Practical Impossibility versus Scientific Impossibility

Recently I gave a lecture which touched on the differences between traditional legal research and scientific research. One point I made was that lawyers work on severe time constraint, and therefore have to give advice or make submissions which are just good enough within the limits of their resources. On the other hand, scientists have a longer time horizon, and therefore might be interested in solving a problem which takes a very long time. One example I gave was the solution to the Fermat's last theorem which took more than 350 years.

One consequence of adopting the lawyers approach is that legal scholars tend to make claims without taking the pains of obtaining scientifically acceptable evidence. Furthermore, claims make by empirical legal scholars which do not fit their intuitive understanding are dismissed as wrong, and suggestions are made that the empirical exercise is ill-conceived and has to be abandoned.

What this boils down to is that traditional legal scholars take practical impossibility as equivalent to an outright impossibility. If conducting a research is practically impossible, it should never be pursued. A legal scholar which takes a more scientific approach might see the problem differently. He might want to first know whether a solution to his problem is scientifically impossible. If there are suggestions that a solution is scientifically possible, but that the current techniques makes such solution practically impossibility, then the researcher will have to further develop the technique or methodology in order to come to a solution. Therefore, to a scientific researcher, only scientifically impossible problems are to be avoided. The solution to practical impossibility is to discover a better technique, or to refine an existing technique, until it is good enough to overcome the initial practical impossibility.

What this teaches us is that we should not dismiss off hand claims in empirical legal research which do not concur with our current understanding. They might be wrong, but they are wrong because the techniques are crude, and not that it is scientifically impossible to come up with the right answer. Most scientific ventures start off badly because the initial methodology is crude. But over time, as techniques are refined, the scientific approach will give us better answers compared to the intuitive approach. Legal reseachers using the scientific approach therefore will have to work doubly hard in improving their techniques in order to overcome the scepticism of traditional researchers.