Tuesday, April 1, 2014

"Law in Science and Science in Law"

That was the title of a talk Holmes gave to the New York Bar Association on January 17, 1899. He had already given a copy or the prepared talk to the Harvard Law Review, where it appeared without delay. The burden of the talk was that explanations of law in the modern world--in the dawning twentieth century--explanations should be based on historical facts, rather than the doctrines and systems of the past. Law like any other human institution changes, and to understand its present state we must known its point of origin, and the forces that continued to shape it. ctAlthough less well known than some other of his addresses, this was the founding document of "legal realism," and of Holmes's own Malthusian beliefs. Holmes was wrong about the forces that shaped society and its laws, largely because he believed the supposedly scientific, evolutionist doctrines of his day, which rested upon a fallacy, the asumption that conflict between races and classes was the force shaping society and law. Today, we call this fallacy "social darwinism" although Charles Darwin had nothing to do with it. In Holmes's day it was linked to an array of pseudo-sciences, the "scientific" anthropology that claimed to have identified criminal proclivities in the dimensions of a skull, and the "eugenic" doctrine that character traits could be bred into the people of a nation by limiting the reproduction of disfavored. These were "progressive" doctrines, but had no relation to the progressive politics of today--they were thought to be progressive because they were based on the latest, scientific thought. 
We may doubt the doctrines of social evolution, or even that progress has been made, but it does seem that we have better tools today for determining historic facts, and indeed for determining facts in general. A question does come to mind, whether we might be able to make better use of genuine scientific methods in determining what is fact, historic fact and evidentiary fact, now that DNA analysis and Bayesian probability have overturned so many of the superstitions of the past. We have evidence, if not absolute proof, that Thomas Jefferson did father Sally Hemmings' children, and we have Annette Gordon-Reed's careful and thoughtful studies of evidence and proof concerning such questions. Shouldn't we address law, in theory and practice, with modern tools of explanation and proof?