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Judges make lousy social scientist

Posted on April 30, 2017 at 3:45 PM


Social sciences include history, sociology, economics and philosophy and some of the earliest historical giants in these fields had their training in history, religion and philosophy, Adams, Marx, and Weber. 

Modern pundits from these fields examine human behavior by developing some measureable characteristics and attempt to quantify these characteristics into some predictive modality. Although they will not admit it the opinions of these scholars and their studies have little predictive value and worse have no value to judges.  After all humans are too unpredictable and most social scientists fail to remember “we cannot quantify mystery”.

Judges don’t usually read nor care about these studies.  They find them of little help to their sense of jurisprudence.  For example, in a 2005 National Review article, Liberals ‘N’ Lawsuits, Supreme Court Justice Neil Gorsuch wrote, that “constitutional litigation” to achieve social change such as gay marriage, assisted suicide and vouchers for private school education is wrong. It only causes “politicization of the judiciary and “political atrophy”. 

Jurisprudence is the philosophical application of community rules to situations of current conflict and is a philosophical process that develops rules of behavior to avoid future conflict.  In other words the community will develop norms of behavior and then rules of behavior which stem from its “need for order”.

The science of law is defining an important community issue, identifying salient facts, and finally applying a rule in some contorted analysis to reach a conclusion. Law students know this as the Socratic case study of law methodology.

The science of law is really a formal process of critical thinking surrounded by community values and mores.  The process is an attempt to resolve conflicts, which arise among incompatible members of the community. This process develops rules of behavior. These rules of behavior “the law” are formal expressions of the values of a dominate group in a community. This is the “Natural Law”.

Development of “Positive law” occurs after a community establishes political bodies, legal institutions, and law enforcement agencies. All in some social, economic, philosophical and historical framework. Judges, as members of the community are the Solomon’s of justice, legal decision makers, and the administrators of justice. And although they should be from the community, often they are not. They now have little experience with the community.  All too often they are not chosen by the community-election but rather picked by a governor who appoints them from a select field chosen by a small legal elite group who are also devoid of any communal values.  This group conducts its selection in a secretive star chamber.

The selection of judges, their total disconnect from the community, combined with their lack of education in the social sciences explains why judges are “lousy social scientists” and their decisions reflect it.

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