Law & Society Blog

Davis Nelson of the Legal Philosophy Blog wrote a reply critical of my conclusions in Is law a Science. Here is his comment:

Your conclusion is unduly pessimistic for a number of reasons. In fact, there can be at least two sciences of law (see below). But you may need to reevaluate your glorification and adulation of science that gives the word such an excessively eulogistic connotation in your post before you can see the benefits that could flow from recognizing such separate and distinct sciences.

Call these two sciences, for lack of better names, “law in action” and “academic law”.

“Law in Action” would cover all of the actual processes which, over time, involve litigation, law office activities, judicial administration of disputes, and the like. This would be an empirical observational science. At a minimum, it would include psychological and sociological phenomena and employ the “products” of “academic law”. All of its scientific propositions would be probabilities. In this respect, it would be identical to any other empirical science. Its principal activity would be the gathering of the knowledge necessary for the prediction of decisions. Initially, it would have few, if any, of its own observational techniques but that might change in time.

“Academic Law” would be an academic subject-matter, producing a body of propositions having certain formal relations capable of analysis. This would be a purely formal science, like mathematics. Its subject-matter would be entirely propositional. The only instrumentality it would need would be formal logic. (By formal logic, I mean the analysis of terms, propositions and syllogisms, but not induction. It would cover the prior analytics in Aristotle’s “Organon”, or petite logique in the modern tradition. An aside: mathematics is philosophy rather than investigative science, of course, both in method and as a type of knowledge.) This science would deal with certainties and nothing else. Its principal activity would be the analysis of legal postulates. It could lay the foundation for a proper analogy between legal and scientific methodology. It would need no observational techniques of its own.

The relation between these two sciences should be obvious: the relation would not be unlike the relationship between experimental and mathematical physics, or the applied science of engineering to the pure science of physics.

The historical failure to acknowledge and separate these two sciences comes from precisely the errors contained in your statement: “Law is not a science, because its subject matter resists empiricism and mathematics. *** Law is not about the explanation and prediction of behavior. Law is about norms and reasons (not explanations of) decisions.” It can be both. Distinguish between the formal and empirical sciences of law, and much more agreement and clarity probably would result.

One final caution. One needs to keep in mind that science, as you have delimited it, may not be the model of empirical procedure you think it is. In science, there’s just as much Platonism, abstractionism and formalism as there is in the law. Every day of the week, we see mere theories and all manner of questionable empirical findings asserted as indisputable facts.

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