Comparing Law as Science with Science in the Law: Preliminary Thoughts

Kirk W. Junker
University Professor of Law, University of Cologne, Faculty of Law, and Director of International Master of Environmental Science Programme, University of Cologne.

Law and Forensic Science, Volume 14 (2017/2).

Submitted: September 18, 2017.

The author declares there is no conflict of interest.

Abstract: Comparative law often compares institutions or sources of law from various countries. This article rather compares civil law and common law families, but does use Germany and the USA to represent the two families respectively. Rather than focus upon institutions or sources of law, this article compares how these two families understand their practices of law, specifically in reference to science. First the concept of comparison itself is examined through its western conceptions in the discipline of rhetoric. Then the relationship of law to science is discussed, comparing the legal standard of scientist as authority on science to judge as ultimate adjudicator on scientific matters. The author concludes that law requires an evaluative element in its practices if it is to effect justice and further concludes that the evaluative element is better conceived by philosophy than science. Lawyers are thus encouraged to seriously consider evaluative practices, but are invited to do so on their own, rather than treat philosophy as a body of knowledge only present through the philosopher as expert witness.

Keywords: comparativism, rhetoric, science, evidence, scientism, moral, evaluative

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