Science, Pseudoscience, and the Law

Following up on Simon’s vaccines post from earlier this week comes the encouraging news that on Thursday (happy 200, Charles Darwin) the U.S. Court of Federal Claims issued decisions in three vaccine-related test cases rejecting any causal link between vaccines and autism.

Yet, much like with the Pennsylvania victory in the battle over teaching evolution, I can only manage a half-hearted cheer at this latest triumph of science over superstition and ignorance. That it is even necessary to take this to trial – to say nothing of the refusal of so many to accept the correctness of the verdict – bears witness to how dismally science has failed to deliver its message to the broader public. The vaccine-autism hypothesis has been repeatedly debunked, yet millions of people still prefer to get medical information from Jenny McCarthy than from the Centers for Disease Control.

Let’s be clear: this is not about fearlessly questioning prevailing wisdom. Science, at its core, is a method of inquiry, premised on the idea that objective phenomena are governed by consistent, knowable and experimentally provable rules. Scientific knowledge has always advanced by building on, refining, and not infrequently rejecting what has come before. But to refuse to accept any results that one doesn’t like, insisting that observable reality conform to the Procrustean bed of one’s own dearly cherished misconceptions irrespective of all evidence to the contrary – this is to embrace magical thinking, denying the validity of scientific inquiry itself. One is reminded of the apocryphal tale about Bertrand Russell, who, when giving a talk on astronomy, was challenged by an elderly woman who insisted the world was in fact a flat plate, resting on the back of an enormous turtle. When Russell asked her what held up the turtle, she defiantly responded, “You’re very clever, young man. But it’s turtles, all the way down!”

To choose a different, perhaps more controversial example, the Government of Ontario’s Health Professions Regulatory Advisory Council report from April 2006, entitled “Regulation of Health Professions in Ontario: New Directions”, said the following about homeopathy:

Clinical trials to establish efficacy of remedies are rarely used […] Instead, a process called “proving”, which is a single trial with a single individual, purports to establish the medicinal effect of the substances used in homeopathic practice. […] HPRAC notes that homeopathic principles are not accepted by all. A significant number of conventional medical practitioners, allied professions and clinical scientists seriously question the efficacy of homeopathy and regard it as unsafe. They point to the fact that there is no body of evidence that shows that homeopathic principles when translated into practice are efficacious.

I am aware that many people with more scientific training than my bachelor’s degree in chemistry are satisfied that homeopathy is valid. Nonetheless, I find it at the least jarring to now see a statute giving, in some sense, state imprimatur to a therapeutic treatment that the government’s own experts concede lacks reproducible, credible scientific studies supporting its efficacy, despite years of effort.

Both as citizens and as lawyers, this is our battle as well. Science and the rule of law go hand in hand. We want courts to decide guilt or liability based on causality and reliable evidence, not on mere hunch or coincidence. We expect one set of laws to apply to everyone, and that people cannot pick and choose only those they find convenient or agree with. We assume that laws are neither arbitrary nor secret, so that we can know the rules we are expected to adhere to.

A society that fails to understand or respect science implicitly endangers respect for the rule of law, and vice versa. And, I would argue, when the law tolerates or, worse, endorses pseudoscience, it eventually risks undermining its own legitimacy.


  1. Antonin I. Pribetic


    The recommendations in the Goudge Inquiry Report– into the conduct of disgraced former Ontario pathologist, Dr. Charles Smith— casting a dim view on the dogmatic acceptance and admissibility of “junk science” theories, such as “shaken baby” syndrome, are significant steps in the remedying past injustices and avoiding future ones.

    My sense is that the more effective approach (albeit not a panacea) is reinforcing the trial judge’s role as “gate keeper” in the admission of reliable and verifiable scientific evidence. The four part- test for admissibility of expert evidence set forth in R. v. Mohan,[1994] 2 S.C.R. 9 (S.C.C.) remains germane:

    a) relevance;

    b) necessity in assisting the trier of fact;

    c) the absence of any exclusionary rule; and

    d) a properly qualified expert.

    See, Todd L. Archibald and Heather L. Davies, “Law, Science and Advocacy: Moving Towards a Better Understanding of Expert Scientific Evidence in the Courtroom” in Annual Review of Civil Litigation 2006, Archibald and Echlin, (eds.) (Toronto: Thomson Carswell, 2007)

    Antonin I. Pribetic