Thursday, December 21, 2006

Distinguishing law and scientific change

Changes in scientific understandings are generally considered as difficult to foresee as changes in technology. Our understanding and perceptions of the natural world change over time, often in revolutionary ways. Scientific and technological change are closely related and sometimes hard to differentiate. For instance, improvements in our understanding of biology, and in particular the process of fertilization, facilitated the invention of in vitro fertilization and other reproductive technologies. Conversely, most scientific experiments could not take place without the tools created by technologists.

Nevertheless, the types of legal problems that are most closely related to changes in scientific understanding differ from the types of legal problems generated by technological change. Changes in our understanding of the world may alter policy focus (for example, by altering our understandings of what causes both advantage and harm); changes in technology alter what forms of conduct are practicable (thus changing how we might cause advantage or harm). Scientific change can shift the meaning and usefulness of categories, altering the utility of distinctions made in legal rules. In the case of technological change, the difficulty tends to be in the inclusion or exclusion from a particular category of a new form of conduct, rather than the coherence of the category itself.

The distinctions between the nature of legal problems generated by technological and scientific change are not only technical, but have important practical implications. We can talk about technology-neutral rules, meaning either rules that do not arbitrarily distinguish between different means of achieving the same outcome or rules that are resistant to the sorts of problems generated by technological change. An understanding of the nature of legal problems that result from technological change can help explain what technology-neutral drafting involves. Yet one hears no demands for scientifically neutral rules. This is not because one cannot imagine a rule that failed to differentiate between scientific possibilities. The rule “do not do anything that harms the environment,” leaves an interpreter to decide whether the manufacture of certain substances, thought by some to promote global warming, would be prohibited. The reason is rather that scientific neutrality offers less social benefits than technological neutrality. It is one thing for the government to say, “here is what we wish to achieve, do so in any way you can” and another for it to remain neutral on knowledge claims. Technological neutrality seeks to encourage positive technological change by at least remaining neutral to the possibility of new ways of achieving the same ends. It is extremely unlikely that scientific neutrality would lead to better science. Rules tend to be based on both current understandings and existing possibilities, but not in the same way, and not with the same implications.


Blogger Frank said...

Fascinating points. But I think that there might be some benefits from scientific neutrality...or, rather, that excessive technological neutrality by government may lead to an excessivle market-driven development of technology, which in turn may overly influence science.

For example: there was a struggle between molecular biologists and more traditional taxonomizers/ecologists for some time in university biology departments. Could a policy of "scientific neutrality" in grants funding lead be a good way to preserve, say, traditional approaches and emphases (i.e., understanding the ecosystem as a whole rather than viewing biology as just applied physics and chemistry)?

Scientific neutrality may also be merited if we think about the way in which a bio-techno-industrial complex can influence the academy by, say, funding research. Government may be technology-neutral, and that may in turn let the market drive such firms to extraordinary influence. They may, in turn, start to control university research agendas....especially given the "arms races" i talk about here:

Finally, following Joseph Raz, I tend to be a skeptic about the utility of a term like "neutrality." What is really neutral? If the market is inevitably tending toward a certain outcome, is the government "neutral" when it does nothing to stop that outcome? If so--isn't it the case that the government also created the rules of the market that is leading to that income?

12/22/2006 9:02 AM  
Blogger Arthur Cockfield said...

My first post on Lyria's (now extensive) comments. I really think that this sort of approach holds a lot of potential, i.e., trying to discern general principles or areas of commonality with respect to the ways that legal decision-makers respond to situations of technology change that threaten legal interests. I also think that Gaia's approach--reviewing the different ways that law affects technology diffusion with respect to two different technologies--would mesh well with Lyria's approach. Gaia's efforts could help to determine whether the generation of general principles of analysis at the intersection of law and technology could bear fruit (or not).

The question that remains is how do we approach the difficult issues that Lyria has raised in her various posts? One way would be to struggle to come up with a unique approach for legal analysis that tries to analyze, for example, the distinction between scientific endeavors and technological developments.

Another way would be to import views from literature that has already investigated these issues and then modify the views for legal analytical purposes. For example, sociologists and others have been sweating over these issues for at least several decades through various 'substantive theories' of technology (Weber, Ellul, Winner, Heidegger, etc.). These folks have developed mature views on the various issues so why not just use their stuff or perhaps some other existing theoretical perspectives? It seems like the latter option option would represent the path of least resistance, or maybe I'm just plain lazy.

p.s. I agree the whole issue of scientific or technology neutrality is fraught with peril. The term 'neutrality' is used by different commentators to mean a number of different things, including the view that technology is merely a neutral tool that should be adopted to the extent it serves some instrumental purpose. Other seem to suggest that legal rules should have a neutral policy application irrespective of the particular technology at issue (e.g., the law should permit contracts via email as well as traditional contracts as per various recently-introduced electronic commerce acts).

12/22/2006 9:44 AM  
Blogger Gaia Bernstein said...

This is very interesting. Like Art and Frank I am also very suspicious of the term neutrality. I fear it could be greatly abused.

Broadly generalizing, science is defined as knowledge while technology is the application of this knowledge. I think one reason why we should be more cautious about "scientific neutrality" is that decisions that impede research and the attainment of knowledge are rarely neutral. They are usually related to a desire to protect an important social value. For example, one reason for the restrictions on human cloning research is fears of the destabilization of our normative conception of identity. For that reason, I believe it would be very tempting and particularly dangerous to use the "neutrality" argument to inhibit research before we really know its consequences.

Further, decisions that affect science have more profound implications than decisions that regulate technology. This is because decisions that regulate science eventually influence the realm of opportunity for use of technologies that are developed from the scientific knowledge. For example, if certain scientific research is prohibited, the technologies would never be developed and we would not even reach the stage of deciding how to regulate it.

12/22/2006 10:38 AM  
Blogger Lyria Bennett Moses said...

I agree that much hinges on what is meant by neutrality. It depends on what the purpose of the law is in the first place. The way I use the term, it essentially means "future-proof" ie immune from the last three categories of problems set out in my earlier post. Not saying it is possible to draft truly neutral laws (as I demonstrated in Baltimore) only that scientific neutrality raises different questions.

12/22/2006 8:48 PM  

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