The Science of Law

  Scattered throughout the pages of the history of the common law are many references to it being a science.  Science may be called the pursuit of fact by means of well-defined procedures.  Anyone who has ever visited any two courts of common law jurisprudence will have seen at first hand that their procedures inevitably differ somewhat.  The greatest difference will be found between English and American criminal courts.  Whereas in America the trial proper begins when the prosecutor addresses the jury, followed by the defence, in English Crown Courts the defence is not allowed to address the jury until all evidence has been shown or heard.

  I will say in passing that it is small wonder that so many people lodge appeals against verdict if the jury is left to guess what the defence argument might be for the duration of the trial.

  This is probably the best moment to mention for the benefit of those who do not already know it that 'verdict' is the union of 'ver', a part of many words related to truth, and 'dict', a part of many words having to do with speaking or saying.  The term 'verdict', then, means 'true speech', or 'truth speech'.

  Given that many appeals against verdict succeed, and that much evidence of fact may never be heard by the jury due to procedural rules, it cannot be argued that the object of a common law trial is to discover truth.  If that is indeed the object, then the methods are fundamentally flawed and law is, accordingly, not a science.

The law's scientific method

  If it is not in its holding of trials that the common law can properly claim to be a science, then in what other way can common law claim scientific legitimacy?  A study of the history of law reveals that the 'science' claim refers to the research and analysis of the literature of the common law: the recorded cases and prior analyses.

  Although, in the sphere of law, scholars speak of 'authorities' they would do better to speak of the motto of the Royal Society: nullius in verba.  The implication of that motto is that we should not rely on any so-called 'authority' to tell us what the facts are.  And indeed, judges do not.

  The only person who can make an authoritative statement on law is a judge sitting in a properly constituted court of common law jurisdiction.

  It follows that anything stated to be law by me, or a lawyer, a judge outside of his court or even the legislature speaking as a body cannot be relied on for its accuracy in any court of common law jurisdiction.

  Is it, then, a complete waste of time to study law?  After all, even if I learned law parrot-fashion from a judge in his court I could not guarantee that any other judge would agree with what my tutor had to say.  There is, as the saying goes, method in this madness.  If justice is to be done then every case must be tried on its own merits and, most especially, on its own set of facts.

  The scientific observation that no two cases can possibly be identical in every respect, and most especially as to the facts, allows judges to distinguish cases, that is to say: to state that some axiom or principle of law is not applicable to the case at hand.  It is in the exercise of their power to distinguish cases that judges can choose to make themselves either the champions of freedom, or tyrants.  We are fortunate indeed that for every Judge Jeffries there are hundreds, perhaps thousands of a more enlightened calibre.

  The mere observation that no two cases can be identical does not suffice to make of law a science.  What is needed further is the adoption of the scientific method.

  The particular scientific method adopted by the common law is this: procedures of analysis of the literature are used to identify and investigate the form and nature of a legal principle, and its evolution.  The procedures reveal what is common to different phenomena.  The phenomena under investigation are the judgements which have been given in courts down through the ages.  The patterns of commonality of decision-making revealed by this scientific analysis give us the true foundations of our common law.

  It may appear at this stage that the researcher of law is merely recording customs and usages.  This is not so.  Whether a thing is a custom of old or a newly developing custom, it is not law unless it is underscored by principles of law and has been declared to be law by a judge or encoded as law by the legislature. It is perfectly clear from the case law that custom alone does not make law.  Probably the most important case ever to demonstrate this principle is Entick v Carrington, (1765).

When three King's messengers broke into the house of John Entick and ransacked it under pretense of warrant, Camden LJ (Charles Pratt, 1st Earl Camden) had much to say on a pretended 'custom' which purported to permit a gross invasion of privacy.

A power to issue such a warrant as this, is contrary to the genius of the law of England, and even if they had found what they searched for, they could not have justified under it; but they did not find what they searched for, nor does it appear that the plaintiff was author of any of the supposed seditious papers mentioned in the warrant, so that it now appears that this enormous trespass and violent proceeding has been done upon mere surmise; but the verdict says such warrants have been granted by Secretaries of State ever since the Revolution; if they have, it is high time to put an end to them, for if they are held to be legal the liberty of this country is at an end;
These warrants are not by custom; they go no farther back than 80 years and most amazing it is they have never before this time been opposed or controverted, considering the great men that that have presided in the King's Bench since that time; but it was reserved for the honour of this Court, which has ever been the protector of the liberty and property of the subject, to demolish this monster of oppression, and to tear into rags this remnant of Star-Chamber tyranny.

Entick v Carrington&Ors (BAILII: [1765] EWHC KB J98 ) 95 ER 807, (1765) 19 St Tr 1030, [1558-1774] All ER Rep 41

  Now, if anyone would argue that 'of course' law is not a science, I would say by way of rebuttal that the method which I have described as being used by analysts of law was devised by Francis Bacon.

  If it is accepted that the Baconian method is scientific, then so also is its application by Bacon himself to the study of the history of law which he published as Maxims of the Law.

  If by 'law', we mean to say 'jurisprudence', i.e.  the study of law, then in my submission, for the reasons given above, law is a science.

... I have in all points to the best of my understanding and foresight applied myself, not to that which might serve most for the ostentation of mine own wit or knowledge, but to that which may yield most use and profit to the students and professors of our laws.

Francis Bacon, Maxims of the Law