In a recent article The Science Of Law I asserted that law, or more properly jurisprudence, is a science. The basis for that assertion was that both science and law are founded in the Baconian method.
In this comment, A Bear In The Woods, said in rebuttal:
I have to disagree that jurisprudence is a science. In what way would the study of law being any different than the study of astrology? For it to be science there would have to be something objective in the law that everyone could universally agree on, irrespective of culture. if that isn't possible then its just subjective and subject to change based on simple subjective reasons.In the following comment, Robert Cooper said:
I think I have to agree with the bear. Applying the techniques of science like logical analysis does not make something a science. Theologians can very carefully and methodically study the genealogies in the Bible and calculate the age of the Earth, but that doesn't make it a science. It's good and commendable that British judges apply intellectual rigor to determining common law, but if I can't do an experiment to test what they come up with, then science it is not.
I am glad to respond here to those comments.
The predictive powers of law
One of the greatest triumphs of science is its predictive powers. For any well-defined set of conditions, the application of well-defined procedures will produce a highly predictable outcome. Mathematics, physics, chemistry and law can do that. Astrology can't.
Most people working in the ordinarily accepted fields of science might intuitively reject the idea that law may have the predictive powers of a science. They may ask: how can you predict the outcome of a trial? That is the wrong question. The right question is: how can you predict the legal consequences of an action or inaction? I shall let Oliver Wendell Holmes, Jr. answer that question for me.
Oliver Wendell Holmes, Jr.
Image courtesy Wikipedia.
People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.
The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. The process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. The reason why a lawyer does not mention that his client wore a white hat when he made a contract, while Mrs. Quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. It is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.
The Path of the Law, Oliver Wendell Holmes, Jr.
10 HARVARD LAW REVIEW 457 (1897)
Legal hindcasting.
It should be possible in this digital age to put every recorded common law judgement in a public database. Analyses of that database would show where similar facts led to similar outcomes. Now suppose the analyses to end in, say, 1960. If a valid rule of legal application has been discovered then it should be capable of "predicting" the outcome of all later similar fact cases. Such "legal hindcasting" would refine our perceptions of what constitutes a clear legal rule and would improve our ability to forecast the results of the application of one or more established legal rules, always providing that the correct procedures are followed with meticulous care.
The Scales of Justice
Given clear rules of law and clear rules of procedure we have the essentials of a science. Now, in science, a finding can be of no scientific value if there is any inaccuracy of measurement or some contamination of materials. In law, procedure is contaminated if any extraneous matter is allowed to intrude into a trial of fact. For example, if a man is on trial for shoplifting, should the jury be told that he is 'of no fixed abode'? If so, why? As to the giving of 'fair measure' in law, I will say only this: the scales of justice cannot give true results if they are biased. Before we accept the validity of the outcome of any trial, we must be satisfied that no person whatsoever had rested their thumb on the scales of justice.
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