Читать книгу Culture Clash - Steven Goldberg H. - Страница 14

Does the law, with its focus on the affairs of mankind at large, share anything with the norms of science? Surely the fundamental thrust is in a different direction. The scientists’ emphasis on progress is replaced by the lawyers’ emphasis on process. Rather than seeking greater knowledge of the natural world, the law seeks the peaceful resolution of human disputes.

Saying the law emphasizes process is not to deny that individual laws have substantive content. A law punishing murder creates a substantive rule. But society has other rules and goals as well. The legal system and the legal profession are primarily concerned with accommodating the numerous social goals applicable to a particular dispute in a socially acceptable way.

The evolution of legal rules in our society is largely the work of appellate judges who write opinions interpreting judicial precedents and the often vague language of statutes and the Constitution. These opinions cannot be tested in a strictly scientific way. Human history does not lend itself to the running of controlled experiments. Thus if a court in 1973 issues an opinion broadening the definition of obscenity so that a wider variety of books can be banned, it is difficult to test whether that decision is right. Suppose the decision was based in part on the belief that reading obscene books leads some people to commit sexual assaults. How can the belief be tested? Even if in the ten-year period following the decision there is a decrease in the number of rapes, the matter remains uncertain. Any number of factors might have caused that decrease. There might, for example, have been an increase in police patrols during the period. It is not possible to go back to 1973, issue a different decision, hold everything else constant, and see what happens to the crime rate. Moreover, even if we did have a sense of the effect of the 1973 decision on crime rates and on the equally uncertain question of what books were not written because of the new obscenity standard, we would still not be sure if the decision was right. Suppose we somehow knew that the 1973 decision led to a one percent reduction in crime, but also to the nonwriting of three great novels. There is no scientific way to balance these outcomes to decide which outweighs the other. Indeed there may not be a social consensus on how much crime reduction is worth how much literature.

This contrast can be overstated. Social judgments, however imprecise, can sometimes be reached on legal outcomes. If a court’s decision appears to lead to a sudden surge in the crime rate, it may be judged wrong. If it appears to lead to new opportunities for millions of citizens, it may be judged right. The law does gradually change to reflect this kind of social testing. But the process is slow, uncertain, and controversial; there is nothing in the legal community like the consensus in the scientific community on whether a particular result constitutes progress.

An additional pressure on the legal system is that whereas ultimate judgments of right or wrong may take decades, particular disputes must be resolved more quickly. The law does not have the luxury of waiting for all the relevant evidence to come in, because with public policy delay is a decision. While we wait, an individual is or is not in jail; a power plant is or is not constructed. Law must stress process in part because it is not in a position to ascertain ultimate truth. As Peter Schuck has argued:

The law is usually in much more of a hurry to decide than science is. Ironically, however, law’s findings, although less reliable and tested than those of science, are treated as more final and authoritative. Law operates under pressure to resolve particular disputes speedily and conclusively.… [Scientific] consensus often takes a long time to assemble, yet even then it is conditional, always open to revision on the basis of new data or theories.²⁵

If an appellate judge’s opinion cannot be tested in a scientific way, how is it to be assessed? On its face, an opinion often appears to be, in part, an effort at a logical demonstration. General principles are stated and deductions are made. Yet a judge’s opinion obviously is not a mathematical proof. At any given moment in the history of mathematics there is, in a particular field, reasonable agreement on the definition of terms and on the postulates to be used.²⁶ There is no such consensus in our society about legal principles. Two judges can use impeccable logic and yet reach different results because their assumptions vary. One might postulate that free speech is of value only to the extent that it furthers other goals, such as an informed electorate, while another believes speech is a good in its own right. Or the judges’ disagreement may manifest itself in a dispute over definitions: for one judge “speech” includes musical performances, for the other it does not. Thus, any notion of assessing judicial opinions in purely formal terms is unlikely to succeed.

That judicial opinions are neither scientific nor mathematical does not mean they are irrelevant. The opinions themselves are part of the process by which socially acceptable decisions are reached. After all, why write an opinion if it does not irrefutably “prove” anything? In a society in which the rule of law meant nothing more than brute force, courts could simply issue judgments without explanation and police could enforce them. In our society, however, judicial opinions themselves become part of the governing process as people judge their strengths and weaknesses and, if unpersuaded, work to change the law. Judicial opinions then, although they are not right or wrong in scientific terms, are successful or unsuccessful depending on the extent to which they effectively draw on commonly held values to persuade the interested segments of the population. Judges, in other words, engage in the practice of rhetoric—not rhetoric in the modern, pejorative sense of ornate or empty linguistic flourishes, but rhetoric in the older sense of persuasive communication designed to win support for views on questions of values.²⁷

It might be argued that whereas fundamental legal questions are not susceptible to scientific proof, the factual questions often involved in legal proceedings are. It is true that most legal disputes involve factual issues. For example, a jury must decide where a person was on a given date, and an agency must decide how much radiation escaped from a reactor. Surely, one might argue that these matters could be resolved in a scientific manner. The courts could then apply the legal tests—what is a crime or what is an unsafe level of radiation—to the scientifically established facts.

Of course, some factual issues do not lend themselves to a strict application of the scientific method; there is often no certain way to test conflicting stories about the whereabouts of the accused. But there is, nonetheless, cause for believing that some legal facts can be derived scientifically. Our legal system does separate, to some extent, factual from legal questions by having a jury or an expert agency make factual decisions while leaving the ultimate resolution of legal questions to judges. But even here it would be a mistake to think that the scientific approach plays a dominant role.

The law is rarely concerned solely with factual truth in the scientific sense because that is rarely society’s sole concern. Consider, for example, the trial of a criminal case. John Smith is accused of murdering Mark Evans at 6 p.m. on August 1. If the only question were a narrow factual one—that is, did Smith kill Evans at the time stated?—one would expect our society to resolve that question in at least a quasi-scientific way. Although it may not be technically possible to verify assertions about the past scientifically, we could at least attempt to limit the judicial system to an objective, expert inquiry into what happened last August I.

Under this approach, the inquiry would presumably be conducted by people with expertise in such matters. We might expect to see, for example, the growth of a profession of “fact finders” wise in the ways of fingerprint analysis, eyewitness testimony, and the like. We would not expect to see what we presently have—a lay jury utterly inexperienced in the narrow task of factfinding. But that is because the narrow factual question—whether Smith killed Evans at the time stated—is only one of many questions of interest to society. Suppose Evans was a terminally ill, elderly patient in intractable pain, and Smith, his doctor and best friend, halted his treatment? Or suppose Evans was a healthy athlete running down the sidewalk, whereas Smith was a mentally ill or drunk driver who swerved onto the sidewalk for no good reason, accidentally killing Evans? Or suppose that Evans had threatened Smith at 5:30 p.m., and when Smith saw Evans at 6 p.m. he killed him, wrongly believing Evans was about to pull a gun? The legal doctrines that have grown up around cases like these make clear that society wants juries to make moral and practical judgments as well as purely factual ones.

Technically, the judge tells the jury the relevant law—whether it be on euthanasia, the insanity defense, self-defense, or some other doctrine—and the jury finds the facts. In practice, however, the law and the facts are so closely intertwined that the jury will do more than simply find the facts. It will, within the broad outlines of the relevant legal doctrine, decide whether applying a doctrine such as self-defense is sensible in the case before it. Society does not want jurors to be automatons; it wants them to make the unavoidable moral judgments involved in applying disputed facts to necessarily imprecise legal doctrines. As Holmes wrote in 1899:

I confess that in my experience I have not found juries specially inspired for the discovery of truth. I have not noticed that they could see further into things or form a saner judgment than a sensible and well trained judge. I have not found them freer from prejudice than an ordinary judge would be. Indeed one reason why I believe in our practice of leaving questions of negligence to them is what is precisely one of their gravest defects from the point of view of their theoretical function: that they will introduce into their verdict a certain amount—a very large amount, so far as I have observed—of popular prejudice, and thus keep the administration of the law in accord with the wishes and feelings of the community.²⁸

Much the same is true with the heads of administrative agencies. In regulatory decisions we want agency members who can make clear-eyed factual judgments. But, we also want them to be able to make the sound policy decisions inevitably involved when legal principles are coupled with disputed facts. Under many statutes, for example, judgments on an appropriate level of environmental safety involve a variety of factors, including cost, emission levels, compliance levels, and the like. Courts have generally held that agencies must consider the numerous private interests affected by their decisions as an “essential predicate” to balancing all of the elements necessary for a just determination of the public interest.²⁹

Thus, on both legal and factual matters, our legal system stresses the process by which a decision is reached in an attempt to ensure that the decision will be, at the very least, something society can accept. The most dramatic manifestation of this concern for process is the adversary system, under which lawyers for each side present the best arguments they can to support their client’s case. The individual lawyer, of course, is not seeking the truth; it is the process itself that is supposed to foster accuracy by presenting the judge or jury with the best arguments on both sides. But if accuracy were the only concern, it is not obvious that the adversary system would be used. A vigorous investigation by an impartial expert might do as well. Scientists, after all, rely heavily on peer review. The adversary system, however, serves process goals. It provides both sides with a highly visible day in court—a public presentation of views, ensuring that all sides are heard. Part of the value of such a day in court may be cathartic, but that too contributes to the peaceful resolution of disputes.

Consider in this light the observations of David L. Bazelon, when he was Chief Judge of the U.S. Court of Appeals for the District of Columbia, a federal court with a heavy volume of cases involving scientific and technical issues. Concerning such cases, Bazelon advocated open decisionmaking after a full airing of opposing views:

This kind of openness is in everyone’s best interests, including the decisionmakers’ … When the issues are controversial, any decision may fail to satisfy large portions of the community. But those who are dissatisfied with a particular decision will be more likely to acquiesce in it if they perceive that their views and interests were given a fair hearing.³⁰

There is quite a contrast between Oppenheimer’s assertion that it is “an organic necessity” for scientists “to find our what the realities are”³¹ and Bazelon’s observation that legal process, at best, “may fail to satisfy large portions of the community,” but at least it can earn “acquiescence” if the contending parties are given “a fair hearing.”

Under the circumstances it is not surprising that a lawyer’s work rarely shows outward signs of brilliance. Attorneys present views they know are one-sided as part of an overall process designed to ensure fairness. A judge disguises new ideas as old in order to enhance their social acceptability. At best, resolving human conflicts is an imperfect, unending task in which progress is difficult to define, let alone measure.

Thus the fundamental difference in values between science and law is subtle, but important. Science is not a compendium of timelessly true statements. It is, in a sense, a process for formulating and testing hypotheses about the natural world, hypotheses that are always open to revision. But in science this process is a means to an end, and that end is progress in our knowledge of the world. In law, process is not simply or primarily a means to an end. In an important sense, process is the end. A fair, publicly accepted mechanism for peacefully resolving disputes is often the most one can reasonably ask for in human society. As Justice Felix Frankfurter wrote in an opinion for the U.S. Supreme Court, “the history of liberty has largely been the history of observance of procedural safeguards.”³²

The fundamental difference between the scientist’s love of progress and the lawyer’s adherence to process has secondary implications for the value systems of scientists and lawyers. Scientists looking for empirically verifiable truth have to believe there is some kind of order in their universe, whether it is expressible in traditional cause-and-effect terms or in probabilistic equations. And the search for order is closely allied to the search for beauty—scientists often testify to the aesthetic motivations for their theories. From a scientist’s perspective, beauty and simplicity are not sought, as some non-scientists contend, because there is no other way to choose between theories. Rather, beauty serves to confirm a theory’s accuracy because of a scientist’s underlying faith about the very nature of the universe. Werner Heisenberg, for example, wrote, “I frankly admit that I am strongly attracted by the simplicity and beauty of the mathematical schemes with which nature presents us.”³³ Judges, by contrast, confronted with the pressing need to resolve a social dispute peacefully, will often trade order and beauty for a patchwork solution that works for the problem before them. As Jerome Frank wrote, “[M]ost judges are too common-sensible to allow, for long, a passion for aesthetic elegance, or for the appearance of an abstract consistency, to bring about obviously unjust results.”³⁴

Now, of course, this depiction of scientists and lawyers as champions of progress and process is the depiction of ideals, not of living, breathing human beings. Like everyone else, scientists and lawyers may be motivated by greed, lust, or an insatiable desire to be famous. Moreover, the problems they work on do not grow out of abstract conceptions of progress or process, but rather out of the social and cultural environments in which they live. But the fact remains that these professional norms of progress and process shape the professional lives of scientists and lawyers, and shape them in very different ways.