Jurisprudence 315 University of Miami
School of Law
Is Law a Science?
In our discussion of the
Australian problems, we touched on the problem of notice as to
the applicable law. One problem we will return to again and again during
the semester is how you figure out (precisely? approximately?) what
"the law" is.
As an abstract matter, one could imagine many different approaches to
this question. One might, for example, attempt to conduct scientific
experiments to detect the law. Or, one might engage teams of
sociologists to observe the law in action. Or, one might hire a lawyer
to give an opinion.
You might be tempted to say, Of course we hire the lawyer: that's what
lawyers are for. Resist that temptation, at least for now.
Consider, first, that most people get through their lives without hiring
lawyers most of the time, but we still tend to hold them liable if they
are caught acting in violation of "applicable law". Consider, second,
that even if you do hire a lawyer, you are presumably doing so
because the lawyer brings some special skill or knowledge. If we assume
for the sake of the argument that lawyers are particularly trained or
skilled at "law-finding", then it is interesting to ask what
exactly it might be that lawyers do when they "find" the law.
Consider these issues as you do the reading:
- How, if at all, do "scientific reasoning" and "legal reasoning" differ.
- How do you "prove" the truth or falsity of a proposition in science?
- How do you "prove" the truth of falsity of a proposition in law?
- What, if anything, is the difference between a "physical science" and a "social science"?
- Is it just what is studied?
- Or do the methods differ in a significant way?
- Is law a "social science" in a meaningful sense?
- If law is neither a "science" nor a "social science" then what is
it?
Consider also the following problem. Suppose someone
asserts that today it is lawful for a person to take a gun and shoot
people at random in the streets in Miami.
Can you disprove this statement in a Popperian sense? How?
Can you design a scientific research protocol that would test the
statement?
Can you describe a scientific protocol for testing this hypothesis
that does not involve loss of life?
Can you describe the steps a lawyer would take to answer this
question with sufficient precision to allow a reader to replicate that
process in another jurisdiction or at some time in the future in the same
jurisdiction?
Did you say law was or wasn't a science?
In reading the Alasdair MacIntyre selection, it may help to:
- Consider what MacIntyre means when he writes "the true achievements of social science are
being withheld from us";
- Consider how does MacIntyre sees social science dealing with counter-examples to its
generalizations. And, how MacIntyre sees social science dealing with randomness in life. Do
you agree?
- Identify MacIntyre's account the four sources of radical systemic unpredictability in human
affairs.
- Identify MacIntyre's account of the sources of systematic regularities in human affairs.
- What does MacIntyre think is the best that social science can reasonably achieve?
- Does MacIntyre think law is a social science?
- What would he say law does?
- Pay particular attention to MacIntyre's views on the effects of legal discourse.
In reading the Klare selection, it may help to:
Consider how Klare's vision of the function of law compares to that of
Fuller and MacIntyre.
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