The Law-Science Chasm: Bridging Law’s Disaffection with Science as Evidence
, by Cedric Charles Gilson.
Quid Pro Books, 2012.
$29.99, ISBN 9781610271448 (Softcover); $9.99, ISBN 9781610271455 (eBook); $9.99, ASIN B009G9ZKQU (Kindle).
This treatise is being released as part of Quid Pro Books’ Dissertation Series of titles, and appears to be a reprint of the author’s Ph.D. dissertation delivered at the University of Westminster (UK). This should immediately give you an idea of who the work was written for, and why the appeal will be somewhat limited. That said, for an academic law library, there is, potentially, a segment of your userbase that will be very interested indeed in the ideas Gilson sets out—namely, your jurisprudential scholars, or anyone doing work in legal philosophy. Buy this for them. On the other hand, despite the concern with scientific evidence, practitioners will find the focus too theoretical and conceptual. This is, first and foremost, an academic text.
The stated purpose of this work is to explore possible frameworks for reconciling the disjunction between law and science, particularly in the context of scientific expert evidence offered in legal proceedings. By virtue of the fact that both law and science are autopoietic systems, with their own languages, goals, and normative standards, they tend to, in the author's words, "talk past each other," resulting in a heterogeneous body of law which engenders distrust in its conclusions. After exploring, and then rejecting, possible solutions in the fields of epistemology and systems theory, Gilson eventually settles on a potential framework based on an application of Juergen Habermas' language-based theories--specifically, that surrounding validity claims (i.e., claims that one's expert opinion is valid), which are based on truth, rightness, and truthfulness (more like what we refer to as "honesty")--with the goal being consensus between the claimant and his questioner. Because all three realms of knowledge—art, science, and law—use the same framework for validity claims, this provides a possible avenue for communication between science and law. Real-world models are proposed in the form of the non-adversarial proceedings of the FDA and the House of Lords Select Committee on Science and Technology, as the adversarial process, though no doubt useful in certain contexts, has a tendency to shape the witness' testimony at the expense of truthfulness.
One thing the reader will notice fairly quickly is the steep learning curve. Fully half of the dissertation requires a preexisting familiarity with advanced philosophical concepts typical of, say, a dissertation review committee, and not so typical of, say, the practitioner or even sitting judge. The terminology used in the dissertation is clearly for the upper-tier academic, particularly the discussions in Chapters II and III (dealing with epistemology and autopoietic systems theory, respectively). Thankfully, the style settles down somewhat in Chapter IV, where the author discusses the issues surrounding "trans-science", bringing in examples from medical malpractice, drug applications, and toxic torts to illustrate the nature of the law-science interaction, and to pose the FDA's drug application procedure--where a committee including lay participants meets and formulates questions to the applicant relative to the merits of its application--as the ideal example of cooperation between the two spheres.
Underlying all this theory is a real-world concern, leading to a documented "credibility gap" in extreme cases. He cites the public's reaction to rumors of autism connected with the MMR vaccine around 2000 as an example: even after the scientific community weighed in, debunking the connection, many parents continued to refuse to permit their children to be vaccinated, citing distrust of the government. Further, it would be ideal if we as a society could be guaranteed of a certain uniformity in legal decisions involving scientific evidence. Clearly, the author intends this dissertation to be a springboard into further studies, as the goal of the dissertation (which it meets) is merely to find the most promising avenue to pursue. The problems the work has for the general reader are largely a byproduct of its intensely academic style, which will limit the work’s utility to faculty interested in jurisprudence or legal philosophy, and maybe doctoral-level students. Still, this community, small though it may be, will find a lot to think about here.
David E. Matchen, Jr., is the Circulation/Reference Librarian at the University of Baltimore Law Library, and a long-suffering Bears fan.