Law And Social Science Research Paper

1. Two Images Of Law

At its simplest, the idea of ‘law,’ at least in Occidental or even Indo-European culture, conjures up two broad images. One is of legislation or rule making. The other is of adjudication or judgment. Cognate distinctions, for example between law and policy or law and politics, and principled statements of the supposedly modern requirements of a democratic order (for example, the doctrine of the separation of powers), all play with or draw upon this much more deeply rooted distinction, tension, and ambiguity in the idea of law. And even this primordial distinction becomes more complicated with the emergence of a self-thematized modern era, in which the idea of law as rule-making falls apart or splits into two broad patterns. On the one hand, the idea of making highly general, abstract, decontextualized rules which establish the framework to govern the operations of society (the so-called European codes; for this see Caenegem 1987). On the other hand, the idea, which persists in Anglo–American or ‘common law’ jurisdictions, that rule-making is a matter of detailed, specific rule-making targeting specific problems which come to the attention of the legislator, whether, in the traditional model, through deficiencies brought to light in the course of adjudication, or, in the modern model, because of problems demanding policy adjustments which come to light in, for example, governmental bureaucracies through the growth in knowledge of the shapes and characteristics of society and its pathologies. Some have argued that, at least in the common law world, the increasing volume and significance of legislation so overwhelms our idea of law that it comes to be projected back on to the Activity of adjudication, which comes to be understood as a kind of inferior lawmaking, rather than a distinct process with its own specific forms of intelligibility (Simmonds 1984). Since Bentham (and to some degree Montesquieu before him), the idea of a link between a science of legislation and a science of society has seemed obvious. More obscure to social science is the idea of adjudication as such a science. Paradoxically, perhaps, the view has long been generated from within the discipline of law that it is in the domain of adjudication or adjudication-related activities that a knowledge of society is both required and developed, and from this perspective acts of legislation are seen as arbitrary or at least as the product of political will rather than an understanding of society. This kind of lawyer-knows-best attitude carried over, especially in England, into the new encounter between adjudicators and social scientists, especially in the sphere of criminal justice and criminology.

2. Law And Social Science

The reason why it is necessary to highlight these divergent emphases is simple: there persists an enthusiasm in many quarters, and by no means just among lawyers, to the-matize the idea that law is the oldest social science, that law was and/or remains a ‘science of society,’ and, in some versions, that the modern social sciences represent merely a continuation of this science or in some cases a derogation from it, a diminution in what society knows about itself.

The question of the relation between law and social science and the history of this relation is further confused or complicated by many of the uncertainties involved in the specification of what is or is not within the ambit of social science. Confining this enormous issue to a narrow focus for our present purpose, we need to separate three kinds of question. The first is the relation between law and the empirical or positivistic branches of the social sciences. The second is its relation to the interpretive and/or phenomenological branches of the social sciences. The third, which cannot neatly be separated from the second, is the relationship between law—or, to switch gear, legal theory—and social theory, which becomes relevant if we assume that there is some kind of connection or link between the conceptualizations of social theory and the problematizations which emerge in the diverse fields of the empirical social sciences.

It is perhaps unsurprising that the closest affinities and even influences between law and social science seem to emerge in the domain of social theory. It is increasingly acknowledged that the writings of some of the founding fathers of social theory, and, indirectly perhaps, of sociology, had a legal background and that their theoretical constructions and projects bear the imprint of legalistic or law-inspired concerns. If, however, this is true of both Durkheim and particularly of Weber (Turner and Factor 1994), then this observation does suggest that legal influences and origins could lead late-nineteenth-century aspiring social theorists to formulate very different questions and very different theories of society, assuming that the construction of ‘social theory’ was what they sought to achieve. A legal background, in other words, did not seem to lead to any particular kind of theoretical orientation. In something of the same spirit, one of the leading post-war texts in legal theory describes itself as an exercise in ‘descriptive sociology’ (Hart 1961). This focus makes it possible to see strong continuities between law and (the theory underpinning) social science. Some contemporary political philosophers (Rose 1984), lawyer psychoanalysts (Goodrich 1997), and historians of political thought (Kelley 1990) have not hesitated to drive home the point, with the polemical claim that modern social theory masquerades as different or new, whereas the basic framework of Western social thought is already contained in the law and indeed that the tradition of law already contains a more sophisticated understanding of the central issues than much modern social theory.

Alternatively, some influential theorists adopt what is more or less the opposite position (e.g., Foucault 1976, Luhmann 1981). On this view, there is a sharp break between an era of social thought in which law provides the basic conceptual scheme for understanding society, and the modern or late modern era in which this vision of society is undermined or displaced by the growth of positivistic social sciences. Hacking (1990) encapsulates what is perhaps the central dimension which underlies this view of historical change in contrasting the role played by the concept of the ‘normal’ in the projects of Durkheim and Galton respectively. Durkheim’s notion of the normal is still legalistic; in Galton it becomes entirely probabilistic. And in his view it is Galton’s version in the twentieth century which wins—in science, at least.

The second area is the relation between law and the interpretive social sciences. Here the connections are in one sense much clearer and visible, especially if we have the ‘European’ law-as-code model of law in mind. At first sight this seems to be a terrain on which law, history, and interpretive social science meet in the sense that they are engaged in the same kind of endeavor. This is because each is engaged in an exercise of interpretation, and the paradigmatic interpretive situation is the ‘presence’ of a text which is in some sense ‘other’ to the person required to interpret it. In hermeneutical science, for example, the enterprise of interpretation from this starting point is characterized as precisely the bringing together, via the text of author/creator and reader/interpreter and as the quest for a fusion of horizons, a merging of perspectives which endeavors not to transcend temporality (as does analytical philosophy) but to make it work, productively, at both ends of its spectrum. It is apparent, viewed historically, that this style of science (whether it is ‘scientific’ is not a question for this contribution) owes much to law and just as much to theology, and to the study of texts in each discipline in the universities of medieval Europe (Smalley 1983). Already in these disciplines interpretive protocols had been formalized and their shapes were largely carried forward into the emergence of more explicitly philosophical projects by the eighteenth century. Many have traced an unbroken genealogy from that point, in the writings of, for example, Boekh and later Schliermacher through to Gadamer (1965) and contemporary practitioners of this approach to ‘truth’ (Rorty 1979). Much was made of ‘meaning’ in these narratives of the history of a partial discipline-under-construction, and therefore in many versions Weber or Verstehenssociologie were annexed to the narrative as part of the same story. ‘From the actor’s point of view,’ a slogan variously popularised (at least within the academic world) by Malinowski and Geertz (1973, 1988), could lay claim to being the heir to this perspective or ‘methodology’ and claims that this involved a direct succession to the lawyer’s perspective that, for example, ‘actus non sit reus nisi mens sit rea’ (the doctrine of mens rea which seemingly involves investigation of inner mental states and ‘intentionality’ and its degrees) possessed and still possess a certain plausibility.

But it is precisely at this point in the history of law and the social sciences that continuities may need to be balanced by discontinuities. First, the once innovative proposition that social science can proceed on the basis that culture is a text has been much debated and criticized (e.g., Clifford and Marcus 1986). Secondly, political and legal anthropology in particular has raised a number of questions about the tendency in earlier studies to posit a ‘jural perspective’ when investigating acephalous societies, which presented a particular challenge because no visible structures of government or law in the familiar western sense were available for outside observers to observe (which is not to say that they could not find them virtually present) (Comaroff and Roberts 1981). Under the influence in part of some of this work, some historians came to question the top-down model of social integration and/or development which has had a habit of permeating social as well as political history.

The net result of these overlapping concerns has been to move away from or be suspicious of the deployment of a ‘juridical’ model in the interpretive social sciences, and this has served to highlight the difference in the concerns or preoccupations of lawyers and social scientists. For lawyers, the key question is what beliefs, assumptions, values, intentions it is reasonable or rational to impute to actors or legal subjects—therein lies the craft, one might say, of the law, and there is nothing new about this. Social scientists making use of interpretive procedures are increasingly concerned to understand/or uncover the logic of individual and social action, including motivations, aspirations, intentions, and use concepts like culture, horizon, context, situation, to help render these intelligible. These social scientific ambitions are not new, but a combination of background factors (postcolonialism, for example) and increasing sophistication in formulating these components, means that interpretation has lost what innocence it ever possessed, and that the kinds of protocols employed by lawyers whenever they need to concern themselves explicitly with actors rather than texts are increasingly divergent from the highly reflexive methods now required of social scientists. Indeed, legal self-understandings have come to look to these interpretive disciplines for some corrective to what are increasingly perceived to be deficiencies in epistemic capacity and practical deliverability within the legal world itself. The sharpest symptom of this (though appearances can sometimes deceive) is the rapid rise to prominence in policy-making, especially in the Anglo-American common law world, regarding the adjudicative process of Alternative Dispute Resolution (ADR), an approach to conflict resolution which has unambiguous roots in 1950s colonial and post-colonial anthropology. One example can perhaps serve as a sharp reminder of how far apart in some respects the preoccupations of the law and of modern interpretive social sciences have become. For the law, an axiom of prudence and indeed an operational condition of possibility has more or less for ever been the postulate that ‘ignorantia juris haud excusat.’ Contrast this with the role which ‘docta ignorantia’ plays in Bourdieu’s not-quite-Marxist sociology of domination (Bourdieu 1980). Axiomatically the law disregards what people claim they do not know (based on the suspicion that such disclaimers are easy to make and dubious in the first place—a protocol rooted in scepticism, in other words). By contrast, Bourdieu perhaps leads the contemporary field in focusing on a modern version of Marxist false consciousness, detached from economic determinism as such, but emphasising the prisonhouse of cultural schemes which prevent people from knowing what they do. What for the law is something to be ignored is for the social sciences something to be explored. For the law ignorance is sterile; for social sciences it is productive.

3. Law And The Empirical Social Sciences

What is surely unambiguous is the relationship between law and the development of the empirical social sciences, especially to the extent that these sciences are underpinned by the burgeoning of statistical knowledge and growing sophistication in statistics-gathering methods and techniques. Yet this contains within itself new ambiguities. Specifically, at least at the level of images of truth and the supporting rhetoric or legitimation strategies available to science, it is noticeable how a number of writers from the side of science—including natural science—seek to invoke the image of the law court or some of its components—notably the jury—as the central basis for the image of truth or of what it means to claim validity for scientific statements. Trial by your peers has much ideological resonance, especially in North America; but whether it is more than a cultural theme or idiom is a more intricate question which requires explicit if not detailed discussion here.

The metaphor of scientific truth as something resolved in a court of appeal in which the judges or jury decide following adversarial confrontation is a powerful and longstanding one in Western thought, albeit one which is by no means universal (see Lloyd 1996, Needham 1969). While it is not the same idea, it dovetails with the notion of truth as a matter of gentlemen’s agreement (Shapin and Schaffer 1985, Shapin 1994) which in turn rests and relies upon the presence of implicit paradigms which are not themselves usually open to inspection or discussion (Kuhn 1970, Foucault 1966). Yet all of this perhaps amounts to little more than the recognition that truth is contestable and the claim that scientific practice has developed—or has always possessed—procedures for resolving epistemic conflicts which arise in the natural course of scientific discovery and invention.

These metaphors of judgment (whether by judges or juries) draw upon the experience of the world of law but do not in reality replicate it. It is interesting to note that they appeal rather more to the common law adversarial style of legal argumentation in the courtroom than the so-called inquisitorial style of the European codified tradition. But whatever precise analogy is used, it runs the risk of obscuring the important and significant gulf which opens up in the modern world between legal science—or the practice of adjudication—and empirical social science.

The most significant here is revealed in the distinction between the level of the individual (for lawyers, a ‘subject,’ for many social scientists, an ‘actor’) and the aggregate or collective (‘society’). The law has been and remains concerned with disputes between individuals and with the attribution of liability to individuals and with the language of individual responsibility. All of this requires a focus, much of the time, on individual mental states, on postulates about what these can be taken to be or how they can be sensibly understood—or on appeals to ‘ordinary people’ to use their own experience of life to decide what they believe or disbelieve in the claims about such matters made by the parties in court. Judges operate within a similar framework, although they bring to their decision making the added rigmarole of professional training and/or experience of previous kinds of problems or disputes in a forensic setting. In other words, legal schemes combine two types of individualism—the individual as decision maker relying on his or her experience and capacities to draw analogies from this reservoir of experience in order to make decisions, and the individual as the object of decision, as a person who can be assumed to be like or not like the person asked to make a judgment, in matters relating to responsibility for events or actions. The law therefore struggles with supra-individual entities like corporations, states, nations, cultures. Can a corporation be made liable for manslaughter or culpable homicide? This individualism of the law extends beyond persons and into events. A typical legal scenario, for example in the field of tax avoidance, is the problem of deciding whether a chain of events is to be understood as a multiplicity of individual events or as a composite (‘quasi-individual’) event. For lawyers, these are not simple questions.

Empirical social science, by contrast, is preoccupied, at its most subtle, with the often perplexing relationship between ‘micromotives’ and ‘macrobehavior’ (Schelling 1978). Correspondingly, individualization of events is of much less if any interest than patterns, tendencies, logics, trends. Critical to these perspectives are perhaps two modern capacities—measuring and modeling. And underpinning these new epistemic possibilities are modern notions of probability and of statistical thinking which diverge sharply from the traditional idea of probability still largely at work in the ideational schemes of the law (Hacking 1975, Porter 1986, Gigerenzer et al. 1989, Murphy 1997).

These developments challenge legal schemes of reality. They create a reality through practices and procedures which are remote from the mechanisms through which law constructs ‘its’ truth. Surveys, data analysis and number-crunching, the quantification of the qualitative (and the very emergence of an explicit distinction between these two and the consequent problematization of the relationship between them), probabilistic judgment—all these epistemic practices are quite different from the argumentative, judgmental, and commonsensical manner in which law decides what is true. Even before this became obvious, there were pressures upon law to acknowledge what was changing and to incorporate into itself the findings or the protocols of social science (most famously in the so-called ‘Brandeis Brief ’ in the USA, in which statistical information was introduced into court as part of the case). In modern US and UK law for example, a concept of indirect discrimination has been introduced, which makes it unlawful to discriminate not just intentionally but by applying to, for example, job applicants a requirement or condition with which members of the protected group—principally race or sex but these definitions can be expected to expand over time through new legislation—are disproportionately unable or less able to comply. This kind of formulation inevitably invites the introduction of statistical data into the forensic setting. Other outputs of modern social and behavioral sciences increasingly find their way into such settings, notably in the criminal law and family law. Social inquiry reports for offenders before sentencing, or all manner of inputs on child welfare, have come to play a role in the way cases are disposed of in the areas of sentencing and child custody disputes. It is also increasingly the case that the output of the social sciences plays a role in the evaluation of current law, and generates critique, proposals for new legislation, and arguments for changes in the outcomes of judicial decision making.

 These kinds of developments lead some observers and commentators to discern an historical process at work in which the legal sphere steadily succumbs to the influences of the social and behavioral sciences. Foucault’s thesis about normalization and disciplinary power (Foucault 1975), for example, can be read in this way (see also Donzelot 1977). Others stress rather the rise of differentiation. Among many legal theorists if not social theorists, one of the most influential has been the function-systems theory of Niklas Luhmann (1984). At its simplest, what is at issue here is whether the ‘worlds’ of law and of social science are converging or merging or pulling further apart. The answer is probably that both tendencies are simultaneously visible. Convergence of course now means the ‘colonization’ of law by social science, and this is most likely to occur in the area of individual and especially cognitive psychology. In the future, we can anticipate that genetics will play a greater role here. But pulling in the opposite direction are strong tendencies towards the assertion of legal autonomy, in the international as well as national and sub-national spheres. As often in the previous history of law, legal thought often proceeds ahead of successful institutionalization, while without the latter the former remains stuck in the ebb and flow of opinion and fashion. However, to the extent that this tendency towards autonomy is becoming a ‘reality’, it potentially means that the presocial-scientific epistemic schemes of the law will succeed in extending their life and even consolidating their position into the future, disregarding the findings of social science on the grounds of increasingly abstract principle.

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