Making Progress

As the debate over whether there is progress in nature discloses, the possibility of offering a factual and value-free account of biological development is itself a matter of considerable controversy. The most recent and most important contretemps over the matter of 'scientific progress' involved the titanic clash between Karl Popper and Thomas Kuhn. Although they each stake out apparently incompatible positions, there is much that is shared in their epistemological conclusions; this exaggerated sense of opposition is as true for them as it is for Wilberforce and Huxley and, also, Dworkin and Posner. Both Kuhn and Popper recognized the necessary prerequisites of commensurability and testability. More importantly, in contrasting the prevailing views of these scientific philosophers, they both agreed on the essentially cumulative nature of science in that it was the facts that a theory revealed rather than the theories themselves that were accumulated. However, they disagreed over the role of values in scientific methodology and the measure of scientific progress. In a striking parallel with similar jurisprudential exchanges, while they share an acceptance that history must be given a more prominent and inclusive role to play in the tradition of scientific explanation, they are at odds over the nature of that role. Although Popper is clear that "the history of science is, by and large, a history of progress,"10 he casts history as a rather clean and tidy process; it is a source of order rather than disruption. In contrast, Kuhn recognizes the unsettling quality of history and adopts a more warts-and-all approach. While both Popper and Kuhn rely on a Darwinian model, they profoundly disagree over the force and consequences of such an alignment. In short, like their

10 K. Popper, The Rationality of Scientific Revolutions in Scientific Revolutions 94 (I. Hacking ed. 1981).

jurisprudential counterparts, they part company over which idea of progress is implicated in an evolutionary approach: Is it possible to historicize without also politicizing? Is political development about improvement or simply change?

Popper explicitly contends that change in science can be modeled on that of Darwinian evolutionary biology. As with birches and bears, he claims that there are continuing cycles of variation, selection, and transmission in the realm of knowledge and ideas. He suggests that there is an analogue between genetic mutation and the proliferation of new ideas and theories. In the same way that nature selects among the proliferation of mutations, so the scientific community tests and chooses between the competing theories on the basis of scientific falsifiability. For Popper, the empirical method does not test for the truth oftheories but seeks to corroborate them through failed efforts to prove them false. The ambition is "not to save the lives of untenable systems, but, on the contrary, to select the one which is by comparison the fittest, by exposing them all to the fiercest struggle for survival."11 Accordingly, in the world of science as in the realm of nature, while truth is more protean than transcendental and knowledge is more contingent than constant, there is nonetheless a direction to knowledge that is progressive and orderly; there is a move forward in knowledge in both quantitative and qualitative terms. Importantly, however, Popper does acknowledge that, while a theory (or, at least, the set of facts that it adduces) becomes more corroborated and reliable, it will never become complete and true in any eternal sense. Moreover, not content to make such assertions in the world of scientific research, Popper makes the trademark Bulldog move and draws political conclusions from his epistemological claims. He maintains that the best institutional structure and political arrangements to establish and ensure such evolutionary progress through a conflict of ideas is to be found in the liberal tradition of democratic governance; such an open society is recommended not only as an ideological preference but as a scientific necessity.

From what has already been argued in this book, it ought to be clear that Popper's conception of Darwinian evolution is extremely controversial and frankly unpersuasive. Rather than resolve the debate over whether progress occurs in a Darwinian account, Popper simply argues by assertion and assumption. The role of history and environmental conditions is reduced to a neutral and contained backdrop to the dynamic and almost exclusively

11 K. Popper, The Logic of Scientific Discovery 42 (1934).

internal operations of the scientific community. Indeed, there are so many problems with Popper's claimed Darwinian approach - the static relation between process and environment, the vague mechanism of variation, the mysterious criteria of selection, and unexplained method of transmission -that is difficult to take it seriously as anything more than an unwarranted and unwise attempt at homological comparison: It is more the Darwinian imprimatur that is sought than any imitation of its theoretical integrity.12 Nevertheless, that having been said, it is not surprising that there is much tacit sympathy for such a Popperian perspective in jurisprudential circles. When applied to law, such a gradual and inevitable process holds much appeal as it showcases the virtues of ordered development, substantive betterment, and principled continuity. Like birches and bears, the law is considered to move forward by adapting its past to present conditions and by ensuring that this adaptation carries forward the past into the future: The common law advances by evolution, not revolution. Moreover, it is not only a naturalized process but also a sanitized one in which the true and good will always triumph over the false and bad. Serving the political ends of many liberal jurists, it validates the claim that law is not politics by insisting that adjudication is somehow a neutral and insulated process, uncorrupted by the ideological forces of power and self-interest. Standing in almost direct contrast to Darwin's proposal in the biological world (where organisms' historical development is largely a series of localized responses to changing environmental conditions), this Popperian account has legal and scientific ideas advancing almost solely by dint of their own essential rational logic and their own internal epistemological force.

In the same way that this view has not gone unchallenged in the jurispru-dential world, Popper's account of scientific inquiry has not persuaded all scientific commentators. The most decisive and debilitating response to Popper has come from Thomas Kuhn. Whereas Popper maintained that scientific knowledge accumulates through a so-called falsification process akin to natural selection, Kuhn expanded on this by showing how science was an inescapably social undertaking and that it was, therefore, "difficult to see scientific development as a process of accretion." Science occurs and was made possible by the existence of disciplinary matrices or "paradigms," which are situated within history's political currents, not apart from them. According to Kuhn, paradigms are essential to scientific inquiry because "no natural history can be interpreted in the absence of at least some implicit

body of intertwined theoretical and methodological belief that permits selection, evaluation, and criticism."13 The typical developmental pattern of a mature science is not through a steady and cumulative acquisition of knowledge, but through the successive transition from one paradigm to another through a revolutionary phase. Moreover, in that paradigm shift, there is a degree of so-called incommensurability between past and present. Within an established paradigm, progress is obvious and largely uncontested in that a set of shared problems are answered in a mutually agreed fashion so that there is an increase in articulation and specialization: Scientists work only for an audience of colleagues that shares values, beliefs, and standards that can be taken for granted. However, this ought not to be treated as comparable with an inexorable closing-in on some ultimate truths. More solutions to more problems might be achieved, but this is not the same as an ever-closer approximation to a final and complete account of nature. Because there is a movement away from something does not mean that science is making an irresistible advance toward some fixed, objective, and supreme destination.

Not surprisingly, Kuhn too likened his approach to that of Darwin. He concluded that the analogy between the evolution of organisms and the evolution of scientific ideas "is nearly perfect." Like Darwin on biological evolution, Kuhn did the same for the evolution of scientific knowledge in that he refused to accept the existence of any teleological or goal-directed account of evolution. At best, what occurs is that "successive stages in that developmental process are marked by an increase in articulation and specialisation." Eschewing any internal or directional logic to evolution, Kuhn insisted that, in the same way that the interaction between organisms and changing environmental conditions determines the course of natural evolution, the resolution of scientific crises is effected by the conflict within the scientific community over the fittest way to practice future science. In short, for Kuhn, scientific progress is as much about professional values and institutional commitments as it is about neutral methodologies and objective knowledge:

[There has been] a process of evolution from primitive beginnings - a process whose successive stages are characterised by an increasingly detailed and refined understanding of nature. But nothing has been or will be said that makes it a process of evolution toward anything.. .. Ifwe

13 T. Kuhn, The Structure of Scientific Revolutions 3 and 16-17 (3rd ed. 1996). For interesting takes on the Kuhn-Popper debate, see P. D. Hutcheon, Popper and Kuhn on the Evolution of Science, 4 Brock Rev. 28 (1995) and S. Fuller, Kuhn vs. Popper: The Struggle for the Soul of Science (2003).

can learn to substitute evolution-from-what-we-do-know for evolution-toward-what-we-wish-to-know, a number of vexing problems may vanish in the process.14

As a result, for Kuhn, scientific inquiry follows a messy and meandering path rather than develops in an orderly and linear progress: "it is only the list of explicable phenomena that grows; there is no similar cumulative process for the explanations themselves."15 These theoretical paradigms stand or fall not only on strictly scientific criteria of verification and predictability, but also on the sociological basis of their ability to provide emotional satisfaction and thus to inspire commitment in specific social, political, and historical conditions. Indeed, the reception of Darwin's evolutionary theories are a good example of Kuhn's idea of scientific revolution. There is a continuing and repetitive history of resistance, controversy, change, and acceptance that rolls on over time. The shift between biological paradigms is about persuasion as well as proof and about how to look at facts as much as the facts themselves. While Kuhn's conclusions are not equivalent to stating that "in the sciences might make right,"16 they oblige an acknowledgment that the line between science and politics is as murky and shifting as any other historically situated demarcation. Whereas Popper insisted on the political necessity and logical possibility of a clear boundary between the ideological and scientific approaches to reality, Kuhn contended that all that existed or could exist was an observable cultural and sociological distinction. In this way, Kuhn saw scientific knowledge as neither relative nor absolute, but rather as the efficacious product of an irreversible and nondirectional historical process. Whereas Popper saw a smooth and progressive curve to that history, Kuhn recognized that history was much more jagged and less serene, with science moving not only in fits and starts, but also in many directions at once. For Kuhn, what turns out to be the fittest way to practice science is a historical function of the prevailing consensus within the scientific establishment, not simply the result of a chronological progression in line with a logical criterion of validity. Science is distinctly of the messy world that it seeks to explain and understand, even if it too often pretends that it is not.

15 T. Kuhn, The Copernican Revolution: Planetary Astronomy in the Development of Western Thought 264-65 (1957). See also N. Hanson, Patterns of Discovery (1958).

16 T. Kuhn, supra, note 13 at 167. For an interesting intervention into this debate, see J. A. Harrington, 'Red in Tooth and Claw': The Idea of Progress in Medicine and The Common Law, 11 Soc. & LegalStud. 211 (2002). For obvious comparisons between Kuhn'sand Gould's ideas, see S.J. Gould, The Structure of Evolutionary Theory 966—72 (2002).

248 | Evolution and the Common Law Shift Happens

The historical record suggests that Kuhn's ideas and interpretation of Darwinian evolution have a definite salience for explaining the common law's development. In the same way that there is progress in 'normal science' (i.e., within an accepted and established paradigm in which there are a wide series of group commitments) in that puzzles are solved and facts accumulated, there will also be progress in law: Rules will be refined and principles will be honed. This can be illustrated by numerous common law or constitutional doctrines in which the court makes a breakthrough decision and then sculpts out the more detailed contours of the new rule over an extended period. For instance, having established the general concept of privacy in Griswold, the courts have worked to interpret and carve out the precise contours and limits that substantive due process possesses in particular circumstances. Again, having abandoned the separate-but-equal interpretation of the Fourteenth Amendment's guarantee of equal protection in Brown, the courts have busied themselves with identifying the shape and substance of a more encompassing mode of constitutional equality. In both situations, however, it should be clear that, while the development of such doctrinal details may appear to be technical and uncontroversial, their elaboration is as political as the initial decision that made the original breakthrough, albeit often it is of a more modest and focused nature. Moreover, in the same way that the breakthrough decision often occurred as a relatively revolutionary decision, so there will arise a subsequent doctrinal crisis, as in Roe and Lawrence, in which what was once thought settled no longer meets contemporary demands or expectations.17 It is not so much that the developed doctrine will have run into internal difficulties in the sense of being found to possess latent illogicality or incoherence (although it well might). Rather, the doctrine will be seen to have outlived its substantive usefulness and the courts will be tempted to discard it for a more immediately well-adapted set of rules and principles. It is as much that it has lost its political salience from an external perspective as it is that it has been found professionally wanting from an internal standpoint. In short, law and its particular doctrines are seen to be thoroughly political in their rise, elaboration, and demise; legal tradition demands political transformation.

However, while it is reasonable to talk about progress within a particular doctrine, it seems wrongheaded to talk about overall progress in

17 See Griswold v. Connecticut, 381 US 479 (1965); Brown v. Board of Education, 347 US 483 (1954); Roev. Wade, 410 US 113 (i973);and Lawrencev. Texas, 123 S. Ct. 2472 (2003).

constitutional law or the common law generally in the sense that a particular doctrine reaches a level of sophistication, complexity, or fitness that makes it somehow perfect or even simply better for all time. Like the biological organism, the common law is only as good or bad as its informing environmental context. No legal rule is intrinsically good or bad in some global, eternal, and abstract sense: The lessons of 9/11 confirm that what is and what is not settled or desirable law is always open to revision and alteration. Lawyers too often mistakenly label a highly adapted doctrine as a universal legal good that can be relied on in all circumstances, in all places, and at all times. However, the history of the common law suggests that all such judgments about doctrinal merit must be contingent and conditional. As the furry animal cannot be said to have the perfectly colored coat outside of a particular environmental milieu (i.e., brown for temperate conditions and white for polar conditions), so a legal rule or principle cannot be said to be legally ideal outside of its environmental setting. Moreover, because there is a movement away from some particular legal doctrine toward a different one, it does not mean that the common law is becoming more pure or more close to its immanent supreme form. Any particular doctrine must be assessed in local as opposed to universal terms. The fact that the doctrine of substantive due process was once thought to be inapplicable to the privacy claims of gays and lesbians or that it is later thought to be applicable is evidence of prevailing views of political substance, not enduring attributes of legal form. As one commentator has astutely observed, the common law can only be understood if it is seen for what it is:

[It is] not a romantic ideal or a divine gift or the acme of judicial genius or even the legal aspect, naturally superior, of the most politically wise and refined race, but an interesting human construct, the creature of times and places, of economic forces and class interests, of battles for power between political factions and trials of wits between lawyers of great skill and inventiveness.18

Whatever else it is, the common law is a work-in-progress that is always on the move and that is moved along by historical, social, political, and moral forces, themselves beyond any simple or fixed elucidation.

The history of the common law is as much one of discontinuity and contingency as anything else: Lawyers struggle to deal with the sociopolitical forces that impinge on their lives and to which they contribute to their activities. Progress is an entirely practical and temporal matter as opposed to

18 D. Roebuck, The Background of the Common Law 10 (1988).

some abstruse and metaphysical measure; it is simply about solving problems by closing the gap between present aspirations and existing actuality so that the world can become a locally better place.19 Not only will those problems change over time, but those aspirations will also change. Indeed, there is no epistemology that operates as something above rhetoric and there is no metaphysics that is something above rhetoric. Like debates about substance, there is nothing beyond persuasion among real people in real situations. The demand for integrity or consistency falls down because, at a suitable level of analysis, sometimes high and sometimes low, most things can be made to look more or less coherent. Indeed, despite its hubristic arguments and ambitions, modern jurisprudence manages to confirm the modest Kuhnian-style claim that the practices of law and philosophy, like science, are no more (and no less) than a human pursuit - situated, fragmentary, and flawed. Like all histories, the development of the common law is best understood as a way of coping that is more or less successful in direct proportion to its capacity to achieve substantive justice in the contextual circumstances. Judges who make so-called bad decisions do so largely because of their substantive political leanings, not because of the weak or incorrect judicial method that they deploy. The decisions in Roe or Lawrence are not right or wrong because of the formal merit of their judicial techniques, but because of the lasting appeal of their substantive politics. Settled or fixed principles are simply those that have acquired and still manage to retain sufficient support in the political scheme of things; basic principles do not so much obviate the need for politics as provide a marker for them.20 Contrary to what mainstream jurists believe, formal methods cannot save the law and judges from themselves. Judgment is a substantive instinct that can never be applied in any easy, sweeping, or uncontroversial way.

For example, in a recent historical foray into the common law, D. J. Ibbetson provides an informative and detailed tour of the law of obligations' history. It is a fascinating and traditional trip; it is almost entirely descriptive and accepts most things at face value. There is no real effort to capture the dynamics of the common law or its sociohistorical setting; it is a formalistic and internalist account of law. Instead, Ibbetson relies on an implicit and immanent logic in the common law that seems to thread together the eclectic efforts of multitudinous judges across vast time and varied contexts. There is a strong Popperian flavor to this process. For Ibbetson, the

19 R. Rorty, Achieving Our Country: Leftist Thought in Twentieth Century America 28 (1998). See also supra chaps. 2 and 3.

20 See S. Fish, The Trouble With Principle (1999).

common law proceeds byway of an internal, mysterious, and fixed logic that balances the pull of tradition and the push of transformation. In an admittedly untidy and apparently chaotic process, the common law manages to twist and turn itself through tried-and-tested maneuvers (i.e., inventive gap filing, extensive exceptionalism, subtle distinction drawing, etc.) to meet fresh demands as it remains true to its controlling and enduring ideas; the price of flexibility is the cost of complexity. Informed by such an account, Ibbetson argues that there is a "structural continuity" that runs through the law of obligations from the twelfth century to the twenty-first. After a sweeping series of extravagant claims, he concludes that the virtues of ordered development, substantive betterment, and principled continuity are present:

Whatever changes have occurred on the surface of the law, and whatever accretions have been incorporated into its fabric, at a deep level the structure of the common law has remained remarkably slow-moving. . .. Like an ancient building in continual use for centuries but readapted to satisfy the needs of each generation, the medieval ground plan of the Common Law of obligations remains visible through all the reordering of its internal features and change of use of its component rooms.21

There is so much that is wrong with Ibbetson's analogy. It suggests that change has been reluctant, that there is a steady decline in the common law, that the common law is a relatively inorganic process, that the sources of change are mysterious, and that there is a "structural continuity" that transcends or underpins any changes effected by time. Most importantly, this architectural analogy entirely elides the fact that the development of the common law is not simply a neutral alteration by the ravages of time. Insofar as there is any continuity over time, it is the combined work of particular actors and social forces. Historical patterns and doctrinal trends are little more than medium-term effects of local efforts at the best thing to do. What counts as the best thing to do will change as the political circumstances and social contexts shift. As Kuhn asserts, "part of the answer to the problem of progress lies simply in the eye of the beholder." I take this to mean that perspective is important and that what counts as progress will not be a given fact but a matter of commitment to particular paradigms, because "there is... no theory-independent way to reconstruct phrases like 'really

21 D.J. Ibbetson, A HistoricalIntroduction to the Law of Obligations 294—95 and 299 (1999). See also D.J. Ibbetson, Natural Law and Common Law, Edinburgh L. Rev. 4 (2001).

there.'"22 Of course, there can be a workable level of prediction at a very local level and in specific contexts, but the larger and more general questions will never be resolvable in any final or persuasive manner. The sheer complexity and richness of contingent social life ensure that confidence or certainty in fixed solutions will remain elusive. This is no bad thing. As Popper ironically noted, "there can be no explanation which is not in need of a further explanation."23 If this is relevant to scientific enquiries, it is doubly pertinent to studies of law and society: There simply is no fact of the matter when it comes to understanding the historical development of the common law in particular societies.

Another way of expressing this idea that is more salient to this book is that law and legal theory are never an answer that can speak for themselves. It all depends on the political context, which, of course, always speaks out of both sides of its mouth and in a garbled accent. Kuhn identifies the existence of such a state of affairs in science, even if he does not chart them in any sustained or detailed fashion. He showed how science was much like any other discipline in that it required sources of cognitive authority and intellectual control in order to protect the communal culture from rebels and renegades; these sources might include pedagogical techniques of professionalization and knowledge management, hermeneutical devices for delineating the range of accepted meanings, and institutionalized procedures for legitimating transformative initiatives. If such conditions are in play in science, they are doubly evident in law. There is no need to go as far as Kennedy's claims that law school is an education site for the reproduction of hierarchy in order to demonstrate that initiation into the common law tradition is as much about acquiring certain habits ofmind and internalizing certain values as it is about learning vast bodies of legal rules and honing various research strategies.24 The law school experience and early years in legal practice combine to offer the common lawyer not simply the facts of law but a particular way of looking at those facts. Indeed, it is the considered view of manyjurists, both of a Soapy Sam and Bulldog strain, that law school can only do its job satisfactorily if it supplies prospective lawyers with a so-called suitable (i.e., one that reflects the particular advocate's professional and political commitments) orientation about law's role in society. As with science, what turns out to be the fittest way to practice law is a historical function of

22 T. Kuhn, supra, note 13 at 163 and 206. For a different and organic analogy of common law growth, see infra chap. 9.

23 K. Popper, Objective Knowledge: An Evolutionary Approach 195 (rev. ed. 1979).

24 D. Kennedy, Legal Education as Training for Hierarchy in The Politics of Law: A Progressive Critique 40 (D. Kairys ed. 1982).

gradual evolution • punctuated equilibrium

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