Search Results

The meta‐theoretic conception of laws

John T. Roberts

in The Law-Governed Universe

According to the meta‐theoretic conception of laws of nature, the concept of a law of a scientific theory is prior to that of a law of nature. To be a law of a theory is not just to be called a law ... More

According to the meta‐theoretic conception of laws of nature, the concept of a law of a scientific theory is prior to that of a law of nature. To be a law of a theory is not just to be called a law by that theory; it is to play a certain special role within that theory. It is tempting, but wrong, to suppose that to be a law of nature is just to be a law of some true theory. Instead, the predicate ‘law of nature’ must be given a contextualist semantics: ‘It is a law of nature that P’ is true at world w as asserted in context k just in case P plays the law‐role within a scientific theory that is salient in k and true at w. The meta‐theoretic account of laws is surprising, but it helps to explain some important features of scientific practice.Less

Science, Risk Assessment, and the SPS Agreement

Lukasz Gruszczynski

in Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement

This chapter addresses the science-based provisions of the SPS Agreement. The main part of the discussion is dedicated to risk assessment disciplines as elaborated by the SPS case law. This includes ... More

This chapter addresses the science-based provisions of the SPS Agreement. The main part of the discussion is dedicated to risk assessment disciplines as elaborated by the SPS case law. This includes the problem of the required structure and the content of risk assessment, the role of scientific minority opinions as a legitimate basis for a SPS measure, and standard of review applicable to evaluation of scientifically complex issues. Against this analysis, the last part of the chapter attempts to identify the ultimate function that is performed by science under the SPS Agreement and to propose some critical observations on its capacity to perform such a role. It concludes that although science-based criteria may compromise the choice of WTO members regarding an acceptable level of risk, a proper interpretation of the SPS Agreement may reduce that danger, maintaining at the same time advantages of the current system.Less

The Allure of Science

Robin Feldman

in The Role of Science in Law

This chapter begins with a brief discussion of the legal profession's fascination with science. It then cites law's attempts to solve problems through science, which are frequently unsuccessful. Core ... More

This chapter begins with a brief discussion of the legal profession's fascination with science. It then cites law's attempts to solve problems through science, which are frequently unsuccessful. Core problems at the intersection of law and science flow not from the changing nature of science but from the changing nature of law. An overview of the subsequent chapters is presented.Less

What is Science?

Robin Feldman

in The Role of Science in Law

This chapter highlights key moments in which science emerges and separates from other types of intellectual inquiry. In particular, it focuses on three periods of history that are critical to the ... More

This chapter highlights key moments in which science emerges and separates from other types of intellectual inquiry. In particular, it focuses on three periods of history that are critical to the development of the law/science relationship: ancient Greece, the Scientific Revolution in Europe, and 20th-century reevaluations of the meaning of science. In highly simplified form, what we think of as science today begins its history deeply entwined with philosophy and theology.Less

Backlash: The Reaction to Mind Sciences in Legal Academia

Adam Benforado and Jon Hanson

in Ideology, Psychology, and Law

This chapter demonstrates that naive cynicism is a pervasive dynamic that shapes policy debates big and small. It argues that naïve cynicism can operate at a particular moment or over long periods of ... More

This chapter demonstrates that naive cynicism is a pervasive dynamic that shapes policy debates big and small. It argues that naïve cynicism can operate at a particular moment or over long periods of time, and that naïve cynicism is embraced and encouraged by both elite knowledge-producers and the average person on the street. Examining the reactions of prominent academics to situationist scholarship, the chapter offers evidence that naive cynicism has played a significant role in retarding the growth and influence of insights drawn from social psychology and related fields within the dominant legal theoretical frameworks of the last half-century. Despite providing a more accurate depiction of the behavior of legal actors, this research from the mind sciences has been dismissed for decades in favor of commonsense dispositionist notions of causation, responsibility, and blame.Less

Concluding Remarks

Lukasz Gruszczynski

in Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement

This chapter draws some overall conclusions on the substantive disciplines of the SPS Agreement, summarizing the previous discussion alongside the three objectives of the book: the appraisal of the ... More

This chapter draws some overall conclusions on the substantive disciplines of the SPS Agreement, summarizing the previous discussion alongside the three objectives of the book: the appraisal of the standards established by the SPS Agreement, assessment of the consistency of the SPS case law, and identification of the normative content of those provisions of the agreement that have not been yet addressed in SPS jurisprudence. The above analysis leads to the conclusion that despite some defects in the SPS Agreement and some failures of SPS case law, the system seems to provide a generally coherent and effective mechanism for supervising national SPS regulations that is capable of addressing controversial disputes in a sensible manner. Consequently, no paradigm shift is required in the field and the majority of the problems identified can be addressed through more sophisticated interpretation of the agreement.Less

Coral Law under Threat

Irus Braverman

in Coral Whisperers: Scientists on the Brink

In chapter 4, “Coral Law under Threat,”the pendulum swings back to despair. The chapter documents the focus of contemporary legal regimes—in particular, the U.S. Endangered Species Act—on threat and ... More

In chapter 4, “Coral Law under Threat,”the pendulum swings back to despair. The chapter documents the focus of contemporary legal regimes—in particular, the U.S. Endangered Species Act—on threat and endangerment, exposing how ill-equipped this law is for dealing with coral species and also with the sheer scale of their “super wicked problem.” Here, federal administrators provide insight into the processes by which listing and delisting decisions take place, their deliberations about coral classification providing a fresh perspective on the correlations between law and science. While the frustrations with existing legal regimes, as well as the fraught relationship between scientists and lawyers, invoke a sense of despair, some also see hope on the legal horizon. Two such hopeful instances are the emerging international regulation of climate change and the signals of possible receptiveness by U.S. courts to the assertion of constitutional rights to a healthy environment.Less

Laboratory Life and the Economics of Science in Law

David S. Caudill

in Latour and the Passage of Law

Issuing a bold and, in light of current preoccupations with AIME, untimely call for the continued relevance of Laboratory Life, David Caudill’s chapter realigns the question of Latour’s value for ... More

Issuing a bold and, in light of current preoccupations with AIME, untimely call for the continued relevance of Laboratory Life, David Caudill’s chapter realigns the question of Latour’s value for legal theory. Rather than mapping the unstable, unpredictable movements of the legal trajectory – a term that, in preceding chapters, has taken on several perhaps inconsistent layers of meaning – Caudill proposes to reconsider the relationship between law and the sciences (and revisits some of the drama of the Science Wars) under the auspices of the economics of science, a flourishing sub-field of science studies veritably inaugurated by Laboratory Life’s influential discussion of cycles of credit and credibility. Deftly untangling the law-sciences-economics knot, Caudill stages the matter of Philip Mirowski v. Bruno Latour (and Michel Callon), in which the defendants were accused of complicity with neoliberalism and charged, by proxy, with the allegedly pernicious effects of the increasing commercialisation of research on the scientific establishment. Mirowski’s critique runs out of steam, Caudill shows, and runs off the rails as soon as the details of law’s appropriation of scientific research and evidence are examined. But the often dismaying implications of Science Wars-era disputes – now being recapitulated or replayed in miniature, in the economics wing of the science studies field and in legal studies – continue to haunt contemporary law as well as science policy, because it remains unclear to what extent judges and regulators (and legal academics) appreciate the material contributions of works like Laboratory Life to the improvement of our understanding of the sciences, and to what extent the co-production thesis developed by Latour, Callon and others still registers as a fanciful exercise in debunking.Less

The Universal Law: Jurisprudence

Donald Phillip Verene

in Knowledge of Things Human and Divine: Vico's New Science and "Finnegans Wake"

This chapter discusses the focus of Vico's later work, moral philosophy in its broadest sense, as a science of law, custom, and history, a science of the human world. The first step in this process ... More

This chapter discusses the focus of Vico's later work, moral philosophy in its broadest sense, as a science of law, custom, and history, a science of the human world. The first step in this process is his original conception of jurisprudence, developed in his three books of Universal Law, published in the 1720s, which led to the first and second versions of the New Science. To create his conception of jurisprudence as the key to the comprehension of the human world, Vico had to discover a way to pass between philosophy and philology—the two great approaches to a knowledge of the human world—and to find a resolution for the fundamental opposition between them.Less

Pauline Science Fiction: Alex Proyas’s I, Robot, Universalism and Love Beyond the Law

Timothy D. Peters

in A Theological Jurisprudence of Speculative Cinema: Superheroes, Science Fictions and Fantasies of Modern Law

Chapter 5 is the first of two chapters that considers law and science fiction. This chapter focuses on Alex Proyas’s cinematic rendering of the work of Isaac Asimov in the film I, Robot. Situated ... More

Chapter 5 is the first of two chapters that considers law and science fiction. This chapter focuses on Alex Proyas’s cinematic rendering of the work of Isaac Asimov in the film I, Robot. Situated within the tradition of hard sci-fi that explicitly imagines a technologized, scientific and dis-enchanted world, the film presents a vision of law as rule without exception encapsulated in the ‘Three Laws of Robotics’. Whilst such a vision of law would appear to exclude political theology, with its miraculous exception, we find in Proyas’s rendering theological allusions that highlight essential limitations: both of its technologized world-view and the vision of legality that undergirds it. In examining these theological allusions, this chapter draws upon the ‘return to Paul’ in critical theory, particularly the work of Alain Badiou and his philosophy of ‘the event’. St Paul’s message calls us ‘beyond the law’, overcoming its limits and inviting us to step outside the differences its ‘letter’ institutes. The Chapter concludes by examining how ‘the event’, as rendered by a robot not subject to the three laws, rejects an abstract universalism—associated with modern law—in favour of a universal singularity that, instituted by love, founds a freedom beyond the law.Less

Remembering the Future: Science, Law, and the Legacy of Asilomar

J. Benjamin Hurlbut

in Dreamscapes of Modernity: Sociotechnical Imaginaries and the Fabrication of Power

This chapter examines the famous 1975 Asilomar meeting on recombinant DNA as a site of memory that informs how futures tend to be imagined in American governance of emerging technology. It argues ... More

This chapter examines the famous 1975 Asilomar meeting on recombinant DNA as a site of memory that informs how futures tend to be imagined in American governance of emerging technology. It argues that Asilomar-in-memory crystallizes an imaginary of “governable emergence” wherein science predicts and generates futures, and social institutions (like law) can only react to—and potentially inhibit—technological emergence. The chapter explores how remembering, retelling and reenacting the past can play a powerful role in regulating imaginations of the future and in shaping practices of governance in the present.Less

The Rhetoric of Criminal Law: Sloganism and Other Coping Mechanisms

Markus D. Dubber

in The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book ... More

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 2 highlights several key rhetorical strategies in modern criminal law doctrine that divert attention from the troubling—and possibly irresolvable—paradox of state punishment in a modern liberal democracy.Less

Introduction: Translating Law and Social Science

William K. Ford and Elizabeth Mertz

in Translating the Social World for Law: Linguistic Tools for a New Legal Realism

In their introductory essay, Ford and Mertz survey the articles in the volume and summarize some overarching themes that emerge from the group as a whole. To begin with, the authors of these articles ... More

In their introductory essay, Ford and Mertz survey the articles in the volume and summarize some overarching themes that emerge from the group as a whole. To begin with, the authors of these articles do not view interdisciplinary communication as transparent or easy; the process itself is not to be taken for granted. They also pay close attention to details of language and linguistic contexts. Some articles demonstrate the linguistic structure of legal misunderstandings, others examine the language in which courts translate social science and science, while the final chapters in the volume explicitly examine barriers to translation between law and other disciplines.Less

Engaging Scholarship: Criminal Law and the Legitimation of Penal Power

Markus D. Dubber

in The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book ... More

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 1 explores the failure of a parochial and self-referential conception of criminal law as science to engage with fundamental questions of legitimacy.Less

Myanmar (Burma)

John Ure

in Telecommunications Development in Asia

This chapter examines the telecommunications sector in Myanmar. Strict adherence to ideology and commercial self-interest, in the guises of “national security” and military-controlled ... More

This chapter examines the telecommunications sector in Myanmar. Strict adherence to ideology and commercial self-interest, in the guises of “national security” and military-controlled state-enterprises, has confined access to telecommunications to a few. A World Bank report of 1995 notes the general lack of private access to physical infrastructure, including telecommunications, and how this skews foreign investment towards joint ventures with the state. Public telecom facilities, fixed and wireless, continue to be state-owned and controlled by Myanmar Posts and Telecommunications (MPT). Under the 1989 State-Owned Economic Enterprise Law, part of the Open Door policy, telecommunication facilities and services were the sole right of the government, but government-private sector joint ventures were permitted. Other laws which impact the telecom sector are the Computer Science Development Law enacted in 1996 and the Electronic Transaction Law which took effect in April 2004.Less

Escaping the Bureaucratisation of Destiny: Law, Theology and Freedom in George Nolfi’s The Adjustment Bureau

Timothy D. Peters

in A Theological Jurisprudence of Speculative Cinema: Superheroes, Science Fictions and Fantasies of Modern Law

This Chapter continues the consideration of law and science fiction by analysing the central theme of George Nolfi’s 2011 film The Adjustment Bureau (based on Philip K Dick’s short story): a ... More

This Chapter continues the consideration of law and science fiction by analysing the central theme of George Nolfi’s 2011 film The Adjustment Bureau (based on Philip K Dick’s short story): a theological consideration of freedom and free will. In contrast to the modern dismissal of religion, the film is overtly theological in nature with the God-figure (‘the Chairman’) intervening in the world through his angels (bureaucrats) so as to ensure adherence to his providential order (‘the plan’). The Chapter traces the theological and jurisprudential roots of ‘the Chairman’, following John Milbank, to shifts in medieval theology from a participatory to nominalist and voluntarist ontology that became influential on the later jurisprudence and political theology of Thomas Hobbes. However, The Adjustment Bureau critiques the modern theology of will which undergirds both modern secular sovereignty and the liberal legal subject, by introducing the theme of ‘true love conquers all’, opening up a different consideration of law and sovereignty based on love and relationality, as opposed to legal individualism. The Chapter therefore extends the book’s consideration of a love beyond the law, by presenting a theological jurisprudence that opens the possibility of a relation to law based on love rather than will.Less

Standard of Review and Scientific Evidence in WTO Law and International Investment Arbitration: Converging Parallels?

Valentina Vadi

Lukasz Gruszczynski (ed.)

in Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation

The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific ... More

The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific character. It shows that the practices in both areas express many similarities. Although none of the systems has developed an abstract and general standard of deference, the analysis of the jurisprudence shows that a considerable degree of deference is granted to States in this specific context. This deference expresses itself in dispute settlement bodies’ focus on ‘reasonableness’ rather than ‘correctness’ of specific scientific claims, showing that these bodies are well aware of their epistemic limitations. On the other hand, the chapter recognizes certain differences existing between the two systems. Investment tribunals remain more concerned with the overall quality of the regulatory process, while WTO panels are more active in testing the internal (scientific) legitimacy of measures.Less

Logic

Frederic R. Kellogg

in Oliver Wendell Holmes Jr. and Legal Logic

After attending lectures on the logic of induction by Charles Sanders Peirce in 1866 and reading Mill’s A System of Logic, Holmes echoed Mill’s critique of the syllogism and his notion of "reasoning ... More

After attending lectures on the logic of induction by Charles Sanders Peirce in 1866 and reading Mill’s A System of Logic, Holmes echoed Mill’s critique of the syllogism and his notion of "reasoning from particulars to particulars." In his 1866 Lowell Lectures, Peirce addressed the use of the syllogism with respect to "occasions," as opposed to objects with extension, and criticized Mill’s assumption of a natural similarity of particulars, implying a human contribution. Holmes applied these insights to law, analyzing how legal similarity is negotiated and entrenched in the common law. In 1870 he explored the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of consensual integration from repeated experience into a developing system of classification. This reflects the vision of the British scientist William Whewell, of the growth of human knowledge through the tension between facts and ideas. Legal and scientific knowledge may both be viewed as forms of community inquiry, focusing on the primacy of cases and exemplars in the process of classification, and the role of concepts in guiding the conduct of professional inquirers, framing and maintaining the coherence of expert and general belief.Less