Law has had a long and troubled relationship with science. The misuse of science within the legal realm, as well as our failed attempts to make law more scientific, are well documented. The cause of these problems, however, is less clear.
I would like to suggest that the unsatisfying relationship of law and science can be attributed, at least in part, to law’s inadequate understanding of what constitutes science and law’s inflated view of the potential benefits of science for law. It is our failure to understand what science knows about its own enterprise, as well as our fervent hope that law could be something other than it is, that leads us astray.
In highly simplified form, what we think of as science today began its history deeply entwined with philosophy and theology. During the Scientific Revolution, science separated from other types of intellectual endeavor, although the lines of demarcation were never solid. In the mid-twentieth century, philosophers challenged the notion that science could be so neatly discrete, although they were unable to settle on a coherent definition. An uneasy truce developed in which science is, at best, defined as a cluster of concepts, albeit ones that do not work individually or even as a whole. For my purposes, the important point is the following: those things that make science what it is are a far cry from law’s vision of science. Such distortions in law’s understanding of the nature of science magnify the problems created when law tries to import structures from science to solve its problems.
Some would argue that problems at the intersection of law and science flow from the changing nature of science. Law is too slow to adapt to the changing information available through the advancements of science, particularly for issues that are dependent on the Supreme Court revisiting those issues. Delay in the legal system is certainly a problem when law and science interact. In my view, however, the deepest problems flow not from the changing nature of science but from the changing nature of law.
Law is by its nature evolutionary and adaptive. There are no ultimate doctrinal structures in law because there are no ultimate questions. Those wishing to escape the constraints of any doctrinal structure will seek out the open spaces, the interstices among those things that have been decided. Cases will naturally emerge within the spaces of whatever structure exists, rendering that structure insufficient for resolving the new question.
When we borrow structures from science, the adaptive process breaks down, and it does so for several reasons. The most obvious is that we do not understand the science we are importing or applying. As a result, we do not allow law to evolve in a very effective or nuanced fashion. More important, however, is our tendency to imagine that science is clear and certain. We forget that scientific lines and categories are themselves no more than constructs. They are ways of creating shared understandings within the scientific community. In a legal context, however, we easily lose sight of the artificiality and the assumptions that such constructs embody. We become fixated on scientific categorizations, as if lines drawn by science have some mysterious power that we can access by invoking them. As a result, we fail to engage in the natural evolution and adaptation of the resulting doctrines. In short, when the legal system relies on science to craft its rules, those rules lack the flexibility and dexterity necessary for effective participation in the evolution of legal doctrine.
With this in mind, the article begins by describing law’s vision of science as an enterprise that is reliable, sustainable, and true in some absolute sense. The article then contrasts that view with science’s vision of its own enterprise as something much more limited. In particular, it describes the turmoil that developed during the twentieth century over the definition of science and the uneasy truce that has emerged. Finally, the article explores the nature of law and suggests that the constantly evolving nature of law makes science a bad fit for the way we try to use it in the development of legal doctrines.