Monthly Archive for December, 2004

Science or Soup?

Published on December 16, 2004 in Jurisprudence. 1 Comment

“In fact, there can be at least two sciences of law,” writes Davis Nelson. “Call these two sciences, for lack of better names, “law in action” and “academic law.”

While I agree that there may be two or more such sciences, I doubt that either would be law.

According to Nelson, 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. ( . . . ) Its principal activity would be the gathering of the knowledge necessary for the prediction of decisions.”

What would this science observe? The courts are the obvious cases, but what about town meetings, presidential pardons, the policeman’s decision to beat a suspect? What of the gang leader’s resolution of a dispute between gang members, or his decision to expel a gang member? The point is that in order to tell legal resolution of disputes (and that’s only half of what lawyers do) from non-legal dispute resolution, we need a concept of law first. Such concept of law has to be normative, and therefore you wouldn’t be able to observe it. If Nelson is serious about empirical, psychology, sociology, he is describing an interesting field of inquiry, but such sociology of formal dispute resolution isn’t any more “law” than the sociology of sex is a tumble in the hay.

Nor is Nelson’s Academic Law law. He envisions it as “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. Its principal activity would be the analysis of legal postulates. ( . . . ) It would need no observational techniques of its own.”

It sounds very Kelsian, very much a pure science of law. But I think it is recognized today that Kelsen’s design, while brilliant and influential, was neither “pure” (devoid of observation) nor was it ultimately successful. The strange thing is that Nelson says “legal postulates” where he means norms. Perhaps that is significant: For if you consider where “legal postulates” come from, the Constitution, laws, and the rulings of courts and other decisional bodies, you realize that it will be impossible to speak about legal norms without some measure of empirical observation. There is, for instance, the question whether a legal norm exists (that is, is effective) unless it is either obeyed by those to whom it is addressed (at least sometimes) or its transgression punished (again at least sometimes). I can imagine a pure science dealing only in formal relations of norms, but I cannot imagine that it could distinguish between legal, moral, or theological norms. Any “ought” would be grist for its mill. What Nelson is talking about is perhaps deontic logic, perhaps metaphysics. But it isn’t law.

Law operates in the application of norms. Sociologists or realists cannot predict the decisions of legal actors without also looking at the normative framework defining and (perhaps even) controlling such decisions. Lawyers who must decide cannot merely look at norms and believe that a formal or logical operation could bring forth from the normative space a practical solution. They will need the facts also. The facts will not just be facts, but will be Facts, subject already to a normative legal process of selection and interpretation. The norms will be understood in the light of the practical issues and their social, political, and historical implications. Observation and normativity are commingled in a great legal soup. And lawyers are better thought of as cooks than as scientists.

Davis Nelson replies to “Law as s science”

Published on December 11, 2004 in Jurisprudence. Closed

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.

Commodification and Equality

Published on December 5, 2004 in Jurisprudence. Closed

Most things can be sold, for example, cars, art, services, sperm, and life insurance; other cannot, such as life, people, and votes. What can and what cannot be sold has been highly contingent in history and geography. Demarcating the line between tradable and non-tradable goods is the goal of the commodification debate. In The Price of Everything, the Value of Nothing, a title inspired by Oscar Wilde’s famous definition of a cynic, I. Glenn Cohen provides a useful overview of the various positions in that debate, and adds another consideration to the essentialist position, namely that the implied expression of equilibrium that accompanies every trade performatively contradicts the fact that the traded goods (e.g., babies for cash) belong to different value spheres.

The problem is, of course, whether different spheres exist and if so, whether their existence is contingent or invariant. It strikes me that the definition of value spheres is directly reflective of a given society’s concept of equality. Equality, once applied, is never abstract; it is always equality with respect to something. We are willing to permit inequality in most affairs, for example, wealth, education, status, access to healthcare. With respect to certain things, however, we insist on equality, for example voting, standing before God, and the notion of basic rights. Similarly, for most things we permit the disturbance of an initial allocation of goods through trade. Some of these trades will lead to greater equality (for example where the initial distribution was exceedingly unequal) but most trades will, over time, lead to a state of increased and, if history is any evidence, persistent inequality. Here is where the notion of banned trades comes in. Wherever a society wants to protect the initial allocation of benefits and burdens, be it by design (e.g., voting) or fate (e.g., our bodies or the family that we are born into), it will seek to restrict trades that are likely to upset the original position. (Gifts have never been as corrosive as trade, because most people prefer to do good where it coincides with doing well. Thus, for example, donating organs is permissible but their sale is banned, as the threat of endemic organ donations is rather remote.) In other words, any inquiry into commodification must begin with, or at least include, an exploration of equality.

By the way, attempts to define and to create non-tradable goods (res extra commercium) has by no means be confined to such fundamental matters as babies, organs, votes, or live religious artifacts. (Dead religious artifacts, of course, are traded as objects of art.) Every manufacturer intent on preserving a predefined flow of goods, which is similar to maintaining an initial allocation of goods, imposes certain restraints on alienation on its wholesalers, such as territorial or customer clauses. In real property law, future interests serve a similar function, the pervasiveness of which gave rise to the rule against perpetuities. One may conjecture that the ubiquity of the underlying commodification problem (that is, the problem occurs even within one and the same value sphere) counsels against seeking a special, invariant status for certain goods based on either their nature or on the nature of trade involving such goods.

Is Law a Science?

Published on December 5, 2004 in Hobbes, Jurisprudence and Kant. Closed

“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.)
[tags]jurisprudence, law, science, Hobbes, Kant[/tags]