Law is the element in every society which forces people to behave differently and in a commonly desirable way (Murphy 2004). It is one of several sites where is and ought claims are explicit and important. Law occupies a powerful place in our communities for three reasons. First, law is the civic space within which debates about how justice is being provided are advanced, temporarily resolved, and challenged again. Second, it reflects the political community’s decision about how to make those necessary judgments.
And third, in a secular and diverse political context-our context law may be the only agreed-upon “authority” for a heterogeneous community. Not everyone shares the same worldview, and there is no source higher or other than our humble selves to do the hard work of figuring out what we really need. But we need some final source of authority to generate predictability. Without predictability, none of us can imagine the future or make choices about the present with any degree of comfort (Murphy 2004).
To effectively provide justice law requires lawyers to be intellectually creative in developing claims and arguments for why the facts and law should be a certain way, typically because it serves the client’s interests to generate such arguments, but in law’s more noble moments, because it meets the community’s needs to have ongoing debate (Murphy 2004). That is how we teach law whether a point of evidence law, a constitutional rights claim or how to argue for and against an interlocutory motion to strike a cause of action.
It is important to know that the most significant skills for a good lawyer are intellectual creativity and careful analysis of the claims about fact and claims about principle. To enforce law in pursuing justice it is surely not sufficient to teach students the current state of the law. Law is one of many resources for change (which maybe technological, scientific or social); knowing how to work with it is far more important than merely knowing what it says at any given moment in time (Murphy 2004).
Any viable theory of law and justice requires therefore a principled approach to ascertaining the “truth.” After that, it must elaborate a claim about what “ought” to occur how the law should regulate behavior and control harm? What principles should be agreed which govern the relationships in communities and between government and citizens? What are the norms or values that form those principles?
Should the commitment be to religious tolerance, to economic equality, to the presumption of innocence, or to preservation of the natural environment? Although necessarily abstract, the existence and significance of shared principles in a community is what distinguishes societies governed by the rule of law from those governed by the rule of arbitrary power (Murphy 2004).
Technological change affects the law in at least three ways: (1) by altering the cost of violating and enforcing existing legal rules; (2) by altering the underlying facts that justify legal rules; and (3) by changing the underlying facts implicitly assumed by the law, making existing legal concepts and categories obsolete, even meaningless. The legal system can choose to ignore such changes. Alternatively, it may selectively alter its rules legislatively or via judicial interpretation (Friedman 2001).
Over the past few decades, improved means of copying; xerography, cassette tapes, VCR’s, floppy disks, CDR’s; have made it easier to violate copyright law by copying protected intellectual property (IP). Computer networks make it possible to disseminate pirated IP in digital form anonymously, impeding enforcement of copyright law (Friedman 2001). On the other hand, Internet search engines make it possible to search for a single text string in over a billion locations in a few seconds at negligible cost, easing the detection of some forms of copyright violation.
Thus technological change has altered the cost both of violating and of enforcing the law. In some cases; individual pirating of cassette tapes and computer software and off-the-air recording of television programs are obvious examples; technological advances have made pre-existing law unenforceable. We have moved, in the space of a little over a century, from technologies that made it possible to protect writings even without copyright law to technologies that make it impractical to protect programs even with copyright law (Friedman 2001).
When technological change affects legal rules, the legal system can respond by trying to deal with the new technology under existing rules, by creating new rules, or by modifying old ones to fit the new technology. Again, copyright law provides examples (Friedman 2001).
Courts that followed the precedent of White-Smith by holding that machine language programs were not writings applied existing rules by asking whether the new entity fit the description of the relevant legal category (Friedman 2001). The answer was obviously “no;” a machine language program burned into a computer chip is not a writing in any ordinary sense of the word.
Throughout almost all of human history, the fact that a child was born from the body of a particular woman was conclusive proof that she was the child’s mother. Paternity, on the other hand, was in most cases impossible to establish; it was a wise child that knew his father. Until very recently, these facts were reflected in the law by rules providing that the woman who bore a child was his legal mother and her husband the child’s legal father, even if there was some evidence to suggest that he was not the biological father (Friedman 2001).
These facts are no longer true. Reproduction using a host mother implanted with an egg fertilized in vitro means that a child can be born from an unrelated woman. Genetic testing permits biological paternity to be established with a high degree of confidence. Legal rules at the state level have begun to change, by court decisions and by legislation, to reflect these new facts.
Further technological progress is likely to raise additional legal issues. Consider the parentage of a child produced by cloning. As judged by the clone’s nuclear DNA, the child’s parents are the parents of the donor whose cell was used to produce the clone.
As determined by the clone’s mitochondrial DNA, the mother is the woman who donated the egg into which the donated cell’s nucleus was implanted. Judged by the traditional rule for motherhood, the mother is the woman in whose uterus the fertilized ovum was incubated. Determined by the plausible criterion of genetic relatedness, the parent is the cell donor, who is almost twice as closely related to the clone as an ordinary parent to its children, although not quite as closely as one of a pair of identical twins to the other (Friedman 2001).
If legal rules are defined in sufficient breadth, legal innovation is never necessary. Most issues raised by new reproductive technologies, for instance, could be resolved by a single, non-novel, rule: define parentage in whatever way best serves the interests of the child. Indeed, it is arguably possible to resolve all legal issues by a single very broad rule: have whatever legal rules maximize economic efficiency.
Such principles, however, are too broad to apply with predictable results at a reasonable cost. Hence legal systems employ significantly more specific statements of the law, such as the traditional rules for defining parentage, and fall back on general principles like efficiency only when such rules prove insufficient for dealing with hard cases or when changed circumstances require the development of new rules.
If what we mean by “new law” is “new legal rules at the level of generality of the rules now used to decide cases,” it is clear that new technologies will at least sometimes require new laws. Legal rules that assume the identity of host mother and gene mother or take it for granted that paternity cannot be reliably determined are no longer useful in a world in which both assumptions are false — and the legal system has begun to alter itself accordingly.
Legal rules that assume that a brief examination is sufficient to determine whether someone is alive or dead and that the latter status is irreversible might produce unfortunate results in the context of cryonic suspension. Rules that consider as legal persons only human beings or organizations of human beings and take it for granted that persons have the characteristics associated with human beings and human organizations will be wholly unsuited to a world of advanced artificial intelligence, when and if that world arrives. In these cases and many others, new technology requires new law.
Law and science are two of the most important sources of authority for modern governments (Jasanoff 2005). The relationship between law and science is asymmetric on the axis of deference. The law has historically carved out a quasi-autonomous place for scientific knowledge and expertise, for example, by creating exemptions for expert testimony from “ordinary” rules of witnessing (Jasanoff 2005).
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.