Scientists Manques?
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.
May 3, 2007 at 10:24 am
Posted in: Behavioral Law and Economics, Economic Analysis of Law, Empirical Analysis of Law, Philosophy of Social Science, Sociology of Law
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Responses (4)
greglas - May 3, 2007 at 1:13 pm
Great post, Frank — and I’m looking forward to your ideas on positional goods.
Daniel Goldberg - May 4, 2007 at 4:06 pm
Hey Frank,
I sent a trackback but just wanted to let you know my thoughts on this post are here:
http://www.medhumanities.org/2007/05/on_scientism.html
Patrick S. O'Donnell - May 4, 2007 at 6:03 pm
The following list is from a larger compilation on the philosophy of science. I share several of Daniel’s concerns and for some time now have been interested in questions surrounding the nature and methods of the natural and social sciences and the seductions of scientism. I’ve left out classical works by Nagel, Hempel, Lakatos, Kuhn, and the like and of course there’s no one viewpoint represented by these titles, but they should help one to gain some measure of clarity on the subject broached by Frank and further discussed by Daniel (without implying either one would endorse all the titles here or that we are all in agreement on identifiying the locus (or loci) of the problem(s), let alone on possible answers or solutions).
Barbour, Ian G. Myths, Models, and Paradigms. New York: Harper & Row, 1974.
Brown, Theodore L. Making Truth: Metaphor in Science. Urbana, IL: University of Illinois Press, 2003.
Cartwright, Nancy. The Dappled World: A Study of the Boundaries of Science. Cambridge, UK: Cambridge University Press, 1999.
Cartwright, Nancy. How the Laws of Physics Lie. Oxford, UK: Oxford University Press, 1983.
Cohen, I. Bernard. Interactions: Some Contacts Between the Natural Sciences and the Social Sciences. Cambridge, MA: MIT Press, 1994.
Dupré, John. Human Nature and the Limits of Science. Oxford, UK: Clarendon Press, 2001.
Elster, Jon. Nuts and Bolts for the Social Sciences. Cambridge, UK: Cambridge University Press, 1989.
Fuller, Steve. The Governance of Science. Philadelphia, PA: Open University Press, 2000.
Fuller, Steve. Philosophy of Science and Its Discontents. New York: The Guilford Press, Second ed., 1993.
Fuller, Steve. Science. Minneapolis, MN: University of Minnesota Press, 1997.
Fuller, Steve. Social Epistemology. Bloomington, IN: University of Indiana Press, 1988.
Giere, Ronald N. Science without Laws. Chicago, IL: University of Chicago Press, 1999.
Goldman, Alvin. Knowledge in a Social World. New York: Oxford University Press, 1999.
Hallyn, Fernand, ed. Metaphor and Analogy in the Sciences. Dordrecht: Kluwer Academic Publ., 2000.
Hesse, Mary. Revolutions and Reconstructions in the Philosophy of Science. Bloomington, IN: Indiana University Press, 1980.
Keller, Evelyn Fox. Making Sense of Life: Explaining Biological Development with Models, Metaphors, and Machines. Cambridge, MA: Harvard University Press, 2002.
Kincaid, Harold. Philosophical Foundations of the Social Sciences. Cambridge, UK: Cambridge University Press, 1996.
Kitcher, Philip. The Advancement of Science: Science without Legend, Objectivity without Illusions. Oxford, UK: Oxford University Press, 1993.
Kitcher, Philip. In Mendel’s Mirror: Philosophical Reflections on Biology. New York: Oxford University Press, 2003.
Kitcher, Philip. Science, Truth, and Democracy. Oxford, UK: Oxford University Press, 2001.
Kitcher, Philip. Vaulting Ambition: Sociobiology and the Quest for Human Nature. Cambridge, MA: MIT Press, 1985.
Lewontin, Richard. Biology as Ideology. New York: HarperPerennial, 1991.
Lewontin, Richard. It Ain’t Necessarily So: The Dream of the Human Genome and Other Illusions. New York: New York Review Books, 2000.
Longino, Helen E. The Fate of Knowledge. Princeton, NJ: Princeton University Press, 2002.
Longino, Helen E. Science as Social Knowledge: Values and Objectivity in Scientific Inquiry. Princeton, NJ: Princeton University Press, 1990.
McCloskey, Donald N. Knowledge and Persuasion in Economics. Cambridge, UK: Cambridge University Press, 1994.
Miller, Richard W. Fact and Method: Explanation, Confirmation and Reality in the Natural and Social Sciences. Princeton, NJ: Princeton University Press, 1987.
Mirowski, Philip. Machine Dreams: Economics Becomes a Cyborg Science. Cambridge, UK: Cambridge University Press, 2002.
Newell, R.W. Objectivity, Empiricism and Truth. London: Routledge & Kegan Paul, 1986.
Rescher, Nicholas. The Limits of Science. Berkeley, CA: University of California Press, 1984.
Rescher, Nicholas. Nature and Understanding: The Metaphysics and Method of Science. Oxford, UK: Clarendon Press, 2000.
Shapiro, Ian. The Flight from Reality in the Human Sciences. Princeton, NJ: Princeton University Press, 2005.
Toulmin, Stephen. Foresight & Understanding: An Inquiry into the Aims of Science. New York: Harpercollins, 1980.
van Fraassen, Bas C. The Empirical Stance. New Haven, CT: Yale University Press, 2002.
Ziman, John. Real Science: What It Is, and What It Means. Cambridge, UK: Cambridge University Press, 2000.
And two important articles by John D. Norton, both of which should be available at his webpage in the Dept. of History and Philosophy of Science at the University of Pittsburgh: ‘A Material Theory of Induction’ (2003), and ‘A Little Survey of Induction, (2003).
The Oracle of Syracuse - October 2, 2008 at 1:36 pm
I find the use of critical legal studies to show how an ostensibly objective school of legal thought is in reality a “cloak” for hidden “ideological determinations” to be deeply ironic to the point of self-parody.
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