There was a legal philosopher and professor, Walter Berns, who tried to tackle many of these types of difficult issues in the application of the law during his career. In this piece written in 1963 below he takes on the role of behavioral science ("Nudge") and the law, behaviorism being a fi…
There was a legal philosopher and professor, Walter Berns, who tried to tackle many of these types of difficult issues in the application of the law during his career. In this piece written in 1963 below he takes on the role of behavioral science ("Nudge") and the law, behaviorism being a field that applies many of the same issues your piece describes. He's reviewing a book by another legal scholar who was advocating for a purely behavioral science-based system of law and jurisprudence. I think you'll appreciate it.
Law and Behavioral Science by Walter Berns
Law and Contemporary Problems (Duke Law School), Winter, 1963
(the first 14 pages - p186-198 - are an exercise in judicial game theory, the legal and philosophical reasoning struggle with applying behavioral science as a legal governing system is in the remaining 14 pages - p199-212)
"Doubtless there have been "phenomenal technical and scientific" advances during the past century, as Beutel says, and that there is a "social lag"; and perhaps it is true that the "general science and art of lawmaking" has not developed "since the days of the Roman Empire"; but this is no reason for law to imitate physics or engineering. On the contrary, a grasp of the fundamental problems might reveal that there is an irresolvable tension between science, in its old or its new sense, and politics, and that any attempt to resolve the tension is likely to have terrible consequences in the political world; that the political world must be ruled not by science but by prudence. This requires at a minimum the recognition that there will always be a "gap" between theory and practice, and that the recalcitrant or intractable political problems cannot be wholly resolved - at least, not by a government of free men. True, Socrates said that "cities will never have rest from their evils no, nor the human race ... until philosophers are kings, or the kings and princes of this world have the spirit and power of philosophy"; but Socrates, who failed even in his attempt to rule his wife, Xanthippe, knew and taught that it is extremely unlikely that the conditions required for the rule of the wise will ever be met. As Leo Strauss has said:
- "What is more likely to happen is that an unwise man, appealing to the natural right of wisdom [to rule] and catering to the lowest desires of the many, will persuade the multitude of his right: the prospects for tyranny are brighter than those for rule of the wise. This being the case, the natural right of the wise must be questioned, and the indispensable requirement for wisdom must be qualified by the requirement for consent. The political problem consists in reconciling the requirement for wisdom with the requirement for consent."
Legal scholars, and even practicing lawyers, know these exceedingly important things; they therefore have more to teach to the new scientists than the new scientists have to teach them."
FF Note: legal scholars and practicing scholars *before* they were taught intolerance and censorship is desirous constitutional.
Berns also wrote about pseudosciences, eugenics, touching on applied behavioral science to control, rule and eradicate people, the practice of eugenics:
[Still the law of the United States of America, upheld as recently as 2001]
And that monumental case, Buck v. Bell, known best for the majority finding that, "three generations of imbeciles is enough" to justify eugenics is brought forward in this piece (not by Berns) to the concerns of today that tie directly into AI, transhumanism, CRISPR, designer humans, etc. Which ends with important unanswered questions about what we will allow the rules, practices and laws around this technology to look like:
Buck v. Bell, American Eugenics, and the Bad Man Test: Putting
Limits on Newgenics in the 21st Century
Minnesota Journal of Law & Inequality, January, 2020
Fantastic presentation of information, Cynthia!
There was a legal philosopher and professor, Walter Berns, who tried to tackle many of these types of difficult issues in the application of the law during his career. In this piece written in 1963 below he takes on the role of behavioral science ("Nudge") and the law, behaviorism being a field that applies many of the same issues your piece describes. He's reviewing a book by another legal scholar who was advocating for a purely behavioral science-based system of law and jurisprudence. I think you'll appreciate it.
Law and Behavioral Science by Walter Berns
Law and Contemporary Problems (Duke Law School), Winter, 1963
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2953&context=lcp
(the first 14 pages - p186-198 - are an exercise in judicial game theory, the legal and philosophical reasoning struggle with applying behavioral science as a legal governing system is in the remaining 14 pages - p199-212)
"Doubtless there have been "phenomenal technical and scientific" advances during the past century, as Beutel says, and that there is a "social lag"; and perhaps it is true that the "general science and art of lawmaking" has not developed "since the days of the Roman Empire"; but this is no reason for law to imitate physics or engineering. On the contrary, a grasp of the fundamental problems might reveal that there is an irresolvable tension between science, in its old or its new sense, and politics, and that any attempt to resolve the tension is likely to have terrible consequences in the political world; that the political world must be ruled not by science but by prudence. This requires at a minimum the recognition that there will always be a "gap" between theory and practice, and that the recalcitrant or intractable political problems cannot be wholly resolved - at least, not by a government of free men. True, Socrates said that "cities will never have rest from their evils no, nor the human race ... until philosophers are kings, or the kings and princes of this world have the spirit and power of philosophy"; but Socrates, who failed even in his attempt to rule his wife, Xanthippe, knew and taught that it is extremely unlikely that the conditions required for the rule of the wise will ever be met. As Leo Strauss has said:
- "What is more likely to happen is that an unwise man, appealing to the natural right of wisdom [to rule] and catering to the lowest desires of the many, will persuade the multitude of his right: the prospects for tyranny are brighter than those for rule of the wise. This being the case, the natural right of the wise must be questioned, and the indispensable requirement for wisdom must be qualified by the requirement for consent. The political problem consists in reconciling the requirement for wisdom with the requirement for consent."
Legal scholars, and even practicing lawyers, know these exceedingly important things; they therefore have more to teach to the new scientists than the new scientists have to teach them."
FF Note: legal scholars and practicing scholars *before* they were taught intolerance and censorship is desirous constitutional.
Berns also wrote about pseudosciences, eugenics, touching on applied behavioral science to control, rule and eradicate people, the practice of eugenics:
Buck v. Bell: Due Process of Law by Walter Berns
Political Research Quarterly, December 1, 1953
https://sci-hub.se/https://journals.sagepub.com/doi/10.1177/106591295300600409
[Still the law of the United States of America, upheld as recently as 2001]
And that monumental case, Buck v. Bell, known best for the majority finding that, "three generations of imbeciles is enough" to justify eugenics is brought forward in this piece (not by Berns) to the concerns of today that tie directly into AI, transhumanism, CRISPR, designer humans, etc. Which ends with important unanswered questions about what we will allow the rules, practices and laws around this technology to look like:
Buck v. Bell, American Eugenics, and the Bad Man Test: Putting
Limits on Newgenics in the 21st Century
Minnesota Journal of Law & Inequality, January, 2020
https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1622&context=lawineq
I hope you'll find all three reads informative as much as I've found your piece here informative on our journeys as both teachers and students.