Sunday, March 11, 2007

Legal Scholarship: No. 8

In discussions of legal scholarship there is sometimes talk of

Law versus Theory

Legal Doctrine versus Theory

The disjunction between law and theory is spurious -- at least to the extent that the asserted disjunction is meant as an assertion that a legal scholar must choose between doctrine and theory. It is plain -- common sense suggests -- that a legal scholar can discuss both doctrine and theory.

It occurred to me just yesterday that even the admirable combination of theory and doctrine may be too narrow. Even better is

The Golden Triad

The Golden Triad consists of

Legal Doctrine, Theory & Technology

or, more simply,

Law, Theory & Technology

See The Dynamic Evidence Page

N.B. Ward Edwards once said to a friend of mine that it takes a lot of good theory to make a useful tool. Ward Edwards was a wise man.


Anonymous said...

A word from itinerant ignoramus... Adherents of Islam distinguish God-made law and human-made law - by sticking to the first and discarding the second as inferior. (It appears to be more complex, though - interpretations and traditions seem to play an important part in Islam law - I know very little about it). God-made law has immense authority. In relatively secular societies, however, TECHNOLOGY has become very important in regulative systems, including the legal system. Technology is not only a tool, but a source of authority. In my country there is very little opposition to e-government systems like e-election, e-education, electronic medical record, a.o. Twenty years ago IT systems were developed after existing laws. Today new IT system (like a Trade Registry) is developed hand in hand with development of new legislation. Development of our national EMR system (a huge IT system) was led in initial stage by a law office. Techological solutions can strongly affect the law that they are called to implement. In certain (scholastic? scholarly) sense we can think of Computer-made law. This leads us to a triad: (1) God-made law, (2) Human-made law, (3) Computer-made law.

Unknown said...

About pp's interesting comment: I don't know if the kind of technology I have in mind raises the kinds of issues and problems that pp mentions. My own preoccupation is with tools that lawyers and others might use to think more clearly and more expeditiously about problems of evidence in litigation and trials. These tools barely exist today. So I have not reached the point where I have begun to think about whether the use of such tools would ever be mandated. My instinct is that I would not be comfortable with mandated use of tools to support evidential analysis and assessment -- particularly if there were a high probability (which I think there would be) that any mandated tool would have unrecognized defects and limitations. Forcing a person to use a tool that is ill-suited to that user is worse than leaving the user entirely bereft of a tool.