Some relationships of law and science
As used here, the term ‘law’ refers to rules that most of the people it is intended to encompass regard as covering all its members. These rules are accompanied by institutions and procedures for their interpretation and application and, in the case of disobedience, procedures and sanctions for enforcement.
Law is part of a social system that is unique in many respects for each country. Its relationships to science can only be understood in the context of the legal system for a given country or the developing international systems of law. By a legal system is meant a set of social organizations: legislatures, courts, the bar (lawyers and legal scholars), regulatory agencies and police that work together. Legislators originate the formal statement of the law. Judges interpret it and determine sanctions. Lawyers and legal scholars practise (study, interpret, manipulate) it. Regulators, bureaucrats and police administer it. Inevitably, they also interpret and manipulate it, but on a level different from that of the courts.
For each of the social organizations that make up a legal system, science plays a different role in the development of the law. As used here, the term ‘science’ denotes what passes for verifiable knowledge. It plays an important role in each of the social institutions that make up the legal system. The term is not used to stand for any kind of knowledge. In that usage, all law is based on it.
Science has several dimensions, each of which has a part in a system for producing verifiable knowledge. The goal of those who practise it is verifiable knowledge. Science requires argument and evidence that anyone can accept, one of the characteristics that makes it universal. In the long run, it is selfcorrecting. This is a result of its openness, accessibility and universality. Other investigators will, sooner or later, root out any errors.
Law is a social enterprise but of a type different from science. The goal of law is justice. The idea of justice differs according to culture, time and place. There has never been widespread agreement on what justice is. Many famous writers on law and economics have written about economic justice. For example, Gustav Schmoller (1838-1917) treated justice as an empirical concept. He felt that ideas of justice develop from the culture while ‘the law can only uphold justice within its own range and can only execute it in a certain sense’ (Schmoller, 1894, p. 725). Friedrich August von Hayek (1899-1992) treats the idea of social justice as a mirage (see Hayek, 1973, vol. 2, which contains a disparaging reference to Schmoller and his ideas of justice).
One of the most important functions of a legal system is to settle differences about what justice is in individual cases. In sharp contrast to science, argument and evidence in the legal system only need to satisfy the person or body before which they are given. No legal systems claim universality. All the sciences are bound by the same canons, which include a search for a closer approach to truth; honesty; verification procedures such as replication and falsification; and logical consistency. Different legal systems have very different standards for each of these. Torture or the use of electronic equipment or drugs as truth-finding devices are acceptable in some legal systems but not in the scientific world.
Scientists are also united in their agreement on many of the same assumptions, such as the existence of a physical and human world apart from that known to the individual through his/her senses and intellect; the idea of progress in the sense of a cumulative building of knowledge; causation, in the sense that things happen for reasons; and the reality of space and time.
Actors in the legal system make some very different assumptions. Most notably, they have to assume the ultimate reality of the world as it is known to the individual through the senses and intellect.
In the law, motivation, which has little place in science, is often an important causal consideration.Many elements of the methodology of law and science are the same, as with, for example, the use of different kinds of explanation, reliance on observation, tests of logical consistency and the use of mathematics. Scientific knowledge is, however, separated from other ways of knowing common in law. Unlike actors on the legal scene, scientists refuse to accept things as ‘known’ on the basis of authority, intuition, insight, hope, logic alone, personal behaviour or philosophy.
Another way to understand some of the differences between science and law is by way of the fact that different languages can make statements about the law which cannot be translated. But any scientific knowledge can be both stated and scrutinized in any modern language, using the same methods with the same results. To fully understand the differences between science and law, one has only to recognize that both the products and processes of each are quite different. The product of science is verifiable knowledge. The most obvious product of law is constitutionality. At its best, law ought to produce justice or at least equity and fairness. Science and law are so different and so important that investigations of science as a source of law are appropriate. Equally legitimate might be investigations of the law as a source of science, a subject not touched on here.