The New Scientism in Legal Scholarship: A Comment on Clark and Posner, in Symposium:

Abstract

Professor Clark's paper is surely the most self-consciously scientific of those delivered at the symposium. In aspiration it resembles the work of Professor Posner, who is famous for his contributions to the scientific study of the legal system. The approach of these scholars exemplifies a growing adoption of the scientific style in legal scholarship. Although social scientists have occasionally addressed subjects relating to the law, their interest in the legal system typically has been tangential. In contrast, this modem legal scholarship boldly attempts a comprehensive examination of the institutions of the law with the methods of the sciences. Most prominent is the work of what is now a substantial group of scholars, led by Professor Posner, who contend that the universe of common law rules exhibits a single scientific regularity: the rules are, in the terms of economics, efficient. Professor Clark's charge to us is equally ambitious. He would have us examine the development over time of all legal doctrines in terms of the biological process of evolution. The attraction of the scientific method, of course, is the seeming precision and power that it brings to analysis of the legal system. Scientific propositions, as Professor Clark frequently informs us, are "testable." They can be confirmed or refuted, unlike the invocation of (often personal) values that is characteristic of ordinary legal scholarship. Science offers the legal world the possibility of consensus once "general laws of [legal] change" are discovered. In this Comment I argue that the contribution of this modem work to our understanding of the legal system is greatly exaggerated. A very large proportion of this work is scientistic and, in essence, alien to the sciences from which it seems to derive. More generally, I believe, the aim to construct a comprehensive theory of legal doctrines—whether economic or biological—represents, in our present state of knowledge, a perversion of the scientific enterprise. In this respect, the scientific methods of Professors Clark and Posner are similar and bear closer examination.