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Can Law Learn from Social Science?*

Published online by Cambridge University Press:  04 July 2014

David Nelken
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In this paper I shall be discussing a fundamental problem in the relationship between law and the social sciences. Many social scientists have pointed out that the “pull of the policy audience” in legislative and administrative exercises and the confines of practical decision-making in legal settings can compromise the proper development of academic social science and blunt the edge of political critique. The danger is real enough. But they have given insufficient attention to the opposite concern which will be my topic in this article. Here the charge is that the introduction of social scientific styles of reasoning can have ill effects for legal practice by threatening the integrity of legal processes and the values they embody. How can social scientists be sure that they have properly understood the nature of law or the meaning and point of the legal rules, procedures, and institutions which they attempt to analyze and seek to improve? What warrant can they have that social scientific interpretation, at any level, does not end up creating law in its own image? If this is a genuine risk, what implications follow for the way law should learn from social science? I shall argue that there are no easy answers to these questions even, or especially, where law apparently welcomes contributions from social science.

Type
Theoretical Issues and Methodological Problems
Information
Israel Law Review , Volume 35 , Issue 2-3 , Summer-Autumn 2001 , pp. 205 - 224
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2001

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References

1 See e.g., Nelken, D. “The ‘Gap Problem’ in the Sociology of Law: A Theoretical Review” (1981) Windsor Yearbook of Access to Justice 35–62Google Scholar.

2 I have already explored this problem in a number of places. See e.g., Nelken, D., “The Truth about Law's Truth” Law Working Paper (EUI Florence 1990/1991)Google Scholar; Nelken, D., “The Truth about Law's Truth” in Febbrajo, A. and Nelken, D., eds., The European Yearbook for the Sociology of Law (Milan, 1993) 87–163Google Scholar; also extracted in Nelken, D., “The Loneliness of Law's Meta-Theory” in de Lange, R. and Raes, K., eds., Plural Legalities: Critical Legal Studies in Europe (The Hague, 1991) 172Google Scholar; and Nelken, D., “Are Disputes Between Law and Science Resolvable?” in Nijbour, J.F., Callen, C.R. and Kwak, N., eds., Forensic Expertise and the Law of Evidence (Amsterdam, 1993)Google Scholar. See also Constable, M., The Law of the Other (Chicago, 1994)Google Scholar.

3 Social science insights are made possible precisely by transforming legal concepts and categories into those of the relevant social science discipline. Thus, whatever role law may have played initially in generating social science categories, sociological textbooks now reconceptualize legal phenomena in terms of issues such as social order, social control, regulation, dispute processing, governmentality, power, symbolism, and ideology, rather than respecting the doctrinal definitions of lawyers or even the relevant administrative categories.

It may happen of course that law tries to internalize concepts from the social sciences. But, on the one hand, there is a difference between learning from social science and being colonized. And, on the other, as the paper will attempt to illustrate, the crucial question is what law does with these borrowed concepts.

4 Nelken, D. “Criminal Law and Criminal Justice: Some Notes on their Irrelation” in Dennis, Ian, ed., Criminal Law and Justice (London, 1987) 139–177Google Scholar.

5 Nelken, D., “Blinding Insights: The Limits of a Reflexive Sociology of Law” (1998) 25(3) Journal of Law and Society 407–426CrossRefGoogle Scholar.

6 Monahan, J. and Walker, L., Social Science in Law (New York, 1985)Google Scholar.

7 Ibid. Monahan and Walker state: “We here view social science as an analytic tool in the law, familiarity with which will heighten the lawyer's professional effectiveness and sharpen the legal scholar's insights. The principle alternative to the insider perspective on the relation of social science to law is the “law and society” or sociology of law approach which seeks to understand the functioning of law as a social system.” (p. v). It might be more, accurate to say that the choice faced by each social science approach (economics, political science, sociology, psychology etc.) is whether to develop its understanding of legal phenomena according to its own idiosyncratic concepts and methods or in ways that can be internalized by law.

8 Tanford, J.A., “The Limits of a Scientific Jurisprudence: The Supreme Court and Psychology” (1990) 66 Ind. L. J. 137Google Scholar.

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11 347 US 483, 74 S.CT 686, 98 L.Ed. 873 (1954).

12 On the concept of “legal culture” see for example Nelken, D. ed., “Legal Culture, Diversity and Globalisation” (1995) 4 Social and Legal Studies, at 435–453Google Scholar; Nelken, D. ed., Comparing Legal Cultures (Aldershot, 1997)Google Scholar; Nelken, D., ed., Contrasts in Criminal Justice (Aldershot, 2000)Google Scholar; and Nelken, D. and Feest, J., eds., Adapting Legal Cultures (Oxford, 2001)Google Scholar. Anglo-American legal culture, too easily taken as self evident, is becoming increasingly influential largely as a result of the globalization of markets.

13 The law and literature movement goes further than standard legal theory by claiming not only that law must use language to fulfill its tasks but that in addition law must be treated as a language which constructs its own world of meaning.

14 See Nelken, D., “Law as Communication: Constituting the Field” in Nelken, D., ed., Law as Communication (Aldershot, 1996)Google Scholar.

15 James Boyd White expresses considerable impatience with the social sciences approach to law, which is seen as expressive of a bureaucratic mentality which prevents us from appreciating “law as a system of discourse that the lawyer and judge must learn and use.” Similarly, Richard Weisberg, the other acknowledged pioneer of the “law and literature” movement, claims that the subject he calls “poethics” is intended to occupy the void left by the failures of the economic approach to law and postmodern skepticism.

16 See the well-known article, Tribe, L., “Trial by Mathematics: Precision and Ritual in the Legal Process” (1971) 84 Harvard Law Review 1329CrossRefGoogle Scholar, and the less celebrated but equally interesting article by Winn, P., “Legal Ritual” (1991) 2 Law and Critique 207CrossRefGoogle Scholar.

17 Nelken, D. “Can There be a Sociology of Legal Meaning?” in Nelken, D., ed., Law as Communication (Aldershot, 1996) 107–129Google Scholar.

18 See Minow, M., Ryan, M., and Sarat, A., eds., Narrative, Violence and the Law: Essays of Robert Cover (Ann Arbor, 1995)Google Scholar.

19 Goldberg, S., Culture Clash: Law and Science in America (New York, 1994)Google Scholar.

20 de Sousa Santos, B., Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (London, 1995)Google Scholar.

21 See Hayman, R.L. Jr. and Levit, N., Jurisprudence: Contemporary Readings, Problems and Narratives (St. Paul, Minnesota, 1994)Google Scholar.

22 For example, Ackerman, B. in “Law, Economics and the Problem of Legal Culture” (1986) 35 Duke L.J. 929, at 931Google Scholar, asks whether the new system of concepts adopted by lawyer-economists will “undermine the American lawyer's capacity to express the American people's traditional principles of truth and justice. Or does it instead, enable lawyers better to express their fellow citizens' evolving understanding of the principles.”

23 Huber, R., Gallileo's Revenge: Junk Science in the Courtroom (New York, 1991)Google Scholar.

24 Dershowitz, A.M., The Abuse Excuse (Boston, 1994)Google Scholar; Fletcher, G. R., With Justice for Some (Reading, Massachusetts, 1995)Google Scholar; Downs, D. A., More than Victims: Battered Women, the Syndrome Society and the Law (Chicago, 1996)Google Scholar.

25 Supra n. 23, at 225.

26 Daubert v. Merrell Dow 113 S. Ct 2786 (1993).

27 Frye v. US 293 F 1013 D.C CIR (1923).

28 Downs, supra n. 24.

29 Ibid.

30 Note, , “Feasibility and Admissibility of Mob Mentality Defenses” (1993) 108 Harvard Law Review 1111Google Scholar.

31 An earlier version of these approaches is set out in Nelken, D., “A Just Measure of Science“ in Freeman, M. and Reece, H., eds., Science in Court (Aldershot, 1998) at 11–36Google Scholar.

32 Faigman, D., “To Have and Have Not: Assessing the Value of Social Science to Law as Science and Policy” (1989) 38 Emory Law Journal 1005Google Scholar.

33 For example, Ward, T., “Law, Common Sense and the Authority of Science: Expert Witnesses and Criminal Insanity in England, ca. 1840-1940” (1997) 6 Social and Legal Studies 343CrossRefGoogle Scholar, suggests that the “last issue” rule of evidence law could be seen as law's last ditch effort to contain the inroads of triumphalist 19th century science.

34 Shapin, S., “Here and Everywhere: The Sociology of Scientific Knowledge” (1995) Annual Review of Sociology 289Google Scholar.

35 See e.g., Jasanoff, S., Science at the Bar: Law, Science and Technology in America (Cambridge, Massachusetts, 1995)Google Scholar.

36 See e.g., Wagner, W.E., “The Science Charade in Toxic Risk Regulation” (1995) 95 Columbia Law Review 1613CrossRefGoogle Scholar.

37 See e.g., Donzelot, J., The Policing of Families (London, 1979)Google Scholar; Smith, R., Trial by Medicine (Edinburgh, 1981)Google Scholar; Ward, supra n. 33.

38 Smith, R. and Wynne, B., Expert Evidence: Interpreting Science in the Law (London, 1989)Google Scholar; Fuchs, S. and Ward, S., “What is Deconstruction and Where and When Does It Take Place? Making Facts in Science, Building Cases in Law” (1994) 59 American Sociological Review 481–500CrossRefGoogle Scholar.

39 See, for example, N. Luhmann, “The Unity of the Legal System” in G. Teubner, ed., Autopoietic Law: A New Approach to Law and Society (Berlin, 1988) at 12-36 and ibid. “Closure and Openness: On Reality in the World of Law”, at 335-348. See, for example, Teubner, G., “How the Law Thinks: Toward a Constructivist Epistemology of Law” (1989) 23 Law and Society Review 727–757CrossRefGoogle Scholar; Teubner, G., Law as an Autopoietic System (Oxford, 1993)Google Scholar; and Teubner, G. “Altera Pars Audiatur: Law in the Collision of Discourses” in Rawlings, R., ed., Law, Society and Economy (Oxford, 1997)Google Scholar.

40 Teubner, supra n. 39.

41 Teubner, supra n. 39, at 742-746.

42 Ibid., at 747; this process starts with the very notions of science or expertise used by law.

43 Ibid., at 745.

44 S. Jasanoff, supra n. 35, at xiv.

45 D. Nelken, “Changing Paradigms in the Sociology of Law” in G. Teubner, ed., supra n. 39, at 191-217.

46 Luhmann, supra n. 39; Teubner, supra n. 39, at 749, citing Nelken, D. “Beyond the Study of Law and Society” (1986) American Bar Foundation Journal 323Google Scholar.

47 But see Sunstein, C., “Incommensurability and Valuation in Law” (1994) 92 Michigan Law Review 779CrossRefGoogle Scholar.

48 Teubner, supra n. 39.

49 Lyotard, J.F., The Differend: Phrases in Dispute (Manchester, 1988)Google Scholar.

50 Teubner, supra n. 39, at 737.

51 Teubner, supra n. 39.

52 See Rubin, E., “Law and the Methodology of Law” (1997) Wisconsin Law Review 19Google Scholar.

53 D. Nelken, supra n. 5.

54 Waldron, J., “Transcendental Nonsense and System in the Law” (Jan., 2000) I Columbia L.R. 16–55CrossRefGoogle Scholar.

55 Compare Teubner's provocative claims in his 1989 paper “How the Law Thinks” in which he writes “there is no way to challenge cognitive constructions of law neither by social realities themselves nor by common sense nor by socially controllable observation.”