Occurrence of and radioanalytical methods used to

by the re-emergence of pragmatism or neo-pragmatism and the discursive turn in social theory, among different movements claiming affiliations to post-modern theory. These new theories change the traditional perception of the process of scientific discovery and consequently the relation between law and science, which is fundamental for the understanding of the integration of scientific (and economic) expertise in litigation.

Although there are different versions of pragmatism, such as that of Peirce, James, Dewey, Rorty, a common trend that runs across the pragmatism movement is the opposition to foundationalism, the view that there is an objective Truth and that the scientific method provides a unique pathway to discover reality. However, pragmatists are not relativists; they simply adhere to an instrumental definition of reality/truth: truth is what works as the solution of concrete problems and enhances human knowledge.¹⁸⁸ This instrumental definition of reality leads pragmatists to question, what they call, the “spectator theory of knowledge”¹⁸⁹. Rorty attacked this “mirror metaphor”

188 Hilary Putnam, “Pragmatism and moral objectivity”, in J. Conant (ed.) Words and life.

(Harvard University Press), 151, at 154 summarizing the four characteristics of pragmatism,

“(1) antiskepticism: pragmatists hold that doubt requires justification as much as belief [...]; (2) fallibilism: pragmatists hold that there is never a metaphysical guarantee to be had that such-and-such a belief will never need revision (that one can be both fallibilistic and antiskeptical is perhaps the unique insight of American pragmatism); (3) the thesis that there is no fundamental dichotomy between “facts” and “values”; and (4) the thesis that, in a certain sense, practice is primary in philosophy”.

189 John Dewey, Reconstruction in Philosophy, (Beacon Press, 1948) at 122-123: “(w)e tend to think of after the model of a spectator viewing a finished picture rather than after that of the artists producing a painting…For these all arise from a conception of the relation of mind and world, subject and object in knowing, which assumes that to know is to seize upon what is already in existence”.

or representational theory of knowledge”: knowledge amounts to “a special privileged class of representations”¹⁹⁰. The research process is inevitably situated and contextual; truth is made, not discovered. It is therefore

“pointless to isolate something called ‘the scientific method”¹⁹¹.

Rorty advanced a different conception of science, perceived more as a discourse, a conversation or rhetoric. Scientific discourse constitutes “a particular type of social conversation”¹⁹². There are no constraints on the object of the scientific inquiry, “save conversational ones”¹⁹³. This has important implications on the conception of scientific knowledge:

“…scientific knowledge is not the result of an attempt to mirror nature but rather the outcome of a particular type of social conversation: the scientific conversation. From here, it is but a short step to the explicit study of science as discource or rhetoric: the view that science is best understood as a type of of persuasion – a particular type of persuasion – but one that should be examined by employing the tools of rhetorical analysis”¹⁹⁴.

Deirde McCloskey conceptualized economics as a form of persuasive language, what she called “the rhetoric of economics”.¹⁹⁵ McCloskey distinguishes between the official philosophy of economics, positivism, that economists employ in their interaction with the outsiders and the

“conversation economists have among themselves for the purposes of persuading each other” of a specific thesis or model.¹⁹⁶ The point is, as Boylan and O’Gorman observe, that “economists are not working in a positivistic vacuum: rather they, like other scientist, are addressing audiences in historically situated contexts”¹⁹⁷. In that sense, “mathematical models are literary figures of speech”¹⁹⁸. McCloskey is highly critical of the “modernist”

influence in economics, the idea that “science is understood in axiomatic terms with the focus on prediction, control and the observable world”¹⁹⁹. This type of rule-bound methodology may work for physics and mathematics but these are not good models for economics²⁰⁰. As McCloseky notes,

“In practice methodology serves chiefly to demarcate Us from Them, demarcating science from nonscience … Methodology and its corollary, the Demarcation Problem … are ways of stopping

190 Richard Rorty, Philosophy and the Mirror of Nature, (Princeton Univ. Press, 1979), at 163.

191 Richard Rorty, Contingency, Irony and Solidarity (CUP, 1989), at 52.

192 Richard Rorty, Consequences of Pragmatism, (Univ. of Minessota Press, 1982), at 165.

193 Ibid..

194 D. Wade Hands, Reflection without Rules – Economic methodology and Contemporary Science Theory (CUP, 2001), at 249.

195 Deirde McCloskey, The Rhetoric of Economics, (Univ. of Wisconsin Press, 1985).

196 Ibid., at xviii.

197 Thomas A. Boylan & Paschal E. O’Gorman, Beyond Rhetoric and Realism in Economics (Routledge, 1995), at 37.

198 Ibid., at 38.

199 Ibid..

200 Ibid..

conversation by limiting conversation to people on our side of the demarcation line”.²⁰¹

There is “no need for philosophical lawmaking or methodological regulation to keep the economy of intellect running just fine”²⁰².

McCloskey does not deny the utility of method “with a small m”, but distinguishes it from the modernist Methodology, which may lead to fanaticism and intolerance²⁰³. This method “with a small m” constitutes the Sprachethik of economics, “the meta rules that we implicitly adopt by the mere fact of joining what our culture thinks of as conversation”.²⁰⁴ The analogy of economics as a form of conversation shows how insignificant is the issue of demarcation, the question of how we distinguish true science from pseudo-science, “since nothing important depends on the outcome”²⁰⁵. As Marc Perlman notes,

“economists’ self-perception is that of an expert. But economists are not experts; they are basically persuaders”²⁰⁶.

The challenges of pragmatism to the received view of scientific objectivity and to Methodology may acquire greater force if one thinks of the contingency of the main object of economic thought: human affairs.

If economics is conceived as a form of discussion/communication whose objective is not to discover the external world but to promote the cognitive interest of the participants to this “dialogical encounter”, in other words to achieve self-knowledge²⁰⁷, then there is little point in having different rules for the assessment and integration of economics than for other forms of discourse. This is not to say that there are no scientific methods (with a small m) but that the legal system should recognize the importance of methodological pluralism in designing the interaction between legal and economic discourse.

Important practical implications follow from this approach. First, it is futile to raise demarcation barriers before assessing the practical utility of the specific point of view, in conjunction with a series of observations, theories or other points of view. Second, judicial decision makers should assess the economic discourse critically, as they would have done for any other type of

201 Deirde McCloskey, The Rhetoric of Economics, at 161.

202 Deirde McCloskey, Knowledge and Persuasion in Economics, (CUP, 1994), at 28.

203 Deirde McCloskey, The Rhetoric of Economics, at 4, “economists adopted a crusading faith, a set of philosophical doctrines, that makes them prone now to fanaticism and intolerance. The faith consists of scientism, behaviourism, operationalism, positive economics and other quantifying enthusiasms of the 1930s. In the way of crusading faiths, these doctrines have hardened into ceremony, and now support many nuns, bishops, and cathedrals”.

204 Thomas A. Boylan & Paschal E. O’Gorman, at 41. One could note a close relation between McCloskey’s criticism of Methodology and the work of Paul Feyerabend, Against Method (New Left Books, 1975).

205 Deirde McCloskey, The Rhetoric of Economics, at 41.

206 Cited by Deirde McCloskey, The Rhetoric of Economics, at 167.

207 Patrick Baert, Philosophy of the Social Sciences (Polity Press, 2005), at

discourse. This is not to deny the specific difficulty of non expert judges that need to understand and critically assess complex economic expertise.

Different mechanisms could be developed to address this issue²⁰⁸.

Courts should examine the various contexts of the specific economic discourse: historical (a sort of archeological approach á la Foucault, where the legal decision maker examines the genealogy and evolution of the specific economic concept)²⁰⁹, social (the disciplinary function of the specific discourse, in other words the aim it was and is still supposed to achieve) and cultural (the relation between the economic discourse and other types of discourse, the perception of the specific discourse inside and outside the

“economists’ club”). More importantly, the judicial decision maker should acknowledge the different nature of her mission, in comparison to that of the economist or expert: her objective is not to develop self-understanding and self-knowledge but to give a legitimate (in the sense of persuasive) solution to a legal dispute. For example, the legal decision maker should find irrelevant the need for economists to define restrictively the object of their study in order to increase its epistemological accuracy (in terms of deductive reasoning) and therefore respectability towards other members of the scientific club (e.g.

natural scientists). This quest for respectability and conceptual coherence was particularly influential in the decision to ignore any ethical, social or psychological dimensions in the progressive construction of the ideal model of homo economicus: economists were aware that their approach was by definition incomplete and essentially a purely methodological decision. In contrast, legal discourse is by definition holist: it should incorporate all the dimensions of human existence if it is to be persuasive to the much broader group of constituents that it is addressed to. But judicial decision makers should also be attentive to the conditions that make scientific discourse blossom: that is, its openness, dialogue and continuous critical self-assessment. Our focus should therefore shift to the impact of the legal system, in particular the rules of scientific expertise, on the evolution of economic discourse.

2.3. The development of an economic science for litigation: implications for