Direct and indirect influences

The processes through which science influences law are many. They depend on the kind of law being considered and the part of the legal system which is affected. The processes are both direct and indirect.

An example of a direct process in which science is a source of law is the growth of knowledge which displaces what had been regarded as correct. A well-known historical example is that of witchcraft. As scientific knowledge grew, the laws about it changed. Another example is the changes in the canon law of the Roman Catholic Church as the result of the victory of Galileo’s assertion that the earth moves.

Many examples of the indirect processes through which science is a source of law can be found in the growth of technology. The most certain knowledge of science is embodied in technology. The reason is that successful technol­ogy must pass the ultimate empirical test - it must work. For at least the last hundred years, the growth of technology has been the main driving force by means of which verifiable knowledge has become a source of law. The process is almost always indirect, as a few examples will illustrate. The development of railroads required changes in numerous laws and the devel­opment of many new laws. Among these were laws of eminent domain, liability and finance. The changes brought about by industrialization gave rise not only to new laws about the tools that made it but also to the relation­ships between the government, employer and workers. Child labour laws are but one example.

The development of computers provides a dramatic example of the transla­tion of scientific theory into a workable tool used by almost all the actors on the legal scene.

There are no studies to tell us which process, direct or indirect, is more important in making science a source of law. Arbitrarily, examples of science as a direct source of law are given first. The main components of a legal system are legislatures, courts, the bar, regulatory agencies, police and other bureaucracies. Members of each often change their activities in the light of the knowledge science provides. Every actor on the legal scene is affected by such things as the development of new ways to gain access to and utilize knowledge such as the World Wide Web, the communications network based on computers.

Legislators must deal with the world of science and the often conflicting demands of politics. They commonly call upon scientists for their views about both the methods and the findings of science when drawing up laws. This is especially the case for technical issues about which the average person knows little. They must make laws about such things as cyberspace. Science, used in this way, is a source of law. The same is true for courts where the use of experts is common. Judges in their reasoning sometimes use some of the theories and methods of science; occasionally, social science is used to provide context. They must also cope with new situations brought about by scientific advances, as for example computer-generated evidence.

Lawyers and legal scholars use the knowledge of science for many of the same purposes and in the same ways as legislators and judges. Lawyers, however, have a very different goal driving their uses, the victory of their client. In the United States, social science is used to plan both systems of litigation and the litigation of a case.² Legal scholars, who play a more important role in code law systems than they do in common law systems, often study law with scientific methods.

One of the most striking and consequential characteristics of modern legal systems is the inability of legislators to keep up with all the needed changes in the laws. This has resulted in the delegation of legislative duties to a large number of administrative organs of many varieties. These agencies make law in the form of regulations. The bureaucrats in these agencies also have the power to interpret the regulations and to determine procedures and sanctions for their enforcement, usually subject to an appeals procedure. A frequent complaint of administrators is that they are not provided with adequate funds for enforcement.

Many administrative agencies often directly use the findings of science in their work. Some governmental departments are absolutely dependent on the work of scientists, for example those in charge of regulating energy, telecom­munications, the environment and drugs. Regulations without a solid scientific basis would be useless or harmful to those fields. It should go without saying that their uses of science are not always complete or impartial. Many other regulatory agencies, for example those in charge of health and welfare, often use the findings of science as inputs to the regulations and procedures they promulgate. It is hard to imagine any part of government that does not use the findings or results of science in some way.

For the common man, the police are the most visible sign of the law. They are the most immediately accessible interpreters of disobedience and appliers of sanctions for enforcement.

In many cases, the indirect ways in which science becomes a source of law is more significant than the direct paths. One of the most important reasons forcing legislators to delegate their law-making powers to administrative agencies is that new technology makes old law obsolete and often unwork­able. An example is the growth of the World Wide Web. Judges find that they must reason about problems never before encountered, as in space law. Court­room conduct and procedures must be modified when modern technology such as television or other recording devices is used or introduced as evi­dence. At a step removed in terms of indirect influence is the spread of government, which has required the development of new systems of courts and laws, for example those for taxes, social security and commerce.

Lawyers and legal scholars often cannot rely on precedent for answers to many of their problems because of the growth of technology. Even their day- to-day practice is influenced by such things as the facsimile transmission (fax) machines and the use of computers. Both allow rapid access to, and manipulation of, amounts of data inconceivable before their use. Many ad­ministrative agencies constantly find themselves faced with new problems because of the growth of technology. For example, those in charge of health and welfare have had to cope with the growth of ‘carpal tunnel syndrome’ as the result of the increasing use of computers. Another is the problem of worker displacement caused by the development of tools like the fax machine or telephone answering systems which make workers’ tasks more manage­able. These often allow fewer people to do more work.

Many examples could be given of the way the police are affected by the growth of science. Sometimes their burdens are increased, as when cheap methods for making new addictive drugs become widespread. They need new ways to test for them. The new drugs often require new laws for their control. When their illegal sale is profitable, entirely new laws are required to cope with money laundering. Often new technology helps the police to do their job, as is the case with many of the improvements in communication and data handling.