Law & Society Blog

“Is law a science?” Usually, this is a rhetorical question. Formalists say, “Of course it is. The equivocation of science with natural sciences, a development of the 18th and 19th Century, unduly restricts the realm of scientific reasoning.” Realists say, “Of course it isn’t. Ultimately, law is distinguished from politics only by the manner of its administration and by the technical nature of its discourse. But under the hood, law is about values, interests, and power, not about objective or at least inter-subjective truth.” Both sides have a point, and on a superficial level the disagreement can be solved with a somewhat broader definition of ¨?science. But substantively, as much as it pains me, I must agree with the realists, even though their assessment of the law as an epiphenomenon of underlying social and economics forces is so incomplete as to render it largely useless.

In this debate, one must retain a sense of perspective. Scientific reasoning and scientific method, as in natural sciences, stands out among all other forms of human reasoning and inquiry, because it allows for the construction of machines. Natural science enables technology, and technology has changed our lives more than any other human invention in history (discounting language, because it was not consciously invented). A citizen of Athens would have recognized the world in 1650 without great difficulties. A citizen of Oliver Cromwell’s London in today’s world would recognize our law, our political institutions, and many of our social customs, but he or she would gape in awe and utter incomprehension at our technology, at cars, cell phones, the internet, airplanes, etc.

The transformation of a (largely) natural world into an engineered world, a process that is continuously accelerating, has been the single most defining event in human history of the last 350 years; nothing else comes even close. The driving force of that change, the enabling faculty, was the marriage of mathematics with empiricism, that is, scientific reasoning as explored by Galileo Galilei, Rene Descartes, Gottfried Wilhelm Leibniz, Isaac Newton and others and as described by Karl Popper and the critical rationalists, taking into account the occasional dead end and a series of turf wars among an ever more highly specialized scientific community, which accounts for much of what Thomas Kuhn describes in the Structure of Scientific Revolutions.

“Hold on,” says the formalist, “mathematics and empiricism have been part and parcel of the philosophical discourse ever since before Plato. What happened in the 17th Century that made natural science so special that it has now become the gold standard of science as such?” One word: Calculus. The defining discovery of Greek philosophy was to provide a general, ontological explanation for the ubiquitous experience of change and invariance (some things change, others don’t), that is, the discovery of matter and form, of the empirical world and the world of ideas, of body and soul. Mathematics, in particular geometry and early number theory (most of which we would see as numerology today), had immediately been identified as part of the ideal, unchanging world, whereas empiricism was the method of choice to learn about our changing environment. And that is largely how things remained for the next 2,000 years. Philosophers explored the universe of eternal, unchanging ideas (using geometry as one of many intellectual tools), and the rest of us kept muddling through in the real world. The discoveries of Leibniz and Newton changed all that, because suddenly mathematics was able to describe change. That was a true paradigm shift. Philosophers had always been aware of the fact that, for whatever reason, nature obeyed mathematics. But the application of mathematics to natural phenomena was severely limited, because most of nature (that is, the empirical world) is in constant, non-linear change, and mathematics was only able to deal with those parts of the world that remained more or less static. (For example, measuring plots of land, etc.) Calculus made mathematics applicable to the entire empirical world, to its static and its dynamic parts. And that is what made scientific reasoning, the marriage of mathematics and empiricism, the most successful intellectual and practical undertaking of humankind.

Against this backdrop, we are in a better position to understand why other forms of intellectual inquiry fell into disrepute. For 2,000 years hermeneutic reasoning, rhetoric, exegesis, religion, alchemy, astrology, empiricism, geometry, and other modes of intellectual inquiry had competed with one another. But within two generations of its invention, the new natural philosophy (natural science) had blown away the contenders, transforming the world in the process. As a result of the resounding victory of the natural sciences, other disciplines scrambled to hop onto the bandwagon. In particular Thomas Hobbes tried to make social science (and law) a natural science, equivocating the normative with the factual. That trend continues to this day.

Of course, there have been modes of intellectual inquiry other than that of the natural sciences, but most of those that survived were part of a new breed of meta theories, that is second order observations, which scrupulously avoided direct competition with the natural sciences by talking about the natural sciences and their a priori limitations. Without a doubt, the most influential thinker of the new meta theorists was Immanuel Kant. His Critique of Pure Reason is an attempt to answer the question why the empirical world obeys the laws of mathematics and/or physics, and to what extent we can reason validly about things that are not part of the empirical world. (His answer: Only marginally, and only with extreme caution.)

“How does that help me with my question whether law is a science?” It answers the question in the negative. Law is not a science, because its subject matter resists empiricism and mathematics. It is, however, a sophisticated mode of intellectual inquiry and reasoning. Reason and rationality are not confined to science. And here is where the legal realists, at least most of them, go wrong. Law is not about the explanation and prediction of behavior. Law is about norms and reasons for (not explanations of) decisions. And, most significantly, law does not require certainty. (I will attempt to spell out the difference in a future entry.)

Technorati Tags: jurisprudence, law, science, Hobbes, Kant

License

This work is published under a Creative Commons Attribution-Noncommercial 2.5 License.