Listening to Tribal Legends: An Essay on Law and the Scientific Method

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Much of jurisprudence is storytelling, recounting tales of what has gone before; improvising and crafting new stories of legal theory from old ones. Useful kernels are passed from one generation of legal thinkers to the next. Like tribal legends, the messages in many stories of jurisprudence can be understood only by a select audience. Legends often come with morals; theories of jurisprudence often impart prescription for living within the law. Jurisprudence, like legends, concerns fundamental issues, confronts cosmic questions and weaves in magic. Sometimes both possess humor as well.

Unfortunately, some modern versions of jurisprudential theories have become anecdotal. The legal storytellers engage in revisionist tales of history and the listeners selectively perceive. In many ways, we are not listening to our tribal legends. One of the stories of jurisprudence is of law and science. It is the tale of two tribes, each with its own legends, prescriptions and imagery. Different schools of jurisprudence have treated science in legal theory in varied ways. There have been scattered attempts to apply scientific frameworks to law to explain or predict outcomes, analyze data or support propositions relating to substantive issues. Some discuss ways in which the scientific model can operate on the decisional level. There has been no systematic attempt, however, to define the modern scientific method in the context of law or to analyze its application to jurisprudence. Recent jurisprudential theories contrast science with practical reason. Consequently, there is significant controversy over the use of the scientific method in jurisprudence.

This Article observes that the use of science in law has been limited by the assumption that principles of scientific inquiry must be abandoned when law faces value choices. It posits that the scientific method's criteria of validation can apply to decision about values as well as facts. It makes the claim that the principles of scientific inquiry are essentially criteria of rationality. To the extent that the goal of law is rationality, legal theory should follow the criteria contained in and adopt the values implied by the scientific method. This Article does not attempt to articulate a comprehensive theory of science, law or the intersection of the two; nor does it offer a positive program of scientific adjudications for decisionmakers. Its goal is to entice both jurists and theorists to think more systematically and self-analytically about their theories, reasoning, conclusions and areas of ignorance. This Article suggests that attention to the principles of scientific inquiry is one method of improving the rationality of legal decisions and theories.

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Fordham Law Review