Where Law and Science (and Religion) Meet

I. IntroductionIn the relatively short span of human history, primarily three great disciplines have vied for dominance. These are law, science, and religion. Each, in its own manner, has something to say about both the descriptive world that is and the prescriptive world of what ought to be. Because these great professions cover much of the same ground, conflicts are inevitable. Indeed, from the time of Copernicus to modern debates about evolution, law, science, and religion have collided. To their great credit, the organizers of this Symposium included papers that explored the intersections of all three institutions, with most of the presenters' attention devoted to where law and science meet. In this Article, I offer some general observations regarding, in particular, the intersection of law and science but offer some tentative observations regarding where law and science have their roots-in religion.Let me begin, however, with what I believe is the first principle in regard to the study of the respective intersections of law, science, and religion, a principle that guides all that follows. Each is a separate discipline, and each has its own decision rules and reasons for interacting with the others. The interactions of the three disciplines, of course, produce four basic territorial intersections, each with its own peculiarities and with relations potentially flowing in either direction.1 Thus, for example, where law and science meet, law might use science to inform its processes or substance and, in reverse, science might use legal standards that inform its processes or substance. Each intersection represents a territorial boundary; there is no domain, at least in the United States, in which any of these disciplines truly share territory. To understand any particular intersection, therefore, one must examine it from one side of the fence or the other. My interest in the subject comes primarily from standing on the law's side of the fence, looking over at science and religion with the hope and expectation that they might help answer some of the questions the law asks. My concern, then, is how law can best employ science or religion to accomplish the needs, values, principles, and demands of the law.II. Religion Begets Science and LawOne way to understand science and law is to see them as the successors to religion. Religion, of course, has hardly disappeared from the scene. But where there was once only religion to define the empirical world, craftthe legal order, and determine the fate of people's souls, science and law have joined these efforts. Science today is primarily associated with the defining-the-world part of the effort and law the legal-or normative- order. Religion continues to hold sway over souls. Indeed, it might be thought that the three great professions of law, science, and religion have largely divided the domains of the legal, empirical, and spiritual between them. This would be a mistake, however. Although the legal, factual, and empirical domains describe these professions' respective fields of focus, they each regularly trespass on the territory of the other two.In an earlier work, Legal Alchemy, I explored one of the key transition points between religion and science. But, as I noted there, "[t]he transition from ancient sorcery to modern science . . . was not as smooth or as complete as we might like to believe."2 Indeed, Sir Isaac Newtonnot only discovered gravity and charted the heavens using calculus, but he also experimented with alchemy and numerology. Many core insights of astrology remained integral and respected components of science until the late seventeenth century. However reputable science might be today, its roots lie deep in the mystical practices and superstitions of the past.What we now consider to be within the province of science, previous centuries called the philosophy of nature or natural philosophy. Isaac Newton . . . entitled his masterwork The Mathematical Principles of Natural Philosophy. …