Said Judge Richard Posner, answering the question "In what ways, if any, does it make sense to speak of the study of law as the study of legal science?"
Also:
Question: Do you think constitutional law should be taught in the first year? If so, why? If not, why not?Later: "Most published legal scholarship is ephemeral, especially in constitutional law, an analytically weak and excessively politicized field." And: "Law is an interesting and important field, but it is also a weak field, and this limits the potential of academic law." And:
Posner: Absolutely not. It’s a terrible field, dreadfully politicized.
Question: There seems to be no end to scholarship on originalism, be it of the liberal or conservative variety. Why do you suppose that is and what is your opinion on the matter?And Posner expresses regret that his own scholarship has been "[e]xcessively conservative, and insufficiently attentive to psychology and to the politicization of much of law."
Posner: It’s an aspect of the preoccupation of the legal academic community with the Supreme Court, for it is mainly in relation to constitutional provisions that the debate over originalism rages. The preoccupation has very little value, and originalism is largely a fake, concealing the political preferences that drive most constitutional adjudication, owing to the political stakes and the extreme vagueness of key constitutional provisions.
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८५ टिप्पण्या:
I'm not a lawyer, no legal background. I took a quick look at Wiki to try to figure out where this guy is coming from, and I am of the opinion that he would make a great criminal defense attorney but I hate to see this philosophy as a judge. "originalism is largely a fake, concealing the political preferences that drive most constitutional adjudication, owing to the political stakes and the extreme vagueness of key constitutional provisions" is an extreme political statement cloaked in a black robe.
Someone said to Catherine the Great that it must be wonderful to be Empress of all the Russias; just send off an order, no matter what, even to the farthest reaches of Siberia, and it would be executed.
But Catherine said, no, it wasn't that easy; it had to be something they could do when the order reached them, and it had to be something they would do. Hers actually was a very difficult job that required very careful thought.
Judge Posner's answer might have been different had he been asked about the study of law as the study of the dismal science.
"Said Judge Richard Posner, answering the question "In what ways, if any, does it make sense to speak of the study of law as the study of legal science?""
I don't think the phrase "legal science" describes reality. Science is the study of immutable nature. The law is a construct of human beings. They are nothing alike.
Of course it should be acknowledged that some of what is passed off as originalism is simply the judge's own preferences covered in a thin veneer of legal rationalization.
It should also be acknowledged that 100 percent of what is passed off as something other than originalism is simply the judge's own preferences covered in a thin veneer of legal rationalization.
Did he just complain that he wasn't audacious enough in his judicial rulings?
Re originalism mainly focusing on constitutional law.
True enough, but with a few exceptions, no one questions interpreting statutes according to the intent of the legislature or contracts according to the intent of the parties. The recent brouhaha over the Obamacare tax credit is a notable exception.
To sum up what he says, "No men deal only in truth. To do so is a style used to impress folks. But leadership keeps all options open for as long as needed."
The only science that should be involved in law is logic. Unfortunately, logic gets overwhelmed by emotion.
With a thought process like that, why bother with a Constitution or any written laws at all? If constitutional law is so "politicized" that it renders all law relative, then all law is just judges whims I guess. 4329
Clifford Geertz has a marvelous essay on common sense in his collection Local Knowledge: Further Essays In Interpretive Anthropology (which also features a lengthy essay on the law). Posner mentions common sense, which gives me a chance to reference some of Geertz more quotable observations. "Men plug the dikes of their most needed beliefs with whatever mud they can find," he observes as a conclusions to his assertion, as an anthropologist, that belief in witchcraft represents common sense for those that believe in it:
It is when ordinary expectations fail to hold, when the Zande man-in-the-field is confronted with anomalies or contradictions, that the cry of witchcraft goes up. It is, in this respect at least, a kind of dummy variable in the system of common-sense thought. Rather than transcending that thought, it reinforces it by adding to it an all-purpose idea which acts to reassure the Zande that their fund of commonplaces is, momentary appearances to the contrary notwithstanding, dependable and adequate.
To extract the point from the case: common sense is "an all-purpose idea" that absorbs "anomolies and contradictions".
* * *
In his essay on law, Geertz repeatedly stresses the distinction between cases and jurisprudence and the fact that the two are continually at odds; they represent the "never-the-twain confrontment of pictures of 'what is right' and stories of 'what is so'".
Do what's been shown to work.
A lot of that is respecting what's been shown to work, and that's how originalism matters.
The originalists were taking what worked over 2000 years.
"Law has nothing to do with science."
"It involves making and applying rules of conduct; the rules are based on legislative and other political decisions, common sense, societal values, judges’ personal preferences, intuition, rhetoric—not logical or scientific rigor."
In short, this indicates that the law is merely the whims of the law makers. Nothing reasoned or rational. This is entirely consistent with the way the law appears and the way it is applied.
Law is what you can get away with.
Posner is a gadfly. He has no humility.
Science means "knowing." Blind faith in science is a faith that says men will know new things. Sometimes men do know new things; such as, Antibiotics, Nuclear power, DNA modification, Rockets etc..
But sometimes men fake an entire new science...faked data...faked authority...faked honors...faked peer reviews.
Law is a governance tool.
"Law is what you can get away with."
So is "global warming science". The answer fits there, too.
"It involves making and applying rules of conduct; the rules are based on legislative and other political decisions, common sense, societal values, judges’ personal preferences, intuition, rhetoric—not logical or scientific rigor."
"Science is the study of immutable nature. The law is a construct of human beings. They are nothing alike."
Human beings exist within nature.
Posner keeps saying he cares about psychology and law, but psychology is a science. It might not be done terribly well, but it is science.
Original Mike, science is "the intellectual and practical activity encompassing the systematic study of the structure and behavior of the physical and natural world through observation and experiment." Some of the natural world actually DOES change, "nature" is not immutable (at least, not all of it). One thing that hasn't changed (overall or in aggregate) is human nature. The U.S. Constitution fundamentally addressed human nature vis a vis rights and freedom, and in that respect ought to be a yard stick for originalism.
The naïve perspective that people are fundamentally good and hampered from expressing their goodness by circumstances that the government needs to remove is crippling. That's an externally imposed view of rights and freedom, and it doesn't work well.
There are many definitions of the word science, such as (OED): "A discipline, field of study, or activity concerned with theory rather than method, or requiring the knowledge and systematic application of principles, rather than relying on traditional rules, acquired skill, or intuition."
That's distinguishing science from art.
Psychology is a science in what sense? Is it predictive?
There are many useless definitions of science.
" Some of the natural world actually DOES change, "nature" is not immutable"
Non-trivial example(s) please.
"The only science that should be involved in law is logic. Unfortunately, logic gets overwhelmed by emotion."
Emotion is something that exists within the human nervous system of which the brain is a part. To say law is logic mixed with emotion is not to say that it is not subject to scientific inquiry.
I guess you could say that no one can figure out how to do it well enough to be a worthy area of scientific study or that the need for law motivates us to leave this matter unexamined, the way we treat religion and other matters of faith.
This reminds me of my favorite judicial joke: "Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges."
"Human beings exist within nature."
Is this a throw away comment, or do you think this somehow ties science and the law together?
"Human beings exist within nature."
Is this a throw away comment, or do you think this somehow ties science and the law together?
And Posner expresses regret that his own scholarship has been "[e]xcessively conservative, and insufficiently attentive to psychology and to the politicization of much of law."
A wise Latina has no such concerns.
So Posner agrees with us cynics. Law in the US, at least as it applies to public policy, but often elsewhere too, is just an expression of political struggle in a mainly ritualistic venue. Nothing is really decided by courts, it is all done in the background. The results are merely expressed as decisions with the proper mumbo jumbo, incense, sacrificed chickens, and shaking of rattles. This all is merely meant to deceive the public.
He seems to ramble.
@Birkel You're trying to say that you prefer good science and you have some standards. But to apply scientific inquiry to a subject that's hard to study — human behavior and the human mind — doesn't make it not science. Science can be pursued, including the scientific criticism of what other scientists are doing.
Posner is saying: Don't even imagine that a scientific approach can be taken to this product of human activity. He's interested in psychology, and so am I. What is the psychology of his warding us away from the systematic acquisition of knowledge about the secretive doings of judges. He's a judge!
Posner is a fool playing the short game.
Once we have destroyed the idea we call, "The rule of law" and replace that with a new idea, "The whim of judges" Posner and those like him will find themselves in a very bad place.
Without object truth, the rule of law, and faith in the system, people stop believing as you do.
For now, we have enough generations raised properly. But these new generations? They won't see the point.
That's not a good thing.
"Is this a throw away comment, or do you think this somehow ties science and the law together?"
Could you throw away one of your duplicate comments? :)
Ironically — asked "What, if any, lasting impact do you the Critical Legal Studies movement has had on law and on the legal academy?" — Posner answers "Zero."
Zero! You seem to be completely soaking in it. Judge Fish notices not the water.
"What is the psychology of his warding us away from the systematic acquisition of knowledge about the secretive doings of judges. He's a judge!"
All academic studies aren't science. A study of something can be a legitimate and useful endeavor without it being capital "S" Science.
Psychology (a science) might be used to understand why and how humans create and use law, but that does not make the law itself a science.
Is the study of Emily Dickinson "literary science"?
Anything with science in its name, isn't.
Political science
Social science
Climate science
Cognitive science
In my opinion, psychology is not a science the way physics is a science. It's like the Pluto thing. Pluto is (apparently) not a planet, it's a dwarf planet. In the same way, psychology is a dwarf science. It's interesting, and perhaps even fascinating, but it's not a full-fledged science. Its orbit is too eccentric.
The next step from Age of Reason's faith in men as scientists is a turn back to a great men theory of history. Will to power studied as a science.
Leadership psychology is improving faster. And the greatest thinkers there are the Russians who must govern vast lands with many ethnic groups. Vaster and vaster lands.
Pluto is a suspect planet. It may be a small interstellar body that somehow blundered into our solar system.
I'm a Scientist by trade. Science (when it's well done) steadily tests and improves it's understanding of a subject and gives rise to practical solutions ie technology. Law could be a technology if it applied the lessons of human nature (psychology & behavior) by diagnosing the causes of past legal failures to steadily improve law (given agreed upon goals). Our Constitution is an example of improved legal stricture. The problem is that human nature includes a drive to power and control others rather than improve of the society as a whole. That selfish impulse to power overwhelms the desire to improve things. So the subject matter itself (human nature) prevents the application of Science to the law. We are not well reasoned and disciplined enough to apply our understanding of human nature to the law: the desire for power wins out. We know better but fail because of what want.
"Is the study of Emily Dickinson "literary science"?"
UW's chancellor think so.
I forget what the occasion was, but once when I was talking about Norway with a friend, he quite sharply asked who wrote our laws for us, and I was momentarily stunned and deeply shocked.
I had not thought about it before, but it is deep in me that while Stortinget (Parliament) passes a lot of statutes, those are just to fill in minor details and expound the Law; the Law just is as it has been since the time of Arild, and nobody "writes" it.
"Pluto is a suspect planet. It may be a small interstellar body that somehow blundered into our solar system."
Unlikely. I know of no reason not to consider it a Kuiper Belt object.
"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to to the probable one in which it was passed." [Please specially note that the term "trying" was used as in "boiling down" something (eg Whale blubber or the Constitution) to obtain what the actors wish (eg Whale oil or perverse decisions by judges "making law from the bench")BY Thomas Jefferson.
Variations from that position are such theology as "How many lawyers can dance on the head of a pin AND make money doing so?".
@Althouse:
I asked two questions. I made one observation. If you wish to interpret my questions as statements, claim ownership of your assertions.
Science must be testable. Science must be predictive.
Now I have made two statements with which you are free to disagree. Do you?
Geometry as organised by Euclid is my idea of science. Axioms and definitions are stated, then principles and theorems drawn from them in a rational sequence. It's the Western dream that all human knowledge can eventually be organized that way. And that we will even reach the point where the theorems of physics explain the facts of chemistry and become theorems or laws of chemistry and then those chemical principles explain the facts of biology and become biological theorems and then biological theorems or laws explain the facts of human behavior and then they become laws.
But however we haven't really managed to apply chemical laws to most of the facts of biology so there is no basis for a science of human behavior and no scientific basis for laws.
In America at its founding the assumption was made that we did know that all men are equal even if we didn't have a science of that. After all before Euclid organized geometry there were a lot of true geometric facts such as the Pythagorean theorem knocking around. So why not found America on a good piece of knowledge like human equality? Yeah, why not.
And how does that theorem apply in reality, as embodied (or not) in other laws? Well this is why we have Constitutional lawyers.
Professor, to call psychology a science is to insult science. And that he fails to notice the politicization of psychology is noted.
About Pluto, what I read is a lot of "it is believed ...."
So the problem with legal scholarship is that it's "excessively conservative"?
Entry number 10,016 in the "Posner Has Lost It" file.
So, is the study of Law one of the Sciences? Is it done in a scientific manner?
If it is not a Science, is it one of the Arts?
I thought, for a moment, that "Law" somehow sat alongside Philosophy and Theology as Sciences in the Medieval Universities.
A short search disabused me of that notion.
However, I did discover a reference to an attempt to change the study of Law in American Colleges in the 1820s. That was when the discussion of Law as a Science entered intellectual discourse here in the United States.
However, Wiki also claims that for most of the next century, a majority of practicing lawyers had no law degree. Instead, most of those lawyers had apprenticed themselves in the practice of law.
I wonder if Posner is thinking about this history when he thinks of Law not being a Science.
However, I also wonder whether he also means that Law School should not be necessary part of legal training...
Hagar - You might be interested in this article.
Also, this is another chance to express excitement at the upcoming Pluto flyby.
Posner seems to be saying that the law (rules of conduct) cannot be applied with logical rigor. That sounds like a strange thing for a judge to say.
wildswan,
You are conflating the Declaration of Independence and the Constitution as so many Americans do.
Thomas Jefferson wrote the Declaration, and Jefferson later became the leader of the opposition to adopting the Constitution.
Original Mike, I'm not sure what is trivial but ...there are no more dinosaurs, 600 million years ago almost the entire earth was frozen, 200 million years ago there were no oaks or maples or grasses.
Physics doesn't change but biology and geology do.
Remember: Judge Posner did not limit himself to saying The practice of law is not science or Judges do not decide cases through the scientific method or Law professors are not scientists. He said: "Law has nothing to do with science."
That takes such a strong position that it can be refuted by showing that law has something to do with science.
He's actively warding off science. There's NO logic, NO rigor. It's all preference and intuition. There don't even seem to be any principles to be extracted and refined. It's just people making rules and applying them.
"Now I have made two statements with which you are free to disagree. Do you?"
Yes. You have chosen a restrictive definition of science. I'm not attempting to shoehorn something about law into your definition, but I believe it could be done. I'm just not accepting your restrictive definition.
I copied one definition earlier in this post (the one that distinguishes science from art). Here's another -- again from the OED -- that might be useful:
"A branch of study that deals with a connected body of demonstrated truths or with observed facts systematically classified and more or less comprehended by general laws, and incorporating trustworthy methods (now esp. those involving the scientific method and which incorporate falsifiable hypotheses) for the discovery of new truth in its own domain."
Note the "esp."
Damn Professor. Do you mean we have to learn Statistics to play?
Law can be based on reality and that sense is scientific. Law is based on morality and that can be based on reality too. Ayn Rand developed an Objective but non-religious morality. It is based on reason and man's nature. I wish more people would study it and take it seriously. Her works are widely available.
"Pluto is a suspect planet. It may be a small interstellar body that somehow blundered into our solar system."
You mean just as psychology has blundered into the scientific solar system?
"Original Mike, I'm not sure what is trivial but ...there are no more dinosaurs, 600 million years ago almost the entire earth was frozen, 200 million years ago there were no oaks or maples or grasses.
Physics doesn't change but biology and geology do."
Yes and no. 5 billion years ago our solar system didn't exist. At whatever fraction after the Big Bang no stars existed (hence no stellar fusion). At whatever smaller fraction after the Big Bang no solid matter existed. Etc. Etc. So did physics change or did the manifestations change based on conditions? Is that really different than geology or biology?
"Physics doesn't change but biology and geology do."
Sure, but nature includes the underlying mechanisms. I'm using "nature" in the sense which includes the entire universe, not in the colloquial sense of the forest and trees and such. It's a common use of the word "nature" by scientists.
In law as it actually is, there are no principles, rules, philosophies, or anything at all. It is all power, masked by ritual and illusion.
"A branch of study that deals with a connected body of demonstrated truths ..."
What does the law have to do with "truths"? I imagine that's what Posner is saying.
"So did physics change or did the manifestations change based on conditions? Is that really different than geology or biology?"
Exactly.
Hagar said...
Pluto is a suspect planet.
I choose to believe Pluto is a planet. I lose nothing by doing so...
"I choose to believe Pluto is a planet. I lose nothing by doing so..."
I was raised with Pluto as a planet. I refuse to demote it.
Pluto is the only planet I haven't observed telescopically. I plan to do it this year. The July 14th flyby date is an obvious choice.
"I choose to believe Pluto is a planet. I lose nothing by doing so..."
Except your self-respect. :)
Or maybe that's just Jessica.
Great! July 14th is new moon! Pluto is magnitude 14 right now. You need the moon down, but the 15" will be able to see it during flyby.
Sounds like a party!!!
Shoot. Closest approach is 6:50 CDT. Can't view it at the moment of closest approach. Oh well, no matter.
Althouse:
Your offered definition excludes social sciences. After all, everybody gets an individual truth in modern social science thinking. There is no objective truth, right?
Words mean exactly what Humpty Dumpty wishes them to mean, after all.
Too bad Pluto will be too dim to be observable in the 5" refractor. It would have been much more of a challenge to star hop to Pluto with a left/right mirrored image.
My irony meter just came off the lower peg slightly with the juxtaposition of "the colloquial sense of the word" and "as commonly used by scientists."
The physicist says everything is physics, the chemist says everything is chemistry, the mathematician says...None of them claim Their "science" addresses the entire universe. In the "common scientific use" of the word "nature," it pretty much means whichever scientific field you are addressing. If biology is science, biology changes. Hence the theory of evolution. If climate science is a science, it changes. Hence the development of the "climate scientist."
Posner says:
"Law has nothing to do with science."
Our hostess seems distressed by this.
I think she would be less troubled if she considered Posner's response in the context of the question he actually was asked in the interview.
As it is, Althouse has Posner responding to a question he never was asked. Rather, she has Posner answering a question of her own invention, achieved by some expeditious, if ham-handed, editing.
One of the problems with a lot that gets passed off as Science is that it is easy to ignore the error bars on the graphs. There is some degree of uncertainty in essentially every empirical observation; the uncertainty can range from infinitesimally small to overwhelmingly large. Some areas of study, like the social sciences, are prone to very large error bars, while others, like solid state physics, tend to have much smaller ones.
Worse, when we attempt to combine or extrapolate from several observations, the errors in our observations sometimes combine multiplicatively, rather than merely additively.
The true labor of a good scientist is not brilliant theorizing or flashing of insight; it's relentlessly coming to grips with uncertainty, understanding the flaws in one's data, and knowing the limits of one's predictive power. It is much more difficult to do that well than most appreciate, including scientists themselves.
Is that truly so different from the work of a judge?
Another way of summarizing my last post: it's not about making conclusions; it's about making conclusions that fit within the limitations and uncertainty of the evidence.
There are many definitions of the word science, such as (OED): "A discipline, field of study, or activity concerned with theory rather than method, or requiring the knowledge and systematic application of principles, rather than relying on traditional rules, acquired skill, or intuition."
That's distinguishing science from art.
Tell that to Paul Hindemith.
The man went back and rewrote some of his compositions after writing that book. And while I would love to have heard it from the man's lips myself, it is said that Maurice Duruflé, as a Professor of Harmony, instructed his students at the Conservatoire de Paris in a very rigorous and "systemic application of principles". Those principles were so tonally complex, that he was compelled to frequently edit and rewrite his own compositions even after their publication. As a result, he left us with only 13 published works, many of which are masterpieces of exceptional beauty and power.
I wouldn't call it science, but there are repeatable underlying principles that are immutable in the works of both men.
As for Posner's comment about the relationship of law to science, my immediate reaction is climate "science". When examined closely, the results of Schmidt, Mann, Briffa, Hansen, Jones, Santer et al are pre-ordained by the bias and politics of the "scientist".
- Krumhorn
Law consists of the art and methods for establishing and maintaining a real, manufactured, or de facto consensus.
Science is a philosophy constrained in time and space. A scientific rule is established through a consensus of evidence is a limited frame of reference, not through a social consensus or dictatorial rule.
Witchcraft only works for those who believe in it who are not witches. Witches know it doesn't work well enough to count on it. They have to cheat.
Back in August Judge Posner appeared on this very blog. I was baffled that anyone would be impressed by a judge anymore than a politician. Vindication is coursing through my veins.
As to the whole science vs. Science vs. SCIENCE debate going on here, I think xkcd explains it as well as anyone. Find your own spot for "law" in the continuum.
http://xkcd.com/435/
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