Social science, the law and public policy
How effective have laws based on social science been in remedying social problems? Most of the influence of social science on the law is to be found in laws and regulations about public policy.
The problems of the social uses of social science begin with the definition of what a social problem is. Anyone can declare a social problem. But the philosophical and theoretical criteria for assessing the importance of such declarations are not in place. Most declarations of social problems are therefore insulated from reasonably profound theoretical and critical analysis.Well-thought-out answers to elementary policy questions are lacking. Why is one problem more important than any other problem? Social science provides no simple, consistent or reliable theory or method for establishing the importance, either relatively or absolutely, of any given problem statement. In practice this means that modern democracies leave the determination of social problems to those they elect. The politicians who make up the legislature where the formal statement of the law is developed decide what social problems will be treated or left alone. They must, if they are to remain in politics, give most of their attention to what they think will get them reelected. The knowledge social science provides has to take second place to perceived political realities.
There are many other reasons for social problems never ending. They change over time. Change over time also means that no single approach to them will be appropriate. Modern democracies are tolerant of a very wide range of ethical and moral values, with the result that perceptions of them differ. Social problems are typically very complex. Every element of their definition requires clusters or groups of features, each of which poses its own philosophical and scientific questions.
The last century has seen some progress in defining social problems.
But this progress has been relatively little and very slow. The theoretical problems of defining social problems and the political nature of their resolution have many consequences for the influence of social science on the laws that make public policy. One is the virtual certainty of unanticipated consequences of their adoption and the generation of other social problems caused by putatively ameliorative social actions.There is much room for more use of social science in the legal system. As Ludwig von Mises (1881-1973) explained long ago, ‘Nobody will deny that the social sciences and especially economics are far from being perfect. Every economist knows how much remains to be done’. He emphasized, however, that ‘the present unsatisfactory state of social and economic conditions has nothing to do with an alleged inadequacy in economic theory. If people do not use the teachings of economics as a guide for their policies they cannot blame the discipline for their own failure’ (Mises, 1942, p. 253).
The development of both the law and social science guarantees that each will influence the other. In the future, just as in the past, social science is bound to influence the law more than the other way around. This is because it is a superior, although far from perfect, way to knowledge about social problems. Despite all the difficulties with social science as a source of the law, it is still the best hope we have for the amelioration of social problems.
There is an enormous literature on every topic discussed above. Every part of the modern legal system has a literature covering some of its relationships to social science. There is also a substantial literature that discusses law and some of the disciplines of the social sciences, notably anthropology, economics, history, political science and sociology. Almost all of the social sciences have journals specializing on the relationship of their discipline to law. Examples are Law and Anthropology, European Journal of Law and Economics, Law and History Review, Law and Psychology Review, Behavioral Sciences and the Law and Journal of Law and Economics.
For an early and perceptive view of how some aspects of the subject were perceived, see Michael and Adler (1933). For another sample, see Nagel with Bievenue (1992). For a study of how social science was used to develop new legal theory in the school desegregation cases, see Chesler et al. (1988).
Despite these, and other, efforts, the processes by which knowledge from the social sciences develops into law have not been systematically studied. The scanty material that exists is scattered and valuable mainly for the hints it provides about the need for more work. The best general sources are still the two social science encyclopedias (Seligman, 1934; Sills, 1968).
References
Backhaus, Jurgen G. (1990), ‘The requirement to correct dysfunctional legislation’ (De eis tot correctie van ondoelmatige wetgeving), Ars Aequi, 39 (10), 660-65.
Backhaus, Jurgen G. (1992), ‘Integration, harmonization and differentiation of law within the European context from an economic point of view’, in Bruno D. Witte and C. Forda (eds), The Common Law of Europe and the Future of Legal Education/Le Droit commun de l’Europe et l’Avenir de UEnseignementjuridique, Deventer: Kluwer Law and Taxation.
Backhaus, Jurgen G. (1997), ‘The German Waterpenny case: a paradigm for the emerging common law of Europe’, in Sabine Urban (ed.), Europe’s Challenges, Wiesbaden: Gabler.
Chesler, Mark A., Joseph A. Sanders and Debra S. Kalmuss (1988), Social Science in Court: Mobilizing Experts in the School Desegregation Cases, Madison, WI: University of Wisconsin Press.
Johnson, John W. (1992), ‘Brandeis brief’, The Oxford Companion to The Supreme Court of the United States, ed. Kermit L. Hall, New York and Oxford: Oxford University Press.
Michael, Jerome and Mortimer J. Adler (1933), Crime, Law and Social Science, New York: Harcourt, Brace/London: Kegan Paul, Trench, Trubner & Co. Ltd.
Mises, Ludwig von (1942), ‘Social science and natural science’, Journal of Social Philosophy and Jurisprudence, 7 (3), April, 240-53.
Monahan, John and Laurens Walker (eds) (1994), Social Science in Law: Cases and Materials, 3rd edn, Westbury, NY: Foundation Press.
Myrdal, Gunnar (1944), An American Dilemma: The Negro Problem and Modern Democracy, New York: Harper.
Nagel, Stuart S. with Lisa A. Bievenue (1992), Social Science, Law and Public Policy, Lanham, MD: University Press of America.
Seligman, Edwin R.A. (ed.) (1934), International Encyclopaedia of the Social Sciences, 17 vols, New York: Macmillan.
Senn, Mary S. and Peter R. Senn (1993), ‘What is a social problem? A history of its definition’, Jahrbuch fur Soziologiegeschichte 1993, Leske Verlag: Leverkusen, pp. 211-46.
Sills, David L. (ed.) (1968), International Encyclopaedia of the Social Sciences, 17 vols, New York: Macmillan and Free Press.
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