Lawyers, I believe, sometime experience unexpected encounters with “science and technology” during the course of their work.
I suppose every lawyer has felt at least once or twice that the argument by the other party is “not scientific”. Or they may have been frustrated at court decisions that “do not understand science.” Or they may have to read documents with plenty of scientific or technical terms that they have no idea of. In any case, what does it mean to be “scientific”?
I used to be a “science girl” who dreamed of becoming a space physicist. I used to believe I would be happy if I could play in the vast sea of science like a child playing in the sand, even if I couldn’t make great achievements in my research. Later, I entered university intending to study molecular biology, but I somehow switched course and became a lawyer. As a lawyer with that background, I was bewildered by arguments over science in court.
“Scientific evidence” that is not verifiable at all. “Scientific knowledge” dealt with in a partisan manner as part of the examination technique. Various misunderstandings about “statistics”, an indispensable tool for science. Above all, in addition to these problems, the legal system excludes “uncertainty”, which ought to be inherent in science. I guessed what was really important in arguments over science in court was not having segmented and highly specialized scientific knowledge itself, but rather understanding the fundamental question of what is science in the first place. However, I had difficulty in finding a clue to help answer the question.
I continued to search for the clue until August 2006, when I was involved in a case where I had to produce a physicist as a witness. As I had done so many times, I met several researchers to explain the point at issue and to confirm the extent to which they might be able to testify. One of the physicists, Tsuyoshi Hondo from Graduate School of Science, Tohoku University, told me there might be something more important than knowledge of his own field of research, physics. He continued that, if we wanted to use scientific knowledge in court, we would probably need “philosophy of science” and “theory of science” as well as the viewpoint of “science and technology studies”, the field dealing with interaction between science / technology and the society. It was the moment I finally found an answer to my long-term question.
It is true that science and technology is difficult for non-experts to become familiar with. However, even if we are not familiar with specialized knowledge of science and technology, we non-experts may become able to handle issues concerning science and technology more appropriately in court.
After that, I came to know attempts to argue about science and technology in the context of law, through my discussions with researchers in related fields including science and technology studies, and through my encounters with people including Yuko Fujigaki of the University of Tokyo Graduate School of Arts and Sciences, and Katsushi Matsubara of College of Applied International Studies, Tokiwa University.
On the other hand, I keenly realized that law is as difficult for non-experts to become familiar with as science and technology. Science cannot be disconnected from law, which is integrated in every aspect of society and whose development is based on its interactions with the society. However, experts of science and technology are similarly perplexed at the difficulty in dealing with law and its system, which have strong effects on the state of science and technology.
As both fields are highly specialized, it is difficult for lawyers and scientists / technicians to understand the system of the other party. In addition, there are only few opportunities for them to meet each other. Currently, however, there is a stronger need for cooperation between law and science / technology, so that various problems facing our society can be solved. Particularly, in order to enable deliberation about acceptance of various types of rapidly advancing science and technology, knowledge of both law and science / technology is believed to be indispensable.
In August 2009, my meetings with various experts resulted in the sponsored research project “Legal Decision-making under Scientific Uncertainty” at Research Institute of Science and Technology for Society (RISTEX) of Japan Science and Technology Agency (JST). This project is a part of an R&D focus area of RISTEX called Science Technology and Humanity (Area Director: Yoichiro Murakami), and is composed of 15 members in three groups, namely, Law Group (philosophy of law, sociology of law, code of civil procedure etc.), Science Group (philosophy of science, physics, medical science, earth science etc.) and Science Technology Studies Group (social engineering, theory of science, scientific communication etc.). This is a highly interdisciplinary project, but its aim is beyond mere research activities. The actual aim of RISTEX is to develop social technology that will help solve problems existing in our society. In our project, we are seeking to form a forum where lawyers and scientists/technicians can discuss issues related to both fields together in a general manner, instead of focusing on specific cases.
Over the approximately one year and the half since the project started, not a few practicing lawyers have shown interest in our activities. As this example shows, practicing lawyers are starting to share the awareness of the need to reexamine the relationship between law and science, taking time from their usual activities as lawyers. (instead of being preoccupied with various cases they are dealing with.)
If your cases involve scientific issues and if you have trouble dealing with “scientific arguments” about these issues, then please let us know. If more practicing lawyers start to tell the scientific community how science and technology appears to legal experts, I believe it will be the first step in cooperation between law and science. If lawyers lost in the realm of science and scientists lost in the realm of law combine their respective wisdom, I believe both parties can find their way out of the maze of complicated social problems together.