May 14, 2007
Grimmelmann on Pragmatics and Theory in Law and Programming
Posted by Jeff Lipshaw
Close readers of this blog will know that I have been thinking about mathematics and law recently. I agree with Carolyn Elefant's comment about the gray areas that exist in the product of lawyers' work (versus programmers' work), but I think it goes deeper than that.
Perhaps the main difference between mathematics, logic, and programming, on one hand, and what lawyers do, on the other, is the difference between provability and empirical truth, and beyond that, normativity. There is no normativity in logic - we build from axioms and rules of inference, often in almost indecipherable complexity. A theorem in logic or mathematics isn't good or bad, it just is or is not.
Programming is interesting because of the human interface. The program will do exactly what the axioms and rules of inference within the program make it do; the frustration comes when what it does is not what we want. A program can be bad, but not because of the logic. It can be more or less complex, take up more or less CPU capacity, or take longer to run, but that is normative because of something that exists outside of the logic of the system - a human who is impatient, or has decided that fewer lines of code are "better."
Here's the irony, at least to me. Theory is less important in programming because normativity plays such a small role in what a programmer does. Theory is important in law because we need to continue to test the result of our exercises in pragmatics against something else - ethics or morality or something - and that something pulls theory far closer to the surface of what we do every day. Conversely, we can make a pragmatic justification for pure theory in mathematics or science because it is a bottomless well the pragmatic use of which may come some time in the future. Is there really any analog in "pure theory" of law (with apologies to Hans Kelsen)? Can our "research" as legal academics lead to a previously undiscovered normative "light bulb" going on?
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