Science and Law
posted by Gerard Magliocca
During the Bush Administration, there was a lot of concern expressed about how religious faith was distorting policy judgments on issues such as stem-cell research. I think these fears were overblown (with apologies to Andrew Sullivan). What surprises me, though, is that people do not talk much about the opposite problem — how science can distort the law.
There are two reasons why this should be of concern. First, science can be . . . er . . . wrong. It is more accurate to say that science is always incomplete, but sometimes that incompleteness can be so serious that the conclusions drawn are unreliable. Second, science cannot answer ethical issues. Something could well be scientifically valid but morally wrong. Here are a few examples:
At the turn of the twentieth century, there was a broad consensus that racism was scientifically valid. This finding was used as a justification for colonialism, segregation, the denial of voting rights, and all sorts of other practices. In effect, if you supported racial equality at that time, you were an “anti-science” person making decisions based on something irrational like faith. Later, of course, this science on race was discredited.
A few decades later, many serious scientists were doing research on eugenics. This was also embraced by policymakers who derided those who fought for disabled rights as “anti-science.” Holmes was the most notable example of this attitude in his opinion in Buck v. Bell upholding the sterilization of what he called “imbeciles.” The only dissenter in Buck (without opinion) was Justice Pierce Butler. Why did he dissent? Probably because he was a devout Roman Catholic. Did that make him an irrational “theocrat,” to use the modern phrase?
This brings me to the debate about global warming. While there is no faith-based objection to doing something about climate change, the question is what level of confidence should politicians have in that science before they take significant policy decisions? I don’t have a good answer to that, though my own conversations with people who study climate change suggest that that field of study is more incomplete than most. Consider the small sample size. The Earth is billions of years old, but we only have climate data over a period of thousands or maybe tens of thousands of years.
The lesson is that caution should be exercised when wrenching changes on energy or regulatory policy are based on current scientific trends. Sometimes the “anti-science” people are right.