Occult Scientists vs. Scholastic Doctors

DeTocqueville vs. Blackstone on Anglo-American law

|The Volokh Conspiracy |

From Alexis deTocqueville, Democracy in America:

Nothing could be more obscure and out of reach of the common man than a law founded on precedent….A French lawyer is just a man of learning, but an English or an American one is somewhat like the Egyptian priests, being, as they were, the only interpreters of an occult science.

From Sir William Blackstone, Commentaries on the Laws of England:

The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration. I may instance in the civil law: the text whereof, as collected by Justinian and his agents, is extremely voluminous and diffuse; but the idle comments, obscure glosses, and jarring interpretations grafted thereupon by the learned jurists, are literally without number. And these glosses, which are mere private opinions of scholastic doctors (and not, like our books of reports, judicial determinations of the court) are all of authority sufficient to be vouched and relied on; which must needs breed great distraction and confusion in their tribunals.

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  1. There was a recent post by Donald Boudreaux on Cafe Hayek regarding his experience in earning a J.D. and drawing comparisons between law and economics as academic areas. His perception was that far too much of law school was devoted to “Law by Design”, a top-down approach in which law was “given” to us by our “betters”, the legislators. I posted a comment on that post to the effect that his experience did not match my own, that my law school education, especially in the common law classes, like property, contracts, torts, and the law merchant, law was developed in a process of trial and error, an effort to discover the rules of law which best served the society in which it developed – a “spontaneous development of order” rule of law. Even in those classes which focused on written codes, like the UCC, that code was not created by the commission on uniform state laws in a vacuum, it was largely a codification of majority rules developed by common law in a situation where variations arose because of multiple sovereigns and multiple independent court systems; the UCC was not really a “top-down” law given us by legislators. The different accounts given by De Toqueville and Blackstone seem to mirror the differences between “Law by Design” and “Law by Trial and Error.”

  2. I don’t have the background or time to research, but it would appear there is some basic differences between in methodology of science and doctors.

    While both use the “scientific method” of trial and error, scientists are free to raise their own questions, while doctors are compelled to answer questions to solve problems as they occur.

    Science, properly understood, is based on the best data we have the ability, in the same way law is based on facts.

    1. I would say suspect this is why people refer to each state as an experiment in the laboratory of the US. This might be true enough for economics, but for movement politics, quite sadly, no way.

    2. Alexis deTocqueville, and to an extent the OP, think that jurisprudence is mechanical. That is, you put into the machine the facts, crank the level of the law, and you get a coherent result based on both the law and precedent. This is not the case. When you think of the scientific method being applied to law, the mechanical jurisprudence idea makes sense. However, because the policy preferences of judges affect the outcome (imagine if a scientist could twist the laws of chemistry to turn lead into gold) we can never get mechanical jurisprudence in any case of salience.

      1. Your mistake is that the scientific method is not mechanical. While law/medicine are more prone to be 2 steps forward, 1 step back, and science lockstep forward, it is still generally similar.

        Rough Outline for example:

        Step 1:. Client asks professional for help. Professional takes on responsibility.
        Step 2:. Professional searches history of cases to determine best course of action for client.
        Step 3:. If a “classic case” or related cases are not found, an additional amount of reasoning and judgement would need to be brought to bear. Here is where exists the wiggle room for personal bias.
        Step 4:. Client takes recommendation.
        Step 5: The case outcome (immeadiatly or over time) is observed and evaluated by the professional community.

        The method balances consistency and accuracy of outcomes, based on professional behavior of course.

      2. I’m sure some chemists have thought (and convinced others) that they turned lead into gold. The only issue was repeatability.

        Some sciences are hard (physics, chemistry), some sciences are soft (biology, psychology, etc)

        All seem to evolve in a similar process to that of law and medicine.

        1. You make a good point, in that I am thinking of “normal” science as it is defined, which looks for replication. Let’s avoid the whole paradigm shift bit.

          Now, assuming mechanical jurisprudence like the OP does, you should end up with, unless legislation changes the law, replicatable results based on certain inputs. Given your five steps, this entirely makes sense. But the whole process breaks down when the judge inputs his policy desires to change the outcome. A hypothetical AI judge would give answer X, based on inputs, but a human judge who wants a different policy outcome will come up with answer Y, and then backwash the reasoning as to how Y makes perfect logical sense. Happens all the time, and it’s how you know honest judges, when they say that they were forced to a conclusion that they didn’t want and they made it anyway, rather than re-writing the law from the bench.

          So the judge can figuratively turn lead into gold (assuming his decision is implemented, which is your step 5, which is another debate entirely). Meanwhile, while the chemist cannot turn lead into gold, no matter how much he WANTS it to happen (unlike the judge) so he moves on to try another test with different inputs.

          1. Yes, the probability the alchemist turned lead into gold becomes vashishingly small for each new experiment and experimentally supported theory which contradicts the finding. And this limiting process, by which observations consistently converge to an objective truth, (“truth”), suggests the alchemist was deluded from the start.

            1. Thank you for that further clarification.

              1. However…..

                That is not to say useful theory by a respected scientist, which happens to be wrong, doesn’t have value. Chemistry students are still taught the planetary model of atomic structure to demonstrate the importance wrong ideas can play in furthering science.

                And…
                If it glitters like gold, feels like gold, sells like gold, impresses like gold, and is buried with the deceased who never knew otherwise, was the alchemists toil in vain?

  3. I’m hopeful that with machine learning it will be easier to tie cases and precedent together, as well as recognize inconsistencies. It will also take much of the gloss off lawyering, when previous cases and close analogues can all be mapped out with ease. New situations will still call for good lawyers though.

    1. Would it be better to say, “New situations will still call for good legislation though?”

      Lawyers only work for their clients who have their own, particular interests (not saying that’s bad; it’s just lawyers don’t work for society).

      1. Not going to disagree in principle. I would only say that it is better to have a bottom up approach that came from individuals seeking to maximize their utility, than a top down legislative approach that is inevitably a product of considerable compromise, that imposes a one-size fits all solution. Provided this isn’t a tragedy of the commons type of problem.

  4. Ah ha!

    I finally see it, that same gleam in the eye when my teacher told me “in the holocause you and your bother would have been VERY special”

    🙂

    It’s a fair question, should I give my body for the greater good. I’ll have to noodle it.

    1. What?

      1. Please consider above comment deleted.

  5. The concept of civil law was troubling to me when I learned about it. Seems like a recipe for dehumanizing the law.

  6. But look at how much process the Egyptians went through.
    Much more exciting than the restatements of the law.

    https://en.m.wikipedia.org/wiki/Maat

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