Challenging the "scientificism" of the law

Why make an ugly neologism in order to put scare quotes around it? For that purpose, the sign "science" or "scientific quality" would do.

-- By JohnBarker - 16 Feb 2012

Introduction

One particular comment struck me from one of the first classes we had. At that point, we had only read the article by Justice Holmes and had not really fleshed out some of the ideas that we’ve gotten into in the ensuing few weeks. We were discussing something that involved the fact that judges don’t necessarily do exactly what they say they do, a common theme based on what we have studied so far. The issue of the lack transparency in the law came up, and how maybe society and legal institutions need to be more aware of what the law is and what the law is not.

This sentence was obviously unedited. The missing word wasn't found, and the extra words weren't removed. That means the rest of the graf wasn't edited either, which means the piece wasn't edited.

One of my colleagues asked a question that was something along the lines of pondering whether maybe there would be societal unrest if the law was less opaque, that maybe exposure to concepts like legal realism would have a negative effect on morale and faith in the government (very much paraphrasing here).

Why is the essay's reader best brought into the idea you have to present by a slack and "very much paraphrased" version of an argument you could have presented tautly in half a sentence? We're 160 words into your draft and we haven't heard anything about your idea.

As soon as the question was asked, I thought it was a very interesting one, and worth thinking about. In fact, we have had similar discussions in at least a couple of my other classes in the last six months, about how faith in the court system on the part of the people is vitally important, and how courts must sometimes make policy decisions specifically to retain the faith of the population. So I was very interested in hearing the professor’s response, and was thus somewhat surprised to see the consideration basically dismissed outright, almost with a sneer. And Eben was right. Why would it even cross our minds as a consideration that we should remain ignorant about how the world really works (and how the world should work) just for the sake of tricking the population, and indeed tricking ourselves, into some sort of static compliance? Too strong of a focus on order and on some understanding of national unity as opposed to on really interacting with the truth and with reality results in a failure to progress and a failure to better ourselves and our system. As Holmes says, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

But that's not the same argument being dismissed. Another argument is being dismissed there, for other reasons. Whether I was sneering can be left to the tape. I was objecting that such an argument is incompatible with a theory of democratic self-government by informed citizens—a theory we tend to call "Jeffersonian" when we're not working actively against it. Your subsequent sentences reach towards that argument, which you claim to agree with, before you joly off again in the direction of a different argument, given by Holmes, in which he more thoroughly believes.

Courts on Trial

It is with this lens, compounded by the other articles we have read, that Jerome Frank’s piece really resonated with me. For much of the article I was trying to find a taking point. Yes, looking at law as predictable and as a science is flawed, but so what? What’s the solution? Frank talks about how humans have a “deep fear of acknowledging the emotional and destructive impulses of man” (18). It seems to me that a lot of his point is that we need to acknowledge this thing, this understanding that law is not science but involves so much emotion and so many variables, rather than run from it, in order to make our system more legitimate. My first thought upon reading this sentence, however, was this: won’t that undermine the system by highlighting its arbitrary nature? Of course with exasperation I immediately realized the error of this thinking, as I was engaging with the themes of the article in exactly the way I had so recently learned (correctly) to avoid.

But why do we keep coming back to these ideas involving the fallacies of our legal system? Why in general is it so difficult to really interact with that system and focus on understanding its theory, as well as on bettering that theory and its application? There are a lot of possible answers, and certainly the truth is that many of them in combination make people resistant to challenging the way we think about the world. Such an exercise would be difficult and highly theoretical, and then there is maybe some fear of the unknown and of what it means for our society and culture if the law doesn’t “mean” something logically. These are certainly on point; the second is a particularly strong and noteworthy factor, and connects in an interesting way to Robinson’s seeming paradox that some rapists are the worst people, and some are the kindest (things aren’t black-and-white).

Conclusion

How can you be ready for a conclusion? We still don't know what your idea is, nor have we seen any development or argument. As recently as 150 words ago, at the beginning of a long graf with little content, you were still asking rhetorical questions about ideas that aren't yours.

But one possible factor that, potentially just for its newness to me, really stuck out as a consequence of Jerome Frank’s article comes at the end of his discussion on equating law and science. Some legal thinkers, so the argument goes, have striven for “scientific dispassionateness” which has resulted in “confus[ing] scientific objectivity with disinterest in values” and attempts to be completely removed from ethics; and precisely because law is not a science and ethical values are in reality pervasive in any legal thinking, such theorists have essentially selectively “buried” their own ethical assumptions within their supposedly logically coherent thoughts (216-17).

So your conclusion begins by summarizing yet another idea that isn't yours in a single 100-word run-on sentence?

As much as this process might be unconscious, I believe it could have an effect on peoples’ reluctance to acknowledge the truth about the subjectivity and human element of the law or to think of ways to improve our understanding of the law. My point is that perhaps there is some sort of “digging in” effect, where those “in the know” are able to (again, unconsciously) instill their own social values into the legal system and retain control. So maybe individuals are keeping power and featuring their values prominently in the structure of our legal system by doing exactly what my colleague on the second day of class suggested. Maybe on some level the “scientificism” of the law is a form of social control that has more power than the law itself.

And in the end your conclusion is "maybe" something? Your point is that perhaps there is "some sort of" an "effect" in which power embeds its values in the legal system?

This draft seems to me the first sketchy, unedited, notes made on the pad on the way to identifying the theme of an essay. From this and other similar free-writing, the theme would emerge, as it would otherwise emerge from staring out the window, taking a walk, or whatever is the method by which you best do your thinking. Then you have an idea of your own you can put down sharply, in a sentence or two. You develop an outline, starting from the brief exposition of your idea, passing through the efforts necessary to explain it in full to the reader, including summoning the materials in others' writings that will help to substantiate your idea and put it in context. This is when your reading and research are done. Your outline is then subjected to rigorous editorial assessment. Every link between items is tested for weight-bearing, and each proposition is itself considered in a skeptical light: what is the strongest thing that can be said against it, and how might that objection be met or avoided? Then a draft is made which "writes out" the outline. A conclusion is drafted that shows clearly what you have gained, and offers the reader points of departure for new lines of thought branching out from what you've made good. That draft is then edited for clarity and economy. At the end, you have an essay draft that does justice to the energy of your thought.