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Hastings Law Journal

Authors

David R. Dow

Abstract

In 1931, the German mathematician Kurt Godel proved that formal mathematical systems cannot be both complete and consistent. Using an intricate technique known as "embedding," Godel was able to use the basic tools of mathematical logic to prove their own indeterminacy. In recent years, scholars addressing law's indeterminacy have begun to discuss the applicability of Godel's Incompleteness Theorems, attempting to prove for law what Godel proved for mathematics.

In this Essay, Professor Dow challenges the utility of mathematical analysis in legal discourse. Focusing on a recent article by Mark R. Brown and Andrew C. Greenberg, Professor Dow shows that legal and mathematical reasoning are fundamentally dissimilar, and argues that law should scavenge only from things that law is like. Scavenging from mathematics, and from G6del's work in particular, represents a return to the discredited "scientific" approach to legal analysis epitomized by Christopher Columbus Langdell. Moreover, Professor Dow explains, attempting to prove law's indeterminacy through formal devices shows a basic misunderstanding of the source of law's inability to mechanically resolve disputes. The root of law's indeterminacy lies in the incoherence of the very concept of "the law." Law comprises distinctive sets of norms, entirely discrete normative regimes. The real task of legal theory, Professor Dow concludes, is to determine how we should choose among these competing regimes.

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