Trans-Science, Trans-Law and Proceduralization
| Date | 01 December 2003 |
| Published date | 01 December 2003 |
| DOI | 10.1177/0964663903012004005 |
| Author | John Paterson |
| Subject Matter | Journal Article |
TRANS-SCIENCE, TRANS-LAW
AND PROCEDURALIZATION
JOHN PATERSON
University of Westminster, UK
ABSTRACT
The notion that the risk problems confronting contemporary society are trans-
scientific in character – that is, that while they can be posed to science, they cannot
be solved by science alone – has gained currency since Alvin Weinberg coined the term
over thirty years ago. His prescription in such circumstances – that recourse must be
had to legal procedures in order to find an answer – perhaps invests law with more
ability than it actually possesses to deal with such issues. What is it about law that
ensures that such problems are not also trans-legal? This article considers this ques-
tion by examining the relationship between science and law, between the realms of
the factual and of the normative, in order to determine what happens when the two
come into contact, or communicate, in the context of regulation or of litigation.
Focusing on this crucial interface leads to the conclusion that traditional – formal and
substantive – paradigms of law are ill adapted to cope with risk issues and that a pro-
cedural orientation of law is preferable. The question is then to choose among the
leading alternatives available: Habermas’s procedural paradigm based on the theory
of communicative action or Teubner’s reflexive law based on the theory of autopoiesis.
INTRODUCTION
Since the publication of Ulrich Beck’s seminal work, it has become a com-
monplace to describe contemporary society as a ‘risk society’, in which
the logic of risk production dominates the logic of wealth production,
in contrast to the situation in industrial society where the relationship was
reversed (Beck, 1992: 12). The appeal of this description is manifest in the
number of references that are made to it, and can perhaps be explained by the
extent to which it seems so neatly to encapsulate the fundamental trans-
formation that appears to have occurred in society’s relationship with science
and technology. Rachel Carson’s Silent Spring (1965) is often identified as a
convenient marker for the point at which the change from a public percep-
tion of science as essentially emancipatory to one of science as a problem in
SOCIAL &LEGAL STUDIES 0964 6639 (200312) 12:4 Copyright © 2003
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
www.sagepublications.com
Vol. 12(4), 525–545; 038418
its own right occurred (albeit that hers was only one among a series of books
at that time examining the ‘spoiling of land, air, water and environment’
(Schlesinger 1965/2002: 727)), but the reception of Beck seems to represent
the consolidation of that change.
The possibility that Beck’s analysis may nevertheless offer generalizations
that are really too sweeping to be useful – especially to those interested in the
legal dimension – has, however, been raised by Hood, Rothstein and Baldwin
(2001: 3ff). They suggest that there is less point in highlighting what appar-
ently makes risk society different from industrial society than in focusing on
the variety of ways in which different risks are regulated. The risk society
analysis is simply not sophisticated enough to account for the variety of risk
and regulation. One retort to this critique might be to stress the normative
dimension of the risk society analysis and to suggest that where that analy-
sis cannot account for a particular regulatory response to risk, that in fact says
a great deal about the extent to which that response is not adequately adapted
to the challenge posed by the epochal transformation in the relationship
between the logics of wealth production and risk production.
It is not, however, the intention here to contribute directly to this emer-
ging debate. Irrespective of any eventual resolution, what both sides agree on,
explicitly or implicitly, is the importance of decisions in the emergence and
treatment of risks. Whether one perceives a paradigm shift or a more complex
picture composed of known and ongoing phenomena familiar to observers
of regulation, it remains the case that risks do not just happen, do not just
arise out of the background or the environment unmediated by human influ-
ence. They are the products of decisions. As such, it becomes important to
know (1) who takes the decisions in question and (2) on what grounds. And
these two questions directly impact on law; firstly because law is involved in
a variety of ways in society’s response to risks, and secondly because the
nature of law is precisely to effect decisions. As regards regulation, law here
provides instruments, backed by sanctions, which enunciate decisions aimed
at the removal or at least the minimization of risk. As regards adjudication,
law is involved in taking decisions about liability and compensation when a
risk has crystallized.
Where law is involved, then, in decisions with regard to risk, it is at least
relatively easy to determine the answer to the first question raised by both
the risk society and the regulatory regime analyses: one can point to readily
identifiable regulators and judges as the individuals responsible for taking the
decisions. The second question, relating to the grounds on which the
decisions are taken, remains, however, and proves to be more troublesome to
answer than might at first be suspected. Breaking the matter down with a
view to simplifying what could otherwise be rather complex, it might be sug-
gested that in such circumstances there is in play a process of communication
between science and law. Considering the regulation of a given risk issue,
regulators are exercising a legal function and ultimately issuing an instrument
that respects legal requirements, but they are working with information that
has been generated by science. Thus, regulations relating, for example, to the
526 SOCIAL & LEGAL STUDIES 12(4)
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