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Copyright (c) 1989 Emory University School of Law.
Emory Law Journal

ARTICLE: TO HAVE AND HAVE NOT: ASSESSING THE VALUE OF SOCIAL SCIENCE TO THE LAW AS SCIENCE AND POLICY

FALL, 1989

38 Emory L.J. 1005

Author

David L. Faigman *

Excerpt

INTRODUCTION

Indispensable to the art of lawmaking are the arts and sciences of understanding human behavior. In trying to understand human behavior, the law is joined by a host of disciplines which bring widely varying methods to the subject. Some disciplines, those traditionally classified as the humanities (e.g., philosophy, history, and literature), employ methods commonly relied upon by legal analysts, such as logical reasoning, 1 historical analysis, 2 literary interpretation, 3 and common sense. Other disciplines, however, those traditionally classified as the social sciences (e.g., psychology, psychiatry, economics, political science, and sociology), 4 claim special knowledge of human behavior beyond what standard legal analysis can provide. 5 Through the application of the methods of science, the social sciences claim an "objective" understanding of human behavior. What relevance social science research has to legal decisionmaking depends upon the validity of this claim.

The role of social science in the law has been, at best, an uncomfortable one since it was first cast in Muller v. Oregon. 6 One commentator observed, for example, that "these meeting grounds are rather like the parlor in the Victorian home in which the girl and her suitor can get together -- but not get together too much." 7 Indeed, this metaphor serves well, for social science as suitor has been alternately embraced and rejected by the law; so far the law cannot seem to decide whether to submit to the overtures of social science. 8 The seeming indecision, however, reflects the ...
 
 
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