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FROM JURISPRUDENCE TO JURIMETRICS:

A CRITICAL EVALUATION OF THE EMERGING
TOOLS IN THE JUDICIAL PROCESS

I Introduction

JUDICIAL PROCESS has emerged as an important part of the administration

of justice. It is not just a legal process; it is an ethical process as well. It
is no less a human process. It seeks to establish facts, determines the
governing rule of law, and then applies the rule to the facts.1 It consists of
the practices that are followed by a given court system in hearing and
judging the cases before it.2
Judicial process is the name given to the intellectual procedure by
which judges decide cases. It comprehends the mental process, deliberate
and sub-conscious, and all the elements in personality, profession and
environment which impel towards judgment.3 The disputes are to be decided
according to a previously agreed upon set of procedures and in conformity
with the prescribed rules.4
Developments in science and technology are also absorbed in the
judicial process. The reason is that the society is always progressive; it
changes faster than the law. The law has to keep pace with the scientific and
technological advancements in the society. Indeed, society has become
dependent on science, to such an extent that science and technologies are
being utilized in all most all the aspects of human life. It is the science
which is used tremendously in the courts of justice. The value of knowledge,
especially for judges has also been noticed by the Indian Supreme Court in
Hindusthan Times Ltd. v. Union of India,5 where the court emphasized on
the need for the judges to equip themselves with the necessary tools required
to write qualitative and thought provoking judgments.

1. Guy B Hathorn and Howord Rae Penniman, et. al., The Government and
politics in the United States (1961).
2. Grazia Alfred D., American Way of Government (1957).
3. VII, VIII Encyclopedia of Social Sciences 450.
4. 8 International Encyclopedia of Social Sciences 283; for details see Manas
Chakrabarthy, Judicial Behaviour and Decision Making of the Supreme Court of
India (2000).
5. (1998) 2 SCC 242.

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It is to be noted that the development of ‘forensic science’ has provided

a powerful tool in the hands of law enforcement agencies and the judiciary.
Anthropometry, finger prints and footprints technology, ballistics,
odontology, serology were essentially developed to aid the criminal justice
administration.6 As a result the barbaric and torturous methods of detecting
crime have no place in a civilized society. In this paper an attempt is made
to critically evaluate the tools emerged as a result of advancement in science
and technology used in the judicial process.

II Mechanical jurisprudence

Judicial process is viewed as logical deductions from the authoritative

premises of the code. It is essentially deductive application of existing
rules of law. The task of the judge is simply mechanical as they decide
cases as per existing law. According to this theory, the values and policy
preferences of judges are not involved to any significant degree in the
process of interpretation. It is submitted that the scope of judicial axiology
is greatly reduced. Consequently, law was viewed as coherent, complete
and autonomous rational system. 7 It is highly formalistic and traditional
theory of law. It is logical as well. However, logic is responsible for various
kinds of unjust decisions. Every lawyer acknowledges that the law is not
always logical. The life of the law has not been logic; it has been experience.8
For Coke, reason is the life of law. Common law itself is nothing but
reason. Jensen points out that deduction plays a minor and rather subsidiary
role in the judicial process.9 Philosophers such as Morris R. Cohen attacked
what was called the phonograph theory of law.10 Felix S. Cohen forcefully
and repeatedly argued against the conception of law as a self sufficient and
completely autonomous discipline.11

6. Rajender Singh et. al., “Voice Spectograph as an Aid in Crime Investigation”, in

Frontiers of Forensics (1990).
7. see Frank, “A Sketch of an Influence”, in Paul Lombard Sayre (ed.)
Interpretations of Modern Legal Philosophy: Essays in Honour of Roscoe Pound
189 (1947) .
8. Oliver W. Holmes, The Common Law (1923). See also Max Radin, Law as
Logic and Experience (1940); Julius Stone, The Province and Function of Law
(1950).
9. O.C. Jensen, The Nature of Legal Argument (1957).
10. Morris R. Cohen, “The Place of Logic in the Law”, 29 Harvard Law Review
622 (1916).
11. See Morris R. Cohen, “My Philosophy of Law”, in Julias Rosenthal Foundation
for general Law, My Philosophy of Law; Credos of Sixteen American Scholars 29-
48 (1987).

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III Matching jurisprudence

The concepts are fashioned by a legal system. Concepts are necessary

and indispensable instruments for the solution of legal problems.12 They
enter prominently into the formulation of legal rules and principles. The
reasoning processes used in the law are to a far-reaching extent based on
rules and principles embodying concepts of varying technicality.13 It was a
movement in jurisprudence quite influential in Continental Europe.
Precedents are the juridical concepts which are the postulates of judicial
reasoning. Deciding cases in accordance with precedents that plainly fit
them is a process similar in its nature to that deciding the case in accordance
with a statute. The duty of the judge is to match the colours of the case at
hand against the colours of the cases spread upon his desk. Virtually, it is a
matching jurisprudence. By doing this process no system of living law can
be evolved. The judges are mere instruments of the law and they do not
make the law.14
Hart has viewed the legal concepts as chess pieces, which can be
maneuvered to produce certain results. As the players of chess have a
choice as to their move, lawyers and judges often have a choice as to how
they will move concepts.15 The entire edifice of the law would crumble if
we try to dispense entirely with concepts. However, a large number of
judges and jurists would today endorse Mr. Justice Cardozo’s observation
that the tyranny of concept is “a fruitful parent of injustice”.16 Concepts
are tyrants rather than servants. Therefore, conceptual jurisprudence does
not enjoy much favour. It is submitted that the role of the judge is not
merely mechanical. He does not function mechanically.17 Judges are not
merely tools for deriving legal conclusions.
Cardozo while analyzing judicial process came to the conclusion that
there is an element of creation and discovery contained in the judicial
process. Judicial process will not be rationalized unless forces like logic,
history, custom and sociology have been valued.18 Justice Cardozo both in
his writings and legal opinions clearly exhibited the creative role a judge
can play in application and interpretation of law. It is submitted that in the

12. Max Rheinstein, “Education for Legal Craftsmanship”, 30 Iowa Law review
408 (1945).
13. Hohfeld, Fundamental Legal Conceptions (1923).
14. William A. Rosenbaum, John W. Spanier et. al., Analysing American Politics:
A New Perspective (1970).
15. HLA Hart, The Concept of Law (2002).
16. Benjamin N. Cardozo, The Pardoxes of Legal Science 61 (1928).
17. K.C.Joshi, “Judicial Process: Recent Trends” 34 JILI 72 (1992).
18. Bejamin N. Cordozo, The Nature of Judical Process (1921).

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twentieth century judicial orthodoxy has lead to the theory of ‘free legal
decision’. This theory recognizes the element of human creativity in the
matter of interpretation. It clearly admits that the factors like values, biases,
fears, hopes and preferences for policy becomes a significant factor in the
matter of constitutional interpretations. In fact, they can not be isolated
from social causes because, judicial decisions are human decisions. This
theory of ‘free legal decision’ throws light on the policy making functions
of the judge.19
One can witness the dramatic action of the American Supreme Court in
reversing its position on various constitutional issues, which left little
doubt about the potentially creative role of the judiciary. In a way, the
acceptance of the Brandeis brief as a legitimate source of legally relevant
material symbolized the gradual acceptance, even among the judiciary of
the idea that law is not closed and self-sufficient system.20 A legal system
is open textured in the sense that the new rules and principles can be
created and old ones changed. Judges exercise the creative function in a
variety of ways.

IV Towards jurimetrics

Modern jurisprudence entrenches on the fields inter alia, of social

science and philosophy. Thus, the study of jurisprudence should be
integrative, synthetic and purposive. It is in this context, Julius Stone says,
“study for jurisprudence mastery over social science other than law is
indispensable”.21 It is the examination of precepts, ideals and techniques of
the law in the light of knowledge derived from disciplines other than law
that makes the study of Jurisprudence complete. Such an approach opens
unlimited possibilities to develop law in keeping with human development
and contemporary knowledge explosion. Law therefore, has to be studied
as an integral part of the entire field of social science. Thus, Holmes,
Pollock, Brandies, Cardozo, Frank, Vinogradoff all sought to relate law to
its social context. The idea of lawyers extra legal version is to remind the
legal community that law is a part of total life of the society and it cannot
be sealed off or divorced from other branches of knowledge.22
The lawyer must know how the current ethos of social trends is moving
in order to make law an aid in the service of society. Lawyer should not be

19. Glendon B. Schubert, Judicial Behaviour (1964).

20. Leonard G. Boonin, “Concerning the Relation of Logic to Law” in Indian Law
Institute, Legal Research and Methodology 41-52 (2001).
21. Julius Stone, Province and Function of Law 25 (1947) ; see also Paton, A
Text Book of Jurisprudence (1964).
22. See O.W. Holmes, The Common Law (1881).

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mere legal technician knowing legal texts, legal machinery and procedure.
He should be a social physician so that law can give healing touches to
society. The lawyers and judges, therefore, must go beyond the letter of
the law to find social policy which lie at the bottom of law. The Supreme
Court of India has emphasized upon the need on the part of the government
to present to the court relevant socio-economic data in support when ever
welfare legislation is being questioned. According to Krishna Iyer. J.,23
welfare legislation calculated to benefit weaker classes, when their vires is
challenged in a court, brandies brief can be employed in support of the
legislation. It is submitted that courts cannot on their own adventure into
social research outside the record unless brandies brief is pressed into
service by the beneficiaries.
The modern problem of jurisprudence is a problem of using innovations
in science and technology for an efficient system of law and justice. It is
here jurimetrics assumes significance. Jurimetrics is a new idea. It has
been generally defined as “scientific investigation of legal problems”. It is
a new challenge to orthodox jurisprudence. It is a movement taking place in
jurisprudence. 24 While jurisprudence is mere speculation about law
jurimetrics is scientific investigation of legal problems. It is gaining voice
in the modern age of science and technology. It is a claim for modern
science, technology and sociology to be effectively used in law and applied
in the administration of justice to make both law and justice fuller, real and
up to date with the advancing tide of human knowledge from other spheres.
Recently, attempts to predict judicial behaviour have taken a mechanical
turn for which the term jurimetrics has been invented. It takes the form of
different kinds of investigations into legal phenomena by using symbolic
logic, behavioural models and mechanical aids.25 Boolean algebra is used
to analyse complex set of facts, prediction of behaviour has moved away
from that of individual to that of groups, and the use of computers is being
explored increasingly. According to Lee Lovinger, the founder of jurimetric
research, the next step forward in the path of man’s progress must be from
jurisprudence to jurimetrics. His clarion call is for adoption of new
techniques to solve legal problems.26

23. See B.Benarjee v. Anita Pan, AIR 1975 SC 1145; State of Kerala v. Roshana,
AIR 1979 SC 765.
24. P.B. Mukherjee J, “Law and Technology: Jurimetrics”, in Law and the Common
Wealth 513-19 (1971).
25. Kayton, “Can Jurimetrics be of Value to Jurisprudence”, 33 Geo.Wash.LR. 287
(1964-65); Meyer “Jurimetrics: the Scientific Method in legal Research” 44 Can B. R.
(1966).
26. For details see Loevinger Lee, “Jurimetrics, the Next Step Forward”, 33
Minesota Law Review (1949).

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Brandeis brief

The major problem in modern jurisprudence is therefore, how far other

branches of knowledge including physical and social sciences can be
harnessed to the service of law and jurisprudence. A theory of quantitative
analysis of judicial process is developing in modern jurisprudence. The
modern age is bringing forward unmanageable mass of authoritative materials
for application in the field of law. In a sense use of such materials for
modern jurisprudence is implicit in Brandeis brief. Similarly, block analysis
and scalo gram analysis are the two methods used for qualitative analysis
of judicial behaviour.27
The most important result of the Brandeis brief and of the decision in
the case of Muller v. Oregon28 is that it sets the course for future lawyers
to use social science arguments and data in courts. The data placed before
the court was extra-legal consisting of statistics concerning social
conditions, to prove its arguments. The lawyer while employing Brandeis
brief is acting as a social physician. In Brandeis brief, social science facts,
studies, surveys, reports and opinions are adduced as evidence in
constitutional adjudications. Similarly, filing of amicus briefs or intervener
briefs are not uncommon. On the Indian side, Olga Tellis,29 A. P. Pollution
Control Board v. M.V.Nayudu,30 courts have used experts to appreciate
technical and scientific evidence.31

Tape-record evidence

The judiciary has relied on the data recorded on some medium or the
other in a manner prescribed by law, as evidence to decide cases. The
medium of recording data has varied from stone, clay, metal, parchment
and paper over the past centuries to audio-visual tapes and computer disks
in modern times. The law of evidence traditionally relied on oral and
documentary records of facts. But with the advent of science and technology,
evidence law too has been modified to keep pace with the changes. In
today’s world, the nature of crime in the society has also changed which

27. Julius Stone in his Work on Law and Social Science brings out the pioneering
work of Glendon Schubert in the prediction of judicial behaviour; see also Schubert,
Glenden B.(ed.), Judicial Decision Making (1963).
28. 208 US 412. Subsequently, Brandeis brief became standard practice in the
US. Brown v. Board of Education, 347 US 483 is a landmark in this direction.
29. Olga Tellis v. Bombay Municial Corporation, (1985) 3 SCC 545.
30. 1999 (2) SCC 718.
31. For details see, T.K.Naveen, “Use of ‘Social Science Evidence’ in Constitutional
Courts: Concerns for Judicial Process in India”, 48 JILI 78-93 (2006).

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calls for adopting some new measures to cope up with the situation. Tape
recording is one of the measures adopted by the judiciary for dealing with
the cases conveniently.32
Tape-recorded conversations, speeches were documents as defined by
section 3 of the Evidence Act. 33 Tape-recorded conversation is a relevant
fact admissible under section 8 of the Evidence Act. Also the I.T. Act,
2000 which incorporated electronic records as a piece of evidence by
amending section 3 of the Indian Evidence Act, which now says that “all
documents including electronic records produced for the inspection of the
courts...” Tape-recorded conversations as an evidentiary value in the court
of law are one of the positive and effective changes with the growth of
technology.
It is further submitted that photo technology and video conferencing
too have an immense utility in the judicial process. Courts in America have
already accepted voice identification evidence based on the analysis of
voice print. Similarly, conversations of tapped telephone are useful to
expose links between terrorists, underground dawns on the one hand and
politicians on the other.

Use of computers

One of the major problems in the Judicial administration is storing of

mass of data and materials and using them in the judicial process. Here the
importance of the computer is felt as a urgent need of the hour. Computers
play an important role in the administration of justice. The customary
mechanisms and the tools adopted by the judicial process were old and
relatively slow to change. Therefore, there is an urgent need to adopt the
new technology in court management and maintenance of records if the
judicial process had to keep pace with the dynamic changes in modern
society.34 In view of increasing globalization of the legal profession, use
of computers in this profession too has become the need of the hour.
Lawyers can no longer ignore technology such as internet if they want to
succeed. Judges welcome computer generated exhibits.35

32. For more details see Rajesh Punia, “Tape Recorded Conversation – Nature and
Relevancy as an Evidence”, Cri.L.J. 1-5 (jour 2008).
33. Ziyauddin Burhanuddin Bukhari v. Brij MohanRamDa Mehta, AIR 1975
SC 1788; see also Ram Singh v. Col. Ram Singh, AIR 1986 SC 3.
34. See Gurjeet Singh, “Use of Computers in Legal Profession”, 39 JILI 312-23
(1997).
35. Dong Levy, “lawyers Learn to get Technology on their Side”, The Times of
India 13, 29 April 1997.

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Inventions, discoveries and technologies not only widen scientific

horizon but also pose new challenges for the legal world. Technology in
recent times had an increasing effect on the content of our laws. Particularly
the information technology has posed new problems in jurisprudence. The
law is inadequate to deal with the I.T. As a result necessary amendments to
the Indian Evidence Act, 1872, the RBI Act, 1934, Indian Penal Code and
Banker’s Books Evidence Act, 1891 were made in order that electronic
record, digital signatures and computer printouts may be proved and admitted
in courts of law.36 Laptops are being increasingly used as evidence in the
judicial process.

DNA finger printing

The contribution of forensic science on the administration of justice is

indispensable. Orthodox methodology of crime-detection has now become
obsolete. The application of DNA technology has heralded a new dimension
in the administration of justice. DNA finger printing is an authoritative
technique that is capable of distinguishing every human individual from the
other individual. In the US, DNA findings are admissible under the law of
evidence. In maternity, paternity disputes, rape and murder cases DNA test
has enormous applications. The technology is also used for personal
identification. The quality of criminal justice can be highly upgraded if
DNA technology is applied properly.37 New technologies and applications
based on DNA continue to emerge. These range from the use of new genetic
systems and the new analytical procedures to the typing of DNA from
plants and animals.38

Polygraph, brain mapping and narco analysis

In today’s world of science and technology, man has found various

tools that the law enforcement agencies can use to battle crime. The forensic
psychology can be used as one of the important tools in investigation.39
Polygraph-lie detector, P-300 – Brain mapping tests and narco analysis
are the advanced scientific tools in the hands of the law enforcement
agencies.
Modern techniques like polygraph and brain fingerprinting are non
invasive methods that will detect deception without causing physical or
36. For critical study see Yatindra Singh, “Cyber Laws” 44 JILI 190-204 (2002).
37. For details see Dr. Durga Pada Das, “DNA Finger Printing and its Impact on
the Administration of Criminal Justice”, Cri. L.J. 377-9 (jour, 2005).
38. For a critically analysis, Dr. G.V. Rao, “DNA Analysis in Prosecution Cases:
Criteria for Consideration”, Cri.L.J. 289-93 (Jour, 2005).
39. B.R.Sharma, Forensic Science in Criminal Investigation and Trial 204 (2005).

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mental injury to the subject. The results of polygraph and p-300 are simply
graphs and the reading of experts. Hence, it is purely assessment of opinions
and their subsequent opinions based on their reading and understanding of
such graphs. In these tests, the person being tested is not required to make
any statement. Art. 20 (3) of the Indian Constitution does not hit these
because there is no element of compulsion involved.
In USA the forensic science is frequently used in the criminal justice
system. In Daubert v. Merrell Dow Pharmaceuticals Inc, 40 the US
Supreme Court held that scientific, technical or other special knowledge
would assist the trial of fact to understand the evidence or determine a fact
in issue. Subsequent to Daubert many states have applied the same standard
for determining the admissibility of expert testimony of scientific
evidence.41 Now-a-days narco analysis- truth serum test is widely performed
on suspects and accused, by forensic scientists at the behest of investigating
agencies. Courts grant permission to subject the suspects to this technique
and accept the revelations as admissible.42 Narco analysis has been used by
the US in fighting the war on terrorism. In Indiana Police v. Edmond,43 it
has been held that truth serum may be administered without any warrant or
a probable cause.
The judiciary in India has given its seal of approval to the practice of
narco analysis in Jitu Bai Babu Bai Patel v. Gujarat.44 The Supreme Court
in the instant case has taken the view that conducting narco analysis test on
the accused at the stage of investigation does not violate constitutional
guarantees under articles 20 (3) and 21 of the Indian Constitution.45 It is
submitted that narco analysis has come under a cloud. It has increasingly
becoming a dangerous short cut for investigation. Infact, India is the only
country in the civilized world where narco analysis is being used by the
investigative agencies. Other countries have tried, tested and discarded narco
analysis citing reasons ranging from unscientific, unreliable to unethical
and barbaric. It has been questioned on legal grounds too has violating

40. 209 US. 579.

41. See United State v. Scheffer 523 US 3003.
42. Dr. B. Umadethan, “Medico-legal Aspects of Narco Analysis”, NUALS Law
Journal 21-32 (2008).
43. 531 US 32 (2000).
44. (2005) 10 SCC 545; for details see Jacob Joseph, “Human Rights Implications
of the use of Narco Analysis in Criminal Justice Administration in India”, 2 NUALS
LAW Journal 96-111 (2008).
45. In Dec. 2007, the Indian Supreme Court admitted a batch of petitions challenging
the use of narco analysis, brain mapping and lie detector tests during the police
investigation and seeking framing of guidelines in this regard. The apex court has
reserved its verdict on the said petitions.

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human rights.46 Further, the test is causing pharmacological as well as

psychological torture. A new technique called brain electrical oscillation
signature (BEOS) is being projected as a more effective and non-invasive
method in crime-investigation. BEOS can read relations of the brain even
if the suspect remains silent and pinpoint the guilty person present among
many suspects at the crime scene. It is further submitted that the legal
system imbibe developments and advances that take place in science as
long as they do not violate fundamental legal principles and are for the
good of the society.

V Concluding remarks

From the aforesaid discussion, it is concluded that the orthodox

jurisprudence metamorphosed into jurimetrics. In fact, jurimetrics took
off with employment of Brandeis brief in the judicial process. The scientific
tools developed are immensely useful in the dispensation of justice. Even
the orthodox methodology gave way to scientific tools. The tools are
scientifically proven and techno-driven. The tools are justice-friendly. These
tools are the legal resources serving as raw materials in the judicial process
with a quality end-product namely justice.47 In fact, it is machine-made
justice.
The bench and the bar is expected to rise to the occasion with the
tremendous rise in scientific inventions and strides in technological
innovations. In UK, Skills for Justice Wing is assisting the justice sector
in having a work force with world class skills and developing tools to
improve the skills of the work force.48 It is worthy of emulation in India
too.

A. Raghunadha Reddy*

46. N. Bhanutej, “Rape of the Mind”, The Week 24-7, 21 September 2008.
47. Salmond argued that they are only contingent. However, HLA Hart remarked
that legal sources are the authoritative sources of law.
48. Steve Batty, “Developing Skills in the Justice Sector”, 41 Policy and Educational
Developments, Journal of Association of Law Teachers, 220-23 (2007).
* Dean, Research Studies, the Tamilnadu Dr. Ambedkar Law University, Chennai.

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