The processes by which social science becomes a source of law
The process by which the social sciences influence the law begins with the declaration of a social problem.
A social problem is:
(1) a social situation
(2) involving a substantial number of persons
(3) which is declared
(4) to be inconsistent with the values
(5) of some influential group
(6) and labeled as a situation
(7) which must be dealt with
(8) by some kind of collective action.
(Senn and Senn, 1993, p. 236)Social problems have many different origins. They always begin with ethical and moral values. The process by which the sciences that study man influence the law starts with the declaration of a social problem based on a judgment that a social situation is inconsistent with the values of some influential group and must be dealt with by some kind of collective action. Arguments for the remedies sought are buttressed by what passes for social science knowledge at the time.
The process by which the sciences that study things influence the law begins with the verifiable knowledge all good science produces. The fact that the knowledge works is translated into new or improved technology. The development of technology forces changes in the law by creating new products, institutions and relationships. If it is to remain viable and the economic system is to grow, the legal system must accommodate the changes.
The process by which the sciences that study man influence the law are not the same as those of the sciences that studies things. A social problem can be the result of either of the two main kinds of technological change - those stemming from knowledge embodied in material things or those stemming from the knowledge embodied in techniques. The contrasts between the two processes can be illustrated by the different kinds of issues which arose in the nineteenth century from the development of railroads and opposition to the use of child labour in factories.
When the use of the labour of children became recognized as a social problem, laws in the industrialized countries were passed to regulate it. Typically, they set limits on the hours that could be worked for children of different age groups. Arguments from many of the social sciences were influential in the debates which preceded their passage. The initial impetus for their passage was based primarily on moral and ethical grounds.
The evolution of most laws to regulate railroads stemmed more directly from the technological advances they represented. As railroads developed, they required not only changes in numerous laws but also many new laws. Among these were laws about eminent domain, liability, ownership and finance. The initial impetus for their passage was based on legal voids that needed filling if the benefits from railroads were to be obtained. It often happens that developments in material technology cause social problems. The process of industrialization not only gave rise to new laws about the tools that made it, but also brought about other social changes. Among those were new relationships in the family and between the government, employers and workers. All of these social developments were reflected in laws that were based on social science.
The recognition of social problems is a consequence of ethical and value judgements. Practical political considerations far outweigh any kind of logic in their treatment. This is in sharp contrast to social science, which is essentially logical and empirical. The nexus between its concepts is a logical nexus. The grounds for its detailed assertions are logical and empirical.
The legal system is a social institution with logics of a very different nature. Neither the politics of social problems nor the workings of a legal system can be rationally justified in the same way as the theories internal to the disciplines. In a democracy, the formal concerns that motivate political choices must always be more important than the knowledge social science provides.
No legislature will pass new laws simply on the basis that a social situation is ‘bad’. Other arguments are required, and social science provides them. The complexities of changing societies, the way political institutions and legal systems function and the contingent nature of much social science knowledge are the main reasons for the less than successful resolution of many social problems.