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 had several goals for my time in Vienna:

1. I wanted to make international connections with colleagues around the world;
2. I wished to develop my thinking on the relation of history with evidence–preferably with a bit of legal context;
3. since my philosophical background in regards to science needs work, I wanted to find new ways to approach the philosophy of science that would help me to develop my understanding and appreciation of the field.

How well did this summer’s VISU help me to achieve these goals? Quite well!

First, I met many wonderful people from universities around the world. Most, perhaps unsurprisingly, were from Europe or the United States, and they represented a wide variety of disciplinary approaches to science and evidence. For example, I was able to connect with graduate students working on similar questions as I am from a civil law context, providing a useful comparative potential to add to my own work.

Second, I was thrilled that the focus on the legal context was much deeper than I expected. David Lagnado of UCL provided an especially new and intriguing look at the ways in which juries evaluate evidence in the common-law courtroom, and introduced me to the use of Bayesian analysis in evidentiary analysis.

Third, the 10 or so graduate students coming from the discipline of the philosophy of science helped me to appreciate the philosophical debates more fully. I may still not fully embrace what feels to me like a de-contextualized approach to theory, but I can better appreciate the goal and reasons for trying to describe and explain scientific theories.

Some more highlights of the two weeks:

• Bayesian networks as representations of real-world evidential reasoning. Do people really reason this way? Or is this the ideal way we should do probabilistic reasoning? David Lagnado suggests that people may really use this approach–at least as a qualitative matter–but that we don’t do so well when it comes to quantitative weighing of probabilities.
• The distinctions between a civil law approach to scientific experts (generally appointed by the court) vs. the common law one (represent the parties). The civil law approach appears cleaner, but may well bury the issue a bit further underground–and the need to validate the science still exists, it may just not play out in the courtroom.
• Tal Golan asserts that the statistical expert’s growing role as gatekeeper of “true causes” is co-related with the trial judge’s new role as the gatekeeper of “true science.”

All in all, the two weeks was an excellent experience, and I would recommend it to any other graduate students working in related fields.

Related articles

• Initial reflections on the nature of scientific evidence (inpropriapersona.com)

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.

Image via Wikipedia

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.

Put in old-fashioned science studies terms (i.e., Thomas Kuhn), cutting-edge history is obsessed with forever escaping the bane of “normal science”–that is, of applying useful and existing theoretical frameworks to look at the past–and instead forever seeks to a Kuhnian “paradigm shift.” From Marxist history to social history to the “cultural turn,” modernist to structuralist to postmodernist, there is a fascination with the new.

Interestingly, though, this is a “newness” that is grounded in the earlier approaches and reacts directly to them. Thus, “women’s history” rejected the dominant vision of traditional (and male-dominated) history, then became to “gender history,” which then led to a further reaction: “the history of masculinity” (Wickberg). Why? Because, it seems to me, the previous approaches became ho-hum “normal history,” and historians wanted to do something new: “The fields of women’s history, African-American history, and gay history have not disappeared. Instead they have become establishment, rather than oppositional, fields, arenas in which ‘normal history’ is practiced” (Wickberg).

This is the framework through which I see (to mix metaphors) Geoff Ely’s A Crooked Line: From Cultural History to the History of Society (and the critiques of it). Ely, in a sense, is tired of this hunt for the forever new, and proposes a kind of detente, which, essentially, draws a line in historiography and says, “Here we are–everything up to this point is what we should stick to, and get back to doing stuff.” He doesn’t seek to reject the “cultural turn” or Marxist history or anything else, but simply to focus back on “normal history.”

I am in many respects deeply sympathetic to this (much simplified) version of Geoff Eley’s position in A Crooked Line. I view theoretical approaches as useful tools, helpful when they are useful, and distracting when they are not. But at the same time, new theoretical approaches can reveal new truths about our past (and present and future). A “history of whiteness,” while in some sense an attempt to simply do something new in reaction to what has become “establishment history,” nonetheless also wrings something new out of our past that previous approaches might have missed. The past is a multilayered thing. Every shift in theoretical framework, whatever its motivation, peels back another layer. New interrogations of old things is no different from new interrogations of new things.

The fight about theory, its utility, reactions against it, fights about which is better, etc., etc., says more to me about the state of historians than it does about history at all. Theory, and theoretical discourse, is about the people who practice history, not about those we study. We fear the impression of disarray that theoretical arguments can convey to the world at large–if we cannot even agree about how to do history, how can we expect anyone to trust what we say? But, realistically, these arguments are no more specific to history (or other humanities or social sciences) than they are to any other discipline; despite this, our fears of distrust by non-historians are no less realistic. We envy the high status of science in our society, but climate scientists and vaccine researchers have all felt the sting of distrust when their internal theoretical dissensions become visible to outsiders. We should not fear theory, but we should be wary of it.

Related articles

• Considering comparative approaches in legal histories (inpropriapersona.com)
• On Wikipedia, Cultural Patrimony, and Historiography | booktwo.org (booktwo.org)
• History, historiography and Wikipedia (simoncollister.com)

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.

Another approach, favored by Owen Gingerich, astronomer and author of God’s Universe, turns to Aristotle to help differentiate these two kinds of explanation. Put in Aristotelean terms, faith could 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.

The law is somewhat similarly concerned with causality. But the law is not concerned with science’s version of “efficient” causes, nor is the law looking for “final” causes in the metaphysical sense. Instead, legal analyses look to “but-for” causation and speak of “proximate” cause in a search for limited, but specific, legal culpability. The point, though, is similar to that advocated by Gingerich: to limit the scope and breadth of various theories of causation. In other words, the idea is to restrict potential problems of underdetermination.

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. It inherits from a tradition of the literal exegesis of scripture used, for example, in the 16th century. 16th-century exegesis is related to but not identical to today’s Biblical literalism. After all, bringing in a passage of scripture today is no longer a means of shutting down debate.

So how did Copernicans in the 16th century deal with the issue, given the power of literalism at the time? They argued that perhaps scripture itself underdetermines potential explanations–even if it can shut down blatantly conflicting theories.

Thus, for example, 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 (or DNA, for that matter) in the Bible. The Bible thus accomodates 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 simply point to materialist, naturalistic explanations as being all that is necessary, and certainly as the only valid scientific theories. Why? Because they work.

If all of these approaches to dealing with underdetermination are dissatisfying you, and you can’t accept naturalism, 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.

This post is based on discussion in a graduate seminar on science and religion on Monday, April 27, 2010.

The fear of relativism seems odd, also, when we consider that in daily life we are able to produce what most people, including law courts, regard as rational justifications for our knowledge claims. We do not think that such claims are absolutely true, under any conditions, now and forever; they are always revisable if additional evidence or a useful new conceptual framework appears. … Whether we are right or wrong to do so in particular cases, we routinely and confidently take such positions with respect to health matters, legal issues, and the everyday choices we must make. The arguments between absolutists and relativists seem to float free of such everyday experiences and the ways we think about them.

This kind of pragmatic approach to issues of truth and knowledge match my own predilections. I get frustrated by those who insist that truth is absolute and fight against relativism because it will lead to chaos and anarchy. I also get frustrated by relativists who insist that we cannot judge the world around us because we are simply imposing our own cultural values on others. Both positions seem absurd to me, and it’s nice to see a discussion of the pragmatic, everyday middle ground (a middle ground I’ve been trained to occupy as a lawyer as well).

Citations in science are important as a mechanism to follow the evolution of science and because they are employed as an indicator as to the importance of scientists and institutions: the higher the number of citations of an article, the greater is its recognition. This measure of success implies increased sources of funding, recognition, salaries, etc.

According to Camacho Miñano and Núñez Nickel, the problem arises when the authors, instead of altruistically choosing original sources which facilitate the ideas on which their reasoning is constructed, cite because of spurious interests, attempting to increase the possibility of successfully publishing in the scientific journals.

via Discrimination in the citations that scientists use.

My immediate reaction is, well, not shock: of course scientists use “spurious” criteria when choosing what and who to cite! Would anyone who has prepared a scientific paper for submission to a peer-reviewed journal actually disagree? Scientific articles need to get published, after all, and scientific ideas need to be supported against dispute and disagreement. This is true even if the science is “good” and “true.”

Still, it’s nice to see research that recognizes this, as too often people view science as so objectively true as to be free of social influences, politics, etc. But realizing that this is not true does not make scientific discoveries or innovations any less true, just adds back in some human complexity and social context.

For more on this concept, try writers like Bruno Latour and works like Science in Action. Not uncontroversial in its whole, but it does do an excellent job opening up discussion on the “non-scientific” aspects of scientific articles. (No one in the law should be surprised by any of this, but attorneys sometimes seem to forget regardless.)

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Robert Merton, in “The Normative Structure of Science” (from The Sociology of Science: Theoretical and Empirical Investigations), posits four sets of “institutional imperatives” that together “comprise the ethos of modern science”: universalism, communism, disinterestedness, and organized skepticism. How well do these four sets of imperatives describe the “ethos of modern law”?

First, according to Merton, science should be universal. That is, the “acceptance or rejection of claims” should not depend on “personal or social attributes of their protagonist,” including “race, nationality, religion, class, and personal qualities.” “Objectivity,” writes Merton, “precludes particularism,” and science is independent of particular ideologies or nationalities. Merton, in fact, explicitly connects norms in science with norms of law: “the ethos of democracy includes universalism,” he writes, further arguing that the “political apparatus [i.e., statutory law, regulatory agencies, and so on] may be required to put democratic values into practice and to maintain universalistic standards.”

Despite having a national and regional character, Merton’s universalism permeates American visions of what the law should be. Thus, there are strict limits on the ways that race, national origin, and so on can be taken into account under the law, and judges and juries are expected to dispense with ideology when “finding facts” and ruling on legal issues. They are instead entreated to simply “apply the law” in a uniform and impartial manner. Of course, in law as in science, the implementation of universalism is imperfect, and may at times be “affirmed in theory and suppressed in practice.”

A second Mertonian element of science is what he terms “communism,” in which the “substantive findings of science are a product of social collaboration and are assigned to the community.” The American and English common law system is a particularly good example of this approach: as with Merton’s conception of “the essentially cooperative and selectively cumulative quality of scientific achievement,” the common law consists of, and builds upon, all the legal work that has come before. Even our general (if occasionally contested) rule that statutory law is not subject to copyright builds on this communitarian vision.

Disinterestedness is the third element of Mertonian science. It refers to a sense of moral integrity and ethical pursuit, along with a removal of personal or ideological end goals. Certainly this same goal is integral to the practice of law, especially as embodied in judges. In this sense, interestedness by a potential juror is grounds for exclusion. Ethical standards are explicit and exacting for attorneys, even if — apparently unlike scientists in Merton’s day — the general population has a low regard for the ethical standards of lawyers. (Interestingly, scientists have no such formal ethical guidelines.) Personal interests are to be set aside, and the interests of the client (or of “the people” or similar abstract notion of societal interest) are to be substituted instead. This may well point out a distinction between a scientists and lawyers (other than judges, at least): scientists might claim to be putting science and the facts first, but lawyers are up front about putting the client first, and letting the so-called “adversarial system” sort out the truth — although despite this, lawyers have ethical obligations to at least avoid perpetuating falsehood.

Finally, and relatedly, “organized skepticism is variously interrelated with the other elements of the scientific ethos.” It requires a “temporary suspension of judgment and the detached scrutiny of beliefs in terms of empirical and logical criteria.” Certainly this same approach is expected of judges and juries, although lawyers representing their clients are expected to balance skepticism with belief in their client, and focus their skepticism on opposing counsel and their arguments. Once again in the law, the adversarial system, combined with disinterested and objective judges and juries, is supposed to ferret out the truth.

Whether science imitates the law, or law imitates science, or both are responding to larger societal pressures to conform to certain standards (such as Merton’s theory that Puritanism contributed to the growth of modern science), the ideal scientist similar to an ideal lawyer (and even more like the ideal judge). Unlike attorneys, however, the ideal scientist represents truth, not a client and her interests. Lawyers explicitly recognize and speak of the need for a social system — the courtroom, its adversarial system and arbiters — to get at the truth. But perhaps because scientists do not generally acknowledge serving a “client,” even when they work for a corporation, the existence of a social system constructing science is less obvious to many. This is true even though scientists themselves realize how necessary, for example, peer reviewed journals are to the production of scientific truth.

Excerpted from “Constructing a Useful Theory of Knowledge,” available in draft form at SSRN.

Law school’s pedagogical approach does not necessarily reflect this ultimately practical goal, though, and its focus on the so-called “Socratic method” and on appellate case law is, many argue, an ineffective means of training effective lawyers:

Martha Minow, the new dean of Harvard Law School, where the Langdellian method of teaching from appellate opinions was developed, has called for “another case method” closer to the one used in business and public-policy schools, and consistent with W and L’s approach and Carnegie.

PrawfsBlawg: What’s happening in legal education?.

In contrast, graduate school is eminently suited to its goal of training new academics. We read other academics, write like academics, and teach and grade like the teachers we expect to be. Very disconnected from the “real world,” perhaps, and often overly bound up with theory — but still, if one is aiming to work in this area, the training is, in a very real sense, practical.

Law school, though, while pushing the practical, does not teach it. At most, one might argue that it teaches a kind of thinking — a very critical kind of thinking — but it does not teach students to practice law (nor to teach it, for that matter).

I’m curious to see how my reflections on law school education change as I pursue my PhD — I expect I might feel more positive about it as more time passes. We shall see.