The social context influences science as a source of the law
All modern legal systems have survived any number of dynamic political situations. The same law has taken on quite different meanings, in terms of its interpretation and administration, in different political contexts.
In general, changes in the law can be seen as responses to persistent, fundamental problems of social and political organization. The specific changes are selections made from a range of possible alternatives. In its best uses, the verifiable knowledge provided by science narrows the range of possible alternatives and conditions the final choice.Although there is debate among historians of science about the importance of the social and political context in its development, the knowledge that science produces does not change in response to social and political contexts. The uses, the interpretation, the awareness and the internalization of knowledge by actors on the legal scene may change, but what is verifiable does not change, except by scientific consensus. This does not mean that knowledge does not change. It does. What is known is only a small part of what is potentially knowable. Thus there is no contradiction when it is said that verifiable knowledge does not change, while knowledge itself changes constantly.
In recent years economics, one of the social sciences, has been the source of many significant legal changes. Although the knowledge provided by economists has long been a source of law, both legal scholars and economists have increasingly contributed to the development of the separate discipline of what is now called ‘law and economics’. The development of both the law and science guarantees that each will influence the other. In the future, just as in the past, science, because of its universality, is bound to influence the law more than the other way around.
The subject of science as a source of the law has not been systematically studied.
The literature is vast and scattered. Every part of the modern legal system has a literature covering some of its relationships to science. Most of this literature is concerned with the application of scientific findings to parts of the legal system. For an example, see John A. Tarantino (1988). The classic bibliography, although dated, is that by Morris L. Cohen et al., still the best of its kind. The ‘Introductory essay’, by Cohen, remains the foremost overview of the general field. The Internet has many resources, for example see ‘The seamless website - law and legal resources’ at http∕∕seamless.com∕ commons.html (May 1997). See also ‘Social science as a source of the law’ Chapter 30 in the present volume.Notes
1. Lisa J. McIntyre, to give just one example, provides a list of 11 different definitions chosen from a sociological perspective.
2. For examples of these uses, see the traditional law school casebook edited by John Monahan and Laurens Walker (1994).
References
Cohen, Morris L., Naomi Ronen and Jan Stepan (1980), Law & Science: A Selected Bibliography, ed. Vivien B. Shelanski and Marcel C. La Follette, Cambridge, MA: MIT Press.
Fuchs, Victor R. (1996), ‘Economics, values and health care reform’, American Economic Review, 86 (1), March, 1-24.
Hayek, F.A. von (1973), Law Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy, 3 vols, Chicago: University of Chicago Press.
McIntyre, Lisa J. (1994), Law in the Sociological Enterprise: A Reconstruction, Boulder, CO, San Francisco, CA and Oxford: Westview Press.
Monahan, John and Laurens Walker (eds) (1994), Social Science in Law: Cases and Materials, 3rd edn, Westbury, NY: Foundation Press.
Schmoller, Gustav (1894), ‘The idea of justice in political economy’, Annals of the American Academy of Political and Social Science, Vol. 4, March, 697-737; trans. Ernst L. von Halle and Carl L. Schutz.
Tarantino, John A. (1988), Strategic Use of Scientific Evidence, New York: Kluwer Law Books.
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