This post was motivated by some recent experiences suggesting that misconceptions concerning the nature of science are more widespread than I had feared. Adding to that is the recent series of US Supreme Court decisions that, when not blatantly anti-scientific, remove regulatory judgment from the hands of technically competent agencies that are overseen by the Congressional and the Executive Branches, and place it in their own [1].
In the following I will briefly discuss attributes of science before turning to what I believe to be the growing unhealthy attitude of certain elements of the judiciary toward science. My view is that human law, though based on belief, should be in harmony with science, and should draw from it in the pursuit of justice.
Science is not based on, nor does it require, faith. Instead, it is based on observation.
A distinction between science and what I shall call philosophical endeavors, specifically including philosophy, religion, economics and politics, is that science does not call on us to accept anything based on faith, that is to say, without evidence. It does not, in other words, call upon us to believe anything. On the contrary, science is based on evidence, and moreover evidence of a particular kind: observation. The notion of science being based on observation of nature originated during the European Renaissance, in the era of Galileo, and was espoused most notably by Francis Bacon. The distillation of observations leads to the formulation of a theory, consistent with those observations. As Dirac said, ". . science is concerned only with observational things and that we can observe an object only by letting it interact with some outside influence." [2]
Scientific theories enable predictions that anyone can verify.
In the current divisive political environment, the word "theory" has come to be used in a derogatory manner, but we shall employ it here in its original sense: one or more interrelated, complementary and self-consistent statements, perhaps expressed in mathematical form, describing an aspect of Nature. Thus, for example, Newton's theory of gravitation.
The utility of a scientific theory lies in its ability to make predictions. Central to the establishment of its validity are the notions of falsifiability [3] which demands that the predictions of the theory be verifiable or refutable by experimental means, and repeatability, meaning that an independent experiment will be capable of duplicating the results. In performing experiments it is necessary to include all valid data; to arbitrarily select only data in agreement with the predictions while discarding data that are not, a practice known as "cherry picking", is not allowed.
In his chapter in the Reference Manual on Scientific Evidence [4], David Goodstein correctly asserts that scientists do not perform experiments to falsify their theories, but rather to verify them. In making that statement he neglected to mention that a scientific experiment is a scholarly exercise, in the sense explained by Timothy Snyder [5], meaning that the outcome is not known a-priori. That's where falsifiability comes in: It is possible for a well-designed and conducted experiment to fail to validate the theory.
Science is concerned with How, not Why
It is claimed [6] that this principle originated in the eighteenth century by the Scottish philosopher David Hume. To avoid traps inherent to spoken language, as illustrated by [7] it is best to illustrate this principle by example. Until the end of the 19th century the shape of blackbody spectral curves (plotting energy emitted as a function of wavelength) was a mystery. The best science of the time predicted emitted energy per unit wavelength approaching infinity for wavelengths close to zero, which everyone knew had to be wrong. Max Planck was able to reproduce the actual curve by adding the assumption that light is quantized. Planck believed this to be a mere mathematical artifact but within a few decades Einstein won his first Nobel prize for successfully modeling the photoelectric effect based on the assumption of quantization and a group of physicists, notably Schrödinger, Heisenberg and Pauli, working at Niels Bohr's institute, formulated quantum mechanics. How quantum mechanics successfully predicts a vast range of phenomena and has led to essentially all modern electronics is easily demonstrated, but Why light for instance is quantized is not answerable within physics. It is in some sense like the conversation between a parent and a curious child, the child asking a why question, then iterating it in response to each successive answer provided by the parent, until the parent's depth of knowledge or patience is exhausted. The chain of causes and effects, traced ever backward inevitably reaches a point at which the fundamental axioms are reached. Why this fundamental axiom? "Because it works" is the only legitimate answer the scientist can give. Going deeper takes one into the realm of philosophy.
It is for this reason that it is unfair to blame scientists for the misuse of their results. Science is morally agnostic, and its application is determined outside of science. The How of science needs to be coupled to the Why of ethics, or, if you will, the rules of permissible human behavior.
Mathematics is the preferred language of science.
In many scientific endeavors, such as physics and climate science, the primary language used in the expression of theories is mathematics, and it has been since the time of Galileo. This is not accidental, because mathematics is far more precise than the other common methods of human communication, and has precisely the same meaning regardless of the user's ethnicity, culture or nationality. That is not to say that written or spoken language plays no part in scientific communication; rather that the written or spoken version of a scientific expression is always subservient to the mathematical form. For example, in physics there are quantities, such as energy or angular momentum, that are said to be "conserved". (Conservation in this context has nothing whatsoever to with conservatism in politics.) If I happen to be conversing with a colleague from Tuva, I don't need to know the Tuvan word for "conserved" to convey the notion that energy is conserved; all I have to do is write dE/dt = 0 and she will know what I mean.
Our scientific descriptions of Nature are not Nature herself.
The ubiquitous use of mathematics in physics has led to an unfortunate debate, with two dominant schools of thought. The fundamental difference between them is that one side, the so-called positivists, take the position that the mathematical models that express physical theories are just tools [8], or as Einstein said, "As far as the laws of mathematics pertain to reality, they are not certain, and as far as they are certain they do not pertain to reality." As positivists, we do not confuse Nature with the mathematical models we concoct to make predictions about her. In opposition are the Platonists, who consider mathematics to have an existence independent of humanity - or any other life form, for that matter. To the best of my knowledge the leading Platonist is the Nobel laureate Roger Penrose. I suspect it is not coincidental that he also happens to be a mathematician.
To put this debate into a readily understandable context, consider the painting at the top of this post, Nollendorfplatz at night, by Lesser Ury. You might wish to contemplate the image, and write an essay describing it and your feelings about it. Were you to do so, it should be clear that no matter how lengthy and detailed the essay was, no matter how many aspects of the painting you described, you would readily admit two things: First, that the essay is not the painting; and second, that despite your great diligence there are aspects of the painting beyond your description. So it is also with mathematical models of Nature. As expressed by Magritte:
Science is incomplete
As discussed in an earlier post, mathematics itself, while the most precise form of communication developed by humans, is incomplete, meaning that there are true theorems that cannot be proved within any finite axiomatic structure. This notion of incompleteness, together with the realization that our descriptions of Nature are not Nature herself, lead to another great truth about science: It is not complete, and it is questionable whether it ever will be. One sometimes hears gratuitous objections to scientific theories, most notably in the present concerning anthropogenic climate change, on the basis that said theories are not "settled science". As science is a work in progress, it is not settle-able, and its predictions should be judged solely on the basis of experimental verification. A gimmick often used by science deniers is cherry picking, where a datum outside the range of the theory or which is not accurately predicted by the theory is given as evidence that the entire theory is wrong. In reality such a datum, if within the range of the theory's applicability, serves to illustrate the theory's imperfection, as opposed to invalidating it. Most commonly cherry pickers will fail to offer up a falsifiable alternative theory that does better than the one they criticize.
Science versus scientists.
There is science, a scholarly process, and then there are the scientists, who at this juncture at least are human. As humans, we scientists are prone to the same foibles as any other human beings, and like everybody else, need to earn our credibility and respect. There are, and will continue to be, flawed individuals among us. Part of the scientific establishment is devoted to uncovering scientific fraud (as for example through the process of peer review for scientific publications) but the community has not done well in the past in countering racism and sexism. Not unlike other professions in those regards, unfortunately.
Science and human law.
The objective of science is to provide an accurate and comprehensive description of Nature. Certain fundamental principles, strongly supported by experimental evidence, are referred to as laws of nature. Humans have laws, too, but unlike the laws of nature, they are based on belief structures and consequently vary according to the set of beliefs underlying their formulation. Succinctly: Science encodes the facts, and human laws encode the values. [9] In a harmonious world, the two are complementary. Regardless, when the laws of man and those of Nature are in conflict, Nature always wins.
In the Introduction chapter of The Reference Manual on Scientific Evidence [4], then Supreme Court Justice Stephen Breyer wrote in 1998, "in This AGE of SCIENCE, SCIENCE should EXPECT to find a warm welcome, perhaps a permanent home, in our courtrooms. The reason is a simple one. The legal disputes before us increasingly involve the principles and tools of science. " (Emphasis his.) How times have changed! While we face existential challenges posed by climate change, environmental degradation due to pollution, and ecological imbalance due to disrespect for Nature, our courts are becoming increasingly hostile to science, disregarding rather than using it in their decision processes.
The Reference Manual on Scientific Evidence [4] was prepared and published by the National Academies to help jurists understand scientific testimony. There are two problems with it. The first, as evidenced by the list of topics covered, is its lack of material concerning leading issues. For example, there is no material that would have informed the SCOTUS on the issue of underground water migration that led them to erroneously overturn a lower court ruling prohibiting development of property in the watershed of a pristine lake. Another example is the immunity of fossil fuel fired power plants for environmental damage caused by airborne or waterborne pollution migrating to adjacent states. There are more.
Having said that, we must admit the hopelessness of introducing the full scope of science at a depth appropriate to informing complex decisions in a single volume. The document is over 1000 pages long in its current state. Ongoing discussions concern including courses in ethics in graduate level science curricula; would it perhaps then be appropriate for attorneys to be required to take some science courses? I think the real solution is for the people responsible for the appointment of judges to exercise care and select only individuals with a modicum of humility and open and inquisitive minds. That places the responsibility with us, and the people we elect.
The second problem with [4], and indeed with the rules of evidence described in its second chapter, notably the key precedent cases and the rules of evidence, especially Rule 702, is that the current SCOTUS chooses to discard science, established legal procedures, and precedence in pursuit of its fundamentalist Christian agenda [10]. In effect, it no longer matters what reference material is provided or what precedence exists: The US judiciary's highest court is pursuing a policy of making up the rules to suit its own agenda, interpreting the Constitution in ever increasing bizarre ways and treating that document as a stone tablet, incapable of being interpreted according to the norms of modern times.
What we need to do to restore a proper relationship between science and law.
It seems clear that religious fundamentalism must be eliminated as the dominant element of the SCOTUS, and soon, if our democracy is to survive. We need to eschew fundamentalist candidates regardless of their particular ilk in the upcoming election and act immediately afterwards to remove the three or four Justices who have committed serious ethical breaches, replacing them with justices with religious views representative of the vast majority of Americans. In addition to applying gender and racial balance, it is proposed that there also be religious balance reflective of the population. Specifically, a nine person court should include 4 Christians, 1 each Jew, Muslim and Native religion believer, and two agnostics/atheists. This makeup is notional, and it is envisioned that there would occasionally be a Buddhist or Hindu on the court. Admittedly, this does not exactly relate to the population statistics, as the Christians and atheists are under-represented. But it is important to give voice to the minorities, while ensuring that fundamentalists of any kind can never again hijack the court. To repeat, the belief structure of the Supreme Court should mirror that of the nation as a whole.
Notes
[1] Cartels, Meghan, A Supreme Court ruling may make it harder for government agencies to use good science, Scientific American, 25 June 2024 https://www.scientificamerican.com/article/supreme-courts-chevron-deference-decision-could-make-science-based/
[2] Dirac, P.A.M., The Principles of Quantum Mechanics, 4th Edition (Oxford, 1958) p. 3
[3] Popper, Karl R., Science as Falsification, https://staff.washington.edu/lynnhank/Popper-1.pdf
[4] Federal Judicial Center, Reference Manual on Scientific Evidence, Third Edition (2011) https://www.fjc.gov/content/reference-manual-scientific-evidence-third-edition-1 was written for the benefit of scientifically illiterate members of the judiciary to ostensibly enable them to weigh the admissibility and veracity of scientific evidence in trials.
[5] Press Conference. Launch of the Ukrainian History Global Initive.
An essential element of scholarship is unpredictability; the scholar undertakes her investigation without certainty as to how it will turn out.
[6] Pearl, Judea, The Art and Science of Cause and Effect (UCLA, 1996) http://singapore.cs.ucla.edu/LECTURE/lecture_sec1b.htm The first part of the lecture is at http://singapore.cs.ucla.edu/LECTURE/lecture_sec1.htm
[7] <https://physics.stackexchange.com/questions/90164/physics-the-why-vs-how-question
[8] Hawking, Stephen and Roger Penrose, The Nature of Space and Time (Princeton, 1996) pp.3- 4 Hawking: "I take the positivist viewpoint that a physical theory is just a mathematical model and that it is meaningless to ask whether it corresponds to reality. All one can ask is that predictions should be in agreement with observation."
[9] Timothy Snyder, On Freedom (Random House, 2024) See especially the section "Rationalizing Zombies"
[10] "Christian fundamentalist" as opposed to "Christian", or even "Religious", is used in recognition of the obvious fact that it is possible to be both a believer and a good scientist. For example the Roman Catholic priest Georges Lemaître, whose exploration of Einstein's General Theory of Relativity led him to propose the Big Bang and the consequent expanding universe. If that doesn't fly in the face of the Abrahamic creation myth, what does?