Lord Neuberger discusses scientific and legal thinking in Royal Society speech
Lord Neuberger delivered a speech on science and law at the Royal Society in London in which he discussed the different ways in which lawyers and scientists reason as well as the use of science in the courtroom.
The President of the UK Supreme Court hails from a strong scientific tradition, both his father and brother were distinguished biochemists and Fellows of the Royal Society.
He himself “spent four years trying to be a chemist” and undertook research into semi-synthetic proteins before realising his talents lay elsewhere.
He said: “I still harbour a vestige of a sentiment that practising in any discipline other than a scientific one is a second best. To paraphrase what Lord Rutherford allegedly said, I have the sense that, when it comes to intellectual pursuits, there is maths and science and that everything else is stamp collecting.”
He added that when he visited German academics, they were “incredulous” that someone with only a year’s education in the law could become a senior judge. However, he explained it away as the ability to move from a more rigorous subject to a simpler one.
Describing their response, he said: “Edward Lear had a good description for my audience’s reaction – mingled affection and disgust.”
While a science exam, unlike a legal one, can often have a clearly right or wrong answer, this does not reflect the shifting paradigms in science which mean the answer to what is true or correct is contingent on when the question is asked. For example, the Newtonian worldview was turned on its head in the wake of Planck and Einstein. In contrast, law students and lawyers are always dealing with fraught questions, Lord Neuberger noted.
Perhaps cutting-edge science has more in common with law. The theoretical physicist Brian Greene says that string theory, a candidate for a “theory of everything” in physics has “the potential to show that all of the wondrous happenings in the universe … are reflections of one, grand physical principle, one master equation.” Others would say, however, that, having yielded nothing verifiable, string theory is a waste of money.
The President of the Supreme Court also discussed the “contrasting role of common sense in scientific and legal thinking”. Scientists have had to perform the difficult task of actively rejecting it in order, for example, to accept quantum entanglement – the situation in which a particle’s quantum state cannot be described independently but only as a system of particles. At the highest levels of law, meanwhile, common sense is relied upon to decide, for example, what a commercial contract means: Rainy Sky SA v Kookmin Bank .
And while logic is fundamental to scientific endeavour, its role in law is less clear. Lord Neuberger cited 17th century English judge Sir Edward Coke, who said “Reason is the life of the law”, while the 19th century American judge Oliver Wendell Holmes famously said: “The life of the law has not been logic; it has been experience”. Lord Wilson, a Justice of the Supreme Court, recently said that “logic is the blood which runs through the veins of the law: allow it to escape and ultimately the edifice collapses”. These views point to different jurisprudential positions, which again bears more similarity to theoretical science.
Lord Neuberger cautioned that logic plays a “vital” part in the law. He said: “When a judge has to decide, as the Supreme Court did fairly recently, whether the absolute ban on assisting a suicide contravenes human rights, we all did our best to ensure that we discounted our own religious, social or moral views on the topic.”
On a more practical note, the judge advocated the use of scientific instruction in complex cases involving expert scientific witnesses. He mentioned the abuse of statistics, which in one case, went unchallenged and the “danger that a judge, and indeed lawyers, can be beguiled by the simplicity or elegance of a scientific technique or by the confident assertions of a scientifically qualified expert into thinking that his evidence represents a flawless and easy solution to the problem which requires to be solved.”
He added: “Attractive though it often seems, much so-called scientific evidence is not as reliable as many like to think. In its excellent 2009 report, the US National Academy of Sciences warned that, “with the exception of nuclear DNA analysis, … no forensic method has been rigorously shown” to constitute reliable evidence. This includes fingerprint and bite mark analyses. And even with DNA profiling, there are uncertainties and risks, as is exemplified by theHanratty case and also by more recent Court of Appeal decisions relating to Low Copy Number (LCN) DNA, the analysis and interpretation of Low Template DNA.”