The Laboratorium (3d ser.)

A blog by James Grimmelmann

Soyez réglé dans votre vie et ordinaire afin
d'être violent et original dans vos oeuvres.

CPU, Esq.

I am writing a book. It is the book I have been working towards, not always consciously, for a decade. It is the book I was born to write.

The tentative title is CPU, Esq.: How Lawyers and Coders Do Things with Words. It tackles a very familiar question in technology law: what is the relationship between law and software?. But it comes at the problem from what I think is a new and promising direction: the philosophy of language. As I put it in the abstract:

Should law be more like software? Some scholars say yes, others say no. But what if the two are more alike than we realize?

Lawyers write statutes and contracts. Programmers write software. Both of them use words to do things in the world. The difference is that lawyers use natural language with all its nuances and ambiguities, while programmers use programming languages, which promise the rigor of mathematics. Could legal interpretation be more objective and precise if it were more like software interpretation, or would it give up something essential in the attempt?

CPU, Esq. explodes the idea that law can escape its problems by turning into software. It uses ideas from the philosophy of language to show that software and law are already more alike than they seem, because software also rests on social foundations. Behind the apparent exactitude of 1s and 0s, programmers and users are constantly renegotiating the meanings of programs, just as lawyers and judges are constantly renegotiating the meanings of legal texts. Law can learn from software, and software can learn from law. But law cannot become what it thinks software is – because not even software actually works that way.

The book stands on three legs: law, software, and philosophy. Each pair of this triad has been explored: the philosophy of law, the law of software, and the philosophy of software. But never, to my knowledge, have they been considered all at once. More specifically, I plan to:

  1. Use concepts from the philosophy of law – particularly the theory of speech acts and legal interpretation – to give a rigorous account of how software works
  2. Use that account to illuminate questions in legal doctrine: e.g., how should judges interpret smart contracts?
  3. Use that account to illuminate questions in legal theory: e.g., is the ideal judge a computer?

CPU, Esq. is under contract with Oxford University Press, and I will be on sabbatical in 2020-21 writing it. If you are interested, the book has its own site and I also have a mailing list where I will post updates, research queries, and requests for feedback. If this sounds interesting to you, please sign up!