Monday, 21 May 2012

Law and science

There is a new field in the Dutch legal scene called ‘civilology’. In a notation of a recent case by the higher appeal court (Hoge Raad), Vranken wrote about this new version of civil law (NJ 2012,182-184). In the NJB (the Dutch Legal Journal), Hartlief describes this notation and he has a few questions.

The example given by Hartlief is of a truck that hit a child playing by a heap of sand. It drove forward a bit and then backed up, seriously wounding the child. The lower court ruled that the driver is not liable because he should not have needed to pay attention to the child; the driver could have reasonably thought that a child would stay far away from such a large and dangerous truck. The higher court disagreed and considered that children are highly unpredictable and that such a large truck would have attracted their attention.

Civilology would roll its eyes at both rulings, muttering ‘merely hypotheses’ before finding an actual answer using the results of empirical sciences. Looking through psychology and biology journals probably will not let you find an article written specifically to test the attractiveness of large trucks on children, but there will be articles with the most accurate information about children’s behavior. The limits mentioned by Hartlief include that those fields of study are not writing articles while thinking about the problems of civil law (they have different priorities), and that the civiloligist needs to be always wary of the quality and relevance of the science.

The questions being asked are whether this is a good thing. I will say, unapologetically, that this is possibly the best thing that has ever happened to the legal system since criminology. At the moment judges make an informed guess. How improved would their decisions be if they would actually based on, you know, that trivial thing called reality?

It reminds of a recent article in the Advocatenblad (Advocate’s Journal) where a lawyer wrote an article meant to scientifically discuss the effects of (prison) punishments. He described the criminology view (based on actual science) and then made up an alternative hypothesis on the spot, acting like he had thusly debunked the entire argument. This is of course not how the empirical debate works and it illustrates the reason why I often sigh and roll my eyes when the study of law is called a science.

There are a few ground rules. If you can use any evidence to prove your hypothesis, it is not science. If you can use your hypothesis to explain any evidence, it is not science. These are among the principles that really ought to be taught to anyone who cares about the truth. Imagining the answer is easy, actually finding it is hard. Civilology is a great step to getting where we should be.

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