[lit-ideas] Re: Is a computer program a performative?
- From: "Peter D. Junger" <junger@xxxxxxxxxxxxxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Sat, 07 Aug 2004 09:59:25 -0400
John McCreery writes:
:
: On 2004/08/07, at 1:24, Peter D. Junger wrote:
:
: > As long as we are discussing performatives, is a computer
: > program---which is often defined as ``a set of intstructions
: > to be performed by a computer''---a performative. Or a
: > series of performatives?
: >
: > Does it make a difference whether the computer is a human being,
: > as they used to be when I was young, or a gadget?
:
: If we accept as a definition of performative Austin's description in
: _How to Do Things With Words_, a computer's instruction is not a
: performative since it either works or fails to work regardless of
: social context. Austin's description applies to utterances the uttering
: of which results in new social facts, provided that is that (1) the
: speaker is properly qualified, (2) the setting is appropriate, and (3)
: any other relevant procedural rules are followed. Thus, to use the
: classic example, when (1) a properly ordained minister utters the
: words, "I now pronounce you man and wife" in (2) the context of a
: wedding which is (3) properly licensed, no objection having been
: raised, and the bride and groom have made their vows of their own free
: will, the result is a legally binding marriage--a stubbornly real
: social fact, indeed, as anyone familiar with divorce courts can attest.
:
: There has, of course, been a good deal of nonsense written by those who
: conflate "performative" and "performance" and go wandering off into
: conceptual thickets far from this sort of prototypical example. When
: one has reached the point where "performative" is simply another way of
: saying that something is done with language, whatever the doing
: consists of, then--why the hell not--the computer's instruction does
: more useful work than most of the idle chatter we hear.
Fair enough, but I am a (retired) law teacher who is concerned, among
other things, with both law and computing. As I recall, Austin says
that performatives correspond to what lawyers call ``instrumental
language''---although lawyers, I think unfortunately, have not shown
much interest in Austin.
Now in my experience drafting a contract---which ceases to be a draft
and becomes an instrument---i.e., creates new legal relationships---when
it is propery executed, which I take to be a paradigmatic case of
a performative, is almost identical to the act of writing a computer
program, which becomes effective only when it is executed---i.e., run
--- on a computer.
This identity is not unimportant since it strongly suggests that
computer programs and legal forms should receive the same treatment
under the law of copyright and under the free-speech provisions of
the First Amendment.
And in some cases running a computer program changes legal
relationships as when one accepts a contract by ``clicking''
on a ``button'' on a web site.
Is there any term that catches the similarity between legal
instruments and computer programs? And, if there is no such
term, shouldn't there be one?
After all, all that executing a computer program does is create
a new text---encoded in binary digits---and that text, and the
execution of that text on a computer, has meaning, if it does have
meaning, only in a social context.
--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
EMAIL: junger@xxxxxxxxxxxxxxxxxxxx URL: http://samsara.law.cwru.edu
NOTE: junger@xxxxxxxxxxxxxxxxxxxxxxxxx no longer exists
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