COST

Introduction:

Law and expert assessment have multiple points of interaction. From a normative perspective, law’s coercion is justified by its creation of a system of collectively binding and enforced norms that bring people’s interferences with each other’s pre-legal freedom into a balance backed up by reciprocal public reasons everyone affected can share in (Ripstein, 2004, 8, 26, Pavlakos & Pauwelyn 2011, 317). These interferences may also be thought of as the creation of hazards with a certain probability, in other words risks. Due to its social steering function, law needs to have accurate empirical information about these risks and the way society functions. Expert input to legislators is essential to characterise the temporal, spatial and physical parameters of many hazards (e.g. climate change, severe acute respiratory syndrome, genetically modified crops, earthquakes & fracking) thereby answering the basic questions of what, when, where and with what consequences. Expert data (covering the intended and unintended, positive and negative impacts of policy proposals on economic, social, and environmental issues) also contribute to Policy Impact Assessments (IA).  Expert input into law-making accordingly contributes to enhancing the legitimacy of law because it contributes to better-informed decisions and implies that law subjects itself to an external and universally shared standard of validity (science) (Joerges & Godt 2005, 111). It has also been suggested that basing laws on the inherent and actual possibilities and limitations of the explanatory potency of expert evidence is an important element in treating all affected interests formally and substantively fair (Herwig 2014, 197-199).

However, the legitimising potential of expert evidence is also under strain when science is uncertain (Everson 2011, 347). As social (and legal) complexity has increased, so has the need for ever more detailed expert analyses. Such analyses often have to combine different risks and scientific disciplines, operate with scarce data or uncertainties and have thus been called policy science rather than research science (Jasanoff 1990, 77-79). Epistemic & aleatory uncertainties and a dynamic state of scientific knowledge inevitably create room for scientific disagreement/debate and a role for expert judgement and formal elicitation. The search for ever more detailed answers exposes the limited explanatory and forecasting power if one expects expert evidence to produce epistemologically waterproof answers because research science operates with a trend towards falsification (Luhmann 1993, 142, Giddens 1999, 1). The absence of perfect control over risk has been characterised as a distinguishing feature of the ‘risk society’ (Beck, 1992). Research has also shown that experts operate with framings of risk, are subject to possible bias and take value decisions, for instance when they select a certain population for the purpose of exposure assessment (Winickoff et.al. 2005, 113). The recognition of uncertainty, ambiguity and framing by experts as well as the important role expert evidence has come to play in constraining risk regulation in many legal frameworks from EU to WTO law has led scholars to call for more popular participation in risk regulation and for giving more weight to the normative evaluation of risk rather than their empirical characterisation (Klinke, 2011, Peel 2010, 7-8, Foster 2008, Joerges 2009, 81), with impact also on courts directing their judicial review of regulation at procedure and less at substance (Popelier & van de Heyning  2013). At the same time, other hazards and international legal agreements arguably pay insufficient heed to expert evidence (from volcanoes to climate change).

For the governance of many hazards, laws create the stakeholders (infrastructures, duty holders and beneficiaries) and the stakes (duties and rights) but also the ultimate rewards (acceptable levels of risks – often a balance between risk and safety/security). In any scrutiny process in which the actual performance of a scientific tool (scientific input or process) is being assessed, a need for scientific expert "opinion" evidence will also arise.  Expert evidence will address what scientific "tool" should have been used, by whom, how, when and with what foreseeable consequences. The allocation of liability not only makes possible post-facto criminal law sanctions and civil law remedies to penalise inadequate risk management but also provides an ex-ante indirect incentive for good risk management (Simoncini 2013, 219). 

Lastly, in some court cases, expert tools will not be the subject of the detailed scrutiny but instead will be used for the purposes of creating and adducing evidence. Past cases suggest that scientific evidence (in particular probability evidence) may often fail to meet the very high standard of proof (beyond all reasonable doubt) to satisfy the burden of proof placed upon prosecutors in criminal prosecutions.  Even the challenge of meeting the usual civil aw standard of proof (on the balance of probabilities) may represent a challenge given the many epistemic and aleatory uncertainties that may exist. In identifying stakeholders, stakes, rewards and default positions, the law itself becomes the source of new risks because it also actively allocates epistemic authority to some experts but not others through defining standards and burdens of proof or establishing who may be deemed an expert. 

Goals of this theme:

The snapshot on the state of the art on the law and science literature brings to the fore a number of unresolved issues for research upon which this theme will focus:

• What is the normative reason for integrating expert evidence in legislation and adjudication? And what is the consequence of this reason for what type of evidence ought to be sought, how uncertainties ought to be dealt with and burdens and standards of proof be assigned?
• Is the law’s particular binary logic of legal/illegal conduct responsible for difficulties in the law coming to grips with probabilistic evidence, uncertainties or multi-risk assessment? What misunderstandings of expert evidence arise when lawyers/policy-makers solicit such input? What misunderstandings of legal concepts arise when experts are asked mixed questions of law and fact by lawyers? Can there be ‘technical’ fixes in expert elicitation processes, such as attempts better to aggregate expert evidence when experts disagree, to enhance risk and ‘law’ communication or to seek a more contextualised and application-oriented description of scientific uncertainty? Is there a need for meta-expertise on experts? Or does a better answer lie in making the law adapt, for instance, by seeking expert input when standards and burdens or proof are assigned? Is it better that the law responds to uncertainties by becoming more flexible, reflexive, procedural, experimental or that it merely modifies the context within which individuals take decisions on risk (nudge)?
• Is there a normative reason for taking more account of public opinion in risk regulation and at what stage thereof? When should preferences simply be aggregated and when should only reasonable preferences compatible with public reason be sought? Can stakeholder preference elicitation be used to achieve a democratic goal? How would it need to be adapted? How can preference elicitation be epistemologically validated for use in cost-benefit analysis?
• What is the reason for why expert evidence plays a high or low role in different regulatory regimes? Does it lie in the state of epistemic confirmation of the relevant expertise? Does it lie in the constraints the evidence would impose on policy-makers? Or is it the result of exclusion through joint agenda-setting and framing by a limited number of policy-drivers with the help of a selected group of experts?

References:

Beck U. (1992) Risk Society – Towards a New Modernity. Sage Publications.

Everson M. (2011) The Intimate Tales of Law and Science: Hope, Despair and Transcendence, in Everson M. and Vos E. (eds.) Uncertain Risks Regulated. Routledge, p. 347-357.

Foster C. (2008) Public Opinion and the Interpretation of the World Trade Organisation’s Agreement on Sanitary and Phytosanitary Measures. Journal of International Economic Law 11, p. 427–58.

Giddens A. (1999) Risk andResponsibility. Modern Law Review, p. 1-10.

Herwig A. (2014) Health Risks, Experts and Decision-Making within the SPS Agreement and the Codex Alimentarius, in Ambrus et.al. (eds.) The Role of ‘Experts’ in International and European Decision-Making Processes. Advisors, Decision Makers or Irrelevant Actors? p. 194-215.

Jasanoff S. (1990) The Fifth Branch. Science Advisers as Policymakers. Harvard University Press.

Joerges C. (2009) Judicialization and Transnational Governance: The Example of WTO Law and the GMO Dispute, in Iancu B. (ed.) The Law/Politics Distinction in Contemporary Public Law Adjudication. Eleven International Publishing, p. 67-84.

Joerges C. & Godt C. (2005) Free Trade: The Erosion of National and the Birth of Transnational Governance, in Zürn M. & and Leibfried S. (eds.), Transformation of the State. Cambridge University Press, 93-117.

Klinke A (2011) Inclusive Risk Governance through Discourse, Deliberation and Participation in Everson M. and Vos E. (eds.) Uncertain Risks Regulated. Routledge, p.398-413.

Luhmann N. (1993) Das Recht der Gesellschaft. Suhrkamp.

Pavlakos G. & Pauwelyn J. (2011) Principled Monism and the Normative Conception of Coercion under International Law, in Evans, M & Koutrakos, P. (eds.) Beyond the Established Legal Orders: Policy Interconnections between the EU and the Rest of the World, p. 317, 318.

Peel J. (2010) Science and risk regulation in international law. Cambridge University Press.

Popelier P. & van de Heyning C. (2013) Procedural Rationality: Giving Teeth to the Proportionality Analysis. European Constitutional Law Review 9, p. 230-262.

Ripstein A. (2004) Authority and Coercion. 32 Philosophy. & Public Affairs 2, p. 2-35.

Simoncini M. (2013) Governing Air Traffic Management in the Single European sky: The search for Possible Solutions to Safety Issues.  European Law Review Issue 2, p. 209-228.

Winickoff D. et al. (2005) Adjudicating the GM Food Wars: Science, Risk and Democracy in World Trade Law. Yale Journal of International Law 30, p. 81- 123.