Applying Robert Merton's "The Normative Structure of Science" to the law

As part of an irreg­u­lar series focus­ing on my grad­u­ate work in law and tech­nol­ogy, I’m going to occa­sion­ally high­light some of the more the­o­ret­i­cal mate­r­ial I work on:

Robert Merton, in “The Normative Structure of Science” (from The Sociology of Science: Theoretical and Empirical Investigations), posits four sets of “insti­tu­tional imper­a­tives” that together “com­prise the ethos of mod­ern sci­ence”: uni­ver­sal­ism, com­mu­nism, dis­in­ter­est­ed­ness, and orga­nized skep­ti­cism. How well do these four sets of imper­a­tives describe the “ethos of mod­ern law”?

First, accord­ing to Merton, sci­ence should be uni­ver­sal. That is, the “accep­tance or rejec­tion of claims” should not depend on “per­sonal or social attrib­utes of their pro­tag­o­nist,” includ­ing “race, nation­al­ity, reli­gion, class, and per­sonal qual­i­ties.” “Objectivity,” writes Merton, “pre­cludes par­tic­u­lar­ism,” and sci­ence is inde­pen­dent of par­tic­u­lar ide­olo­gies or nation­al­i­ties. Merton, in fact, explic­itly con­nects norms in sci­ence with norms of law: “the ethos of democ­racy includes uni­ver­sal­ism,” he writes, fur­ther argu­ing that the “polit­i­cal appa­ra­tus [i.e., statu­tory law, reg­u­la­tory agen­cies, and so on] may be required to put demo­c­ra­tic val­ues into prac­tice and to main­tain uni­ver­sal­is­tic standards.”

Despite hav­ing a national and regional char­ac­ter, Merton’s uni­ver­sal­ism per­me­ates American visions of what the law should be. Thus, there are strict lim­its on the ways that race, national ori­gin, and so on can be taken into account under the law, and judges and juries are expected to dis­pense with ide­ol­ogy when “find­ing facts” and rul­ing on legal issues. They are instead entreated to sim­ply “apply the law” in a uni­form and impar­tial man­ner. Of course, in law as in sci­ence, the imple­men­ta­tion of uni­ver­sal­ism is imper­fect, and may at times be “affirmed in the­ory and sup­pressed in practice.”

A sec­ond Mertonian ele­ment of sci­ence is what he terms “com­mu­nism,” in which the “sub­stan­tive find­ings of sci­ence are a prod­uct of social col­lab­o­ra­tion and are assigned to the com­mu­nity.” The American and English com­mon law sys­tem is a par­tic­u­larly good exam­ple of this approach: as with Merton’s con­cep­tion of “the essen­tially coöper­a­tive and selec­tively cumu­la­tive qual­ity of sci­en­tific achieve­ment,” the com­mon law con­sists of, and builds upon, all the legal work that has come before. Even our gen­eral (if occa­sion­ally con­tested) rule that statu­tory law is not sub­ject to copy­right builds on this com­mu­ni­tar­ian vision.

Disinterestedness is the third ele­ment of Mertonian sci­ence. It refers to a sense of moral integrity and eth­i­cal pur­suit, along with a removal of per­sonal or ide­o­log­i­cal end goals. Certainly this same goal is inte­gral to the prac­tice of law, espe­cially as embod­ied in judges. In this sense, inter­est­ed­ness by a poten­tial juror is grounds for exclu­sion. Ethical stan­dards are explicit and exact­ing for attor­neys, even if — appar­ently unlike sci­en­tists in Merton’s day — the gen­eral pop­u­la­tion has a low regard for the eth­i­cal stan­dards of lawyers. (Interestingly, sci­en­tists have no such for­mal eth­i­cal guide­lines.) Personal inter­ests are to be set aside, and the inter­ests of the client (or of “the peo­ple” or sim­i­lar abstract notion of soci­etal inter­est) are to be sub­sti­tuted instead. This may well point out a dis­tinc­tion between a sci­en­tists and lawyers (other than judges, at least): sci­en­tists might claim to be putting sci­ence and the facts first, but lawyers are up front about putting the client first, and let­ting the so-​​called “adver­sar­ial sys­tem” sort out the truth — although despite this, lawyers have eth­i­cal oblig­a­tions to at least avoid per­pet­u­at­ing falsehood.

Finally, and relat­edly, “orga­nized skep­ti­cism is var­i­ously inter­re­lated with the other ele­ments of the sci­en­tific ethos.” It requires a “tem­po­rary sus­pen­sion of judg­ment and the detached scrutiny of beliefs in terms of empir­i­cal and log­i­cal cri­te­ria.” Certainly this same approach is expected of judges and juries, although lawyers rep­re­sent­ing their clients are expected to bal­ance skep­ti­cism with belief in their client, and focus their skep­ti­cism on oppos­ing coun­sel and their argu­ments. Once again in the law, the adver­sar­ial sys­tem, com­bined with dis­in­ter­ested and objec­tive judges and juries, is sup­posed to fer­ret out the truth.

Whether sci­ence imi­tates the law, or law imi­tates sci­ence, or both are respond­ing to larger soci­etal pres­sures to con­form to cer­tain stan­dards (such as Merton’s the­ory that Puritanism con­tributed to the growth of mod­ern sci­ence), the ideal sci­en­tist sim­i­lar to an ideal lawyer (and even more like the ideal judge). Unlike attor­neys, how­ever, the ideal sci­en­tist rep­re­sents truth, not a client and her inter­ests. Lawyers explic­itly rec­og­nize and speak of the need for a social sys­tem — the court­room, its adver­sar­ial sys­tem and arbiters — to get at the truth. But per­haps because sci­en­tists do not gen­er­ally acknowl­edge serv­ing a “client,” even when they work for a cor­po­ra­tion, the exis­tence of a social sys­tem con­struct­ing sci­ence is less obvi­ous to many. This is true even though sci­en­tists them­selves real­ize how nec­es­sary, for exam­ple, peer reviewed jour­nals are to the pro­duc­tion of sci­en­tific truth.

Excerpted from “Constructing a Useful Theory of Knowledge,” avail­able in draft form at SSRN.