The Imminent Collapse of the Law
By A.D. Freudenheim  

20 November 2005

Reading all of the hullabaloo about the so-called-theory of “intelligent design” – and the ardent desire of many of this nation’s Christians to turn back the clock on our use and understanding of science – can leave a person with a raw, gnawed-at feeling. There are many good articles about the absolute hogwash of “intelligent design,”[1] so this article shall not recount those arguments. Yet what seems so far to be unexplored, and possibly of greater concern than the attacks on Darwinian evolution or the basic tenets of scientific methodology, is what “intelligent design” also suggests must change in our understanding and practice of law. If “intelligent design” is accepted in American schools as a valid theory to explain the origins of the universe – accepted as science – then must we not also consider its approach to interpreting data as valid in court?

In the U.S. courts, at both the state and Federal levels, criminal and civil litigation proceeds based on a burden of proof: the understanding and interpretation of evidence presented by plaintiffs or prosecutors (or, also, by defendants) that seeks to show – to prove “beyond a reasonable doubt,” in the famous phrasing – responsibility for a particular allegation. Proof may take the form of an object identified with a particular act (e.g., a blood-stained knife, a letter revealing criminal intent), the testimony of a witness, or the testimony of an “expert witness,” a professional in a specific field whose knowledge can help interpret and support (or rebut) the presentation of other evidence. Once the evidence has been presented, a judge or jury is then responsible for making a decision about a claim based on the strength of that evidence. This entire process is founded on reason and logic, and it is one of the great strengths of the American legal system that claims made against a person must meet a certain threshold of proof: that the burden rests with the accuser to prove guilt.

Imagine, though, what would happen if American courts accepted explicitly, and as a matter of common understanding, that not all actions are provable. Or if all evidence presented in court – no matter how logical, no matter how much it is based on testable proof, no matter how much such evidence relies on accepted science – can be considered implicitly suspect. Or if judges and juries were allowed (or even encouraged) simply to chose not to believe what would otherwise be considered conclusive evidence, not because they can disprove it but because it contradicts their faith. To some degree, all of this happens already: juries and judges do decide that evidence is questionable, that a witness’ testimony is difficult to believe, or that the assembled facts fall short of the sufficient burden of proof. Yet as citizens, we trust that these decisions, whether we consider them favorable or not, are largely made from a basis of reason, according to evidentiary standards grounded in commonly-accepted science.

Take, for example, paternity lawsuits. As a society we – and our courts – have come to accept that the scientific understanding of deoxyribonucleic acid is “true,” is provable, and that the similarities or differences between two DNA samples can reveal whether those samples are from the same person, from people related by blood, or from genetically unconnected individuals. DNA comparison tests are used in a number of different legal contexts, including to prove paternity – to determine who is the father of a child. Under an “intelligent design”-informed courtroom, however, this process must be discarded, or at least seriously questioned, since a very similar kind of DNA analysis also shows that humans and apes are related genetically. If the DNA analysis that points to the genetic and evolutionary connections between humans and apes is not acceptable to “intelligent design” theorists, the same DNA test that implicates someone’s paternity cannot be valid either. While this will surely delight those men who seek to escape the burdens of fatherhood, woe to the good Christian whose claim of paternity is rejected by a court despite DNA evidence, solely because another man testifies that he believes he himself is the father. Biology be damned.

Perhaps, though, the DNA example is not sufficient; after all, the “intelligent design” theory accepts that there may be connections between human life and other species; it just believes that these connections are the result of that “intelligent designer’s” handiwork. And so DNA may be one such element, a trail left behind by the “designer” to mislead us, to make us exaggerate the implications of such a genetic connection between humans and apes.[2] Where, then, does one draw the line with “intelligent design,” to demarcate the realms in which proof of various kinds is tested and then accepted at face value – or is denied because it does not meet the needs of religious belief? At a very basic level, if the responsibility for the creation of humanity rests with an external (if unidentifiable) “designer,” then how can any individual be held responsible for their actions, no matter what the proof? Should each of us be allowed to argue that our actions, goals, and motivations cannot be understood by anyone, ourselves included, because they are the work of the intelligent designer responsible for our very being? Should we be absolved of responsibility for our actions on the basis of such a claim?

The long-term impact of “intelligent design” on science will be negligible, because the foundations of science are long-standing and strong, and will continue in other nations not infected by the viral mythology of this mock-scientific theory and its Christian-American religious motivations. Even the change in the American scientific community is likely to be minimal, since some states (and cities and counties) will reject the teaching of “intelligent design,” while the children who learn it will ultimately be forced to accept its irrelevance should they choose to pursue careers in biology, medicine, physics, or other hard sciences. The law, though, may be less firm; it is more mutable, may be more susceptible to new interpretations, and relies heavily on precedent. All we need now is a civil or criminal court case in Kansas, or elsewhere, to reject the obvious in favor of the intangible – to embrace the idea that it is acceptable to reject all proof in favor of an intangible but deeply-held belief – and we will be on our way to a whole new nation. Certainly one that the very intelligent designers of our Constitution never imagined.

[1] For those interested, some good articles on the fallacy of "intelligent design" include (in no particular order):
"Fact and Fiction on Evolution," by Cathy Young, Reason online, 15 November 2005
"Phony Theory, False Conflict," by Charles Krauthammer, The Washington Post, 18 November 2005
"The Case Against Intelligent Design," by Jerry Coyne, The New Republic, 11 August 2005
A multitude of good articles from Slate, which can be found here.
[2] Why would the “designer” want to mislead its creatures? Perhaps it is a whimsical and capricious being, such as the Flying Spaghetti Monster.
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