posted by Frank Pasquale
Ever wonder why Richard Posner has gotten so interested in pragmatism? Well, James R. Hackney’s book Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity suggests that he’s right to be looking for a post-scientific discourse for the style of law & economics he advances. Here’s an abstract of Hackney’s work:
The current dominant strand of legal economic theory is what is commonly referred to as law and economics (but more appropriately labeled “law and neoclassical economics”). [This movement] gained its claim to objectivity based on the philosophical premises of logical positivism and the analytic philosophy movement generally. . . . In understanding the claim of objectivity in the law and neoclassical economics movement and why that claim can no longer be sustained (in part due to new conceptions of science and developments in philosophy) it is crucial that legal-academics have a fuller understanding of developments in science and how they shape our general cultural ethos.
Hackney synthesizes a wide variety of CLS and socio-economic critiques to show how “law and economics often cloaks ideological determinations—particularly regarding the distribution of wealth—under the cover of science.” Toward the end of the book he tentatively points a way forward for the discipline, urging greater humility about theoretical claims and greater reliance on empirical work. In other words, the cure for scientism is genuine science.
I have some sympathy with this perspective, and new awareness of “uniformity costs” in both law and legal scholarship backs up Hackney’s position. But the problem of “scientism” may extend beyond law and neoclassical economics…
For example, consider this claim by Julie Cohen in her extraordinarily illuminating article Creativity and Culture in Copyright Theory:
[T]he purported advantage of rights theories and economic theories is neither precisely that they are normative nor precisely that they are scientific, but that they do normative work in a scientific way. Their normative heft derives from a small number of formal principles and purports to concern questions that are a step or two removed from the particular question of policy to be decided. . . . These theories manifest a quasi-scientific neutrality as to copyright law that consists precisely in the high degree of abstraction with which they facilitate thinking about processes of cultural transmission.
Cohen notes “copyright scholars’ aversion to the complexities of cultural theory, which persistently violates those principles.” But she feels they should embrace it, given that it offers “account[s] of the nature and development of knowledge that [are] both far more robust and far more nuanced than anything that liberal political philosophy has to offer. . . . [particularly in understanding] how existing knowledge systems have evolved, and how they are encoded and enforced.”
I think Cohen’s observations here are relevant to many areas of legal scholarship. Good work need not be measured by the degree to which it mirrors experiment in the natural sciences. . . . or the degree to which it “do[es] normative work in a scientific way.” Sometimes the effort to emphasize “questions that are a step or two removed from the particular question of policy to be decided” amounts to little more than a Kabuki dance designed to give the appearance of engaging with one’s critics. Sometimes abstraction obscures the practical consequences of decisions easily justified sub species aeternitatis. I plan to show that idea a little more concretely in some posts on legal scholarship’s engagement with the idea of positional goods later this week.