Collaborative law a turn away from justice

A careful account would find congruence as well as clashes in the processes of law and science. The formal spaces of both institutions–courts no less than labs–are claimed to be dedicated to finding the truth, though with different ends in view: the law needs facts as necessary adjuncts to doing justice; science seeks facts more as an end in itself. Legal fact-finding therefore generally remains within the framework of a specific case or controversy, whereas scientific facts must speak to wider audiences.

Facts established by science are published, and so participate in further rounds of dialogue and inquiry (Jasanoff 2005). Turning to the knowledge developed by processes of representation in law and science, we can characterize each as situated and purposive but in dissimilar ways. Situated within the four corners of the case, the Jaw's knowledge is conditioned not only by the facts of the case, but also by the normative principles within which a case arises and has meaning as a "cause of (legal) action.

" Knowledge relevant to a legal proceeding is generated for the purpose of rendering justice within that specific setting (Jasanoff 2005). Both legal and scientific representations of reality are produced under a variety of constraints, but constraints in the law derive in part from different normative concerns than in science (Jasanoff 2005).

Some legal principles reflect deep-seated communal judgments about values that should not be breached in the course of fact-finding, even if adherence to these values impedes the development of relevant evidence (e. g. , the prohibition against forcible self-incrimination, the right to counsel and cross-examination, the protection of certain privileged communications, numerous limits on discovery, and constraints on police procedure) (Jasanoff 2005). There is no widespread consensus in law that a deeper understanding of the causes of human behavior and social changes is really necessary for the day to day work (Jones & Goldsmith 2005). And among those who consider a deeper understanding desirable, there is no standard method for seeking, extracting, and developing that information from among the ranging disciplines.

Viewed as a whole, the process by which law informs itself about the causes of human behavior (as distinct from the effects and patterns of human behavior) is haphazard, idiosyncratic, and unsystematic. When legal thinkers do look to other disciplines for updated social theories and findings about causes, most tend to focus principally on social sciences such as economics, psychology, or political science, sometimes supplemented by a sprinkling of philosophy, sociology, or passing references to human nature.

Authors have used law and economics to demonstrate how greater attention to economic efficiency can yield gains in productivity and align incentives in socially desirable ways (Jones & Goldsmith 2005). Law-and-literature scholars have argued that a greater understanding of human emotions, contexts, and experiences can enrich our understanding about the impact of law on real people and have used techniques of literary theory to help us better analyze and understand legal texts.

Law’s still underdeveloped relationship with psychology, which one might expect to have been stronger for longer, has been rejuvenated by interest in cognitive psychology’s exposure of seemingly irrational patterns of behavior. And many in the law and society movement have emphasized how we might usefully deploy a broad array of social sciences to examine the interrelationships of legal structures, their effects, and social interactions (Jones & Goldsmith 2005). We can consider law effective when it gets its job done and efficient when it does so with minimum waste.

If the enterprise of law is, in the main, to change human behavior according to socially percolated preferences, then its ability to deploy legal tools to effect these changes at the least cost to society often (though importantly not always) depends on the accuracy of the behavioral models on which law relies. Dominant conceptions of law are constantly challenged, and we are the inheritors of many successful efforts for example, in Canada the social movements that support the rights of women and aboriginal peoples have been especially successful in changing the substance of much law (Murphy 2004).

We are witnesses to current movements to respond to the unmet needs of others for equal recognition-sexual orientation and disabilities are obvious illustrations. We cannot anticipate the future, but the increase in poverty and the resulting social harms it occasions will surely require a more profound response than we have managed thus far. Many of these movements argue that the private realm is a site of inequality; the state should act proactively to enforce laws, impart justice and redistribute power to protect those who don’t do so well when cut off from the public’s regard (Murphy 2004).


Murphy R. (2004). “Is the turn toward collaborative law a turn away from justice? ” Family Court Review, Vol. 42 No. 3, July 2004 460-470. (2004) Association of Family and Conciliation Courts Jones O. D. & Goldsmith T. H. (2005) “Law and Behavioral Biology” Columbia Law Review. Vol. 105:405 Jasanoff, S, (2005) “Knowledge: Science for Justice in Legal Settings”. American Journal of Public Health, 00900036, 2005 Supplement 1, Vol. 95 Friedman D. (2001) “Does Technology Require New Law? ” 2001.