Not Using Science
As stated above, there are two reasons that legislators and judges will not
always deploy scientifically based behavioural laws when making and
interpreting law. First, behavioural science is incomplete. It can explain some
things but not everything. Second, legislators and judges are generally not
trained in behavioural science. Consequently, even if there is a relevant causal
law, they may not know of its existence.
For both of these reasons, legislators and judges are sometimes forced to rely
on causal laws that are not properly grounded in science. In truth, they are
assumptions. Such assumptions may be derived from hunch, guesswork and
impression, all being processes which are not “readily susceptible of precise
analysis”.
407
Generally they acquire these laws from informal
and
highly
subjective
sources
such
as
common sense, intuition, ideology, anecdote,
received
or conventional wisdom,
casual
observation,
advice
from
mentors,
popular wisdom, conventional perception, idle speculation, popular
stereotypes, general knowledge, experience, folklore and folk psychology.
408
Since these laws are not scientifically grounded they may be infected by error
or prejudice.
409
Given this, it is necessary for legislators and judges to recognise that some of
the behavioural laws that they deploy in making and interpreting law may not
have a sound scientific basis and in consequence may not be true. Without this
insight they may err too easily and too gravely. As Jerome Frank aptly put it:
“There can be no greater hindrance to the growth of rationality than the illusion
that one is rational, when one is [in fact] the dupe of an illusion”.
410
Nature of Causation
Earlier this year, a British government-sponsored report blamed the decline
of family meals in part for unplanned teen pregnancies. It seems lack of
___________________
407
Federal Commissioner of Taxation v Chubb (1995) 128 ALR 489
408
Hodgson (1995) p 738, Neat Holdings v Karajan Holdings (1992) 67 ALJR 170 at
170-171, and see also Briginshaw v Briginshaw
(1938) 60 CLR 336 at 361-362.
Twining (1984) p 70 describes it: “We have little systematic knowledge about the
psychological processes of ‘weighing’ evidence, about the actual operation and
impact of the rules of evidence, about the probative value of most kinds of
evidence in respect of particular kinds of probanda or about how information is
actually processed and used at different stages of litigation and like processes”.
However, some research has been done – see, for example, Schum (1982).
409
Jegatheeswaran v Minister for Immigration
[2001] FCA 865 (9 July 2001), per
Finkelstein J, par [58], citing Thayer (1898), Damaska (1997) p 25, Twining (1997) p
69 and Anderson (1999).
410
Frank (1930) p xx
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