Challenging the scientific quality of the law

-- By JohnBarker - 16 Feb 2012

Introduction

By looking at the law as a science in a way that attempts to remove one's personal ethics from the equation of making law, one actually does just the opposite. It is impossible to remove one's ethics and values from that process, because law is not a science in the first place. And so the failure to interact with the lawmaking and judging processes in a way that accounts for that fact, even with the best intentions, results in those with power incorporating their own values into the legal system without them or anyone else knowing it. By not acknowledging this and by keeping transparency out of the legal system, the powerful allow this process to continue, and those with power further entrench themselves.

Transparency in the Law

During one of the first classes this semester, we were discussing the fact that judges don't necessarily do exactly what they say they do, a common theme based on what we have studied. he issue of the lack transparency in the law came up, and how society and legal institutions need to be more aware of what the law is and what it is not. One of my colleagues asked the question of whether there would be societal unrest if the law was less opaque, suggesting that perhaps exposure to concepts like legal realism would have a negative effect on morale and faith in the government.

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 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 that faith. 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 it 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.

Courts on Trial

It is with this lens 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 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? Why 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).

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 a 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. Which means 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. Even when the people in control are essentially good and strive for objectivity, when a scientific gloss is put on the law the values and ethics of those people become inextricably involved in the legal system. On some level, then, the perceived scientific quality of the law is a form of social control that has more power than the law itself.