How do we determine the `will of the people'?

A few weeks back, I opened a Chinese fortune cookie and read the following adage: ``The will of the people is the best law.'' I didn't disagree, but I thought it begged the key questions: Which people are we talking about? And how do we divine their will?

As it turns out, those two questions are at the heart of all the legal debates raging since Election Day.

The answer to the first question is counterintuitive, but clear. For better or worse, the people of each state (right now, Florida) rather than the people of the United States as a whole, are the ones who matter. The Constitution says presidents will be chosen by the Electoral College, and that college is made up of representatives from each state.

The second question has ended up in court, in spite of the avowed reluctance of both campaigns to involve the judiciary. So far, more than two dozen state and federal lawsuits have been filed over the election. They raise a variety of issues tied to how to know the people's ``will'' -- the most important of which concerns whether and how the manual recounting in various Florida counties should be conducted, and whether the Florida secretary of state is required to include those votes in her final tally.

The judiciary's answers could determine who becomes the next president of the United States. That, in the end, is something likely to make American voters uncomfortable. Simply having the courts weigh in on an election is already making many squirm. Why?

One short answer: Along the way to discerning the ``best'' law (the will of the people), we have to confront a lot of law that looks, frankly, pretty silly.

After all, the weightiest of arguments in these cases are turning, in part, on whether a piece of cardboard that is ``dimpled'' or ``pregnant'' should be counted as a legal vote.

The voters' unease is also fed by expectations of what our courts should be able to do. Even though modern legal scholars might find the idea quaint, many Americans have a vision of laws providing the ``right answers'' to problems. And there is also a hope among many that the courts are above politics.

Now voters are confronted daily with evidence that, possibly, neither assumption is true. The reality is, especially in a case as unique as a contested presidential election, there is no one overarching law that will solve all our problems.

We're seeing that in Florida, where the disagreements about what the law says are reaching down to the county level. Each county seems to have discretion to apply state election law in different ways. They appear to have some latitude to use their own criteria to decide whether and how to do a manual recount.

This disturbing lack of uniformity in the universe of laws is itself a function of how the Electoral College members are chosen. Article II of the Constitution gives each state the task of picking presidential electors as it sees fit. The states delegate authority in this area to county and local entities, which further fragment the procedural rules.

Then there's the politics. Or at least the appearance that politics might be driving all the court decisions that kept starting and stopping vote counts last week. We can again, blame, the Electoral College.

Article II of the Constitution hands the process for picking electors, as well as how controversies over these appointments are resolved, to states and state laws. As a result, state and not federal courts are being asked to answer many key questions. For this reason, most legal scholars agree with the federal 11th Circuit's recent decision not to intervene.

State courts might be similar to federal courts in some respects, but in one key respect they differ: State judges do not enjoy the political insulation of federal judges' lifetime tenure. In Florida, for example, justices of the Supreme Court must stand for election every six years.

I admit that, even though I believe state-court judges are capable of deciding cases without regard to politics, on the Wednesday after the election I checked the party affiliation of the seven Florida Supreme Court justices. Whether my instinct that they might rule in a partisan way is right or not, that feeling is certainly shared by many Americans.

A third cause for discomfort over judicial involvement is the seeming ad hoc character of some rulings. Legal rules are supposed to be general and prospective; we are not supposed to decide what the governing principles are after the facts and implications of a particular dispute are known. And yet some of what courts are doing in Florida does seem to be made up as we go along.

There are a few reasons for this. To begin with, the media are not good at unearthing and explaining what might be well-settled legal doctrines in Florida that speak to hand recounts by counties. And lawyers and judges (unlike executive branch officials) are not fully comfortable with acting quickly. The rapid pace of decision making is not showing courts in their best light.

Moreover, and unfortunately, society doesn't always think far enough ahead in making laws for very unusual situations. Low-probability events -- like the chance that a hand recount could determine a presidential election -- can be ignored by lawmakers entirely.

For that reason, there may be less hard-and-fast Florida law to apply than we'd like, and Florida courts may look more like political actors than legal arbiters.

Where does all this leave us? For now, until we revamp the system, it leaves us where we started: in Florida courts. Chief Justice John Marshall wrote in the famous Marbury vs. Madison case that ``it is emphatically the province and duty of the judicial department to say what the law is.'' Like it or not, the Florida courts have been doing just that.

VIKRAM DAVID AMAR is a professor at the University of California's Hastings College of Law. He wrote this article for Perspective.