Distinguishing law and scientific change

Changes in scientific understandings are generally considered as difficult to foresee as changes in technology. Our understanding and perceptions of the natural world change over time, often in revolutionary ways. Scientific and technological change are closely related and sometimes hard to differentiate. For instance, improvements in our understanding of biology, and in particular the process of fertilization, facilitated the invention of in vitro fertilization and other reproductive technologies. Conversely, most scientific experiments could not take place without the tools created by technologists.

Nevertheless, the types of legal problems that are most closely related to changes in scientific understanding differ from the types of legal problems generated by technological change. Changes in our understanding of the world may alter policy focus (for example, by altering our understandings of what causes both advantage and harm); changes in technology alter what forms of conduct are practicable (thus changing how we might cause advantage or harm). Scientific change can shift the meaning and usefulness of categories, altering the utility of distinctions made in legal rules. In the case of technological change, the difficulty tends to be in the inclusion or exclusion from a particular category of a new form of conduct, rather than the coherence of the category itself.

The distinctions between the nature of legal problems generated by technological and scientific change are not only technical, but have important practical implications. We can talk about technology-neutral rules, meaning either rules that do not arbitrarily distinguish between different means of achieving the same outcome or rules that are resistant to the sorts of problems generated by technological change. An understanding of the nature of legal problems that result from technological change can help explain what technology-neutral drafting involves. Yet one hears no demands for scientifically neutral rules. This is not because one cannot imagine a rule that failed to differentiate between scientific possibilities. The rule “do not do anything that harms the environment,” leaves an interpreter to decide whether the manufacture of certain substances, thought by some to promote global warming, would be prohibited. The reason is rather that scientific neutrality offers less social benefits than technological neutrality. It is one thing for the government to say, “here is what we wish to achieve, do so in any way you can” and another for it to remain neutral on knowledge claims. Technological neutrality seeks to encourage positive technological change by at least remaining neutral to the possibility of new ways of achieving the same ends. It is extremely unlikely that scientific neutrality would lead to better science. Rules tend to be based on both current understandings and existing possibilities, but not in the same way, and not with the same implications.