How Do We Know?

Over the past week or so I have been slogging through a stack of texts I am considering adopting for the introductory course on research methods (which includes some epistemology of science, research design, basic statistics) taught in my department each fall for first-year graduate students. This is the first time I will be teaching this course so the choice of text(s) looms particularly large. And, to complicate matters, we have recently added an an introduction to formal modeling course in the second semester for our graduate students, which they will take in addition to a course on statistics (beyond that which is covered in the first-semester course). So, I am very cognizant that what I cover in the first-semester course needs to give students preparation for not one but two courses they will take in their second semester. (I expect that neither of my colleagues who will be teaching those second-semester courses will find the students as prepared as they would like them to be but, being good natured folks, I am sure they will be patient with both the students and me.) I think that the sort of issues with which I am grappling in (re)designing this course are issues that speak more broadly to what it is that those interested in empirical legal studies care about. Let me (hopefully) provoke a discussion by offering a two guiding principles on which I am relying:

1. Human beings naturally seek to discover patterns of behavior in others and natural phenomena. Knowing what the weather is generally like in St. Kitt's in the spring, for example, can help us plan our vacation wardrobe. Knowing how people generally behave under certain conditions helps us navigate our own lives. In our everyday lives, we certainly understand that neither people nor weather are entirely predictable, but we do make predictions about both and take those predictions into account when we make decisions about what we ourselves will do. I want to connect these intuitions about what we do in our everyday lives to the what we do as social scientists.

2. Human beings "know" a lot of things. But, much of what we might "know" we might be hard pressed to convince others of. I might "know," for example, that heaven exists. But how can I prove this to someone else? What are the appropriate tools at my disposal for proving what it is I "know"? Knowledge in the context of social science is, of course, much more narrowly defined in the sense that it does not include within its purview the existence of heaven. Or, to borrow from Stephen Jay Gould, it is part of a different magisteria than that which deals with the existence of heaven. I want to be clear about how it is that we say we know something in the social sciences. That is, what are the rules of evidence?

 In the context of empirical legal studies, both of these guiding principles are relevant. The concept of the rule of law is suppose to provide regularity, impose some order. That's the point of it. But, as everyone (?) knows, law does not mechanistically require a particular outcome. But, as everyone (?) also knows, judges, though not perfectly predictable in their behavior, certainly demonstrate some level of consistency in their behavior. So, somewhere in the intersection of law and human behavior, there is some level of predictability.

 As for knowledge and what we know, I might "know," for example, that the ideological predispositions of judges influences their decisions. The key is in convincing others of this claim of knowledge. That requires some agreed upon standards for evaluating the evidence. At the extreme I "know" this only if attitudes are completely deterministic and there are no exceptions. But, obviously, that is a standard that is too rigid and (hopefully) is not one to which anyone ascribes. So, how do we know?

Comments

[Sean Wilson]

The problem lies in whether you think that the concept of justification is deterministic (only one correct answer), structuralistic (separating better answers from weaker ones), or skeptical (knowledge is a construct of the powerful). For too long scholars in both law and epistemology have relied upon a deterministic vision of their subject. Much of the scholarship in the 20th century, in fact, is the recognition that determinism as a modality is flawed -- structuralism represents the best choice. Hence, in both law and science (and philosophy) -- in fact in every rational endeavor whatsoever -- we are searching not for certainty, but merely for a rational way to delineate the relative worth of claims to know. I would recommend Stephen Hetherington's recent book on the two dogmas of epistemology to see an objectivist view of knowledge that is clearly working within a structuralist paradigm.

By the way, ask your self this: if ideology influences justices -- which is surely does -- does it not also influence empirical scientists? And if scientists can temper ideology through rationality, one would have a hard time suggesting that that the cognitive process that underlies rationality is not also capable of being efficacious in the judicial mind as well. In both cases, the search for merit exists, as does the desire to validate world views. You will never take Kant out of the mind; nor will you take political passion either. This is simply the way that humans are constituted.