One pertinent example: most biologists look at the diversity of species and say that evolution by natural selection (with at least a hint of randomness) is the best explanation, whereas believers in Intelligent Design see God’s hand at work. Given a certain view of available evidence, both explanations might be possible (especially if an all-powerful God simply creates everything, including fossils, in situ). So how can we resolve this problem whereby a set of facts can justifiably be argued to support multiple potential theories?

One approach is to limit ourselves to certain kinds of theories as potential explanations: science tends to allow for only theories that are potentially testable, verifiable, falsifiable, etc. Most scientists say, despite arguments to the contrary, that the existence of a divine presence guiding evolution is simply out of bounds for scientific inquiry. It’s a matter for faith, not empirical inquiry; it’s religion, not science.

Of course, as John Hedley Brooke points out, the meaning of the terms “science” and “religion” has changed over time, and “it is more appropriate to speak of ‘sciences’ and ‘religions.’ When we do, any simple dichotomy loses its rigidity” (297). Thus, for example, the term “science” once included any organized body of knowledge (which would have included theology), though now it has a more specific meaning. “Religion,” too, only emerged as a useful term when “comparative approaches were needed for the analysis of different cultures … in the Enlightenment” (297). Still, the distinction is at least analytically useful, and however historically suspect, it is relied upon by most writers today.

Another approach to managing the (potentially illusory) conflict between science and religion is favored by Owen Gingerich, astronomer and author of God’s Universe. He turns to Aristotle to help differentiate two kinds of explanation put forth by science and religion. Put in Aristotelean terms, faith can be seen as a search for “final” causes, while traditional science could be said to stick instead to “efficient” causes. There is thus no conflict between science and religion, and no worries about underdetermination traceable to this conflict, since each explains different things.

Gingerich looks to Blaise Pascal’s notion that “some things only the heart knows” to explain this idea and justify his belief in (small case) “intelligent design.” Since science cannot know or determine certain truths (final causes, in Aristotelian terms), we can freely posit a (distant) intelligent designer without worrying about stepping on scientific concepts of proof. In essence, two truths become simultaneously possible, because they occupy different domains of truth. Intelligent Design (not Creationism, and not the lower-case “intelligent design” of Gingerich), on the other hand, believes that science can be used to access the truth of an intelligent creator, and that this search is scientific.

Creationism, on the other hand, tends to reject science more firmly (but not, interestingly, technology). It inherits from a tradition of the literal exegesis of scripture used, for example, in the 16th century. Of course, today’s Biblical literalism is only related to, but not identical with, 16th-century exegesis. After all, bringing in a passage of scripture today is no longer a means of shutting down debate.

So how did followers of Copernicus in the 16th century deal with the issue of causation, given the power of Biblical exegesis at the time? They did so by arguing that scripture itself underdetermines potential explanations — even if it can shut down blatantly conflicting theories. Relatedly, Johannes Kepler tried an accommodation approach with literalism. He maintained that God, in order to be understood by normal people, caused the Bible to be written in ordinary language. This is why there are no discussions of epicycles in the Bible. The Bible thus accommodates ordinary folk with a different, non-scientific vocabulary that, if read correctly, does not conflict with science.

Of course, many — most? — of today’s scientists simply step outside of the argument, and point to materialist, naturalistic explanations as being all that is necessary for science — certainly they are the only valid scientific theories — even in religion can provide different kinds of explanations (which may or may not be important to the scientists personally). And how do they often justify this? Because these explanations work. Certainly this is the approach taken by most engineers and developers of technology, and perhaps, then, this is why Christian fundamentalists and Muslims have no trouble reconciling their faith with structural engineering or software development. They focus on the science that works in a materialist sense, and not the science that raises uncomfortable questions (evolutionary biology, for instance).

Alternatively, if this approach to dealing with underdetermination is dissatisfying, then there is always the choice to go to absolute knowledge, as David Bloor reminds us: if the Pope says it’s true, then no doubt exists, and we escape the problem of underdetermination and uncertainty. The Catholic Pope is not the only option, of course. Islam, despite its lack of central authorities, also relies on the authority of absolute knowledge — revelation from the Qur’an — to solve the problem of underdetermination. Medieval Islam appears to have successfully negotiated any potential conflict between Qur’anic knowledge and scientific knowledge. Modern Islam, on the other hand, is arguably still searching for the proper balance. Modern evangelical Christianity, too, seeks a new balance between science and faith.

Millenarianism — the belief in the end of this world and the coming of the next — is, in Noble’s view, a key driver of early proto-scientists, at least those in seventeenth-century England. There was, he argues, a sense at the time that the Fall of Adam from Eden “could be reversed” (45).

He describes these “Puritan Baconians” and their utilitarian and millenarian outlook as giving formative shape to modern science. He argues that these early scientists were really technologists: the early founders of the “new scientific academies … tended to view science as technology … as an enterprise … bound up … with the useful arts” (57).

Connected with this utilitarian perspective, for Noble, is the strong connection between scientific pioneers and early capitalist enterprise (59). He points to Robert Boyle’s father and other early Royal Society members who “were involved in such industries as tobacco, distilling, and trade” (59).[1]

Noble suggests, though, that these “founders of modern science” eventually moved away from earlier views of recovering Eden and, “with increasingly more hubris than humility,” began to speak of achieving of an understanding of divine creation itself, instead of the lesser focus on Adam’s knowledge characteristic of earlier times (62). In other words, they moved from being content with a focus on technology and “what works” to become scientists focused on questions beyond the materialistic.

Increasingly “mechanistic scientists” began to divorce God and creation, and to view God as outside his clockwork universe. They began to imagine themselves as occupying a similar, God-like perspective, one that gazed from “outside of nature”:

For Newton, then, to uncover the hidden logic of the universe was to understand and in that sense identify with, the mind of its Creator. (63-65)

This was very different from earlier views of “God in nature” that earlier hermetic and alchemical traditions — predecessors of modern “technoscience” — held.

In short, Noble argues that these early scientists began to dispense with a humble pursuit of the divine in nature and to instead view themselves as gods (67). (Perhaps a dislike of this hubris is why he identifies himself as a modern-day Luddite and refuses to use email.)

In his descriptions of eighteenth century European science, Noble continues to emphasize the importance of millenarian beliefs to the science and technology of this time. For example, Joseph Priestly, known for his work in electricity and with oxygen, insisted on the connections between his scientific work and his religious views, which included a belief in prophecy and Revelation. Priestly focused on the “practical application of science” to further the goals of “both immediate utility and millennial preparation” (71).

But it was not just Priestly. Religious belief generally motivated early scientists in this time, according to Nobel, who writes that Michael Faraday, known for his work with electricity, was involved in a sect of fundamentalist Christianity that focused on a very literal interpretation of the Bible (71). Charles Babbage, mathematician and industrial inventor, also focused on arguments “in favor of religion” (72). For Noble, religious belief and scientific pursuits were both unified and mutally supportive — at least in the minds of eighteenth-century European scientists.

Noble next moves into what I think might be the most intriguing aspect of this section of his work: his investigation of the role Freemasonry, including its “devoutly religious” — if anticlerical — beliefs, played in fostering scientific advances and improving the “useful arts” (77).

As the eighteenth century progressed, the technological Freemasons proved to be “among the earliest advocates of industrialization” and served as “midwives” at the birth of the “latest incarnation of spiritual men, the engineer” (79). Noble writes: “As the founding fathers of both the engineering profession and engineering education, the Freemasons passed on the legacy of the religion of technology to modernity’s ‘New Man’” (79).

Moving into nineteenth-century science, Noble turns his attention to Auguste Comte and his positivist system. Positivism, he argues, is “strikingly reminiscent of the Christian goal of a transcendent recovery of mankind’s original divine image-likeness and dominion over nature” (84). As with the millenarians, writes Noble, for positivists the “world’s transformation was inevitable and imminent” (84).

Marx and the socialists shared Comte’s “technology-inspired millenariasm” and carried the old beliefs forward into a “new secular age” (86). Comte and the positivists may have rejected nineteenth-century religion as unscientific, but, according to Noble, the scientific worldview they adopted instead was remarkably like the religion it replaced.

In a later chapter he calls “The New Eden,” Noble turns to America, where he believes “the useful arts became wedded to Adamic myths and millennial dreams” as “nowhere else before or since” (88). In America, “scientific and industrial revolutions followed in the wake of religious revival” (90). Technological inventions in America carried with them religious meanings. The telegraph, for example, was viewed as “divinely inspired for the purpose of spreading the Christian message farther … bringing closer and making more probable the day of salvation” (94).

In nineteenth-century America, religion and technology were neither distinct nor disconnected; instead, they both reinforced and strengthened each other.

But despite this deep connection between technology and religion, religion in the twentieth century moved away from being a driver of both technological invention and scientific innovation. Increasingly, religion has been seen as oppositional to science and technology.

Still, for many Christians this opposition is uneccessary and even problematic. For example, Noble explains tht NASA — at least into the Shuttle years — contained many devout Christians who saw their missions to space in deeply religious terms, and saw no conflict between their scientific and religious missions.

But what can one make, then, of the Young-Earth Creationismisms rejection of geological and evolutionary sciences? Or the ongoing attempts by Christian evangelicals to “teach the controversy” of evolution in high-school classrooms? Does this kind of fight prove Noble’s integration thesis wrong?

While I don’t think Noble fully answers these questions, his focus on technology perhaps suggests an answer. Science — or at least, some kinds of science — are not easy for some modern Christians to accept. But technology, even missions to the Moon or Mars, are much more readily reconciable with faith. They are, in older terms, explorations of God’s world, not challenges to God’s supremacy.

Bacon and Comte

Turner begins with Francis Bacon’s “The New Atlantis” (1627). Although Bacon’s work was more political theory than scientific article (“science” in its modern form did not yet exist, nor did “scientists”), he nonetheless put forward a theory of knowledge based on induction and articuled a view that valued the knowledge of experts — a knowledge based on experience rather than more traditional forms of authority (34). (What about Bacon vs. Edward Coke, proponent of common law and the rule of law?)

Blithly moving ahead to 1793 — when science had actually begin to emerge in a more recognizably modern form — Turner picks up the story again with Condorcet’s “promot[ion of] the idea that science was the engine of human progress.” Condorcet, says Turner, believed in science and its benefits, but also thought the “the production of these benefits required state action” (34).

Condorcet’s main focus of state action is education — but he acknowledged that the point of that education was to create “collective submission to reason and science.” Educated citizens would choose their “intellectual betters” as leaders — essentially a “regime of expert rule, with democratic consent” (35).

Saint-Simon and Comte

Turner argues that Saint-Cimon took the implications of Condorcet’s ideas — ”that social knowledge allowed for the replacement of politics” — and radicalized them (35). Saint-Simon believed in “scientists as the saviors of society,” and argued — in a pre-Marxist fashion — that “the rule of main over man would be replaced by the ‘administration of things’” (35).

Comte, secretary to Saint-Simon and the founder of the new discipline of “sociology,” turned Saint-Simon’s ideas into “Positivism,” a new philosophy of science and politics (35-36). Comte’s Positivism reject the “liberalism” of John Stuart Mill (and other English philosophers like John Locke) in favor of the rule of the expert (36). Science would provide the model “for overcoming the ‘anarchy of opinions’ by providing consensus” (36). The “authority of science,” he believed, ought to “be imposed on the ignorant, just as the dogmas of Catholicism had been so effectively imposed in the past” (37).

John Stuart Mill

In the mid-nineteenth century, Mill advocated “liberalism” — a political theory grounded in governance by discussion that invested power in the general public — as opposed to aristocrats, technocrats, or bureaucrats. But he was caught between his belief in free discourse as a model of liberal democracy, and his equally powerful belief that “the canons of induction lead to proven knowledge” (37). Mill never resolved this tension between lay decision-making and scientific truth-finding.

Pearson and Mach

Ernst Mach and Karl Pearson, writes Turner, are “transitional figures” between Comte and Communists theories of science of the 1930s (38). Both oriented science toward “efficiency.” Both were deeply concerned with ideas of consensus.

Pearson, in particular, believed in the power of the scientific method to “assure[] consensus without force” (38). But how can general citizens join this consensus? Again, like Comte, Pearson advocated both education and popularization — but only the experience of actually studying a small area of science closely could really inculcate the proper frame of scientific mind (39). If citizens could generally experience this too, it would “produce consensual politics without coercion” (39).

Science, Culture, and Politics

Do advances in science depend on cultural conditions? Or is science the “prime mover”? Philosophers like Alfred North Whitehead and socioligists like Sorokin and Max Weber saw Western civilization as enabling the growth of science, and not the reverse (40).

Early in the century, “efficiency” became the watchword, and scientific and engineering solutions were proposed as ways to resolve social issues. Otto Neurath and others argued that Socialism and the “planned economy” were scientific and efficient, and therefore both practical and desireable (40).

John Dewey promoted the experimental method as the best way to solve problems in human affairs, “replacing ‘custom’ and attachment to traditions, such as constitutional traditions” (40-41). But Dewey wanted the scientific spirit in politics, but not scientists themselves (41).

Max Weber dismissed the idea of scientists as technocratic replacements for politicians:

the qualities that make a man an excellent scholar and academic teacher are not the qualities make him a leader … specifically in politics (43).

The Impact of Marxism

Marxism itself was intended to be a scientific account of history and progress. After the Soviet Union began to put a version of Marxism into practice, early theoreticians in the USSR explicitly bound science to society, and argued that science itself was driven by “social formations and historical considerations” (43). For these theorists, “an autonomous realm of pure science was a sham and an ideological construction” (43).

Outside of the Soviet Union, “the Left” accepted the idea that science was not neutral — but also that rational, planned societies were the apotheosis of the scientific approach (44). During the Depression, many saw politicians — and democratic capitalism itself — as standing in the way of scientific progress (44).

Post-War Science Studies

Turner argues that the debate over the role of science in society was transformed after World War II for a variety of reasons:
The response of physicists to the Bomb, the coming of the Cold War, the betrayal of atomic secrets by scientists, the Oppenheimer case, the Lysenko affair (which finally discredited the Soviet model of science), and the rise of an aggresively anti-Stalinist Left transformed the debate (47).

The new, post-war world valorized science, but generally removed politics from explicit consideration — and the result was Thomas Kuhn’s seminal work, The Structure of Scientific Revolutions.

Additionally, if a core reason that copyright has always been compatible with the First Amendment is that it is a property right, then perhaps a way out of the conflict between privacy and freedom of speech and the press is to conceive of privacy in the same way — as a property right. Certainly it is already on its way there, as the “right of publicity” in many jurisdictions already implicitly does so, since it provides control over unauthorized commercial use by others.

What follows are three approaches the outline some of the benefits of doing exactly this.

Dissolving the Inkblot: Privacy as Property Right

Unsurprisingly, this is an approach libertarian thinkers have already explored. In a 1993 report for the Cato Institute, Sheldon Richman argues for a vision of privacy “that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.” Richman grounds his vision of the right to privacy as a property right embedded in the Constitution:

That the propertarian model of privacy has the full force of the Constitution behind it is evident in the purposes listed in the preamble to the Constitution, in the recurring express references to property, and in the protection of unenumerated rights in the Ninth Amendment.

He additionally argues that viewing privacy as property is supported by older case law as well:

[I]n Boyd v. United States (1886), a search and seizure case involving a businessman, Justice Joseph Bradley wrote that the constitutional guarantees securing people in their persons, houses, papers, and effects transcend the concrete case and “apply to all invasions on the part of government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging in his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.”

Richman argues that “propertarian privacy” provides a consistent philosophical and moral grounding for property rights that protects privacy without giving judges too much leeway:  ”To determine whether one has a right of privacy with respect to some act, a judge need only ask what the property rights are.” As a result, contraceptive use is protected through his right to privacy because “each party owns himself or herself. … The same is true … for persons who engage in consensual homosexual sodomy.” Child abuse — even in one’s own home — is not protected “because the child is a self-owner.” Abortion is generally protected because “the fetus comes into existence inside the body of a self-owner.” On the other hand, employers may ban smoking — even in an employee’s home — without violating their right to privacy because the “prospective employee can turn down the job.”

In regards to data privacy legislation, Richmond’s approach would generally not protect privacy unless contractual obligations were violated (this might be seen as protecting confidentiality):

A private firm compiles a computer data base on consumers in order to rent it to direct marketers. Privacy violation? Not if the information was originally provided freely by the consumers (or otherwise lawfully obtained) and all contractual restrictions are observed. But if information was given confidentially, divulgence should be actionable. To be sure, data can be misappropriated, stolen by computer hackers, or used in ways that violate contractual obligations. That is why there are criminal and civil courts.

The Property Rights Origins of Privacy Rights

In The Property Rights Origins of Privacy Rights, Mary Cholpecki explores the historical connections between property and privacy. She points to two English cases as examples of this. First, in Yovatt v. Winyard (1820), what I might call an early trade-secrets case, the court “extended property rights protections to cover personal secrets,” namely, secret formulas for medicines used by a competitor. Cholpecki writes:

Yovatt brings to light the interesting and important fact that “what we now call ‘unfair competition’ and ‘plagiarism’ and ‘privacy’ were all wrapped together, in Yovatt’s time, under the principle of ‘property.’” It was only later that these concepts were separated.

She then discusses Prince Albert v. Strange, a case from 1849 in which Strange is prohibited from selling copies of etchings he had catalogued for Prince Albert:

According to one commentator, the most significant aspect of this case and its underlying philosophy is that it rested on a right of privacy, which the court considered a type of property right. In fact, it appears that until 1890, no English court recognized the right to privacy independent of property rights.

Cholpecki blames Samuel Warren and Louis Brandeis’ 1890 law review article for “divorcing privacy from its historical and intellectual partner, property rights.” Because of this, she argues, in subsequent cases the courts have “muddled the parameters of the right and allowed critics to argue that the right to privacy does not exist in the Constitution.”

She sees hope in the 1977 case of Moore v. City of East Cleveland, where a plurality of justices united in the ruling, some of the basis of a right to privacy and some on the basis of property rights:

The Moore case illustrates the interconnectedness between privacy and property rights. Given the same set of facts, four members of the Court believed privacy rights were jeopardized, while another believed property rights were threatened. Ultimately, the two segments came together to protect the rights at stake. … The most enduring protection for both rights is to view each as indispensable to the other.

Privacy As Intellectual Property?

In “Privacy As Intellectual Property?,” Pamela Samuelson explores the potential benefits and pitfalls of adopting a property-based approach to privacy protections.

First, she writes, viewing data about oneself as private property matches an intuition many of us already have. Since people already have the legal right to exclude people from access (journals locked in a desk drawer, papers stored at home in a file cabinet, etc.), “they may have a sense that they have a property right in the data as well as a legal right to restrict access to it” (1130). Data protection laws reinforce this intuitive sense.

This intuitive sense of property persists even though ownership of data is not the core legal framework in American law for dealing with privacy: “Indeed, the traditional view in American law is that information as such cannot be owned by any person” (1131). Although property rights are involved with Fourth Amendment protections, it is not a property right in the information per se, but rather a property right against trespass. The Fifth Amendment (against self-incrimination) protects a liberty interest in a kind of privacy right, but it is not a property right. If a doctor reveals confidential medical information to a newspaper, a patient’s rights “would arise under contract or privacy law, not from the existence of any property rights in this information” (1131).

Samuelson suggests that granting individuals property rights in their own data might force companies to internalize the costs of privacy — if individuals retain property rights over their own information, even if gathered without their intervention, the companies would need to compensate them (and get permission) for the use by buying the rights, or forgo using the personal data. It would also have the side benefit of potentially increasing the quality of data collected, since individuals and companies would each have an incentive to make sure data is accurate (1133).

Perhaps most importantly, taking a property rights approach would allow market forces and market efficiencies handle privacy concerns, without neglecting the particular desires of individual people, and without extensive (and potentially expensive) government regulations (1135-36).

Conclusions

Both Cholpecki and Richmond write from a libertarian perspective, and both believe that connecting the right to privacy with property rights will helps unify conservative and liberal positions into one that can have positive outcomes for everyone. Samuelson approaches the issue from a critical perspective, but outlines many of the important benefits that a “privacy as property” approach might give — and notes that, especially as many American today dislike government-run anything, a system of privacy rights that leverages and extends existing property rules and regulations would likely achieve significant support.

"Property of the Hess Estate" by Flickr user Jason Eppink. CC BY-NC-SA 2.0.

In Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Terry Hart does an excellent job of exploring why the First Amendment has never been held to interfere with the enforcement of copyright, including pre-publication injunctive relief. A few quick highlights:

• Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent.
• There were some who noted, at the least, a prior lack of recognition of the potential conflict, as in this Columbia Law Review note from 1913 on “Freedom of the Press and the Injunction.”

The main reason Hart identifies as to why legal thinkers did not consider there to be a conflict?

The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.

Hart points out that the earliest (1839) case — Brandreth v. Lance, from New York — ruling on the constitutional grounds of free speech noted the following when denying an injunction for potential libel:

There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright.

(Note: there is another key ground on which judges — including the Supreme Court — have said that injunctions can be granted in regards to copyright: the fact that copyright is granted in the Constitution itself. See New York Times v. U.S., from 1971.)

The Wealth of Networks by Yochai Benkler

In The Wealth of Networks: How Social Production Transforms Markets and Freedom, Yochai Benkler discusses his vision of the role of technology in social change. He rejects an overly deterministic vision of technology (which he connects with Lewis Mumford and Marshall McLuhan), but also rejects a view of technology as immaterial to a society’s direction:

A view of technologies as “tools that happen, more or less, to be there, and are employed in any given society in a pattern that depends only on what that society and culture makes of them is too constrained. A society that has no wheel and no writing has certain limits on what it can do.” (17)

Instead, he adopts a “simple” idea that is “distinct from a naive determinism”:

Different technologies make different kinds of human action and interaction easier or harder to perform. All other things being equal, things that are easier to do are more likely to be done, and things that are harder to do are less likely to be done. All other things are never equal. That is why technological determinism in the strict sense — if you have technology “t,” you should expect social structure or relation “s” to emerge — is false. (17)

To illustrate the point, he describes the different impacts that new ocean-going technologies had on Spain or Portugal (their land ambitions were curtailed by strong neighbors) and China (which focused inland). He also notes how the printing press impacted Protestant countries (where individual reading of the Bible was encouraged) differently than Catholic countries (where “where religion discouraged individual, unmediated interaction with texts, like France and Spain”).

He summarizes his position by saying the following:

Neither deterministic nor wholly malleable, technology sets some parameters of individual and social action. It can make some actions, relationships, organizations, and institutions easier to pursue, and others harder. (17)

In regards to modern networking technologies (like the Internet), he warns:

The same technologies of networked computers can be adopted in very different patterns. There is no guarantee that networked information technology will lead to the improvements in innovation, freedom, and justice that I suggest are possible. (18)

It is, in a sense, a traditional historical work, and seeks to communicate “broad generalizations” about the “essences” of the “subjects and their times” (White 3). Many current historians might quibble about the possibility of such a project, but it is, I think, a fundamental pretense (at least) for any work that attempts to make sense of broad swaths of history.

Core to his entire analysis is the idea that the first Chief Justice of the Supreme Court, John Marshall, established a new and enduring American legal tradition that continues today. Marshall, White argues, establish three key elements:

• a “tension between independence and accountability”;
• a “delicate and unique relation to politics”;
• and a “trade-off” between the power and independence of a judge and the restrains placed on the judiciary (White 3-4).

Although Marshall helped establish an enduring American legal tradition, jurisprudential theories have changed over time. Especially important, according to White, is the shift from a nineteenth century “oracular” view of judge as “law finder” to the twentieth century view of judge as “law maker” (White 4). White ends his work with the Rehnquist Court, but I am left wondering how well this distinction continues to work today given conservative justices like Antonin Scalia, who seems opposed to law making by judges and embraces instead an “originalist” approach to constitutional interpretation. This seems, in a sense, to be more like the nineteenth century’s approach than the twentieth’s.

White’s biographical approach to history could easily fall into “great man” historiography, despite White’s assertion that he advances no such “‘great man’ theory” (White 6). But he seeks less to glorify individual judges than to use them as a means of “reflect[ing] the governing social and intellectual assumptions of various periods of American history” (White 6). White does what so many historians love to do: he rejects theory as a defining force in his work, and instead argues that he’s not pursuing one theory of history over another, but rather “convey[ing] an understanding of what it has meant to be an American appellate judge” (White 6).

White strongly suggests — and I myself have at least somewhat advocated — that the relation between the judiciary and “its social context is one of total integration” (White 6). In other words, the words of appellate judges is at least as much about larger society as it is about the specific case, controversy, or judge. This last point is a key one for any historian seeking to look at legal history as a means of access to broader historical issues, and it’s one that I look forward to developing further — and for which I hope that I can continue to find support.

I think analogy reflects a desire to economize on thought. Thus, if we construct evidential reasoning on the basis of, say, Bayesian networks, then — instead of creating a whole new network to reflect a new situation — we simply build on an old network, and replace nodes with new facts, build a few nodes, and generally spiff things up.

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I have begun to consider the utility of formal methods of evidential evidence mapping. David Lagnado has presented Bayesian methodologies to us here in Vienna for the last week. Such an approach tends to be math-intensive in its quantitative form, but is powerful as well in its graphical, non-mathematic form. It is reminiscent of Wigmore’s early 20th century graphical approach to mapping evidence, but is in many respects less complex and more powerful. Additionally, even without deep mathematical knowledge, the formulas are useful in any presentation of statistics in a courtroom, and can help avoid common reasoning fallacies (like the “prosecutor’s fallacy“).

Whether people actually think in Bayesian terms is unclear. What is more clear is that Bayesian tools help lay bare some of the heuristic shortcuts people take when dealing with complex evidence (such as in legal cases). We tend, for example, to over-value high-probability evidence by conflating, say, a fingerprint match with guilt, rather than considering alternative hypothesis (the fingerprint is a match, but was deposited at a different time). We also tend to completely ignore low probability evidence, collapse variables and possibilities into singular possibilities, leave out weak links, and downplay absent information entirely. All of this is critical knowledge for any trial attorney to keep in mind, especially when dealing with jurors.

Just always remember that evidence is “irreducibly contextual,” in the words of Hasok Chang. We simply cannot control all the variables, or even imagine all the variables. Failing to be aware of this leads to many of the logical fallacies that Lagnado discussed when explaining Bayesian approaches to evidence, since many problems emerge if one fails to take this into account (whether that’s in the public health context, a legal case, or when deciding on the best cafe in Vienna). This means that however effective your Bayesian map may be, it’s easy to leave out key aspects. Do not assume your map is complete.

Relatedly, Bayesian networking — especially when one expects to actually calculate anything, rather than simply graphing — are deeply dependent on the “priors.” Priors represent the probability of an event occurring, and generally reflect subjective assessments of experts.

In a sense, needing priors simply pushes back complex and subjective calculations further, and this is a major criticism of the approach. How does one calculate how many people smother their children in the U.K. each year (a necessary prior in calculating aspects of the Sally Clark case). Lagnado has emphasized that, while a key problem, the proper Bayesian approach is to lay these subjective factors bare, and to focus not on concealing them, but rather on agreeing on shared assumptions. Bayesian calculations do not show “the truth,” but rather a mathematical truth based on shared assumptions.

Certainly Bayesian approaches have problems, but I would encourage considering the situations in which they may prove helpful, rather than focusing on attacking the approaches key problems. Systematizing decision-making may be flawed — certainly we cannot simply replace the jury with a Bayesian calculator — but thinking through  a complex web of evidence in Bayesian terms provides critical insights, and in some cases fundamental and powerful truths.

In short, I would highly recommend that any criminal defense attorney consider investigating both the mapping techniques and the basic statistics of Bayesian networks.

Related articles

• The holes in my philosophy of Bayesian data analysis (stat.columbia.edu)
• Peter Huber’s reflections on data analysis (stat.columbia.edu)

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For the last week I’ve been a part of the Vienna Institute Summer University (VISU) at the University of Vienna, at a two-week conference on “The Nature of Scientific Evidence.” The program brings together graduate students from a variety of disciplines from around the world to discuss science-related topics. Key lecturers this year include Hasok Chang (Philosophy of Science/Cambridge), David Lagnado (Cognitive Psychology/UCL) and Tal Golan (History of Science/UCSD). Interestingly for my interest in law and science, both Lagnado and Golan have focused on the legal sphere as a powerful “theater” for investigating the (ab)use of scientific evidence.

We can characterize the approaches quickly as follows: Chang discusses the theoretical underpinnings of science, including the logical reasoning process; Golan looks at the historical growth of science in the public imagination and the development of scientific experts; and Lagnado investigates the use of Bayesian networking to understand a cognitive approach to weighing evidence, both normatively and descriptively.

Given that I am an historian of law and technology, and a lawyer, what kinds of takeaways have I gotten so far?

First, that Bayesian networking could be highly beneficial to lawyers, especially in criminal defense. The approach has problems, but is a powerful way to avoid common pitfalls in evidential reasoning.

Second, that scientific evidence is not radically different from other evidence, and that the fallacies that scientists encounter internally are not radically different than when they present externally (this is more controversial, perhaps).

Third, that context is key to evidence, to the acceptance of evidence, and to the use of evidence. One cannot consider all variables, nor all potential outcomes or possibilities, so all decisions made from evidence are bound up in both one’s own context and from the context the evidence came from. (This doesn’t mean that all decisions are necessarily totally subjective and arbitrary, however).

Fourth, that many disciplines can come together and discuss common questions in a useful and powerful way, but that it isn’t always easy to speak a mutually intelligible common language (and I’m not talking about English vs. German).

I will have more to say later.