The time frame problem: the law, social construction, and the sciences

Abstract

Among our official noblest virtues are truth and justice. In the sciences, officially, truth overrides every other virtue. In the law, officially, justice likewise overrides. That is neither to deny that justice should be tempered by mercy, nor that truth should be qualified by wisdom. Any discussion of law and the sciences is potentially high philosophy, the meeting ground of truth and justice. But there are also more practical concerns. How should scientific information and advice be used in the law courts? There is now a rather staid but thoroughly solid assessment of the current state of play in the United States Federal Court systems, Foster and Huber’s(1997) Judging Science: Scientific Knowledge and the Federal Courts. Far more challenging to the philosopher, the scientist and the student of jurisprudence is Sheila Jasanoff’s(1995) Science at the Bar because she enters current debates as a professed social constructionist, with a distinguished career of investigating science and public policy (Jasanoff, 1986, Jasanoff, 1990).

Notes

1 This is a revised form of a contribution to an “author meets critics” session on October 29, 1998, at the annual meeting of the Society for Social Studies of Science, held in Halifax, Nova Scotia. I am grateful to Professor Jasanoff and other participants for comments.

2 Jasanoff writes: Practicing attorneys as well as academic interpreters of Daubert tried in the meantime to read their own constructions of what science is back into the actual opinion: (Janasoff 1995, 65. All references in these notes are from this book.) If this sentence has a clear meaning, then it uses the word “constructions” in the sense of “construals.” In support of this reading, we note that the word is paired with the word “interpreters” earlier in the sentence. It is confirmed later in the paragraph when the construction is redescribed as “the image of science presented.” In short: “construction of what science is” seems to be a rather awkward way of referring to an account of what science is, or an opinion about what science is. If we had to use a “const-” word, it should be “construals” of what science is, and not “constructions.”

3 Take a single page-long section, headed “The Deconstruction of Adversary Science.” (p. 51) Does this heading mean what it sounds like, that we are about to have a deconstruction, in lit-crit terms, of adversary science? Or does it refer to deconstructions effected by adversary science? We can make out two distinct things in this section. First, we are told that “the sociology of scientific knowledge teaches that the authority of scientific claims derives … from the certification of claims through a multitude of informal, often invisible, negotiations among members of relevant disciplines.” This could well point to a (lit-crit) deconstruction of a claim for the authority of the sciences on the basis that they are disciplines that aim solely at telling the truth. Some may say, by way of shorthand, that science itself is being deconstructed. Note that this is certainly not an inverse of the use of the word “construction” in the construal passage I quoted in note 2, where an attorney’s construction of what science is means no more and no less than the attorney’s opinion of what science is. The words “construction” and “deconstruction” are working in entirely different spheres; the word “deconstruction” is working in the sphere spun off from Derrida, and the word “construction” is working, awkwardly in my opinion, in a sphere that derives from a legal conception of construal. But then there is another use of the verb, “to deconstruct”, in the very same section. Jasanoff writes that: Studies of U. S. regulatory proceedings have documented that scientific claims are inevitably deconstructed, disclosing areas of uncertainty and interpretive conflict, when evidence is developed in accordance with adversarial procedures. (p. 52) She goes on to discuss DNA fingerprinting (technically, DNA typing). She writes about what “led lawyers and members of the scientific community to deconstruct the consensus that had passed unchallenged in the early DNA fingerprinting cases. The process of deconstruction was set in motion … ” (p. 56–57). What she is referring to is not Derrida-style deconstruction at all. There were rather boring but consequential exposes of laboratory incompetence. There was also what interests the logician, an error in inference. In the early days one said, in effect, the probability that this blood sample is from someone other than the accused is zilch, where “zilch” denotes some ludicrously low probability. The number zilch was derived from a the reference class of all humans, or all Americans, or all American Caucasians, or whatever. But then people like Richard Lewontin observed that most killers live within a block of the victim. Hence in many murder trials the reference class is folks in the block, who tend to be related (further technical facts about the actual bits of DNA examined are also relevant in the light of this thought.) I find it very unhelpful to call this deconstructing the consensus. What is a clearer description? That Lewontin pointed out an error in inductive logic. Lewontin showed that certain inferences were wrong. Other experts showed that certain laboratory techniques were defective. This has nothing to do with undermining an ideology of scientific authority, which is perhaps deconstruction in the spirit of Derrida. It turns out that, aside from my first quotation above, virtually everywhere that Jasanoff uses the word “deconstruction,” she means nothing more nor less than showing that a claim or inference based upon scientific work or reasoning was wrong. Notice the absolute difference from a Derrida-type deconstruction of science, viz. of the authority of science. That would undermine our very attitude to science, but it would not show that individual scientific claims of scientists are false. It would show that there is a pernicious ideology of scientific authority to be undermined. Except on rare (one?) occasions in Jasanoff’s book, deconstructing a scientific fact turns out to mean refuting the claim that so and so is a fact. Refuting is so much clearer a word, here, than deconstructing! Nowhere does Jasanoff explain her use of the word “deconstruction”—almost as if she hoped to use the cachet which the word has, for some audiences (not lawyers or scientists!), in its quite different lit-crit usage. Some years ago, in a first sketch of her future work for Science at the Bar she did in fact tell us what she meant: “For sociologists of science, deconstruction means nothing more arcane than the pulling apart of socially constructed facts during a controversy” (Jasanoff 1992, p. 348). This can’t be true of all or even most sociologists of science, as witness Barnes, Bloor, and Henry (1996) quoted above. And, in fact, she plainly does not use the word in exactly that sense when she writes “deconstruct the law’s own conceptions of science and expertise” (p. 214), for here it is a conception, and not a fact that is deconstructed. Far more importantly, Lewontin did not just “take apart” a certain inference about DNA typing. I myself take statistical and inductive inferences apart all the time, in my introductory course, Probability and Inductive Logic. I take them apart and I analyze them, so that students can understand the inferences, and tell which are sound, and which are unsound. Lewontin did more than take apart, namely analyze, an inference; he showed that it was fallacious. Likewise, critics of certain laboratory procedures did not just take apart, or analyze, the facts that had been submitted in court (one could do that, and leave untouched the conviction that they were facts), but positively showed these submissions not to be facts at all. So my point is threefold: (1) In her book, unlike her article, Jasanoff does not say what she mans by “deconstruct.” (2) The usage stated in her earlier article is not one to be recommended. (3) She uses the word in a way that is stronger than stated in her article, namely to refute, rather than to take apart or analyze. She seems also to use “deconstruct” to mean merely criticize, as in “the law’s internal deconstructive mechanisms (legal criticism and testing)” (p. 163).