Challenging the "scientificism" of the law

-- By JohnBarker - 16 Feb 2012

Introduction

One particular comment struck me from one of the first classes we had. At that point, we had only read the article by Justice Holmes and had not really fleshed out some of the ideas that we’ve gotten into in the ensuing few weeks. We were discussing something that involved the fact that judges don’t necessarily do exactly what they say they do, a common theme based on what we have studied so far. The issue of the lack transparency in the law came up, and how maybe society and legal institutions need to be more aware of what the law is and what the law is not. One of my colleagues asked a question that was something along the lines of pondering whether maybe there would be societal unrest if the law was less opaque, that maybe exposure to concepts like legal realism would have a negative effect on morale and faith in the government (very much paraphrasing here).

As soon as the question was asked, I thought it was a very interesting one, and worth thinking about. In fact, we have had similar discussions in at least a couple of my other classes in the last six months, about how faith in the court system on the part of the people is vitally important, and how courts must sometimes make policy decisions specifically to retain the faith of the population. So I was very interested in hearing the professor’s response, and was thus somewhat surprised to see the consideration basically dismissed outright, almost with a sneer. And Eben was right. Why would it even cross our minds as a consideration that we should remain ignorant about how the world really works (and how the world should work) just for the sake of tricking the population, and indeed tricking ourselves, into some sort of static compliance? Too strong of a focus on order and on some understanding of national unity as opposed to on really interacting with the truth and with reality results in a failure to progress and a failure to better ourselves and our system. As Holmes says, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Courts on Trial

It is with this lens, compounded by the other articles we have read, that Jerome Frank’s piece really resonated with me. For much of the article I was trying to find a taking point. Yes, looking at law as predictable and as a science is flawed, but so what? What’s the solution? Frank talks about how humans have a “deep fear of acknowledging the emotional and destructive impulses of man” (18). It seems to me that a lot of his point is that we need to acknowledge this thing, this understanding that law is not science but involves so much emotion and so many variables, rather than run from it, in order to make our system more legitimate. My first thought upon reading this sentence, however, was this: won’t that undermine the system by highlighting its arbitrary nature? Of course with exasperation I immediately realized the error of this thinking, as I was engaging with the themes of the article in exactly the way I had so recently learned (correctly) to avoid.

But why do we keep coming back to these ideas involving the fallacies of our legal system? Why in general is it so difficult to really interact with that system and focus on understanding its theory, as well as on bettering that theory and its application? There are a lot of possible answers, and certainly the truth is that many of them in combination make people resistant to challenging the way we think about the world. Such an exercise would be difficult and highly theoretical, and then there is maybe some fear of the unknown and of what it means for our society and culture if the law doesn’t “mean” something logically. These are certainly on point; the second is a particularly strong and noteworthy factor, and connects in an interesting way to Robinson’s seeming paradox that some rapists are the worst people, and some are the kindest (things aren’t black-and-white).

Conclusion

But one possible factor that, potentially just for its newness to me, really stuck out as a consequence of Jerome Frank’s article comes at the end of his discussion on equating law and science. Some legal thinkers, so the argument goes, have striven for “scientific dispassionateness” which has resulted in “confus[ing] scientific objectivity with disinterest in values” and attempts to be completely removed from ethics; and precisely because law is not a science and ethical values are in reality pervasive in any legal thinking, such theorists have essentially selectively “buried” their own ethical assumptions within their supposedly logically coherent thoughts (216-17).

As much as this process might be unconscious, I believe it could have an effect on peoples’ reluctance to acknowledge the truth about the subjectivity and human element of the law or to think of ways to improve our understanding of the law. My point is that perhaps there is some sort of “digging in” effect, where those “in the know” are able to (again, unconsciously) instill their own social values into the legal system and retain control. So maybe individuals are keeping power and featuring their values prominently in the structure of our legal system by doing exactly what my colleague on the second day of class suggested. Maybe on some level the “scientificism” of the law is a form of social control that has more power than the law itself.

---

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, JohnBarker
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.