Needed: a specifically dedicated SCIENCE Court

Laws (and the legal system) should be compatible with the realities of nature

Unfortunately, it is far from easy to establish what the realities of nature are, in all their details and great diversity. In modern times, “science” is generally believed or expected to deliver authentic knowledge about nature: what things exist and how they behave and interact.

However, scientists often disagree, and something like a specifically Science Court would help lawmakers and the legal system to avoid actions that cause harm by accepting as facts what are merely opinions; and public discourse and the media would also benefit greatly from an independent, impartial assessment of claims coming from the scientific community.

Trust in science does seem reasonable in view of the tremendous advances in knowledge and understanding achieved, especially perhaps in the era of “modern” science (approximately the last half-millennium). History, however — including the history of science, and very much the history of modern science — teaches quite unequivocally that “science” (i.e. scientists) usually (or at least often) gets things wrong at first; and that (self-)correction, even if it eventually comes, may take a long time.

Science is a human activity. Scientists are human, and therefore resist changing their beliefs. The same is true of human groups, including those groups that happened to be experts and researchers in any given field of science. So whenever a new discovery seems incompatible with a contemporary consensual belief, that discovery is ignored or disbelieved or actively rejected [1], and the discoverer(s) may lose status, resources for research, even jobs or careers.

That resistance against changing consensually accepted theories (and also agreed-on “facts”) is typically so determined that something like a veritable revolution is needed to bring abandonment of a mistaken theory [2]; indeed, the distinguished Max Planck [3] ventured that the scientific community does not fully or finally accept the correction of a mistaken scientific belief until adherents to that earlier belief have disappeared from the scene — science advances funeral by funeral, so to speak.

The crucial point is that any contemporary consensual belief in any given scientific specialty may be mistaken and misleading — and, of greatest significance, the maverick experts who already recognize that the contemporary consensus is flawed are ignored, dismissed, denigrated, or actively suppressed. Outsiders, lay people, may therefore be quite unaware of the possible deficiencies of current scientific beliefs, which are what everyone “knows” and what policy makers rely on when creating laws and planning public actions. It should not be surprising, therefore, when the legal system has to reverse itself on cases that hinge on highly technical matters and where law-makers had been legislating inappropriately. Thus a Supreme Court decision in 1984 established the “Chevron doctrine”, that when a plaintiff argued against a federal agency, the agency’s “reasonable interpretation” should prevail; four decades later, the Supreme Court reversed itself [4]. But the legal system should not have to decide whether to accept an interpretation of inconclusive data from an agency or from a challenger. Both lawmakers and the legal system could work better and more consistently if there were some unbiased, independent, authoritative body to establish the facts, pros and cons, and particularly probabilities when the material facts are not decisive and there is no unanimity among experts.

A mistaken scientific consensus accepted as true can bring misguided public actions and inappropriate laws, thereby potentially causing harm in unforeseeable ways.

Public discourse does often show awareness that some commonly accepted medical practices were, in the past, inappropriate and harmful; but it is not generally recognized that any given contemporary medical practice may yet turn out at some future time to have been based on mistaken premises and to have harmed some unknowable number of individuals.

One well-recognized example of that actually happening is the theory of human eugenics, under which tens of thousands of Americans were forcibly sterilized during the 20^th century [5], in a mistaken belief once consensual among expert behavioral “scientists”, that certain behavioral traits (“feeble-mindedness”, poverty, criminality) are hereditary. Challenges to and protests against forcible sterilization found that the legal system was of no help: the standard system of justice relies on what the contemporary expert “scientific” consensus happens to be.

It is important always to bear in mind that the consensus of any professional community is opinion and not guaranteed truth. As Michael Crichton pointed out [6], professional consensus is only cited as supposedly authoritative and decisive when the matters are not so clear as to have brought unanimity within the specialist community. No one cites as a professional consensus that E=mc², or that the Sun is 93 million miles from the Earth: those facts are so indisputable that everyone simply agrees, there are no maverick experts dissenting over those matters.

Quite a few widely accepted contemporary medical practices are alleged, by well-informed contemporary professionals [7], to be just as mistaken and misguided as the theory of human eugenics; for example, that cardiovascular disease is caused by (rather than just statistically associated with) excessive amounts of some type of cholesterol in the blood [8], or that it is healthy for the blood pressure of older people to be no higher than that of people in their twenties or thirties [9]. Most sadly, the virtually universal belief that AIDS was caused by a sexually transmitted, immune-system-destroying virus (“HIV”) has led to unnecessary psychological harm and the administration of harmfully toxic substances to very large numbers of people around the globe for some four decades [10].

The behavioral, social, and medical sciences are at greatest risk of acquiring and holding to mistaken beliefs, because in those fields the huge diversity of variables, together with the inevitable reliance on statistical data, analysis and interpretation, makes it particularly difficult to gain decisive knowledge and understanding; nor can any given consensual belief be definitively disproved to the satisfaction of all concerned when the evidence is statistical and not a clear binary “true-or-false”.

There are ample examples also in the physical sciences of consensual beliefs that are regarded as wrong by some substantial number of well-informed experts [11]; notably, concerning the belief that human activities are the prime or main cause of global warming and climate change. Well-informed experts dispute that consensual belief, for example by citing actual officially published data indicating that human activities are responsible for only a very small percentage (~1% !) of the energy flow pertinent to global climate [12]. If the maverick experts turn out to have been right, there will have occurred in the meantime considerable harm, for several decades already, through public actions and misleading official advice as to desirable public, collective, and individual everyday activities.

Could we find some safeguards against the possibility that HIV or climate change might be instances of mistaken consensual “scientific” beliefs causing considerable damage, damage even greater than that brought by human eugenics?

How best to cope with issues of considerable public importance when the active researchers and pertinent experts are not unanimous?

How to estimate the likelihood that one or the other side is more likely to be correct, when there are opposing opinions from groups of equally expert professionals?

That problem was addressed not long after World War II when experts were differing sharply and passionately over the possible safety of nuclear reactors for generating power for civilian purposes. Arthur Kantrowitz then suggested [13] something like an “institution of scientific judgment”, a concept that has been discussed at various times over the years, more usually under the rubric of a “Science Court”. For a detailed discussion and history, see chapter 12 in my last book [14].

The point is to establish a forum in which the opposing claims are argued publicly and openly, with questioning and cross-examining on all points. The aim would not be to establish the “truth of the matter”, as in a criminal case in the legal system, since the very disagreement amongst experts indicates that the available evidence does not yet permit a decisive conclusion. The hearing would be rather like that for a civil action in the legal system, to bring a judgment of “more likely than not”. All proceedings would be open and public, which would suffice for the media, policy makers, and the general public to take reasonably informed actions by recognizing uncertainties and weighing the possible consequences of available public actions and policies.

As in the regular legal system, protocols would be designed to eliminate, as far as possible, conflicts of interest and pre-existing prejudices from those supervising the discussions and those charged with delivering judgments. Pools of potential assessors might include people able to be not intimidated by technical discussions — high-school and college teachers, for example, perhaps practicing accountants or engineers or other professionals.

Since we would all prefer that Nature’s facts be compatible with our beliefs, potential jurors should probably not include actively partisan political or religious ideologues. Most suitable might be people registered as independent voters, together with equal numbers of registered Republicans and Democrats. No matter how carefully a Science Court might be designed initially, however, it would surely benefit from improvements based on actual experience.

There is no doubt, however, that some such institution is sorely needed, and will become even more necessary as ever more powerful technologies bring new practices and dangers.

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[1] Bernard Barber, “Resistance by scientists to scientific discovery”, Science, 134 (1961) 596-602.

[2] Thomas S. Kuhn, The Structure of Scientific Revolutions, University of Chicago Press, 1970 (2^nd ed., enlarged; 1^st ed. was 1962).

[3] Max Planck, Scientific Autobiography and Other Papers, 1949 (translated from German by Frank Gaynor, Greenwood Press, 1968).

[4] Table of Supreme Court Decisions Overruled by Subsequent Decisions; https://constitution.congress.gov/resources/decisions-overruled/

[5] Philip R. Reilly, “Eugenics and Involuntary Sterilization: 1907–2015, Annual Review of Genomics and Human Genetics, 16 (2015) 351-68; also Cera R. Lawrence, Oregon State Board of Eugenics, 3 May 2012; https://hpsrepository.asu.edu/handle/10776/5663.

[6] Michael Crichton, “Aliens Cause Global Warming”, Caltech Michelin Lecture, 17 January 2003; http://science and public policy.org/commentaries-essays/commentaries/crichton-three-speeches

[7] Henry H. Bauer, “What’s wrong with present-day medicine”; bibliography last updated 29 October 2020; https://mega.nz/file/gWoCWTgK#1gwxo995AyYAcMTuwpvP40aaB3DuA5cvYjK11k3KKSU

[8] Malcolm Kendrick, The Clot Thickens: The enduring mystery of heart disease, Columbus Publishing, 2021; and earlier works in [5], say Kendrick 2007/8 and Ravnskov 2000

[9] Duane Graveline, “Blood pressure and heart disease”, https://spacedoc.com/articles/blood-pressure-and-heart-disease

[10] Henry H. Bauer:
The case against HIV, http://thecaseagainsthiv.net; a bibliography of more than a dozen books and >900 articles, last updated December 2017;
The Origin, Persistence and Failings of HIV/AIDS Theory, McFarland, 2007;
“Confession of an ‘AIDS denialist’: How I became a crank because we’re being lied to about HIV/AIDS”, pp. 378-82 in You Are STILL Being Lied To -- The REMIXED Disinformation Guide to Media Distortion, Historical Whitewashes and Cultural Myths, ed. Russ Kick (Disinformation Co., NY, 2009)

[11] Henry H. Bauer, Dogmatism in Science and Medicine: How dominant theories monopolize research and stifle the search for truth, McFarland, 2012; examples include Big-Bang theory in cosmology (pp. 13-18), and (in chapter 4) cold nuclear fusion, plate tectonics, string theory, special relativity.

[12] Steven E. Koonin, Unsettled: What climate science tells us, what it doesn’t, and why it matters, BenBella Books, 2024 (updated and expanded, 1^st ed. was 2021).

[13] Arthur Kantrowitz, “Proposal for an Institution for Scientific Judgment”, Science, 156 (1967) 763–4.

[14] Henry H. Bauer, Science Is Not What You Think: How It Has Changed, Why We Can’t Trust It, How It Can Be Fixed, McFarland, 2017.