Coping with Uncertainty

The use of experts has long occasioned a degree of disquiet. Since their earliest involvement, concerns have been expressed about the bias—to say nothing of the actual knowledge and undue influence—of expert witnesses. With the rise of modern rules of evidence in the eighteenth and nineteenth centuries, expert testimony has been circumscribed sometimes by subject matter, sometimes by permitting only that which an ordinary person could not be expected to know. As a result, the United Kingdom and Australia, for example, have adopted measures to restrict expert bias, as have several states in the United States.Footnote ⁵ Measures regulating expert testimony may also vary with the kind of case: As part of attempts to confront their colonial history, Australia has come to grant greater leeway for expert testimony on indigenous land claims cases and the sentencing of Aborigines than in other types of cases.Footnote ⁶ In England and Wales, under the Civil Procedure Rules of 1998, experts are now required to be independent and to report directly to the court. A joint statement from experts on both sides is expected to outline their perspectives and differences, meetings among the experts taking place separately from counsel. The result is said to produce settlements that might not otherwise have been achieved. Australia's “hot tub” approach, in which the experts meet to clarify (and possibly resolve) different approaches, is one that may or not transfer very well to other legal systems, whatever its merits within Australia itself.Footnote ⁷ Regardless of their form, such approaches may, however, tend to reinforce the image of truth emerging from science and of experts being the ones who can best approximate that truth, an attitude that may come up against the skepticism often held by laypeople toward experts in general. A new turn on the historic role of the law as an instrument of indirect control in common law countries may, therefore, come into play: As the prevalence of juries wanes, expert agreement may become the vehicle through which the state, as in its use of juries, once again appears not to be responsible for the outcome of a case.

In comparison with those countries in which experts are appointed by or report to the court, in the United States experts continue to be presented by each side and to engage in what is frequently called “the battle of the experts.” Throughout much of the country's legal history there were no formal rules governing expert testimony. The standard governing the introduction of expert testimony was first set in 1923 in Frye v. United States, which essentially required that the expert opinion be widely accepted within the scientific community.Footnote ⁸ Although no strict test for this criterion was usually applied, it did make difficult the introduction of expert opinions in newly developing fields of interest and the introduction of minority expert views. In 1975, the Federal Rules of Evidence eliminated the requirement of wide acceptance of an argument within the scientific community. Section 702 of the Rules, which controls the use of expert testimony, states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” This, in turn, was interpreted in the 1993 case Daubert v. Merrell Dow Pharmaceuticals as leaving it to the judge to be the gatekeeper as to which forms of expertise might be admitted in evidence.Footnote ⁹

Note that the idea, deeply embedded in Anglo-American legal history, that truth emerges from adversity is thus carried over from the adversarial role of counsel to the role of experts in this approach. Note, too, that the Daubert court also touched on one of the central problems concerning expert testimony; namely, that the goals and methods of the law and the subject of inquiry may not necessarily be in accord. In the court's own words: “Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance.”Footnote ¹⁰ Whether one standard or another best accomplishes the goal of furthering knowledge that is both accurate and useful to a court of law nevertheless remains very much an open question.

Each approach to the admission of expert testimony therefore has long had its dilemmas, particularly as it affects the intended aim of bringing expert knowledge more fully into the legal proceeding. Nevertheless, the purpose remains obscure. Is the goal the pursuit of some positivistic truth or the education of the fact finder? Alternatively, is the goal the reduction of uncertainty to socially manageable proportions, the maintenance of a political order, or the perpetuation of the status quo pending strong reasons to alter it? If, to take an example that mixes elements of each of these concerns, a nation wishes to standardize its previously uncodified or unredacted laws, is the wisest course to assemble the elders or others said to be knowledgeable about local laws and customs as a means for seeking the common denominator in those experts’ views or should broader surveys be used as the basis for regularization?Footnote ¹¹ If the state is to appear neutral and leave to its citizen-jurors the responsibility for imposing punishments, are experts then serving as surrogates for the state or are they a sign that even the state cannot rely on its own personnel to achieve the certainty its legal system claims? If multiple viewpoints about, for example, local custom exist within a single culture—whether distributed by age, gender, or status—what criteria will be appropriate to determining their respective truth value? It is just such issues and alternatives which efforts to understand expert testimony in comparative and historical perspective must confront.

In this brief reconsideration of the roles that experts may play in legal proceedings—and concentrating on the role of social scientists in particular—it may, therefore, be useful to revisit some very familiar issues and to address some seemingly peripheral matters that are nevertheless quite central to the way we think about the involvement of experts in legal cases.Footnote ¹² In each instance, a recognition of common problems can serve, too, as a template for analyzing the roles that experts have played in the legal history of various cultures. Three inter-related concerns deserve special consideration: the ascertaining of expert qualifications, the role of evidentiary procedure, and the extrajudicial use of social information.

The first issue pertains to the ways in which different systems qualify experts. In some respects this may seem quite straightforward: One looks for training or experience or specialized knowledge. But what if the conventionally accepted wisdom is too conservative or too much involved in the prerogatives of those whose well-being is entangled in the implications of their adherence to a particular viewpoint? To paraphrase Upton Sinclair's quip, it is difficult to change the viewpoint of experts when their salaries depend on their not seeing things differently.Footnote ¹³ In what ways do minority views play out in such proceedings? How, indeed, are the various interest groups’ knowledge addressed, as, for example, when someone from a less powerful segment of the society—a woman or minority member—is the one whose expertise could be claimed as relevant? Indeed, is the field itself worthy of recognition as a “science” such that only certain individuals should be allowed to claim expertise in that field?Footnote ¹⁴ Whether it is the analysis of lie detector tests, linguistic style, the historical context of a legal rule, or the latest surgical technique, should the court, a panel of experts, or counsel be the judge of the experts’ expertise?Footnote ¹⁵ And as we reflect on the history of such legal proceedings how does the broader array of cultural assumptions affect the credibility of such experts?

A second set of questions revolves around the procedures by which expert testimony achieves a sufficiently recognized level of proof to be, if not dispositive, at least accorded considerable weight. This may be done pre-emptively, so to speak, by certifying or actually attaching experts to the court on a permanent basis. For example, in some Arab countries, an old woman (called an aguza) may be attached to the court as an expert on women's bodies, and her knowledge may take precedence even over that of a qualified physician. Similarly, Muslim courts often have permanently attached experts on such matters as the appropriate level of support due to people of particular backgrounds or the bridewealth that should be forthcoming when a ward of the court is given over in marriage. Are such court-attached experts preferable to those brought forth by contending parties, or do the court experts reflect a more limited range of approaches than those to which the trier of fact might otherwise be exposed? Indeed, do experts serve as consolidators of special interest groupings or as the vanguard of innovation and social mobility?

Although the law's need for determinate judgment may seem too sharply drawn for much social science knowledge, it must be admitted that social scientists themselves have not always been forthcoming as to the criteria they apply in distinguishing a more credible interpretation from one that is less convincing. True, many sociologists and economists in particular may base their arguments on statistical probabilities, but these are seldom satisfactory for a legal proceeding if there is no way of determining whether the specific case before the court falls into one or another segment of the statistical distribution. Therefore, the United States Supreme Court, while acknowledging that the studies of death penalty cases demonstrate that the punishment is disproportionately inflicted on defendants of color, also held that in the case before them (as in any such specific instance) it could not be proved from the statistics alone that they were applicable in this particular instance.Footnote ¹⁶ And although statistical arguments have been more commonly accepted in civil cases, their successful application by one side or the other frequently depends on corroborative evidence rather than the statistics alone.

More problematic are the criteria for better or worse interpretations of qualitative social science information. Should the criteria appropriate to the hard sciences be used in these domains as well, criteria such as elegance and parsimony, Occam's razor, or the presumption that the more inclusive explanation is necessarily the more correct? Interviews I have conducted with a number of colleagues in anthropology demonstrate that few are very articulate about their own interpretive criteria and that those who are tend to assume that simplicity correlates with credibility, that the telling example is the best indicator of truth, or that the better explanation is the one that covers the largest number of instances. Indeed, many seem to intuit the preferable interpretation rather than profess any rational method leading in one direction or another. This latter point will become quite important when I address how the narrative carries the believability perhaps more than it should.

Is Social Science Testimony a Special Case?

Although many issues relating to expert testimony are common across disciplines, there are, however, certain problems that are distinctive about social science testimony. One of these concerns the information gained from informants as part of a social or oral history project. In a sense, all such information is clearly hearsay. Although inquisitorial-style courts permit such testimony and leave it to well-trained judges to sort out the issue of credibility, common law jurisdictions, which generally bar such evidence, do carve out numerous exceptions to the rule. Thus the Australian court, in the precedent-setting case Milirrpum v Nabalco Pty. Ltd, said that an anthropologist can use information gathered by hearsay to form a professional opinion.Footnote ¹⁷ Similarly, courts must consider whether the expert is merely adding authority to what anyone should be able to conclude without professional aid.Footnote ¹⁸ As Viscount Gage said, in the House of Lords debate prompted by the obscenity case of Lady Chatterley's Lover: “My Lords, we are told that this is the century of the common man, but I often wonder how true that is, because so many experts are rising on so many different subjects that I sometimes feel that there is some danger of the common man, or even the common Peer, feeling guilty of effrontery in having opinions of his own.”Footnote ¹⁹ In many jurisdictions, experts were thus barred from testifying to what was regarded as common knowledge, although now in the United States experts may indeed so testify.

Many people who have served as experts also note that courts require greater certainty—in determining whether an accused is innocent or guilty, a litigant liable or not—than these experts are comfortable asserting. Indeed, in the United States, notwithstanding the courts having long since opened psychological and psychiatric testimony in criminal cases to a broader standard than that of an ability to distinguish right from wrong, the majority of such professionals refuse to appear as experts, believing that the precise questions posed by the law are not easily addressed by the much more interpretive science they practice. So strongly may the experience of appearing for direct and cross-examination be regarded with disgust that, as one psychological witness said following his experience of courtroom testimony: “After you come out of court you feel like you need a shower. They're asking you to be certain of things you can't be certain of.”Footnote ²⁰

A third set of issues surrounds the evidence that is not presented but of which the trier of fact is either aware or seeks to acquire from sources outside of the formal proceeding. Here, I might begin with a couple of stories.

Some years ago my neighbors and I were experiencing odors from a newly constructed sewer metering facility across from our homes. Eventually, we got the city to bring suit against the sewer operators for creating a nuisance. In court the judge almost immediately began telling about his experience with such matters when he was a practicing attorney. In fact, he was getting some of the science wrong. However, when I started to object, the attorney for the university, on whose land the facility had been built, pulled me back down to my seat and hissed in my ear: “Sit down—we're winning!” Although we had expert testimony to support our position and we did indeed win the case, in what sense, I have continued to wonder, was it appropriate for the judge to rely on his own knowledge in crafting his decision?

Another example is provided by the 1960 prosecution of the publisher of D. H. Lawrence's novel Lady Chatterley's Lover for violation of the Obscene Publications Act 1959.Footnote ²¹ A number of critics were brought to the stand to testify as to the literary merits of the novel, in furtherance of the argument that the work should at least be excepted from prosecution because it serves a “public good” even if it falls within the statute's criterion requiring that such a work would “tend to deprave and corrupt persons likely to read it.”Footnote ²² In court as well as in the debate in the House of Lords, the question was implicitly raised whether expertise was needed in such a determination and if so, what such expertise might actually consist of.Footnote ²³ The decision was apparently much affected by the testimony of Richard Hoggart, a sociologist and lecturer in English literature, who argued that the words used by Lawrence got around the sexual circumlocutions in common use and that the book as a whole was actually quite “puritanical” in the proper meaning of that word, as embracing an intense sense of responsibility to one's conscience.

It is intriguing to compare this case with the 1964 decision by the United States Supreme Court, which is famous for Justice Potter Stewart's assertion that he did not know what pornography was but that he knows it when he sees it.Footnote ²⁴ That assertion may have sounded a note of arbitrary personal taste but, like some of the comments by the Lords, it is not without some objective substance insofar as cultural norms, however much they may be honored in the breach, are publicly shared conventions that make interactions reasonably predictable.Footnote ²⁵ Thus the notion, now formally eliminated in most jurisdictions, that experts may not testify as to that which is common knowledge (thus presumably displacing the decision of the trier of fact—or is it that their view of common knowledge would now have the added fillip of being vouched for or against by an “expert”?) still comes up against what may be popularly assumed and for which such expertise is counterproductive.

In a number of similar cases, historians, including legal historians, have appeared as expert witnesses over the years.Footnote ²⁶ Their interpretation of documents poses many of the same issues confronting other social scientists relying on oral or observational information. In one respect, however, their situation sometimes differs because the documents in question may be available to the trier of fact in a way that is quite different from the oral information upon which an anthropologist or sociologist may rely. So, too, when it is a question of interpreting the intent of a statute or constitutional provision, historians’ views may be more available to alternative readings, and hence their particular claim to expertise may clash with those of other readers of the same documents.

Several American cases have also considered whether the trier of fact may go outside the proceedings to seek either general information or expert views. In a recent case, Justice Sonia Sotomayor of the United States Supreme Court noted that she had looked at several Web sites for information that had not been part of the record, an admission that brought a rebuke in the oral argument from Justice Anthony Kennedy, who said, “Well, in this case I didn't go beyond the record to look on the internet because I don't think we should do that.”Footnote ²⁷ Additionally, one can look to the actions taken by the well-known American judge and legal scholar Richard Posner of the Seventh Circuit Federal Court of Appeals. In Mitchell v. JCG Industries, he wrote: “Common sense has a place in adjudication.”Footnote ²⁸ As Linda Greenhouse noted in her account of the case:

What, then, is the cultural concept of “common sense” that is operative here? Posner, in running his own little experiment, refers to common sense, but we should notice that in this case his approach mimics the style of a scientific experiment. Was Posner, famous for his law and economics approach, drawn to his experiment by the time/motion studies that economists once used? Is it this science-like element that adds legitimacy to the non-expert opinion that a court may rely upon? Indeed, is it part of the larger American cultural penchant to couch matters in science terms, whether it be in religion (Christian Science, creation science), economics (“the dismal science”), or political science? What happens if there are people on the jury who are (or profess to be) experts themselves?Footnote ³⁰ Courts in the United Kingdom and elsewhere have long debated whether, as one such court held, “ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not,”Footnote ³¹ in part because, as another court stated: “The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behavior within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.”Footnote ³²

The pendulum can, of course, swing too far in either direction: We can be too reliant on experts or too derisive. We joke about experts, often as a way of distancing them, as when Laurence J. Peter quipped that “an economist is an expert who will know tomorrow why the things he predicted yesterday didn't happen today.” Experts may be regarded with greater skepticism in some cultures than in others. Ian Freckelton, for example, claims:

But do we pay a price for losing confidence in professional expertise—or when everyone can claim some degree of expertise? The recent book by Thomas M. Nichols, notably entitled The Death of Expertise, asks if it is not indeed true that Americans have gone too far in rejecting expert knowledge, whether in studies of race relations, gun control, or foreign policy.Footnote ³⁴ Is this pattern any different from deferring to jurors who, as someone once said, are not qualified to be experts but are qualified to judge between them? (Or, in the phrasing of Jennifer L. Mnookin: “[I]f the jury lacks the knowledge that the expert provides, how, then, can it rationally evaluate the expertise on offer?”Footnote ³⁵) However it may be, surely there are matters experts illuminate that the decision makers might not otherwise have considered. Indeed, the expert may force the parties’ lawyers to work harder at bringing out such matters for the trier of fact, matters that might otherwise have gone unremarked. In this sense we need to consider what might be thought of as the secondary effects of expert testimony and not simply the direct role of the offering.

Narrative style is also a matter of concern where expert testimony is allowed. We have a (perhaps understandable) tendency when thinking about expert testimony to concentrate on the substance of the testimony and the procedures for its incorporation. But studies show how the style in which it is narrated is important to any testimony.Footnote ³⁶ In the case of expert testimony, two aspects of this narration may be important to consider: the ways in which the proceedings of the forum shape the testimony and the ways in which the science itself governs the story that is being told. Sometimes the two are in harmony, but at other times they may be very much in conflict, even if that conflict is neither evident to the trier of fact nor, indeed, to those who present the experts to them.Footnote ³⁷

Cultural evidence may constitute a very distinctive case when addressing both narrative style and substantive input from an expert witness. As in other aspects of these broader questions, much may, of course, depend on the nature of the issue before the trier of fact. Not only may the rules of evidence differ depending on the matter at hand—that is, evidence permitted in a civil suit may be precluded in a criminal case—but also the role of expertise may be markedly different in, say, an immigration case than in an adjudication of parental rights. Here, as was suggested earlier, social science information, being largely untestable, may constitute a special case. Yet if culture is to be allowed in at all, why should it not be relevant regardless of the subject matter of the case at hand? To explore this issue briefly, I want to consider several kinds of cases arising out of our own legal history, including those that usually fall under the heading of the cultural defense.

In a long series of cases involving the cultural defense, social scientists have testified as to the social context of beliefs that may have informed the parties’ actions. Whether it is a New York case involving a Haitian immigrant who killed a man he honestly believed was threatening his life through the use of voodoo, or a Puerto Rican who believed he would have been a pariah among his own people in the town in Connecticut to which he had moved because, after several threats, he shot a potential attacker rather than retreating as the law required, the experts who appeared had many of the same problems their colleagues have had in other times and places: Was their field study sufficient to speak to the particular case, or did all members of the culture see matters the same way.Footnote ³⁸ Immigration cases pose related issues. The question may be one of local political practice, the cultural perception of a threat, or the ways in which men and women act toward one another in a foreign culture, all of which must be measured against the standard being set up by the state. From my own interviews with low-level trial court judges in mostly rural locales in the United States, I gather that the judges, even when not faced with expert testimony on the cultural background of a party before them, often rely on their own understanding of those cultures and regard themselves as not only “expert,” but also as beyond counsel's capacity to challenge their claimed expertise. Thus the question arises whether and how an expert may be called upon to oppose judicial bias, rather than simply to counter the story being told by the other side.

Expert testimony can, of course, run the gamut from innovative and insightful to pompous and ridiculous.Footnote ³⁹ If, however, we set aside the ridiculous instances of expert presentation why, one might still ask—at least as a thought exercise—should we not (1) bar experts altogether, or if the court found that they cancelled one another out at least recognize that expertise cannot resolve the matter; (2) require, in an effort to eliminate the impact of the expert's personal appeal, that only written material be made available to the bench; (3) in civil cases refer all expert information—oral or written—to a master for consolidation and presentation to the trier of fact; or (4) require, as a precondition of testimony, a careful explanation of the expert's theoretical orientation? Indeed, could we expand the list of things to which a court may take judicial notice or that should have to be rebutted as against some presumption?

We might also treat the testimony of an expert presented by one side for what it really is; namely, an argument intended to support just one side. Much like the presentation of the case in chief and the direct argument of counsel to the jury in the opening and closing statements, the expert testimony could be honestly presented as part of that side's overall argument, rather than a pretense being maintained that, notwithstanding the expert being hired by one side to support its case, the testimony is neutral and has been sought precisely because it does not simply support a given argument. Moreover, expert testimony might be presented in the form in which the expert is more used to delivering it: commonly as a lecture with follow-up questions. This would render the presentation more commensurate with the way in which such information and interpretations are normally presented by experts, it would allow for indicating when and where there is uncertainty, and it would be sufficiently comfortable for the presenter that it might conduce more accurate and relevant information. Both sides could still ask questions, but the format would be closer to that used in the expert's field of interest and hence more likely to produce a sense of this as expert information rather than pretended absolute truth. To explore such an approach, I will pose a particular example.

A case arose in the United States in the early 1970s concerning a claim by the Mashpee Indians to lands on the Cape Cod peninsula of Massachusetts. To effectuate their claim, the Indians had to prove to a jury that they were indeed a tribe within the definition first articulated by the courts in the 1920s, a definition that required claimants to show that they were an organized entity over a sustained period of time. Rather than allow a general verdict, the court required the jurors to answer a series of questions concerning the existence of the tribe at specified dates. When the jury returned its answers—that the Mashpee were a tribe at certain moments and not others—the court ruled against the plaintiffs for failure to show that they were a tribe continuously. Much of the jury's determination had clearly depended on the expert anthropologists and historians who appeared for and against the Indians’ claims. Both sides, however, focused on two aspects of tribal existence: the perpetuation of tribal ways and the maintenance of a clear form of tribal organization.Footnote ⁴⁰ Had I been asked to testify, however, I would have taken a quite different approach to the concept of tribal identity.

Tribes, I would have suggested, are more like amoeba than crystals: Their momentary form is not what characterizes them as a type of sociopolitical entity, but rather reflects their capacity for shape-shifting, their ability to respond to changing conditions through processes that are distinctive to them. These processes include the constant division of powers so that too much power does not remain in too few hands for too long a period of time, the use of multiple vehicles to level power (including, but not limited to, rituals of reversal, joking relations, cosmologies of decentralized control, shamanic randomizing, and the value placed on interpersonal reciprocity), the emphasis on the moral equivalence among members, the application of situational ethics, and the constant experimentation with others’ customs through intermarriage, multilingualism, and maintaining a home base that is not territorially exclusive. Seen in this light, I would have argued, the fact that the Mashpee might seem to have a given structural form at one moment and another (or none) at a later time is hardly surprising; it is of the nature of the tribal to emphasize functional flexibility over rigidified form. In Mashpee, then, the group, I would have argued, is being punished for not appearing to be a structural unit bounded by kinship and territory, whereas actual tribes are open-textured in both respects. And because these are features of all tribes, the Mashpee (I would have argued) should qualify under a more appropriate legal definition of tribes for purposes of their land claim suit. Finally, as a matter of procedure, I would have preferred to be able to argue this to the jury in the form of a lecture followed by questions from both sides (as well, perhaps, as from the bench and the jurors), rather than having counsel elicit testimony from me with potential interruption from the opposite side.Footnote ⁴¹

But would I be right? Would my theory of tribes be supportable in the manner and to the extent that a legal proceeding requires? In a civil suit in the United States I may only have to achieve a level characterized as “clear and convincing” or sustained by “a preponderance of the evidence.” But would even these less than criminal levels of proof be supportable by an interpretive scheme that is (1) not broadly recognized in my discipline, or (2) not capable of proof in any meaningful sense of the word? Indeed, if my demeanor and quality of presentation contribute to my being believed by the trier of fact, should even those factors be downplayed lest they have undue influence? One way that one might have to approach the question of my credible interpretation as an expert may trench on the question of the overall theory of expert testimony itself.

It is tempting to ask whether there is any broader theory of expert testimony to which we should have recourse. Perhaps such a theory ought to incorporate the right to have experts of one's choice heard however they are brought into the proceedings: the meeting of experts to clarify issues beforehand and the revelation of any out of court information specially used by judges that has not been revealed so that the parties would know what information they may need to bring to bear as counterarguments. Much as one may try to establish general rules, however, given the variety of legal systems and the role that is played in each by professionalism, cultural assumptions, and overall political history, it is very unlikely that when it comes to structuring the role of experts in court, one size will fit all systems of law.

And it is this relativistic claim that renders the question “What should be done?” one to which courts and commenters have, historically and into the present, offered such varied responses. For some systems, the answer lies in court appointment of experts, or in experts who report to the court; for others, the proper approach continues to incorporate either elements of an inquiring judge or magistrate, on the one hand, or, alternatively, a contentious adversarial proceeding.Footnote ⁴² Other possibilities have been suggested or tried, and other questions have been posed. Rather than court-appointed “neutral” experts, judges who are sufficiently trained (in every field?) may substitute for experts. Questions remain. Should we use a panel that is itself composed of experts, as was the case during an earlier period of English legal history, or limit experts to “facts” and not opinions? Would the emphasis on facts over opinions reduce the bias of the “hired gun” or the professed neutrality of the expert?

These and many other questions almost certainly do not yield singular answers for all legal systems: There is no one “scientific” way that one must think about the role of experts. Indeed, as with many other such issues, the question may not be what is right in absolute terms but what is right for us, in our particular form of legal decision making. H. L. A. Hart noted that the two big questions that any legal system must address are “the relative ignorance of fact” and “the relative indeterminacy of aim.”Footnote ⁴³ If one acknowledges that facts cannot simply be replicated in a forum or that the purpose of the proceeding may vary from one culture and polity to another, then surely the methods used to approximate both truth and ends may have to vary as well. If, for example, the desired aim of the system is to put people back into working relationships with one another—as is common among many groups, ranging from traditional tribal societies to world-girding religions—the use of expertise will undoubtedly be differently arrayed than if the proceeding is aimed at determining strict rights and duties.

Contemporary social research and research in legal history are mutually informing. As one investigates a living situation one sees how deeply the accumulated assumptions play out in current affairs; as one reads historical documents against recent social studies one sees ways to read between the lines, interpolating that which is available against the insights of contemporary studies. To some extent, the role of the scholar of legal history is not unlike the role of social scientists generally: to use comparative studies to understand how the pieces of a system may articulate, how affecting one aspect may have systemic repercussions that a failure to consider comparatively may obscure, and to realize that although perfect solutions are probably beyond our reach, ever greater awareness of the factors involved can only help to refine any process of relating knowledge to an understanding of the history of legal decision making.