CHAPTER 3 of A Judge's Deskbook on the Basic Philosopies and Methods of Science, by Shirley A. Dobbin, Ph.D, and Sophia I. Gatowski, Ph.D An Introduction to the Philosophy of Science
The goal of this chapter is not to provide an in-depth examination of the various philosophies of science, nor is it to create philosophers of science out of judges. Rather, the goal of this chapter is to present an overview of the general tenets of the philosophy and sociology of science. Moreover, judges are asked to reflect on how different philosophies of science, including their own, influence the presentation, examination, and admission of scientific evidence in court. Daubert has been widely interpreted as an injunction that judges should "think like scientists" when assessing the validity of scientific evidence. On its face, this requirement seems both sensible and unproblematic. What could be more reasonable than to require that scientific evidence should conform to scientists' own tests of validity? In practice, however, Daubert has given rise to three sets of difficulties that make the decision far from simple to implement: first, there is no single model of "good science" that can be mechanically applied to all offers of scientific evidence; second, the standards used by scientists may be impractical or impossible to achieve in legal proceedings; third, the law's commitment to doing justice may conflict with full acceptance of scientists' standards.(1)	Learning Objectives for Chapter 3 Upon completion of this chapter, the reader should be able to: Understand science as a particular way of thinking; Describe some of the basic differences between legal and scientific disciplines; Discuss the general tenets of fundamental perspectives in the philosophy and sociology of science; and Articulate a personal philosophy of science and how this personal philosophy might influence decision-making.
The Interface Between Science and Law Both science and law are embedded in a common cultural context and both share norms of rationality and causality. Yet, when one discipline (e.g., the law) seeks to understand another (e.g., science) a dilemma may result because each approaches uncertainty in a different way. When asked "How do you know which decision is the right one?," each relies on different methods, each uses a different set of concepts and theories to describe the same phenomenon, and each reflects different underlying assumptions and values. That is, each discipline incorporates and reflects different ways of meaning and different ways of knowing -- each discipline views the event through a different "lens." Thus, the perspective from which uncertainty is approached and the perspective from which questions are asked, whether legal or scientific, influences both the answer to the question and the means by which the answer is discovered. Science is creative and forward-focused. Law looks to the past for justifications and methods (i.e., stare decisis). Science relies on the scientific method to find "truth." The scientific method stresses objectivity and tries to eliminate bias and error. Law relies on the adversarial process to find "truth." Bias in the selection and presentation of evidence is assumed and accepted as part of the adversarial process. Scientists view their research as a body of working assumptions, of contingent and sometimes competing claims. Even when core insights are validated over time, the details of these hypotheses are subject to revision and refinement as a result of open criticism within the scientific communities. The scientific process is ongoing and scientists can suspend judgment until a later point in time. In the legal system, however, all of the players are forced to make decisions at a particular moment in time; the decision cannot be suspended to some time in an unspecified future. Scientific knowledge is based on empirical findings and is probabilistic. Law tries to give the appearance of certainty. During a trial, "burden of proof" and "reasonable doubt" are argued. But, once a decision is made, it is assumed to be the "truth" and, for the most part, irrevocable. Many [science and technology] issues are legally relevant because the applicable substantive law raises the question of how to proceed in a world of imperfect knowledge. Lawyers and scientists approach uncertainty in ways that are characteristic of the goals their respective disciplines are seeking to achieve. In the courts, scientific knowledge must inform the choice, but abdication to the scientist is incompatible with the judge's responsibility to decide the law.(2)	Before going any further, stop and reflect ... How do you define science? Do you think scientific knowledge can be distinguished from other forms of knowledge? If so, how do you distinguish science from other forms of knowledge? If not, why do you think such a distinction cannot be made? Do you think that the standards used by scientists can be translated appropriately into judicial reviews of scientific evidence? Do you think the law's commitment to justice conflicts with full acceptance of scientists' standards and practices?
It is important that judges have a basic understanding of the philosophies of science and an understanding of how differences in philosophy within scientific disciplines influence areas selected for study, the process of discovery, the nature of the questions asked and answers found, and the manner in which interpretations are drawn. It is also important to realize that differences in philosophy of science, when placed within the legal context, influence what evidence and which expert witnesses are selected and presented, and what details are attended to in direct and cross examination. It is also important to recognize that everyone, including judges, have a personal philosophy of science and that this personal philosophy, whether we are conscious of it or not, influences how we judge, critique, and endorse various scientific claims. Because of the gatekeeping role judges play in admissibility decision-making, it is important that judges recognize that their personal philosophy of science might influence decision-making about what constitutes legitimate and admissible scientific evidence. The first steps to reducing the influence of personal philosophies on legal decision-making are to recognize, articulate, and question the philosophy that one holds.       The Philosophy of Science The philosophy of science encompasses questions about science in general (e.g., Are some theoretical entities real?), about particular groups of sciences (e.g., Can social objects be studied in the same way as natural ones?), and about individual sciences (e.g., What are the implications of relativity theory for our concepts of space and time?). The philosophy of science arose as a discipline separate from the more general theory of knowledge in the mid-nineteenth century -- at about the time that distinct sciences bearing names such as 'physics,' 'chemistry,' and 'biology' were becoming professionalized.	Is it scientific or specialized knowledge and to what extent, if any, does that influence admissibility decision-making? The Daubert decision did not set clear guidelines as to whether the four criteria articulated (falsifiability, error rate, peer review and publication, and general acceptance) should apply only to "scientific" knowledge or to "scientific, specialized, or technical knowledge." Nor did Daubert provide any guidance in how distinctions among different types of knowledge should be made. Whether or not the Daubert guidelines apply to all forms of specialized knowledge, or just "scientific" knowledge, was recently answered by the United States Supreme Court in Kumho Tire Co. v. Carmichael (1999). The United States Supreme Court, in reversing the Eleventh Circuit, held that the factors for a court to use in determining the reliability of a scientific theory or technique as set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., (1993), may apply to testimony of engineers and other experts who are not scientists. The Court noted that Daubert set forth a trial judge's "gatekeeping" obligation under FRE 702 to ensure that expert testimony is relevant and based on reliable scientific theories and that Rule 702 applies to all expert testimony because the language of 702 does not distinguish between 'scientific,' 'technical,' or 'other specialized' knowledge.
How do judges around the country distinguish scientific knowledge from technical or otherwise specialized knowledge?   More than half of the judges surveyed believed that "scientific knowledge" can be differentiated from "technical or otherwise specialized knowledge" (244 of 400 judges). Those judges responding that "scientific" knowledge could be differentiated from other forms of knowledge were asked to discuss how they would make that distinction. The following general categories of responses were given as grounds for differentiating between "science" and other forms of knowledge (note that judges could give more than one response). It is interesting, that while more than half of the judges believed that "science" could be differentiated from other forms of knowledge, many of them had difficulty articulating how that distinction could or should be made. 59% the distinction would be made on a case-by-case basis, depending on the nature of the evidence, the purpose for which the evidence is being proffered, existing precedent, and so forth 21% technical knowledge is the application of facts or knowledge, while science is the generation of new knowledge 18% there is a distinction; but unsure on what grounds the distinction can or should be made 10% science involves the scientific method; experimentation 10% science is objective and less open to interpretation 7% science is theory-driven 5% technical knowledge refers to machines, software, equipment One-third of all of the judges said that "scientific" knowledge could not be distinguished from other forms of knowledge for the purposes of deciding admissibility (132 of 400). Those judges who believed that the distinction between "scientific knowledge" and "technical or otherwise specialized knowledge" could not be made, gave the following reasons: 50% there is no substantive difference between the two forms of knowledge 27% admissibility guidelines can be applied to both forms of knowledge, therefore the distinction is irrelevant for the purposes of deciding admissibility 17% deciding whether the evidence is "scientific" is an issue for the jury, not the judge 16% each form of knowledge has elements of the other: technology is applied science, science is inclusive of technology Looking just at the responses of judges in Daubert states, almost 3/4 of the judges believed that "scientific knowledge" could be or might be differentiated from "technical or otherwise specialized knowledge" (63% or 130 of 205 judges). Of those 130 judges, 31% said they would make the distinction on a case-by-case basis. 26% of those judges defined science as the generation of new knowledge and technical or specialized knowledge as the application of scientific knowledge. 31% of the judges in Daubert states believed that "science" could not be distinguished from other forms of knowledge (64 of 205 judges). 39% of these 64 judges indicated that the issue of deciding whether or not particular evidence was scientific was irrelevant, stating either that the Daubert guidelines are equally applicable to both scientific knowledge and technical or specialized knowledge or that the focus should be on the jury's level of understanding and not on the classification of the evidence. 30% of judges indicated that there is no substantive difference between scientific knowledge and technical or specialized knowledge.
The Interface Between Science and Law Both science and law are embedded in a common cultural context and both share norms of rationality and causality. Yet, when one discipline (e.g., the law) seeks to understand another (e.g., science) a dilemma may result because each approaches uncertainty in a different way. When asked "How do you know which decision is the right one?," each relies on different methods, each uses a different set of concepts and theories to describe the same phenomenon, and each reflects different underlying assumptions and values. That is, each discipline incorporates and reflects different ways of meaning and different ways of knowing -- each discipline views the event through a different "lens." Thus, the perspective from which uncertainty is approached and the perspective from which questions are asked, whether legal or scientific, influences both the answer to the question and the means by which the answer is discovered. Science is creative and forward-focused. Law looks to the past for justifications and methods (i.e., stare decisis). Science relies on the scientific method to find "truth." The scientific method stresses objectivity and tries to eliminate bias and error. Law relies on the adversarial process to find "truth." Bias in the selection and presentation of evidence is assumed and accepted as part of the adversarial process. Scientists view their research as a body of working assumptions, of contingent and sometimes competing claims. Even when core insights are validated over time, the details of these hypotheses are subject to revision and refinement as a result of open criticism within the scientific communities. The scientific process is ongoing and scientists can suspend judgment until a later point in time. In the legal system, however, all of the players are forced to make decisions at a particular moment in time; the decision cannot be suspended to some time in an unspecified future. Scientific knowledge is based on empirical findings and is probabilistic. Law tries to give the appearance of certainty. During a trial, "burden of proof" and "reasonable doubt" are argued. But, once a decision is made, it is assumed to be the "truth" and, for the most part, irrevocable. Many [science and technology] issues are legally relevant because the applicable substantive law raises the question of how to proceed in a world of imperfect knowledge. Lawyers and scientists approach uncertainty in ways that are characteristic of the goals their respective disciplines are seeking to achieve. In the courts, scientific knowledge must inform the choice, but abdication to the scientist is incompatible with the judge's responsibility to decide the law.(2) It is important that judges have a basic understanding of the philosophies of science and an understanding of how differences in philosophy within scientific disciplines influence areas selected for study, the process of discovery, the nature of the questions asked and answers found, and the manner in which interpretations are drawn. It is also important to realize that differences in philosophy of science, when placed within the legal context, influence what evidence and which expert witnesses are selected and presented, and what details are attended to in direct and cross examination. It is also important to recognize that everyone, including judges, have a personal philosophy of science and that this personal philosophy, whether we are conscious of it or not, influences how we judge, critique, and endorse various scientific claims. Because of the gatekeeping role judges play in admissibility decision-making, it is important that judges recognize that their personal philosophy of science might influence decision-making about what constitutes legitimate and admissible scientific evidence. The first steps to reducing the influence of personal philosophies on legal decision-making are to recognize, articulate, and question the philosophy that one holds.   The Philosophy of Science The philosophy of science encompasses questions about science in general (e.g., Are some theoretical entities real?), about particular groups of sciences (e.g., Can social objects be studied in the same way as natural ones?), and about individual sciences (e.g., What are the implications of relativity theory for our concepts of space and time?). The philosophy of science arose as a discipline separate from the more general theory of knowledge in the mid-nineteenth century -- at about the time that distinct sciences bearing names such as 'physics,' 'chemistry,' and 'biology' were becoming professionalized. Questions about the nature of science are not merely academic -- where the line is drawn between science and non-science can determine what subjects are taught in schools, what forms of treatment are covered by medical insurance, and what evidence is admissible in court.	Why is it important for judges to understand the various perspectives of the philosophy of science? An understanding of the philosophy of science: challenges the notion that objective scientific 'truth' is out there to be discovered; provides a more complete picture of the processes of science and scientific discovery; provides a more principled method for evaluating the validity, reliability, and applicability of scientific evidence; provides context for the analysis of the judicial role in admissibility decision-making; and makes explicit the implicit assumptions underlying various scientific methods and theories.         The essence of modern science is the way of thinking, the discipline in asking and answering questions. It is intellectual and logical thouoght and the demands for confirming evidence that characterize science, not the technologies. The essence of science is its systematic, disciplined way of thinking aimed at gaining knowledge about a problem or puzzle. Science places heavy demands on the adequacy of its information and on the processes applied to that information.
Science as a Way of Thinking Scientists seek answers to their own questions. Their work is built on highly refined skills in asking and answering questions -- knowing how to ask questions is as important as knowing how to go about answering them. The essence of science is the process of carefully composing questions and then systematically seeking their answers to gain a better understanding of a problem or puzzle. Science involves a process of inquiry, a particular way of thinking. Three traits generally distinguish scientific knowledge from other forms of knowledge: science seeks the systematic organization of information about the world and, in so doing, discovers new relationships among natural phenomena; science endeavors to explain why phenomena occur and how they are related; and scientific explanations must be formulated in a way that makes them subject to empirical testing. Science does not advance simply by accumulating observations and experimental results and then extracting a theory or hypothesis from them. Rather, science progresses through an ongoing and cyclical process of discovery. Scientific progress begins with the invention of a possible world, or a fragment thereof, which [is] ... compared by experimentation with the real world. And it [is] this constant dialogue between imagination and experimentation that allow[s] one to form an increasingly fine-grained conception of what is called reality.(3)	Before going any further, stop and reflect ... What are the distinctive characteristics of the quest for knowledge that we call science? What distinguishes sciences like astrophysics an geology from pseudo-sciences like astrology an phrenology, and from non-sciences like literary criticism an religion? How should we classify fields like sociology, economics, engineering, or psychology?
The Problem of Induction Induction is the process whereby scientists infer, on the basis of a number of observations or experiments, that some theory is true. Thus, inductively derived theory begins with a solid base of empirical observations and gradually builds up to more abstract levels of theoretical explanation. What all inductive inferences have in common, is that they start with particular premises about a finite number of past observations, and then, based upon these past observations, infer general conclusions about the future. Critics of induction argue that inferences about the future, based upon observations of the past, do not guarantee that the inference will be supported. That is, it is unclear how a finite amount of information about what has happened in the past can guarantee that a natural pattern will occur, or continue to occur, in the future. What rules out the possibility that the course of nature may change and that the patterns observed so far turn out to be a poor guide to the future? If the only evidence available is simply that some particular observation has occurred frequently in the past, or that some particular natural law has worked so far, then how can one be sure that past events, or particular laws, will not be disproved by future occurrences? The problem of induction calls the authority of laws such as these into question. The views of Sir Karl Popper provide one influential response to the problem of induction.	Induction: reasoning from the particular to the general; an inductive theory begins with specific observations and infers general conclusions.
Popper: Deduction, and Falsification Sir Karl Raimund Popper (1902-1994) was one of the most well known philosophers of science. Educated in Vienna in mathematics, physics, and philosophy, Popper's ideas have relevance and impact in science, business, politics, art, music, and the law. Indeed, Popper's philosophy of science has become increasingly influential within the law with the passage of Daubert and its reliance on falsification. In Popper's view, science is not characterized by induction. Popper denied that scientists start with observations and then infer a general theory. Rather, Popper argued that scientists first put forward a general theory and then make specific predictions based upon that theory. These predictions are then compared with observations to see whether the theory is supported. If the theory is not supported, then the theory is experimentally falsified, and a new, alternative theory must be found. If, on the other hand, the tests support the theory, then scientists will continue to uphold it -- not as proven truth but as theory that has the potential to be falsified; a theory that has "not yet been disconfirmed." Thus, Popper was arguing that science rests on deduction rather than induction. That is, the general theory guides the researcher in making and testing specific predictions about future events. These deductions (i.e., predictions) are then empirically tested through experimental research and support or lack of support for the theory is obtained. If we look at science in this way, argued Popper, then we see that it does not need induction. According to Popper, the inferences which matter to science are refutations, which take some failed prediction as the premise and conclude that the theory behind the prediction is false. In his first book, The Logic of Scientific Discovery (1959), Popper proposed the 'falsification' principle. Popper proposed that a theory is a scientific theory if and only if there are possible observations that would refute it. Thus, a theory is only a scientific theory if there is the potential for falsification. In order for a theory to have the potential for falsification, the theory itself must be empirically testable. Popper used the principle of falsifiability to distinguish genuine science from traditional belief systems like astrology, as well as from Marxism, psychoanalysis, and various other modern disciplines he called 'pseudo-sciences.' According to Popper, the central claims of these theories are unfalsifiable; that is, the central claims have not been, nor can they be, empirically tested. Psychoanalytic theories, for example, predict that adult neuroses are due to childhood traumas. Psychoanalysts argue that the observation of a neurotic adult with clearly identified childhood traumas supports psychoanalytic theory. However, when a neurotic adult who has no identifiable childhood traumas is observed, psychoanalysts argue that his trauma is actually unconscious, private, and not available to the conscious mind (therefore the person is unaware of the trauma having occurred). For Popper, this is the antithesis of scientific reasoning. When both the presence and absence of an event or observation (in this case childhood trauma) are said to support a prediction, there is no way to empirically test the underlying claim or inference &endash; the claim is unfalsifiable.	Deduction: reasoning from the general to the particular; a deductive theory begins with a construct or theory, makes specific predictions about the constructs, and then empically tests the predictions. Falsification: the refutation, or potential refutation, of a theory; a theory or technical procedure is falsifiable if it can be subjected to testing which could prove it to be incorrect or false. It is important to distinguish the concept of falsifiability from similar terms with very different meanings, such as: "falsify" -- to alter something with the intent to defraud "falsity" -- the quality of being false; a false assertion
To what extent do judges around the country find the concept of falsifiability a useful criterion for evaluating scientific evidence?   All judges in the survey sample (N=400), even those not in FRE/ Daubert states, were asked how useful they thought the concept of falsifiability is for admissibility decision-making. The vast majority of judges, regardless of the admissibility standard followed in their state, believed falsifiability to be a useful guideline for determining the admissibility of scientific evidence (38% indicating that it is "very useful" and 50% indicating that it is "somewhat useful"). When responses are separated into those provided by judges in FRE/ Daubert states and those in Frye states, very similar responses are found with respect to the utility of the guideline. It is interesting to note the similarity in how judges following different admissibility standards rated the utility of falsifiability. As shown in the table, the ratings between the two groups are almost identical. As a follow-up to the question asking about the utility of the guideline, judges were asked how they would use the guideline of "falsifiability" when scientific evidence is proffered in court. The question was designed in such a way as to allow the researchers to infer how well the judge actually understood the specific concept. For coding purposes, responses were coded as "judge understands concept," "judge's understanding of concept questionable," and "judge clearly does not understand concept." Although a definition of the concept was not provided as an explicit component of the question, if the judge asked for a definition the interviewer provided a standardized, pre-tested definition. The interviewer also noted that the definition had been asked for and given. If a definition of the concept was not asked for by the respondent, it was not given. With respect to falsifiability, in order for a response to be coded as "judge understands concept," the judge had to explicitly include reference to testability, test and disproof, or prove wrong a theory or hypothesis, proof/disproof, or validity. If the judge did not explicitly refer to any of these concepts, but appeared to 'talk around the issue,' or just refer to a test of a theory or hypothesis, then the judge's understanding was coded as questionable. That is, the researchers were unable to confidently infer that the judge truly understood the scientific meaning of the concept. The researchers realize that this criteria sets a high threshold of understanding and that some of the judges whose responses were coded as questionable may, in actuality, understand the concept. However, the threshold was set deliberately high so that researchers could be sure with a high level of confidence that the judge truly understood the meaning of the concept.
Before going any further, stop and reflect ... How is a 'Popperian' view of science reflected in current evidentiary law? Does strict adherence to a 'Popperian' view of science pose particular challenges for certain kinds of scientific evidence (e.g., psychological evidence)? Many modern philosophers of science argue that a reliance on the falsification principle does not accurately reflect a modern view of science. Do you think a 'Popperian' definition of science is a modern one? Why or why not? What form might potential challenges to Popper and the concept of falsification take?
To what extent do judges around the country understand the scientific meaning of falsifiability?   Sample comment coded as "judge understands concept" "I would want to know to what extent the theory has been properly and sufficiently tested and whether or not there has been research that has attempted to prove the theory to be wrong" Sample comment coded as "judge's understanding of concept questionable" "I would want to know if the theory has been tested" Sample comment coded as "judge clearly does not understand concept" "If there is white-out on the page then the document has been falsified" As discussed, the vast majority of judges surveyed in both FRE/ Daubert and Frye states, believe falsifiability to be a useful guideline for determining the admissibility of proffered scientific evidence. However, the results of the survey indicate that judges do not fully understand the scientific meaning of falsifiability and that, as a result, they are unsure how to properly utilize the concept as an admissibility guideline. Indeed, when asked a question about how they would apply the guideline of falsifiability, the majority of judges expressed some hesitancy or uncertainty. From the answers that were provided, the researchers could only infer a true understanding of the concept in 5% of the responses. Moreover, for judges in Daubert states, a true understanding of the concept could only be inferred in 3% of the responses.
Kuhn: Paradigms, and Revolutions Thomas Samuel Kuhn (1922-1996) was an American philosopher and historian of science. Educated at Harvard as a physicist, Kuhn turned to the history of science to write The Structure of Scientific Revolutions in 1962. In this work he contrasted the historical development of science with the traditional view of science as a purely rational, objective, enterprise. Scientific practice, Kuhn argued, is governed by a paradigm, a world-view sanctioned by the scientific community. A paradigm refers to a collection of procedures or ideas that instruct scientists, implicitly as well as explicitly, what to believe and how to work. Most scientists, Kuhn argued, never question the paradigm. They solve puzzles and problems whose solutions reinforce and extend the scope of the paradigm rather than challenge it. This is what Kuhn called normal science. However, some puzzles may prove so difficult or intractable that they become anomalies. If anomalies build up, argued Kuhn, a science may enter a crisis state, where the credibility of the existing paradigm becomes increasingly poor. A candidate for a new paradigm may emerge to challenge the existing one, often created and supported by younger scientists who have much to gain and little to lose in terms of their reputations.  The most controversial aspect of Kuhn's theory is his claim that a revolution takes place when paradigms are switched and that science is a progression of revolutions. Because a paradigm is a world-view, it is difficult for adherents to step outside of the paradigm and evaluate the pros and cons of an alternative paradigm; scientists tend to be closely wedded to a particular scientific world-view and to the theoretical and methodological assumptions that underlie it. However, according to Kuhn, once a scientist adopts a new paradigm, she will not be able to revert back to her original paradigm -- the original paradigm is forever changed. Thus, according to Kuhn's view, science progresses through "paradigm shifts." It is important to recognize, however, that there is no guarantee that science is actually progressing toward anything -- least of all toward "the truth."(4) Kuhn's view diverges significantly from Popper's. Kuhn argued that falsification is not possible because it implies the existence of absolute standards of evidence, which transcend any individual paradigm. A new paradigm may solve puzzles better than the old one did, and it may yield more practical applications, but, as stated by Kuhn, "you cannot simply describe the other science as false."(5) According to Kuhn, it is the incompleteness and imperfection of an existing data-theory fit that defines the puzzles that characterize normal science. If, as Popper suggested, failure to fit were grounds for theory rejection, then, according to Kuhn, all theories would be rejected at all times. Kuhn's theory remains controversial, but it is important not only because it was the first significant attempt to reach a descriptive rather than a normative or rule-governed account of science, but also because of the interest it has gathered beyond philosophers of science. It is important to note that falsification can refer to both the falsification of a paradigm or to the falsification of a particular theory. For the practical purposes of judicial decision-making however, the guideline of falsifiability refers to particular theories. The question becomes one of "Is the theory testable?" Thus, for the practical purposes of evaluating scientific theories, the concept of falsifiability is a useful tool, although not a definitive criterion.	Central Tenets of Kuhn's Philosophy of Science Scientific practice is governed by a "paradigm," a world-view that is sanctioned by the scientific community. Science progresses through a series of "paradigm shifts." Falsification is not possible because it implies the existence of absolute standards of evidence, which transcend any individual paradigm.
Paradigms, Negotiations, and Boundary-Drawing The sociology of science explores the social character of science, with special reference to the social production of scientific knowledge. Sociologists of science are interested in the social context within which science is practiced. Questions of interest for sociologists of science might be, for example: Does science progress in a rational way, or is it subject to historical and cultural factors, like other systems of belief? Is the only difference between science and other disciplines the authority our society invests in science? To what extent do the socially instilled biases of scientists influence the science they produce? What role does politics play in science? Critics of the judicial system's handling of scientific claims often have an idealized view of science that many scientists themselves reject. Although these critics accept the indeterminancy of legal concepts, they speak of scientific "facts" as though they were objectively true, and they berate the legal system for failing to adduce conclusive evidence, even though scientists themselves concede that scientific hypotheses remain open to challenge until the incentives for attacking them disappear.(6) In present day society, the term 'science' has great potency. Not only is 'science' more or less equivalent to 'valid knowledge,' but it also merges with 'technology' -- the useful application of knowledge. Consequently, those people known as 'scientists' are widely regarded as the purveyors of a superior kind of knowledge which represents the real world with a degree of precision and reliability that makes possible extensive control over its natural processes. Sociologists of science view scientific knowledge as deriving, not from the impartial application of clear technical criteria, but from socially contingent formulations that have been deemed adequate by specific groups in particular cultural and social situations.	Paradigm: a world-view that reflects assumptions about the social world and how science should be conducted, as well as what constitutes legitimate problems, methods, solutions, and standards of 'proof.'   Before going any further, stop and reflect ... To what extent do you agree with the claim that the process of science is shaped by poitical and social forces? Can you think of some specific examples? To what extent, if any, do theories derived from the social constructivist perspective challenge more traditional philosophies of science, such as the philosophy of Karl Popper? To what extent, if any, does the social constructivist perspective challenge current evidentiary law? Is there a place for this perspective in evidentiary law?
A major theory within the sociology of science is the theory of social constructivism. According to the social constructivist perspective, the 'facts' that scientists present to the world are not merely raw observations. Rather, scientific 'facts' are socially constructed through the institutions and social processes of science. Observations achieve the status of 'facts' only if they are produced in accordance with prior agreements about the correctness of theories, experimental methods, instrumentation, validation procedures, and review processes. These agreements, in turn, are socially derived through continual negotiation and renegotiation among relevant bodies of scientists. This brief overview of three philosophical approaches to science in no way represents a comprehensive or theoretically sophisticated discussion of the various philosophies of science and their points of convergence and debate. It is not the intent of this overview to do so. Rather, the goal is to challenge the notion that "science" is a given and that it exists independent of personal, social, and political influences. It is important to recognize that the scientific process itself is multi-leveled and multi-faceted.	Social Constructivism: the philosophical position that truth is contingent and conditional and there are multiple perspectives and multiple realities. Researchers who hold a constructivist perspective argue that people in different geographic, cultural, or social locations may construe knowledge, truth and relevance in different ways, and that each of these different ways of knowing may be legitimate and worthy.
A Brief Look at Other Influential Philosophers of Science Paul Feyerabend In his most influential book, Against Method (1975), Feyerabend argued that philosophy cannot provide a methodology or rationale for science, since there is no rationale to explain. Feyerabend sought to show that there is no logic to science; scientists create and adhere to scientific theories for what are ultimately subjective and even irrational reasons. According to Feyerabend, scientists can and must do whatever is necessary to advance their view. Larry Laudan Laudan sees science operating within a conceptual framework that he calls a "research tradition." The research tradition consists of a number of specific theories, along with a set of metaphysical and conceptual assumptions that are shared by those scientists who adhere to the tradition. A major function of the research tradition is to provide a set of methodological and philosophical guidelines for the further development of the tradition. Following both Kuhn and Popper, Laudan argues that the objective of science is to solve problems -- that is, to provide "acceptable answers to interesting questions."(7) However, for Laudan, the "truth" of a theory is irrelevant as an appraisal criterion. Rather, the key question is whether the theory offers an explanation for problems that arise when we encounter something in the natural or social environment which clashes with our preconceived notions or is otherwise in need of explanation.
Before going any further, stop and reflect ... In her paper "Judging Science: Issues, Assumptions, Models (1997)," Professor Sheila Jasanoff presents five possible models judges may follow in coming to terms with the separate values and goals of science and litigation: The Inquisitor -- experts are appointed by and are answerable to the judge, who also questions witnesses and conducts formal fact-finding; rests upon the assumption that neutral or unbiased experts exist and that they can be identified by impartial judges The Gatekeeper -- role envisioned by Daubert; rests upon the assumption that science operates according to objective standards that can be clearly understood and applied by judges; standards may vary from case to case, but judges are seen as capable of identifying science that is so substandard as to merit exclusion The Referee -- judges are likely to view the parties' scientific claims as driven by interests and contaminated by bias; instead of screening the evidence according to some "objective" criteria of scientific validity, the refereeing judge may attempt to use perceived weaknesses in the parties' scientific arguments to steer the litigants toward settlement The Mediator -- the mediating judge may shape the discovery process and other pretrial proceedings so as to promote a sharpening of the scientific issues and, where possible, a negotiated resolution of significant scientific disputes The Judge -- rejects the mythical notions of "pure science" and "junk science" and understands and recognizes how bias creeps into scientific inquiry and the differences between legitimately different viewpoints and truly marginal forms of inquiry; the judge holds the conviction that courts are not a forum for resolving scientific disputes definitively, but rather for doing justice on a case-by-case basis with the aid of all available scientific knowledge that meets threshold tests of relevance and reliability What do you think of the judicial roles articulated above? In what way do you think a philosophy of science might influence decision-making about the admissibility of different kinds of scientific evidence? Consider how each of these conceptions of the judicial role rests on different assumptions or philosophies of science. What might some of the advantages and disadvantages of each of these roles be? Does one of these conceptions of the judicial role more accurately represent how you perceive your role with respect to scientific evidence? Which one and why? Given this overview of some of the fundamental distinctions in philosophies of science, has your view of science and your conception of your judicial role changed in any way? How and why?
Endnotes: 1. Jasanoff, S. (1997). Judging Science: Issues, Assumptions, Models. 2. Science and Technology in Judicial Decision Making: Creating Opportunities and Meeting Challenges. Carnegie Commission on Science, Technology and Government (1993), pg. 24. 3. Molecular biologist and Nobel Laureate, Francois Jacob. 4. Kuhn, T.S. (1970). The Structure of Scientific Revolutions. Chicago: University of Chicago Press., pg. 170. 5. Ibid. 6. Jasanoff, S. (1993). "What Judges Should Know About the Sociology of Science." Judicature, Vol. 77(2), pgs. 77-82. 7. Laudan, L. (1977). Progress and its Problems. Berkeley, C.A.: University of California Press. pg. 13. Glossary Deduction involves reasoning from the general to the particular; a deductive theory beings with a construct (theory), makes specific predictions about the construct, and then empirically tests the predictions. Falsification based upon the philosophy of Sir Karl Popper, falsification is said to be the cornerstone of science -- that is, a theory is only scientific to the extent that there is a potential for falsification; the goal of falsification is to refute (prove incorrect) a theory based upon observations gained through the scientific method; a theory or technique is falsifiable if it has been, or has the potential to be, tested. Induction involves reasoning from the particular to the general; an inductive theory begins with specific observations and infers general conclusion. Paradigm -- Based upon the philosophy of Thomas Kuhn, a paradigm is a world-view that reflects certain assumptions, both implicit and explicit, about the social world, what constitutes a scientific problem or issue, what the appropriate methods of investigation are, and what constitutes appropriate solutions and standards of proof. Social Contructivism -- a philosophical position that truth is contingent and conditional and that there are multiple constructivism perspectives and multiple realities; the belief that people in different geographic, cultural, and social locations construe knowledge, truth, and relevance in different ways, and that each of these ways of knowing is legitimate and worthy of consideration. Suggested Readings Chalmers, A.F. (1982). What is This Thing Called 'Science'? An Assessment of the Nature and Status of Science and its Methods. University of Queensland Press. Feyerabend, P. (1978). Against Method. London: Verso. Feyerabend, P. (1981). The Problems of Empiricism. Cambridge: Cambridge University Press. Jasanoff, S. (1993). "What Judges Should Know About the Sociology of Science." Judicature, Vol. 77(2), pgs. 77-82. Jasanoff, S. (1995). Science at the Bar: Law, Science, and Technology in America. Cambridge: Harvard University Press. Knorr-Cetina, K.D. (1981). The Manufacture of Knowledge: An Essay on the Constructivist and Contextual Nature of Science. New York: Pergamon. Kuhn, T.S. (1970). The Structure of Scientific Revolutions. Chicago: University of Chicago Press. Lakatos, I. (1974). "Falsification and the Methodology of Scientific Research Programs." In Criticism and the Growth of Knowledge, Imre Lakatos and Alan Musgrave (Eds.), Cambridge: Cambridge University Press, pgs. 91-195. Latour, B. (1987). Science in Action: How to Follow Scientists and Engineers Through Society. Cambridge: Harvard University Press. Laudan, L. (1977). Progress and its Problems. Berkeley, C.A.: University of California Press. Popper, K.S. (1959). The Logic of Scientific Discovery. New York: Basic Books.
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