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I. Introduction
EARLY EXPERIMENTALMS,because they stressed that experience was to be
the foundation for a new way of doing science, are often characterized as
advocating an empiricist epistemology. Traditionally, empiricists have maintained that all knowledge is to be grounded in sense perception and that
science is to be restricted to the knowledge of actual and observable
phenomena. As a consequence, they have rejected the idea that we can ever
determine the truth of theories that seek to explain regularities in terms of
unobservable entities and processes. Given this definition, however, a
problem of historical interpretation immediately arises because it is not clear
that early English advocates of experimentation, particularly Francis Bacon
and Robert Boyle, lived up to this empirical ideal in their actual practice.2 For
this reason, a number of studies have been produced in an attempt to account
for their frequent appeals to experience while also taking account of the
actual theoretical leaps made by both. For example, it has been seen as an
inconsistency in Boyles work that, while he advocated experimentation, he
also spoke of corpuscularianism as the true philosophy.3

of Philosophy,
University of New Mexico, Albuquerque,
New Mexico 87131,
Received 10 December 1987; in revised form 6 June 1988.
is a term that tends to be used rather loosely. But historically,
from ancient times
to the present, empiricism has normally been identified with the position that knowledge claims
must be restricted to the actual and the observable.
See, e.g., G. E. R. Lloyd, Science, Folklore
and Ideology (Cambridge:
University Press, 1983), for an account of empiricism
the ancient medical sects; Richard H. Popkin.
The History of Skepticism from Erasmus to
Spinoza (Berkeley:
University of California
Press, 1979). fdr an acciunt of ihe empiricism of
Gassendi and Mersenne; and Bas van Fraassen,
The Scientific Imane (Oxford: Clarendon
1980), for the latest contribution
to empiricist science. Ske JosephJ.
On the
Problem of Truth in the Sciences, Proceedings and Addresses of the American Philosophical
Association 61 (1987). 5-26, for the most recent criticism of empiricist
Van Fraassen,
The Scientific Image, pp. l-2, e.g.. characterizes
Boyle as a failed empiricist
because he advocated
a corpuscular
of the macroworld.
A number of writers have seen Boyles advocacy of corpuscular
as indicative of
influences on his thought, despite the fact that Bacon also stressed the importance
of investigations
into the latent configurations
and process of bodies which for the most part
escape the sense. [The New Organon, Bk. 2, aph. vi-viii, in: The Works of Francis Bacon,
James Spedding, et al. (eds), vol. VIII. (Cambridge:
Riverside Press, 1863), pp. 173-1771. See,
Stud. Hist. Phil. Sci., Vol. 20, No. 1, pp. 19-45. 1989.
Printed in Great Britain.

0039-3681/89 $3.00 + 0.00

@ 1989. Pergamon Press plc.

Studies in History and Philosophy

The idea that there are contrary

arises from the widespread

their appeals

to experience.


in the philosophy
of placing

But, if their notion





in nature

be argued

that their use of legal analogies

need not betray


an inconsistency.

of Bacon and

an empiricist

of experience

of discovering


of Science

gloss on

is not that of

In the following

a good reason

it will

for rejecting

an empiricist
of their appeal to experience.s
The legal overtones of the early experimentalists
language, the references
to trials, and witnesses, and testimony,
are hard to ignore, but the significance
of these locutions
for the rise of experimental
science has yet to be fully
Some previous studies have focused upon the analogy between
the notion
of law in the two realms.
These analyses
have proven
however, because the analogy does not appear to be used in
this substantive
sense. Boyle, for example,
that law, in the

e.g., Larry L.audan, The Clock Metaphor and Hypotheses:

The Impact of Descartes on English
in: Science and Hypothesis:
Historical Essays on Scientific
Methodology (Dordrecht:
D. Reidel.
1981); and Robert Hugh Kargon,
Walter Charleton,
Robert Boyle and the Acceptance
of Epicurean
Atomism in England,
Isis 55 (1964), 184-192.
While Boyles eclecticism
led him to borrow different
from a number of natural
who could all be said to have therefore influenced him, the fact that he was not a
strict empiricist does not entail that he was not an advocate of Baconian methodology.
For the
elements in Bacons thought,
see: Mary Hesse. Francis Bacon, in A Critical
History of Western Philosophy, D. J. OConnor
(ed.) (New York: The Free Press, 1964), pp.
141-152; Mary Horton,
In Defence of Francis Bacon, Studies in History and Philosophy of
Science 4 (1973), 241-278; Lisa Jardine.
Francis Bacon: Discovery and the Art of Discourse
Press. 1974); David Oldroyd,
The Arch of Knowledge
(London: Methuen,
1986). pp. 6C-63; and Peter Urbach, Francis Bacons Philosophy of Science
(LaSalle, IL: Open Court. 1987). See Peter Alexander,
Ideas. Qualities and Corpuscles: Locke
und Boyle on the External World (Cambridge
University Press, 1985); and Rose-Mary
Boyles Baconian
A Response to Laudans Cartesian
Thesis, Studies in
History and Philosophy of Science 17 (1986). 469486, for discussions of the Baconian elements in
Boyles philosophy.
Even when the non-empirical
elements are recognized.
as in the accounts cited above, the
to experience
are still taken as indicative of an empiricist tendency to which the nonempirical
must be reconciled.
The legal tradition is only one of a number of traditions that need to be examined for a clearer
of Boyles experimentalism.
The theological
for example, was also an
source for a broad notion of experience.
See Barbara
Probability and
Certainty in Seventeenth-Century England (Princeton:
Press, 1983); and
Henry G. van Leeuwen,
The Problem of Certainty in English Thought: 1630-1690 (the Hague:
See Paul H. Kocher, Francis Bacon on the Science of Jurisprudence,
Journal ofthe History
of Ideas 18 (1957), 3-25; and Bernard McCabe, Francis Bacon and the Natural Law Tradition,
Natural Law Forum 9 (1962). 111-121. The attempt
to interpret
law univocally
McCabe, for example, finds it puzzling that Bacon was apparently
natural law in the legal tradition since he was concerned
with the existence
of ascertainable
natural laws in the cosmological
sense. (p. 111.) But for Bacon natural laws in science are to be
natural laws in the legal sense are the rational
from particulars,
principles discoverable
from and grounded upon individual reason. Therefore,
it is not surprising
that Bacon was opposed to natural laws in the legal sense, just as he appears to be in McCabes



and Legal Expertise


scientific sense, should be understood metaphorically. Also, Jane Ruby has

recently argued that the notion of a scientific law had its roots in the discipline
of mathematics, not in the legal tradition. s The question remains then, what
was the significance and force of the legal analogy? What role did it play in
experimental discourses?
Most often, the analogy appears in methodological contexts. Experimentation is said to be the method by which nature is put on trial and made to reveal
its hidden workings. Since the analogy appears to be used in order to clarify
the methodological dictates of the experimental philosophy, it is reasonable
to suppose that an understanding of the procedures employed by the legal
profession in 17th-century England could provide an insight into the
methodology of experiment. The aim of this study is not to provide an
exhaustive historical account of the rise of the experimental ideal. An
examination of the arguments put forward by the lawyers for the justification
of their procedures, however, ought to shed light on the experimentalists
attempts to justify the superiority of their techniques over traditional
empiricist and rationalist approaches to the study of nature - in particular,
on their epistemological justification of experience as the foundation of the
new science. 10
Boyle, in his A Free Inquiry into the Received Notion of Nature, vol. V, pp. 170-71, notes that
because inanimate things lack intelligence, they cannot, strictly speaking, make their motions
conformable to laws. [This, and all future references to Boyle, are taken from The Works of the
Honourable Robert Boyle, 6 vols., Thomas Birch (ed.) (Hildesheim: Georg Olms, 1965 fats. edn
of 1772 London edn)]. Chief Justice Matthew Hale also drew a distinction between laws of nature
which were fixed and unalterable and laws of men which were not. See, Matthew Hale,
Considerations Touching Amendments or Alterations of Laws, printed in: Edmund Heward,
Matthew Hale (London: Robert Hale, 1972). Bv the 18th centurv these distinctions became
blurred, however. Blackstone, for example, stated that a law signcfies a rule of action and it is
applied indiscriminately to all kinds of action whether animate, or inanimate, rational or
irrational. See William Blackstone, Commentaries on the Laws of England, vol. I (Chicago:
University of Chicago Press, 1979 fats. edn of 1765 edn), p. 38.
Jane E. Ruby, The Origins of Scientific Law, Journal of the History of Ideas 41 (1986).

Boyle, for example, spoke of the testimony of nature and said that matters of fact ought to
be brought to trial in his Hydrostatical Paradoxes, vol. II, pp. 742,744; and spoke of judicious
and illustrious witnesses in his New Experiments Physico-Mechanical, vol. I, p. 34. Bacon spoke
of the inquisition of things in The New Organon, Preface, in The Works, vol. VIII, p. 35; and
noted that nature exhibits herself more clearly under the trials and vexations of art than when
left to herself in De Dig&ate et Augmentis Scientiarum, Bk. 2, ch. 2, in The Works, vol. VIII, p.
Shapiro, Probability and Certainty, in her examination of law and science in the 17th
century, has shown an important link between the two realms in their shared notion of moral
certainty. However, she does not provide a detailed discussion of the notion of experience which
was the ground for this type of certainty. Neal Gilbert, Renaissance Concepts of Method (NY:
Columbia University Press, 1960), discusses the relevance of legal methodology for English
science, but he restricts his attention to the type of law taught at the universities and not that
which was practiced by common lawyers such as Bacon at the Inns of Court. This is not the onlv
time that legal practices have had an-important influence on science. See G. E. R. Lloyd, Magic,
Reason and Experience (Cambridge: Cambridge University Press, 1979). Lloyd maintains that
the legal system of the polis of ancient Greece was important for the rise of science per se.


Studies in History and Philosophy of Science

The examination

of the relations

of a particular





has been,


of the

for the most part,

and other

a task

carried on by sociologists of science. While the following analysis shares some

with sociological
to the history of science, my main
purpose is to examine this external
area for elucidation
of the concepts

in scientific


If, for example,




a more

familiar cultural factor has been used to help explain an innovative

idea in
another area, it is likely that an understanding
of the cultural illustration
lead to a better understanding
of the idea being illustrated. The first part of
this paper will examine
the specifically
aspects of the
put forward by English lawyers in defense of the practice of
This discussion
will be followed by an analysis of how
Boyle used these arguments
as part of his justification
of experimental
science. In a concluding section it will be argued that the failure to appreciate
the significance
of the legal analogy has led to serious misunderstandings
the epistemological
of Boyles experimental
science. In particular,
the recent sociological
by Steven
Shapin and Simon Schaffer,
Leviuthan and the Air-Pump,
will be criticized for its oversimplification
of the

the legal tradition could be seen as important
for the acceptance
of experimental
science in England; but my aim is not so much to provide a historical explanation
for the rise of
the experimental
ideal, as to investigate how the experimental
ideal was justified by reference to
the tradition.
There is controversy
within the sociology of science about the proper methods and aims of
sociological analysis. See the exchange in Social Studies of Science 12 (1982) between Thomas F.
Gieryn, RelativisUConstructivist
in the Sociology of Science, pp. 227-297; H. M.
Collins, Knowledge,
Norms and Rules in the Sociology of Science.
pp. 229-309; Michael
Mulkay and G. Nigel Gilbert. What is the Ultimate Question?,
pp. 309-319; and Karin D.
The Constructivist
in the Sociology
of Science:
pp. 32&324. Historians of ideas have tended to shy away from social analyses
because they do not share some of the normative
with the
sociology of science. But, the incursion of social factors into scientific discourse need not entail
radical theses about the arbitrary nature of knowledge.
In the following my analysis will be closer
to a comparative
study of the corresponding
in other fields, suggested by Thomas
S. Kuhn, The Sfrucrure of Scientifi:c Revolu/ions, 2nd edn (Chicago: Chicago University
1970), p. 209. There are many ways in which social factors may influence science. I agree with
of the work done in the sociology of science to date, that it has failed to
and contrast
science with other bodies of knowledge
and members
of other
groups. See Sarah Delamont.
Three Blind Spots? A Comment on the Sociology
of Science by a Puzzled Outsider,
Social Studies of Science 17 (1987). 163-170. p. 165.
The common law is that which was practiced by Bacon and that which was most familiar to
educated Englishmen.
That is. while the content of the law itself was extremely complex and only
someone educated at the Inns of Court would understand
these intricacies,
the procedures.
of precedent and jury trial, were well known. Blackstone,
in his Commenturies [vol. I, p. 71. cited
Lockes claim that it would be a strange absurdity
to suppose that gentlemen
of independent
estates and fortune would be ignorant of the law. For Boyles dealings with the law see R. E. W.
The Life of the Honourable Robert Boyle (New York: Barnes and Noble, 1969). Since
the legal analogy is methodological
and not substantive,
with legal procedures
for my purposes.

Scientific Experiment and Legal Expertise

issues with which the experimentalists

England were concerned. l3


and the lawyers of 17th-century

II. English Common Law

The tradition of common law differed in a number of ways from that of

Roman law, as practiced on the Continent. Most importantly, the traditions
were based upon radically different foundations. Roman law took the Code
of Justinian as its model. It consisted of a dialectically constructed and
codified body of legal doctrine based upon rational first principles and the
citation of authorities, and often concerned itself with such academic
exercises as the question of the validity of Lazaruss will after he had been
brought back to life by the hand of Christ. I4 Common law, on the other hand,
was not a uniform system capable of codification. As precedent law, it largely
consisted of chronological collections of past cases in the Yearbooks and
Register of Writs. Because this lack of system could make learning and
practice difficult, lawyers and students found it convenient to make
abridgments of past cases listing them under various headings for easy
reference. The lack of system in the common law, while inconvenient, was
not viewed as a weakness, but as part of its strength because it meant that the
law would be flexible enough to allow for expansion to meet new needs and
modification to accommodate unusual cases.
Shapin and Simon Schaffer,
Leviafhan and the Air-Pump (Princeton:
Press, 1985).
The details of this discussion are taken from J. H. Baker, An fnfroducfion fo English Lega/
Hisfory (Loadon:
1971); Baker, The Reports of John Spelmun, 2 vols (London:
Seldon Society, 1978), vol. II; Harold J. Berman,
Law and Revolufiont The Formation of fhe
Western Legal Tradition (Cambridge:
Harvard University Press, 1983); Willinm Holdsworfh, A
Hisfory of English Luw, 12 vols, 4th edn (London: Methuen,
1936); E. W. Ives, The Common
Lawyers of Pre-Reformufion England (Cambridge:
Press. 1983); John
H. Langbein,
Presecufing Crime in the Renuissunce (Cambridge:
1974); Brian P. Levack, The Civil Lawyers in England (Oxford: The Clarendon
Press, 1973);
Wilfred R. Prest, The Inns of Courf under Elizabefh I and the Early Sfuarfs: 159&1640 (NJ:
Roman and Littlefield,
1972); and W. C. Richardson,
A History of the Inns of Courf (Baton
Rouge: University of Louisiana Press, 1975). Roman law was taught at English universities for
use in the courts of the Admiralty
and the Church. Common law was used for all other legal
and was taught at the Inns of Court.
l5The foundation
of the law was considered
to reside in the Writs, which were arranged
groups within the Register: and the Yearbooks
which were records of past cases said to yield a
of experience.
(Ives, The Common Lawyers, p. 160.) Baker, Reporfs of Spelmun,
vol. II, pp. 27-28, argues that there was not, in fact, as much continuity as the lawyers claimed,
but the issue here is how the lawyers justified their procedures.
not whether this justification
Bacon and Hale both argued for more system in the common law. Bacon. in his Maxims offhe
Law. Epistle Dedicatorv,
in The Works. vol. XIV, p. 175, wanted to reduce the laws to more
brevity and certainty by compiling digests (cf. Holdsworths
discussion, Hisfory of Engksh Luw,
vol. V, pp. 485-487). Hale in his Considerafions Touchina Amendments. in Heward. Muffhew
Hale. p.l64, wanted one large and authentical
of the Books and Tracts of the law
under apt and alphabetical
titles. For the flexibility of the lawyers approach
see Ives, The Common Lawyers, p. 156; Baker, Reports on Spelman. vol. II. p. 163;
and Holdsworth,
A Hisfory of English Law, vol. IV, p. 285.


Studies in History and Philosophy of Science

Flexibility was not the sole concern, however. The common lawyers also
maintained that their practice was able to yield a greater degree of certainty
than the Roman one - a certainty that was based upon a vast amount of
experience. Early in the 17th century, Sir Edward Coke maintained that
Roman law was less certain than common law because it depended upon a
number of interpretations and glosses that gave rise to so many diversities
of opinions, as they do rather increase than resolve doubts and uncertainties.16 In contrast, common law was based upon:
the resolutions of Judges in Courts of Justice
. reported in our books, or extant
in judicial records or in both, and therefore,
being collected together, shall (as we
produce certainty.

Instead of the analytical approach used in Roman law, the common

lawyers advocated a historical approach wherein individual reason would
be constrained by the experience embodied in actual judicial decisions
collected over hundreds of years. Francis Bacon reflected the ideas of a
common lawyer when he stated that one should make the rule from existing
law. General maxims were not to be the product of arid disputations, but
were to be gathered and extracted out of the harmony and congruity of
cases. The danger inherent in the use of pure reason was that it was more
liable to lead to arbitrariness and uncertainty because it was overly
speculative and not grounded in the actual problems associated with legal
decisions. Chief Justice Matthew Hale put the case clearly when he
maintained that those with the greatest power of natural reason *are most
commonly the worst judges that can be, because they are transported from
the ordinary measures of right and wrong by their overfine speculations,
theories and distinctions.2
Asquoted in Holdsworth, A Hislorv of English I aw, vol. IV, p. 226. Coke was Lord Chief
Justice of the Court of Common Pleas,*and for many years was Bacons rival for royal support.
He was the author of The Institutes. which, together with the works of Bacon, came to be used by
some revolutionaries
in the 1640s as their grounds for the authority of Parliament.
This argument
could be made since the common law was seen as a constraint
on the absolute power of the
sovereign. See Thomas Andrew Green, Verdict According to Conscience (Chicago: University of
Chicago Press, 1985). p. 163; Levack, The Civil Lawyers, pp. 123, 144; David Ogg, England in
the Reign of Charles II, Vol. I (Oxford:
Press, 1955). Lawyers themselves
divided in their allegiance
during the civil war, and a number of prominent
legalists had been
leaders of the opposition
to Crown policy. See Richardson,
A History ofrhe Inns of Courf, pp.
A History of English Law. vol. IV, p. 226.
Francis Bacon, De Augmenfis,Bk. VIII, aph. 85 in The Works. vol. IX, p. 338. Book VIII is
not a treatise on common law, but it does reflect Bacons preference
for the common
of historical
when dealing with civil matters.
Bacon, Maxims of the Law, Preface.
in The Works, Vol. XIV. p. 181.
Matthew Hale, Reflections
by the Lord Chief Justice Hale on Mr. Hobbes his Dialogue of
the Law. Manuscript
printed as an appendix to Holdsworth,
A History of English Law. vol. V,
pp. 500-506; p. 503. I have modernized
Hales spelling. Thomas Hobbes,
in his A Dialogue

Scientific Experiment and Legal Expertise


In order to be a competent judge of legal affairs, one had to acquire legal

reason - an instinctive ability to reason on the law, which could not be
taught but only resulted from a deep and prolonged
to the working
it. the common
law is:
of the law. 21 As Coke described
not to be decided by natural reason but by the artificial reason and judgment of
law, which law is an act which requires long study and experience,
before that a
man can attain to the cognizance
of it.22

Once equipped with this artificial perfection of reason, the lawyer would have
the experience necessary for the discernment of similarities and differences in
past cases and for the analogical application of these precedents to new cases.
In the construction and application of a law, experience had to guide the use
of reason.23 But clearly, this type of experience is not that which is today
commonly associated with sense perception or mere observation. When the
lawyers claimed an experiential foundation for the justification of their
decisions, they did not appeal merely to an accumulation of facts, but to a
sophisticated process of interpreting the facts. Reason was not (and could not
be) excluded. But it had to be restrained more than it was in the case of those
speculators that take upon them to correct all the governments in the world
and to govern them by certain notions and fancies of their own.24
The common lawyers did not claim that experience could yield infallible
judgments, but maintained that it was preferable to adopt laws that had
Between a Philosopher and a Student of the Common Laws of England [in vol. VI of The English
Works of Thomas Hobbes, William Molesworth (ed.) (London: John Bohn, 1840), pp. l-160],

championed the analytical approach to the law. Hale criticized Hobbes on two points: (1) the
weakness of a purely analytical and logical criticism of existing laws and (2) Hobbes doctrine of
absolute sovereignty. Not surprisingly, in his Dialogus Physicus [Simon Schaffer (transl.) in
Leviathan and the Air-Pump, pp. 3463911 Hobbes was opposed to experimental science and
championed a rational, mathematical approach instead.
*See Richardson, History of the Inns of Court, pp. 91-150, for the fullest account of education
at the Inns. See also Baker, Reports of Spelman, vol. II, pp. 161-163; and Ives, The Common
Laywers, pp. 37-38, 158-161; for the common erudition learned at the Inns.
Richardson, History of the Inns of Court, pp. 148-149.
3Precedent was only a guide because it was notstrictly binding. See Baker, Reports of
Spelman, vol. II, pp. 161-163. Individual cases had small authority, the common opinion based
upon a number of cases carried more weight.
Hale, Reflections, in Holdsworth, A History of English Law, vol. V, p. 506. Jardine,
Francis Bacon, has argued that Bacons Great Instauration should be viewed as being in line
with the dialectical tradition. However, her argument does not seem to do much more than
establish that he was motivated by his aversion to dialectic, which would be a typical response of a
common lawyer. Common lawyers believed that a training in logic and dialectic was a necessary
preliminary to the study of law, but when Abrahm Fraunce, a member of Grays Inn at the time
of Bacon, published his Lawyers Logicke in 1588, it was viewed as little more than an English
translation of the dialectic of Ramus and received little attention. See Prest, The Inns of Court,
pp. 132-146, and Richardson, History of the Inns of Court, pp. 147-149. The usefulness of logic
was for the development of natural reason, but the study of law involved the development of
legal reason.


As Hale

over time rather



to follow

the dictates

of individual

the unknown,
arbitrary, uncertain judgment of the uncertain reason of
pilrticular persons, bath been the prime reason, that the wiser sort of the world
have in all ages agreed upon some certain laws and rules and methods
of common justice, and these to be as particular and certain as could
be well thought of.s

Rather than speculating

on first principles of moral philosophy,
the lawyers
sought practical
to actual problems.2
of the lack of
universal principles,
Hale and his fellow lawyers noted that conclusions
much more difficult to reach in the field of law than in abstract mathematical
sciences which possessed such principles
from which conclusions
could be
when found,
the legal conclusions
obviously not share the deductive certainty of mathematical
But mathematical
was not the lawyers ideal: Indeed, it was a
foolish and unreasonable
thing to expect a mathematical
such an area.
to Hale:
Of all kind of subjects .
there is none of so great a difficulty for the faculty of
reason to guide itself and come to any steadiness as that of laws .
, when it comes
to particulars.
And, therefore it is not possible for men to come to the same
and demonstration
touching them as may be expected

Mere reasoning
is not sufficient.
the relations

of how similar

the mathematician
who could
the lawyer needed

cases in the past had been resolved

and how these

should apply to the present case. But the common law did have a
method of proof, sometimes
referred to as moral demonstration,
that was
superior to mathematical
The manner by which
this type of proof was achieved can be seen in the way that trials were
Here again. there was a marked difference between Roman law
and common

p. 503.

Reports of Speltnan, vol. II, p. 29.

Reflections. p. 505.
ibid., p. 502. Compare this with Bacon, De Augmentis. Bk. VllI, ch. 1, in Tlze Works, vol.
IX. p. 232: Civil Knowledge is conversant
about a subject, which of all others is most immersed
in matter,
and with most difficulty
to axioms.
as we will see in the next section, considered
legal proof to he of the type that he
called moral demonstration.
It is important
to note that the lawyers did not reluctantly
for moral demonstration
as an inferior mode of proof. Rather.
they believed that for their
it was superior
to analytic reasoning
and dialectic.


Scientific Experiment and Legal Expertise


Roman law required complete proof (probatio pfena) before a verdict could
be reached. Proof did not consist in the balance of persuasion. Rather, strict
mechanical rules of evidence were followed. Different pieces of evidence
carried different numerical values (from 0 to l), and by a simple arithmetical
calculus, complete proof was achieved when these values totalled 1. If the
evidence provided only a probario semi-plena, then other measures, such as
torture, were employed to obtain certainty. The method of taking evidence
consisted of questioning witnesses in private and then introducing their
depositions as evidence to a closed court. Based upon this evidence, the
judicial bench would determine the facts of the case and pass legal ruling on
its own findings. In common law, on the other hand, trials were a public
affair, and witnesses testified in an open court. A jury of 12 men would
deliver their verdict on the facts of the case, and the bench would pass
judgment on their verdict. There was a sharp boundary of duties in the trial
court: the jury had the responsibility of deciding matters of fact, while it
was the task of the judges to decide matters of law.32
The common law courts did not require a complete proof in order for a
verdict to be reached by the jury. Originally, the method of proof, derived
from the Anglo-Saxon law of the ninth century, was that of cornpurgation.
Jurors were chosen on the basis of the knowledge that they had of the case
before the court, frequently coming from the same neighborhood as the
accused. Compurgators (witnesses) would take an oath and the truthfulness
of their testimony would be judged by the jury. While by the 17th century the
procedure had changed somewhat - jurors prior knowledge was not always
possible or desirable - in practice the jury frequently retained its self-

Prosecuting Crime in the Renaissance, pp. 237-239; Holdsworth,
A History of
English Law, vol. V, pp. 17S187. Torture was used because a confession carried the value of 1.
England also used torture for serious crimes, but there were no apparent criteria for when or why
it would be used.
Prosecuting Crime in the Renaissance, p. 211; Holdsworth,
A History of English
Law, vol. V, pp. 169-175.
See Langbein,
Prosecuting Crime in the Renaissance, p. 251. for the distinction
matters of fact and matters of law. The jury, for example, would find homicide.
and the
bench would decide if it was murder or manslaughter
and pass sentence
A History of English Law, vol. V, pp. 195-196 for the open, public nature of trials.
See Green, Verdict According to Conscience, pp. 110-111; and Baker, Reports of Spelman, vol.
II, pp. 92-100, for the necessity of oral testimony.
By the 17th century the practice of written
had been introduced
into English law, but they were not part of the official record
and were not binding. An example of all of these factors can be found in the 1649 Trial of
John Lilburne,
in: State Trials, compiled
by T. B. Howell,
21 vols.
1816), vol. IV, pp. 1270-1470.
Also in this trial one can see the great amount of
freedom that the defendant
had to speak in contrast with the Roman procedures
where the
was extremely limited in what he could say and when he could say it. See Langbein,
Prosecuting Crime in the Renaissance, p. 237; and Holdsworth,
A History of English Law, vol. V
pp. 169-175.

Studies in History and Philosophy of Science


informing role. 33 If the evidence was incomplete, for example, the jury could
proceed upon its knowledge. The final decision was to be based upon the
probable merits of the cases put forth by the accused and the accuser, and the
case would be decided in favor of the one whose account appeared to them
most likely to be true. The proof of the case was said to consist in the
finding of a body of reasonable men, according to the probabilities of the
In opposition to the notion of a mathematical demonstration,
and the
Roman law notion of strict numerical probability, the common law offered a
model of demonstration
in which experience was fundamental in the
of the reasonable resolution of cases. The experiential
foundation of the lawyers went beyond a mere accumulation of facts to a
reasoned interpretation
of the facts. Their notion of experience relied
heavily on the idea of an expert.
The expert was one who had mastered the common erudition; who had
developed his reason by experience in a specific area and was thus the most
qualified to judge in that area. 35 The jury would have expert status in the
judgment of the veridical nature of the witnesses testimony, by virtue of their
past experience of the reputations of the accused and the witnesses, and thus
of the likelihood of the matter of fact having occurred. The judge (a lawyer)
was the expert, who, by reason of his long experience of the workings of the
law, was able to deliver the best judgment on matters which related to the
interpretation of the facts and the resolution of the case. In the process of
rational adjudication, the use of background knowledge was necessary both
for the establishment of the facts and the application of past cases that would
determine the relevance and interpretation of the facts. This same broad
notion of experience, and the type of demonstration grounded upon it, played
an integral part in the attempts by English experimentalists to justify the
character of their enterprise. This can be seen most
clearly in the case of Robert Boyle, who, expanding upon the methodological
precepts of Bacon, made frequent use of the lawyers arguments in the
interest of advancing the cause of experimental philosophy.
III. Boyles Experimental


the leading



of the new experimental



Reporfs ofSpelman, vol. II, p. 107-112; Holdsworth,
A History ofEnglish Law, vol.
II, pp. 108-117; vol. III, pp. 59-34;
and Green, Verdict According to Conscience, pp. lOC107,
to the evidence and your conscience.
142. The jurors were told to judge according
A Hisfory of English Law, vol. III. p. 633. The right of the accused to challenge
the testimony of his accusers turned the trial into a proper test, according to Green, Verdicf
According fo Conscience,
p. 136.
Reports of Spelman, vol. II, p. 124.

Scientific Experiment and Legal Expertise


England, saw himself as continuing Bacons program.36 As is well known,

Bacon was highly critical of those who placed too much emphasis on the use
of the rational faculty, and he sought to counteract this tendency in natural
philosophy by stressing the need for experiment. But he was also critical of
those of his contemporaries who relied upon experiments, because the
manner of making experiments which men now use is blind and stupid, . . .
wandering and straying, . . . with no settled course.37 To the Lord Chancellor, the remedy was clear. Natural histories had to be constructed in the
manner in which legal histories had been:
. . . the use of History Mechanical is, of all others, the most radical and
fundamental towards natural philosophy; such natural philosophy I mean as shall
not vanish in the fumes of subtle and sublime speculations.38

Not surprisingly, he maintained that the best demonstration by far is

experience.3 Because the mind is possessed by idols that distort our image
of the world, reason alone cannot produce true theories:
. . . that method of discovery and proof according to which the most general
principles are first established, and then intermediate axioms are tried and proved
by them, is the parent of error and the curse of all science.4

Bacon had admonished philosophers to seek knowledge not arrogantly in

the little cells of human wit, but with reverence in the greater world, and
Boyle agreed that to the extent that the classical way of reason failed to make
contact with the actual world it was an inappropriate method for natural
philosophy.4 In his view, the philosophical task was the determination of:
. . . how things have been, or are really produced; not whether or no the manner
of their production
be such, as may the most easily be understood
by us . . that
way may often be fittest or likeliest for nature to work by, which is not easiest for us
to understand.42
hLaudan, The Clock Metaphor and Hypotheses, p. 52, maintains that Boyles numerous
references to Bacon should be seen as mere lip-service to a famous fellow-countryman.
Bacon, The New Organon, Bk. I, aph. lxx in The Works, vol. VIII, p. 100.
38Bacon, De Augmentis, Bk. II, ch. 2, in The Works, vol. VIII, p. 415. On p. 410 (ibid.) he
described Mechanical and Experimental History as that which puts nature in constraint, in
contrast with History of Generations where nature follows her ordinary
course of
development. His natural histories were meant to be more than mere collections of facts since
experimental histories were part of them and nature exhibits herself more clearly under the
trials and vexations of art than when left to herself. (Ibid., p. 415.)
Bacon, The New Orgunon, Bk. I, aph. lxx, in The Works, vol. $111, p. 100.
Ibid., Bk. I, aph. Ixix, D. 100. This is a criticism of the Aristotelians. but it would easilv, aoolv
also to the methbd that i)escartes was to develop.
4lbid., Preface, p. 37.
2Boyle, The Usefulness of Natural Philosophy, vol. II, p. 46.


Studies in History and Philosophy of Science

The rationalists,
given us of things
the Baconian

who content
with the superficial
by their obvious appearances
and qualities,
he likened to


in a place


taking notice only of those objects, that obtrude themselves upon her senses, lives
ignorant of all the other rooms in the house, save that wherein she lurks; and
nothing either of the architecture
of the stately building. or of the
of the parts of it in relation to each other. and to the entire structure,
makes it her whole business. by intrapping of flies, to continue a useless life or
herself to spin cobwebs,
which though consisting of very subtile threads,
are unserviceable
for any other than her own trifling uses.

He did not discount the use of reason. Rather, reason had to be improved by
and experiments,
that need not
destroy a dictate of reason, but only give it a limitation
and restrain it.4
Boyle wished to speak physically of things and pure reason is not sufficient
for that task. But, neither is mere observation
sufficient for revealing truths
about those causes actually operative
in the world. The appreciation
of the
complexity and subtlety of the world created a demand for a new science to be
built upon two foundations,
reason and experience.4
For the physical
world, the use of natural reason and common observation
is not sufficient; the
testimony of nature is also necessary, and one needs experience in order to be
able to ask the right questions
of nature
and to interpret
the answers.
was to be the method by which one was to discover, by
artifice and skill, things that were hidden from common
The experimental
is not a mere empiric
who too often makes
without making reflection on them, as having it more in his aim to
produce effects, than to discover truths.
/bid.. p. 9. For Bacon. the spider represented reasoners who make cobwebs out of their
own substance (The New Orgmon. Bk. I. aph. xcv, in The Works, vol. VIII,
p. 131). Boyle
upon the spiders activities,
but the conclusion is the same the
is to use both sense and reason.
The Christim Virtuoso. vol. VI, p. 715.
SBoylc, The Origin of Quuiiries. vol. III. p. 25.
The Christian Virtuoso. vol. V, p. 512.
l&d., p. 524. This is an obvious reference to Bacons distinction between experiments of light
and experiments of fruit. in The New Organon, Bk. 1, aph. xcix, in The Works. vol. VIII, p. 135.
Also. in Dr Augmentis, Bk. II, ch. 2, in The works. vol. VIII,
p. 415, Bacon maintained that
History mechanical
will give a more true and real illumination concerning the investigation
of causes of things and axioms of arts. than has hitherto shone upon mankind. The difficulties
encountered in the discovery of causes will be discussed below. But it is important to note here
that while Boyle wished to discover actual causes. he did not restrict a knowledge of them to
the observational
level. Observations
were only one of a number of constraints on theorybuilding; they did not play the empirical role of a straight-forward
criterion for the truth of a
theory - indeed. frequently observations had to be corrected by the use of theories. As we will
see. theories do not simply fall out of, and receive their complete warrant from, experimental

Scientific Experiment and Legal Expertise


Boyle did not regard reason and experience as contrary notions. To gain
experience of the world, we must make reflections on the information of the
senses, and not simply receive sense impressions passively.4x We must do
more than look at the world, we must actively investigate it. The information
of the senses could not provide an evidential warrant for a theory until it had
been itself validated by experimental trials. But even the experiments
designed for this investigation could miscarry. Contingencies of experiments resulted from the presence of such circumstances as are very difficult
to be observed, or seem to be of no concernment to an experiment but yet
may have a great influence on the event of it.4 When working with metals,
for example, the experimenter must be very cautious because samples may
appear perfectly similar to the eye yet small quantities of other metals may
lie concealed, and their presence is hardly to be discerned before
experience have discovered it. The experience used here to decide the issue
is to be gained either from exquisite separations or from unexpected
operations exhibited in experimental trials.5 By manipulating nature, we
not only increase the quantity of information that we have of natural
processes, we improve the quality of that information by extending our
knowledge of the world beyond that of the mere appearances which could be
had from common observation.
The difficulties encountered entail, not that experimental science cannot
yield knowledge, but that an immense amount of labor and skill is required
for the proper design of experiments and the validation of our interpretations
of the results. Repetition and variation of the experimental conditions are
necessary. As Boyle reminds his readers, he provides numerous examples of
the contingency of experiment so that they would realize the obligation:
. . . to try those experiments very carefully, and more than once, upon which you
mean to build considerable
either theoretical or practical; and to
think it unsafe to rely too much upon single experiments5

The Usefulness of Natural Philosophy, vol. II, p. 9.

Boyle, Of Unsucceeding Experiments, in: Certain Physiological Essays, vol. I, p. 340. In


medicinal remedies, for example, a drug could be effective for the cure of a specific disease, but
could result in the death of the patient nonetheless
because of some unforeseen
or unheeded
in the particular
patient that made the drug either too strong or too weak to be
effective. He also noted that a patients expectations
could influence the effectiveness of the cure.
Hale used the medical analogy to illustrate legal procedures:
But the texture of
human affairs is not unlike the texture of a diseased body
., it may be of so various natures
that such physic as may be proper for the cure of one of the maladies may be destructive
relation to the other and the cure of one disease may be the death of the patient.
p. 503.
Ibid., p. 322.
Ibid., pp. 348-349. Repetition
and variation
are techniques
to validate that the
can be used as a legitimate
piece of evidence.


Studies in History and Philosophy ofScience

But the difficulties

were not meant

to produce

as may make you forbear to prosecute

The experimentalist
is neither rationalist
the senses and reason

of the senses,

can both mislead.

but reason

such a despondency

nor empiricist.

The demand

is equally


The information

for repetition

are only fit to be relied on, according as the informations

on are more or less certain and full.5 Boyles program

of mind,


of reason

they are grounded

was designed as a
means by which both the sensory and rational faculties would be used to their
best advantage
primarily by being used as constraints
upon each other. The
study of contingent
matters requires a methodological
strategy similar to that
which is found in the law. It is a strategy of rational adjudication
by which the
is carefully
and verified.
Based upon this
reason then decides on the truth of the matter. The method is
The truths obtained
from it will not possess the metaphysical
necessity of Cartesian
first principles,
but will be limited to a knowledge
how things are actually produced
in the world as it is now constituted.
Boyle explained,
the experimental
does not seek axioms
or universal
but rather axioms collected or emergent,
which I mean such as result from comparing
many particulars.
These axioms are so general that they rarely admit of exceptions yet they may
not be unlimitedly
true.54 Experimental
science may also sometimes fail to
identify even such limited truths. But all that is required for a justification
that the method
often succeeds,
not that it never fails. The striking
success of Harvey
and Galileo,
for example,
for the future
success of experimental
As Boyle
physicians and merchants do not forsake their businesses because:
. though they sometimes miss of their ends, yet they oftentimes attain them, and
are by their successes requited not only for those endeavours
that succeed, but for
those that were lost, so ought we not by the contingencies
incident to experimental
to be deterred
from making them.s6

The experimental
the facts upon which theories

is both a method of discovery (it establishes

are to be constructed),
and a method of

Ibid., p. 352.
3Boyle, The Christian Virtuoso, vol. VI, p. 707.
54BovIe, Things Said to Transcend Reason. vol. IV, p. 462.
held bbth men in high esteem. For his frequent yeferences to Harvey, see Richard A.
Hunter and Ida MacaIDine. William Harvev and Robert Bovle. Notes and Records ofthe Roval
Society of London 13 i1958). 115-127. For Boyles referencks to Galileo, see, for example,
Usefulness of Natural Philosophy, vol. III, esp. p. 467, where he calls Galileo the great master
of mechanics.
ShBoyle, Of Unsucceeding
vol. I, pp. 352-353.



and Legal Experfise


justification (it provides rigorous testing procedures by which the resultant

theories are to be proven). In a manner reminiscent of the lawyers arguments
in favor of moral demonstration, Boyle argued that, despite its fallibility, a
demonstration produced by experimental science is superior to one produced
by the mathematical way of reasoning. The way of reason produces an
axiomatic system that assures the certainty of its conclusions by virtue of its
logical structure. But Boyle was suspicious of the knowledge claims thus
produced, for a number of reasons. First, he was troubled by the general
nature of mathematical demonstrations that are built upon supposition and
postulates . . . about which men are liable to slip into mistakes.57 The
arbitrary nature of the postulates put forth by mathematical writers
entailed. for him that:
. . the certainty and accurateness, which is attributed to what they deliver must be
restrained to what they teach concerning those purely-mathematical disciplines,
arithmetic and geometry, where the affections of quantity are abstractedly

Secondly, the problem with the systems produced by famous philosophers

was that they had presumed to give us general axioms upon insufficient
inductions, and without thoroughly penetrating the differing natures of the
things included in those comprehensive axioms.5y Reason must be guided by
the information of sense, and by experience:
It cannot but be a satisfaction to a wary man to consult sense about those things that
fall under the cognisance of it, and to examine by experience, whether men have
not been mistaken in their hypotheses
and reasonings.ti

Finally, while mathematics was a useful and necessary tool for the
advancement of natural philosophy, its use was limited to proving the truth of
descriptive laws about the world; it could not take us beyond to the physical
causes responsible. In hydrostatical investigations, for example:

Boyle, Hydrostatical Paradoxes, vol. II, p. 142. Previous studies have given the impression
that Boyle did not understand mathematics. For example, A. R. Hall, The Scientific Revolution,
2nd edn (Boston: Beacon Press, 1983), p. 278, states that Boyle had no natural aptitude
towards the mathematization of nature. In works such as the Hydrostatical Paradoxes, however,
Boyle does display his knowledge of mathematics. The absence of mathematical demonstrations
in his work should be attributed to his philosophical arguments against reasoning more
geometrico and to his interest in the qualitative aspects of natural philosophy.
Boyle, Of Unsucceeding Experiments, vol. I, p. 347.
Boyle, The Christian Virtuoso, vol. VI, p. 705.
MBoyle, Hydrostatical Paradoxes, vol. II, p. 742.

Studies in History and Philosophy



mathematicians, that (like Marinus Ghetaldus Stevinius, and Galileo) have

added anything considerable to the Hydrostaticks, . . have been wont to handle

them rather as geometricians,

than as philosophers,
the explication
of the phaenomena
of nature.h

For Boyle,

the importance

of hydrostatical


and without




them to


that certain propositions

were true, to the explanation
of why they ought to
be SO.~~ The first task was largely mathematical.
The second was the true
of natural philosophy.
Natural philosophers
are obliged not only to know the general laws and
course of nature,
but to inquire into the particular
of bodies.6
in the sense newly given it by Boyle,4 is a physical
doctrine designed to explicate the phenomena
by real, though extremely
He advocated
the corpuscular

Ibid.. p. 740. In his Usefultless qf Nutural Philosophy. vol. III. p. 477, he argued for the
usefulness of mathematics,
stating that many properties
and uses of natural things
are not
likely to be observed by those men, though otherwise never so learned, that are strangers to the
Boyle, Hydrostatical Paradoxes, p. 746. Compare
this with Bacons advice in The New
Organon. Bk. I. aph. xcvi. in The Works, vol. VIII. p. 132. that mathematics
ought only to give
to natural philosophy,
not to generate
or give it birth. See Peter Dear Jesuit
Science and the Reconstitution
of Experience
in the Early Seventeenth
Studies in History und Philosophy of Science 18 (1987). 133-175. for a discussion of the distinction
between mathematical
and physical sciences. Dear traces what he finds to be a transformation
the term experience
from the Aristotelian
notion of a universal evident statement
used as a
premise in a scientific demonstration
to the notion in the 17th century of a discrete historical
event. With this transformation,
Dear argues that expertise and witnessing became fundamental
to the establishment
of facts that could be used as evident suppositions
in scientific argument.
Boyles notion of experience does not seem to fit well within this discussion. The facts established
by experience
are not discrete events but are regularities,
e.g. that animals will die ten times
faster in a pump from which most of the air has been removed than from one left full. But these
are not to be used as suppositions
in scientific explanation.
Rather they are the facts
to be explained
by science. If Dear is right, it would seem that there were (at least) two
one that derived from the mathematical
sciences, and one from the
low sciences of law. chemistry
and medicine.
Boyle. The Origirz of Qualities. voi. III, p. 75. In his Received Notiorl of Narure. vol. V. p.
170, Boyle denies that a law can define the nature of a body because a law omits the general
fabric of the world and the contrivances
of particular
bodies that are necessary
to produce
hJBoyle, Certain Physiological Essays, vol. 1, p. 356.
Touching Colours, vol. I, p. 746. Boyles corpuscularianism
different from the mechanical philosophy
of others. See Stillman Drakes discussion of Galileos
shift from the Aristotelian
search for causes to the quest of laws of nature based on experiment
and measurement
[Cause, Experimenl and Science (Chicago:
of Chicago Press,
1981), p. ix]; and Lisa Sarasohns
of the mechanical
of Gassendi
Hobbes where the law of inertia had the central explanatory
role. (Motion and Morality: Pierre
Gasscndi. Thomas Hobbes and the Mechanical
Journal of the History of Ideas 46
(19X5), 36.3-379.) Although Boyle was a vocal critic of Aristotelianism,
he retained the notions of
formal and final causality by transforming
them into notions compatible
with his corpuscularianism. See Peter Alexander,
Ideus, Qualities and Corpuscles; Norma E. Emerton,
The Scientific
Reinrerprekztion of Form (Ithaca: Cornell University Press, 1984); Marie Boas Hall, Roherr Boyle

Scientific Experiment and Legal Expertise


avoided the occult qualities and forms of the Aristotelians and chemists, and
was more fertile and comprehensive than the previous doctrines. For
example, even if the elements of the chemists could be proven to exist, these
ingredients would still owe their nature to a union of insensible particles.66
Yet, he sided with the chemists who believed that the current formulations of
consisted of empty and extravagant speculations,
because the theorists pretend to explicate the great book of nature, without
having so much as looked upon the chiefest and the difficultist part of it
[chemical combinations].67 In his view, the corpuscular philosophy is a
physical hypothesis, and therefore its tenets have to be proven by experience.
For this purpose, he maintained that there are scarce any experiments, that
may better accommodate the Phaenician [corpuscular] principles, than those
that may be borrowed from the laboratories of the chymists.68
Corpuscles are unobservable in principle. They are invisible causes and
their manner of existence can only be known by inference from the effects
that they produce. 6y The eye or the imag ination can never reach to so small
an object as an atom, but, there is no necessity . . . that visibility to a
human eye should be necessary to the existence of an atom, or of a corpuscle
of air, or of the effluviums of a loadstone.
Neither common observation
nor mathematical analysis will reveal the manner by which the corpuscles
produce their effects; only experimentation will do so. Boyle remarked that
his reflection on the phenomena of nature led him to appreciate the intelligibility of the corpuscular philosophy, and that his acceptance of this
philosophy in turn led him to realize the necessity of an experimental
and Seventeenth Cenrury Chemistry (Cambridge:
University Press, 1958); and James
G. Lennox, Boyles Defense of Teleological
Isis 74 (1983), 38-52. It seems that it
was largely his interest in chemistry that separated Boyle from other mechanical philosophers
this interest led him to a different
of the experimental
OhBoyle, The Grounds of the Mechanical Philosophy, vol. IV, p. 14. Thomas Kuhn, in his
Boyle and Structural
in the Seventeenth
Isis 43 (1952), 12-36,
argued that Boyle set back the progress of chemistry because he refused to accept the existence of
elements. But, as Hall, Robert Boyle and Seventeenth Cenrury Chemistry, has pointed out, the
elements that Boyle denied were the universal ones that the chemists posited as existing in any
body whatsoever.
Certain Physiological Essays, vol. I, p. 358.
Ibid. Chemical experiments
could show what nature contributed
in chemical combinations,
since the experiments
were done in closed transparent
vessels, so that one could better know
what concurs to the effects produced,
because adventitious
are kept from intruding
upon those, whose operations
we have a mind to consider.
(Ibid.) See the correspondence
on behalf of Boyle,
and Baruch
on the need to
establish corpuscular
in: The Correspondence of Henry Oldenburg,
vols I and II, A. R. Hall and M. B. Hall (eds) (Madison: University of Wisconsin Press. 1965).
6Boyle, Cosmical Qualities of Things, vol. III, p. 315. Corpuscles
are unobservable
principle because they possess only primary qualities and it is the secondary qualities produced by
their joining together
into various configurations
that produce
sensible qualities in us.
Boyle, The Christian Virtuoso. vol. VI, p. 694. In Things Said to Transcend Reason. vol. IV,
p. 469, Boyle explained
that our illative knowledge
is clearer and extends further than our
or apprehensive

Studies in History and Philosophy of Science


He sought to discover qualitative
of the quantitative
laws described
by other mechanical
To infer actual causes

one first needs

to determine

the effects to be explained,

and then,

since a number of different possible causes may be inferred, one also needs to
confirm the hypothesis
by experiment,
by the careful testing of the further


by it. Qualitative



that explain

in terms of real corporeal particles must be proven a posteriori if they are to

be properly
in experience.
Those that are so grounded
obtain discerning
mens approbation.72
The physical realm was not considered
by Boyle to be part of the realm of
Because experimental
philosophy was to follow
the way of experience,
as opposed to the way of reason, moral demonstration, such as that which was advocated
by the lawyers, was the preferred
mode of proof. Moral demonstration
may not be as rigid as mathematical
but it is superior in its ability to reveal truths about the world.
As Boyle put it, there are many truths that:
or metaphysical
. by the nature of the things are not capable of mathematical
and yet, being really truths, have a just title to our assents; it must
be acknowledged,
that rational assent may be founded upon proofs, that reach not
to rigid [i.e. mathematical]
it being sufficient that they are strong
enough to deserve a wise mans acquiescence
in them.

He retained
a skeptical
a number
of philosophical
One ought to suspend judgment
if there is a specific reason to
doubt. But, there are times when there is no such reason. If all of the
evidence points to one side of the issue, and there is no evidence on the other
side that would militate against it, then the reasonable
course is to affirm the




yield undoubted


Of course,

one could be mistaken.

about the contingent
world remain
fallible, but this general skeptical
does not provide a specific
reason to doubt. It would be unreasonable
to continue to doubt in the face of
Moral demonstration
is demonstrative.
Its strength, as a mode of proof, is
clearly exhibited in a passage where Boyle describes moral demonstration
that which is:
made up of particulars,
that are each of them but probable; of which . . . the
practice of our courts of justice here in England, affords us a manifest instance in
The Origin of Qualities, vol. III. p. 75.
72Boyle. The Grounds of the Mechanical Philosophy, vol. IV. p. 77.
Boyle, Things Said IO Trarmend Reason. vol. IV. p, 449.

Scientific Experiment and Legal Expertise


the case of murder, and some other criminal cases. For, though the testimony of a
single witness shall not suffice to prove the accused party guilty of murder; yet the
testimony of two witnesses, though but of equal credit, that is, a second testimony
added to the first, though of itself never a whit more credible than the former, shall
ordinarily suffice to prove a man guilty; because it is thought reasonable to
suppose, that, though each testimony single be but probable, yet a concurrence of
such probabilities, (which ought in reason to be attributed to the truth of what they
jointly tend to prove) may well amount to a moral certainty, i.e., such a certainty,

as may warrant the judge to proceed to the sentence of death against the indicted
A conclusion built upon a concurrence of probabilities cannot be but
allowed, supposing the truth of the most received rules of prudence and
principles of practical philosophy.75 Moral demonstration is a form of
practical judgment that is concerned with rational assent. Boyles standard of
rationality does not consist in a mere multiplication of testimony, but in the
amount of independent evidence for the proposition in question:
. . . when we are to judge, which of two disagreeing opinions is most rational, i.e.
to be judged most agreeable to right reason, we ought to give sentence, not for
that, which the faculty, furnished only with such and such notions, whether vulgar,
or borrowed from this or that sect of philosophers, would prefer, but that, which is
preferred by the faculty, furnished, either with all the evidence requisite or
advantageous to make it give a right judgment in the case lying before it, or, when
that cannot be had, with the best and fullest information, that it can procure.

A judgment of reason is that which takes in the most information

procurable, that is pertinent to the things under consideration.
While Boyles discussion of concurrence and reasonable assent take place
within a treatise devoted to an examination of the reasonableness of religion,
these ideas were also fundamental to his experimental philosophy. In his
Examen of Mr. Hobbess Dialogus Physicus, Boyle approved of Hobbes
two criteria for the evaluation of a hypothesis, its conceivability and its
74Boyle, Some Considerations about Reason and Religion, vol. IV, p. 182. Boyles description
is a bit condensed,
but basically right. It would be the jury that would find the accused guilty,
based upon the concurrence
of probabilities,
and then the judge would pass the sentence of death
upon their indictment.
See Green,
Verdict According to Conscience, pp. 180-181.
Ibid. The concurrence
produces a type of hypothetical
necessity: if one wants to be rational,
then one ought to assent to the conclusion.
761bid., pp. 179-180. In this context, it is interesting
to note one of Kuhns examples of a
which is said to be like an accepted judicial decision in common law,
it is an
object for further articulation
and specification
under new and more stringent conditions.
Structure of Scientific Revolutions, p. 23. Legal analogies seem to naturally come to mind in
contexts; see, e.g., Peter Galison, How Experiments End (Chicago: University of
Chicago Press, 1987), p. 277: experiments
are about the assembly of persuasive arguments,
that will stand up in court .
Ibid., p. 181.

Studies in History and Philosophy of Science


power, but added a third criterion:
that it be not inconsistent
with any other truth or phaenomenon
of nature.7x A theory is worthy of
if it comports with all other phaenomena
of nature as well as
those it is framed to explicate.
This additional
amount of phenomena
for which a hypothesis
must account,
and it is the

duty to test the consequences

there are no phenomena

is one that enables:

of a hypothesis

to ensure







. . a skilful Naturalist to foretell future Phenomena,

by their Congruity or
Incongruity to it; and especially the Events of such Expts as are aptly devised to
Examine it; as Things yt ought or ought not to be Consequent to it.x

The more tests a hypotheses withstands,

that it is not a mere mental construct.

the more reason we have to believe

The purpose of a hypothesis

to render an intelligible account of the causes of the effects, or phaenomena

proposed, without crossing the laws of nature, or other phaenomena; the more

and the more various the particles are, whereof some are explicable by
the assigned hypothesis,
and some are agreeable to it, or at least are not dissonant
from it, the more valuable is the hypothesis,
and the more likley to be true. For it is
much more difficult, to find an hypothesis,
that is not true, which will suit
especially if they be of various kinds, than but with a few.

Examen of Mr. Ho&ess Dialogus Physicus. in: New Experiments PhysicoBoyle,

Mechanical, vol. I., p. 241.
The Excellency of Theology, vol. IV, p. 59.
by Richard
S. Westfall
in: Unpublished
Boyle Papers Relating
to Scientific
Method, Annals of Science 12 (1956), 63-73, 103-117, p. 117. This third criterion is reminiscent
of the testing procedure
suggested by Carneades.
As Ralph Doty describes it, a person seeing
coiled on the floor of a barn at night would prod the coiled object with a stick to
whether it is a rope or a snake. This would be an experiment
*aptly devised, since
knowledge would inform one that snakes react differently to prodding than do coils
of rope. It is significant
that Boyle chose Carneades.
rather than one of the more radical
as his spokesman
in the Scepfical Chymist. See Ralph Doty, Carneades.
Journal of the History of Ideas 47 (1986). 133-138.
of William Jamess Pragmatism,
See also. Douglas Lane Patey, Probability and Liferury Form (Cambridge:
Press, 1984), pp. 15-16, for his discussion
of Carneades
method of probability.
Experiments, Nores, Etc., vol. IV. p. 234, italics mine. Compare this with John
Lockes discussion
of probability
in: An Essay Concerning Human Understanding, Peter H.
Nidditch (ed.) (Oxford: Clarendon
Press, 1975), Bk. IV, Ch. 16, $6, p. 662, where he states that
based upon the nature of things and the testimony of reliable witnesses rise so near
to Certainty, that they govern our Thoughts as absolutely
as the most evident demonstration. Locke is here talking about probabilities
matters of fact, and acknowledges
that when one turns to hypotheses
about unobservables,
is more difficult to achieve.
Yet, in Bk. IV, ch. 16, $12, pp. 66&667, he maintains that wary Reasoning from Analogy (e.g.
the principle that like effects have like causes) leads us often into the discovery of Truths, and
useful Productions,
which would otherwise
lie concealed.

Scientific Experiment and Legal Expertise


A theory that accounts for all of the known phenomena is probable. A

positive evaluation is called probable, rather than true simply because
the evidence upon which it is grounded is incomplete. Boyle cited the fact that
the recent invention of the telescope and other philosophical instruments
had increased the amount of information in the natural histories upon which
theories were to be built and there was reason to believe that these histories
would continue to grow in the future.s2 A theory would either remain
probable, or become improbable, as new information came to light. The
probabilism expressed here is not one that reflects any in-principle
hypothetical nature of science, however, but rather one that reflects the
incompleteness of knowledge at any given time. It is not a product of
Boyle contrasted moral demonstration with the kind of reasoning found in
Pascals wager argument. This argument produces a conclusion that is of less
cogency than a moral demonstration that can determine our resolves, but
it can still be prudent to act upon it. Wagering involves the figuring of
likelihoods, and one can act rationally if all things considered, the outcome
betted upon apears more likely to be true, than not to be true.84 The wager
argument concerns the practical aspects of reaching a decision under
uncertain circumstances.
Moral demonstration,
on the other hand, is
achieved only in the absence of specific reasons to doubt. It seems clear, then,
that on the occasions when Boyle speaks of the probable truths reached by
moral demonstration,
the term probable has the qualitative meaning
worthy of approbation, and not todays quantitative meaning expressed by
degrees of likelihood. ss Moral demonstration is compelling. If there is a
concurrence of probabilities where all of the evidence is in favor of a
hypothesis, then, in order to be rational, one must assent to its truth.
IV. Concluding


If the legal analogy is taken seriously, that is, if one looks to the legal
domain for elucidation of the concepts employed by English experimentalists,
important, but often neglected or misunderstood, aspects of the epistemological foundations of the new science become apparent. For example, since
Cosmical Suspicions, vol. III, p. 318.
Some Considerations
about Reason and Religion, vol. IV, p. 183.
See Ian Hacking,
The Emergence of Probabilify (Cambridge:
University Press,
1975), esp. ch. 2, for his discussion of this dual aspect of probability.
Because Hacking focuses
too much upon the qualitative
aspect of probability
as an appeal to authority,
concludes that our ordinary notion of probability
did not exist until the 17th century. See Patey,
Probability and Literary Form, Appendix
A, pp. 266-272, for a detailed criticism of Hacking.
Also, see chs 1 and 2 in Patey for his alternative
account that draws upon the history of
in the law, rhetoric,
and the low sciences of medicine and chemistry.


Studies in History and Philosophy

the notion

of experience
was much broader than that associated with sense
it would be a misinterpretation
of the historical texts to attribute

an empiricist



to either

and lawful



or Boyle.

He was much more cautious


of Science



be achieved

Boyle was committed

the empirical

than Bacon

by this


in his assessment


to the

and the rational


of how

optimism that truth would be achieved. His philosophy of science was not at
all the mitigated skepticism of philosophers
such as Gassendi who advocated
an empiricist
science of appearances.x7
In an extremely eclectic fashion, Boyle constructed
a moderate philosophy
of science designed in such a way that it would possess the best elements from
empiricist and rationalist
to the study of nature. Because of this
it is possible to pick passages from his works that would support
either an empiricist or a rationalist
of his philosophy.
It is also
easy to find passages that reflect the thought of earlier philosophers. To the extent that predecessor
studies can help to illuminate
in Boyles thought,
they are significant;
but the temptation
reduce Boyles philosophy
to that of another,
based upon a select set of
to be resisted.
His eclecticism
a unique
of science that ought to be evaluated
in its own terms.
I have argued here for a rather strong Baconian influence upon Boyle, but
it should be stressed
that while Boyle apparently
the earlier
larger vision of science, he expanded
upon and modified that
vision in its methodological
details. The link between Bacon and Boyle is
significant in that it suggests that the experiential
procedure of common law,
which we know to have influenced
Bacons thought, also influenced
Further there is independent
evidence, in Boyles use of legal analogies, that
he was influenced
by the lawyers arguments.
When one then turns to the
legal tradition and its broad notion of experience,
the apparent inconsistency

the experimental

way of experience

and the postulation

of hidden

causes actually operative in nature vanishes. Boyle rejected the metaphysical

modalities of rationalism
and demanded
a careful and controlled investigation
of the actual world much as an empiricist
would do. But, he did not rest
content with an empiricist science of appearances.
The experimental
way of

The New Organon,
in The Works, vol. VIII, p. 34.
has been characterized
as empiricist
by Margaret
J. Osler,
and Divink will in Gassendis
Views on Scientific KnowledgeT
Journal of /he
Historv of Ideas 44 (1983). 549-560; Popkin. Hisrorv of.SkeDticism; and Sarasohn,
Motion and
Osler claims that Gassendis
and nominalist ontology became
of English science as represented
in the works of Boyle and Newton.
p. 560.)
this influence is in terms of the procedures.
and not the substance
of the law of

Scientific Experiment and Legal Expertise


experience was needed to correct our ordinary observations of the world.

Quantitative laws linking appearances were not the end-point of his science
but merely the beginning of a qualitative causal inquiry into the reasons why
such regularities appeared. That is, laws became the phenomena that had
to be explained in terms of hidden processes and entities operative in nature.
Twenty years ago Larry Laudan brought the decidedly non-empirical
elements within Boyles work to our attention, yet the empiricist characterization of Boyle persists. The recent attempt by Shapin and Schaffer to display
the socio-political origins of experimental science, for example, is seriously
flawed by their failure to appreciate the complexity of Boyles method. On
their account, Hobbes was right, because he recognized that knowledge
was man-made and argued against Boyle and other members of the Royal
Society who were involved in a game in which knowledge is, so to speak,
ultimately vouched for not by human agency (individual or collective) but by
reality itself .92 They argue that in our culture, saying that knowledge is
artificial and conventional is tantamount to saying that it is not authentic at
all, and they trace this criticism back to Boyle as the empiricist who
regards the man-made component of knowledge as a distortion of the minds
mirroring of reality.Y3 Because experiments are produced in the artificial
environment of a laboratory, and depend upon witnessing for validation, they
believe that they have shown that the experimental production of facts is
fundamentally an arbitrary process that is relative to the ideological climate
wherein these facts are produced.y4
As we have seen, however, Boyle not only acknowledged, but emphasized
that a great amount of skill and labor is required to perform experiments. If
an experiment is to be a criterion for theory acceptance, then great care has to
be taken to validate the experimental results. Experimental science does not
provide a foolproof method for constructing and evaluating causal theories,
but it was an advance upon the Hobbesian way of reason. As Boyle said, it is

See Michael R. Gardiner, Realism and Instrumentalism in Pre-Newtonian Astronomy,

in: Testing Scientific Theories, John Earman (ed.) Minnesota Studies in the Philosophy of Science
X (Minneapolis: University of Minnesota Press, 1983). pp. 201-265. Gardner points out that it
was the ability of the Copernican theory to yield a physical explanation of the planetary laws of
motion that led Kepler to view Copernicanism realistically.
%Laudan, The Clock Metaphor and Hypotheses. Laudan is right about the non-empirical
elements, but, unfortunately, once he had identified these elements, he then thought it necessary
to attribute them to a Cartesian influence, and this thesis has not held up. See: G. A. J. Rogers,
Descartes and the Method of English Science, Annals of Science 29 (1972), 237-255; and
Sargent, Robert Boyles Baconian Inheritance.
Shapin and Schaffer, Leviathan and the Air-Pump, p. 344.
Ibid., p. 150.
Ibid. Their account relies uoon Richard Rortv. Philosoohv and fhe Mirror of Nature

(Princeton: Princeton UniversityPress,

Richard S. Westfall, in his review of Leviathan and the Air-Pump, Philosophy of Science 54
(1987), 128-130, also finds this to be one of their central theses.

Studies in History and Philosophy of Science


easier to undervalue experiments, than to explicate nature without them.

Experimental results are decidedly man-made, but it is just this activity that
makes them nonarbitrary.Yh
Shapin and Schaffer attempt to support their empiricist characterization of
Boyle in part by an appeal to the testimony of his contemporaries. They note
with approval, for example, that the Duchess of Newcastle attacked those for
whom the bare authority of an Experimental Philosopher is sufficient . . . to
decide all Controversies and to pronounce the Truth without any appeal to
Reason. Similarly, they note Hobbes contention that the experimental
philosophers were not interested in causal inquiry.s These remarks do not
really support the empiricist interpretation of Boyle that Shapin and Schaffer
have advanced. Rather, they merely indicate that, in his own day, there were
those who failed to appreciate the complexity of his method. While Boyle
eschewed the type of causal inquiry championed by Hobbes, namely a
quantitative determination of first laws from which to deduce all other
phenomena, he did not therefore reject all forms of causal inquiry. The
pressure of the air, for example, was the real cause of the phenomena that
had previously been attributed to natures abhorrence of a vacuum. Although
Boyle could go no further - he could not offer a certain cause for the
pressure of the air - this should not be regarded as causal nescience. We
can know that a cause exists even if we do not know the modus of the cause:
effect, that we discern must proceed from such a cause or agent, we
may conclude, that such a cause there is, though we do not particularly conceive

If there be an

or by what


it is able to produce

The worth of an explanation

is questionable

the acknowledged


when what is to be explained

Boyle, Animadversions Upon Mr. Hobbess Problemata de Vacua. vol. IV, p. 105.
(This argument
has also recently been made by Kockelmans,
On the Problem of Truth in
the Sciences.
See also, Patey, Probability and Literary Form, p. 15, where he describes
as putting forward criteria that would make assent nonarbitrary.
and Schaffer,
Leviathan and the Air-Pump. p. 308.
Zbid.. p. 140.
it was Hobbes close association
with Gassendi
that led him to misunderstand
Boyles appeal to experience.
Shapin and Schaffer are attempting
to follow recent work, e.g. by
Latour and Woolgar, where sociologists enter the laboratory
as strangers
to the procedures
order to obtain what they believe to be an unbiased view [see Bruno Latour and Steve Woolgar,
Laboratory Life (London: Sage. 1979)]. But because theirs is a historical laboratory,
to which
they cannot go directly, Shapin and Schaffer attempt to achieve the perspective
of a stranger by
taking Hobbes point of view. But Hobbes was not an unbiased
he was an active
who had his own interests. one of which was to discredit the experimentalists.
It is
extremely unlikely that an opponent to Boyle would be a good source for what his method really
was. I find Bacons dictum about knowing a man at second hand much more useful: Mens
and faults are best known from their enemies
their opinions and thoughts from
their familiar friends with whom they discourse most. Bacon, De Augmenris. Bk. VIII. ch. 2, in
The Works. vol. IX, p. 276.
Boyle, Things Said to Transcend Reasort, vol. IV, p. 455.


Scientific Experiment and Legal Expertise

has been incorrectly defined. Because Shapin and Schaffer characterize

Boyles experimental philosophy as a type of empiricism, their social
explanation for its success is immediately suspect. But, there are also
problems associated with the content of their explanation, that result from
their failure to appreciate the significance of the epistemic dimension of the
legal profession, and which, in turn, have led them to oversimplify the role
that legal analogies played in Boyles discourse.
According to Shapin and Schaffer, a crucial boundary was constructed
around the domain of the factual, separating matters of fact from those items
that might be otherwise . . . The matter of fact was offered as the
foundation of proper knowledge.
This is quite true. Given Boyles
project, one has first to determine the effects (facts) to be explained before
proceeding to speculate about their causes. Shapin and Schaffer go on,
however, to present this distinction as the creation of a social boundary that
was a particular concern of Restoration society:
The practices involved in the generation

and justification of proper knowledge

were part of the settlement and protection of a certain kind of social order. Other
intellectual practices were condemned and rejected because they were judged
inappropriate or dangerous to the polity that emerged in the Restoration.

But clearly, this boundary was not a new creation of the experimentalists.
Boyle could easily recognize the fruitfulness of the distinction, which had a
long history of use in the legal sphere, and carry it over into his experimental
philosophy without thereby creating, or even using, the boundary as a
solution to particular Restoration issues. lo3 Indeed, since the legal sphere was
much more closely involved with political issues, and the boundary was
already established in that realm, in what way would the use of it by the new
experimental philosophers, who had not yet received total acceptance, serve
any significant political purpose?
Another problem arises from Shapin and Schaffers analysis of the role of
witnesses. They write that matters of fact were to be established by the
aggregation of individuals beliefs, and that in this process a multiplication
of the witnessing experience was fundamental.04 According to them, the
thrust of the legal analogy consisted, in part, in the tactic of multiplying

Shapin and Schaffer,

Zlbid., p. 342.


and the Air-Pump,

p. 24.

vision of scientific knowledge
rising as a pyramid from a firm foundation
of fact
would be another likely source for Boyles distinction.
Bacon was not part of the
%hapin and Schaffer,
Leviathan and the Air-Pump,
p. 25.


Studies in History and Philosophy

of Science

authority by multiplying witnesses.5 But, as we have seen, it was not a

mere multiplication of testimony, but the independence of testimony that lent
weight to a fact. Since the experimental philosopher is to decide on an issue
only when all of the procurable evidence is in, and the task is too large to be
done alone, then of course there is a need for testimony. But facts are not
merely a product of a consensus of opinion about sensory information.lOh
Boyle, as always, left a large role for reason: the understanding remains still
the judge, and has the power or right to examine and make use of the
testimonies that are presented to it. Testimony is a matter of evidence,
not of authority: Humane Authority ought not to be of force against either
right Reason or Experience. a And, contrary to Shapin and Schaffers
contention that the social status of a witness sustained his credibility. Boyle
maintained that even of honest and sincere witnesses, the Testimony may be
insufficient [if] the matters of fact require Skill in the Relator.OY
Witnessing is a much more complex process than that presented by Shapin
and Schaffer. Aside from problems associated with the oversimplification of
the role of witnesses, there is also a problem with their attempt to link
witnessing to Restoration issues. They claim, for example, that Boyle used
the provision of Clarendons 1661 Treason Act, in which, he said two
witnesses were necessary to convict, as a basis for his discussion of the
concurrence of probabilities. But, there is no indication that Boyle had this
Act in mind - he does not cite it and he refers to a trial for murder, not
treason. The two-witness rule for murder dated back to the reign of
Edward VI.
Shapin and Schaffers analysis is flawed because they incorrectly characterize Boyles experimental philosophy and they tend to see the incursion of
social factors as an immediate indication of political bias, without appreciating that there is an epistemic dimension to these social factors. Perhaps one
/bid.. p. 56. According to them the other facet of the legal analogy involved the right
action of a voluntary
giving of assent to matters of fact. (p. 57.) They later tie this in with
politics by characterizing
Boyles probabilism
as a form of liberty, where the rules
of the experimental
offered this solution to the fundamental
political problem of
liberty and coercion.
(p. 304.) But, as we have seen, moral demonstration
was compelling.
again, since the legal sphere already possessed this type of probability,
it is not clear in what way
the experimentalists
use of the notion would have added anything
to, the success of the
lOhIt is important
to remember
that. for Boyle, nature itself was also a witness. See Patey.
Probability and Literary Form, p. 270, for the distinction between the internal evidence of nature
and the external
of human testimony.
which dates back to the Renaissance.
The Chrisfian Virtuoso, vol. V, p. 539.
XWestfall, Boyle Papers,
p. 115.
?Shapin and Schaffer, Leviathan and the Air-Pump, p. 327; Westfall, Boyle Papers, p. 116.
and Schaffer,
Leviathan and the Air-Pump, p. 327.
Marv I later reversed the rule in a statute that allowed one witness to be sufficient in cases of
treason, but the rule continued
to hold in murder trials. See the Lilburne Trial in State Trials,
vol. IV, for a discussion of the statutes of Edward VI and Mary I, pp. 1316, 1396, 1401-1402.
Actually, the two witness rule is Biblical in origin. See Patey, Probability and Literary Form, p. 7.

Scientific Experiment and Legal Expertise


should not expect an epistemic analysis from social historians. But, seemingly
external areas of a culture can make valuable epistemological contributions
to scientific discourse, as the common law did for experimental science. This
suggests that a different type of analysis of the social context could be done by
more traditional historians of ideas. Instead of concentrating solely upon the
social significance of the ideas of past scientists, one should also look at how
ideas current in the larger society contributed to the development of
science. To the extent that there is an epistemological dimension to the
social realm, then social factors can act as legitimate epistemic resources.
Indeed, they are epistemic resources in two ways: (1) for historical actors,
areas external to science may be sources of innovative and progressive ideas
necessary for the scientific enterprise; (2) for historians of science, if the
external areas from which these ideas developed are used as illustration in the
historical texts, then study of these areas can provide a valuable resource for a
better understanding of the new ideas being illustrated.
Acknowledgements - I am indebted to Dr Julian Martin for valuable suggestions
concerning the legal issues discussed in this paper. I would also like to thank
N. Jardine and E. McMullin for their helpful comments
on an earlier draft.

*This is a reversal of Bloors contention that epistemic factors are really social factors.
See David Bloor, The Sociology of Reasons: Or Why Epistemic Factors are Really Social
Factors , in: J. R. Brown (ed.), Scientific Rafionaliry: The Sociological Turn (Dordrecht:
Reidel, 1984) pp. 295-324. Of course, some historians have looked at external areas for their
contribution to science, although most of this work has focussed upon theological ideas that are
considered to be more properly intellectual. But, see William Coleman, The Cognitive Basis
of the Discipline: Claude Bernard on Physiology, Isis 76 (1985), 49-70; and Lloyd, Magic,
Reason and Experience. Coleman examines the interaction of cognitive and social parameters in
discipline formation, a task which, he notes, is too significant to be left to sociologists who
ignore the intellectual content of such endeavors. (p. 49.)