately if the loser doesn't comply, the state will use brute force to ensure compliance. The police must have a justification for using this force; they will point to a court order that favors one party over another. People may get hurt, or even die trying to prevent the police from ejecting them. This is serious stuff.

In our case, there is a political question before the court: which group of people has the blessing of the State to own and sell rights in land? The court rules against the weaker party, the Indians, who lose their rights to sell the land their ancestors seemingly possessed for a thousand years. What gives! This isn't fair -- This is politics. Welcome to the Occupation.

We know from our political science classes that the judiciary should be insulated from political influence and that the rule of law is a cornerstone of our Republic. We know that the decision to give the settlers right to sell land that belonged to Indians must have some JUSTIFICATION. Some basis in the rule of law. The decision can't be one of raw political power. It must have at least the veneer of a judicial proceeding.

In our case the court did justify itself in an opinion. That's what legal opinions are, legal justifications for the use of executive power.

Here the justification goes something like this: Historically, the Europeans acquired rights to land by discovery. Also, Historically, Europeans acquired rights in land by conquest. The system of property ownership in the United States has become well defined and stable. Giving the Indians rights to land taken from them by conquest and discovery would destroy that stability.

I bet you can argue either side of this issue. I can make a great case for the Indians: They were here first. One of the fundamental principles of property law is first in time, first in right. Under that rule, the Indians found first. They should have the greatest rights in the land. The court gets around my argument by saying the Indians were savages and weren't really capable of exploiting what they found. Is this true?

The point to take away from the case is that many disputes can't be resolved by logic. Thus, a subjective determination must be made by the judges.

In the courts, there is no Justice, there is no Truth. There is only law. The Supreme Court, and lower courts to some extent, are the ultimate arbitrators of disputes. They must, somehow, turn the subjective and capricious into an objective and just reality. This transubstantiation is performed by magic. We the people must believe that the justices are acting in our interest, in the interest of the State. We must have faith their decisions are true. The judges have a duty too. They must bind our need for subjective decision making to larger well-founded principles. In our case, the judges tied their decision to the "fact" that Indians are savages that can't exploit land properly. This probably played pretty well in 1823. Is this a "fact" today? Maybe, but most likely not. Using a utilitarian argument a modern judge might argue that the settlers, with their better technology were in the best position to bring about the greatest amount of good.

I believe that the traditions and forms of jurisprudence constrain the political tendencies of judges and impart some level of objectivity to their decisions. I also believe that experience as a lawyer and a judge hones the judiciary's practical wisdom. I believe that this practical wisdom constrains raw political interest.

I think good judges develop a practical wisdom. It is a quality that is recognizable in people. Wise judges; good judges; judges you'd like to be like. . . It is a quality of discerning possible outcomes and crafting the most efficient and effective solution in light of these outcomes. It is an intuition towards consensus. Practical wisdom is definitely not something concrete and tangible but I believe it exists.

Regardless of how subjective an opinion may be, it is usually wrapped in a veneer of objective sounding legal language, i.e. legal reasoning. I find it interesting that most judges write their opinions in a way that obscures their subjective nature. They make it look as if their decisions are the logical outcome of reasoning.

Many like Critical Legal Studies scholars deride any semblance of form or objectivity in the legal system. They claim that the judiciary was designed by straight white men to exploit and suppress blacks, women, gays, and everybody else. I don't believe it.

A good political and philosophical background on the nature and purpose of law provides you with a framework for arranging the information you pull from reading cases. A good place to start is by reading Oliver Wendell Holmes' The Common Law, available for free at Project Gutenberg. This is a big work, so skip it if you must. On the otherhand, it is free.