Legal Commentary

As my last entry in this series, I want to address the Hilary Putnam point Rick Hills has raised, and then, finally, I will move on to subjects that really matter, like Angelina Jolie's babies.  (The question is whether the Hume dictum on is and ought has since been called into question.)

This is really an issue of the philosophy of science, something I'm told is far more interesting to philosophers than scientists.   James Watson spoke to the issue briefly:  "In England,if not everywhere, most botanists and zoologists were a muddled lot.  Not even the possession of University Chairs gave many the assurance to do clean science; some actually wasted their efforts on useless polemics about the origin of life or how we know that a scientific fact is really correct."  The Double Helix, at 53 (my emphasis).) 

What I'm about to write may therefore be doubly a waste of time:  (a) it's about the issue Watson derides; and (b) I haven't read Putnam, but I've read an interpretation of Putnam on this issue.  But this is a blog post, so what the hell?  If I'm wrong, somebody will call me an ignorant cretin in the comments, and Dan Markel will have to step in to rescue me.

One of the great mysteries, still, as Daniel Goldberg noted in a comment to Rick's post, is the source of the scientist's hypothesis (see Hempel, Popper, and others, like Mark Turner and Mark Johnson, who write on categories, analogies, and metaphors).  [All unrepentant Humeans should stop here.]  You have to be able to imagine, by way of your reason, a different explanation of the relationship between objects to hypothesize, and the hypothesis is valid if it comports with experience.  What Putnam said, as I understand it (and here I'm quoting a 1993 law review article by Stephen Ball), ?the so-called ?objective facts? of science are infused with ?cognitive values? (e.g., theoretical simplicity, coherence, etc.) pertaining to practical human interests in scientific theorizing, and others refer similarly to ?pragmatic? or ?epistemic? values or ?virtues? connecting to the explanatory, predictive, or problem-solving, etc., functions of science.?  Or to put it another way, analytic knowledge, like "that is a billiard ball" may be objective, but science is infused with theory, theory is infused with something that might not be objective and may well be value laden, so let's not hop on the dichotomy too quickly. (Ball: ?Putnam?s most recent formulation of scientific ?realism? denies not that there is a theory-independent reality, but only that there is one uniquely correct theoretical ?description? or ?version? of it.?)

Let's look at physical science. Take DNA, but we could talk about relativity, for example, as well. When James Watson met Francis Crick, nobody knew how the genetic code was transmitted.  Some scientists thought genes were protein molecules.  But a bacteriologist named O.T. Avery did an experiment taking pure DNA from one bacterium to another, and in doing so transferred hereditary traits.  So most scientists thought DNA was the answer, but they didn't know why or how.  Maurice Wilkins and Rosalind Franklin had x-ray pictures of DNA, but Franklin didn't think they supported a helical structure.  The point is that the double helix structure with sugar-phosphate backbones and A, T, C, and G bases in the middle is a theory (and one that is now time and experiment tested) about the relation of physical objects to each other.  As Watson noted, their work began with "the belief that the truth, once found, would be simple as well as pretty."  Not only do we have anecdotal evidence that cognitive values infuse the theorizing, but we have the same infinite regress or recursive loop we noted in prior posts:  even our meta-theorizing is subject to those cognitive values, so where does it end?

I defer to others who know Putnam's work, but it strikes me that his critique is more of objectivity in "is" than subjectivity in the "ought."   Ball's point is that moral relativists would like to use Putnam?s point about the infusion of cognitive ?values? to suggest there is no objectivity in physical science; a fortiori, how could there be objectivity in moral philosophy?  That latter point, it seems to me, is a corruption of the original debate - Kant and Hume agreed on the fact of an objectively real world, and despite the unresolvable questions at the far reaches of quantum physics, I don't plan on driving my car into a brick wall at sixty miles an hour to show they were wrong.   So the rest of that argument is lost on me.

But if the "objectivity" of synthetic propositions in physical science is infused by human values, how much more is this the case when we are dealing with social science?  Put aside the question whether there is an objective moral or legal "ought." (Leiter has a whole book of essays about it).   Social science itself (so styled) is less than two centuries old, and still figuring out how to distinguish the descriptive from the normative. Law, in particular, as social science is less than fifty years old, and even more schizophrenic.  We debate not only what contract law ought to do, but what it in fact does!   Here we come back to the question I raised in Part I of the series:  how many superdelegates does it take to screw in a lightbulb?   No, seriously, folks, how many delegates does it take to nominate a Democratic presidential candidate?  The following is clearly not an "ought" statement, but it's also not an analytic truth:  "It takes 2,118 votes at the Democratic National Convention to win the party's nomination."  Indeed, this is a synthetic a posteriori proposition of fact, and even with Senator Clinton ready to endorse Senator Obama, I suspect there's somebody in the Clinton camp who'd like to contest it.

The real problem in "is" and "ought" for lawyers or social scientists is that it is indeed really hard to untangle normative propositions from ones that are descriptive and synthetic.  Lawyers are trained to present evidence designed to support hypotheses about a possible past or future state of the world.  Sometimes the distinction is pretty easy.  I'm not quite sure how either normative or cognitive values impacted the objectivity of the theory and experimental evidence of DNA, nor how they might impact the proposition "the light was red when the defendant went through the intersection."  As Larry Solum points out in his discussion of the fact-value distinction, it gets murkier as we proceed to propositions like "merging Staples with Office Depot violates Section 7 of the Clayton Act" or "the directors of Yahoo violated their fiduciary duties to the shareholders in not agreeing to the Microsoft offer at $33 per share."  And it's only interesting to philosophers when we get to questions like "is the standard of living in Iraq better now than it was in 2000?" or "is Jeff an ignorant cretin?"

The is-ought and fact-value distinctions still have traction, and are pretty clear at the extremes of physical science theory and moral choice.  Most of law and legal scholarship (and, indeed, social science) sits in the middle of debatable synthetic propositions so it's a lot tougher.  Except when we assert "Jeff is an ignorant cretin," on which all right-thinking people can agree as a matter of fact and value.