April 19, 2011


Bernard E. Harcourt, Language of the Gun: Youth, Crime, and Public Policy (Chicago & London: U. of Chicago Press, 2006) (" 'Do you think you can govern innocently?' Hoederer asks. In the field of law and public policy, many turn to the social sciences in order to answer yes. . . . Here I throw in my lot with Michael Walzer: 'My own answer is no. I don't think I could govern innocently. But this does not mean that it isn't possible to do the right thing while governing' . . . . In the end, the choice of a methodological approach in social science research is not dictated by science, and the implications we draw for our laws and public policies are not entirely scientific. When we adopt a social science method, we make a decision about the way in which we are going to shape the human subject, and in the possess we dirty our hands. We have made an ethical choice." Id. at 235. "This book . . . is about coming of age. It is about revisiting one's youthful idealism and, in the process, infusing acts with new meaning. In this book I advocate embracing the paradigm of dirty hands in the field of law and social science-a domain of human inquiry that is very foreign and resistant to the idea. I urge that we acknowledge and render transparent the ethical choices that are embedded in lawmaking and policy making. I advocate that we expose the hidden assumptions about human behavior that underlie our social science methods and that we openly evaluate these assumptions by assessing the price we pay when we decide to believe any one of them. Not, of course, that we lie or cheat or compromise out integrity. That is not the meaning of 'dirty hands' that I embrace. What I urge, rather, is that we make explicit the behavioral assumptions that shape our laws and public policies in order to make our ethical choices open and clear." "'Politics is science,' Hugo exclaimed. It is precisely this idea, so commonly applied to law and social science, that we must resist. The very choice of methodological approaches that we take in social science research does not--and more important cannot--rest on a scientific decision. Methodological traditions in the human sciences--whether phenomenological structuralist, or practice theory, to name but a few--are themselves are not falsifiable. There is generally some evidence to support each of the established methodological traditions, and as a s result none of them can be disproved outright. Yet when it comes to their implications for law and public policy, each tends to lead in a different direction. In this sense the choice of methodological orientation in the field of law and social science is not itself a scientific choice,. It is, rather, an ethical choice with important distributional consequences for society and the human subjects." "This insight--this radical insight, I suggest--destabilizes the field of law and social science. It means that lawmakers and policy makers can no longer proceed in the traditional manner: from neutral social science, data collection, and empirical findings to lawmaking and public policy analysis, In the past, this was proper form. Researchers conducted an empirical study . They set forth their research methods, They laid out their data and empirical findings, And then they drew the necessary public policy conclusions, The logic was simple, The direction of inference was straightforward Even the format of the research research paper was set ahead of time, But all of that is in doubt if, as this insight suggests, the policy conclusions themselves are already shaped by hidden assumptions about human behavior that are themselves already embedded in the methodological orientation toward data collection and analysis. The choice of social science approaches and associated methods--whether statistical, ethnological, survey research, or in-depth interviews--is itself a choice that shapes the orientation of law and public policy." Id. at at x-xi. This book is about how youths think about guns and, as a consequence, how we might better think about youth crime and the public policy pertaining to youth crime. The book merits a careful read on those issues. That said, my recent reading of Language of the Gun came at a good time for reason having nothing to do with guns and youth crime. What captured my attention is that radical insight the choice of methodological approach is itself an ethical (and not merely an intellectual) decision. And, moreover, that those of us involved in lawmaking and public policy making, even if only indirectly as law teachers and as law researchers, are making ethical choices in how we approach those tasks. I found myself asking" Can one teach law innocently? Or, does all law teaching involve dirty hand? I concluded that, just as the choice of methodological approach in research, in lawmaking and public policy making involves an ethical choice, the choice of teaching methodological approach is also very much an ethical choice. And here, by 'teaching methodological approach,' I am not simply referring to decision about adopting or not adopting a Socratic Method, but about choices about whether (and how) to incorporate economics, sociology, literature, religion, philosophy, race theory, feminist theory, etc., etc., etc. The teaching methodological approach adopted will impact how and what law students will learn, how they will approach legal problems and issues, how they will practice law, what lawmaking and public policy making they will engage.).