Law, Science, Burdens of Proof, and Contextual Truth.

Diagram showing the steps of the scientific me...

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This is another one of my posts where I am trying to sort and clarify my current knowledge and understandings. Though I do have a legal and philosophy background which I use in this post, I do not have a science background (though I have been reading quite a bit about the scientific method and science history of late). So if you spot an error in my reasoning or facts, just let me know; consider this a learning effort rather than a concluded opinion.

There’s been a lot of talk around the autism community lately, about the impact of legal decisions on scientific findings. In particular, whether a decision by a court that vaccines have caused autism, means that they actually do cause autism. Putting aside the arguments about the difference between finding vaccines cause brain damage and “autism-like” behaviour, versus whether they cause autism proper, there is a broader issue here about “truth”; specifically burdens of proof and contextual truth. It is that issue which I’m going to discuss here, focusing on law and science.

A legal decision should never be taken out of the context of the court and the laws under which the case was brought. A statement that action X caused outcome Z, as decided by a court, means according to the burden of proof for that particular type of claim, the court at that time reached that decision. That might sound flimsy, but the less flimsy outcome is that the two battling parties can now get on with their respective lives: They presented their arguments to a third-party to settle the dispute, and must accept the ruling, unless there is a right to appeal the decision. They cannot take the law into their own hands if they disagree with the ruling, without facing their own further legal consequences.

They may of course exercise their freedom of speech to dispute the finding, being careful with regards to defamation law, contempt of court, and various other restrictions depending on the country within which they choose to exercise that freedom. So we’re  familiar with people arguing the courts made the wrong decision – whether on moral or factual grounds. But those complaints are not surprising; the point of the ruling was not to make everyone happy, it was rather to dispense justice as defined by the existing laws.

Most people understand the basics of all this, so they know that when a court, for example, finds someone guilty of a crime, that there is a chance the person did not actually commit the criminal act, but according to what could be ascertained in the court the person will be held accountable and face the consequences. It’s a natural consequence of human fallibility; courts are human institutions upholding human-made laws as applied by human judges. The courts should be getting the correct outcome the vast majority of the time, otherwise there would be serious risk of revolution, or at the very least, major reform. (We all know they get it wrong sometimes, and governments have to make large payouts when they do. Legal systems are generally set up to let nine guilty men walk free, rather than put away one innocent one – at least in modern democracies!)

However, there are always those who will see the occasional wrong decisions, or not understand how the system works in general, and decry the entire legal system as worthless and unable to declare truth at all; forgetting that the truths are contextual to the legal framework. They point out that eye-witness statements are unreliable (100 people see 100 different things), get bowled over by issues of relativity, without appreciating that we function perfectly fine in this world living with such relativity anyway; the courts just bring it into sharp relief.

The courts also openly respond to such issues, with rules about hearsay and admissible evidence more generally. Indeed, the law – like science – is aware of trends in human thinking that can distort the search for the truth. Both law and science have protections against issues like confirmation bias and correlation versus causation. The law uses phrases like “innocent until proven guilty” and “circumstantial evidence” to capture and address such concerns. Science uses the scientific method (I’ll say more on that later).

Courts would like to always deal with deductive reasoning that leads to infallible conclusions, but they have to be comfortable with the reality that much of what we do in this world is based on inductive reasoning: The sun came up yesterday, and everyday before then in living memory, but we don’t have proof it will come up tomorrow. This is not a reason to throw up our hands and run around screaming that everything is unknown and unknowable; instead it is a reason to search for as much certainty as we can in face of those challenges. This indeed is how we function everyday. We make our kids lunch for the next day, we set aside our clothes, we do not assume the sun will not rise just because we don’t have deductive proof of it.

Without these contextual “legal truths”, we would be in a particularly unpleasant state of anarchy, where people took their own justice based on their own version of what justice is. The legal system grants the ability to move forward with our lives when there are disputes, to make decisions and know the consequences, and know that those consequences will be enforced. Such is a large part of its beauty: A virtue of (relative) certainty.

Science requires a similar level of appreciation of the value of being able to make decisions instead of being paralysed with inaction, and faces similarly misguided attacks when it at times churns out un-truths. Allow me to explain:

Just as the legal system is a system, set up to find truths so that we can get on with our lives, science is a system that offers up truths that allow us to make decisions about our health, and operate successfully in the world more generally. The legal system has completely man-made constructs of courts and judges and laws; yes the people who set up those constructs aim to create an objectively just system, but there are perfectly functional legal systems across the world that vary enormously in regards to the specific laws and court systems they have in place. (Putting aside at this point the objectivity of the “rule of law” and declarations of no legal system in the absence of the rule of law – there is only so much I can cover in a single blog post!) Science has a more solid reference point than our human notions of justice though: The world that exists independently of how we wish it was. We can alter, add to, and take away from the world around us, but what happens when we alter,add and take away from it, is determined by observable scientific laws that we cannot alter just because we want them to be different.

Science uses the scientific method to discover new truths, and to refine and test old ones. Those “truths” – like legal “truths” – cannot be taken out of context. A scientific truth about whether a pill works to cure a certain condition or not, is made – again, like legal decisions – with reference to a sort of burden of proof: The scientific method takes into account the statistical significance of results, acknowledges the huge variety of factors that might be at play in any finding, and addresses the sorts of very-human reasoning errors that I mentioned earlier (such as confirmation bias).

But this doesn’t mean we throw up our hands and say it’s all too hard, “results vary from one study to the next!”, “we can’t control for all factors!”, “oh look there’s a miracle that disproves the stated scientific truth!”. Just like law, science gives us a way to move forward with our lives, to not be paralysed with inaction in the face of the uncertainties that exist quite naturally and normally all around us.

This is no reason to be a subjective relativist; it is a reason to be a realist. The genuine relativist is the person who – if they have honesty and integrity – wouldn’t bank on the sun getting up the next day. They would live in a flux, and (again, if they have integrity) won’t bother arguing with you, because what’s the point, it’s all relative anyway, and you probably don’t really exist – their senses are probably creating this entire world. (That is not a ridiculous suggestion that no one would make by the way; certain philosophers and spiritual leaders, have proposed such a non-existence.) Questions of epistemology overwhelm them because they define their lives by the unknown, instead of by the vast knowns that allow us to function everyday, without walking through walls into new dimensions. (This is a theme I have commented on before in my discussion of the penumbra of language; we mustn’t let the fuzzy edges of what is known, lead us into thinking nothing is known.)

Both law and science openly recognise these uncertainties. Law understands there is a difference between the notion of an objective infallible law, and man-made law, by references to the difference between natural law and positivism. It also adds terms like “found guilty by the court” instead of just saying “is guilty”, and uses “beyond reasonable doubt” and “on the balance of probabilities”. Science uses terms like “best hypothesis” and “probable” and “statistically significant”. These are not weasel words. They are honest words, recognising our limitations. They are not evidence of the pointlessness of law, or science, they are reasons to indeed respect law and science – because they openly acknowledge such issues and respond to new evidence that might undercut existing understanding, as a reason to re-evaluate current understandings.

So you can also see why you can’t seamlessly move from a legal decision, to a scientific “truth”: They are operating under different systems, with different burdens of proof. If one system is superior than the other at ascertaining truths in the pure sense of that word, then it is science. Science is used to help establish legal findings (did person X kill person Y), but law is not used to establish scientific findings. Some scientific questions get tested in law courts, but only to determine how they fit within existing man-made law, such as laws about financial compensation. Not to test whether they are objective truths about the world outside of the law courts: Any such findings must be kept within their context.

Questions of truth – and here we are particularly dealing with the foundational problems of epistemology – are not new. Discovering an inherent uncertainty in science and law doesn’t make someone the defender of the people or a hero or someone revealing a conspiracy. It just means they’ve just discovered what pretty much every one else in that profession already knew. Awareness of uncertainties and our limitations is reason to continue the search for truth that enhance and extend our lives, not the reason to abandon it and hand over your decision-making to an even more uncertain source of truth…

But that’s a topic for another day, and probably for another blog 🙂

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2 Responses to Law, Science, Burdens of Proof, and Contextual Truth.

  1. Sharon says:

    Interesting post as usual.
    I suppose (I’m no scientist either) we could add verification to the flow chart above. This for me is the beauty of science. If you cant verify the result of one study in others then we have a problem. I suppose the legal equivalent is the right to appeal a decision?

    • That sounds like a reasonable comparison – which further highlights science as the more robust and objective search for “truth” between the two, since at law there is a limit to your right to appeal, but not so for the search with science.

      Writing that comment has also made me think about how law cases allow the presentation of two sides of the story in the search of the truth, but science doesn’t require there to be two sides of a story, rather the testing of a hypothesis (though that is somewhat more like the French model of law than say NZ, Aussie, US). Indeed, that treating science as if it was always a matter of looking at two competing cases is a large part of where journalism has made a botch-up of reporting on scientific questions: Presenting two sides to an argument as if they were a law case seeking for truth between two experiences and claims, rather than one side having strong science behind it, and the other often being mixtures of anecdote, conspiracy theories, and weak hypotheses..? It’s more than I can investigate in the space of a comment, but I’m sure there’s an important point in there somewhere!

      Thanks for your comment and the food for thought Sharon (and yes I agree that verification is an essential part of the story of good science; part of its beauty).

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