LEE LOEVINGER
Both shape our modern society, but in very different ways.
It is a commonplace today to say that we are living in a scientific age. It is a cliché accepted even in the conservative field of law. The American Bar Association Journal has stated “Science and technology dominate society—and will become even more pervasive in the 21st century....” And, as stated by the president of Sigma Xi, the honorary Scientific Research Society, “Basic scientific understanding may be required for simple good citizenship in a technological world.... [L]iving in this technological age requires at least an elementary understanding of science.”
However, as the latter statement makes plain, that which is important for public understanding is a basic concept of the nature and scope of science, rather than technical details of any specific field. Since law is the most common instrument of social action, it is important also to appreciate the role of law and its relation to science.
The basic distinction between these disciplines is that the subject matter of science is knowledge, while the subject matter of law is conduct. In other words, science is descriptive while law is prescriptive. The function of science is to enlarge our knowledge and understanding of both the natural and cultural environments in which we live. Science as a discipline has only one moral or ethical imperative— which is best expressed in the oath courts administer to witnesses: Tell the truth, the whole truth, and nothing but the truth. Thus the role of science is to learn, to report, and to teach—but only facts.
Law, in contrast, is quite different, serving a multitude of moral and ethical values and goals. The primary role of law is to establish and maintain a peaceable and stable social order. One of its principal activities is operation of a system of courts for litigation and determination of controversies, thus providing a peaceful means of resolving the innumerable and inevitable conflicts arising in any populous group.
Although professional practitioners in each field do not always observe ideal role models, scientists are conceptually investigators and lawyers are typically advocates. However, our vocabulary tends to confuse the distinctions in this area. The term “law” itself is used with two basically contrary meanings. In the field of government, “law” means a prescriptive rule of conduct, violation of which may result in imposition of a penalty by legal process. In science, the term “law” is used to signify a principle or statement descriptive of some natural, observable phenomenon. Thus, violation of a political law validates it, in the sense that it demonstrates the need for and utility of the law. In contrast, in the field of science a statement asserted to be a law, or universal truth, is invalidated if observations clearly show a violation.
Likewise, the term “research” has quite different meanings in science and law. In science, research commonly means work in a laboratory or an observatory producing measurable data that mathematically describes some natural phenomenon. To a lawyer, research means searching books in a library to find some precedent relating to the legality of conduct in circumstances similar to those with which the lawyer is then concerned.
Curiously, the two disciplines have a different term for the one thing with which they are both concerned— the facts involved in a particular inquiry. Scientists call facts that they seek “data” and lawyers call facts involved in their cases “evidence.” The two terms really mean the same thing with respect to the situations in which they are employed. The difference is merely an occupational habit.
DIFFERENT ROADS TO THE TRUTH
The two disciplines of science and law have always had an uneasy relation to one another. Historically, both grew out of early forms of religion and, according to historian Sir Henry Maine, the first lawyers were early priests. The earliest forms of trials were based on primitive religion, and were basically appeals to a Divine Power to intervene and ensure that the wager of battle or the ordeal resulted in a manner that was in accordance with principles of eternal justice. Similarly, for many centuries science was constrained in both its investigations and conclusions to areas that the ecclesiastical authorities regarded as consistent with religion, as illustrated by the well-known case of Galileo. In primitive societies the mode of proof was the same for science and law.
It was not until the 19th century that science and law were both recognized as independent disciplines. The term “lawyer” was used as early as the 14th century, according to the Oxford English Dictionary, but the earliest lawyers were priests or princes, and the profession as it is known today did not develop until the 19th century. The term “scientist” was coined at a meeting of the British Association for the Advancement of Science in 1833. Those we now regard as early pioneers of science, from Thales of Miletus in the fifth century, B.C., to Isaac Newton in the 18th century, were known in their own age as “natural philosophers.”
In the 20th century, science and law have become quite different systems for ascertaining facts. In science, the acceptability of data depends upon the procedure by which it was produced or obtained. There are no general rules of exclusion for scientific data, but the procedure for securing it must be rigidly controlled to avoid favoring a particular result. A common procedure for scientific investigation is formulation of a null hypothesis that is contrary to the proposition to be established and designing experiments to falsify the negative hypothesis. If experiments do falsify the negative hypothesis, this is regarded as corroboration of the principal hypothesis, although not “proof” in a legal sense.
There are other procedures for establishing the reliability and validity of scientific hypotheses. These include use of “double blind” experiments, randomization of experimental subjects, and use of control subjects or population groups for hypotheses relating to people. A common characteristic of scientific proof is the use of statistical summaries of observations. A result in which observations are divided equally (50/50) between those supporting a proposition and those contradicting or inconsistent with it, is not acceptable as proof in science. In general, scientists require proof to a 95% confidence level— which means that if the experiment or procedure involved is repeated 100 times, then substantially the same result will be obtained in at least 95 of the cases.
Another criterion of scientific acceptability is publication of the description and results of an experiment or observation in a peer-reviewed journal. This not only gives the imprimatur of peer review to the report, but also encourages the possibility and provides the means of an independent replication to discredit or corroborate the report.
Furthermore, an important aspect of all scientific conclusions is that they are never final. Scientific propositions are always tentative in the sense that they are merely probable, and are always subject to further testing and modification or refutation.
Indeed, replication of experiments and observations is fundamental to science. An example is the scientific formulation for the phenomenon of gravity. While everyone is conscious of gravitation, it was first reduced to a mathematical calculation by Sir Isaac Newton in 1666, who stated that gravity is proportional to the product of two masses times a constant and divided by the square of the distance between the two bodies. This is still the basic formula used for most calculations. However, in 1915 Einstein’s general theory of relativity modified the Newtonian formula for calculating gravitational attraction for astronomical or cosmological distances. Recent cosmological observations may require further modifications of Einstein’s theory. In science, there is no such thing as certainty or finality.
LAW AND ITS RULES
Standards of procedure and proof are quite different in law. To begin with, the law has an elaborate set of rules of acceptable evidence, which are largely exclusionary with respect to various types of evidence. A number of rules are based on privileges that embody assumed social values. Examples are the constitutional rule against requiring anyone to give self-incriminating testimony. Another privilege rule is that husbands and wives are not required to testify against their spouses.
An interesting aspect of the Federal Rules of Evidence is that they distinguish between “adjudicative facts” that arise from evidence in litigation, and “legislative facts” that are the conclusions, or assumptions, of legislators. The Federal Rules of Evidence, with criteria for acceptability, apply only to the former and not to the latter kinds of evidence. There are no legal rules applicable to legislative data, but, as the Congressional Record amply establishes, neither are there any scientific standards or criteria applicable to the formulation of legislation.
Thus, law has two differing methods for establishing facts or conclusions. One is by litigation, or trial by verbal battle of adversaries before a judge or jury. The alternative method is legislation, which is the promulgation of rules, or, occasionally, simply conclusions, by a body of elected or appointed individuals who are collectively authorized to promulgate rules or statements.
The actions of legislatures (including Congress and regulatory agencies of both the federal and state governments) differ from scientific conclusions not only in the method by which they are arrived at and the evidence, or data, on which they are based, but also in their nature. Almost invariably laws, regulations, and other governmental pronouncements of this type are final and definitive. They can, of course, always be superseded by later legislative or judicial action. But there is nothing tentative or probable about laws and regulations. Once issued from the Olympian heights of government, they often remain in effect regardless of any evidence that they were based upon erroneous evidence, or no evidence at all, unless and until the legislative body repeals or amends them, or a court declares them to be unconstitutional.
SCIENCE IN THE LEGAL PROCESS
Although legal processes have not yet adopted scientific standards or procedures, the law, at least in the process of litigation, does accept evidence from science. The Federal Rules of Evidence (Rules 702 and 703) provide that experts in science (and other fields) may testify to their opinions based upon facts or data of a type reasonably relied upon by other experts in the same field. In 1993, for the first time in the 20th century, the US Supreme Court considered the matter of the admissibility of scientific evidence in litigation. The Court said that this issue, like all other evidentiary issues, is governed by the Federal Rules of Evidence, which require that scientific evidence be both reliable and valid. The specific factors to be considered in determining admissibility include its falsifiability, publication and peer review of the evidentiary basis, the known or potential rate of error (usually expressed as the statistical confidence level), and general acceptance of this type of evidence in the relevant field of science. Other factors may be relevant and be considered.
The acceptance of scientific evidence by courts in litigation does not, however, change the nature of the legal process and its judgments, nor does it change the nature of science and its conclusions. Although there are those who lament that courts may, and sometimes do, reach conclusions and issue judgments that are scientifically unsupportable, this has no substantial effect upon the corpus of science. Scientists still look only to their traditional scientific sources and criteria for their data and conclusions. And these remain probable and tentative until revised by new scientific data or hypotheses.
In contrast, law continues to favor finality. A final judgment in a lawsuit may, within a very limited period after its entry, be reconsidered on the grounds of new, later discovered, and inconsistent evidence. At best, courts are extremely reluctant to entertain such motions (except for extraordinary cases in which a decree is expressly made subject to later reconsideration). In any event, after the very limited time established for making an attack upon a legal judgment, it becomes final and invulnerable to attack. This is a major difference between the fact-finding process in law and in science.
Despite the differences between science and law as separate disciplines, the increasing complexity of contemporary technological society is inevitably increasing the interdependence and reciprocal influences between these two fields. Government executives, legislatures, and lawyers all use and, indeed, depend upon computers and related technologies of communication, research, and data storage. At the same time, the growth, utilization, and further innovation of these technologies are under continuous scrutiny by all the institutions of law and government. The future development and nature of both science and law will surely be the result of continuing interdependence and the resulting reciprocal relationship.
Recommended
Readings:
Lea, Henry C. Superstition and Force (1878).
Maine, Sir Henry. Early Law and Custom (1883).
Seagle, William. The Quest for Law (1941).
Loevinger, Lee. “Law and Science as Rival Systems.” University of Florida
Law Review 19 (1966-67), 530.
Loevinger, Lee. “Science as Legal Evidence.” Interdisciplinary Science Reviews
20 (1995), 335.
Loevinger, Lee. “The Invention and Future of the Computer.” Interdisciplinary
Science Reviews 21 (1996), 221.
Lee Loevinger (CC ‘84) is of counsel in the law firm of Hogan & Hartson, and was President of the Cosmos Club in 1990.
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