McGurk, Frank C. J.

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The Law, Social Science and Academic Freedom - A Psychologist\u27s View

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Volume 5 Issue 2 Article 7 1959 The Law, Social Science and Academic Freedom - A Psychologist's View Frank C. J. McGurk Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr  Part of the Law and Society Commons Recommended Citation Frank C. McGurk, The Law, Social Science and Academic Freedom - A Psychologist's View, 5 Vill. L. Rev. 247 (1959). Available at: https://digitalcommons.law.villanova.edu/vlr/vol5/iss2/7 This Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. WINTER 1959-60]THE LAW, SOCIAL SCIENCE AND ACADEMICFREEDOM - A PSYCHOLOGIST'S VIEWFRANK C. J. MCGURKtW HAT CONSTITUTES SOCIAL SCIENCE, or a social scien-tist, is difficult to describe. The term "social" implies interestin the relationships among living creatures and their physical environ-ment, and the term "science" or "scientist" denotes that the generally-known rules of objective investigation are followed. In terms of theabove, a social scientist may be defined as one who by the rigorousstatistical testing of hypotheses, comes to know the social relationshipsamong men in their reactions to their physical and social environments.In actuality, however, the above definition is not satisfactory.Too often, witnesses testify with no better knowledge of a problemthan a few graduate courses, or simply an interest, in the general topicof which the specific problem is a small part. Witnesses with reputa-tions for knowledge have testified about problems in which they havenever done any scientific investigation. Other witnesses with similarreputations have given long and authoritative testimony about prob-lems for which there is no scientific evidence. All these have beencalled social scientists, and our definition (for this paper) shouldinclude them. Therefore, for this discussion only, a social scientistis defined as anyone who so calls himself, regardless of his trainingor basic discipline, and who is accepted as such by the investigativebody before whom he makes such a claim.One further expression needs description. By "guiding legalprocesses", I mean the giving of testimony before any investigativebody which is not only empowered to take such testimony, but whichis also able to influence (directly or indirectly) law-making bodies.I.ROLES FOR SOCIAL SCIENTISTS.The roles that may be played by social scientists in guiding thelegal processes are affected by three factors: (a) by the charactert Associate Professor of Psychology, Villanova University. B.S. 1933, Universityof Pennsylvania; M.A. 1937, Ph.D. 1951, Catholic University of America.(247)1McGurk: The Law, Social Science and Academic Freedom - A Psychologist's VPublished by Villanova University Charles Widger School of Law Digital Repository, 1960VILLANOVA LAW REVIEWof the witness' testimony; (b) by the attitude of the investigativebody before whom the witness wishes to appear, or before which hehas been summoned; and (c) by the social forces of hesitancy andcensorship.The Character of the Witness' Testimony.Roughly, the testimony of witnesses may be divided into twotypes, the testimony of the scientist, and the testimony of the artist.The testimony of the scientist presents empirically verifiable data,and may express a mathematical statement of the probability of theoccurrence of an event. The scientist is interested in what exists, andfrom this he may make a prediction of what could be expected whencertain conditions prevail. Thus, a scientist might state that the per-cent of pupils who exceed a given psychological test score is greaterin a specific large, well-equipped school than in a specific small, lesswell-equipped school, and he may state the probability that the samerelationship will hold in a future comparison of another such pair ofschools. He will not state the cause of this relationship, if he remainsa scientist, because he does not have data about the cause of the re-lationship. A scientist may state that a high crime rate is associatedwith slum-living, but if he states a causal relationship between thesetwo variables, he has departed from the role of scientist - he is nowguessing.The scientist, as a scientist, is not interested in change, one wayor the other. He has no value judgments about what is good or de-sirable about his findings. He may have personal values, but theseare kept out of his statistics. He is interested in what is - not inwhat should be. As long as a witness adheres to the presentationof data about what is, his testimony will be scientific - and cold.This does not mean, however, that scientists never deviate fromthis cold recitation of fact. It does mean that the testimony of ascientist, as a scientist, is empirical, demonstrable in fact, and pre-dictive in terms of probability. When an otherwise scientific witnessimbues his empirical findings with meanings (which meanings arethe creations of his own psychology) he is acting the role of theartist.The testimony of the artist is that which presents judgments orinterpretations about some topic. A witness may present to an in-vestigative body his judgment that larger, well-equipped schoolsproduce more intelligent pupils than smaller, less well-equipped schools.Such a witness would be hard pressed to find factual support for his[VOL.. 5 : p. 2472Villanova Law Review, Vol. 5, Iss. 2 [1960], Art. 7https://digitalcommons.law.villanova.edu/vlr/vol5/iss2/7WINTER 1959-60] LAW AND SOCIAL SCIENCEstatement, but he has given his judgment on the topic. His is notthe role of the scientist; he is an artist. In another instance, a witnessmay state that, as he understands the available data, it is clear thatslum conditions are a major cause of crime because, factually, a largepercent of crime is committed by those who live in the slums. Thisis an interpretation, and again the witness would be unable to presentfactual evidence for his interpretation. This witness is also an artist;he is not a scientist.Generally, witnesses who play the role of artist do so becausethey are interested in effecting changes in the social order, or in pre-venting such changes. Basic to these desired or undesired changesare value judgments about what is good or desirable, and these leaddirectly to the witnesses' judgments or interpretations. Thus, thetestimony of such witness cannot be scientific. This is not to saythat such testimony should not be presented; it is to say that, whensuch testimony is presented, it should be clearly labeled as artistic -not as scientific. The presenters of such testimony should not becalled scientists; they should be understood clearly to be artists whoare interested in painting a special kind of picture of the social world.Thus, when a social scientist presents judgments and interpretations,he is not guiding the legal processes as a scientist. He might be guid-ing the legal processes quite effectively, however.The Attitude of the Investigative Body.Investigative bodies frequently operate on a limited budget andwith limited time. This means that not every potential witness canbe heard. It is obvious that, in the recent hearings on pornographyand adolescent crime, not all of the available and competent scientistswere heard. Someone had to select among the available witnesses sothat the operations of the investigative body could be kept withinthe time and budgetary limitations. Those scientists who were notheard by this body played no role in guiding the legal processes.Sometimes investigative bodies are extremely sensitive to publicpressures, and for this reason, they limit the type of witness who isto appear before them. Consider the plight of the chairman of aninvestigative committee who, for one reason or another, wishes tocollect data on heart diseases, and who is also to stand for re-electionto the Congress from a rural area that is primarily dairy farm country.Such a chairman would hardly accept as a witness a physician orbio-chemist whose testimony would indicate that milk drinking was3McGurk: The Law, Social Science and Academic Freedom - A Psychologist's VPublished by Villanova University Charles Widger School of Law Digital Repository, 1960VILLANOVA LAW REVIEWdirectly related to the incidence of heart diseases. A potential witnesswith such evidence would, under these circumstances, play no rolein the guidance of the legal processes.Hesitancy and Censorship.The roles that may be played by social scientists may be sharplycurtailed by these two factors. A competent person may hesitate tosubmit himself as a witness because of the possible personal attacksthat may be directed against him by the group that objects to hisevidence. This person may feel, further, that there is no point inhis coming forward as a witness because the evidence that he hasto offer is not the evidence desired by the investigative body. He mayfeel that the time and effort required to prepare the evidence forpresentation will be wasted. In such a case, a competent scientist playsno role at all in shaping either public or legal opinion.Competent scholars may also hesitate to act as witnesses for amore practical reason - the possible loss of their jobs. Althoughacademic freedom is a theoretical right of the scholar, there are manyways in which this right is negated. It is not uncommon for pressuregroups so to bombard a university administration with unfavorablepublicity, or threats of it, that the university administration dischargesas "incompetent" a professor who exercises his right of academicfreedom. Knowing that they run the risk of unfavorable publicity,university administrators have privately warned potential witnessesto avoid the placing of themselves in positions whereby criticismmight be brought on the university. The same problem plagues po-tential witnesses in business, where the boycott is the frighteningthreat. Even with the protection of civil service status, governmentemployees have had to bow to a censorship which prevents the pub-lication of any evidence that is apt to offend any segment of thevoting population.A similar type of censorship exists among some scientific so-cieties and their publications. Whether they fear criticism, or whetherthey are committed to propagating a liberal point of view, some other-wise scientific societies limit their membership to those whose scien-tific activities are proper and moral, i.e., not apt to offend anyone.Their journals reflect this, and these journals refuse to accept forpublication any article which is designated as "controversial", whichapparently means contrary to the public clamor. Sometimes a scien-tific journal takes a moral position in rejecting articles that expressan undesired point of view. At other times, a scientific journal will[VOL. 5 : p. 2474Villanova Law Review, Vol. 5, Iss. 2 [1960], Art. 7https://digitalcommons.law.villanova.edu/vlr/vol5/iss2/7WINTER 1959-60] LAW AND SOCIAL SCIENCEpermit an associate editor to present picayune objections to the styleof writing, or to the statistical presentation which objections, ifapplied generally, would invalidate a large number of the alreadypublished articles in that journal.It may be that these social limitations are simply different aspectsof the same underlying psychological process - the desire not tooppose the public clamor. But whatever it is, because of these sociallimitations, there has been created an impression of solidarity ofliberal opinion which has very effectively reduced the role whichcapable scientists of all disciplines could play in advising the investi-gative bodies. Not only are the capable people hesitant about approach-ing the investigative bodies, but the latter are kept in almost com-plete ignorance of the former by the clandestine type of censorshipexercised.II.BETTER INFORMATION FOR INVESTIGATIVE BODIES.If the investigative bodies are to come to decisions that are inkeeping with reality, they must be provided with information thatis real. Ideally, this information should satisfy three criteria: itshould be empirical, it should be verified, and it should be inclusive.By empirical, I mean that the information should be what exists, andnot what someone hopes. By verified information, I mean that thedata should have been collected from more than one source, by morethan one scientist. This is to assure the investigative body that re-ceives it that the information was not a chance occurrence, or thatthe data were not described according to the convictions of the scien-tist. By inclusive, I mean that, within the framework of the hypothesisthat is being investigated, the information should express all thatis known about the subject of the hypothesis, and not only the de-sired side.The three criteria mentioned above may not always be achiev-able. Where factual data about a topic do not exist, the informationpresented to the investigative body cannot be empirical. If social scien-tists were asked to testify about the effects of atomic warfare onadolescent crime, no statement on this topic could, so far, be empirical.The scientist would be obliged to guess. Moreover, the testimony ofartists, authorities, and incompetent witnesses fail to satisfy thesecriteria.The investigative body also needs access to all potential witnesses.At present, because of the restrictions described previously, only one5McGurk: The Law, Social Science and Academic Freedom - A Psychologist's VPublished by Villanova University Charles Widger School of Law Digital Repository, 1960VILLANOVA LAW REVIEWviewpoint is widely available, and that places the investigative bodyin an unfavorable position in reaching its decisions. Moreover, someof the witnesses presently available to the investigative bodies arequalified only to present a point of view; they are artists who areinterested in changing the social order to their own liking. They aretotally unqualified as scientists, but this fact is either unknown tothe investigative bodies, or is accepted by them as the best that canbe had.The investigative bodies also need information furnished byscientists who are free of the social pressures and censorship thatwere described previously. It would be pleasant to plead for andobtain an end to such pressures and censorship, but this would nothappen. Instead, my plea is made for an agency which would act,in its relationship to the investigative bodies, as an agency, and notas a group of individuals. Social pressures and censorship, to whichindividuals are so sensitive, should be reduced markedly, particularlyif the agency were sponsored jointly by competent and respectedprofessional organizations.It is suggested that a committee be formed as a joint venturebetween the American Bar Association and the American Psycho-logical Association, and that this committee be known as the Com-mittee for Advising Investigative Bodies, ABA-APA.III.COMMITTEE FOR ADVISING INVESTIGATIVE BODIES, ABA-APA.The actual structure of such a committee will have to be workedout in greater detail than I shall present here, but the general ideais this: both ABA and APA will appoint two coordinators who willmeet as a committee of four. Since there are two clearly recognizedpoints of view regarding social problems that come before investiga-tive bodies, each of these two professional societies will have nodifficulty appointing one "liberal" member and one who is "not-so-liberal."On request of the investigative body, both ABA and APA wouldpublicize among its membership a request for volunteers to serveas examiners of the available data pertinent to the topic before theinvestigative body. Interested members of both professional bodieswould send their names to the appropriate one of the above commit-tees. From among the applicants, the appropriate committee wouldselect a panel of three so that, in all, a panel of six would be selected.Half of the panel would be selected by the "liberal" committee members,[VOL. 5 : p. 2476Villanova Law Review, Vol. 5, Iss. 2 [1960], Art. 7https://digitalcommons.law.villanova.edu/vlr/vol5/iss2/7WINTER 1959-60] LAW AND SOCIAL SCIENCEand the other half would be selected by the other committee members.At its discretion, the panel would separate the field of investigationany way it chose, or work in any manner desired, except that at theend of a specified period, two separate written reports must be sub-mitted to the committee-one from the "liberal" members, and one fromthe others. Both of these reports would be directed to the investigativebody without alteration by the committee.There would be several advantages to such a committee. Sinceeach panel would be aware of the work of the other panel, each shouldbe hesitant about ambiguous statements, or the masquerading of opinionas fact. Value judgments should be held at a minimum, and empiricalevidence should increase. Rancorous arguments in public should dis-appear, and so should costly sessions in which investigative bodiesexamined and cross-examined witnesses.To the investigative body, the advantage of having evidencetailored directly to its needs should be especially attractive. In addi-tion, the committee could be extremely flexible, and by the properchoice of members on the panels, many specific problems could behandled simultaneously. This should be a clear financial advantage toinvestigative bodies.This method of presenting evidence could materially reduce cen-sorship, and should certainly reduce the other social pressures onwitnesses. Since the committee reports would be official documents,the prestige of both ABA and APA would be behind them. Theinfluence of social pressure groups should be diluted under this scheme,but probably not completely eliminated.There are probably disadvantages. One is possible bias in panelappointments, but since these appointments would be publicised tothe ABA and APA membership, this should not be serious. Thegreatest possible danger is the rejection of this plan by either ABAor APA, or the investigative bodies.IV.SUMMARY.It should be clear that I believe that social scientists should playa role in guiding legal processes. But it should be equally clear thatI believe that their role should be that of the scientist, not that ofthe progagandistic social reformer.Some system should be created whereby the factual offeringsof the social scientists could be placed before investigative bodies, not7McGurk: The Law, Social Science and Academic Freedom - A Psychologist's VPublished by Villanova University Charles Widger School of Law Digital Repository, 1960254 VILLANOVA LAW REVIEW [VOL. 5: p. 247as the result of personal jousts among social scientists, but as theresult of scholarly and dignified study. This system should also assurethe investigative body that propaganda and special pleading, whenpresent, would be so clearly marked that such testimony could notbe passed as scientific fact.A Committee for Advising Investigative Bodies, ABA-APA, asa joint venture between the American Bar Association and the Ameri-can Psychological Association, is suggested as a possible advantageover the present system of advising investigative bodies.8Villanova Law Review, Vol. 5, Iss. 2 [1960], Art. 7https://digitalcommons.law.villanova.edu/vlr/vol5/iss2/7

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The Law, Social Science and Academic Freedom - A Psychologist\u27s View

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