Sunday, 5 September 2010

The blue touchpaper: reflections on science and law.

For me, the story of the week was the debate triggered by Professor Stephen Hawking about "M-theory" and the creation of the universe.  Many of the world's leading religions became very defensive when challenged by his view that it was "not necessary to invoke God to light the blue touch paper and set the universe going" - ("The Grand Design" - Stephen Hawking and Leonard Mlodinov - Bantam Press 2010).  See Telegraph 3rd September - "Religious leaders dismiss 'God not needed' comments".  Hawking considers that the universe could have been created because there is a law of gravity which would cause the universe to create itself.  This is a fascinating debate and the views of Hawking are, as ever, both elegant and superbly expressed.

It is interesting to consider how physical science and law differ.  Science strives for strict explanation or proof.  The law does not usually have that luxury.  Based on the information available, a legal decision maker forms an opinion.  That may be an opinion that person A is guilty of some offence or that B and C are bound by a contract or that D acted in a negligent manner causing damage to E etc.  The "information available" (i.e. the evidence) may come from a multitude of sources though it is often from witnesses who observed some event.  The judges have set down various standards of proof for criminal and civil matters.  In criminal cases, guilt must be proved beyond a reasonable doubt.  In civil cases, proof on a balance of probabilities will suffice.  Those standards have been explained in a number of appellate decisions and, in the application of the standards, opinion may properly differ. The result is that law, unlike strict science, is more akin to a complex form of art which exists for the general good order of society in which it is necessary to be able to resolve disputes in a reasonable manner.

Whilst there is an important overlap between science and questions of proof in law - (e.g. as in the use of forensic evidence) - it seems that science has to pursue rigorous proof because its fundamental purpose is to seek to explain why things are.  The law exists for more practical purposes and this requires that, from time to time, there will be errors and proper processes must be in place to rectify, as far as possible, those errors.  However, the law cannot have the luxury of existing in pure theory but must exist with a degree of imperfection though this should never lead to complacency.

As ever, the reflections of readers are more than welcome ....


  1. Religious leaders don't usually comment on scientists not believing in God. Perhaps they are worried that Hawking will be able to find a proof of his claim.

  2. "It is interesting to consider how physical science and law differ."

    Law deals with subjective reality, a reality entirely constructed by the use of mythos and violence.

    Science deals with objective (not legally objective but scientifically objective) reality, a reality entirely independent of the minds of men. It requires neither mythos nor violence for its existence.

    The realities of science and law run concurrently (similar to the two streams of equity and law) but not always. This is the reason for miscarriages of justice. That is, a person can be guilty of a crime (subjective reality) but has not done the crime (scientific reality). This state of affairs can go on for years (cf murder of Susan Dando etc) and in some jurisdictions where the populace allows the State to kill them, often people who have not committed but have been convicted of a crime, are executed.

    "Whilst there is an important overlap between science and questions of proof in law"

    The overlap is more than important; the latter derives credibility and hence legitimacy from the former.

    Interestingly, the nature of the overlap is governed by law and hence varies from jurisdiction to jurisdiction. In the US, scientific evidence is governed by Daubert which is very much lacking in our (England and Wales) jurisdiction.

    House of Commons Reports (Science and Technology Committee 2005, from memory) are ignored, despite the desparate pleadings of courageous men such as Wear J from the mire of R v Hoey. Instead we rely on the Strathclyde cargo cult and the ignorance of the general populace in the hope that it isn't noticed when the two streams don't run concurrently.

  3. Daubert v Merrell Dow Pharmaceuticals 1993 - Supreme Court of the USA:-

    Daubert Test - Further Readings

  4. R v Hoey (the Omagh Bombing "Low Copy Number" DNA case) was considered by the English Court of Appeal (Criminal Division) in R v David Reed and Terence Reed [2009] EWCA Crim 2698. The Reed case is also considered on the website of Garden Court Chambers - here.

  5. There's another big difference. With few exceptions criminal courts require a guilty/not guilty verdict. The Scots have "not proven", but this seems to be a heartily disliked verdict which many seek to abolish. No doubt the reason for such a binary verdict system is something deep in the psyche of human beings and the operation of society. The consequence of falling the wrong side of this decision, which must necessarily at times be based on personal judgements, opinion and an element of chance, whatever the measures, have the potential to be catastrophic and re-write the story of somebody's life.

    This desire for a black and white, true or false outcome is clearly very deep and it is shared with the core of many faiths. The tolerance of uncertainty is something that humans appear to have difficulty with, maybe because we needed some refuge from it in our ancient evolutionary path. It is interesting that politicians also often demand such binary outcomes from their scientific advisers and they plunge into policy convinced of its truth without acknowledging that so many of these are essentially social experiments.

    Uncertainty is at the heart of good science, and it should be recognised that we only ever build castles in the air based on visions that we hope are representative of some reality which we can never really know. The best we can say is that good science is beautiful and maybe useful, but that inner humility needs to be there.