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Title: Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity
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| Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity by Duke University Press Insightful, important, and very well-written | Professor Hackney, who teaches torts, corporate law, and jurisprudence at Northeastern University School of Law in Boston, Massachusetts, is the author of several important articles on the relationship between law and science in legal theory. Prof. Hackney's prologue outlines the context of the project. Certain influential theorists have long used the rhetoric of science and claims of objectivity to maintain law's authority and promote their economic vision. Prof. Hackney implicitly questions these claims to objectivity. But his book does much more than that. Prof. Hackney's book examines the intellectual history of legal theory as it relates to economics and science, and draws some lessons about the future. While Prof. Hackney is particularly interested in examining claims to scientific authority in the context of accident law, his lens is much broader than that. This perceptive and wide-ranging book takes readers from U.S. legal theory before the Civil War all the way through to contemporary times. His tracing of the trajectory of legal-economic theory is an indispensable review of many influential legal thinkers both in law schools and in the courts. Its clarity makes it accessible to general readers interested in legal theory as well as legal academics and law students. In addition, Prof. Hackney insightfully links developments in science with developments in legal theory, particularly in the twentieth century. This excellent and erudite book is written in a lucid, engaging style and is an important addition to the library of anyone who is interested in the history of ideas relating to law, science, and economics.
| | Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity by Duke University Press Narrow scope, shaky historical technique | Open up a book with a title like "Economic analysis of XYZ law", and it's usually filled with graphs and differential equations. How did law come to this pass? What kind of authority are the authors "appropriating" by imitating physics and other sciences, or at least by imitating economists' imitations of those sciences? Where did the protagonists of the Law & Economics movement (L&E) come from? And most importantly, are judges really persuaded by this scientific-looking stuff?
James Hackney, Jr.'s (JH's) book aspires to be an intellectual history of the impact of legal economic thought on accident law, a branch of torts. The book's title is a barbed comment on the stance of the Chicago School of L&E, the L&E theorists that most conspicuously manifested a "quest for objectivity and scientific pretensions" (@ xiii). According to JH, Richard Posner and other Chicagoans too long pretended that there wasn't any need for L&E to address questions about the unequal distribution of income and wealth, and too long denied that they were expounding a "political philosophy." This polemical aspect of the book, expressed in a usually clear and expressive writing style that is much more comfortable to read than typical legal academic prose, is one of its more successful features. (I also tend to agree with JH's political stance vis-à-vis Judge Posner's politics.)
But since the book also aims to be an intellectual history (see Acknowledgments @ ix-xii), I was hoping to get at least a partial answer to my questions from reading it. Unfortunately, these hopes weren't fulfilled.
Partly this is my mistake: I didn't take JH's subtitle literally enough. The word "theory" really means theory. Aside from one 1905 US Supreme Court decision (Lochner v NY, which doesn't relate to accident law, BTW), you won't find any court decisions mentioned in this book. You also won't find any discussion of the role of judges, although O.W. Holmes, Judge Posner and JH's former torts professor Guido Calabresi (now also a Federal judge) are discussed in their roles as theorists. This book is mainly about controversies among law academics.
However, the book also has a number of problems with its execution as historical writing. Those will be my focus in the remainder of this rather long review. Roughly, my issues can be grouped under three main heads: (1) problematic choice of sources, (2) gaps in the chain of intellectual provenance, the "chain of intellectual title" that shows who was influenced by whom, and (3) anachronisms and other weaknesses in interpretation of sources.
1. CHOICE OF SOURCES
(A) JH relies only on a narrow selection of published works. He doesn't mention any archival research or interviews, nor is there any indication that interviews were sought but declined. Given that many of the key figures in this book are still alive, especially Posner and Calabresi, the omission of interviews in this intellectual history is surprising.
(B) The selection principle for primary sources is very unclear. E.g., after mentioning that "the principal influence" of the "analytic turn" in philosophy on legal economic theory, "can be traced to the Vienna Circle" (@81), JH proceeds to focus on a book by Oxford don A.J. Ayer, who was not a Vienna Circle member. No attempt is made to demonstrate the direct influence of this book on any L&E theorists. (To be fair, Vienna Circle member F.J. Hayek, who was an important factor in the early history of the Chicago School, is discussed later in a different context, albeit briefly and at times puzzlingly, as when a 1951 speech by Frank Knight is said "to foreshadow" Hayek's 1944 book, _The Road to Serfdom_ (@103).)
(C) Although the book proposes to analyze the impact of scientism in L&E, JH doesn't engage with a wealth of directly apposite secondary scholarship on the history of the uptake of mathematical and scientific metaphors by economics, the history of science and other pertinent topics. When I say it doesn't "engage with" them, I mean it doesn't refer to them at all, whether for support, to distinguish them or to refute them. Some of these sources include Philip Mirowski's _More Heat than Light_ (1989) and _Machine Dreams_ (2002) and Roy Weintraub's _How Economics Became a Mathematical Science_ (2002, from the same press as JH's book). Mirowski's books in particular are copiously documented and based on extensive archival research. JH also neglects the historiography of the concept of objectivity, as exemplified by T. Porter, M. Poovey, L. Daston, and others. I discuss some issues raised by these works for JH's analyses further below.
2. GAPS IN CHAIN OF PROVENANCE
To show how L&E pretended to be scientific, you need to establish at least one of these three logical chains of intellectual influence:
(i) L&E << science
(ii) L&E << law << science, or
(iii) L&E << economics << science,
where I use "X<
(iv) split of L&E -> "institutional" L&E (= Calabresi/Good Guy L&E) + Chicago L&E (= Posner/Bad Guy L&E), and
(v) how Bad Guy L&E became scientistic, while Good Guy L&E didn't.
(BTW, of course I mean "guy" in a gender neutral way; however, all the theorists discussed by JH happen to be men.) Scientism means "privileging knowledge forms deemed scientific" (@xiv; see also the comment about Posner @ 108).
JH doesn't attempt to show linkage (i), and he bases (iv) on the dyads Chicago << Coase (@105ff) and institutionalists << Pigou (@96ff, 107), so I won't discuss these further. But he does attempt to demonstrate the rest, with varying degrees of success. I will focus on (ii) and (iii), and discuss (v) in the context of each.
(A) L&E << law << science
JH takes the linkage L&E << law for granted, which seems reasonable; so let's see what he does with the anterior link, law << science. In Chapter 1, JH asserts a link between Newton and Blackstone (and an even vaguer connection between Blackstone and Leibniz). As JH misses several opportunities to connect Blackstone to later thinkers (esp. Hayek concerning natural law and liberty), I won't dwell on this. Suffice it to say that JH fails to show that Blackstone's notions of "natural law" had any direct connection to Newton's physical theories instead of other notions of "natural law" floating around at the time (Selden, Grotius, Locke, et al.). Nor, aside from a broad quote from John Dewey (@18), does JH provide evidence for his assertion that Blackstone's "axiomatic" presentation of law was based on Newton (@16). Assuming it was indeed "axiomatic," couldn't that approach have been modeled on geometry, for example? A geometry-based approach had plenty of precedent, e.g. Spinoza. Better evidence (and more contemporary with Blackstone) for the Newton connection would have been helpful. See also section 3.A of this review.
In Chapters 2, 3 and 4, JH talks about the influence of the theories of, respectively, Darwin, Einstein and quantum mechanics (QM), which have "far-reaching philosophical implications," and which "forced intellectuals to reconsider deep-seated (but often-unspoken) beliefs about ways the world works" (@ xv-xvi). How convenient that they were unspoken - that liberates JH from any need to demonstrate explicit connections between thinkers. E.g., JH connects Darwin to "an eclipse of certainty" that begets pragmatism, which begets O.W. Holmes and N. Green, with their skepticism about strict causation in tort law (@49-56). Although this may sound plausible, JH doesn't support it with any specific references to Darwin in these men's writings, correspondence, etc.
His connections from relativity and QM to law are even more Zeitgeist-y and vaguely asserted. Relativity "re-established the supremacy of the view that science is in large part deductive and determinate" (@82), and "inspired confidence in the progress of the species under the comforting umbrella of science" (@85); while QM "marked the end of the 'quest for certainty' in physics" (@125). From JH's account, we are asked to believe that relativity and QM whiplashed intellectuals' world views twice within about 10, or at most 20, years; he doesn't cite any evidence for how quickly or slowly each of these ideas diffused outside of physics per se. And as with Darwinism, JH doesn't show any direct influence of the scientific theories on the education, writing, etc. of L&E theorists. So on the linkage of science to legal theory, he is satisfied with a level of explanation about as deep as a freshman lecture course on the history of Western thought.
Does JH use science to differentiate the two main L&E schools? Yes, through the literary device of discussing "determinate" relativity in the chapter about the rise of Bad Guy L&E, and "uncertain" QM in the chapter about the rise of Good Guy L&E. That QM had been around for 35 years by the time Chicagoan Coase published his social costs essay, and for more that 45 years by the time Posner published his first book, is never mentioned, much less addressed. And even if JH had proved that each school is influenced by a different branch of physics, this wouldn't explain why Chicago L&E is fonder of "scientific trappings" than its institutional cousin. Will looking at the linkage between science and economics help us understand this?
(B) L&E << economics << science
Let's start with economics << science. In his chapter about Bad Guy L&E, JH tells us "Neoclassical economic thought ascends in an intellectual environment shaped by the philosophical implications of Einstein's theories" (@89). As far as I can tell, the most concrete case JH makes for this is that: (I) Einstein was influenced by Ernst Mach (@85), (II) the Vienna Circle was interested in Mach and Einstein (id.), (III) Hayek hung around the Vienna Circle and had studied Mach (@89), (IV) Hayek influenced neoclassical economics and the Chicago School. In other words, Einstein and Hayek had read some of the same books (maybe by German cowboy novelist Karl May too? Einstein was a fan). In fact, there is a further irony in using Hayek as a link to scientism, as mentioned below.
JH's claim for the importance of Einstein's theory for neoclassical economics (NCE) doesn't square with the research of Mirowski (1989), who exhaustively documented the explicit connections between NCE and a mid-19th Century version of thermodynamics - as in "equilibrium" and all those other notions that are taught in Econ 101. Contrary to JH's point, Mirowski's treatment of relativity theory and QM (in the context of their reducing the status of the "law" of energy conservation) shows how *divergent* the ideas of modern physics are from the formalism adopted by NCE (Mirowski 1989 @77-98). In addition, Mirowski (2002) and Weintraub (2002) document the connections between WWII operations research (OR) and the NCE program, as well as the influence of the Bourbaki school of mathematics on NCE. They don't rely on vague assertions of "intellectual environments", but on citations, correspondence, who studied with whom and who funded whom. The protagonists of Mirowski's and Weintraub's stories include Samuelson, Arrow, Debreu, and von Neumann, plus a cameo role for Milton Friedman, who was involved in OR during the war. JH doesn't mention any of these folks in his book, aside from a triple-play snide reference Friedman, Posner and Adam Smith (@140). His failure to engage with Mirowski, Weintraub and similar research, much of it put together with deep historiographical craft and scientific literacy, is a critical flaw in his account of the economics << science linkage.
Unlike the accounts of Mirowski and Weintraub, JH's story doesn't illuminate how all those graphs and differential equations - "scientific trappings" - got into economics texts, much less Posner's. In his Bad Guy chapter, the economists JH discusses at most length are Hayek, Knight and Lionel Robbins.
OK, Hayek and Knight were directly connected to the Chicago School. However, Hayek's inclusion in this context is based solely on _The Road to Serfdom_. JH doesn't include any discussion of Hayek's anti-scientism writings such as _The Counter-Revolution of Science_ (1952). (See also, P. Mirowski, "Economics, Science and Knowledge: Polanyi versus Hayek" (1998), reprinted in Mirowski, _The Effortless Economy of Science?_ (Duke U Press 2004).) Hayek actually opposed economics' reliance on the methods of the physical sciences, because such reliance ignored human purposes. Hayek's view was that economics was making a political mistake by adopting a scientific point of view. To say the least, this complicates JH's reliance on Hayek; JH's failure to engage the 1952 book or related writings once again illustrates the limitations of the Great Books (a/k/a "historically significant exemplar" @81) method of intellectual history.
As for Knght, JH attaches significance to his assertion that economics "is the only one of the social sciences which has aspired to the distinction of an exact science" (quoted @ 100). But this is just an assertion of scientific status, not evidence of "trappings". Compare JH's account to that of Mercuro & Medema (M&M) in their survey of L&E, _Economics and the Law_: "Knight's interest and strength did not lie in the use of formal mathematical and quantitative tools, but rather in the economic way of thinking" (2d ed. 2007 @ 99; JH cites to the 1st ed. of M&M, in other contexts). This makes the scientism of the Bad Guys all the more mysterious.
As for Robbins, he made similar assertions of the scientific nature of economics in his _Essay on the Nature and Significance of Economic Science_ (1931) (discussed @94ff). But what was his connection to the Chicago School? Apparently that he taught at the London School of Economics when Hayek was there - but according to JH, Hayek seems to have influenced Robbins, rather than the other way round (@ 203n64). JH makes many protestations about the importance of Robbins's book, including that one E.J. Burtt, Jr. viewed it (in 1972) as the "'clearest expression' of the twentieth-century view of economics as 'pure science' and as a 'highly influential work'"(id.). But that doesn't mean Robbins's book instantiated the science - only that it arrogated the status of science to economics. Neither M&M nor Weintraub mention this "influential work" at all.
Two years before E.J. Burtt wrote his encomium of Robbins, some Swedes wrote this about someone else: "Generally speaking, [his] contribution has been that, more than any other contemporary economist, he has contributed to raising the general analytical and methodological level in economic science." The authors were the bankers who give out what we lazy folks call the Nobel Prize in Economics, and they were describing Paul Samuelson (second person to receive it). Actually, Samuelson really did try to combine QM with economic theory, in an explicit mathematical way (see detailed description in Mirowski 1989 @ 378-386). If I could nominate an "influential work" in economics, near the top of my list would be Samuelson's introductory textbook (1st ed. 1947), which has trained generations of economists, lawyers and everyone else. But as already noted, JH is mum about him. Why? Because his politics don't fit into the Bad Guy libertarian paradigm? Because most of his work (other than about public goods) is outside the tunnel vision of L&E theorists? Maybe it's hard for them to see Samuelson's contribution because they're standing on it.
How does JH see the L&E << economics link? We have the connection of Hayek to Chicago, and a bunch of protestations by Chicago & LSE folks about economics being scientific, but anything more? Coase and Posner were at Chicago. But here is a curious thing about this intellectual history: it doesn't contain any description of the biography, education, personality or Bildung of L&E's most influential practitioner. Who put the bee in Posner's bonnet about all this economics stuff? How did he become L&E's poster boy? He didn't go to school at Chicago, so how did he wind up there? And where did Posner first learn about scientific trappings - from Samuelson's textbook, or somewhere else? We are never told. And that is a darn shame.
Maybe I'm being unfair. Couldn't "under cover of science" merely refer to the rationalizations that Posner et al. employed to pretend that they were being "objective" and apolitical? Of course. In that case, it would be enough for JH to show that Knight, Posner et al. merely asserted a scientific basis for their positions, and then to show that they weren't in fact "objective" or apolitical. But if that's all JH wanted to talk about, why drag in Newton and Einstein and all the rest?
3. ANACHRONISMS &C.
(A) Paraphrasing Blackstone's writings on the study of law (Commentaries I. 1), JH says "A university education was necessary for future lawyers to understand the scientific [sic] method. Practicing lawyers were not only to be legal practitioners but legal scientists (theorists). It was important to claim the mantle, the cover, of science, because in the modern world science provided a basis for legitimacy" (@17). He offers no evidence for this "important[ce]" in the 18th Century - a time when theologians and authors were also respected; but I want to focus on textual matters.
I read - and text-searched - Blackstone I.1 after reading JH. None of the phrases "scientist," "scientific method" or "theorist" appear there. The word "science" appears often - but in Blackstone's day the word's meanings included branches of learning that encompass all the liberal arts (see New Shorter Oxford English Dictionary @ 2717). It's clear that he used the word in this flexible context; Blackstone also quotes (@ p. 16 of Avalon edition) a comment of from 15th Century lawyer Sir John Fortescue referring to the common law as "that science" - this more than 200 years before Newton. Moreover, the phrase "scientifical method" does appear in Blackstone (@p.34 of Avalon edition); NSOED's meanings of "scientifical" include "designed for the furthering of knowledge" (its most likely meaning in this context), rather than the Baconian empirical method. In the face of all this ambiguity, JH has the burden to show that Blackstone's specific words had the meanings JH imputes to them. Sensitivity to what words meant at the time they were used is the burden of any historian. It is not carried in this book.
(B) Similarly, JH mentions for Blackstone "[t]he scientific gloss was key to putting forth the appearance of objectivity for the Commentaries and the claims to legitimacy for English law" (@17). What does "objectivity" mean here? Does it mean the "objectivity" that was associated with science in the 20th Century? As, e.g., T. Porter shows in his book _Trust in Numbers_ (1994), as late as the 19th Century, professional judgment was prized more highly than depersonalized quantitation. Or maybe "objectivity" means "nonpolitical adjudication" (@xiv)? According to Porter, it was more likely judges who leant their prestige to science than the other way around (see, e.g., Porter @ 227).
(C) I could go on, but I'll close with one more observation: JH often interpolates his own words into those of other authors, but these interpolations are often anachronistic, more confusing than helpful, or both. "Theorists" above is one example, another is his interpolation of "efficiency" into a comment of Calabresi's as an explanatory gloss on "avoidance of waste" (@139). So is avoidance of waste what he means when he says of Hayek's views of property that "Efficiency was the ultimate criterion" (@90)? Or does he mean Pareto efficiency? Kaldor-Hicks efficiency? Something else? We'll never know: aside from that solitary parenthetical aside, "efficiency" is never defined in the book.
CONCLUSION
JH relates that a professional colleague and friend told him that "you become an intellectual historian by doing intellectual history" (@ x). In retrospect, that well-intentioned advice was at best way too simplistic. Lawyers and economists are indeed like physicists, in that they (we, actually) seem to think they're qualified in anyone else's intellectual field too, as long as it isn't a legal specialty outside our own (could get sued if we mess up). In fact, historiography is a profession too, and there's a lot to be learned from the pros. JH's heart seems to be in the right place, and he can express himself more directly than most law professors, so I wish him good luck in a subsequent attempt. He writes vigorously enough that I'd also encourage him to aim for a broader readership. But I hope he'll roll up his sleeves and try to do it right next time. | | Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity by Duke University Press Product Description | For more than two decades, the law and economics movement has been one of the most influential and controversial schools of thought in American jurisprudence. In this authoritative intellectual history, James R. Hackney Jr. situates the modern law and economics movement within the trajectory of American jurisprudence from the early days of the Republic to the present. Hackney is particularly interested in the claims of objectivity or empiricism asserted by proponents of law and economics. He argues that the incorporation of economic analysis into legal decision making is not an inherently objective enterprise. Rather, law and economics often cloaks ideological determinations—particularly regarding the distribution of wealth—under the cover of science.
Hackney demonstrates how legal-economic thought has been affected by the prevailing philosophical ideas about objectivity, which have in turn evolved in response to groundbreaking scientific discoveries. Thus Hackney’s narrative is a history not only of law and economics but also of select strands of philosophy and science. He traces forward from the seventeenth-century the interaction of legal thinking and economic analysis with ideas about the attainability of certitude. The principal legal-economic theories Hackney examines are those that emerged from classical legal thought, legal realism, law and neoclassical economics, and critical legal studies. He links these theories respectively to formalism, pragmatism, the analytic turn, and neopragmatism/postmodernism, and he explains how each of these schools of philosophical thought was influenced by specific scientific discoveries: Newtonian physics, Darwin’s theory of evolution, Einstein’s theories of relativity, and quantum mechanics. Under Cover of Science challenges claims that the contemporary law and economics movement is an objective endeavor by historicizing ideas about certitude and empiricism and their relation to legal-economic thought. |
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