Law and Order; Science and Literature

My last post opens the door to some interesting problems and questions, all of which extend far beyond my initial project of counseling the interested incoming law student.

There are the big, obvious ones: What is the nature of law? The nature of science? The nature of art? In each case, are we talking about what we are studying (as in: “science studies what is real”)? Or are we talking about how we are studying it? (as in: “science uses the scientific method”)? The bits in quotation marks are my made-up placeholders; I’m not trying to quote anyone. And these particular placeholders aren’t necessarily exclusive of one another. As with many things, the answer may be both, or neither, or all (if there are more than two options), or none. For what it’s worth, I think that science — both in its objects or its methods — isn’t purely descriptive, and law isn’t purely normative. There is normativity in science (and in art) and descriptiveness in law (and art, too). Science, art, and law aren’t exclusive domains. Their subjects and methods overlap. (For an interesting recent application of a similar point, read this by Susan Crawford.) As a lawyer with interests in all three areas, I tend to take that premise for granted, but it’s worth making it explicit from time to time. “Law,” whatever that is, isn’t “more like” science or “more like” the humanities (whatever each of those are); it draws on both, and other things, all the time.

There are more subtle issues lurking, which (today, at least) concern the minefields of concepts and language that anyone who wants to talk about these things has to navigate. When I started posting about the roles of science and art in law, I wasn’t thinking about objects of study (found v. made, for example) or methods of analysis (“the scientific method” or “the case method,” for example). I was thinking about “ways of thinking about the world.” That’s a hard thing to describe, and inevitably, descriptions get caught up in other topics. Seth, in the Comments, pointed out that I used the word “order” in a way that is inconsistent with how he, coming from the science community, hears and uses that word. We non-scientists are prone to misusing scientific terms of art — particularly when we’re not using them as terms of art. The same thing happens to non-lawyers who trip inadvertently over legal terminology. We should be careful to give language just the respect that it deserves, and no more. Moreover, language problems intersect with biases and shoulder-chips of various sorts. I suspect that as I’ve held science and art up to the light of the law (or held law up to the lights of science and art), some might think that I haven’t respected the artistic and imaginative sensibilities of the best scientists. Or — at the opposite end of the spectrum — that I haven’t done justice to the disciplinary rigor of the best artists. That I’ve given insufficient attention to the internal logic of the law. Or to a variety of other considerations, some of which emerge (or will emerge, perhaps) in the Comments.

All true, I think, at least in a sense. It is inevitably so. Can we have interdisciplinary conversations — about theory, about policy — without running those risks?

Enough provocation for today. I’ll get back to more mundane topics shortly.