A perennial debate rears its very gray head at The Volokh Conspiracy. I left there the following comment:
I would add one point to what you say. One of the big problems in this area continues to be physics envy. The economists want very badly to be precise and have dandy equations that look so sophisticated and objective and Scientific, and they like to look down on disciplines whose standards of precision, styles of argumentation, and subjects of dispute appear to be “subjective” or imprecise by that standard. They disregard Aristotle’s wise counsel:
We must be content, then, in speaking of such subjects and with such premisses to indicate the truth roughly and in outline, and in speaking about things which are only for the most part true and with premisses of the same kind to reach conclusions that are no better. In the same spirit, therefore, should each type of statement be received; for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs.
There is no reason why legal scholarship should be judged by the standards applicable to sciences that are more easily reducible to mathematics. On the contrary, the principles of law—which purport to govern the interactions of human beings, each of whom has free will, dreams, desires, taboos, ambitions, &c.—are vastly more complicated than, say, the principles that govern the interactions of soulless subatomic particles or electromagnetic waves. These latter phenomena are only barely explicable in mathematical terms by the science and technology of today, after a centuries-long effort by humanity’s finest minds. It should hardly come as a surprise, therefore, that wide areas of law have not reached the same degree of precision. And that fact hardly renders law “subjective,” or “imprecise,” or “made up,” or whatever.
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