ABSTRACT
When the United States entered World War I, a great American chemist of the time wrote to President Wilson offering his services as a scientist. Wilson turned the letter over to his Secretary of War, who replied, “Thank you very much, but the Army already has a chemist.”1 Perhaps one day someone will call attention to the circumstance that a half-century later American Schools of Law were saying, “Thank you very much, we already have a behavioral scientist.” That the behavioral sciences are relevant both to the substance of law and to its method was recognized long ago in the profession itself. Sir Henry Maine, in his classical treatise on ancient law, commented, “The inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption.”2 Historians of science estimate that the practice of medicine did more harm than good until almost the beginning of the present century. Only medical research at last reversed the effect, and at an accelerated pace. If assumption continues to take the place of observation in law and in politics, the ratio of good to harm may remain questionable there as well. To speak of science is to speak of an empirical approach, one which looks forward to consequences rather than backward to principles. The empirical approach contrasts with the bookishness that is characteristic of what is called “research” in law. Empiricism here implies turning from law-books to their primary subject matter – conflicts and agreements among people. We can learn to understand that subject matter only by dealing with it directly and in its own terms, or by absorbing what has been learned by those who do deal with it directly. “A lawyer who has not studied economics and sociology,” said Justice Louis Brandeis, “is very apt to become a public enemy.”3 That the behavioral sciences have had so little impact on the law is understandable. Partly it is because these disciplines are difficult of access. Either they purport to be hard-core sciences and are formulated in impenetrable mathematics, or else they present themselves as being humanistic, and are couched in impenetrable jargon or in wooly metaphors. It is not surprising that lawyers, laymen in science, are repelled all the more because of their own professionalism. To make matters worse, it is difficult for the layman to assess the scientific standing of contributions in these fields; it is difficult even for the behavioral
scientists themselves. If we ask what the specialists purport to know, we are confronted with answers ranging from those in the advice to the lovelorn columns all the way up (or down, some might say) to the latest reports of academic research projects. The attitude of the public at large to the behavioral scientist reveals something of the same credibility gap that divides the generations and alienates citizens from government. The ignorance, misunderstanding and mistrust of behavioral science are sustained by the triviality of many of its findings, and by the pretentious language in which these are so often reported. Those truths of behavioral science that are not truistic often are felt to be dangerous. They are perceived as only adding to the ability of the power structure to manipulate people, engineering consent so as to maintain the Establishment. In this perspective, behavioral science is contemptible in its failures and evil in its successes. To the popular mind, as to Plato’s, “science” implies certainty, while the conclusions of behavioral sciences are as far from being certain as anything that can still claim to be knowledge. Long after Plato, we have at last come to understand that “probabilism” in principle characterizes even the most exact sciences. The capacity to be guided by no more than probabilities is a mark of the scientific temper. The quest for certainty is more likely to signify emotional immaturity than philosophical aspiration. Such immaturity underlies much of the hostility against the behavioral sciences, which refuse to give simple and assured solutions to life’s problems. The same immaturity might also underlie the exaggerated claims sometimes made for particular theories or findings in behavioral science. Most behavioral science is far from maximizing its relevance to the problems with which law is concerned. The responsibility for this gap does not lie wholly with the behavioral sciences. The military, government and industry sponsor a good deal of scientific research to help with their problems. The law much less often directs behavioral inquiries to areas of immediate importance to it. The task is also to make good use of what becomes available. This is a failing of political practice in general, not only of law. There are many institutes for strategic studies, for example, but for the most part they are only indirectly involved, at best, in the making of political decisions. This contrasts notably with the relations between, say, biological research and medicine, physics and engineering, psychology and education, and even economics and management. Politics, like religion and child-rearing, is notoriously a domain in which everyone has an opinion and is sure that this opinion is right. The more difficult the questions, the more confident people are that they know the answers.
