Experts in Science and Society

Experts in Science and Society

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Experts in Science and Society

Edited by

Elke Kurz-Milcke Georgia Institute of Technology Atlanta, Georgia

Gerd Gigerenzer Max Planck Institute for Human Development Berlin, Germany

KLUWER ACADEMIC PUBLISHERS NEW YORK, BOSTON, DORDRECHT, LONDON, MOSCOW

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Preface For none of those systems of thought without which we cannot do if we want to conceive of those parts of reality which are significant in each case, can possibly exhaust the infinite richness of reality. None is anything else than an attempt (…) to bring order into the chaos of those facts, which in each case we have included within the sphere of our interest. Max Weber1 Experts are called in when there is something at stake for an individual, a group, or society at large. This volume represents a multi-authored endeavor towards a nuanced understanding of the expert in modern societies. The initial impetus for bringing together the contributors to this volume came from an invitational meeting by the Max Planck Society for the Advancement of Science. This meeting, a Schloessmann Seminar, gathered a group of young scientists and established scholars to discuss research and research proposals pertinent to the phenomenon of The Expert in Modern Societies, Past and Present. The specific opportunity afforded by this seminar and, subsequently, this volume has been inclusiveness as regards scientific disciplines and research domains. This volume is about experts and by the same token about science, cultures, political systems, representational practices, public debate, organizations, institutions, law, ethics, modernity, risk, environmental protection, and, last but not least, about expertise. Expertise easily appears to be a personal attribute. After all, who would want to argue with the verity that experts have expertise, and are called in for their expertise? Semantics notwithstanding, the chapters in this volume demonstrate that it would be ill-advised to consider expertise merely a personal attribute, no matter how skilled, knowledgeable, and educated a person may be. Nevertheless, this volume is focused on experts and in many ways on people. We think that this choice has served the project well for advancing our understanding of expertise. A human-centered perspective on expertise brings home the actualities of experts living in particular societies, participating in particular organizations and institutions, engaging in particular practices, and thus partaking in particular cultures. We recognize that in many areas of society, especially in those related to training and education, the issue arises of how to best foster well-versed expertise. The answer is in engaging students, and we think the same must be assumed for the study of expertise. The chapters in this volume engage with the particularities of the historical cases that the authors have chosen. The sociologist and occasional methodologist of the cultural and social sciences Max Weber realized 1

1921, Gesammelte Aufsätze zur Wissenschaftslehre (p. 207) [Collected Essays in the Logic of Science], Tübingen, Germany: Mohr. Cited in an English translation by Thomas Burger, 1976, Max Weber’s theory of concept formation: History, laws, and ideal types, Durham, NC: Duke University Press.

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that such engagement does not need to run counter to characterizations in terms of more general categories that serve understanding beyond the particulars of a case. In fact, Weber thought that the social scientist’s engagement with historical events and relationships could not but be coupled with emphasis on such categories. In Weber’s position we sense a call for boldness and reasonableness when it comes to our engagement with particular cases of expertise, past and present. We can boldly assume that with the analyses of particular cases, we bespeak larger issues related to expertise in modern societies, and reasonably do so to the extent that we are careful in our analyses. The preparation of this volume was generously supported by the Max Planck Society for the Advancement of Science, who provided the means to gather the authors at a three-day Schloessmann Seminar and funded the editorial work on this volume. We thank the members of the participating Max Planck Institutes (MPI), in particular, Hans-Jörg Albrecht (MPI for Foreign and International Criminal Law), Jürgen Baumert (MPI for Human Development), Lorraine Daston and Hans-Jörg Rheinberger (MPI for the History of Science), Renate Mayntz (MPI for the Study of Societies), Hartmut Lehmann and Manfred Jakubowski-Tiessen (MPI for History), Gerhard Schricker (MPI for Intellectual Property, Competition and Tax Law), Manfred E. Streit (MPI for Research into Economic Systems), and James W. Vaupel (MPI for Demographic Research). We also wish to thank Jean-Paul Brodeur, Karin Knorr Cetina, and Willem Wagenaar for their participation in the Seminar and their commentaries on various contributions during the workshop. As editors, we are grateful to a number of scholars for their willingness to serve as reviewers for the contributions in this volume, among them Valerie Chase, Salvatore Ciriacono, Peter Imhof, Lothar Krappmann, Stephanie Kurzenhäuser, Gero Lenhardt, Renate Mayntz, François Mélard, Theodore Porter, Frank Stahnisch, Heike Trappe, and Ryan Tweney. We were greatly supported in the editorial work by Anita Todd and Christel Fraser, who both went out of their way in editing language and text. We are also grateful to the staff at the Max Planck Institute for Human Development in Berlin for their support with the preparation of the manuscript for this volume and the related organizational tasks: Jürgen Baumgarten, Dagmar Fecht, Hannes Gerhardt, Dagmar Gülow, Ulrich Kuhnert, Erika Nüssle, Erna Schiwietz, and Rona Unrau. As editors, we wish to express our gratitude to the authors of this volume for keeping a strong commitment to this publication and for enduring an editorial process that took longer and was more intense than any of us had probably anticipated. The Schloessmann Seminar is an ongoing series of workshops by the Max Planck Society in memory of Dr. Ernst-Rudolf Schloessmann, a former supporting member of the Society, and especially dedicated to the encouragement of challenging research proposals by young scholars. The aim of the Seminar is to bring young people together, whose voices tell and whose views shape what most of this volume is about. As a result, we had the opportunity to work with a dynamic and also mobile group of authors, which turned keeping the list of affiliations and addresses up-to-date into an ongoing task. Working with this group has expanded “the sphere of our interest.”

Contents

Section 1 Political Systems and the Experts They Support 1 Scientists as Expert Advisors: Science Cultures Versus National Cultures? Horst Rakel

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2 Experts’ Discourses as Judicial Drama or Bureaucratic Coordination: Family Debate in the United States and Germany Wolfgang Walter

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3 The Integration of Social Science Expertise Into the Political Process: Did It Actually Happen? Gabriele Metzler

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4 Socialist Legal Experts: A New Profession? Ute Schneider

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Section 2 Who Is Called Upon as Expert? 5 Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? Christoph Antons

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6 The Humane Expert: The Crisis of Modern Medicine During the Weimar Republic Michael Hau

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7 Expertise Not Wanted: The Case of the Criminal Law Jean-Paul Brodeur

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8 Air Pollution Control: Who Are the Experts? Matthias Heymann

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Section 3 Experts, Redefined 9 The Philosopher as Coach Andreas Føllesdal

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10 Who Decides the Worth of an Arm and a Leg? Assessing the Monetary Value of Nonmonetary Damage Fenna H. Poletiek and Carel J. J. M. Stolker

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11 The Expert in a Historical Context: The Case of Venetian Politics Achim Landwehr

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Section 4 Innovative Representations 12 Mapping Urban Nature: Bio-Ecological Expertise and Urban Planning Jens Lachmund

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13 How to Improve the Diagnostic Inferences of Medical Experts Ulrich Hoffrage and Gerd Gigerenzer

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14 Statistical Scientific Evidence and Expertise in the Courtroom Samuel Lindsey

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15 The Authority of Representations Elke Kurz-Milcke

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Name Index

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Subject Index

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Section 1 Political Systems and the Experts They Support The chapters in this first section span a wide terrain, relating experts and political systems as historical individuals. The presented case studies make plain that political systems are not merely a context for the experts’ agency. Rather, the study of the experts’ standing and advice can serve as an entrance to the study of the institutional organizations and the political systems that call upon these experts. How is it possible that expert advisors in the United States and Europe reach widely diverging conclusions concerning the standards required to protect public health and the environment? Horst Rakel’s chapter brings out how risk assessment and the related interpretation of probabilistic scientific evidence is in the culture of the beholder, particularly the expert advisor’s national culture. In a comparative case study of family policy in Germany and the United States in recent decades, Wolfgang Walter argues that the occasionally heated debate surrounding this issue in America, and the comparatively moderate debate in Germany, each are reflections of the organization of experts within the respective political field. Experts on family policy in Germany and the United States meet in differing arenas and relate in differing ways to the public discourse. According to Walter’s analysis, the institutionalized interaction of experts shapes family policy in the two nations. As historical individuals, political systems and the specific powers within them come and go. The chapters by Gabriele Metzler and Ute Schneider emphasize the transient nature of political systems and the consequent changing demands and opportunities for the experts. Metzler’s case study portrays the integration of social scientific knowledge into the political process of West Germany after the Second World War. After the fall of the Nazi regime a modernization of society and government was to be achieved. Planning, as a scientifically based political instrument, was regarded as a key to a modern political program, especially by the Social Democrats. However, as we can learn from Metzler’s analysis, social scientific expertise prominently took an alternate avenue to cast its influence on the political and administrative elite in West Germany: higher education and related informal networks. Finally, Schneider asks what happens to a professional elite after the political system that supported this elite comes to an end. In the German Democratic Republic, the elite of legal professionals, which has had an extensive history within Germany, was regarded as an obstacle to the reshaping of society. Schneider shows how radical changes on one level, the level of the political system, play out on another, the organizational, with the new regime relying to a significant extent on the same historical individuals, alias experts, across the political divide.

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Chapter 1 Scientists as Expert Advisors: Science Cultures Versus National Cultures?

Horst Rakel Center for Environmental Risks, University of East Anglia, Norwich, UK [email protected]

Since the onset of the Enlightenment, the role of science and its scientist(s) has gained a growing significance in the political sphere of modern societies. Using scientists as expert advisors to policymakers is now so commonplace that it rarely generates public or media interest in the precise nature of the role of, or the input provided by, these experts. On the contrary, expert advice, these days, is an essential ingredient in policymaking, supplying the competence and intelligence necessary to assure the public at large that policies and regulations have been based on the best knowledge available, provided by sources independent of competing interests. In that sense, science and scientists serve to rationalize policymaking (Jasanoff, 1990). However, relative to the experts’ importance in the policymaking process, the work of these advisors is poorly documented and the construction and the application of expert knowledge is rarely scrutinized. This is all the more surprising given the awareness that all knowledge is preliminary and/or socially constructed (Adorno et al., 1972; Habermas, 1969; Kuhn, 1970). Yet, only a few scholars have taken up the task to review, systematically and critically, the activities of expert advisors in the regulatory process (Foster, Bernstein, & Huber, 1993; Haas, 1992; Irwin, 1995; Jasanoff, 1990; Salter, Leiss, & Levy, 1988). This task has been approached from differing theoretical perspectives, and a synthesizing framework of how to analyze expert involvement in policymaking has not yet been established. Additional complexity arises if we turn to risk-based policymaking on a multinational or even global level. Apart from very few exceptions, scholarly investigations on expert involvement in policymaking focus either on issues of risk and decision making within a national framework, or on multinational programs with little or no reference to questions of risk and decision making. Thus, we usually find either the international dimension or the uncertainty dimension missing from the analyses. Given frequently competing, or even contradictory expert advice on risk regulation, the question arises which factors are responsible for this divergence of supposedly rational actors, basing their judgment on scientific evidence. So far, 3

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most of the academic debate concerning this question has revolved either around the national cultures, in which the experts are embedded, or around the science cultures, to which the experts belong, according to their professional training and respective affiliations. The thesis pursued by this chapter is that both aspects are necessary for a comprehensive analysis of expert advice on risk regulation within an international context. Three theoretical perspectives have been selected that will serve to show how focusing solely on the nationally or professionally defined contexts of the role of science and the scientist in standard setting, guideline development, and the determination of “best practice” methods is insufficient. With the accelerating globalization of trade, the harmonization of environmental, health, and safety standards is rapidly becoming a major international issue. Two case studies will help to illustrate the role of scientists as expert advisors in the development of environmental, health, and safety regulations with multinational and global implications; one case study concerns the regulation of sewage sludge land application, the other the dispute over hormone-raised beef. Both case studies involve a comparison of how the respective issue has been dealt with in the United States and in the European Union (EU). In each case, the respective regulation was developed on the basis of expert advice and scientific evidence but, nevertheless, led to considerably different regulations in the EU, on the one hand, and the USA, on the other. The marked differences between these two economic entities will be discussed under three theoretical perspectives: epistemic community formation (Haas, 1992), a cultural bias theory (Douglas & Wildavsky, 1982; O’Riordan & Wynne, 1987; Renn, 1995), and a regulatory science approach (Irwin, Rothstein, Yearley, & McCarthy, 1997; Jasanoff, 1990, 1995). Based on the evidence provided by the two case studies, we will discuss to what extent these analytical frameworks can provide for a comprehensive interpretation of the role of science and the scientist(s) in the regulatory decisionmaking process.

Environmental and Public Health Standard Setting The interest in the role of science in the environmental and public health standard setting has grown over the last decade. Apart from appearing in a number of scholarly investigations, the subject has also increasingly caught the interest of national governments and regulatory agencies. In the USA, for instance, product safety standard setting has been subject to a thorough review by the Office of Technology Assessment (Garcia, 1992). Recently, the United Kingdom’s Royal Commission on Environmental Pollution concluded a 3-year study with a detailed report on environmental standard setting (Royal Commission on Environmental Pollution, 1998). The reasons behind this increasing attention are complex and manifold: Two main forces are globalization and scientification.

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Globalization In recent years, the internationalization of markets and trade has assumed a new quality, with trade volumes worth billions of dollars circulating around the globe. In 1992, almost half of the US-manufactured goods exported to the EU were subject to product safety standards alone (Garcia, 1992, p. 537). Compliance with environmental regulations, worldwide, was estimated to cost $500 billion by the year 2000 (Royal Commission on Environmental Pollution, 1998, p. 1). Competition has transcended national boundaries as much as knowledge dissemination and communication. The internet and electronic publishing have made advances in scientific knowledge by being almost instantly available around the globe and scientific journals without international editorial boards are increasingly considered substandard in the academic community. Global economic actors are rapidly forming, Daimler-Chrysler being a particularly prominent case in point. However, global industrial enterprises and the international financial markets are insufficiently controlled through national regulatory frameworks. In the absence of a credible global (political) decision-making body, institutions, such as the World Trade Organization (WTO), the International Standards Organization (ISO), or the Codex Alimentarius Commission (Codex) have stepped in to fill the regulatory vacuum and to provide the much-needed “level playing field.” Common to these agencies is their strong dependence on scientific committees, that is, on expert advice.

Scientification Since the Enlightenment, the scientification (Verwissenschaftlichung) of modern society has been subject to scholarly debate. Some have argued that science has expanded its ambitions to control the natural environment and into controlling society, rationalizing social processes for the purpose of technological advancement (Habermas, 1969; Horkheimer & Adorno, 1947; van der Loo & van Reijen, 1992). However, critique concerning such ambitions has not diminished the penetrating power of science in all aspects of human life. Value-adding economic processes nowadays almost always depend on scientific advances or the application of scientific knowledge in previously “underdeveloped” areas. Currently the service industries, such as logistics, energy services, catering, or telecommunications services, are undergoing rapid changes, primarily due to technological advances and increasing computerization. This scientification of the “lifeworld” (Habermas, 1981) threatens to exclude nonexperts from public discourse (Jasanoff, 1990; Renn, Webler, & Wiedemann, 1995; Webler, Rakel, & Ross, 1992), elevating a scientific rationale to the position of being the only acceptable basis for decision making (Shrader-Frechette, 1991). Consequently, the command over scientific knowledge and the interpretation of scientific evidence occupies a central position in the resolution of interests, problems, and societal conflicts.

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Scientific evidence in the area of environmental and public health standard setting is, more often than not, contradictory. What one expert interprets as the absence of proof, another views as certainty found wanting (Bayerische Rück, 1993). Consider, for instance, the case of bovine spongiform encephalopathy (BSE) or “mad cow disease.” Initially, the British government did not act on the matter since a relationship between BSE and the Creutzfeld-Jakob disease was not scientifically proven. But, it was also not proven that BSE did not have the suspected effect. Public pressure eventually forced the EU Commission to issue a ban on the import of British beef. Yet, there was no conclusive scientific evidence for either claim. Despite being subject to interpretation, expert advice is often mandated as a precondition for an objective assessment of the issue to be regulated (Arbeitsgemeinschaft für Umweltfragen, 1986; Royal Commission on Environmental Pollution, 1998). In recent years, this has triggered an increasingly controversial academic debate on the role of science and scientists in the process of regulatory decision making. Scholars in the field have highlighted the political dimension of “regulatory” science (Irwin et al., 1997; Jasanoff, 1990; Salter et al., 1988), the influence of cultural background and regulatory styles (Coppock, 1985; Douglas & Wildavsky, 1982; Jasanoff, 1986; O’Riordan & Wynne, 1987; Renn, 1995), the technocratization of expert advice (Webler et al., 1992), and the role of science in the courtroom (Foster & Huber, 1999; Foster et al., 1993; Kagan, 1994).

Analysis of Expert Input to Regulatory Decision Making on an International Level A theoretical framework for the analysis of expert input to regulatory decision making on an international level is still missing. Existing approaches focus on international agreements, national decision making, and the scientific basis for regulatory standard setting. In the following, three approaches will be introduced to illustrate the potential of a synthesis of differing perspectives on regulatory decision making. Haas’s (1992) epistemic community formation provides an excellent “backbone” for such a synthesis, but needs to be embedded in a regulatory science framework informed by the cultural, that is, socially constructed, dimension of risk evaluation.

Epistemic Communities Drawing on work in the area of international policy coordination, Haas (1992) and Adler and Haas (1992) introduced the notion of networks of knowledgebased experts, that is, epistemic communities, as an important factor in national and international policymaking. According to these authors, epistemic communities play a decisive role in “articulating the cause-and-effect relationships of

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complex problems, helping States identify their interests, framing issues for collective debate, proposing specific policies, and identifying salient points for negotiation” (Haas, 1992, p. 2). These expert communities are characterized by: a shared set of normative and principled beliefs, providing a value-based rationale for social action, shared causal beliefs, shared notions of validity, a common policy enterprise. Thus, epistemic communities provide consensual knowledge. Based on their reputation, professional training, and claim to scientific authority, members of an epistemic community can wield considerable influence over domestic and international policy debates, particularly if their expertise is anchored in an area highly valued by society or elite decision makers. Haas emphasizes that the dynamics underlying the formation of epistemic communities is based on the aim to reduce uncertainty, so much dreaded by policymakers. Central to this aim is not just the presence of “raw” data, or the absence of guesses, but knowledge as the product of human interpretation of social and physical phenomena (Haas, 1992, p. 4). With respect to research methodology, Haas (1992) recommends a combination of tools largely drawn from the ethnomethodological and structural analysis toolbox. This approach focuses on biographical data, such as publications, delegation lists to meetings and conferences, testimonies before legislative bodies, and speeches and reports for decision-making agencies, but can also include the analysis of mathematical models to identify key variables and equations used by epistemic community members.

Cultural Bias Theory The term “cultural bias theory” is used here as an umbrella for a number of approaches that have grown considerably diverse over the last decades. Cultural bias approaches differ greatly depending on the definition of the social group that one wishes to analyze. However, all of them share the notion of culture as a determining factor in the formation of knowledge, policies, or larger societal trends (Douglas & Wildavsky, 1982; Geertz, 1973; Hofstede, 1994; Inglehart, 1990; Jasanoff, 1986; Rohe, 1990). Of particular interest, for this chapter, are notions of culture as a “world-view” and the manifestation of culture in rule making or policymaking, variably referred to as “regulatory style,” “regulatory culture,” or “political style.” Such “cultures” or “styles” have, for instance, been identified as “hierarchical,” “entrepreneurial,” or “egalitarian” (Douglas & Wildavsky, 1982). According to this theoretical perspective, national backgrounds appear to be less important than the affiliation with professional and social groups, such as, for example, “bankers,” “politicians,” or “environmental activists.” With respect to the analysis of risk management, one would inquire whether the risks to be regulated are perceived to be “objective” or socially “constructed.” From an “objective” viewpoint, a “rational” actor or society would reg-

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ulate risks equally based on comparable parameters. These risks could encompass, for example, the number of fatalities per year associated with a given activity. From this perspective, it is highly inconsistent to regulate nuclear power operations in Germany to a (theoretical) risk level of less than 8 fatalities per year while, at the same time, accepting a death toll of some 8,000 traffic-related fatalities in that same society (Fritzsche, 1991). Likewise, all “hard” drugs taken together claim 2,500 victims in Germany every year, whereas nicotine alone kills 100,000, equivalent to a jumbo jet with a full complement of passengers crashing every day. Yet, these 365 “jumbo crashes” arouse no public interest at all, even though they entail not only much personal suffering but also considerable societal cost. (…) “Risk,” it seems, is all in the mind—a construct. (Bayerische Rück, 1993, p. 7) Cultural bias may also be approached from the position of “regulatory styles.” A number of scholars argue that risk regulation is part of a national style of government (Coppock, 1985; Jasanoff, 1986; O’Riordan & Wynne, 1987; Renn, 1995). The respective style of governmental decision making and, in particular, the way in which expertise is utilized and public opinion is elicited are considered to have a strong bearing on the process and outcome of governmental regulation. Especially in the context of comparisons between the EU and the USA, styles have been labeled consensual and corporatist versus adversarial. Other research has emphasized the US focus on due process and the (Northern) European orientation toward consultation and round-table decision making (Coppock, 1985; Joss & Durant, 1995; O’Riordan & Wynne, 1987; Renn, 1995).

Regulatory Science Over the last ten years or so, a growing number of scholars have identified the role of science in regulatory decision making as a research subject in its own right (Irwin, 1995; Irwin et al., 1997; Jasanoff, 1990, 1997; Salter et al., 1988). In particular, it is argued that science used in rule making does not, and cannot proceed under the same conditions, or adhere to the same standards characteristic of academic science. In many areas, for example, in the case of new chemicals or pharmaceutical drugs, regulation has to address risks that are not yet fully understood. Test results from animal studies are extrapolated to the human body, although underlying processes and mechanisms are largely unknown. Regulatory action is based on a limited pool of scientific knowledge, analogies drawn from similar cases in the past, and the collective opinions of leading experts in the respective field. Consequently, risk assessments employed by regulatory agencies have often been described as an “art” rather than as a science, and as working by less stringent norms than ordinary science (Irwin et al., 1997; National Research Council [NRC], 1996; Rohrmann, 1993).

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Because of the variety of assumptions, opinions, and interpretations included in environmental and public health standard setting, a number of critics have pointed out the potential for bias and manipulation in the regulatory science context. For some, science in the regulatory process may become subjugated to political interests disguised in scientific jargon (Irwin et al., 1997, p. 19; Jasanoff, 1990). Because of its location at the leading edge of technology, it has also been emphasized that scientific knowledge required in the regulatory process often is not available in the public domain. As for new drugs, information is of a proprietary nature and cannot be publicly scrutinized, or knowledge has to be specifically generated for the purpose of regulatory action. It follows that access to information and control over the respective information, with its implications for democratic legitimacy, become important variables in the standardsetting process (Irwin et al., 1997; Jasanoff, 1990, 1997; Salter et al., 1988). The following two case studies concern strongly risk-driven regulatory issues; both are comparatively well documented (and, therefore, accessible to policy analysis). They provide a unique opportunity to compare two groups of experts acting on identical, or nearly identical, regulatory issues. The two case studies also complement each other. Sewage Sludge Regulations were developed at a time when the international political stakes were still low. If there was any international debate at all, it was mostly occurring in academic circles, and finding a resolution to the problem of sewage sludge land application, on an international level, was not a major objective. The hormone-raised beef dispute, on the other hand, arose at a time when the international political stakes were already high and the timetable for a resolution fixed by WTO procedures. Taken together, the two case studies will serve to illustrate the importance of multiple theoretical perspectives on the role of scientists as expert advisors in regulatory decision making.

Case Study I: Land Application of Sewage Sludge Sewage sludge is the (largely organic) residue left after waterborne waste (sewage) from domestic and industrial sources has been treated. Whereas the effluent of sewage treatment plants, in most cases, is clean enough to be discharged into rivers or the sea, contaminants present in raw sewage accumulate in the solid phase. Thus, sewage sludge usually contains a number of organic and inorganic pollutants (e.g., heavy metals) of varying quantity, depending on the area and the composition of the sources discharging into the sewer system. However, because of its origin, sewage sludge also holds considerable amounts of plant nutrients and physical properties that make it a valuable fertilizer and soil improver (Page, Logan, & Ryan, 1987). The application of sewage sludge to agricultural land would be a beneficial recycling practice if risks to public health and the environment were not of concern. Although sewage sludge had been spread onto soil for many years, the issue attracted renewed regulatory attention in the late 1980s and early 1990s because

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of international agreements to ban the disposal of sewage sludge into the sea (Marshal, 1988; McGrath et al., 1989). At the same time, tightening standards on wastewater treatment led to increasing quantities of sewage sludge that still continues. In the United Kingdom, for example, the total amount of sewage sludge is projected to rise from roughly 1 million tons (dry solids) in 1992 to 1.5 million tons by 2005 (Royal Commission on Environmental Pollution, 1996, p. 82). Similarly, in 1991, 3.2 million tons were generated in Germany, rising to an estimated 4 million tons by the year 2000 (Abwassertechnische Vereinigung [ATV], 1996, p. 15). So, while one of the major disposal routes has been shut down, the overall amount to be disposed of continues to rise. This disparity explains, in part, the political pressure to find an adequate solution to the problem of sewage sludge disposal. In the USA: Experts Criticizing Experts The development of Sewage Sludge Regulation in the USA commenced in the late 1970s and turned out to be particularly long winded (Chaney, 1990a; Marshal, 1988). After prolonged political haggling, in particular between Congress and the Reagan administration, the development of federal sludge regulation—also known as “Rule 503”—eventually took shape in the late 1980s. In 1989, the US Environmental Protection Agency (EPA) published a draft regulation for commentary (EPA, 1989). The strictness and range of the standards sent shock waves through the industry and upset many experts outside the EPA (Chaney, 1990a, 1990b; Morse, 1989; see Table 1). As a result, considerable resistance was shaping up and thousands of responses to the proposed Rule arrived at the agency, eventually adding up to some 5,500 pages of commentary (EPA, 1995, p. 20). While controversial public debate is not unusual in the US regulatory process (Kagan, 1994; Renn, 1995), the amount and the intensity of criticism leveled by a number of experts outside the EPA were perhaps more ferocious than anybody

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within the regulatory agency had expected. “Obituaries were being written” for the agricultural use of sewage sludge (Goldstein, 1991, p. 68). “They [the EPA] went overboard” commented Professor Terry Logan of Ohio State University (Morse, 1989, p. 50). One of the most outspoken critics, Dr. Rufus Chaney from the US Department of Agriculture, was particularly concerned about the disregard for the benefits associated with sludge land application, such as its high content in plant nutrients, as well as its soil conditioning and erosion prevention properties, among others. One last aspect of sludge use on cropland that should never be forgotten, is that beneficial use lowers the net cost to society. (…) Taxpayers need regulations for sludge utilization based on proper research findings so that the minimum cost associated with environmental protection can be obtained. (Chaney, 1990a, p. 55) To the outside observer this reaction was all the more surprising, as the EPA had conducted a very elaborate risk assessment backed up by extensive experimental studies and documentation. In this respect, the EPA had adhered to the principle of a science-based approach that is considered to be at the heart of regulatory decision making in the USA (EPA, 1995, p. iii; NRC, 1982). Yet, while the expert critics did not question the risk-assessment approach per se, they attacked the EPA on the grounds that the assumptions and the models used in the riskassessment process were overly conservative and the experimental data employed did not adequately represent pollutant behavior in the field (EPA, 1995). The widespread criticism that the 1989 draft Rule received led to the establishment of a Scientific Advisory Committee whose brief was to assist the EPA with revising the Rule. The Peer Review Committee was largely composed of high-profile researchers in the field and was co-chaired by Professor Logan (Ohio State University) and Professor Page (University of California, Riverside). Together with Drs. Chaney, Logan, and Page, the team consisted of ten additional experts from institutions all over the USA and Canada (EPA, 1995, p. 141). At least half of the members of the Scientific Advisory Committee had joint publications (Chaney et al., 1987; Chang et al., 1987; Jacobs, O’Connor, Overcash, Zabik, & Rygiewicz, 1987; Logan & Chaney, 1987; Mahler, Bingham, Page, & Ryan, 1982; McGrath, Chang, Page, & Witter, 1994; Page et al., 1987). This peer review process and the work of the Scientific Advisory Committee led to a set of recommendations that the EPA used for revising the proposed Rule 503. Some of the key elements of the revision are briefly described below: Validity of survey data. The original data set used for assessing sludge quality in the “40-Cities-Study” was considered outdated. The EPA had already been aware of the limitations of this study as a database for the assessment of sewage sludge quality during its development of the 1989 Rule (EPA, 1989, p. 5763). This led the EPA to conduct the National Sewage Sludge Survey (NSSS) during 1988 to 1989. The NSSS used state-of-the-art analytical techniques and equipment and covered a wider spread of Publicly Owned Treatment Works (POTWs)

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to assure a more representative assessment of the current situation (EPA, 1995, p. 20). The results of the NSSS showed that the contaminant levels in the sludges were generally much lower than indicated by the “40-Cities-Study.” Lead concentrations, for example, were only at 40% of their previously assumed levels. Also the levels for chlorinated hydrocarbons were lower than expected (EPA, 1995, p. 21). Validity of experimental data. In the proposed Rule the EPA relied largely on greenhouse and pot studies to calculate the pollutant uptake by plants. These studies simulated pollutant concentrations in soil through application of metal salts or pure organic compounds. The Scientific Advisory Committee was able to demonstrate that the behavior of sewage sludge pollutants in the field was considerably different from the experiments in the greenhouse. Because of certain matrix effects in the sewage sludge and the so-called “Soil-Plant Barrier,” transfer rates found in field studies were much lower than the rates determined in laboratory experiments (Chaney, 1980, p. 63, 1990a, p. 56). The EPA accepted the results from field studies as being more representative of real-world situations and decided, for the revised Rule, to rely as far as possible on data from field studies (EPA, 1995, p. 28). Revision of exposure path models. The models employed for the proposed Rule assumed a 100% transfer of a pollutant simultaneously into ground water, surface water, and air. That approach was deemed too conservative. The revised Rule assumed a mass-balance approach, whereby the pollutant transfers are proportionally assigned to the respective medium. From MEI to HEI. One of the core criticisms leveled against the EPA was the use of the Most Exposed Individual (MEI) model. In the eyes of the Peer Review Committee, the MEI combined too many conservative assumptions and represented an individual that could not exist in reality. To conduct a risk assessment for a hypothetical person was, according to the critics, pointless (Chaney, 1990b, p. 70; Morse, 1989, p. 50). Because of the Peer Review Committees recommendations the EPA administrator decided to drop the MEI and replace it with the Highly Exposed Individual (HEI) model (Habicht, 1992). In contrast to the MEI, the HEI was considered to provide a more representative model of those being at a higher risk than the general population. The “worst case” assumptions of the MEI were, thus, replaced by an “unlikely case” scenario in the HEI model. Risk-level scenarios. For the proposed regulation, the EPA originally evaluated scenarios for risk levels of and (i.e., scenarios evaluating fatalities per 10,000/100,000/1,000,000 exposed population). Since the new risk assessments indicated a very low risk, even at the current practice of sewage sludge disposal, the EPA made the policy decision to use, in general, the level of for

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the revised Rule. This level then represents the lifetime cancer risk of a highly exposed individual (EPA, 1995, p. 35). Omission of organic compounds. Organic compounds were deleted from the revised Rule because all of the reviewed substances fulfilled at least one of the following three criteria: The pollutant has been banned or restricted for use in the USA, or is no longer manufactured for use in the USA. The pollutant is not present in sludges at significant frequencies of detection based on data gathered in the NSSS. The limit for a pollutant from the sludge exposure assessment is not expected to be exceeded in sludges that are used, or disposed of, based on data from the NSSS (i.e., the potential limits would most likely not be exceeded in practice anyway). The “exceptional quality” concept. The quality criteria listed as Pollutant Concentration Limits by Rule 503 represent what has been discussed in the literature as the “clean sludge concept,” or occasionally the Exceptional Quality (EQ) sludge. This concept was originally suggested by the Peer Review Committee (EPA, 1995, p. 22f.), the basic idea being to issue pollutant concentration limits that were so low that the respective sludges can be applied with very little regulatory constraint (EPA, 1994, p. 7). According to the EPA, EQ concentration limits are so low that even when applied over many years no adverse affects to humans or the environment will occur. Thus, in principle, EQ sludges can still be applied to sites that have already reached their maximum pollutant load. These limits are supposed to provide an incentive for the industry to produce highquality sludges. The Modified Rule 503. In summary, public consultation and, in particular, the activities of the expert Peer Review Committee led to a complete overhaul of Rule 503. After implementing the changes outlined above, as well as a number of other changes recommended by the Scientific Advisory Committee, the EPA proceeded to publish the final Rule 503 in 1993 (because of a number of lawsuits, the details of which cannot be addressed at this point, the Rule received additional minor modifications until 1995). Table 1 shows the dramatic changes in standards from the initial to the final Rule. Apart from the complete omission of organic pollutants, the limit values for inorganic pollutants have become considerably less stringent. A comparison with the corresponding regulation by the EU provides for an interesting point of reference for policy analysts. The development of the EU Sewage Sludge Regulation is outlined below, followed by a discussion of the commonalities and differences of the two approaches.

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In the EU: Experts Among Themselves The corresponding EU Regulation to Rule 503 is the “Directive on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture” (European Communities [EC], 1986). The Directive was passed in 1986, but has its origins in a European Cooperation in the field of Scientific and Technical Research (EU COST) program. The research project started in 1971 and became known as the COST Project 68. The research project was extended several times and eventually merged into a proposed regulation in 1982. Concerns were raised by the member states about imposing uniform standards across the whole of the EU, not taking into account regional variations and the cost associated with over-stringent standards. However, after four years of negotiation, the Council of Ministers eventually formally adopted the Directive in 1986 (Haigh, 1995). Since the Directive essentially goes back to a joint EU research project, the limit values shown in Table 2 were also strongly influenced by expert input. In the EU case, however, the majority of the expert input occurred before a proposal was published. The difference in procedural approaches can perhaps be explained with the different regulatory styles in Western Europe and the USA, which have been described as corporatist and consensual versus adversarial, respectively (O’Riordan & Wynne, 1987; Renn, 1995). The elicitation and discussion of expert opinion in the EU developed along the above mentioned COST program. Particularly in the late 1970s and early 1980s the COST program sponsored a string of expert workshops, where views were exchanged and potential regulatory provisions were discussed among the European scientists involved. The proceedings of these conferences were published on a regular basis, representing a quite extensive documentation of the participating experts’ assessment of the issue (Barth & L’Hermite, 1987;

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Berglund, Davis, & L’Hermite, 1984; Davis, Haeni, & L’Hermite, 1986; Davis, Hucker, & L’Hermite, 1983; Hall, Sauerbeck, & L’Hermite, 1992; Hucker & Catroux, 1981; L’Hermite & Ott, 1984). Regulatory decision making on the EU level, until very recently, was renowned for its intransparency and closed-door political horse trading (Peterson, 1995). Thereby, the rationality behind a particular regulation is often completely obscured to an outsider. Fortunately, in the sewage sludge case, the published workshop proceedings do provide us with a comparatively comprehensive insight into the experts’ point(s) of view. The contributions to the COST workshops and the location of the venues make clear that the European expert exchange was dominated by presentations from German, Dutch, Swedish, and British scientists. There certainly was a difference in opinion between the more lenient British approach, on the one side, and the precautious Dutch, German, and Scandinavian approach, on the other. This is reflected in the span of limit values the EU allows its member states to implement. However, these differences appear insignificant if compared to the US limit values (see Table 2). What seems to have concerned the European COST experts the most was the potential effects of heavy metals, contained in sewage sludge, on soil microorganisms. While the EU researchers took their analysis to the microbiological level, their US colleagues used earthworm activity as the target organism for their ecological risk assessment (EPA, 1995, p. 46). Field experiments in Sweden, Germany, and the United Kingdom, however, had shown potential adverse effects on the soil microbe Rhizobium that raised concerns about long-term soil fertility among the European expert community (Chaudri, McGrath, Giller, Rietz, & Sauerbeck, 1993; McGrath et al., 1994, p. 113). In this context, McGrath et al. (1994, p. 109) emphasize the difference between the Highest Non Observed Adverse Effect Concentration (HNOAEC) and the Lowest Observed Adverse Effect Concentration (LOAEC), as these may vary considerably. Depending on the chosen point of reference otherwise identical toxicity tests may, thus, lead to a different assessment of risk and possibly regulation. Summary of Case Study I The case study above has illustrated that two expert communities, assessing an identical environmental issue, have come to widely different conclusions con-

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cerning the standards required to protect public health and the environment. In comparison, the expert community advising the European regulatory body did not conduct a systematically structured risk assessment of the type of their American counterparts, except for the Dutch regulator. Instead, they reviewed the field for evidence of an adverse effect occurring and then drafted their recommendations accordingly, taking into account the technical feasibility of their advice. In their review of the experimental data employed in both the US and EU Sewage Sludge Regulations, McGrath et al. concluded: The dilemma of setting pollutant loading limits goes beyond the imperfect scientific evidence, and is influenced by the attitudes of scientists, who interpret the data, and of the general public toward environmental protection in the countries concerned. (1994, p. 116) The analysis so far suggests five key dimensions on which the role of experts in the two regulatory frameworks differ. These differences are summarized in Table 3. Table 3 may be said to overemphasize the disparities between the two frameworks. For instance, European scientists are not solely driven by technical feasibility at the expense of scientific accuracy. European countries, such as the United Kingdom, Switzerland, or the Netherlands have been employing risk assessment for environmental and public health regulation for many years. In fact, with increasing harmonization of European legislation, risk assessment is becoming more widespread throughout the EU, for example, in Occupational Safety Regulations (Rakel, 1996). However, the differences are quite pronounced with respect to the way in which uncertainty is handled and environmental integrity is interpreted within the respective cultural paradigms. From a US point of view, the probability of harm above a certain level has to be scientifically substantiated to justify regulatory action. In Western Europe, the burden of proof rests on the other side, that is, it has to be proven beyond reasonable doubt that harm does not occur. Whereas in the USA environmental change is accepted, as long as harm to humans is not to be expected, in the EU the precautionary principle is the yardstick for the acceptability of human intervention in the environment. This commitment has recently even been included in the Maastricht Treaty, which has become a cornerstone for political decision making in the modern EU (Cameron & O’Riordan, 1994).

Case Study II: Hormone-Raised Beef Because of a number of incidents involving illegal drug applications to farm animals, food safety became a rising concern in the EU during the 1970s. As a result, the European Commission proposed legislation to ban, entirely, the use of hormone products in the rearing of beef and veal (WTO, 1997, p. 9). In the 1980s, following reports of significant use of illegal growth-promoting hormonal substances in a number of EU member states, several Council Directives were

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passed, effectively banning the use of hormonal substances, except for therapeutic purposes (WTO, 1997, p. 10). However, in the USA, as in a number of other countries, such as Canada, Australia, New Zealand, and Japan, the use of hormones is permitted for therapeutic as well as for production purposes. From a US regulatory viewpoint the application of the hormones in question is safe when used for the promotion of growth in accordance with good animal husbandry practices (WTO, 1997, p. 30). Consequently, the EU enacted a ban on the import of hormone-raised beef and veal. In the years prior to the ban US exports of beef and veal to the EU “averaged in the hundreds of millions of dollars” (p. 17), and, most importantly, trade in beef was growing at about 30% a year. After the ban was enacted in 1989, US beef exports to the EU plummeted to nearly zero (p. 17). The USA, Canada, Australia, and New Zealand held joint consultations with the EU on the issue but failed to reach a mutually satisfactory solution. Hence the USA proceeded to sue the EU before the WTO on the grounds of an unnecessary restriction of trade under the General Agreement on Tariffs and Trade (GATT). Following formal procedures, the Dispute Settlement Body (DSB) of the WTO established a panel to investigate and possibly settle the matter. Because the dispute revolved, to a large extent, around scientific matters, the panel decided to conduct an expert hearing on the issue. Based on a list of names provided by the Codex Alimentarius Commission (Codex) and the International Agency for Research on Cancer (IARC) the panel selected six experts to advise them: Dr. Francois André, France; Dr. Dieter Arnold, Germany; Dr. George Lucier, USA; Dr. Jock McLean, Australia; Dr. Len Ritter, Canada; Dr. Alan Randell, Codex Secretariat. The composition of the panel has been explicitly spelled out here as an important input to epistemic community and cultural bias methodology. The panel ruling and the documentation of the case illustrate that the joint meeting with the experts was of crucial importance for the dispute settlement process (WTO, 1997, 1998). Although the original panel ruling (WTO, 1997) was overturned on certain accounts of appeal, the EU eventually lost the case because its regulatory process and, in particular, its use of scientific expertise was found not to be consistent with WTO rules. The main issues are briefly described below. Risk Assessment The first and foremost argument against the EU ban on hormone-raised beef was the absence of a proper risk assessment (WTO, 1998, p. 99). For the WTO, “An assessment of risks is, at least for risks to human life or health, a scientific examination of data and factual studies; it is not a policy exercise involving social value judgements made by political bodies” (WTO, 1997, p. 191). Article 5.1 of the GATT agreement on sanitary and phytosanitary measures (SPS) states that

(…) members shall insure that their (…) measures are based on an assessment, (…) of the risks to human, animal or plant life or health, taking into

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After prolonged deliberation, the panel ruled that the EU had not met its burden of proof in that the (scientific) studies it referred to actually fulfilled the requirements of a proper risk assessment (WTO, 1997, p. 196). International Standards Similarly, the panel also found that the respective EU standards were not in accordance with international standards (WTO, 1997, p. 186ff.). There, the panel was, in particular, referring to the recommendations published by Codex. Codex publishes recommendations, such as Acceptable Daily Intakes (ADIs) or Maximum Residue Limits (MRLs). However, Codex recommendations are not binding. One of the expert committees, on which Codex relies, is the Joint Food and Agricultural Organization/World Health Organization (FAO/WHO) Expert Committee on Food Additives (JECFA). The goal of JECFA’s evaluation of veterinary drugs is:

(…) to establish safe levels of intake by setting Acceptable Daily Intakes (ADIs) and to develop Maximum Residue Limits (MRLs) when veterinary drugs are used in accordance with good veterinary practice (WTO, 1997, p. 181). Despite its nonbinding character, the panel took the Codex recommendation as the international standard from which the EU ruling could only deviate on scientifically justified grounds. For the EU experts, however, deviating from Codex recommendations was justified because, in the past, drug abuse had occurred and good veterinary practice could not necessarily be assumed. Conclusive Evidence The EU scientists had submitted the hypothesis of a “potential genotoxicity of hormones” based on tests carried out with elevated doses of oestrogen (WTO, 1997, p. 202). However, data on genotoxicity at low levels (roughly equivalent to the levels expected in meat) were not available at this point. The panel dismissed the claim because the EU scientists did not provide conclusive evidence “(…) that an identifiable risk arises from the use of any of the hormones at issue for growth promotion purposes in accordance with good practice” (WTO, 1997, p. 205). It should be noted that for the hormone melengestral acetate (MGA) an “almost complete absence of evidence” in the panel proceedings was observed. However, this lack of evidence did not mean that no scientific studies were available. Rather, two of the appellees, the USA and Canada, “declined to submit any assessment of MGA upon the ground that the material they were aware of was proprietary and confidential in nature” (WTO, 1998, p. 78f.).

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Precautionary Principle The EU claimed that the application of the “precautionary principle,” as a general customary rule in European environmental policymaking, places “the attainment of a high level of consumer protection before the commercial interests of farmers and pharmaceutical companies” (WTO, 1997, p. 86). Moreover, the customary application of the precautionary principle affects, not only political decision making, but even the scientific assessment of risks (WTO, 1998, p. 7). The panel concluded, nevertheless, that although governments may act from a perspective of prudence and precaution, the precautionary principle does not override the provisions of the respective agreements under the WTO (1998, p. 46). Summary of Case Study II Casting aside for the moment the legalized setting in which the dispute took place, the case study outlined above, to a large extent, mirrors the key aspects of the case study on sewage sludge regulation. First, it again shows the differing usage of scientific expertise in the regulatory process. From a US point of view, scientific expertise should not be influenced by political considerations and judgments should strictly adhere to scientific principles. The European experts, on the other hand, having experienced the difficulty of enforcing “good veterinary practice,” were led to opt for much larger safety margins than their North American colleagues. The opposing viewpoints are reinforced by differing normative standards. For the appellees’ (USA, etc.) scientists, the absence of evidence of harm is sufficient to justify lenient standards or no regulatory action. For the appellants, experts’ positive evidence of no harm occurring is required to legitimize lenient or no regulatory intervention. Last, but not least, the approach by the EU scientists was consistent with the overall regulatory framework provided by the Maastricht Treaty with its emphasis on the precautionary principle as a yardstick for policymaking. A formalized risk assessment of the kind required by the GATT/WTO

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agreements, therefore, would very likely not change the European evaluation of the issue, as the fundamental preconditions for regulatory (in)action would still not be met. Table 4 summarizes the key positions of the opposing parties during the WTO dispute settlement process.

A Synthesis of Multiple Perspectives on Regulatory Decision Making In the wake of globalization, previously autonomous areas of society are increasingly exposed to outside influences. The level and degree of regulation in the areas of environmental protection and public health are closely linked to the questions of legitimacy, sovereignty, and democratic decision making. Within the EU, the concept of subsidiarity was introduced to ensure that regulatory decision making is located at the most appropriate level. Whether this objective has been met cannot be discussed here, but its mere provision illustrates the desire of the involved regions and nation states not to be left at the mercy of an overburdening and remote bureaucracy. Yet, the mechanisms of international trade may replace the asserted local authority with an even more remote and non-transparent decision-making structure. Naturally, local environmental and public health regulation can turn out to be a stumbling block for the unrestricted flow of goods and services between trading blocks (incidentally, sewage sludge regulation may lead to grain export restrictions between the USA and the EU). As the WTO agreements indicate, the hope is that science provides the “objective” yardstick that is necessary to harmonize differing standards. This hope is, at best, naive. The probabilistic scientific findings in the area of environmental and public health risks cannot provide the desired “yes” or “no” answers. Cultural biases, political convictions, and (personal) world-views enter not only the interpretation of scientific evidence, but influence even the generation of scientific insights (in the case of the sewage sludge regulation, pot studies vs. field studies, or MEI vs. HEI), and the selection of evidence (earthworm vs. soil microbes), thus, having a massive bearing on the shape of the final regulation. The two case studies are, in various aspects, consistent with the notion of “epistemic community.” Epistemic communities espouse certain notions of validity and certain causal beliefs and, perhaps most importantly, they pursue a common policy enterprise, which may also be described as the “mission” of the respective epistemic community. However, and different from Haas’ (1992) original proposal, in the two presented case studies membership in the respective epistemic communities was strongly dependent on cultural affiliation, and national background, in particular. In the case study on sewage sludge regulation, research results generated by members of each epistemic community (Northern American/European) were known and available to all. The members of the two communities even attended the same conferences. So, professional training and scientific knowledge were perhaps as comparable as possible, taking into account

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the different (national) educational systems involved. Given this shared knowledge base, the differences in the proposed safety levels are striking. Two main factors appear to be responsible for this marked divergence of standards: the value basis shaped by cultural affiliation of the involved scientists and/or the regulatory process. In both case studies, the European experts felt a strong obligation to adhere to the precautionary principle. By contrast, in the USA, acceptable environmental change and cost-effectiveness provide a legitimatory basis for much more lenient standards. Differences in the regulatory process concern the timing of expert input. In Europe, in both case studies, the major expert input occurred prior to drafting the legislation. In the USA, at least in the sewage sludge case, the important expert intervention took place after the regulatory agency had issued the first draft. Although this pattern is generally reflected in the literature, the actual relevance of expert consultation prior to, or after issuing the draft legislation has not been fully explored. Thus, the question is not whether “value interference” occurs during expert consultation, but rather when and how. Within the context of this chapter, it appears that under an adversarial mode of rule making experts are held to locating their policy choices upstream in the epistemological process. Under a consensual mode, a certain degree of political sensitivity on the part of the expert is tolerated, if not expected. From a regulatory science perspective it is, thus, evident that expert advice in policymaking needs to be viewed and interpreted within the political context it occurs. Problems arise when (national) regulatory standards are placed and evaluated outside their frame of reference. This holds particularly true if the evaluator(s) is/are unaware of their own culturally preconditioned biases when putting into question the validity and legitimacy of the “deviating” expert community. It is universally accepted that challenges to claims of validity are a fundamental and integral part of the scientific endeavor. However, as the discussion at the Schloeßmann workshop in November 1998 has suggested, the role of the scientist should, perhaps, be separated from the role of the expert. When scientists act as policy advisors or regulatory scientists, they are invariably entering a politicized sphere. Thus, separating environmental regulation into “science-based” and “policy-based” approaches (as the EPA argues, perhaps in an attempt to preempt potential criticism; EPA, 1995, p. iii) appears to be more driven by political rhetoric, than by a profound appreciation of the issue at hand.

Conclusion When regulating identical environmental and public health risks the USA and the EU arrive at considerably different conclusions. In the presented case studies the standards developed are largely a result of scientists providing expert advice for policymaking. The interesting finding is that the actual knowledge base, the respective experts drew upon, was not contested. The different expert communities were rather separated by the interpretation of the available scientific evi-

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dence. The interpretation of scientific evidence for policy advice is, to a large degree, influenced by shared values within the respective epistemic community, cultural factors, and, quite possibly, political interests. The epistemic community formation is a useful theoretical approach for analyzing environmental and public health standard setting. However, since the epistemic community approach was developed within the context of international policy coordination, it has not adequately addressed the issues of regulatory science and cultural contingencies in decision making about risks. From a regulatory science point of view, on the other hand, we have to realize that the focus of most of the current inquiries into the standard setting process has been too narrowly defined. While we still debate standard setting as a national prerogative in countries, such as Germany, the United Kingdom, France, and the USA, just to name a few, globalization moves on. We should wake up to the fact that important regulatory decisions are made on the international level, under a completely different set of rules and perhaps employing a different epistemic approach than we have been used to so far. Therefore, it seems more than timely to globalize the scope and analytical framework of the regulatory science approach. Environmental and public health standards are a reflection of the cultural and social context in which they occur. This applies, not just to the regulatory process, but also to the culturally bounded interpretation of probabilistic scientific evidence. However, because of the globalization of markets and international trade agreements an increasing number of standards and regulations are set by international bodies or organizations. These new regulatory systems are not yet subject to the same checks and balances as it is a characteristic of the national systems. There is an urgent need to investigate decision making on an international level and, in particular, the roles of expert advisory committees in the regulatory process. It is necessary to expand these studies beyond issues, such as ozone depletion and global warming. Although less visible in the media, food safety or product safety standards affect a large number of people and have huge economical and financial implications. Taken together, this then raises the question of the future role of the expert, in particular the scientist, in a globalized economy and the respective globalized institutions. Is their role to provide purely “scientific” input regardless of political implications? How can science input into policymaking be “objective” if the evidence itself is open to interpretation? Perhaps somewhat contrary to the traditional view on science and scientists, it might still be early days in the formation of a global science culture.

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Chapter 2 Experts’ Discourses as Judicial Drama or Bureaucratic Coordination: Family Debate in the United States and Germany Wolfgang Walter Institute for Sociology, University of Freiburg, Germany [email protected]

This study deals with the influence of experts in political counseling. It analyzes a comparative case study in the field of family policy. The starting point is a striking difference in the approaches adopted since 1980 in American and German policies for families, children, and their welfare. In the US, the obligations of (absent) fathers to financially support their families has been vigorously enforced, as have work requirements for single mothers; welfare benefits as lifelong entitlements have been abolished on the federal level, and the respective programs of the individual states have been substantially curtailed. Moreover, highly critical pronouncements on so-called “unconventional family forms” such as single-parent, divorced, or step-families, as well as on the moral situation of American youth, presumably caused by these conditions, have become widespread. In Germany,1 families have been gradually relieved of the costs of raising children; parents (i.e., in most cases mothers) can take parental leave for up to three years (with modest financial support), and family members responsible for the care of frail elderly relatives have been granted support by care-provision insurance programs. The public debate has treated families as being rather similar; the distinction between “conventional” and “unconventional” families is less important than that between families and “non-families,” that is, persons or households without children or other dependents. Likewise, the problems attributed to families have been located not in the moral, but rather in the financial sphere.

1 For the period prior to German unification in 1990, the term “Germany” used in this paper refers to West Germany, that is, the Federal Republic of Germany; for the period after 1990, to the geographical unit bearing the same name that combines former West and East Germany. For several reasons, unification has led to continuity rather than discontinuity in the dominant public views and the state’s policies on the family under the auspices of the West German model (e.g., Gerlach, 1996, p. 121ff., p. 165ff.; Kaufmann, 1990, 1995).

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I will argue in this chapter that these differences can be attributed to the institutional resources, strategies, and world-views of the experts who shape the public debate on the family in the two countries. I will try to show that two sets of factors, the organization of the field of experts and their strategies, account for the characteristics of the debate on family issues and the resulting policies. Referring to a well-established distinction found in comparative legal studies, I will denote the difference between experts’ discourses in the US and Germany with the terms “adversarial model” and “inquisitorial model.” In the first section (Experts as Advisors), I review older approaches on the utilization of the social sciences with regard to my own research strategy. In the second section (Experts and Policy Change: A Comparative Case Study), I provide an overview of family debate and family-policy developments in each country, to explain the different paths of policy development arising from the specific linkage between the institutionalization of expertise and experts’ strategies—adversarial and inquisitorial. In the third section (Methodological Issues in the Study of Experts), I analyze three aspects of the account: the societal embeddedness of experts’ discourses, the rhetorical content of texts, and the self-reports of experts. My concluding remarks relate the case study to my broader theme, that is, the sociology of experts.

Experts as Advisors The Utilization of Social Science The role of experts in the scientific counseling of policymakers has been studied for a long time with—it seems—largely inconclusive results. In this chapter, I will deal mainly with policy experts drawn from the social sciences. Even though my analysis is restricted to this subject, there are still questions regarding the extent of such experts’ influence and their impact on policies, and the policymaker’s reception or rejection of advice. Part of the problem is that the two main analytical frameworks, the “dual model” and the “conceptualizing utilization” model, result in conflicting interpretations and unanswered questions. The Dual Model and the Study of Scientific Counseling The “dual model” (Mayntz, 1994, p. 12), a framework which was in use from the post-World War II era until the late 1970s, assumes that polity and science are two distinct institutions, each with its own rationality. Whereas the polity is a sphere where maximizing societal power is a main goal, science aims at maximizing knowledge. The results of the scientific counseling of policymakers were seen either as Enlightenment, through which scientific rationality was to be transformed into political practice, or technocracy, through which political power and scientific expertise would create a powerful coalition to suppress the democratic process (Habermas, 1978).

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Polity and science were portrayed in a rather systematic way, which made the conclusions (“Enlightenment” vs. “technocracy”) plausible and fruitful for empirical studies. But, it was virtually impossible to confirm the presumed effects in either direction. Empirical evidence was interpreted as showing the irrelevance of the social sciences for the political process (Wingens, 1988). The problem lies in the assumption underlying the dual model, namely, that the political and scientific spheres have distinct forms of rationality, criteria of validity, and ideals of efficiency. Because the polity is a system of actors exercising power to gain societal control, it needs scientific expertise, but at the same time, it is unable to work with it adequately. The same is true in the other direction; science may imply a certain “mission” to enlighten policymakers, but cannot be translated into power-oriented action. Conceptualizing Utilization Out of the disappointment with the older approach, grew a new one, based on Carol H. Weiss’s (1983, 1991) insight that the main function of social scientific knowledge is of a conceptualizing nature, so that political discourse is framed by scientific terminology. What influences policy and gives it a more realistic and reliable foundation is not ideas or data, but rather semantics as a link between the scientific and political discourses. In its departure from the assumptions of the dual model, this approach focused on the process of utilizing scientific conclusions in political communication. This idea was fruitful in further research, but it deliberately abandoned the question posed by the older approach, namely, how actors in different social spheres (politics and science) influence each other. Specifically, the utilization approach had three characteristics: Instead of reconstructing the interaction of scientists and policymakers, utilization research aimed at describing the osmosis of concepts between the two spheres. The study of utilization lost empirical depth by proposing a general model of scientific expertise whose main feature was its conceptualizing use by political actors. The conceptualization approach was not interested in actors, replacing agents with anonymous processes of knowledge dissemination.

An Alternative Research Strategy The study of scientific counseling and its utilization seems to be torn between the alternatives of a philosophically profound, but empirically unacceptable approach and a simpler model that provides more empirical evidence, but at the cost of neglecting many relevant aspects. There are two sources that serve as a starting point for a new approach to the study of the role of scientific expertise in the polity. The first is a theoretical, macro-sociological perspective, associated with the notion of a “knowledge society”; the second stems from the constructionist study of social problems.

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The Knowledge Society The concept of the “knowledge society” is derived from theories of so-called “post-industrial” society. The main claim of this approach is that knowledge has become an integral part of the institutional structure of modern societies (Stehr, 1992). In modern times, different types of scientific knowledge play an increasingly important role in the economy. There are natural science-based industries such as the chemical industry, where knowledge has become a major productive force. There are also sectors of the service economy that depend more and more on social scientific knowledge, such as marketing and personal services, as well as professions such as social work or therapy that are almost exclusively based on it. Moreover, social scientific knowledge has become a means of social control and policymaking with the expanded use of official statistics, social reporting, and scientific advisory capacity vis-à-vis the State, which Giddens (1990) has summarized under the notion of “surveillance.” Many theorists of the “knowledge society” see, in this process, the rise of a new societal class of experts and advisors who play a central role in social change (either furthering or impeding it) by “defining die situation,” that is, by constructing “social problems” and giving advice on possible solutions (Stehr, 1992). Access to knowledge and the ability to use it is becoming a major resource. This is leading to the development of specialized roles for “knowledge workers,” professionals, advisors, and the like. As a consequence, the “knowledge society” is developing a genuine form of social stratification in addition to the class structure of the industrial society. Bourdieu (1976) analyzes the social structure of experts with his general concept of a “field,” seen as an ordered set of social positions and cultural goods. Experts are equipped with social, economic, and cultural capital, that is, networks, financial means, and educational backgrounds. This set of resources is unequally distributed in the social space where expertise is provided and obtained. The main cultural goods at stake in the fields of experts are contested ideas. Experts use their resources (academic titles, reputations, access to financial means, media, rhetorical skills, etc.) to compete for hegemony in their field, that is, for public acceptance of their ideas, as opposed to those of their competitors. This model is mainly derived from Max Weber’s sociology of religion (Bourdieu, 1971a, 1971b); like religious leaders, experts compete for the acceptance of their proposals by the lay public. Groups of experts form antagonistic camps committed to the advancement and defense of “orthodoxy” versus “heterodoxy,” relying on their resources and claims to hegemony in matters of ethical principles and social norms. The Construction of Social Problems The second set of ideas used in revising the conventional paradigms on scientific counseling stems from the qualitative analysis of social problem construction. The link between this approach and the considerations mentioned above lies in the definition of the expert as a strategic player who attempts to convince others of their views on issues. The constructionist approach to social problems

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(Gusfield, 1976; Holstein & Miller, 1993; Spector & Kitsuse, 1977) stresses the active role of experts in making claims and trying to set the agenda within a field of policy or debate. Experts are seen as “constructing reality” in their respective areas, mainly by rhetorical means. Although this is a contested idea, it is at least plausible that claims have to be routinely supported by the framing of research questions, the organization of evidence, and its convincing presentation. Recent developments in this approach do, however, admit that there are limitations set by societal conditions, be they the structure of arenas in which social-problem discourses take place (Hilgartner & Bosk, 1988), cultural traditions (Griswold, 1994, Chap. 4), or welfare states (Gusfield, 1989). A New Approach to the Sociology of Experts I see my own approach of combining these two sets of considerations as a means to redesign research on the role of experts in three ways: The research question aims at reconstructing the active contributions of groups of experts to policy development. How is agenda setting and program development influenced by the strategies experts adopt in presenting their considerations within a contested area of political debate? The policy developments to be explained in the comparative case study are described in the next section. The analytical model focuses on experts’ strategies, on the one hand, and the institutionalization of the fields where experts have social and intellectual positions, on the other (see also Singer, 1990). This linkage between field and actor leads to the development of a comparative model of the debates on the family, in the two countries, adapted from comparative law (see Institutions and Strategies). The central social actor is the “expert,” who creates and disseminates knowledge—the institutional context of policymaking. Therefore, the study of experts is shaped by the relational definition of the expert as a public actor who manages knowledge production and reception (Hitzler, 1994). This chapter discusses several methodological consequences of this perspective (see Methodological Issues in the Study of Experts).

Experts and Policy Change: A Comparative Case Study Family Debate and Family Policy in the US and Germany The subject of the comparative case study is the political debate on the family in the US and Germany. The term “family debate,” as used here, denotes all forms of public discussion of the situation and development of the family as a societal domain (Skolnick, 1993). The family debate is intended to define the mutual responsibilities of family members and of the family as a whole vis-à-vis other areas of society, for example, the economy or the polity.

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After World War II, the Federal Republic of Germany and the US affirmed the same dominant official family ideal, the so-called modern “nuclear” or “traditional modern” family—the lifelong married couple consisting of a male breadwinner (and head of the family) and a female homemaker, together with their biological children (Moeller, 1993, for West Germany; Skolnick, 1993, for the US). This ideal underwent a reformulation in the late 1960s and early 1970s, and since the 1980s conservative administrations in both countries have made “The Family” a major issue on the political agenda. Their family policies can be seen as attempts to adjust the ideal to the changed reality of family life since the 1960s. Although the starting points of the family debate and the climate of policy change were similar at the beginning of the 1980s, the results have been almost diametrically opposite. Whereas the American family debate has produced a host of diverse definitions and openly contradictory representations of family forms as well as assessments of their change (Popenoe, 1988; Stacey, 1994a), its counterpart in Germany has tended to broaden the family definition judiciously, which has led to a less ideology-laden discussion emphasizing the similarities of all life situations in which children are raised (Bundesministerium für Familie und Senioren, 1994; Nave-Herz, 1994). In other words, families are seen in terms of their similarity, which does not mean that all family forms are regarded as equivalent, but does imply that no type of family should be discriminated against. As a result, the American policy arena resembles a “cultural war” (Berger & Berger, 1983; Popenoe, 1993c) with heated disputes over the legitimate image of the family and the correct evaluation of family change, especially between the advocates of a strictly traditional family model, on the one hand, and the promoters of a plurality of alternatives, on the other (Popenoe, 1988, vs. Stacey, 1994a). In Germany, the notion of the two-generation group as the core of a loose consensus on the family serves as a broad umbrella under which a debate on the means of giving practical support to families is being conducted with far less acrimony. Most scholars agree that there is a gulf separating families (i.e., people with children), on the one hand, and non-families (singles, childless couples), on the other, although interpretations differ (Kaufmann, 1990, 1995, vs. Beck & Beck-Gernsheim, 1995). Likewise, differences can be found in the area of policy development (for the following: Walter, 1997a). In the US, various initiatives and legislative proposals have aimed at reestablishing and reinforcing self-reliance, financial support obligations for family members, and a commitment to the family in a traditional sense. Prominent examples are the Family Support Act, the stricter implementation of support obligations for fathers, federal programs and state initiatives to move single mothers into the workforce, attempts to reduce abortion rates, and the dismantling and replacement of Aid to Families with Dependent Children (AFDC) which began as a federal financial support program for children in (widowed) single-parent families. After years of public and political debate, AFDC was finally abolished and replaced by the Personal Responsibility and

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Work Opportunity Reconciliation Act of 1996 (PRWORA). Currently there are different programs in each of the 50 states under an umbrella federal program— Temporary Assistance for Need Families (TANF). In Germany, three goals are aimed at by family policies and policy proposals. First, the broadening of the legal definition of the family is intended to improve the situation of children born out of wedlock and of children after divorce. These children have gradually been granted the same status as the children of married parents, which has also improved the legal status of divorced and unmarried fathers. Second, family members, especially the male wage earner who was central in the traditional family model, have been relieved of (some of) their financial obligations. There are minimum criteria for the child tax credit, promulgated by the German Constitutional Court; court decisions have eliminated the support obligations of adult children for their elderly parents, and there have been sustained debates and pending legislation on the equalization of family burdens. Third, there have been attempts to acknowledge and to financially support persons who fulfil their family responsibilities. Although the latter policies are gender-neutral, women are almost exclusively the beneficiaries of the parental-leave allowance, a credit in the pension system for raising children, and careprovision insurance, which funds care for frail, elderly relatives within the household (“cash for care”).

Institutions and Strategies Since 1980, there have been two distinctly different patterns of family debate and family policy in the two countries: ideological antagonism and a strong emphasis on family obligations (US) versus moderate debate and reduced/subsidized family obligations (Germany). As preconditions of the policy change in the 1980s were similar in both countries (the official family ideal, Conservative administrations), the reasons why debates and policies have moved in opposite directions are to be sought in the activities of experts and their strategies within the field of experts. My paradigm for analyzing the linkage between institutions’ and actors’ styles (and the differences in outcomes) is a typification derived from comparative legal theory. The Continental and the American legal traditions have been differentiated along the lines of the inquisitorial versus the adversarial models (Thibaut & Walker, 1975, pp. 22–27). The distinguishing criterion is the control exercised by third parties. In the Continental tradition, trials are strongly influenced by judges, who have extensive powers to supervise and exercise initiative in directing the proceedings. They play an active role in questioning witnesses and in framing or reformulating issues. In the common law tradition, control is up to the contending attorneys, who steer trials by making competing claims, whereas the third parties (judge and/or jury) respond to and decide on their motions.

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Judicial Drama in the US The agenda-setting process in the American debate follows the adversarial model. It is a judicial drama performed before the “jury” of the American public and Congress. There is little or no institutionalization of the debate in terms of laws, official committees, and so forth. By founding organizations and think tanks, protagonists create resources for the claims-making process (Stacey, 1994a). They have much latitude concerning appropriate procedures. Not only are there different views of the problem, but also of legitimate ways to create and disseminate knowledge (using scholarly papers, unbiased reports, pamphlets, or mass demonstrations). Consequently, different forms of rhetoric exist to explain some of the antagonistic exchanges between protagonists (Popenoe, 1993a; Stacey, 1994b). The prevailing type of expert in the US is the “moral entrepreneur” (Becker, 1973) who invests resources in moral causes. Experts in the field of the American family debate are “crusading reformers,” as Becker calls the prototype of the “moral entrepreneur.” Most of the protagonists in the American family debate believe they have a “moral” mission to fulfil. Crusading reformers are best suited to the adversarial structure of the field of family debate in America (and vice versa!). For one group of experts, reviving “family values” is a means to heal every ill in American society (Blankenhorn, 1995; Blankenhorn, Bayme, & Elshtain, 1990) or—to put it positively—forms the core of a new communitarian basis of societal cohesion (Etzioni, 1993; Whitehead, 1992). This is the dominant or “orthodox” view, which means that this group has the resources and the ideational background to define the main issues of the debate. A group that could be referred to as the “academic intellectuals” takes the “heterodox” position. Their self-image centers around the duty to defend and promote both the truth and the fundamental values of individual freedom and social equality. Consequently, they regard an academic critique of the claims of the “orthodox” group as their main contribution to the family debate (Coontz, 1992; Skolnick, 1993; Stacey, 1993). Bureaucratic Coordination in Germany The German family debate tends more toward the inquisitorial model. On the whole, it centers around bureaucratic inquiry initiated by, and carried out for the government. Many protagonists in the debate are appointed by the state and integrated into the more consensual discussion with family associations and the public. Scientific counseling is highly institutionalized, including permanent and ad hoc commissions (Walter, 1994b, 1995). Scientific studies and public reports are the most prominent ways of disseminating knowledge. The prevailing type of expert in Germany is the “scientific advisor,” as described by Brooks (1964). They serve on committees and working groups within the different layers of the bureaucratic hierarchy. Their expertise serves several functions, from providing technical information to designing political programs. All these tasks are tied to the demands of the political institutions in which advi-

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sors serve. This leads, on the side of policymakers, the administration, and the public, to a “double-bind.” advisors are expected to provide an unbiased picture of the situation and—at the same time—engage in a political cause, that is, to adopt a mixture of detachment and engagement, using terms from Norbert Elias’s (1987) sociology of knowledge. As Brooks’s (1964) studies of American scientific counseling institutions show, this type of actor is not confined to Continental European polities, although it developed there in an unprecedented way, especially in the country where modern bureaucracy was invented, namely, Germany. There, we find a ubiquitous system of scientific counseling as part of the bureaucratic coordination process (Murswieck, 1993). Through the close coordination of political discourse and scientific expertise in the bureaucratic apparatus, this actor-institution link encourages a preference for political approaches in accordance with the overall orientation of public policy: policies of financial support for families under the auspices of the Continental welfare state (Walter, 1997a). The dominant position is formed by the network of scientific advisors (cf., e.g., Bundesministerium für Familie und Senioren, 1994; Kaufmann, 1990, 1995; Nave-Herz, 1994). Given the state-subsidized field of expertise on the family, experts have a near-monopoly on political counseling. Many of the ideas that have proliferated in the German debate were originally developed in official reports, written at the behest of and for state institutions by commissions appointed by these institutions and staffed by social scientists from family-relevant disciplines (Walter, 1995). The counterpart to the orthodox position is not as clearly visible as in the case of the “adversarial model.” Criticism is rare and episodic; the “heterodox” position lacks a clear-cut type of counter-expert. Nevertheless, some voices can be identified, most notably those who see family change as a more fundamental process of modernization that is leading to the end of the traditional modern family (cf., e.g., Beck & Beck-Gernsheim, 1995).

Methodological Issues in the Study of Experts My aim in this section is twofold: first, to present methods adequate to the framework introduced above and, second, to contribute to a deeper understanding of the dynamics of the field and experts in the family-related agenda-setting process. My starting point is the agency model of the “expert,” as discussed in interactionist approaches to the construction of “social problems” (Gusfield, 1963; Spector & Kitsuse, 1977). According to this theory, experts are actors in a field where a situation is defined and a problem is constructed, resulting in proposals for the agenda of possible solutions. Three methodological consequences of this approach will be discussed in this section. As described above, this view includes the assumption that the conditions for the interaction process are given, and must be managed and integrated into action strategies. I analyze this em-

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beddedness with respect to cultural traditions and welfare-state profiles in the two countries. The main activity in the field of expertise consists in claims making. Therefore, the second method can help us analyze written documents in terms of their persuasive content. The detection of rhetorical means aims at a deeper understanding of the construction of problem images. The third method is the use of the expert interview, with which experts’ strategies in the field are reconstructed from their self-reports. I conclude this section with some remarks on the relations of these three arenas: society, written communication, and individual action.

The Embeddedness of the Field Actors and their fields are embedded in a larger societal framework. Although interactionist approaches have long ignored this, it is one of the main concerns of newer developments (Gusfield, 1989; Holstein & Miller, 1993) that take into account the embeddedness of social interaction. Because experts construct “reality” (or claims to reality), the process of construction is embedded in a meaning horizon constituted by the overall societal framework that reduces or increases the plausibility of claims (“cultural construction”: Griswold, 1994, Chap. 4). Especially in the distinction of orthodoxy versus heterodoxy (or the dominant group of experts and their critics), a decisive factor is how much each group is supported by dominant ideas and policy trends. These trends can be derived from comparative social science. In a nutshell, the US has a market-oriented Liberal, Germany a Catholic-Conservative welfare state and political culture (Walter, 1997a, 1997b). For the US, the specific approach to “the family” is a combination of a traditional family ideal, the principle of self-reliance, a maternalist policy chiefly intended to help single mothers, and policies aimed at alleviating poverty, as well as the exclusion of the middle class from these policies. Because the decisionmaking process in the political system is decentralized, oriented to special interests and not guided by an overall political rationale, it has made possible expanding policies and increasing their coverage, especially by loosening eligibility criteria and increasing AFDC support levels in ways contrary to the overall framework of economic liberalism. Because the (white) middle class is one of the main groups in the electorate and does not benefit from welfare policies, political support for these measures has been gradually waning in reaction to the deterioration of the economic situation of the middle class. In Germany, the combination of ideas, policies, and interests related to “the family” that evolved in the post-war period consists of three elements: the traditional family ideal (including the principle of subsidiarity, with the state required to support all families), the financial support of motherhood and the family in general through family allowances and tax credits as a way of equalizing the living conditions of families and non-families, and the inclusion of the middle class

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in this welfare-state system of family support. Family policies have been gradually consolidated and adjusted to the changing realities of family life. Differences among family forms or living arrangements are scrutinized with respect to the amount of horizontal equality between those who have children (with all the resulting financial burdens and social responsibilities) and those who do not. As a result, “the family” is, in principle, viewed more broadly (a family is every living arrangement including children and other dependents). Also, this broader family model serves as the object of the respective policies. Based on the bureaucratic tradition, the system of entitlements stabilizes programs of family support and facilitates their expansion. The interest of the middle class in the maintenance and expansion of financial support, which it views as essential to preserve its status, has contributed to this process.

The Use of Rhetoric In recent research, special attention has been paid to the rhetoric of texts. Rhetorical analysis aims at revealing mechanisms by which claims are made persuasive. Based on the so-called “new rhetoric” (Perelman & Olbrechts-Tyteca, 1969; Toulmin, 1958), various methodological approaches have been developed in different areas. Rhetoric, or the study of persuasion, deals with aspects of communication that make a particular message convincing and provide incentives for a specific course of action. In other words, it deals with the emotional and pragmatic aspects of communication. In the following paragraphs, I will analyze an article from the “orthodox” camp in the American family debate. It is not only a widely-known text, but also representative of a certain line of argument typically used by this group (Blankenhorn, 1995; Blankenhorn et al., 1990; Etzioni, 1993; Popenoe, 1988, 1993a, 1993b, 1996; for an overview: Stacey, 1994a, 1994b). The argument is roughly as follows: Anyone who takes a close look at the situation of children today will find that all living arrangements, except the so-called “nuclear family,” cause social and psychological deprivation and that the absence of the father in the home is the single most important factor in producing this effect. The main point I wish to make, using the following example, is that the persuasiveness of the text depends on the sequence of assertions, not on how plausible they are in the light of scientific evidence. Barbara Dafoe Whitehead (1993), at the time a research associate at the Institute for American Values, is the author of an article entitled Dan Quayle was right, alluding to an incident in which the then Vice-President accused a fictional TV comedy-series character (“Murphy Brown”) of exacerbating America’s deteriorating moral situation by having and raising a child as an unmarried mother. Although Dan Quayle was much ridiculed for his moralizing stance, Whitehead uses him as her starting point, which can be seen as a bold rhetorical move. To analyze the sequence of arguments, I have subdivided the article into three parts. The first deals with the description of a conversion. Under the head-

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ing The Education of Sara McLanahan, Whitehead describes this in the following words: In 1981 Sara McLanahan (...) read a three-part series by Ken Auletta in The New Yorker. Later published as a book titled The underclass, the series presented a vivid portrait of the drug addicts, welfare mothers, and school dropouts who took part in an education-and-training program in New York City. Many were the children of single mothers, and it was Auletta’s clear implication that single-mother families were contributing to the growth of an underclass. McLanahan was taken aback by this notion. “It struck me as strange that he would be viewing single mothers at that level of pathology.” (p. 60f.) Whitehead then describes McLanahan as a supporter of the liberal view of family change who subsequently adopted Auletta’s view. The implication of the first part, upon which the persuasive strategy is built, is that newly-available knowledge (i.e., journalistic reports and not-so-mainstream research) had convinced the once liberal Sara McLanahan that single motherhood was bad for children. In the second part, Whitehead further supports and broadens her message by linking several claims: For the vast majority of single mothers, the economic spectrum turns out to be narrow, running between precarious and desperate. Half the single mothers in the United States live below the poverty line. (...) Moreover, the poverty experienced by single mothers is no more brief than it is mild. (...) Single-mother families are vulnerable (...) to a particularly debilitating form of poverty: welfare dependency—[a point that is then elaborated on for half a page] (...) Uncertainty about money triggers other kinds of uncertainty, (p. 62) Examples offered are changes in employment, household composition, and frequent changes of address. The economic hardships of single mothers, thereby, become a result of their unconventional family form, especially the absence of a father as the chief wage earner and central figure for the moral education of the child. Portraying children as “conservative creatures,” Whitehead concludes: “All this uncertainty can be devastating to children” (p. 64). This is intended to support Dan Quayle’s point: Single motherhood undermines the child’s education. Having stretched her argument thus far, Whitehead “invests” the first two steps, conversion story and claims-extension, in the next part, which is constitutive for the “orthodox” group in the American family debate: Sara McLanahan’s investigation and others like it have helped to establish a broad consensus on the economic impact of family disruption on children. Most social scientists now agree that single motherhood is an important and growing cause of poverty, and that children suffer as a result. (p. 64) Public arguments are intended to present a message and convince people to accept them. Because the public is not a scientific community with a specific rationality and standards of validation, success depends on skill in using rhetorical

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means. Therefore, rhetorical analysis reveals the creative side of constructing a public family image in a contested field of family debate.

The Reconstruction of Experts’ Strategies The term “experts’ strategies” denotes the competitive side of public discourses. To a certain extent, they can be uncovered by analyzing documents, but as the strategies behind a particular rhetoric always remain implicit, a different method must be used to unearth motives and plans of action. Expert interviews, a form of qualitative interview, are used to study the specific perspectives of experts. Interviews help in analyzing perceptions of family change, the strategies by which the participants in debates influence agenda setting and policymaking and the perception of embeddedness. Methods of performing expert interviews have been developed in qualitative research and in elite studies (Moyser, 1988; Walter, 1994a). Basically, they are semi-structured interviews designed to display the very personal perspective of the expert on their work, public activities, and the social conditions they see as relevant for the discourse. The aim is to construct ideal types of experts who can be used to explain the structure of the field. In interviewing participants in the American family debate, I regularly began with an open question as to what they believed were the “main features of the contemporary family debate.” One interviewee held that aspects such as race or gender were the most prominent issues in the debate. Then I turned to the question of whether the subject had engaged in the debate and received the following reply (for a detailed account of my method and procedure, see Walter, 1997b): No, not really no (...) One of the other things that characterizes the debate is this tremendous imbalance in resources between the right side of the debate and the left side of the debate (...) there was a growth of the conservative movement that is funded by conservative businesses that set up these academic research think tanks, the Heritage Foundation, the American Enterprise Institute and many others. And they do several things; one is that they make research reports, on the one hand, they may seem like policy analysis or reviews of the literature, but they’re more in the order of facts marshalled to promote certain points of view (...) there’s this blurry line between the intellectuals and the academics in the university and intellectuals and academics in these research institutes. You don’t lose your prestige all that much in academia for working in these places (...) and the other thing is that these research outfits are geared to getting a message out to the media. (...) What they do is that they are able to define the terms of the debate, and so we have this debate about single mothers (...) to blame for all of our social issues, while Dan Quayle got a lot of ridicule for that speech (...). (Interview No. US–17, line 369–439)

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To understand the strategy that can be reconstructed from this interview, two points are important. First, the expert does not say anything about herself, her interests, activities, and so on. She presents her involvement by means of a reaction to something already going on—without her participation and, quite obviously, not to her liking. Second, the interview is only one in a series I held with several California academics. In a more detailed account, I have made the point that they belong to a specific type of expert in the American family debate that I call “academic intellectuals,” whose strategy is to take a “critical stance” (Walter, 1997b). It is characteristic that this group sees itself as opposed to the dominant discourse and criticizes the position portrayed in the previous section because of the funding, the strategy, and the rhetoric involved in their discourse. In the interviewee’s account, a sense of social distance from the wealthier activist groups and think tanks, she believes are financed by conservative donations, is combined with cognitive and political distance. The resource imbalance leads to an argumentative hegemony in the field of family debate. Concerning their publications, she affirms: “(...) they’re more in the order of facts marshalled to promote certain points of view (...) geared to getting a message out to the media.” She acknowledges the hegemony: “(...) they are able to define the terms of the debate.” Most people in this academic-intellectual group are social scientists at universities, and their common denominator is a highly skeptical attitude toward positions promoted with extensive use of resources or media presence that provokes their opposition. Thus, there is a clear-cut divide between two “camps” that recognize each other as opponents in the American family debate (Popenoe, 1992; Stacey, 1994a, 1994b). They have different views and different strategies. This constellation contributes to the apparent polarization of the American family debate. The “critical stance,” as one tendency in the debate, even reinforces the imbalance in public perceptions of the debate.

The Interrelated Arenas and the Field of Family Debate The methodological approaches discussed above serve as “analytical tools,” that is, they dissect several aspects of the overall process. They could be seen as displaying different arenas of the field: the interactionist arena of strategies, the public-discourse arena of rhetoric, and the societal arena, in which the other two are embedded. The field of family debate (as a whole) is constituted by the interrelations of these arenas. The respective links that connect the arenas can be identified in the institutionalization of experts, that is, the source of their authority on the subject (by the state or by self-definition), the resources mobilized and employed to disseminate the contested ideas, and the procedures of disseminating knowledge. For the US, I use as an example the so-called “family-values movement” (Stacey, 1994a; Walter, 1997b), which is part of the dominant strain in the American family debate. One of the most important organizations in this move-

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ment is the New York City-based Institute for American Values. It links research dissemination with influencing public opinion. The Institute founded a Council on Families in America; it publishes a working paper series, articles, and books (Blankenhorn et al., 1990). It sponsors or supports conferences (Whitehead, 1992) and has also staged mass events at which the importance of fathering was communicated to larger audiences, the so-called “National Fatherhood Tour” by David Blankenhorn (1995). Similar organizations form a network involving cooperation and reciprocal support. In part, they have different foci, such as the “Progressive Policy Institute” of the so-called “New Democrats” or the Communitarian movement, with a broader political agenda. Some have a different policy orientation, such as “Focus on the Family” or the “Family Research Council,” which belong to the Religious Right. All these organizations are “advocacy think tanks” that “combine a strong policy, partisan or ideological, bent with aggressive salesmanship and an effort to influence current policy debates” (Weaver, 1989, p. 567). The institutionalization of the expert in the German family debate is best exemplified by the official family reports of the German national government, produced by regularly appointed commissions that are mainly composed of social scientists (Bundesministerium für Familie und Senioren, 1994; Walter, 1994b, 1995). The reports are official and comprehensive; they are intended to offer an extensive overview of the family as a whole or of a certain aspect, with special attention to politically relevant social change in this societal domain, its causes and its consequences. In these reports, the official family ideal is reformulated with the help of scientific arguments. Proposals for a fairly systematic familypolicy program are offered that can be used as a consensual basis for evaluating policy outcomes. Moreover, there is a dense network of actors in the family-policy domain, which facilitates communication between the Administration, family associations, and the public. Experts include their research findings in these reports and their report chapters in their publications (e.g., Kaufmann, 1990, 1995, vis-à-vis Bundesministerium für Familie und Senioren, 1994; Nave-Herz, 1994). Consensus-building affects even the German government, which has adopted most of the central lines of argument (Bundesministerium für Familie und Senioren, 1994). Given the integration of scientific counseling into the process of bureaucratic policy development, I have found three strategies that are complementary (Walter, 1994a): “empirical Enlightenment,” which stresses the provision of technical information to policymakers; “pragmatic dialogue,” by combining political and scientific perspectives; and “systematic program development” as an attempt to give policy a rational basis. In the German case, these counseling styles contribute to the overall direction of policy change, which is more of a moderate change based on the system of entitlements for families. The expert-field characteristics (adversarial vs. inquisitorial model), the embedding of the discourse (Liberal vs. Conservative welfare state), the rhetorical mechanisms and experts’ strategies, as well as the institutional links among these arenas, contributed to policy change in the period under consideration: “welfare reform” in the US and the policies of economic support for families in Germany.

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Conclusions The thesis of this chapter is that the influence of experts on policy change should be analyzed in terms of the relationship between the field of discourse, on the one hand, and the positions and strategies of experts, on the other. For the comparative case study presented here, I have argued that there are specific linkages between field and actor in the American and German family debates that are related to the adversarial and inquisitorial models. This explains the differences in family-policy change in the two countries to the degree that the respective combinations of field characteristics and types of experts favor a certain policy style. Finally, I have demonstrated how this theoretical idea could be empirically proven by studying different arenas of expert influence (society, public discourse, interaction) and their interrelationships. Is it possible to generalize the approach or the theory? I will address a few points worth considering. First, I will ask whether a general definition of the expert can be derived from this case study. Second, I will discuss the general implications of the discourse models, inquisitorial and adversarial. Finally, I will ask whether this case study is significant for the sociology of the “knowledge society.”

Definition of the Expert In this chapter, I opted for a combination of interactionist-relational and structural approaches (An Alternative Research Strategy, above). In light of this consideration, the expert can be viewed as a social figure in the distribution of knowledge, which is one element of the social structure of modern “knowledge societies.” This leads to the interactionist-relational definition of the expert (Hitzler, 1994). Because the ascription of expert status is based on perceived differences in knowledge, the expert can only be defined relationally. Experts are people who—in comparison to those with whom they interact—not only have more knowledge, but also are able to manage knowledge transfers. People “become” experts through performances in which they translate and integrate their knowledge into popular meaning systems. Consequently, the dynamics of the expert-layperson interaction depends, in part, on their embeddedness in a particular social structure. The strength of institutionalization is what defines an expert’s social status. On one side of the spectrum, there is the specialist, who has a high degree of institutionalized freedom to research and to produce knowledge, but little or no authority to draw conclusions binding on others. On the other side of the spectrum, there are professionals with their autonomous organizations, monopolization of knowledge, and politically institutionalized status that allow for legitimate interventions even in highly personal matters. In terms of these poles, most experts are located somewhere in the middle, partly receive and partly create their authority, continually demonstrate their competence and stage knowledge transfers from science to the public or to power holders.

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With respect to nonexperts, the study presented here has dealt mainly with two addressees: the “public,” consisting of more or less well-informed citizens with an interest in an issue, and decision makers, persons in charge of policy change. Other layperson groups include “clients,” who seek advice on a contractual basis, or “associations/organizations,” which have their own resources for knowledge production and analysis. Moreover, the definitions of the counterparts are not mutually exclusive. For example, in the German family debate the government acts as a client to the experts in the family debate, and family associations are also important participants in the public discourse. With the relational definition in mind, we have an analytical tool that allows for the differentiation of constellations of experts vis-à-vis nonexperts. My proposition is that it is necessary to analyze the dynamics of scientific counseling in terms of its communicative content, dramatic elements, and political impact.

Adversarial Versus Inquisitorial Model We find a similar distinction of adversarial versus inquisitorial models in Singer’s (1993) analysis of American economic policy, which, at least during the Reagan and Bush administrations, relied heavily on “heterodox” economics produced by advocacy think tanks. In contrast, German economic policy is characterized by the dominance of state-legitimized advisors like those serving on the “Council of Economic Experts,” and a state-subsidized field of economists who share a consensus on economic policy. One could argue that a degree of organization is the key difference between the European and American administrative cultures (“unity” vs. “fragmentation”; Aberbach, Derlien, & Rockman, 1994). In contrast to the European State-centered model, the US employs a society-centered model resulting in a more fragmented advisory system. The highly-organized counseling system of the European state provides a continuing foundation of advice, but often suffers from a lack of flexibility and adaptability. Based on entrepreneurial organizations, the American system is more volatile and promotes unequal competition for influence among different groups of experts (Weaver, 1989), but it does promote a broader spectrum of opinions.

Toward a Sociology of the Knowledge Society The sociology of knowledge has attempted, ever since its founding fathers (Marx, Engels, Mannheim), to determine whether knowledge exclusively serves the interests of knowledge providers, or whether it can also be a force in transforming power structures. The relation between knowledge and power in the “knowledge society” remains open to debate. For some, experts and advisors constitute a new elite that is becoming the ruling class of society; for others, the sheer growth of knowledge in the service economy tends to lower the status of

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experts (Stehr, 1992). This study suggests a double image. Experts are portrayed simultaneously as highly capable of defining the terms of debate and yet also as dependent on the overall conditions of the field. The power of expertise depends on the specific type of expert involved and their relationship to non-experts. Today, there are increasing numbers of priestlike experts who apply knowledge already conceived and validated. Also, there are more prophet-like experts who create new doctrines. This distinction is made in a similar way by Becker (1973), who discusses “rule enforcers” versus “rule creators.” In the “knowledge society,” electronic media have assumed a larger role in the communication of expertise. The media improve public access to expert knowledge, which means that they also, simultaneously, increase public dependency on experts (due to their increased presence or even “omni-presence”) and decrease our dependency on particular experts (due to the available alternatives). In any case, the “knowledge society” has created an abundance of highly-regarded knowledge suitable for practical purposes. The well-informed citizen does not need personal knowledge of many things, because there is almost always an expert available for every question. This is exactly what creates the genuine power of experts as a group in society.

References Aberbach, J., Derlien, H.-U., & Rockman, B. (1994). Unity and fragmentation. Themes in German and American public administration. In H.-U. Derlien, U. Gerhardt, & F. W. Scharpf (Eds.), Systemrationalität und Partialinteresse. Festschrift für Renate Mayntz (pp. 271–289). Baden-Baden, Germany: Nomos. Beck, U., & Beck-Gernsheim, E. (1995). The normal chaos of love. Cambridge, UK: Polity Press. Becker, H. S. (1973). Outsiders. Studies in the sociology of deviance. New York: The Free Press. Berger, P., & Berger, B. (1983). The war over the family. Capturing the middle ground. London: Hutchinson. Blankenhorn, D. (1995). Fatherless America. Confronting our most urgent problem. New York: Basic Books. Blankenhorn, D., Bayme, S., & Elshtain, J. B. (Eds.). (1990). Rebuilding the nest. A new commitment to the American family. Milwaukee, WI: Family Service America. Bourdieu, P. (1971a). Une interprétation de la théorie de la religion selon Max Weber. Archives européennes de sociologie, 12(1), 3–21. Bourdieu, P. (1971b). Genèse et structure du champ religieux. Revue française de sociologie, 12, 295–334. Bourdieu, P. (1976). Le champ scientifique. Actes de la recherche en sciences sociales, 2(2/3), 88–104. Brooks, H. (1964). The scientific adviser. In R. Gilpin & C. Wright (Eds.), Scientists and national policy-making (pp. 73–96). New York: Columbia University Press. Bundesministerium für Familie und Senioren [Federal Ministry for Family and Senior Citizens] (Ed.). (1994). Familien und Familienpolitik im geeinten Deutschland—Zukunft des Humanvermögens. Bonn, Germany: Author (Bundestagsdrucksache 12/7560). Coontz, S. (1992). The way we never were. American families and the nostalgia trap. New York: Basic Books. Elias, N. (1987). Involvement and detachment. Essays in the sociology of knowledge. Oxford, UK: Blackwell.

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Etzioni, A. (1993). The spirit of community. The reinvention of American society. New York: Touchstone. Gerlach, I. (1996). Familie und staatliches Handeln. Ideologie und politische Praxis. Opladen, Germany: Leske + Budrich. Giddens, A. (1990). The consequences of modernity. Stanford, CA: Stanford University Press. Griswold, W. (1994). Cultures and societies in a changing world. Thousand Oaks, CA: Pine Forge Press. Gusfield, J. R. (1963). Symbolic crusade. Status politics and the American temperance movement. Urbana, IL: University of Illinois Press. Gusfield, J. R. (1976), The literary rhetoric of science: Comedy and pathos in drinking driver research. American Sociological Review, 41, 16–34. Gusfield, J. R. (1989). Constructing the ownership of social problems. Fun and profit in the welfare state. Social Problems, 36,431–441. Habermas, J. (1978). Technik und Wissenschaft als “Ideologie.” Frankfurt a.M., Germany: Suhrkamp. Hilgartner, S., & Bosk, C. L. (1988). The rise and fall of social problems: A public arena model. American Journal of Sociology, 94, 53–78. Hitzler, R. (1994). Wissen und Wesen des Experten. Ein Annäherungsversuch—zur Einleitung. In R. Hitzler, A. Honer, & C. Maeder (Eds.), Expertenwissen. Die institutionalisierte Kompetenz zur Konstruktion von Wirklichkeit (pp. 13–30). Opladen, Germany: Westdeutscher Verlag. Holstein, J. A., & Miller, G. (Eds.). (1993). Reconsidering social constructionism. Debates in social problems theory. New York: de Gruyter. Kaufmann, F.-X. (1990). Zukunft der Familie. Stabilität, Stabilitätsrisiken und Wandel der familialen Lebensformen sowie ihre gesellschaftlichen und politischen Bedingungen. Munich, Germany: Beck (Perspektiven und Orientierungen. Schriftenreihe des Bundeskanzleramtes, Vol. 10). Kaufmann, F.-X. (1995). Zukunft der Familie im vereinten Deutschland. Gesellschaftliche und politische Bedingungen. Munich, Germany: Beck (Perspektiven und Orientierungen. Schriftenreihe des Bundeskanzleramtes, Vol. 16). Mayntz, R. (1994). Politikberatung und politische Entscheidungsstrukturen: Zu den Voraussetzungen des Politikberatungsmodells. In A. Murswieck (Ed.), Regieren und Politikberatung (pp. 17–30). Opladen, Germany: Leske + Budrich. Moeller, R. G. (1993). Protecting motherhood. Women and the family in the politics of postwar West Germany. Berkeley, CA: University of California Press. Moyser, G. (1988). Non-standardized interviewing in élite research. Studies in Qualitative Methodology, 1, 109–136. Murswieck, A. (1993). Policy advice and decision making in the German federal bureaucracy. In B. G. Peters & A. Barker (Eds.), Advising West European governments. Inquiries, expertise and public policy (pp. 87–97). Edinburgh, UK: Edinburgh University Press. Nave-Herz, R. (1994). Familie heute. Darmstadt, Germany: Wissenschaftliche Buchgesellschaft. Perelman, C., & Olbrechts-Tyteca, L. (1969). The new rhetoric. A treatise on argumentation. Notre Dame, IN: University of Notre Dame Press. Popenoe, D. (1988). Disturbing the nest. Family change and decline in modern societies. New York: de Gruyter. Popenoe, D. (1992, December 26). The controversial truth: Two-parent families are better. The New York Times, p. 21. Popenoe, D. (1993a, April 10). Scholars should worry about the disintegration of the American family. The Chronicle of Higher Education, p. A48. Popenoe, D. (1993b). American family decline, 1960–1990: A review and appraisal. Journal of Marriage and the Family, 55, 527–542. Popenoe, D. (1993c). The national family wars. Journal of Marriage and the Family, 55, 553–555. Popenoe, D. (1996). L i f e without father. Compelling new evidence that fatherhood and marriage are indispensable for the good of children and society. New York: The Free Press. Singer, O. (1990). Policy communities and discourse coalitions. The role of policy analysis in economic policy making. Knowledge, 11(4), 428–458.

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Singer, O. (1993). Knowledge and politics in economic policy-making. Official economic advisors in the USA, Great Britain and Germany. In B. G. Peters & A. Barker (Eds.), Advising West European governments. Inquiries, expertise and public policy (pp. 72–86). Edinburgh, UK: Edinburgh University Press. Skolnick, A. (1993). Embattled paradise. The American family in an age of uncertainty. New York: Basic Books. Spector, M., & Kitsuse, J. I. (1977). Constructing social problems. Menlo Park, CA: Cummings. Stacey, J. (1993). Good riddance to “The Family”: A response to David Popenoe. Journal of Marriage and the Family, 55, 545–547. Stacey, J. (1994a, Fall). Scents, scholars, and stigma. Social Text, 40, 51–75. Stacey, J. (1994b, July 25). The new family crusaders. Dan Quayle’s revenge. The Nation, 119– 122. Stehr, N. (1992). Experts, counsellors and advisers. In N. Stehr & R. V. Ericson (Eds.), The culture and power of knowledge. Inquiries into contemporary societies (pp. 107–156). Berlin, Germany: de Gruyter. Thibaut, J., & Walker, L. (1975). Procedural justice. A psychological analysis. New York: Wiley. Toulmin, S. E. (1958). The uses of argument. Cambridge, UK: Cambridge University Press. Walter, W. (1994a). Strategien der Politikberatung. Die Interpretation der Sachverständigen-Rolle im Lichte der Experteninterviews. In R. Hitzler, A. Honer, & C. Maeder (Eds.), Expertenwissen. Die institutionalisierte Kompetenz zur Konstruktion von Wirklichkeit (pp. 268–284). Opladen, Germany: Westdeutscher Verlag. Walter, W. (1994b, July 20). The surveillance of family. Towards a conceptual scheme for the comparison of family reporting in Germany, France, and the United States. Paper presented at the XIIIth World Congress of Sociology (Research Committee 06 ‘Family Research’), Bielefeld, Germany. Walter, W. (1995). Familienberichterstattung und familienpolitischer Diskurs. In U. Gerhardt et al. (Eds.), Familie der Zukunft. Lebensbedingungen und Lebensformen (pp. 81–97). Opladen, Germany: Leske + Budrich. Walter, W. (1997a). Subsidiarität und Selbstverantwortung. Individualisierungsstrategien und Risikokonzeptionen in den Familienpolitiken der Bundesrepublik Deutschland und den USA. In S. Hradil (Ed.), Differenz und Integration. Die Zukunft moderner Gesellschaften (pp. 1021– 1037). Frankfurt a.M., Germany: Campus. Walter, W. (1997b). Der Wert der Familie. Institutionenwandel und familiale Lebensführung. Unpublished manuscript, Universität Konstanz, Germany. Weaver, R. K. (1989). The changing world of think tanks. PS: Political Science & Politics, 22(3), 563–578. Weiss, C. H. (1983). Three terms in search of reconceptualization: Knowledge, utilization, and decision making. In B. Holzner, K. Knorr, & H. Strasser (Eds.), Realizing social science knowledge. The political realization of social science knowledge and research: Toward new scenarios (pp. 201–219).Vienna: Physica. Weiss, C. H. (1991). Policy research: Data, ideas, or arguments? In P. Wagner, C. H. Weiss, B. Wittrock, & H. Wollmann (Eds.), The policy orientation: Legacy and promise (pp. 307–332). Cambridge, UK: Cambridge University Press. Whitehead, B. D. (1992). Crossing the cultural divide. A new familism? Family Affairs, 5(1), 1–5. Whitehead, B. D. (1993). Dan Quayle was right. The Atlantic Monthly, 271(4), 47–84. Wingens, M. (1988). Soziologisches Wissen und politische Praxis. Neuere theoretische Entwicklungen der Verwendungsforschung. Frankfurt a.M., Germany: Campus (Campus Forschung, Vol. 591).

Chapter 3 The Integration of Social Science Expertise Into the Political Process: Did It Actually Happen?

Gabriele Metzler Institute for Contemporary History, University of Tübingen, Germany [email protected]

The integration of social scientific experts and expertise into the political process is a recent phenomenon. Interestingly, this process has not been smooth, even when “social scientification” of political decision making, or planning, was a political program, as in the case of West Germany in the 1960s. This chapter focuses on the social sciences and their influence on political reform and decision making in West Germany after the Second World War. However, the declared demand for social scientific knowledge and skill is not an isolated German phenomenon. Planning as a modern, scientifically based political instrument was practiced in other countries as well, particularly in those with a Social Democratic government, such as Sweden, where the Social Democrats in power had been expanding the welfare state since the end of the war, or the United Kingdom under the Labor government after 1964. However, planning was not only a social democratic political program; in France where planning was en vogue following the end of the war, it was continued and even intensified as a political program after de Gaulle came to power in 1958. Thus, the idea of a social scientific basis of political decision making certainly was not restricted to West Germany. How far, however, did the influence of the social sciences in the Federal Republic really reach? In the 1960s “modern” and “modernization” were the political catchwords of the day. In West Germany, the coalition of Social Democrats and Liberals that came into power in 1969 had won the election on the basis of both a modern image—Chancellor Willy Brandt himself, a German version of the dynamic, promising young John F. Kennedy, was the key element of this image—and a modern political program: The new government intended, as Brandt declared in his inaugural speech, to modernize society, the economy, as well as the political system of the country. There was hardly any area that was not the object of this wide-ranging reform program, extending from changes in government and administration, to economy and infrastructure, and to social policy and the education system. The instrument to reach these ambitious goals was political planning, perceived as a “modern” decision-making method based on scientific con-

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cepts. Indeed, as Horst Ehmke, the Head of the Chancellory and a key figure in Brandt’s first Cabinet, put it, politics and policy were, from now on, considered to be a science. In retrospect, the years of the “Brandt Coalition” from 1969 to 1974 seem to have been the heyday of the power of the social sciences. It was generally held, especially by the Social Democrats and the Liberals, that if the political machinery was to be reconstructed, it would be on a social-scientific basis; if the goals of political decisions were to be reassessed, politicians would have to take the results of social research into account. Social sciences were seen by many as the pathfinders to modernity, as the guarantors of rational agenda setting and decision making, and as reliable advocates of emancipatory objectives—years of hope and glory were to come, so it seemed. But, how far did the influence of the social sciences in West Germany really reach? What role did social sciences actually play in political agenda setting and decision making? What did politicians and the public expect of them? How did social scientists themselves define their role, and how did they adapt to growing expectations and demands? A closer examination of these issues reveals, contrary to promising declarations, that the social sciences did not have a significant impact on the legislative process and its output. However, this assessment of the influence of social scientific expertise changes remarkably when we adopt a less restrictive definition of institutional change, incorporating the production and distribution of knowledge, and its transfer from the field of science to the sphere of politics. The following is a case study of the influence of social scientific expertise on political decision making and change. I have pursued this case study mainly from a historical perspective. The presented history is not organized chronologically, but rather like concentric circles. First, the role that social sciences and social scientific experts played in the political process during the 1960s will be discussed. Then, I will extend the theoretical focus by adopting a more encompassing conception of “institution” and “institutional change.” Next, I will give an overview of the (ideas of) modernization of German society and government after the war and how the social sciences helped in this development. With this background, it will be possible to address the question of how social scientists actually influenced political and administrative structures and processes.

Institutionalized Contacts Between Social Scientists and the German Government in the 1960s Great hopes often tend to be disappointed, and this is probably also true for the relationship between politics and social sciences after 1969, if we look at the institutionalized contacts between them. Without any doubt, there was significant support of the social sciences in terms of funding. According to an annual report by the Federal Ministry for Science and Technology (Bundesministerium für For-

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schung und Technologie [BMFT]; 1975, p. 81), state expenditure supporting social scientific research almost tripled from 1969 to 1974 while expenditure for all branches of science (research and development) was only doubled. Not only was there financial support, but also attempts at close cooperation. Expert advice from the social sciences was sought in nearly all aspects of the planning program: Social scientists provided models for decision making, social data, and the knowledge to interpret them; and they were consulted in questions of changes in the institutional structure of the German political system. These contacts were institutionalized in a number of ways. Most important, in this context, were the group developing a strategy for administrative reform (Projektgruppe Regierungs- und Verwaltungsreform), dating back to 1967 and the days of the Grand Coalition,1 and the Commission for Investigating Social and Economic Change (Kommission für wirtschaftlichen und sozialen Wandel), established in 1971. Both Commissions consisted of a number of experts—from the social sciences, economics, law, and from the administration—as well as representatives of both sides of industry, trade unions, and employers’ organizations. The purpose of the Commission for Investigating Economic and Social Change was described as follows: It had to give a report on all problems resulting from technological, economic, and social change with regard to the further development of social policy in the widest sense of the word (Gesellschaftspolitik) and it was expected to give advice pertaining to the chances of further promoting technical and social change and shaping it in correspondence with the interest of the citizens—a very demanding job indeed for the Commission (Kommission für wirtschaftlichen und sozialen Wandel) headed by sociologist Karl-Martin Bolte. It ended its work five years later, delivering its final report (Kommission für wirtschaftlichen und sozialen Wandel, 1977) and some 140 working papers on a variety of specific problems. Some of the results found their way into the legislation process or were taken into account when a ministry had to make a decision. But, on the whole, the impact of this Commission probably did not live up to the expectations with which its members had started their investigations. The same is true for the Project Group for the Governmental and Administration Reform (Projektgruppe Regierungs- und Verwaltungsreform), which was, in some respects, more successful, but the work of which was stopped by 1972. The Project Group had to investigate the organizational framework for decision making, particularly on the levels of the ministerial organization and the administrative machinery of the Federal Republic. It had to make proposals as to which improvements were to be made to make the system more rational and efficient. As its 1 The coalition of Christian Democratic Union (CDU), the Christian Social Union (CSU, the Bavarian partner of the CDU), and Social Democrats (SPD) came into power in 1966 after the fall of Chancellor Ludwig Erhard. It was the first time, in the history of the Federal Republic, that the SPD participated in the Federal Government. The Grand Coalition under Chancellor Kurt Georg Kiesinger was faced with a number of severe problems (economic crisis 1966–1967, student riots and social protest 1967–1968). This coalition was succeeded in 1969 by the coalition of SPD and Liberal Democrats (FDP).

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final report has never been published (for the main aspects of the report see Mayntz & Scharpf, 1973) and has not yet been declassified by the Federal Archives (Bundesarchiv), it is difficult to assess the impact of the Project Group in historically adequate terms. However, all the indications in the historical sources available are that hardly any of its suggestions were put into effect by the government (Katzenstein, 1987, p. 260). Thus, if anyone had hoped to shape a new, social-scientific basis of politics, these hopes had apparently been in vain. What had begun as very promising indeed, ended only a few years later in confusion, annoyance, disappointment, or misunderstanding. The great project of all-embracing political and social reform did not produce the results that had been desired and expected. At least four reasons for this failure are very evident: First, some contemporary sociological investigations indicate that social scientists and administrative elite hardly ever found much common ground for discussing the issues of reform; they often even did not speak the same language (Bruder, 1980). Second, planning, as a political option on a social-scientific basis, had lost most of its appeal by the early 1970s because a severe economic crisis reduced the material basis of that kind of policy—to put it in very simple terms: Reforms often cost money, and money from public funds became a scarce resource in the 1970s. Third, planning, which implied a certain degree of central coordination, was also a constant source of friction within the German Federal System and in the relations between the Federal Ministries. Finally, problems of legitimation arose out of the implicit contradictions of the planning program itself that were articulated particularly by the New Left. This alliance of radical students, sections of the peace movement, as well as early feminist and ecology groups, with intellectuals of varied backgrounds and orientations, reached the peak of its influence in the late 1960s. The New Left was strongly influenced by a revival of Marxist thought. Although there was a great variety of political ideas circulating in these movements, they found some common ground on the basis of two ideas: “participatory democracy” and radical criticism of what they called “the system.” Interestingly enough, in some respect, the strongest criticism of the political aims and reform strategies of the government did not come from the opposition in parliament, but rather from the Left outside the representative body of the Federal Republic of Germany (Bundestag). It would be inconsistent, they argued, to preach about individual freedom and social emancipation, to talk about the extension of democratic structures (mehr Demokratie wagen), while at the same time, by planning, prescribe the way to that freedom (Naschold, 1972, p. 27f.). Thus, the scope of reforms, however important they may have been, remained limited, as did the impact of social sciences on genuine political decisions. In the very center of this story of failure, as it has been presented here, was the question of legitimation. How could the influence of social scientists on political decision making and goal defining be legitimized within the framework of a democratic, parliamentary political system? That was one of the most important questions that arose in connection with the growing political relevance of the so-

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cial sciences, and it was, by the late 1960s, not even a new one, as Habermas has shown (Habermas, 1963). Indeed, the question of legitimation was dominant from the very beginning of the cooperation between science and politics. Legitimation was at the center of the discussions on political consulting by social scientists when the Council of Experts for the Evaluation of Aggregative Economic Developments (Sachverständigenrat zur Begutachtung der gesamtwirtschaftlichen Entwicklung [SVR]), was established in 1963. The Council consisted of five members, all of them experts in economics, most of them university professors. Compared to the American Council of Economic Advisors, the SVR had, at the time of its founding, much less direct influence on the course of economic policy (Wallich, 1968). It was not allowed to make any explicit policy recommendations; the task of its members was to analyze prospective developments and to present alternative scenarios. Of course, when they gave their annual reports, which the government had to respond to within a certain period, the SVR economists, without a doubt, made implicit policy recommendations. The position of the SVR became stronger after the representative body of the Federal Republic of Germany (Bundestag) passed the Stability and Growth Act in 1967, which was to become a powerful instrument in the medium-term planning of economic and fiscal policies. The basis of its legitimation, however, remained very small. While the members of the American Council of Economic Advisors were inside advisors to the President, acting from within the institutional framework of government, the SVR was always a body of outside expert advisors, not a formal part of the German political system. Therefore, the growing influence of the SVR was regarded by some of the leading German legal experts as inconsistent with both the parliamentary system and Cabinet responsibility (Böckenförde, 1964, p. 256f.). Thus, it was difficult to reconcile expert advice from outside the political system, particularly in an institutionalized form, with the rules of parliamentary government. This is especially true if experts were not only appointed as internal consultants, but if they also had the right to publish their advice and to inform the public about their findings, as was the case with the SVR. The political process in Germany was (and still is) very much dominated by thinking in terms of the law. This was also reflected in the predominance of law graduates in the ranks of the German administrative and political elite. Although the so-called “legal monopoly” (Juristenmonopol)was getting weaker during the 1960s, the study of law was still considered to be the best qualification for any prospective member of the administration, especially for the higher ranks of the civil service that opened their doors to graduates from other faculties, such as social sciences, only very reluctantly. Generally speaking, social scientists were not able to infiltrate the state bureaucracy in significant numbers; they were most likely to succeed in doing so in the departments dealing with social policy. But, there were very few of them working in the ministries concerned with the issues of general organization, such as the Ministry of the Interior. As a preliminary result, it may be said that the influence of social scientists on the change of political institutions was very limited when seen from a strictly

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legal perspective. Their advice was sought, but not very often put into practical effect, while the legitimacy of that advice was always debated. Even in the late 1960s and early 1970s, the golden years of planning euphoria, the intended “social scientification” of the political process did not fully develop. At this point, we must ask if social sciences had any influence at all on institutional change.

Extending the Focus: Institutions as Authoritative Resources The concept of an “institution” may be defined in a number of ways. In its most immediate sense it may denote a material, legal entity; one might think of a federal ministry as an example. The concept, as it is used here, is inspired by Anthony Giddens’ “theory of structuration” (Giddens, 1984). According to Giddens, social systems exhibit structural properties, allowing social practices “to exist across varying spans of time and space” and lending them “systemic form” (p. 17). Those practices with the greatest extension in time and space are defined as “institutions.” Institutions contain a set of rules and resources and exist over a considerable period of time. Resources may be described as allocative or authoritative; the former type refers to material features of the environment, means of production, or produced goods, the latter, among other elements, to the organization of life chances. In the present context, it is useful to extend the meaning of authoritative resources to include knowledge about social systems, modes of reproduction of social systems, and social change. Institutional change may, then, be understood as the result of changes in resources and corresponding changes in social practices. This understanding of “institutions” and “institutional change” offers the opportunity to overcome the more narrow legalistic perspective that is deeply rooted in West German political culture. It also allows us to extend our analytic framework: Rather than focusing solely on the question to what extent the social sciences had an immediate influence on government and legislature, research can also focus on the impact of social scientific knowledge on societal and political change and, thus, also on the informal and less direct impact of the social sciences. With this extended focus, the analysis of the influence of social sciences on institutional change may lead to a different assessment.

Extending the Focus: Modernity in Post-War Germany Political systems and their decision-making agencies are not static entities. At any given time, their outlook depends on various factors, ranging from the input of specific social interest groups to ideas of how the political process might be best organized, to political philosophy and, thus, questions concerning the role of “the State.” In the present context, social and technological change and the altering role of the state provide the decisive coordinates for the analysis of West Germany’s political system.

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After the Second World War, West Germany, as were nearly all other countries that had been involved in the war, was facing a number of severe political, economic, and social problems. These resulted not only from the immense war damages, but also from a process of fundamental change that had started in the 1920s and that, in the 1950s, reached new levels of intensity and social significance. The change of allocative resources brought about by West Germany’s rapid economic and social reconstruction, the economic miracle (Wirtschaftswunder) manifested itself as a modernization of the agrarian sector, as the increasing mechanization and rationalization of industrial production, and as an expanding services sector, also undergoing rationalization and modernization. These developments not only affected the structure of the working population, but also led to significant changes in the character and organization of work and in the required professional qualifications. The experience of this technical progress and of the accompanying changes in the structure of industrial society posed new challenges for politics and the state, not only in West Germany, but in all industrial nations after the war. What made the West German case different from other Western European countries was the predominance of specific German traditions of political philosophy and discourse on technology, both traditions being closely interwoven with one another. There was, on the one hand, the German way of thinking about the state, in the 1950s still embedded in the realm of metaphysics. On the other hand, there were very specific ways of thinking about technical progress, reaching back to the 1920s: While some were regarding technical progress very skeptically in general, others were generally approving it, but at the same time, combining their acceptance of modern technology with very authoritarian political ideals, thereby, rejecting Enlightenment reason and the political ideas of the French Revolution. This attitude has been adequately termed “reactionary modernism” (Herf, 1984). Having these powerful traditions in the background, it was very difficult to construct a concept of a democratic modernity, based on modern technology, to reconcile the notion of technical progress with the idea of individual freedom and to adapt institutions to social change. Moreover, the complete absence of any democratic tradition of political planning in Germany and the association of planning with either Hitler’s four-year plan or the Socialist planned economy in East Germany—both were condemned in the name of antitotalitarianism—made it absolutely impossible in West Germany, in the 1950s, even to think about planning as an instrument for promoting social change. At the same time, no one was thinking of making use of new technologies in the political process (e.g., data processing), thereby, modernizing the political apparatus on the basis of technical advance. A powerful reason for the inertia, in this respect, may be found in the discourse on technology. At a first glance, this discourse was, in the 1950s, still very similar to that of the 1920s. The idea that modern technology would bring about dangers to the “soul of man” was still dominant, corresponding with a very conservative cultural setting in general. However, there was one significant difference between the 1950s and the 1920s: After the war, notions of “reaction-

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ary modernism” collapsed completely, due to the shocking experiences that National Socialism—as the once desired practical expression of a marriage between modern technology and authoritarian politics—had presented to radical Conservatives (Muller, 1987). By the early 1960s, a generally positive evaluation of technology had caught on; an increasing number of people were convinced that technological progress would bring about an increase in prosperity for all citizens and would solve all problems of the future. Indeed, there are a number of further indicators that a decisive change in attitude toward technology, society, and politics in general was taking place by the turn of the 1950s to the 1960s. First, there was a change in the perception of the relationship between present time and future. It seems that West German society and politics discovered the future as a period that did not just descend upon people like immutable fate, but that could be formed and shaped according to social priorities (Metzler, 1999). Talking about the “end of post-war time,” as did Chancellor Ludwig Erhard (Erhard, 1965), or speaking of the “second industrial revolution,” as did West Germany’s Social Democrats (Brandt, 1957), indicate that change of perception. Also, the means for shaping that future were expected, among others, to be provided for by the social sciences. This change of perspective, the orientation toward the future, was a common feature in nearly all post-war industrial societies; indeed, the construction of the concept of a malleable future may even be considered as a project constituting a common European “identity” (Schmidt-Gernig, 1998). Second, the debate among intellectuals about the “end of ideology” (Aron, 1957; Bell, 1960; Waxman, 1968) helped to ease the ideological tensions of the Cold War and opened new fields for political ideas. Third, and most important, in the context of the influence of the social sciences on the political transitions in West Germany after World War II, there was a change in authoritative resources: in knowledge on the extent and impact of technical and social change, and the interpretation of political opportunities resulting from these changes. From the early 1960s, the state—which means government and administration—took up the challenge of technical and social change. The question of which forms of political and administrative organization were most appropriate and effective became one of the main issues of domestic policy. Conjured up with this was the question of which role the state was to play, what kinds of political options existed, and on what assumptions politics, in a very general sense, was based. Turning from the early to the late 1960s, the answer to these questions can be easily seen. From 1966 and, as described above, especially from 1969 onward, the state was to play a very active role. Politics was perceived as an instrument to control, steer, and even bring about social change. Political planning became very fashionable since a strong belief in the possibility of rational, “social-scientificized” political processes was associated with it. Rationality and the application of scientific methods to the political process were thought by those in power—and by large parts of the German public—to be the best antidote to student riots, growing political extremism, and increasing complexity of the politi-

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cal decision-making process. Although social scientific methods and ways of thinking did not penetrate the process of political decision making very much, as discussed above, the question still is why social scientists had increased opportunities during the 1960s to promote their ideas, and why, for some years at least, attempts to treat politics as a “science” were made at all. This question is especially relevant as we seek to explain the fundamental changes in political style, methods, and goals that made the 1960s in West Germany so different from the 1950s. To explain this change, we have to return to the 1950s once again.

Social Sciences and the Modernization of the West German Political Discourse Social change affects political organization. The relationship between society and its political structures is not just one-dimensional, meaning that society is not just “organized” and controlled by politics. Usually, political structures and basic concepts are adapted to social change to meet the changing needs of and demands from society. Expert knowledge and its diffusion provided the link between these two developments (social and political change), as the analysis of the modernization of West German political discourse will show: Knowledge on the impact of technical and social change, that was produced by the social sciences, was the decisive element in this process. The predominant feature of the public discourse on technological progress, in the 1950s, was skepticism. The mass society (Vermassung) as a corollary was the political-cultural catchword of the day, the meaning of which extended well into the sphere of politics. Cultural, as well as political conservatism was the answer to it. It was seen as a political task to save man from the bad consequences of social and technological change by strengthening traditional values, that is, family values and the notion of “community,” in the sense of the genuine German distinction between the community (Gemeinschaft) and the society (Gesellschaft). While, on the one hand, new technical developments and industrial change were promoted by the government for economic reasons, attempts were made, on the other hand, by Chancellor Konrad Adenauer and his administration to prevent all the negative influences on the soul of the individual that these changes were considered to bring about. The aim of government and administration was to preserve, in as many respects as possible, a traditional order that would serve as a lighthouse for a society having lost its sense of direction. For that reason, there was no need to make a major change in the basic assumptions built into the political system, or to try to make political decisions on a scientific basis, as the Brandt Government was to claim a decade later. The following anecdote may help to illustrate this point: When asked as Minister of Trade and Commerce whether he would consult economists and social scientists, Ludwig Erhard answered that he, being a scientist himself, would not have to consult others.

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There was a remarkable change in that perspective by the early 1960s. When he was elected Federal Chancellor in 1963, the same Ludwig Erhard declared, in his inaugural speech, that it would be equally desirable and necessary to obtain the opinion of those who were, as he put it, professionally concerned with the development of modern industrial society, and to take their advice into account when it came to political decision making. The first step toward institutionalizing these contacts, between politics and science, was the establishment of the SVR in 1963. But, the influence of social sciences made itself felt in other respects also. Social sciences contributed to institutional change—in the sense of a change in knowledge about society and perception of technological and social developments—because they became the dominant elements in the discourse of industrial society. That was the result of two developments: First, as already mentioned, there was an increasing openness of society with respect to the future; second, there was a change in the social sciences themselves, especially in sociology, but also in the political sciences and economics. Sociology, however, was the most important contributor to institutional change. The development of German sociology as a science after the Second World War is itself a very complex story. I will restrict myself here to naming just a few features of that development: Sociology, as well as other sciences, lost most of its German traditions and underwent a process of “Americanization” after 1945 (Plé, 1990; Weyer, 1984). Some results of that internal change were the decrease of its historical-philosophical orientation, the growing number of empirical studies, and the birth of a number of specialized fields of sociological research, the so-called “Bindestrich-Soziologien” (e.g., industrial sociology, sociology of organizations). The rise of industrial sociology, in particular, had an enormous impact on the scientific and public discourse in society and societal change. The first studies in industrial sociology were published in the late 1950s by Heinrich Popitz and Hans Paul Bahrdt (Popitz, Bahrdt et al., 1957a, 1957b), Helmut Schelsky (1957), Renate Mayntz (1958, 1963), and others, and were concerned with the impact of technology on industrial work, as well as with bureaucracy and the organization of office work. All these studies highlighted the dynamics of the technological and industrial change that was going on, and they showed that de-individualization (Vermassung) was not the dangerous outcome of the change that had always been painted as a black picture. In proving this on an empirical basis, they produced a set of knowledge and interpretation that was to shape authoritative resources and, thereby, bring about institutional change. The political implications became obvious very soon. One of the most pronounced theses in the context of the new sociology and the role of experts in modern society was pursued by Schelsky. With his thesis of the “technical State” (Schelsky, 1961), Schelsky argued that the decision-making power of politicians, of government and administration, was merely fiction; in reality, they would be substituted by the rule of the inherent pressures (Sachzwang). The state would, at some point in this development, completely lose its function; technology and

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state would melt together, and the state would finally die, making room for the rule of technocrats. Although Schelsky’s thesis was provocative, the effect, in reality, was just the opposite. The state in Germany did not die, but became, from the beginning of the 1960s, ever more active; as shown with a look at the Brandt Government, it was to play a crucial role in bringing about and controlling social change. To cope with the inherent pressures of technological advance and social change and to preserve the state as an actor in the political process, the government tried to adopt new techniques of administration and sought to integrate experts from the social sciences into the decision-making process. This reflected the abovementioned change in authoritative resources. There was an increase in authoritative resources especially with regard to correlations between economics and society. Also, since the acknowledgement of social change had caught on, it led to a “social scientification” of politics, and a closer contact between social sciences and politics. This point merits some closer attention because it brings another branch of the sciences into view: economics. The prestige of the social sciences during the 1960s owed more than a little to developments in economics. Theorists working in this field provided frameworks for rational decision making in economic policy and developed prognostic models for future economic performance (Giersch & Borchardt, 1962). Economists also helped to destroy the “taboo” of planning that had paralyzed German politics in the 1950s; in a number of conferences that gained strong public attention, they discussed the possibility—and even necessity—of economic programming and planning (e.g., Bergedorfer Gesprächskreis, 1964; List Gesellschaft & Plitzko, 1964; Verein für Socialpolitik, 1967). Keynesian approaches became more and more attractive, stressing the active part the state has to play in the economic process, especially when it comes to market failure and economic downswing, as was the case in West Germany in 1966. The state then, according to Keynesian theory, had to play a very special role in fostering material welfare and growth. Although Keynesianism never really dominated the mainstream of West German economic thought (for Keynesianism in Germany see Backhaus, 1988; Heu, 1998), some of Keynes’ advocates took over very important positions in economic decision making, notably Karl Schiller, the German Minister for Trade and Commerce (and for some time also of Finance) from 1966 to 1972. Thus, the idea of “politics as a science,” as an instrument to control and steer social change, found its concomitant in the economic sphere in the conception of the global steering (Globalsteuerung) of the economy. In both fields, the state was to be the key actor. Therefore, the state did not just die as a “technical State,” but rather made the shaping of technical, economic, and social change its own and very special task that was to be managed with the help of experts and reconciled with the basic ideas of democracy.

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“Social Scientification” of West German Politics: Channels of Influence Beginning in the 1960s, social scientists dominated the public discourse on technological progress and industrial society. They delivered the frameworks of interpretation that influenced political thought and political debates. From time to time, they were consulted by the government as expert advisors, sociologists, and political scientists mainly after 1969, economists already a few years earlier as, for instance, in the SVR or in the Advisory Council to the Ministry of Trade and Commerce. Given that these institutionalized contacts between scientists and government were not very successful in terms of influence on political decision making, the question remains: How did expert knowledge find its way into the political process? To answer this question, we need to refocus our attention on the academic socialization of politicians and civil servants, and especially on the vocational training for civil servants. This is a much neglected issue and has not, to my knowledge, been thoroughly investigated in its historical context. Although the so-called “Juristenmonopol” (referring to the “monopoly” of law students entering political careers) was not challenged by social scientists, they were able to influence the thinking of civil servants by familiarizing them with social scientific thought. The German Post-Graduate School of Administrative Sciences (Hochschule für Verwaltungswissenschaften) at Speyer, where a significant number of civil servants from the states (Länder) were sent for vocational training, consistently offered courses and lectures in sociology; in the 1950s they were given by Arnold Gehlen, later, for a short time, by Niklas Luhmann, then by Renate Mayntz. Besides attending the Post-Graduate School (Hochschule) in Speyer, higher civil servants of the Federal (Bund) and state (Länder) governments were trained at “summer schools,” the so-called “university weeks” (Hochschulwochen). Some of the programs that I found of these seminars read like the table of contents in a book by Schelsky. Schelsky—like a number of his colleagues—actively participated in the “university weeks” (Hochschulwochen), for instance, lecturing on “Changes in the social structure in the 20th century,” “The role of family in modern society” (Verwaltungs-Hochschulwochen, 1955), and “Sociological research on urban development” (Verwaltungs-Hochschulwochen, 1956). Attempts to create a modern institution for the vocational training of civil servants culminated in 1969 in the founding of the Federal Academy of Public Administration (Bundesakademie für Öffentliche Verwaltung). The courses that were offered at the Academy were based on the latest social scientific concepts of administration and were informed by modern management techniques (Bundesakademie für Öffentliche Verwaltung, 1974). In this way, social scientists helped to shape the way civil servants saw themselves, and the ideas about the organization and tasks of administration, and thus, influenced their bureaucratic style. Paradoxically, one may be inclined to say, these forms of further training for civil servants (Beamtenfortbildung) seems to have had a greater impact on political decision making than institutionalized expert advice, as in the Project Group (Projektgruppe Regierungs- und Verwaltungsreform) or the Commission for Investigat-

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ing Economic and Social Change (Kommisson für wirtschaftlichen und sozialen Wandel).

Conclusion When it comes to the question of scientific influence upon political decision making, West Germany was a latecomer. In France, for example, the state met the challenges posed by technological and social change immediately after the war by embarking on a course of planning. La planification was based on scientific concepts, not only from the social sciences, but also from mathematics and engineering with which the French administrative elite were made familiar at one of the Grandes Écoles, notably the École Nationale d’Administration (ENA). Thus, in France the distance from social scientific knowledge to practical application was much shorter than in West Germany, where planning as a political option reached its peak only at a time when the French were already involved in a process of revision. The impact of the social sciences on West Germany’s political order and its institutions was near to insignificant when seen from a strictly legal and constitutional point of view. In a long-term perspective, the organizational (i.e., ministerial) framework of decision making only underwent some minor changes attributable to social scientific expertise. To assess the impact of the social sciences adequately, “institutions” have to be defined as systems of social practices and knowledge about society, thus, as allocative and authoritative resources. From this perspective, the influence of the social sciences, and notably of sociology, was considerable. From the late 1950s the social sciences dominated the public discourse on technological change and on the future of industrial society. While undergoing a process of fundamental change themselves, the social sciences, especially sociology, destroyed traditional perceptions of technology and contributed to bringing about a more pragmatic image of the State. Having liberated the thinking about the state from its metaphysical connotations, government and administration could define a more active role for the state, a role that, such was at least the underlying idea, would reconcile social and technological changes with individual freedom. At the same time, however, it was still perceived to be one of the most prominent tasks of the state to save the individual from the bad consequences of these changes by means of social policy. Thinking in terms of the welfare state (Sozialstaat), it is still a characteristic of Germany’s political order and provides a splendid example of the “path dependency” of political developments (for a discussion of this concept and an example of social policy see Conrad, 1998). Often, the channels of influence that social scientific knowledge traveled to reach the members of the political and administrative elite were based on personal relationships between and informal networks of politicians and scientists. There are hardly any written documents about these relationships and networks, which makes it difficult to reconstruct them within a framework of historical

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analysis. Moreover, and this is especially true for the late 1960s, the borderline between political decision makers and social scientists became more and more permeable. Therefore, it is necessary to analyze the educational backgrounds of the political and administrative elite thoroughly and to investigate the way they saw themselves. The observation of the failure of the planning program, in the early 1970s, leads to the hypothesis that the history of modernization and “social scientification” of West German politics is, in certain respects, a history of semantic modernization (for the concept of semantic modernization see Luhmann, 1991). It must be the object of further, more thorough analysis to prove if the political and administrative elite actually just used the language of the social sciences to legitimize political decisions and, by doing so, give these decisions—and themselves—a more modern image. In this sense, one could argue that it was mainly their “symbolic usefulness” that made the social sciences so attractive, from the politicians’ point of view, because the sciences could be used for “endorsing and dignifying preexisting and predetermined political purposes” (Stehr, 1996, 1.11). If modernization really took place only on the semantic level, this would provide a further explanatory element with regard to the nearly complete breakdown of all planning ambitions by 1972–1973: Planning, from this perspective, never really took root very deeply in the soil of government and administration and may be characterized as symbolic politics. But, how was it possible for the social sciences to become a source of legitimation in the political process? To answer this question, we have to take into account the belief in the feasibility of all-embracing political and social reforms, in the possibility of steering economic processes and, thereby, guaranteeing permanent economic growth. The belief in this possibility was prevalent in the 1960s; it was, as such, deeply rooted in the trust in the capacity of the social sciences. Political decisions based on social scientific advice were considered to be rational decisions, and only rational decisions would guarantee that there would be no predominance of any single social group in the decision-making process, but rather, that all interests involved would be taken into account. Therefore, it was argued, that only rational decisions (based on social scientific expertise) are democratic decisions. But, how did the social scientists legitimize themselves as expert advisors, both in the political process and within their own peer group? What motivated them to provide expert knowledge? It may be presumed that not all of them had genuine political motivations although there is a tradition of reform policy in the German social sciences, notably in sociology. Many of the social scientists, who acted as consultants to government and administration, were driven by their scientific interests and ignored (or tried to ignore) the political implications of their work (on this problem see Mayntz, 1977). These questions suggest we should think about the relationship between social scientists as expert advisors, and the political as well as administrative elite, in terms of supply and demand: both sides offering and seeking something (information, knowledge, funding, or even legitimation). However, these market-style exchange relations, themselves, need to be

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legitimized, as the sharp criticism from within the ranks of scientists in the 1970s indicates: Helmut Schelsky, for example, condemned, with very strong words, that intellectuals (especially social scientists) would monopolize new means of power and control, and establish themselves as the new elite. As he saw it, social scientists were about to become a class of meaning-producers whose authority would be based on their insider knowledge (Herrschaftswissen). New forms of domination would consequently emerge that would be based on instruction, care, and planning (Belehrung, Betreuung, Beplanung) (Schelsky, 1975). These polemic theses by Schelsky bring to the fore a central issue regarding social scientists as experts and political advisors: legitimation. Questions of motivation and legitimation, arise not only in the context of this research project, but are relevant with respect to the role of the experts in modern—and democratic—societies in general.

References Aron, R. (1957). The opium of the intellectual. New York: Doubleday. Backhaus, J. (1988). Die “Allgemeine Theorie”: Reaktionen deutscher Volkswirte. In H. Hagemann & O. Steiger (Eds.), Keynes’ General Theory nach fünfzig Jahren (pp. 61–81). Berlin: Duncker & Humblot. Bell, D. (1960). The end of ideology. London: Macmillan. Bergedorfer Gesprächskreis. (1964). Planung in der freien Marktwirtschaft. Hamburg, Germany: Decker. Böckenförde, W. (1964). Die Organisationsgewalt im Bereich der Regierung. Eine Untersuchung zum Staatsrecht der Bundesrepublik Deutschland. Berlin: Duncker & Humblot. Brandt, L. (1957). Die zweite industrielle Revolution. Munich, Germany: Paul List Verlag. Bruder, W. (1980). Sozialwissenschaften und Politikberatung. Zur Nutzung sozialwissenschaftlicher Information in der Ministerialorganisation. Opladen, Germany: Westdeutscher Verlag. Bundesakademie für Öffentliche Verwaltung. (1974). Ein Beitrag zur Verwaltungsreform. Bonn, Germany: Bundesinnenministerium. Bundesministerium für Forschung und Technologie (BMFT). (1975). 5. Forschungsbericht. Bonn, Germany. Conrad, C. (1998). Alterssicherung. In H. G. Hockerts (Ed.), Drei Wege deutscher Sozialstaatlichkeit. NS-Diktatur, Bundesrepublik und DDR im Vergleich (pp. 101–116). Munich, Germany: Oldenbourg. Erhard, L. (1965). Regierungserklärung. In Verhandlungen des Deutschen Bundestages, 5. Wahlperiode. Stenographische Berichte (Vol. 60, pp. 17–33). Bonn, Germany. Giddens, A. (1984). The constitution of society. Outline of the theory of structuration. Berkeley, CA: University of California Press. Giersch, H., & Borchardt, K. (Eds.). (1962). Diagnose und Prognose als wirtschaftswissenschaftliche Methodenprobleme. Verhandlungen der Tagung des Vereins für Socialpolitik in Garmisch-Partenkirchen 25.–28. September 1961. Berlin: Duncker & Humblot. Habermas, J. (1963). Verwissenschaftlichte Politik und öffentliche Meinung. (Reprinted) In J. Habermas, Technik und Wissenschaft als “Ideologie” (pp. 120–145). Frankfurt a.M, Germany.: Suhrkamp. Herf, J. (1984). Reactionary modernism. Technology, culture, and politics in Weimar and the Third Reich. Cambridge, UK: Cambridge University Press. Heu, E. (1998). Kontinuität und Diskontinuität in der Nationalökonomie nach dem 2. Weltkrieg: Ordoliberalismus versus Keynesianismus. In K. Acham et al. (Eds.), Erkenntnisgewinne,

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Waxman, C. (Ed.). (1968). The end of ideology debate. New York: Funk & Wagnalls. Weyer, J. (1984). Westdeutsche Soziologie 1945–1960. Deutsche Kontinuitäten und nordamerikanischer Einfluß. Berlin: Duncker & Humblot.

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Chapter 4 Socialist Legal Experts: A New Profession?1 Ute Schneider TU Darmstadt, Department of History, Schloss, 64283 Darmstadt, Germany [email protected]

The German state has played a much stronger and more central role in the training, recruitment, and control of its lawyers than the British or American state. In contrast to their Anglo-American colleagues, German lawyers have had the privilege and the burden of the so-called Juristenmonopol since the 19th century, inherited from the age in which most lawyers were employed by the state as civil servants. This means that they need a final university examination and a second examination after two years of articling. Even though since the late 19th century most of the trained lawyers have not been able to find a position in the civil service for a variety of reasons and have had to establish themselves as free solicitors or in similar professions, the Juristenmonopol has not been revoked. For this reason, Rottleuthner calls the German lawyers a “spurious profession,” and Jarausch talks about “unfree professions” (Jarausch, 1990; Rottleuthner, 1988). The professionalization of lawyers as well as their place in the elites of administration and government have been a continuing research topic in the social sciences. Starting in the 19th century, the history of this successful professionalization involved the so-called Juristenmonopol, that is, lawyers’ privileged access to positions in civil service, the self-recruiting mechanisms of the profession, as well as a commitment to delineate oneself from other professional groups. Often, studies focus on the two dictatorships, National Socialism and the German Democratic Republic (GDR). Whereas research on National Socialism in the late 1960s was dominated by the idea that politically conformist elites were ousting the previous legal elite, more recent research has shown the decisive role, function, and continuity of German lawyers in justice and administration. Nonetheless, state policy was directed at de-professionalizing this group, questioning its self-image, knowledge, and ethics (Dahrendorf, 1965; Ruck, 1996; Siegrist, 1996). Research on the second German dictatorship in this century is still in its infancy. At the moment most inquiries emphasize, above all, the process of politi1 I owe a very special thank to Tom Saunders, who made very stimulating comments and helped me to negotiate with the obstacles of the English language.

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cization and de-professionalization. The struggle against “class law” and the denigration of elites, who were always under suspicion of being prone to bourgeois ways of thinking, was a main topic in political discourse and communist policy. A central aspect and often propagated goal in the Soviet Zone, and later GDR, was to link the intended fundamental changes in political and social structures with a replacement of “old elite” legal professionals. The policy of de-nazification and recruitment of a new elite that started in the Soviet Zone immediately after the war resulted in the training of so-called Volksrichter (people’s judges) and Volksstaatsanwälte (people’s prosecutors), an institutional shift intensively discussed among contemporaries and historians. These judges and prosecutors were quickly trained legal functionaries without an academic background. Party membership in the Communist Party of Germany (Kommunistische Partei Deutschlands [KPD]) and, from 1946, in the Socialist Unity Party of Germany (Sozialistische Einheitspartei Deutschlands [SED]) was more important than a professional training (Amos, 1996; Deutscher Bundestag, 1995; Bundesministerium der Justiz, 1994; Schröder, 1999; Wentker, 1997). A closer look at the replacement of the old elite, pompously propagated by the GDR, demonstrates that it was by no means as extensive as claimed with regard to the legal profession. Even the GDR could not do without the expertise of academically qualified personnel, and it only gradually freed its legal system from middle-class traditions and ties to the 19th century. In addition, even the GDR needed such expertise to transform its traditional legal system into a socialist one. A generation of legal experts, German lawyers trained in the German Civil Code (Bürgerliches Gesetzbuch [BGB]), continued to occupy key positions in the Ministry of Justice of the GDR. Being in leading positions, they used the law and legislation to influence and regulate politics and society, always, of course, in accordance with the political guidelines. These experts codified the new socialist norms, which affected the society as a whole, while they equally kept up the standards of their own profession. They used their competence to counter tendencies of de-professionalization in the early years of the Soviet Zone and GDR, insisting on consistent standards and expert knowledge. They not only applied these to their own profession, but they also contributed to social research more broadly (the Verwissenschaftlichung) and, especially, to the establishment of sociology in the GDR. At the same time, they did not remain untouched by the political changes and their own efforts to transform the legal system into a socialist one. The results became obvious when the new generation of socialist legal experts gained more influence in legislation and other areas of political importance. Some of the older lawyers struggled to keep up with these experts, but at the end of the 1960s they had to recognize that the era of their influence was over. This process will be presented in the following pages with a case study. All results are limited to the Central Administration of Justice, the later GDR Ministry of Justice, its staff, and to those related personnel delegated to lawmaking. The thesis will focus on the new codification of family law, which took place be-

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tween 1946 and 1966. This law aimed to create norms, first to stabilize post-war society, and then to form a basis for future reorganization necessary for a socialist society. The political and economic needs of the post-war period made it a necessity to give protonatalism (i.e., state support for families in order to increase birth rate) as well as female employment a central place in family law in East Germany (Grandke, 1995; Jarausch, 1999). The Ministry of Justice and its experts, thus, acquired a key role, since it was up to them to create the conditions for the intended changes in society. Family law offered them the opportunity to make deep incursions into society. First, I shall go briefly into the legal policy of the Soviet Military Administration (Sowjetische Militäradministration Deutschlands [SMAD]) in the period immediately after the war, and second, I will deal with the composition of the committee that dealt with the codification of a new family law. In discussing the working processes within the committee and the role technical terminology played for the lawyers, I would like to clarify their insistence on professional knowledge. Although professional knowledge was one demand, socialism was the other. Their work was dedicated to the project of socialism and the development of a socialist legal system. That was by no means an easy task, and conflicts arose over important legal questions, especially with the younger generation of socialist lawyers. One fundamental area of dissent, presented in this chapter, illuminates very clearly the deficiencies of the first generation and the different political attitudes of both age groups concerning individual rights and society. In the GDR, it was always a political demand to integrate different political organizations and the people into the lawmaking process. But, sometimes it was not easy for the committee to obtain the needed expertise, or empirical data, since there was no established discipline of sociology in the GDR until the end of the 1960s. The relationship between the committee’s needs and work, the establishment of sociological research, and the institutionalization of family law as a legal discipline, all important aspects of the process of Verwissenschaftlichung, therefore, require inclusion in this discussion.

The Legal and Personnel Policy of the Soviet Military Administration Criticism of justice was an old tradition under the Social Democrats and Communists. Lack of security before the law and the high proportion of lawyers involved in the National Socialist perversion of law strengthened, among exile and opposition groups, the recognition that after the end of the war a reform of justice was urgently required. In spite of various proposals, reform of the law was not a priority among the Communists. There were a number of reasons for this, the most important of which was certainly that traditionally very few lawyers were Communists and that few among them—and this seems much more important—had been able to find their way into a legal position before 1933. In

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addition, in the period immediately after the war Communists preferred to sit in the critical positions of power and consequently preferred other positions of responsibility. For that reason, non-party, Liberal, Christian Democratic, and also Social Democratic lawyers predominated in the Ministry of Justice (Amos, 1996; Hoefs, 1999). The official responsible for the German Central Administration for Justice (Deutsche Zentrale Justizverwaltung) set up in 1945, later the Ministry of Justice, was Eugen Schiffer, who was already 85 years old. Until 1933 he had been a member of the German Democratic Party (Deutsche Demokratische Partei) and had not only full legal qualifications, but also the necessary political experience, since he had already held the office of Minister of Justice from 1919 to 1920. His staff policy and employment measures led to conflict from the very beginning with his deputy, who had no legal training (Amos, 1996; Bundesarchiv Berlin [BArchB], DP 1 VA 1, p. 293). Schiffer had seemed a good choice as the head of the Central Administration because in the 1920s he had spoken up for legal reform and for law to be made more accessible for the population. However, as far as the conceptions of family and family law were concerned, he warned against an appreciation and emulation of Russian law. For the Communists in the Central Office, Party headquarters (Zentralsekretariat [ZS]) Schiffer’s suggestions soon came to be regarded as “retrograde in character.” According to them, his demand for the independence of the judiciary and other guarantees of a constitutional state tended in the same direction, “namely to afford an isolated caste of judges a privileged and dominating position.” Schiffer refused to budge from his commitment to an independent judiciary, “to protect democracy against injustice and lawlessness.” Moreover, he continued to demand professional judges and justice in general, and an important role for justice in the state: It is in the interest of the survival of justice not to permit itself to be alienated from important sectors of the state and from the people. I cannot consider allowing our good, old justice with its ancient principles and academic training to be driven out of the legal system and I cannot consider permitting the old professional judges with their academic training to be replaced by “Volksrichter.” On the contrary, I wish to strengthen and deepen the professional training of the professional judges. I do not intend to let the “Volksrichter” replace the professional judges, but supplement them. (BArchB, DP 1 VA 7844, p. 20; BArchB, DP 1 VA 6592, p. 26f.; Ramm, 1984; Schiffer, 1928) This was a clear statement and Schiffer tried to uphold it. Professional competence and with it professionalism were central criteria to obtain a job under Schiffer, even if the Soviet Military Administration had the final word about the appointment. Almost all leading officials were fully trained lawyers. Among the total number of staff, almost 60, there were as many as 22 fully trained lawyers: 19 men and—surprisingly—3 women. All of them had been born between 1860 and 1911. The majority had studied in the time of the Empire or the Weimar Republic. They had served as lawyers in different capacities before 1933. Con-

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sidering the period of National Socialism, we can divide them into four different categories: a small group of those who had not compromised themselves under the Nazis but remained in their positions, a second small group of Eastern emigrants, the larger group of Western emigrants, and those who had somehow survived persecution in Germany (Amos, 1996; BArchB, DP 1 VA 1, pp. 62–196; Schneider, 1999).

From the Traditional to the Socialist Legal Expert After the war, and partly as a consequence of it, women’s legal and societal status was debated in all zones. Demands for modernization were accompanied by those for changes in family law, which had been on the agenda of democratic lawyers since the Weimar Republic. Whereas the discussion about central aspects, such as equal rights, was postponed in the Western Zones and the later Federal Republic of Germany until the 1950s, the GDR went ahead with reform in the form of individual laws and then a new codification. Demands for equal opportunities in marriage and family, questions of adoption, divorce, and, very important in the post-war context, the question of illegitimate children were taken up (Douma, 1994; Heinemann, 1999; Moeller, 1997; Müller-List, 1996; Schneider, 2000).

The Committee for Family Law Several groups discussed these questions concerning emancipation and women’s status in society, family, and law independently of each other after the war. Among the groups who strove for new socio-political solutions, the female organizations—such as the Democratic Women’s Union of Germany (Demokratischer Frauenbund Deutschlands [DFD]), but also a study group of female lawyers—were particularly prominent (BArchB, DP 1 VA 6633, p. 168; BArchB, DP 1 VA 7354). These individual efforts were combined in 1949 after the Council of the People (Volksrat) gave the Ministry of Justice the task of reforming family legislation (BArchB, DP 1 VA 8002; BArchB, DP 1 VA 8038; BArchB, DP 1 SE 1126; Eberhardt, 1995; Schneider, 2000). Besides these public groups, there also existed a similar discussion group, originating from within the Ministry, debating problems of family law with a few intimate members of the staff. In 1949, the Ministry of Justice, commissioned by the Council of the People, brought these different attempts together. It created the Committee for Family Law, which functioned through several subcommittees. Each of them dealt with one specific subject, for example, the law of inheritance. The composition of the sub-committees remained more or less unchanged during the years of their existence. The Committee consisted of members of staff of the Ministry of Justice and lawyers from the universities. At the beginning of the 1960s, the number of delegates representing various sec-

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tions of society was raised for political reasons and, in the 1950s, younger lawyers were integrated into the Body of the Committee. The members of the older generation had enjoyed a traditional German legal training. Although they had studied under different conditions the younger members were still well acquainted with the German Civil Code (BGB), for it remained partly in force until the passing of the Civil Code of the GDR (Zivilgesetzbuch [ZGB]) in 1976 (Göhring & Dost, 1995). Unfortunately, there is not enough space here to introduce the individual members in detail. For that reason, I would like to name some and concentrate on a few interesting representatives. Hilde Benjamin (1902–1989), Minister of Justice, was chairman of the Committee, and in addition, was responsible for the recruitment of new legal experts (BArchB, DP 1 VA 7842, p. 302; Brentzel, 1997; Feth, 1997). Ernst Melsheimer (1897–1960) was another member of the Committee. In 1949 he became Chief Public Prosecutor of the GDR. He had worked for the Ministry of Justice since 1921 and had been a member of the Social Democratic Party since 1928. In 1937 he had been demoted to the post of a Supreme Court Judge (Kammergerichtsrat). Consequently, he was one of the very few lawyers with a “clean” past, which meant that he could continue his career in the GDR after de-nazification (BArchB, DC 20/7881, p. 1ff). One of the most important and long-serving members of the Committee was Hans Nathan, who deserves to be introduced in more detail. Nathan, born in 1900, descended from a family of Jewish lawyers in Görlitz. He studied law in Berlin, Marburg, Munich, and Breslau, and gained his doctorate in 1921. After his studies, Nathan worked as solicitor in his father’s office in Görlitz between 1925 and 1933. A former member of a student corporation, he described himself as politically “disinterested.” However, relatives recruited him for the German Democratic Party. The racial policy of the National Socialists forced him to leave for Czechoslovakia in 1933. From there, he emigrated to England in 1939. After a period of internment, Nathan earned his living with various jobs in Manchester. It was in Manchester that he worked for the first time in his life in a factory, where he joined the Communist Party. In 1946, Nathan returned to the Soviet Zone. He got a job in the Department of Justice after a talk with Melsheimer and Benjamin. His career was typical of many people, not only lawyers, who survived exile in the West. He lost his job in 1952 as a result of the purges of the early 1950s that shook most Eastern countries with the aim of exposing supposed Western spies. Nathan was quite lucky, under the circumstances, and became main editor of the legal journal Neue Justiz (New Justice). Nathan himself would have preferred to remain in the administration. Looking back, he characterized his time in the Ministry as his “most fruitful and creative period.” Shortly after changing jobs, he was appointed Professor of Civil Law at the Humboldt University in Berlin and became very active in legal education. He was Dean from 1954 to 1961, and Head of the Institute for Invention and Patent Law (Institut für Erfindungs- und Urheberrecht) from 1963 until he retired. All these years he remained an active member of several legislative committees. He died highly decorated and honored in 1971 (BArchB, DP 1 VA 821;

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BArchB, DP 1 VA 8232; Stiftung Archive der Parteien und Massenorganisationen der DDR im Bundesarchiv [SAPMO-BArchB] DY 30/IV 2/V 1036; SAPMO-BArchB, DY 30/IV 2/4/134; SAPMO-BArchB, DY 55/v 278/3/176; SAPMO-BArchB, DY 30/IV 2/4/ 92; interviews [all made by the author] with Erich Buchholz, 17 April 1998; Karl-Heinz Eberhardt, 8 August 1997; Sabine Nathan, 27 June 1997). Nathan had attributes that many would have regarded as typical of a German lawyer. Academically Nathan “had above average legal knowledge in the field of bourgeois legislation,” a qualification that Karl Polak (1905–1963) (Baumgartner & Hebig, 1996), one of the leading lawyers in the GDR, had bestowed upon him in 1946. He was regarded as a “good and many-sided lawyer” with long practical experience in all areas of jurisprudence, had experienced “a broadening of his horizon during emigration,” and was in addition “very keen on work.” Colleagues had a high opinion of him and agreed that he was “a so-called legal expert.” According to other sources, this reached the point that “when judges read a statement of Dr. Nathan, who with his articles is regarded as an authority in legal practice, they do not diverge from his point of view” (SAPMO-BArchB, DY 30/IV 2/V 1036). Politically, this high level of professionalism and professional competence was viewed with some suspicion: He is inclined to put his professional work in the Ministry of Justice in the forefront and, as a result, his political and social work falls behind. The result of an overestimation of his professional legal competence is an insufficient solidarity with the Party. He always aims to employ only academically qualified lawyers in his department. (SAPMO-BArchB, DY 30/IV 2/V 1036) This judgment openly criticizes Nathans legal professionalism, which had apparendy survived both the cadre system and nomenclature. Nathan—and this makes him prototypical for us—was a decisive factor in the recruitment of legally trained young talent not only for the Committee for Family Law but also for many other important positions. If one looks at the younger generation born around 1930 who were in the Ministry of Justice and the legislative Committee for Family Law, it emerges that the decisive people were recruited by Nathan. These were lawyers who studied at the beginning of the 1950s in the GDR, a period when the German Civil Code (BGB) was still authoritative in the GDR, and when students were still being taught by lawyers with a clean record, such as Nathan, even though the political approach toward the universities was strengthened and early reforms had already started in 1947 (Jessen, 1999; interview with Anita Grandke, 26 June 1997). Among them was even a female people’s judge (Volksrichterin), which does appear to have contravened the principles of recruitment. Closer examination makes it clear, however, that her training as people’s judge was only the conclusion of a legal career that had begun in the Weimar Republic (BArchB, DP 1 VA 1925; BArchB, DP 1 SE 3360; interview with Linda Ansorg, 31 July 1996). The existence of such a network, recruited for professional competence and the

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accompanying habitus and behavior, is very interesting given the cadre system as the basis for recruitment. Qualifications and patronage as well as political reliability were obviously important criteria for recruitment to the Ministry of Justice and its different lawmaking committees. This rule applied for Schiffer as well as for his successors and did not contravene the communist idea of cadres. It guaranteed a professional continuity in this special field of civil service even in the GDR. For that reason, the older generation of lawyers were not different from their predecessors and most colleagues in the West. Also, interestingly enough, the recruitment policy for civil servants in the Ministry of Justice in the early GDR followed German tradition, demanding professionalism and political reliability to the governing regime. The lawyers, who were members of the Committee, especially those of the older generation, were all generalists. Owing to their former jobs as solicitors, they were well acquainted with all parts of civil law. Family law constituted only a small section of this, but it played, and still plays, a more important role in the solicitor’s practice than in his training. The members of the Committee, however, were sufficiently familiar with the German Civil Code (BGB) and its rationales. For that reason, nobody doubted their expertise. They also had already proved their qualifications in other contexts before their cooption onto the Committee. But, the members of the Committee also knew their professional limits. These limits existed especially in those parts of the law that came into force because of economic transformation in the GDR. One important element of this process was the restructuring of the agricultural sector with the introduction of collectivization and the emergence of collective farms (Landwirtschaftliche Produktionsgenossenschaft [LPG]) (Bauerkämper, 1994). These changes not only heavily affected economic and social structures, but also had profound legal consequences. The competence of the Committee’s members did not really extend to these new parts of the law, which, to a certain extent, were established parallel to, and in close connection with, the discussion of the new codification. Therefore, changes were prescribed by individual laws (Einzelverordnungen) in the agricultural sector until the late 1950s. The legal framework for the agricultural sector was set down by law as late as 1959 and 1982, but this is outside the period we are discussing here. (This is not the place to discuss the development of agricultural and LPG law and the arguments it provoked. For details see Heuer, 1995; Schönfeldt, 1997; Steding, 1995.) With regard to family law, questions of equal rights for the female farmers, property, and laws of inheritance proved especially challenging for the lawyers. Often, they were at a complete loss. For example, there emerged a striking contradiction between equal rights set down in the constitution and, thereby, applicable to family law, and the principle of indivisibility of the properties of those who first received title to land on the new expropriated land (Neubauern). Family law should have standardized equal rights for women, but the principle of indivisibility discriminated against the collective farmer’s wife because she did not have access to the land. The wife of a long-established farmer, by contrast, had a

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claim on any marital wealth in the case of divorce. These contradictions were debated from the very beginning of the family law’s codification. But, there were no experts for land law, because both the entire land reform and its legal counterpart were in the process of lawmaking. For that reason, the relevant ministries discussed these questions at the beginning of the 1950s. They could not find a solution, because some were afraid of interfering with the system of land reform. Therefore, they declared themselves in favor of maintaining a legal inequality. The Ministry of Justice, by contrast, defended the principle of equal rights (BArchB, DP 1 VA 8038, p. 143ff.). It was not until the late 1950s that the Committee could call in an expert on land law. Rainer Arlt (1928–1997) belonged to the younger generation of lawyers and had studied law in the GDR and Soviet Union. Beginning in 1957 he taught collective farm and land law as a professor of the German Academy for State and Law (Deutsche Akademie für Staat und Recht [DASR]) in Potsdam (Baumgartner & Hebig, 1996). His knowledge of land law and the situation in different types of collective farms finally helped the Committee to find a solution to the problem. It prescribed joint ownership of property between husband and wife in the Family Law (Familiengesetzbuch [FGB]), and awarded both the power of disposal (Familiengesetzbuch, 1965, §§39–40). However, the problem of equal rights of the new female farmers was not satisfactorily solved. This became evident when the Ministry of Justice, in cooperation with Arlt and other experts, drafted an “argumentation for the discussion of the FGB plan with members of LPGs.” These discussions were an integral part of the process of codification, because “laws of the people” meant not only participation of the population in the Committee, but also the participation of a selected public through talks and discussions (Schneider, 2000). Finally, there was no choice but to deal with the problem of equal rights for the female collective farmers. The advice was that “full equal rights were only realizable when she became a member of an LPG herself” (Archive of the University of Potsdam, AS 6476; SAPMO-BArchB, DY 34, 4295). The example of the LPGs is of importance because it marks the transition of the civil law of the German Civil Code (BGB) to the “socialist law” of the Family Law (FGB). This did not happen without difficulties, traces of which can be found in examples taken from the process by which the Family Law (FGB) emerged. That process witnessed particularly heavy conflicts along generational lines. One of the oldest Committee members, Nathan, summed up his experiences in a legally and politically important meeting in February 1960. Responding to the accusation of a younger colleague that Nathan passed on traditional, non-socialist law, he set his argument in the context of the principle of criticism and self-criticism. This principle was one of the most important for the political development and function of the cadres within the leadership of Communist parties, aiming to discipline members in a kind of ritual (Schroeder & Wilke, 1997). A generation gap distinguishes the old cadres, the handful of elderly scholars, those who were educated before 1945 and generally hold leading positions in

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the university faculties and who have fallen behind. There is no doubt that this group—for which I, as its eldest member, think I can speak—has not kept pace. Criticism on this point is fully justified, for the facts are plain. It is also no surprise. For the older comrades who in part, like me, became bourgeois lawyers and then practiced for years, who studied civil law, it is particularly difficult to abandon accustomed paths. It is not a case of malicious intent, but simply how difficult it is, how much beyond one’s ability, to abandon the old. As long as it was only a matter of making our law more democratic, as in the first eight to ten years, we stood at the forefront, participated with others and did what we could. Now, when it’s a matter of creating socialist law, we cannot keep up. (BArchB, DY 30/IV 2/2.110/3)

Professional Standards and the Process of Scientification Lawyers are known for their technical terminology. In contrast to other professions, they have always been criticized for their use of specific vocabulary, which laymen are often at a loss to understand. This criticism manifested itself in the demand for people’s justice (Volksjustiz), which meant law comprehensible to the people and administered by judges not of the middle, but the working class. This demand is almost as old as the legal profession itself (Luhmann, 1987; Neumann, 1992; Weber, 1964). It was a favorite demand of socialism and so it follows that GDR rulers repeatedly insisted on a legal system that was “close” to the people. Comprehensible laws, they said, were characteristic of “socialist law.” The lawyers themselves supported their demand by openly insisting on doing away with “legal German.” This may have meant undermining their own position and function, but many lawyers feared accusations of bourgeois formalism due to their technical terminology. Consequently, they worked out all new codices in cooperation with workers, taken from several areas of production. In addition, they took up suggestions from the public. But, it proved impossible “to turn the law into a reader” (interview with Erich Buchholz, 17 April 1998). Thus, linguistic simplification was restricted to modifications that did not change the sense of legal requirements. Some legal expressions, though not understandable to the laity, would not permit changes without altering their meaning. Here, in their very own domain, lawyers fended off all political attacks. At the same time, they tried to introduce easier or more appropriate terms in all areas they found politically relevant and/or legally less important. However, the Committee did not unanimously agree on the use of certain ideological terms within legal documents. One example is the preamble of the Family Law (FGB), which was corrected after the 12th Party Conference. One member suggested extending the first paragraph with the statement that “Family Law supports the development of the means of production.” Heinrich Toeplitz, President of the High Court and experienced Member of the Committee, “warned against formulations which call people means of production in the law.” His opinion carried a great deal of weight, and the “means of production” did not replace hu-

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man beings in the Family Law (FGB) (BArchB, DP 1 VA 1925; Familiengesetzbuch, 1965). This example demonstrates how technical terminology remained one distinctive characteristic of the lawyers and a characteristic of their professionalism, even in the GDR. Despite all political concessions, lawyers were not prepared to give up practiced and established linguistic standards of their profession. They were not willing to replace them with arbitrary, unclear expressions. With these standards in mind, they asserted themselves, though not without difficulties, against pompous propaganda and political rulers who relied on their legal expertise. The GDR’s foreign and domestic policy and situation always directly influenced the work of the Committee. Its several drafts are like a seismograph, showing contemporary political and social tremors. The building of the Wall in 1961, for example, enabled the enforced resumption of the Committee’s work, because preservation of uniform German law was no longer the order of the day. But, daily life in the GDR and the GDR’s academic disciplines highlighted the Committee’s limits more often than these big events. This applied especially to the lack of sociology, in general, and family sociology, in particular. This is not the place to discuss in detail the difficult relations between Marxist ideology and sociology. However, one should remember that this discipline lost its status as an independent science and, in addition, was under the verdict of “bourgeois” in the GDR after 1948. Only the 10th Party Conference of the Soviet Communist Party in 1956 created the conditions for the rebirth of the discipline. But, at the beginning, it was a slow and unorganized process (Steiner, 1992). Kurt Braunreuther (1913–1975) was one of the founding fathers of sociology in the GDR. During the 1950s, he taught at the Department of Political Economy, part of the Faculty of Economics, at Humboldt University in Berlin. After founding the Research Division of Sociology in the year 1961, he became Head of the Research Group Sociology and Society (Soziologie und Gesellschaft). In addition, Braunreuther contributed to the establishment of the discipline in several other functions (Sparschuh & Koch, 1997). The connection between the incorporation of sociology into the academic system of the GDR and a need for socio-political analyses is evident in the case of the Committee for Family Law. Whereas in the 1950s the Committee always relied on statistics drawn up by the Ministry itself, from 1962 onward members repeatedly demanded sociological studies of the family. It was mainly the younger generation who drew constant attention to this deficit. Their complaints had a concrete cause. The Committee struck an impasse on one of the important questions of family law. The question dealt with the problem of separation or community of goods and property (Gütertrennung oder Gütergemeinschaft) in marriage. The opinion of lawyers was divided on generational lines. The older generation, such as Benjamin and Nathan, had already occupied themselves with this question after the war. In 1948, after intensive discussions, they declared themselves in favor of the so-called Errungenschafts- oder Zuge-

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winngemeinschaft (separate property with equal division of property acquired after marriage). Their debates resulted in a rejection of the originally favored separation of property (Gütertrennung). The basis of their decision was the idea that marriage was founded on use and increase of property by husband and wife, each enjoying equal rights to do so. Strict separation of property they condemned to be bourgeois, a very negative verdict, and non-socialist. Separation should be permitted only at a wife and husband’s express wish. The first draft of the Family Law followed the aforementioned principle. When it was discussed publicly and nationwide in the GDR in 1954, women in particular protested against the Errungenschaftsgemeinschaft. They noticed that in the case of a divorce it did not necessarily mean material compensation for them (Archive of the University of Potsdam, AS 6476; BArchB, DP 1 VA 1925; BArchB, DP 1 VA 7198, p. 181, p. 365; BArchB, DP 1 SE 1126). A Marriage Law, passed in 1955 instead of the Family Law, provided no obligation for either partner to provide financial support in the case of a divorce. In reality this usually disadvantaged the wife, because she was not materially compensated for the time she had spent bringing up the children. Such a legislative decision was due to the economic situation and problems of the GDR at the end of the 1940s and in the early 1950s. After the construction of the Wall in 1961 the economic situation improved slightly. Also, at this time, a new generation gained more influence in all occupations, just as in the Committee for Family Law. These younger members opened a debate on property again and spoke vehemently in favor of joined property. Their main intention was to prevent injustice by an equal, in certain cases even unequal, distribution of the property in the case of divorce. A dispute broke out over this question in the Committee and elsewhere, focusing on the ideological understanding of marriage and equal rights. The main supporter of joint property was Anita Grandke. Born in 1932, she had studied law at Humboldt University in Berlin between 1950 and 1954. Appointed to the Committee by Nathan’s recommendation, she was a member from the late 1950s. Grandke defended the principle of joint property ardently as an achievement of socialism and an expression of “socialist law.” But, she could not convince the older members of the Committee and was, as a consequence, even prevented from publishing her dissertation on that subject (Archive of the University of Potsdam, AS 6476). Neither the following private discussions, nor the calculation of conflicts about property as the result of divorce, nor notarial contracts and the regulation of property law in other socialist lands, produced clear results. Finally, it was decided to consult empirical data concerning the financial condition of married couples in the GDR (BArchB, DP 1 VA 8150; interview with Karl-Heinz Eberhardt, 8 August 1997; Interview with Anita Grandke, 26 June 1997). On this occasion, the lack of academic sociology became obvious. Since the discipline was incorporated in the Institute for Political Economy, empirical social science was in its infancy. There were no empirical data to enable the Ministry of Justice as well as the Committee to come to a decision. Again, the Com-

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mittee itself was forced to carry out a survey. But, at the same time the Ministry of Justice contacted Kurt Braunreuther. They asked him to instruct one of his staff in the methods and results of social science research. The Ministry considered cooperation to be of mutual use and, in contrast to former times, even the party leadership supported scientific exchange. At last, this kind of cooperation was in perfect accordance with the official party policy of reforming the educational system and increasing scholarly activity in all fields (BArchB, DP 1 VA 6838; Meuschel, 1992; Weber, 1999). The Ministry of Justice made full use of all these new possibilities and techniques to obtain reliable surveys. Its staff conducted an opinion poll in several nationally owned companies concerning the relations of property. The result was only surprising to the older members of the Committee, because, with the sole exception of the farmers, the majority of participants in this poll practiced the model of joint property. Consequently, the idea of the younger members of the Committee finally found acceptance in the Familiengesetzbuch. However, it also seems significant that the Committee’s conception of the status quo, in property law, revealed some traditional legal ideas in the ever-repeated demand to reflect social relations, instead of creating arbitrary norms. In this context, the general tendencies of Verwissenschaftlichung and the establishment of sociology forced the Committee to fall back on external experts’ reports, and to consult on important questions that had previously been handled internally. At the same time, with its specific questions, the Committee promoted the further establishment and differentiation of sociology. Furthermore, almost every scientific statement concerning family law emphasized the necessity of a sustained sociology of the family (Archive of the University of Potsdam, AS 6476; Benjamin, 1965). Finally, this process influenced the institutionalization of family law itself. Family law still today does not constitute an independent area of law at German universities. Instead, as part of civil law, it is dealt with by experts in civil law. At first, the GDR passed on this tradition, also. But, within the context of the already mentioned new generation and the shift of the ideological focus toward education after the 6th Party Conference in 1963, the GDR drew new attention to the family as part of society. In contrast to the previous period, the significance of the family, at least as an important institution of socialization, was now fully recognized. Surveys proved a close connection between children’s success at school and the background and situation of their family at home (Archive of the University of Potsdam, AS 6476). These discoveries and the new political situation of the GDR after the construction of the Wall, which made German legal traditions and common features less relevant, again placed the project of a new family law on the agenda. The reason for this is obvious: Family law regulates not only the relations between families and the state, but also the relations among family members. This was the important and crucial point, because it opened a possibility for the state to intervene in the family and create the conditions for education reform as a further step toward socialism as the basis of society. In fact, the GDR followed the already adopted course to use family law as an instrument of the state’s social policy and requirements of social regulation.

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Without any public notice the Committee and Ministry worked on this project continuously from 1954. The passing of the Code of Family Law, which came into force on 1 April 1966, was one stage on this path. Experts had, as already mentioned, realized the necessity of a sociology of the family and constantly demanded its establishment. In their opinion, a sociology of the family should not restrict itself to legal aspects, but should constitute a “complex science” of the family and acquire its own intellectual and institutional identity in the university. For this purpose, it was also necessary to establish family law as one independent branch of the legal system. Its codification as a separate branch, not according to German tradition within the civil law, had already created the basis for such a research center. The establishment of a new Chair for Social Law of the Family (Familiensozialrecht) at the Humboldt University in Berlin soon followed in accordance with the intention of the state. Anita Grandke, member of the Committee and expert on family law in the GDR, was holder of the Chair until emeritus status was conferred on her in 1995. Her status as an Emeritus Professor meant the end of a Chair dedicated specifically to family law, because with German unification the former GDR returned to the traditional German legal system and its established university structures.

Conclusion This case study concentrated on one aspect of law and society in the GDR between 1945 and 1966, namely, the Committee on Family Law. A look at the decisive members of this Committee demonstrated that the consistently pursued, thorough-going exchange of the elites did happen in the GDR after 1945. But, this applied only for the personnel and not for the profession. A generation of lawyers trained in the Empire (Kaiserreich) or the Weimar Republic took over in the Ministry of Justice and the universities. They were politically marked, with few exceptions, by their first-hand experiences with the National Socialists. Even cases, such as Benjamin and Nathan, the most prominent members of the Committee, reveal that Communist lawyers did not abandon their professional ethos with the establishment of the new regime. They held onto their professional standards, including their professional identity. Through their example and recruitment policy, they passed it on to the younger generation. In contrast to them, this second generation acquired its professional qualifications after the war. Even if they still were taught by the older generation, the fundamental differences between the two groups became obvious when they were occupied with questions of law and its codification. In addition, there were class differences, the younger generation being steeped in socialism and Marxist ideology. Political activities and demands were part of their life at least since their student days. Whereas the first generation of GDR lawyers was mainly concerned with the stabilization of the new regime and society after the war, the second generation headed toward “socialist law.” The older generation had increasing difficulties keeping up, and the younger generation accused them of being

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“stuck on the road,” from traditional legal expertise, to socialist conceptions of law. This process influenced academic research not only in law, but also in other disciplines, since even socialist lawyers sometimes needed help from other experts. The main discipline to benefit from this process was sociology, which for ideological reasons was still in its infancy in the early 1960s. The lawyers’ demand for empirical data on family life in the GDR became one important impetus for development of the discipline. Finally, family law not only contributed to the process of Verwissenschaftlichung in the GDR, but it was also subject to it. Its differentiation from civil law resulted in the establishment of a new professional identity: the expert in family law.

References Archive of the University of Potsdam: AS 6476. Bundesarchiv Berlin (BArchB): Ministerium der Justiz (DP 1): VA 1, VA 7844, VA 6592, VA 6633, VA 7198, VA 7354, VA 8002, VA 8038, VA 7842, VA 8150, VA 821, VA 8232, VA 1925, VA 6838, SE 1126, SE 3360. Ministerrat (DC 20): 7881. Stiftung Archive der Parteien und Massenorganisationen der DDR im Bundesarchiv (SAPMOBArchB): Sozialistische Einheitspartei Deutschlands: DY 30/IV 2/V 1036; DY 30/IV 2/4/ 134; DY 30/IV 2/4/ 92; DY 30/ IV 2/2.110/3. Freier Deutscher Gewerkschaftsbund: DY 34, 4295. Vereinigung der Verfolgten des Naziregimes: DY 55/v 278/3/176. Interviews [all made by the author] with Linda Ansorg, 31 July 1996; Erich Buchholz, 17 April 1998; Karl-Heinz Eberhardt, 8 August 1997; Anita Grandke, 26 June 1997; Sabine Nathan, 27 June 1997. Amos, H. (1996). Justizverwaltung in der SBZ/DDR. Personalpolitik 1945 bis Anfang der 50er Jahre. Cologne, Germany: Böhlau. Bauerkämper, A. (1994). Von der Bodenreform zur Kollektivierung. Zum Wandel der ländlichen Gesellschaft in der Sowjetischen Besatzungszone Deutschlands und der DDR 1945–1952. In H. Kälble, J. Kocka, & H. Zwahr (Eds.), Sozialgeschichte der DDR (pp. 119–143). Stuttgart, Germany: Klett-Cotta. Baumgartner, G., & Hebig, D. (Eds.). (1996). Biographisches Handbuch der SBZ/DDR 1945– 1990. Munich, Germany: Saur. Benjamin, H. (1965). Das Grundgesetz der Familie im Sozialismus. In Kanzlei des Staatsrates der DDR (Ed.), Ein glückliches Familienleben—Anliegen des Familiengesetzbuches der DDR (pp. 13–35). East Berlin, GDR: Staatsdruckerei. Brentzel, M. (1997). Die Machtfrau. Hilde Benjamin 1902–1989. Berlin, Germany: Ch. Links. Bundesministerium der Justiz (Ed.). (1994). Im Namen des Volkes? Über die Justiz im Staat der SED. Wissenschaftlicher Begleitband. Leipzig, Germany: Forum. Dahrendorf, R. (1965). Gesellschaft und Demokratie in Deutschland. Munich, Germany: dtvTaschenbuch. Deutscher Bundestag. (1995). Materialien der Enquete Kommission “Aufarbeitung von Geschichte und Folgen der SED-Diktatur in Deutschland” (12. Wahlperiode des Deutschen Bundestages). Frankfurt a.M., Germany: Suhrkamp (IV, Recht, Justiz und Polizei im SED-Staat). Douma, E. (1994). Die Entwicklung des Familiengesetzbuches der DDR 1945–1966: Frauen und Familienpolitik im Spannungsfeld zwischen theoretischer Grundlage und realexistenter wirtschaftlicher Situation. Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, 111, 592–620.

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Eberhardt, K.-H. (1995). Die Bedeutung der Volksratverfassung vom 7. Oktober 1949 für die Entwicklung des Familienrechts der DDR. In T. Ramm & A. Grandke (Eds.), Deutsche Wiedervereinigung (pp. 183–223). Cologne, Germany: Carl Heymanns. Familiengesetzbuch der Deutschen Demokratischen Republik vom 20. Dezember 1965. East Berlin, GDR. Feth, A. (1997). Hilde Benjamin—Eine Biographie. Berlin, Germany: Berlin Verlag. Göhring, J., & Dost, A. (1995). Zivilrecht. In U.-J. Heuer (Ed.), Die Rechtsordnung der DDR (pp. 475–516). Baden-Baden, Germany: Nomos. Grandke, A. (1995). Familienrecht. In U.-J. Heuer (Ed.), Die Rechtsordnung der DDR (pp. 173– 210). Baden-Baden, Germany: Nomos. Heinemann, E. D. (1999). What difference does a husband make? Women and marital status in Nazi and Postwar Germany. Berkeley, CA: University of California Press. Heuer, K. (1995). Bodenrecht. In U.-J. Heuer (Ed.), Die Rechtsordnung der DDR (pp. 147–172). Baden-Baden, Germany: Nomos. Hoefs, B. (1999). Kaderpolitik des Ministeriums der Justiz 1945–60. In R. Schröder (Ed.), Zivilrechtskultur der DDR (pp. 145–178). Berlin, Germany: Duncker & Humblot. Jarausch, K. H. (1990). The unfree professions. German lawyers, teachers and engineers 1900–1950. Oxford, UK: Oxford University Press. Jarausch, K. H. (1999). Care and coercion: The GDR as welfare dictatorship. In K. H. Jarausch (Ed.), Dictatorship as experience. Towards a socio-cultural history of the GDR (pp. 47–72). New York: Berghahn. Jessen, R. (1999). Akademische Elite und kommunistische Diktatur. Die ostdeutsche Hochschullehrerschaft in der Ulbricht Ära. Göttingen, Germany: Vandenhoeck & Ruprecht. Luhmann, N. (1987). Rechtssoziologie. Opladen, Germany: Westdeutscher Verlag. Meuschel, S. (1992). Legitimation und Parteiherrschaft in der DDR. Frankfurt a.M., Germany: Suhrkamp. Moeller, R. G. (1997). Geschützte Mütter. Frauen und Familien in der westdeutschen Nachkriegspolitik. Munich, Germany: dtv. Müller-List, G. (Reviser). (1996). Gleichberechtigung als Verfassungsauftrag. Eine Dokumentation zur Entstehung des Gleichberechtigungsgesetzes vom 18. Juni 1957. Düsseldorf, Germany: Droste. Neumann, U. (1992). Juristische Fachsprache und Umgangssprache. In G. Grewendorf (Ed.), Rechtskultur als Sprachkultur (pp. 110–121). Frankfurt a.M., Germany: Suhrkamp. Ramm, T. (1984). Das nationalsozialistische Familien- und Jugendrecht. Heidelberg, Germany: Decker & Müller. Rottleuthner, H. (1988). Die gebrochene Bürgerlichkeit einer Scheinprofession. Zur Situation der deutschen Richterschaft zu Beginn des 20. Jahrhunderts. In H. Siegrist (Ed.), Bürgerliche Berufe (pp. 145–173). Göttingen, Germany: Vandenhoeck & Ruprecht. Ruck, M. (1996). Korpsgeist und Staatsbewußtsein. Beamte im deutschen Südwesten 1928 bis 1972. Munich, Germany: Oldenbourg. Schiffer, E. (1928). Die Deutsche Justiz. Grundzüge einer durchgreifenden Reform. Berlin, Germany: Otto Liebmann. Schneider, U. (1999). Der deutsche Einheitsjurist in der frühen DDR. Elitenbildung beim Aufbau des Sozialismus. Archiv für Sozialgeschichte, 39, 235–264. Schneider, U. (2000). Das Familienrecht der DDR. In H. Timmermann (Ed.), Die DDR—Recht und Justiz als politisches Instrument (pp. 61–80). Berlin, Germany: Duncker & Humblot. Schönfeldt, H.-A. (1997). Zur Entwicklung von Recht und Rechtswissenschaft in der Deutschen Demokratischen Republik. In H. Mohnhaupt & H.-A. Schönfeldt (Eds.), Normdurchsetzung in Osteuropäischen Nachkriegsgesellschaften (1944–1989). Sowjetische Besatzungszone in Deutschland—Deutsche Demokratische Republik (1945–1960) (Vol. 1, pp. 109–120). Frankfurt a.M., Germany: Vittorio Klostermann. Schröder, R. (Ed.). (1999). Zivilrechtskultur der DDR. Berlin, Germany: Duncker & Humblot. Schroeder, K., & Wilke, M. (1997). Kritik und Selbstkritik. In R. Eppelmann, H. Möller, G. Nooke, & D. Wilms (Eds.), Lexikon des DDR-Sozialismus (Vol. 1, pp. 486–487). Paderborn, Germany: Schöningh.

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Section 2 Who Is Called Upon as Expert? The chapters in this second section address the question of who is considered an expert. On that issue, Christoph Antons’ chapter leads us into the intricate world of copyright protection of traditional artwork. In Australia the courts have heard Aboriginees as well as anthropologists as witnesses in copyright cases concerned with Aboriginal art. Should Aboriginal elders be considered expert witnesses on customary law in such cases? This is a question that has posed a continuing challenge for the Australian legal system. Experts are expected to tailor their reports to their clients’ needs. Scientifically trained experts are not always in the best position to fulfil these expectations. Michael Hau presents us with a surprising case in which an entire profession, physicians during the Weimar Republic, felt the need to tailor not merely their knowledge, but also their professional “personality” to fit the image of a more humane expert. Challenged by the natural therapy movement, which offered an alternative understanding of healing and the healer, leading physicians of the time were led to defend the empathetic abilities of the outstanding physician. Jean-Paul Brodeur’s chapter puts forth the strong and unsettling claim that expertise that is strongly grounded in scientific knowledge is unwanted in criminal justice. Often, such strong expertise cannot be tailored to fit into standard legal, policing, and therapeutic procedures. Instead, Brodeur describes how much weaker forms of expertise have been established in many areas related to the application of criminal law. He also presents us with a case in which the resistance of a judiciary and legal community to adopt sentencing guidelines based on empirical databases, presented in expert systems, led to the complete demise of such efforts. Brodeur, a criminologist, served as the director of research for a commission of experts advising the Canadian government on how to establish new sentencing guidelines—a case of strong expertise that failed in particular ways. Brodeur is in a good position to tell us why. The final chapter in this section presents us with a case in which historical expertise has made its entrance into a research arena that is traditionally populated by natural scientists and engineers: The control of air pollution. This is a problem with a scientific, technological, and political history, involving many historical individuals. Matthias Heymann’s chapter makes the point that the study of this complex history contributes to the science of air pollution control.

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Chapter 5 Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? Christoph Antons1 Centre for Asia Pacific Social Transformation Studies, University of Wollongong, Australia [email protected]

In October 1998, an article appeared in Australia’s national daily newspaper The Australian, entitled “German snub to Aboriginal work” (The Australian, October 9, 1998, p. 19). The article reported the disappointment and anger of a Melbourne art dealer and gallery owner, who had proposed to display a collection of Aboriginal art at the Cologne art fair and was rejected for the second time in three years. No reason was given for the rejection this time, but, the rejection of the first application was based on the argument that this kind of art was tribal or primitive. Only a few decades ago, this opinion would probably have been shared by many Australians. This chapter deals with the role of experts in the assessment of cultural expressions of indigenous people in Australia for the purposes of copyright protection. The difficulties to gather evidence for copyright violations of Aboriginal motifs and designs have come from the secret and sacred character of the traditional part of Aboriginal art. Not only does much of traditional art make use of religious symbolism, but it also often establishes a connection to the ancestral land by depicting the tracks and sites of ancestral spirits. In cases of alleged copyright violations involving Aboriginal art, the courts have, therefore, been forced to rely on expert witnesses drawn from the ranks of anthropologists and from the Aboriginal communities concerned. Since under the Australian law of evidence, only experts are allowed to express opinions based on generalizations from earlier research, Aboriginal evidence about their own customary law was previously often excluded as mere “hearsay.” In recent years, the courts have tried to avoid this paradoxical state of affairs by trying to match anthropological expert evidence and the evidence of Aboriginal artists and community elders without interpreting the rules of evidence too narrowly. A survey of these approaches will then be followed by some comparative observations drawn from experiences in Indonesia. Before turning to the legal approaches chosen in these 1 The author is currently a Queen Elizabeth II Fellow of the Australian Research Council and would like to acknowledge the support of the Australian Research Council for this research.

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two countries and the involvement of experts, however, a brief outline of the political and social background of the discussion seems necessary.

From “terra nullius” to “Indigenous Cultural and Intellectual Property” Aboriginal Australians were only granted the right to vote in 1962,2 and they were included in the census only following a referendum and an amendment to the constitution in 1967 (Law Reform Commission, 1986, p. 22). It took until 1992, however, for Australian courts to review the so-called doctrine of terra nullius (see Mabo and Others v. Queensland [No. 2], 1992, 175 CLR 1). In colonial times, the terra nullius doctrine had provided for the complete reception of English law and for the disregard for Aboriginal customary law, because the land was regarded as uninhabited (terra nullius) or at least inhabited by people without settled laws or customs (Bourke & Cox, 1998, p. 59; Parkinson, 1994, pp. 126– 129). After a first exploration of the Eastern coast of Australia, James Cook described the Aborigines as having “no fix’d habitation but move on from place to place like Wild Beasts in search of food” (Castles, 1982, p. 22). Consequently, he followed official instructions to take possession of the land as a first discovery rather than treating it as a conquest. Henceforth, all land was vested in the British Crown and attempts at concluding individual treaties were declared void (Castles, 1982, pp. 20–31). The attitude of Australians toward Aboriginal cultural expressions slowly began to change during the 20th century, a development that has been aptly characterized as having led “from the non-original to the ab-original” (Sherman, 1994). Formerly frequently classified as “ethnographic objects,” Aboriginal art works have increasingly been recognized as fine art and as an international success story for Australia in this category (Alberts & Anderson, 1998, pp. 254– 257; Chanock, 1996, pp. iii–iv; Davies, 1996, p. 2; Gray, 1996, p. 30). At the same time, government policies regarding Aboriginals changed from assimilationist approaches to a support of self-management and self-determination (Law Reform Commission, 1986, pp. 18–23). During the 1980s and 1990s, Australians also developed a new and different understanding of Australia’s position in the world. Links to “Mother England,” by now a member of the European Union (EU), continued to weaken and by the early 1990s, Japan and Korea were Australia’s most important trading partners. The, then, Labour government began to place the country firmly into the context of the Asia-Pacific region. This, in turn, required the correction of Australia’s negative image in Asia due to the former “White Australia Policy,” which restricted immigration to people of European descent. Many Asians regard the 2 Section 3(5) Commonwealth Electoral Act (1962), see the Law Reform Commission (1986, p. 22).

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extent of integration of Australian Aboriginals as an indicator of Australia’s change of attitude. The, by now, famous Mabo decision of the Australian High Court of 1992 that finally put an end to the terra nullius doctrine concerned the recognition of Aboriginal customary rights to land (Bourke & Cox, 1998, pp. 65–69). There is a further field of law, however, in which a strong conflict between Aboriginal customary law and Australian state law is perceived: the field of intellectual property rights. Intellectual property rights are discussed in relation to two areas of traditional Aboriginal knowledge: artistic expressions and traditional medical knowledge about the healing effects of plants and natural substances, which has recently become of interest to biotechnology companies (McKeough & Stewart, 1997, p. 10f.). Because of their traditional character and the lack of an individual creator of the material, it is difficult to bring both areas under the umbrella of intellectual property protection. Intellectual property rights that have been under discussion to protect this material are further drawn from different areas of intellectual property law, such as trade mark, design, patent, and copyright law. The debate about legal protection, thus, involves much more than is usually connoted by folklore with its relationship to copyright principles. It also involves knowledge about plants and other genetic resources and their healing effects, which is turned into “industrial property” once it is used by pharmaceutical and biotechnology companies. Aboriginal communities nowadays prefer, therefore, to speak of indigenous cultural and intellectual property rights (Janke, 1997, p. 24). They claim the recognition of these rights as a new field of intellectual property and its protection under specific legislation (Janke, 1998). For the purposes of this chapter, I will leave aside the debate about traditional knowledge and genetic resources and concentrate on indigenous people’s artistic expressions and the difficulties in protecting them. Most traditional Australian artwork relates to an Aboriginal dreaming, The dreaming can be roughly explained as both the Aboriginals’ creation myth and their local religion. The term “dreaming” is a translation into English of one of the expressions used by Aboriginals to refer, in their different local languages, to a complex of mystical stories about the creative period of their ancestral beings and the origin of the area they are inhabiting (Berndt & Berndt, 1996, p. 229f.; Edwards, 1998, p. 79f.; Stanner, 1965, p. 214f.; Swain, 1993, pp. 20–22). It is important to remember that the Aboriginals were originally nomadic people who would wander around in a particular part of the Australian continent that they regarded as their tribal area (Blainey, 1983, p. 27f.; Bourke, 1998, p. 220). In a similar way, their mystical characters and spirits would wander around this country and occasionally become transformed into a sacred site (e.g., a rock, a tree; Edwards, 1998, p. 80f.) or inhabit a particular artefact (Berndt & Berndt, 1996, p. 429). Because the spirits can, therefore, inhabit an artist’s work (and in fact a lot of artwork was originally made for that purpose), traditional Aboriginal artists are the mediators between the human and spiritual worlds (Berndt & Berndt, 1998, p. 24). As such a mediator, the traditional Aboriginal artist is confined to the use of particular symbols, colors, and designs in representing the spirits and the tribal

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area. Moreover, in picturing the landscape, the artist is only allowed to refer to the stretch of land inhabited by the artist’s community (Berndt & Berndt, 1996, p. 411, p. 444; Berndt & Berndt, 1998, pp. 25–32, pp. 36–40). Particularly in central Australia, paintings of land were often fairly accurate depictions of a particular area from a bird’s-eye perspective with rivers, waterholes, and the tracks of the wandering spirits. If someone familiar with Aboriginal art flies over central Australia, they will immediately see that what appears as tracks, waterholes, trees, and shrubs in the art will look like dots from above. These depictions of land with the symbols and colors of the artist’s tribe were then also quasi claims of ownership of this stretch of land in the eyes of fellow Aboriginals (Alberts & Anderson, 1998, p. 253; Berndt & Berndt, 1998, pp. 25–28; Isaacs, 1984, pp. 12–15).

How Copyright Protection of Aboriginal Art Challenges the Australian Legal System At the core of all copyright acts lies the principle of originality. With respect to this principle, copyright lawyers usually distinguish between the ContinentalEuropean understanding, which is centered on the author and requires a certain level of originality (German courts and literature speak here of Gestaltungshöhe), and the Anglo-American concept, which is more utilitarian and requires merely that the work not be a mere copy and that it leads to socially useful material (Dreier & Karnell, 1991; Ricketson, 1991). While most indigenous artwork would actually have little difficulty fulfilling the requirements of at least the Anglo-American concept of originality, it is often due to mass production of certain designs and motifs, for a growing market of tourists and overseas buyers, that this material has become classified as “folklore” with insufficient originality for copyright protection. It has been argued that many folkloristic items are too restricted in the choice of their motifs and the materials used to show original input from their makers and to qualify for copyright protection (Ellinson, 1994, p. 332f.; Puri, 1995, p. 313f.; Wambugu Githaiga, 1998, p. 4f.; Weiner, 1987, p. 69f.). Whereas this might be true for many of the boomerangs or didgeridoos mass-produced for tourist shops, it should be clear from my earlier outline of Aboriginal art that the same cannot be said for traditional Aboriginal artworks. Of course, as mentioned above, the traditional artist would be confined by the features of the surrounding landscape and the colors and symbols used in the area. Apart from the motifs, the artist is additionally confined by what is available for painting and sculpting in the natural surrounding: rocks and wood for sculptures and clay, charcoal and manganese to make paint in different tones of red, white, yellow, and black (Berndt & Berndt, 1996, p. 409f.). However, what Aboriginal artists create with these means and within the confinements of socially acceptable motifs is, in fact, highly original. Their artistic freedom is further accentuated through the personal alliance of the artists with particular spir-

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its and their symbols (Ellinson, 1994, p. 331). To a certain degree, it is possible to draw the analogy to an anonymous medieval European painter or sculptor who confined himself to Christian religious motifs and symbols, but nevertheless, created masterpieces that show the style and approach of the same individual in different manifestations. Although copyright protects only individual expressions and not the underlying ideas, there will in most cases be sufficient individual expression involved even in the mere reproduction of pre-existing motifs or designs (Davies, 1996, p. 3f.; Milpurrurru & Ors v. Indofurn Pty. Ltd. & Ors, 1995, AIPC, pp. 91–116; Puri, 1995, pp. 311–314). So, it is actually not so much the originality that is making it difficult to apply copyright principles to this material but rather the social and religious significance of Aboriginal artwork. This is in conflict with the Western understanding of artwork as a commodity originally owned by the artist who can sell it, display it, reproduce it, or allow others to reproduce it by granting them licenses. Where an Aboriginal artwork uses motifs and symbols that are regarded by the artist’s community as secret and sacred, the Aboriginal artist is, under customary law, not in a position to deal with his work freely, and he depends on an authorization by his community to do all those acts that would be a natural part of copyright in the Western sense. These conflicting approaches to the protection of artistic expressions became clearly apparent in the case of Yumbulul v. Reserve Bank of Australia, 1991 (21 IPR 481). In this case, an unauthorized reproduction of a totemic Morning Star Pole could not be prevented, because the court acknowledged a valid licensing agreement between the individual artist and his agency (Blakeney, 1995, p. 442). Everything said so far applies, however, only to “traditional” Aboriginal art with religious motifs. Of course, these traditions are not static; they have evolved over time and adapted new materials and forms of expression (Caruana, 1993, p. 11, p. 14; Gray, 1996). What has, nevertheless, remained as an essential feature of this art is its religious symbolism.3 But, there is also a “modern” version of Aboriginal art, meant to meet the rising demand for this kind of art in Australian cities and overseas, to express political objectives, or both. In this category belongs not only artwork that avoids religious motifs and symbols,4 but also the work of so-called “urban Aboriginals,”5 who depict contemporary Australian landscapes and themes by using Aboriginal means of expression (Berndt & Berndt, 1998, pp. 126–145).

3 As explained by Caruana (1993, p. 11): “The adoption of new technologies and materials such as canvas and synthetic paints has led to the creation of new art forms which often complement, rather than replace, existing ones.” See also Alberts and Anderson (1998, p. 255). 4 Traditionally, motifs without a mythical or ritual character also existed, but were comparatively rare (see Berndt & Berndt, 1996, p. 413). 5 The term is used to refer to the social milieu of these Aboriginals. Aboriginals use different terms in their local languages to refer to themselves (Caruana, 1993, p. 179). As to estimates of the number of “traditionally oriented” Aboriginals and the difficulties with such a definition, see Ellinson (1994, p. 328f.).

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Although there has been intense discussion in Australia about appropriate protection for the more traditionally orientated version of Aboriginal artwork (and suggestions for solutions ranging from copyright principles to national heritage legislation to a sui generis regulation; Ellinson, 1994; Puri, 1993, 1995), very little has been done to put the various proposals into practice and into a coherent piece of legislation. After decades of discussion, the Copyright Act is, therefore, still the only legislation that Aboriginal artists can turn to for protection. A few recent cases involved the Aboriginal artists Johnny Bulun Bulun and George Milpurrurru, whose designs and motifs were reproduced without authorization on T-shirts, among other things, and on towels and carpets made in Vietnam (John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., 1998, 1082 FCA; Milpurrurru & Ors v. Indofurn Pty. Ltd. & Ors, 1995). Cases such as these are usually decided in the Australian Federal Court, which has jurisdiction to hear cases dealing with federal legislation, including intellectual property legislation. The judge is then confronted with two issues: Firstly, to determine to what extent evidence about indigenous customs and traditions can be used within the Australian legal system and secondly, how to establish this evidence. The latter question obviously leads to the problem of the identification of someone with the necessary expertise to testify in these matters. The first question as to the position of customary law as part of the Australian legal system has been effectively answered by the above-mentioned decision of the High Court in Mabo and Others v. Queensland (1992). While the decision recognized that Aboriginal customary laws have survived the colonization of Australia and may be recognized by the common law, this remains true only as long as such a recognition does not (in the words of Justice Brennan) “fracture a skeletal principle of our legal system” (Mabo and Others v. Queensland, 1992, [No. 2] p. 18; see also the detailed discussion in Chesterman, 1998, pp. 76–84). In subsequent decisions (and most recently in the case of John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd.), it was held that the distinction between real property and intellectual property, and between the respective common law and statutory institutions these property rights are based upon, is such a “skeletal principle” of the Australian legal system (John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., p. 13). Consequently, the courts rejected claims by Aboriginal artists that the native title in land recognized in Mabo extended further to intellectual property, such as copyright, because in Aboriginal customary law artistic expressions were not separated from the right to land. The courts acknowledged that such customary rights to the ownership of artistic works might exist, but they refused to acknowledge that such rights could become binding upon nonAboriginals, because the notion of copyright for the whole of Australia would be exclusively regulated by the Copyright Act of 1968 (John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., p. 14). In spite of this renewed rejection of the notion of a separate customary-based indigenous copyright, the Aboriginal community was, nevertheless, able to claim an important partial success for their customary rights in the decision of John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., 3 September 1998. Justice

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von Doussa of the Federal Court concluded in this case that the individual Aboriginal artist alone, as the author of a work of art, was entitled to hold the copyright to this work. In an important further finding, the judge concluded, however (p. 18f.), that this copyright was impressed with a fiduciary obligation that the artist owed to his community to preserve the religious and ritual significance of the work. A fiduciary relationship is a concept of the law of equity that imposes particular stringent duties on the so-called fiduciary to respect the interests of another person, because they are in a position to affect the interests of that other person in a detrimental way (Meagher, Gummow, & Lehane, 1992, p. 130). Traditional examples of such fiduciary relationships are the relationships between trustees and beneficiaries, solicitors and clients, directors and companies, stock brokers and clients, and between partners in a partnership (Evans, 1996, pp. 100–107; Parkinson, 1996, pp. 326–331). The Canadian courts were the first courts in the Commonwealth to make use of this equitable concept for indigenous affairs and they developed the notion of a fiduciary relationship between the Canadian state and its indigenous population (R. v. Sparrow, 1990, 70 DLR [4th] 385, cited in Parkinson, 1996, p. 360). Although this approach has not yet been followed in Australia,6 the decision of the Federal Court has now introduced the concept to regulate the relationship between indigenous people, namely between the indigenous artists and their community.

Aboriginals as Witnesses To decide whether such a fiduciary obligation is owed by the indigenous artist to respect the ritual knowledge incorporated in a work, the Federal Court now also has to decide on the religious significance of the work for a particular tribal community. However, since most of these symbols are secret and sacred, the court has often no other choice than to rely on the expertise of community elders and the artists themselves to explain the significance of the work. In the case of John Bulun Bulun v. R. & T. Textiles Pty. Ltd., the main evidence came from an affidavit of Mr. Bulun Bulun himself and of two senior persons of his community, the Ganalbingu people in Eastern Arnhem land in the Northern Territory. The case concerned a painting of a waterhole that had been reproduced on textile without authorization by the defendant. Mr. Bulun Bulun stated in his affidavit that this waterhole was the main totemic well for his lineage of the Ganalbingu people; it was the source from which their creator ancestor had emerged. This creator ancestor created not only the natural landscape of the area, but also the designs and elements for the artwork. The artwork was, therefore, part of the Madayin (corpus of ritual knowledge) that was associated with the land and an unauthorized reproduction would mean a severe disturbance of the natural order. Mr. Bulun Bulun further distinguished between certain usage (such as the reproduction in 6 See the critical remarks of Parkinson (1996, p. 361), as to a similar approach in the minority opinion of J. Toohey in Mabo v. Queensland (No. 2).

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an art book), for which he was generally authorized by his people, and other usage (such as the one in question), for which he would have to consult widely with the traditional owners under customary law (John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., pp. 7–9). Mr. Bulun Bulun’s evidence was confirmed by Mr. Milpurrurru, a senior Ganalbingu and himself a well-known artist who represented the Ganalbingu people and their claim to the artwork, and by Mr. Ashley, who was in a position of a so-called Djungayi to Mr. Bulun Bulun. Mr. Ashley stated that his role could be approximately described as that of a manager or a policeman. A better description would perhaps be that of a traditional custodian. Mr. Ashley himself described his obligations as follows (p. 9): (…) amongst a Djungayi’s responsibilities is the obligation to ensure that the owners of certain land, and Madayin associated with that land, are dealt with in accordance with Yolngu7 custom, law, and tradition. A Djungayi sometimes might have to issue a warning or advice to a traditional Aboriginal owner on the way certain land, or the Madayin associated with the land, is used. A Djungayi has an important role to play in maintaining the integrity of the land and Madayin, Djungayi learn the paintings of the land that they manage. They produce paintings of the Madayin for ceremony and for sale where appropriate (…). More senior Djungayi should be consulted about important decisions concerning their “mothers” country and its Madayin. For example, during the preparation of this case, I needed to be consulted and be present when Mr. Bulun Bulun gave statements to our lawyer. I did most of the talking as it is more appropriate for a Djungayi to speak openly about land and Madayin. I also had to be consulted when Mr. Bulun Bulun wished to take our lawyer to Djulibinyamurr.8 (…) My rights as Djungayi of Djulibinyamurr include the right to produce paintings related to that place, and the right to be consulted by Mr. Bulun Bulun on the use of Djulibinyamurr and the Madayin related to it. I am able to speak about the law and the custom of the Ganalbingu people, in particular that associated with Djulibinyamurr because of my position as Mr. Bulun Bulun’s Djungayi. It becomes evident, from this statement, how carefully such ritual knowledge is guarded by the traditional custodians of an Aboriginal community. In most cases, it is, therefore, unavoidable that the most important witnesses are people who have an important stake in the claim as a member of the community whose customs they describe (as to a similar situation with regards to land rights see Neate, 1989, p. 190). The knowledge of experts outside this commu7 Yolngu is the term that Aboriginal people of the central Arnhem land in the Northern Territory use to refer to themselves. Traditional rights to designs and ritual symbols are, here, shared by the different clans of the area (Caruana, 1993, p. 47). 8 Djulibinyamurr is the name of the waterhole in the local language.

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nity, about the ritual significance of symbols, is necessarily limited. However, a 1986 report of the Law Reform Commission on the recognition of Aboriginal customary laws identified mainly two problem areas with regard to Aboriginal witnesses, if the courts insist on a strict application of the common law rules of evidence. The first problem is the “rule against hearsay,” which excludes testimonies that are not based on direct personal experience (Law Reform Commission, 1986, p. 475f.). However, to a certain degree, all evidence regarding customary law, even if provided by “insiders,” will always involve generalizations from personal observations to the more general custom and these generalizations will also be based on information received from others. In the leading case of Milirrpum v. Nabalco Pty. Ltd. (1971, 17 FLR 141), the judge partly circumvented this problem by greatly extending the scope of what to regard as questions of fact. Since a person’s beliefs and perceptions, at a particular time, would essentially be questions of fact, an Aboriginal person could, within certain limits, give evidence as to the beliefs and perceptions of their community. In the words of Justice Blackburn: No difficulty arose in the reception of the oral testimony of the Aboriginals as to their religious beliefs, their manner of life, their relationship to other Aboriginals, their clan organization and so forth, provided, first, that the witness spoke from his own recollection and experience, and secondly, that he did not touch on the question of the clan relationship to particular land or the rules relating thereto. No question of hearsay is at this stage involved; what is in question is only the personal experience and the recollection of individuals. (Milirrpum v. Nabalco Pty. Ltd., p. 153, cited in Law Reform Commission, 1986, p. 476) Nevertheless, the exclusion of generalizations on customary rules, in particular circumstances in this judgment, could still preclude much Aboriginal evidence on customary law. In this particular case, the judge was able to prevent this consequence by using an exception to the rule against hearsay that allows testimonies on declarations of deceased persons in matters of public and general rights (Law Reform Commission, 1986, p. 476f.). More generalizations would be possible under a further exception to the rule against hearsay (Heydon, 1996, p. 1021f.) if the Aboriginal person could give evidence as an expert witness. This would also allow the courts to overcome the second related problem, which is the distinction between facts and opinion. Only expert witnesses may be called upon to express an opinion based on generalizations from earlier research carried out by others or by expert witnesses themselves (Heydon, 1996, p. 795). However, in Milirrpum v. Nabalco Pty, Ltd,, the Federal Court refused to regard Aboriginal clan leaders as experts in the customary laws of their own clan, and Justice Blackburn spoke of “two kinds of witnesses, namely, Aboriginals (…) and expert witnesses” (cited in Neate, 1989, p. 192). This could be based on the earlier assumption in other cases that expert evidence relates to “an organized branch of knowledge in which the witness is an expert” (Clark v. Ryan, 1960, 103 CLR 486, p. 50lf. and p. 508, cited in Heydon, 1996, p. 791f.). “Organized branches of knowledge”

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are further defined as “those, in which those who are trained or experienced share generally accepted principles and techniques.” Apparently, in the eyes of the Federal Court in Milirrpum v. Nabalco Pty. Ltd., Aboriginal elders did not fit such a technical and scientific definition. The Law Reform Commission has criticized the result in Milirrpum v. Nabalco Pty. Ltd., as odd and difficult to justify (Law Reform Commission, 1986, p. 474f.; see also the critical observations by Harris regarding the Hindmarsh Island case, 1996). The Law Reform Commission has, therefore, suggested that the rules of evidence, with regard to customary law, should be relaxed and the hearsay rule disregarded in particular “where the person giving the evidence has special knowledge of the customary laws of the community in relation to that matter” or “would be likely to have such knowledge or experience if such laws existed.” Federal and state legislation regarding land rights has gone a step further. The Aboriginal Land Rights Commissioner, established by legislation for the Northern Territory, for example, conducts an administrative inquiry and is only bound by the rules of natural justice and not by the specific rules of evidence. Consequently, Practice Direction 25 (1979) of the first Commissioner, Justice Toohey, stated the following: There will be no strict adherence to the ordinary rules of evidence. In particular, as a general proposition, hearsay evidence will be admitted, the weight to be attached to it to be a matter for submission and determination. Relevancy will be the controlling test for the admissibility of evidence. (cited in Law Reform Commission, 1986, p. 465; Neate, 1989, p. 191) Despite the generally positive experience with this informal process (Neate, 1989) and similar solutions in countries, such as Papua New Guinea, the Law Reform Commission has so far shied away from recommending a general exclusion of the rules of evidence with regard to customary law. The Law Reform Commission concluded instead: Excluding the law of evidence would have the disadvantage of leaving arguments about admissibility unstructured, and depriving the courts of the assistance which satisfactory rules might give. Only if the existing rules, however modified to assist with proof of Aboriginal customary laws, can be shown to be wholly unsuitable for present purposes, would their wholesale exclusion be appropriate. (Law Reform Commission, 1986, p. 467f.) In the intellectual property cases mentioned, judges have given considerable weight to the evidence of the Aboriginal artists and custodians without interpreting the rules of evidence too strictly. In doing so, the courts often, apparently, applied the approach in Milirrpum v. Nabalco Pty. Ltd. to include questions of belief and personal perception as matters of fact, or argue that the rules can be relaxed because the issues involve questions of public policy (John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., p. 11). It has also been observed more generally, however, that the case law in this area is characterized by laxity and non-observance of the rules (Justice Muirhead in R. v. William Davey, un-

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reported, Federal Court of Australia [13 November 1980], cited in Law Reform Commission, 1986, p. 470; as to similar complaints by Canadian judges see Keon-Cohen, 1993, p. 190). On a more positive note, the Law Reform Commission regards the law of Australia as moving in the right direction. The Commission points in particular to the decision in Napaluma v. Baker (1982, 29 SASR 192, 194), in which the qualification of an expert witness was based on “habit and experience,” provided that the nature and depth of the experience was more thoroughly scrutinized than usual (Law Reform Commission, 1986, p. 470f., p. 474). Even further, Keon-Cohen has argued that as a result of the Mabo decision, the distinction made in Milirrpum should no longer apply where native title is at stake and the courts should, therefore, rely on a yetto-develop head of admissibility of “traditional evidence” (Keon-Cohen, 1993, pp. 192–197). However, even if such “traditional evidence” came to be accepted as a separate category, this would not solve the problem in cases where customary rules need to be proved as a basis for rights other than native title, such as, for example, in cases related to copyright.

Anthropologists as Expert Witnesses In practice, the approach of the courts in land rights disputes, as in other cases, has been to combine evidence from the Aboriginal community involved with expert opinions. Usually, the detailed Aboriginal evidence is heard first before an anthropologist or an expert in Aboriginal art (Davies, 1996, p. 7) puts the issue into a more general context (Davies, 1996, p. 7; Neate, 1989, p. 192). In Mr. Bulun Bulun’s case, two anthropology professors from James Cook University in North Queensland and from University College London were heard to confirm the importance of inherited designs as part of the sacred Madayin of the peoples of Arnhem land. Anthropologists have played a vital role in cases involving proof of Aboriginal customary laws. In general, their evidence is seen as complementing the Aboriginal testimony, and their opinion is welcomed as providing a different angle on the problem than the lawyer’s view would allow. Nevertheless, anthropologists are in a difficult position when asked to testify in such cases: They have to communicate with lawyers, on the one hand, and with the Aboriginal community, on the other. Statements by different Aboriginal Land Commissioners under the Aboriginal Land Rights Act, 1976 (Cth) (Northern Territory), although generally praising the anthropologists’ contribution to the fact-finding process, reveal also a certain reserve. Justice Toohey, for example, pointed out in the Utopia Land Claim the limits of the role of anthropologists in the judicial process: The Land Rights Act is not an exercise in anthropology. Anthropologists are the recorders of material and their capacity to collate it, aid in its presentation to a hearing, and comment upon it has proved invaluable. The views of anthropologists concerning the language of the Act, especially where the statute

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Christoph Antons uses terms having a reasonably understood meaning in anthropology, are of great assistance and I have relied upon them in earlier hearings. But, in the end, what has to be done is to determine the meaning of the words used in the Act, construe the definition accordingly, and then apply it to the material presented (…). (Law Reform Commission, 1986, p. 466)

A few years later, Justice Maurice partly contradicted this statement by saying that “these inquiries are very much exercises in anthropology,” but acknowledged that this was so “despite the problems that lawyers might have in coming to terms with the language and ideas of anthropologists” (Warumungu Land Claim, 1 October 1985, cited in Neate, 1989, p. 239). The same judge also expressed concern about a potential bias of anthropologists because of an over-reliance on preferred informants and a close relationship with the researched community. Neate (1989, p. 246) has added that anthropologists must be concerned about maintaining their relationship with a community for future research. Similar allegations of bias were made from both sides in the Hindmarsh Island case, which according to Harris (1996, p. 123) resulted in a “rift within the anthropological fraternity in South Australia.” Anthropologists, on the other hand, were also often dissatisfied with their roles. Professor Ronald Berndt, for example, warned his colleagues not to fall “into the trap of over-simplifying data for legal consumption.” He further described the relationship between lawyers and anthropologist expert witnesses as follows: As far as legal practitioners are concerned (…) “anthropological” data retain their significance, for reasons that are obvious: Because, from the viewpoint of legal practitioners, collecting such material is both costly and time-consuming and because “reliable” (valid) information depends on adequate communicative channels and on the establishment and maintenance of friendly social relations. In a sense, and perhaps being deliberately a little unfair, one could say that the legal practitioners regard anthropologists, when they do not consider them to be obstructive, as being “raw” material; or, to put it more kindly, as a kind of resource. To follow Levi-Strauss, legal practitioners, in contrast, are “cooked”—they have the final say, irrespective of anthropological opinion and irrespective of Aboriginal views. (Berndt, 1981, cited in Neate, 1989, p. 284) This echoes similar concerns expressed earlier by Bohannan (1957, 1969) based on his research experiences in Africa (Neate, 1989, p. 285) on the differences in mental framework and concepts of lawyers and anthropologists, respectively. Dogmatically, expert evidence from anthropologists encounters similar difficulties with the rule against hearsay as the evidence provided by Aboriginals. Because of their status as experts, anthropologists would be able to express an opinion and, therefore, have fewer difficulties in making generalizations based on their observations. Nevertheless, by its very nature, anthropological evidence and research contains much that is based on hearsay. Again, anthropological expert

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evidence would be difficult if the rule against hearsay was strictly applied. Australian courts have, therefore, come to distinguish between the inadmissible mere repetition of hearsay and the admissible expression of an opinion that is based in part on hearsay (Law Reform Commission, 1986, p. 473). This distinction was again summarized by Justice Blackburn in Milirrpum v. Nabalco Pty. Ltd. in the following way: I do not think it is correct to apply the hearsay rule so as to exclude evidence from an anthropologist in the form of a proposition of anthropology—a conclusion which has significance in that field of discourse. It could not be contended—and was not—that the anthropologists could be allowed to give evidence in the form: Mr. Munggurrawuy told me that this was Gumatj land. But, in my opinion, it is permissible for an anthropologist to give evidence in the form: “I have studied the social organization of these Aboriginals. This study includes observing their behavior; talking to them; reading the published work of other experts; and, applying principles of analysis and verification which are accepted as valid in the general field of anthropology. I express the opinion as an expert that proposition X is true of their organization.” In my opinion, such evidence is not rendered inadmissible by the fact that it is based partly on statements made to the expert by the Aboriginals. (p. 151, as cited in Law Reform Commission, 1986, p. 473) In the remainder of this judgment, Justice Blackburn also blurred the distinction between “fact” and “opinion”: The expert is an expert observer, and his special skill enables him to select, and state, the “facts” which are relevant and significant, and reject, and omit to mention, those which are not. The process of selection involves the application of an unexpressed opinion. Moreover, he states the “facts” in specialized terms which imply generalizations accepted as valid within his field of knowledge (…). In this broad sense, everything that an expert says within his own field of expert knowledge is a matter of opinion, including his account of the “facts.” (p. 161, cited in Neate, 1989, p. 241) As a consequence, the question is no longer whether the expert evidence is admissible, but how much weight should be given to it. As the High Court later pointed out, this depends on the number of statements based on hearsay and on whether they are confirmed by other evidence: Statements made to an expert witness are admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies, but (…) if such statements, being hearsay, are not confirmed in evidence, the expert testimony based on them is of little or no value. (Gordon v. R., 1982, 41 ALR 64, cited in Law Reform Commission, 1986, p. 472) The Federal Court has, thus, recently advanced an approach to copyright claims of Aboriginal artists that views Aboriginal artists as fiduciaries of their communities where they make use of secret and sacred symbols. If this approach is further

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applied, expert evidence, such as this, will need to be consulted to decide whether Aboriginal artists have acted within the limits of their authorization by their community when producing an artwork. But, such evidence will also become relevant to decide on the use of traditional Aboriginal symbols and designs by urban Aboriginals with little relationship to their respective communities and on the use of Aboriginal symbols by outsiders. A recent example here is the controversy about a book by Martha Sykes. Dr. Sykes is a renown feminist and academic of partly Afro-American descent. Her book described her difficult childhood in growing up as a colored person in Northern Queensland. Shortly after the publication of her book, Dr. Sykes was accused by members of the Aboriginal community of her home town of falsely creating the impression of being of Aboriginal descent and of having used the totemic snake symbol of that Aboriginal community in an unauthorized manner.

Australia’s Approach in Comparison: Folklore Protection in Indonesia In crossing the Timor Sea we encounter similar problems with the cultural expressions of ethnic minorities in Indonesia, where the government has opted for a different solution. This is not surprising in view of the fact that Indonesia, as a civil law country, does not have available flexible equitable doctrines, such as fiduciary relationships that are typical for common law jurisdictions as in Australia. In addition, the British colonial tradition of absorbing different customary laws, under the umbrella of the common law, makes it easier to solve problems on the cutting edge of state and customary law than the Dutch colonial system of a fairly strict separation of different races and their laws. The choice of Indonesia for a comparison demands some explanation. Firstly, Indonesia and Australia are both societies with a large number of different ethnic communities. As in Australia, artwork of tribal communities, such as the Asmat or Dayak and of the various people from different regions of the vast archipelago that makes up Indonesia, are to be found in most tourist shops. Secondly, and perhaps more importantly, the religious and social significance of the artwork of many Indonesian population groups is, in many ways, similar to that of the different Australian Aboriginal communities. This similarity is no coincidence. Recent research into the precolonial contacts between Asian people and Australian Aboriginals has shown that these contacts were more extensive and better developed than previously thought. There are, of course, those theories that assume an Aboriginal migration from Southeast Asia to Australia in prehistoric times when the sea gap between Australia and the Indonesian islands was not yet as wide (Berndt & Berndt, 1996, pp. 2–4). But, there is also sufficient historical evidence for many of these contacts. The mythology of Aboriginal people in the Kimberley region in northwestern Australia refers to an ancestor’s homeland that seems to be the Indone-

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sian island of Timor (Swain, 1993, p. 213f.). Buginese traders from the southern part of the island of Sulawesi have visited the north coast of Australia at least since the early 18th century (Swain, 1993, p. 159f.), possibly even as far back as the 15th century (Berndt & Berndt, 1996, p. 17). These contacts left their mark in the Aboriginal languages of the area, which contain quite a few Indonesian words, but also in the local culture (Berndt & Berndt, 1996, p. 19). As in Aboriginal Australian art, traditional Indonesian handicraft, such as the Javanese dagger, the kris, or the gamelan, a musical instrument, often have a spiritual connotation. Indonesians speak of artefacts that punya isi (have a content). The content referred to is a spiritual energy that inhabits the item (Koentjaraningrat, 1985, pp. 343–345) in a similar way as in Aboriginal art. It seems, however, that there are also many important differences in this respect between much of Indonesian artwork, on the one hand, and Aboriginal art, on the other. First of all, Koentjaraningrat has pointed out, for the example of Javanese puppet plays, that only a decreasing percentage of Javanese look at the symbolism of the wayang puppets as a form of religion (Koentjaraningrat, 1985, p. 286f.). Secondly, at least on the densely populated island of Java, ceremonies seem to play a much larger role for religious symbolism than artworks or handicrafts. The main item used for protective magic on Java is the kris, but there are also other items, such as jewellery, amulets, and magic stones (Koentjaraningrat, 1985, p. 415). Again, unlike traditional art in Australia, the spiritual power of these items does not need any protection against outsiders. It is usually activated only through a ritual and only in relationship to a particular person. Consequently, there is no problem in producing the same items without such a spiritual energy for the tourist market. Apparently inspired by the Tunis Model Copyright Law for Developing Countries, which was drafted by the World Intellectual Property Organisation (WIPO) and UNESCO in 1976, the Indonesian government chose to protect traditional artwork in Article 10 of the Indonesian Copyright Act of 1982. Article 10 protects so-called “products of popular culture” and mentions as examples stories, fairy tales, legends, chronicles, songs, handicrafts, choreographies, dances, calligraphies, and “other works of art.” According to Article 10 (2) (b), the state exercises the copyright with regard to these works “vis-a-vis foreign countries.” The last part of the provision was added as a compromise solution, because in Indonesia’s multiethnic society, a complete exercise of the copyright by the state would be regarded by ethnic groups, in the different provinces, as an appropriation of the copyright by the central government in Jakarta. The current interpretation of the provision is, therefore, that the state is restricted in the exercise of its rights to foreigners, whereas local communities remain entitled to use their material (Rosidi, 1984, p. 79f.; Simorangkir, 1982, p. 136). The provision obviously creates a range of problems, the most prominent of which is the creation of what was called in the WIPO/UNESCO draft law a “competent authority” to decide on the way these rights are exercised (Weiner, 1987, pp. 76–78). Article 10 (5) refers to administrative decrees that will regulate the details of the exercise of the copyright by the state. Perhaps not surpris-

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ingly, these administrative decrees still need to be implemented 16 years after the Copyright Act came into force. Without a “competent authority,” currently no one is able to distinguish between traditional and modern art or between individualist expressions of a particular motif and “folklore,” and there is also no body to decide on the distribution of royalties. In the racially volatile climate in Indonesia at the moment, the issue will also be very difficult to address. If a “competent authority” such as a “Folklore Commission” needs to be created, how should it be staffed? Who would be authorized to decide on the artistic quality and use of traditional artwork stemming from the different provinces? Every attempt at further centralization of decision-making powers in Jakarta is currently likely to encounter resistance in the provinces. In view of these difficulties, the Indonesian Folklore Protection Provisions will probably remain unimplemented for the time being.

Conclusion Australia and Indonesia are both countries with a multiethnic population. In both countries, policies of the central government with regard to ethnic minorities attract much attention. Due to a renewed interest in the cultural expressions of such ethnic minorities and the technological progress that greatly facilitates copying, the protection of such cultural expressions has become an important issue in this context. Here, the two countries have chosen vastly different approaches. Indonesia interprets the necessity to protect folklore largely as yet another variant of the North-South conflict and seeks to collect appropriate remuneration for Indonesian art from foreigners. Folklore and art are interpreted as part of a national culture and the approach is a centralized one. Under the current legislation, experts would play a crucial role in deciding potential conflicts of interests between different Indonesian parties. However, the legislation itself provides little guidance as to the administrative details, and the necessary implementing provisions are still awaited. In Australia, on the other hand, the courts have already debated some of these issues at great length. While the federal court recently rejected separate indigenous copyright, customary law has, nevertheless, been introduced via equitable doctrines to define the boundaries of artistic expression when religious symbols are used. For proof of these customary rules, the courts once again turn to experts. “Experts” were earlier defined in a Western sense as scientific experts and distinguished from members of the Aboriginal community. More recently, the courts have avoided clarifying the status of Aboriginal witnesses, but have given, in many cases, considerable weight to their evidence. However, such evidence from community members needs to be complemented by expert evidence provided by anthropologists, art historians, and the like. In the same way, expert evidence will be of little value if it is not confirmed by the testimony of community members. The courts look for complementary statements. Because of the different restrictions stemming from the rules of evidence, such complementary

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evidence will most often be achieved with testimony from community elders as to details, and from expert opinion as to the general context of this evidence.

References Alberts, F., & Anderson, C. (1998). Art: Interpreting reality. In C. Bourke, E. Bourke, & B. Edwards (Eds.), Aboriginal Australia: An introductory reader in Aboriginal studies (2nd ed., pp. 245–258). St. Lucia, Australia: University of Queensland Press. Berndt, R. M. (1981). Long view: Some personal comments on land rights. AIAS Newsletter, 16, 5–20. Berndt, R. M., & Berndt, C. H. (1996). The world of the first Australians—Aboriginal traditional life: Past and present. Canberra, Australia: Aboriginal Studies Press. Berndt, R. M., & Berndt, C. H. (with Stanton, J. E.), (1998). Aboriginal Australian art. Sydney, Australia: New Holland. Blainey, G. (1983). Triumph of the nomads. Sydney, Australia: Sun. Blakeney, M. (1995). Protecting expressions of Australian Aboriginal folklore under copyright law. European Intellectual Property Review, 9, 442–445. Bohannan, P. (1957). Justice and judgment among the Tiv of Nigeria. London, UK: Oxford University Press. Bohannan, P. (1969). Ethnography and comparison in legal anthropology. In L. Nader (Ed.), Law in culture and society (pp. 401–418). Berkeley, CA: University of California Press. Bourke, C. (1998). Economics: Independence or welfare. In C. Bourke, E. Bourke, & B. Edwards (Eds.), Aboriginal Australia: An introductory reader in Aboriginal studies (2nd ed., pp. 219– 244). St. Lucia, Australia: University of Queensland Press. Bourke, C., & Cox, H. (1998). Two laws: One land. In C. Bourke, E. Bourke, & B. Edwards (Eds.), Aboriginal Australia: An introductory reader in Aboriginal studies (2nd ed., pp. 56–76). St. Lucia, Australia: University of Queensland Press. Caruana, W. (1993). Aboriginal art. London, UK: Thames and Hudson. Castles, A. (1982). An Australian legal history. Sydney, Australia: The Law Book Company. Chanock, M. (1996). Introduction. In M. Chanock & C. Simpson (Eds.), Law and cultural heritage [Special issue]. Law in Context, 14(2), I–X. Chesterman, S. (1998). Skeletal legal principles: The concept of law in Australian land rights jurisprudence. Journal of Legal Pluralism, 40, 61–88. Davies, T. (1996). Aboriginal cultural property? In M. Chanock & C. Simpson (Eds.), Law and cultural heritage [Special issue]. Law in Context, 14(2), 1–28. Dreier, T., & Karnell, G. (1991). Originality of the copyrighted work. In Association Littéraire et Artistique Internationale (Ed.), Congrès de la Mer Egée II (pp. 153–166). Paris: Association Littéraire et Artistique Internationale. Edwards, B. (1998). Living the dreaming. In C. Bourke, E. Bourke, & B. Edwards (Eds.), Aboriginal Australia: An introductory reader in Aboriginal studies (2nd ed., pp. 77–99). St. Lucia, Australia: University of Queensland Press. Ellinson, D. A. (1994). Unauthorised reproduction of traditional Aboriginal art. UNSW Law Journal, 17(2), 327–344. Evans, M. (1996). Outline of equity and trusts (3rd ed.). Sydney, Australia: Butterworths. German snub to Aboriginal work. (1998, October 9). The Australian, p. 19. Gray, S. (1996). Squatting in red dust: Non-Aboriginal law’s construction of the “traditional” Aboriginal artist. In M. Chanock & C. Simpson (Eds.), Law and cultural heritage [Special issue]. Law in Context, 14(2), 29–43. Harris, M. (1996). The narrative of law in the Hindmarsh Island royal commission. In M. Chanock & C. Simpson (Eds.), Law and cultural heritage [Special issue]. Law in Context, 14(2), 115–139. Heydon, J. D. (1996). Cross on evidence (5th Australian ed.). Sydney, Australia: Butterworths.

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Isaacs, J. (1984). Australia’s living heritage: Arts of the dreaming. Sydney, Australia: Lansdowne. Janke, T. (1997). Our culture, our future; Proposals for the recognition and protection of indigenous cultural and intellectual property. Sydney, Australia: Australian Institute of Aboriginal and Torres Strait Islander Studies. Janke, T. (1998). Our culture, our future: Report on Australian indigenous cultural and intellectual property rights. Sydney, Australia: Michael Frankel & Company. Keon-Cohen, B. A. (1993). Some problems of proof: The admissibility of traditional evidence. In M. A. Stephenson & S. Ratnapala (Eds.), Mabo: A judicial revolution (pp. 185–202). St. Lucia, Australia: University of Queensland Press. Koentjaraningrat. (1985). Javanese culture. Singapore: Oxford University Press. Law Reform Commission. (1986). The recognition of Aboriginal customary laws (Report No. 31, Vol. 1). Canberra, Australia: Australian Government Publishing Service. McKeough, J., & Stewart, A. (1997). Intellectual property in Australia (2nd ed.). Sydney, Australia: Butterworths. Meagher, R. P., Gummow, W. M. C., & Lehane, J. R. F. (1992). Equity: Doctrines and remedies. Sydney, Australia: Butterworths. Neate, G. (1989). Aboriginal land rights law in the Northern Territory (Vol. 1). Chippendale, NSW, Australia: Alternative Publishing Co-operative Ltd. Parkinson, P. (1994). Tradition and change in Australian law. Sydney, Australia: Law Book Company. Parkinson, P. (Ed.). (1996). The principles of equity Sydney, Australia: LBC Information Services. Puri, K. (1993). Copyright protection for Australian Aborigines in the light of Mabo. In M. A. Stephenson & S. Ratnapala (Eds.), Mabo: A judicial revolution (pp. 132–164). St. Lucia, Australia: University of Queensland Press. Puri, K. (1995). Cultural ownership and intellectual property rights post-Mabo: Putting ideas into action. Intellectual Property Journal, 9,293–347. Ricketson, S. (1991). The concept of originality in Anglo-Australian law. In Association Littéraire et Artistique Internationale (Ed.), Congrès de la Mer Egée II (pp. 183–201). Paris: Association Littéraire et Artistique Internationale Rosidi, A. (1984). Undang-Undang Hak Cipta 1982; Pandangan Seorang Awam. Jakarta, Indonesia: Penerbit Djambatan. Sherman, B. (1994). From the non-original to the Ab-original. In B. Sherman & A. Strowel (Eds.), Of authors and origins: Essays on copyright law (pp.11–130). Oxford, UK: Clarendon Press. Simorangkir, J. C. T. (1982). Undang-Undang Hak Cipta 1982 (UHC 1982). Jakarta, Indonesia: Penerbit Djambatan. Stanner, W. E. H. (1965). Religion, totemism and symbolism. In R. M. Berndt & C. H. Berndt (Eds.), Aboriginal man in Australia: Essays in honour of Professor A. P. Elkin. Sydney, Australia: Angus and Robertson. Swain, T. (1993). A place for strangers: Towards a history of Australian Aboriginal being. Cambridge, UK: Cambridge University Press. Wambugu Githaiga, J. (1998). Intellectual property law and the protection of indigenous folklore and knowledge. E Law—Murdoch University Electronic Journal of Law, 5(2) [On-line serial]. Weiner, J. G. (1987). Protection of folklore: A political and legal challenge. International Review of Industrial Property and Copyright Law, 18(1), 56–92.

Cases Cited Clark v. Ryan, 103 CLR 486 (1960). Gordon v. R., 41 ALR 64 (1982). John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., 1082 FCA (1998). Mabo and Others v. Queensland (No. 2), 175 CLR 1 F.C. 92/104 (1992).

Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? Milirrpum v. Nabalco Pty. Ltd., 17 FLR 141 (1971). Milpurrurrn & Ors v. Indofurn Pty. Ltd. & Ors, AIPC 91-116 (1995). Napaluma v. Baker, 29 SASR 192 (1982). R. v. Sparrow, 70 DLR (4th) 385 (1990). Yumbulul v. Reserve Bank of Australia, 21 IPR 481 (1991).

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Chapter 6 The Humane Expert: The Crisis of Modern Medicine During the Weimar Republic Michael Hau School of Historical Studies, Monash University, Melbourne, Australia [email protected]

Modern experts base their professional competence and authority on specialized, technical knowledge acquired in the course of a long and rigid theoretical and practical training. Specialized training and knowledge is not only a precondition for access to modern professions, it is also crucial for the legitimization of professions in relation to a lay public that relies on their services. Personal or human characteristics are not usually considered important aspects of modern expertise; indeed, it seems that the very concept of modern expertise is based on the notion of a standardization of professional services that, at least in theory, could be provided by any individual mastering the knowledge and skills required to gain access to a profession. This impersonal portrait of the modern expert is not generally adequate. An instructive case in this respect is the reaction of German orthodox physicians (Schulmediziner) to challenges that where posed to their professional authority during the Weimar Republic. Legitimacy in the eyes of a professional peer group and in the eyes of the lay public may differ. While access to modern professions may, indeed, be solely based on the mastery of specialized skills and knowledge, the legitimacy of professionals in the eyes of a lay public may also be based on the personal characteristics and reputation of individual professionals that transcend mastery of professional skills in the narrow sense. During the Weimar years physicians saw their professional autonomy threatened for several reasons. The market for medical services was saturated because of the rising number of university-trained physicians. The number of registered physicians in Germany grew from about 34,000 in 1913 to about 52,500 in 1932, and the rising number of medical students from the middle of the 1920s onward reinforced physicians’ fears about an oversupply of doctors and declining incomes (Kater, 1986, pp. 49–58; Wolff, 1997, pp. 124–130). Such a crisis was not unique to the medical profession; other professionals, be they lawyers, teachers, or engineers, also faced similar prospects that, along with the traumatic experience of inflation in 1923, contributed significantly to the gloomy mood among the German educated middle classes (Jarausch, 1989; Weisbrod, 1996). 105

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Physicians further blamed the increasing power of the legal health insurance system over the allocation of resources for restricting their professional autonomy in a tight market for medical services (Hubenstorf, 1993). In the eyes of contemporary physicians there was also a growing number of alternative practitioners, which further exacerbated their economic condition. This led to a lot of soul searching among members of the medical profession. While modern medicine had increased the technical competence of physicians, some of them conceded that modern medicine had also alienated them from their patients. The practice of medicine, they claimed, could not be reduced to the mastery of scientific knowledge. There was more to a physician than just technical skills. To gain the respect and trust of their patients, modern physicians also had to have strong personal characteristics. They had to become empathic experts and outstanding healer personalities who tried to understand their patients as individual human beings. In making such claims Weimar physicians appropriated the discourse of the natural therapy movement that had challenged the authority of the orthodox profession even before the war. In this chapter I first outline Weimar physicians’ attitudes toward alternative medical practitioners. Being concerned about the legitimacy and reputation of their profession, physicians saw the propaganda by supporters of alternative medical practices as a serious challenge. Then I address the physicians’ responses to this situation and the call for a new form of expertise that would renew the legitimacy of the orthodox medical profession among the lay public. The final section presents how representatives of alternative medicine assessed the new rhetoric of orthodox physicians professing the importance of empathy and personal understanding as integral aspects of modern medical practice.

Modern Medical Practice and the Challenge of Alternative Medicine In the early 1920s the physician Carl Ludwig Schleich looked back at the rapid development of modern medicine during his long and successful career. Like many of his colleagues in the 1920s, he was particularly concerned about the consequences of modern medical practice being based on the laboratory and technological innovations: The general aesculap of the laboratory is replacing the physician like a pilgrim moving through the country from home to home. The factory slowly takes the place of the pharmacy and the knowledge of an Ehrlich, of a Wassermann, might overthrow the entire jumble of personal diagnostics. Blood tests enlighten us like x-rays; test tubes and microscopes make diagnoses far removed from the patient. (...) Science moves in this direction with a great momentum; Ehrlich was the army commander and Wassermann will be the great leader of the campaign. The physician, however, who might become suspicious because of the spectre of an impersonal medicine, has one

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thing in his experienced, humane, consoling hand, which neither the laboratory, nor a chemical reaction, nor a theory of toxins can deprive him of: This is the soul of the suffering. The more medicine becomes general and universal, the more the physician has to become ethical, cultivated, and highminded. The more science is striving toward the generalization of therapies, monopolies, and specialization, the more [the physician] is pushed into his quiet chamber, where confession, consolation, and mediation between souls dispense their relief. (Schleich, 1948, p. 308f.)1 Schleich tried to reassure himself and his colleagues that modern medical technology would not alter the core of medical practice by undermining the trust between physicians and their patients. Such fears would become exacerbated during the “crisis of medicine” in the 1920s, when both physicians and their patients had lost confidence in the potential of modern laboratory medicine (Bothe, 1991, pp. 16–37; Klasen, 1984). For German physicians, the “crisis of medicine” was, in part, a crisis of legitimacy in relation to their patients and the lay public in general. Physicians attributed this crisis to the growth of alternative health movements, especially a proliferation of new medical sects and the success of new miracle healers in the 1920s. Therefore, they searched for new means to establish their cultural and scientific authority as therapeutic experts. In lectures, articles, books, and hygienic exhibitions aimed at a popular audience, physicians conceded that the analytical and reductionist methodology of scientific medicine had often neglected patients as human beings. Modern medicine had distanced physicians from their patients and, to overcome this distance, the physician had to become an empathic healer, a humane expert. In addition to medical expertise, physicians had to develop qualifications that transcended their expertise as experts trained in the natural sciences. According to propagators of the ideal of the humane expert, physicians who faced the alienating prospects of modern medicine had to become outstanding healer personalities to win the trust of the lay public and their patients. Historians who have examined the professionalization of German physicians have argued that the expert authority of modern German physicians was based on specialized knowledge that was accessible only on the basis of a long, expensive, and theoretically based education. The theoretical knowledge of modern physicians became the main basis of their expertise, which was independent of, and unaffected by, their personal character or reputation (Huerkamp, 1990; Lachmund & Stollberg, 1995, p. 208f.; McClelland, 1997). During the 1920s, however, German physicians argued that specialized training in the natural sciences was a necessary, yet insufficient basis for the therapeutic practice of the modern physician. The physician, some argued, had to be more than just a scientist or technician who serviced the bodies of his patients. As is evident from the vocabulary used by Carl Ludwig Schleich, medical practitioners also had to fulfil the role of priests who listened to the confessions of 1

All translations by M. H.

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their patients and consoled them. Other Weimar physicians argued, it was technical competence and outstanding personal characteristics that made the difference between a mediocre physician and a charismatic healer personality who had the trust of his patients. For some of them such characteristics were invariably tied to gender, since they believed that only men could develop such an outstanding personal charisma (Kretschmer, 1929b, p. 125–128; Liek, 1927, p. 102f.). Since the newly created image of the physician as a humane expert was in part a re-legitimization strategy for modern scientific medicine, Weimar physicians tried to change the ways in which the regular medical profession related to alternative health movements, whose organizations had already drawn a huge membership before World War I. By 1913, the natural therapy movement had grown to a mass movement with a membership of almost 150,000. Supporters of natural therapies rejected the use of “artificial” drugs and advocated, instead, the reactivating of the self-healing powers of the human organism through a healthy lifestyle, hydrotherapy, and sun and air bathing. They denounced the therapies of regular medicine as schematic and demanded that physicians and natural therapists treat their patients holistically, since every patient had a different physical, spiritual, and mental constitution (Huerkamp, 1986; Krabbe, 1974; Regin, 1995, p. 27ff., p. 48ff., p. 102ff.; Stollberg, 1988). In the 1920s, however, regular physicians saw their professional authority not only threatened by the natural therapy movement but also by a revival of homeopathy and new medical fads such as “biochemistry.” The immense popularity of “biochemistry” was a relatively short-lived phenomenon of the 1920s. Drawing on the theories of the physician Wilhelm Schüßler, “biochemists” attributed all diseases to an unbalanced supply in the body of 11 basic nutritional mineral salts. The flourishing of such medical fads was a symptom of the fragmentation of the medical market of the Weimar years in which various medical sects competed with natural therapy and orthodox medicine (Dörter, 1991; Jütte, 1996; Wuttke-Groneberg, 1982). To counter such challenges university-trained physicians increasingly appropriated elements of the discourse of alternative health movements. The renowned surgeon August Bier demanded that regular medicine become more open to outsider methods such as homeopathy. He argued for a less interventionist approach in surgery and claimed that homeopathy and natural therapy were important means to reactivate the self-healing powers of the human organism (Bier, 1926, p. 8ff., p. 30ff.). Demands that physicians should take the spiritual-physical unity and the individual constitutions of their patients into account when making therapeutic prescriptions also became quite frequent among prominent representatives of the orthodox medical profession (Bier, 1926, p. 9; Grote, 1921, pp. 31–34; Krehl, 1929, p. 33ff.). However, it remains unclear whether the rhetoric stressing holistic approaches and the need to take the individuality of each patient into consideration entailed any tangible changes in regular medical practice. It is also not clear, one should add, what such a rhetoric entailed for the actual practices of the natural therapy movement and other brands of alternative medicine.

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That there might be a discrepancy between high-sounding proclamations and actual practices seems to be sometimes forgotten in the literature on the natural therapy movement (Regin, 1995, pp. 447–459). A good example of the re-legitimization strategy of the orthodox medical profession were the activities of the physician Otto Neustätter, the Chair of the Society for the Fight against Quackery (Deutsche Gesellschaft zur Bekämpfung des Kurpfuschertums) from 1913 onward. Before World War I, Neustätter had been among the most enthusiastic fighters against the propaganda and therapeutic practices of the natural therapy movement (Neustätter, 1904; Regin, 1995, p. 443). After the war, however, people such as Neustätter reconsidered their confrontational strategies. They propagated “defense through education” instead of frontal attacks by professional organizations of doctors on supporters of alternative medicine (Bundesarchiv Berlin [BArchB], R 1501, No. 9371, p. 20ff.). Neustätter increasingly acknowledged the misgivings of the lay public about orthodox medicine and he was willing to concede to lay people, organized in natural therapy associations, having an important role in popular hygienic education, if they did not challenge the therapeutic monopoly of orthodox physicians. He now even considered admitting natural therapy associations to the State Committees for Hygienic People’s Education (Landesausschüsse für hygienische Volksbelehrung) and the Reich Committee for Hygienic People’s Education (Reichsausschuss für hygienische Volksbelehrung) because he believed that the integration of these natural therapy associations would increase the credibility and legitimacy of the orthodox medical profession among the lay public (BArchB, R 1501, No. 9370, pp. 253–258, pp. 313–320). These National and State Committees were founded to aid in the restoration of the “health of the nation” (Volksgesundheit) after the lost war. Their purpose was to promote and coordinate hygienic education efforts by health officials, health insurance agencies, physicians’ organizations, and welfare organizations. Neustätter himself chaired the Saxon and the National Committee. The most notable action of the Reichsausschuss was the Reich Health Week (Reichsgesundheitswoche) in 1926, at the request of the Ministry of the Interior. During this National Hygienic Propaganda Week, lectures by physicians, hygienic exhibitions, and educational movies, as well as other events with hygienic propaganda, were organized on the local and state levels in cooperation with the State Committees for Hygienic People’s Education and municipal and county physicians (BArchB, R 1501, No. 9374, pp. 360–380; BArchB, R 1501, No. 9411, p. 106f.; BArchB, R 1501, No. 9412, p. 11). Even though Neustätter and his supporters (among them Karl Alexander, who had written one of the most aggressive attacks on the natural therapy movement two decades earlier; Alexander, 1899) had distinguished themselves as crusaders against natural therapists, Neustätter’s suggestion to tame the natural therapy associations by integrating them found a mixed reaction among orthodox physicians. Ultimately his plans were doomed, because the German League of Physicians’ Associations (Deutscher Ärztevereinsbund), the professional association of orthodox physicians, refused to cooperate in any way with natural therapy associ-

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ations. Its representative, Herzau, successfully resisted acceptance of natural therapy associations in the Reich and State Committees, because such a cooperation would give the supporters of natural therapy added legitimacy (BArchB, R 1501, No. 9370, p. 194, p. 202ff.; BArchB, R 1501, No. 9371, p. 26ff., pp. 64–69). However, Neustätter’s plans were symptomatic of a trend within orthodox medicine to appropriate the discourse of alternative medicine by acknowledging the shortcomings of mechanistic approaches within orthodox medicine. As Friedrich Martius, a leading professor for clinical medicine, explained in 1921, it was essential for the orthodox medical profession not to alienate the moderate sectors of the natural therapy movement. Martius argued that the scientific medicine of the late 19th century, with its chemical-physical materialism, had contributed to a deep antagonism between scientific medicine and the “biological feelings” of the people. By acknowledging the fact that therapies could not always be derived completely from chemical and physical principles, and by emphasizing the importance of “pure experience in the biological sense,” Martius hoped it would be possible to end the alienation between scientific medicine and the natural therapy movement without compromising the professional authority of physicians (BArchB, R 1501, No. 9371, p. 6).

The Humane Expert: Re-casting the Patient-Healer Relationship This “pure experience in the biological sense” that Martius talked about was one of the characteristics of the humane expert, of the “physician as a human being.” Reform-minded university-trained physicians criticized the approaches of classical modern scientific medicine as exemplified by modern laboratory medicine, which supposedly treated human beings like machines. They argued that physicians had to be more than mechanics or technicians who simply repaired the malfunctions of the human body. The modern physician’s expertise still was to be based on technical skills and scientific knowledge. However, personal characteristics, not directly related to specialized knowledge and practical skills, were central to a new type of physician representing an outstanding healer personality, who could build personal and individual relationships with his patients. Some physicians demanded holistic approaches that acknowledged the individuality of each patient as well as the physical-spiritual unity of patients. The internist and immunologist Hans Much, for example, argued that results from laboratory research and animal experimentation could not become the basis for therapeutic decisions. Since every patient was different, and since every patient had a unique individual constitution, it was necessary to tailor therapies to individual patients (Much, 1928, pp. 22–55, 1932, pp. 92–104; Wirtz, 1991). This was, of course, nothing new. What was new was that orthodox physicians of the Weimar era appropriated the rhetoric of the natural therapy movement, whose representatives had maintained, for a long time, that university-trained physi-

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cians treated their patients schematically and did not take their individuality into account. Much claimed further that a great physician needed outstanding personal characteristics in addition to his technical expertise. Such a physician had to grasp intuitively the entire personality of a sick individual in their healthy state. According to Much, this was only possible as a great synthesis that attempted to comprehend the totality of the constitutional habitus (Gesamthabitus) of a patient. Such a synthesis was only possible for the endowed and gifted “artist physician” (Much, 1928, p. 50). Because Weimar physicians argued that it was the humanity of the physician that made him a superior healer, they maintained that it was necessary to ground medicine not exclusively on the methodology of the natural sciences. Instead, medicine as a natural science had to be supplemented with the methodology of the humanities. To be sure, a thorough training in the methodologies of the natural sciences was considered a crucial foundation for the expertise of the modern physician. But, intuition and empathy were important for physicians also. Medicine was perceived as an art, and the intuitive gaze of the physician had to synthesize countless symptoms and characteristics of individual patients to capture the constitutional essence and individuality of every single patient. Such invocations of the intuitive gaze of the physician, implying an analogy between medicine and art, became one of the hallmarks of the constitutional medicine of the period, even though their validity was not uncontested within the profession (Hau, 2000; Kretschmer, 1929a, pp. 2–7; Mathes, 1924–1929, pp. 8–12; Trienes, 1989; Vacha, 1985). Orthodox physicians claimed unique intuitive abilities that made it possible for them to develop a natural empathy for the sick and their surroundings. In doing so, they responded to the concerns of their patients, who feared becoming passive objects of scientific experts who did not take them seriously as full human beings. The physician Erwin Liek (Kater, 1990), who published several bestsellers on the crisis of the medical profession, argued that it was necessary for physicians of the future to grasp the sick individual in their entirety and establish a relationship of trust between themselves and their patients. Therefore, a physician could not be a remote scientist in a university laboratory. According to Liek, the physician, as a humane healer, had to understand intuitively the entire human being. However, the relationship between physician and patients was not to be a symmetrical one. Liek argued that confidence in the physician had to be based on faith and trust in the physician’s expertise, because it was expertise shrouded in secrecy and mystery that instilled trust in the art of the practitioner (Liek, 1930, pp. 189–205). Liek’s advice tried to reestablish the trust in the competence of orthodox medicine. But, the renewed legitimacy of the medical profession was no longer to be based exclusively on specialized expertise in the methodology of the natural sciences. Instead, it had to be supplemented by the personal authority of the physician and a humanistic methodology that was based on empathy (Liek, 1929, pp. 177–179). These attempts by physicians to find a new basis for the legitimacy of modern medicine become especially obvious when we look at those occasions when

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physicians addressed a popular audience. In 1926 the famous surgeon and medical professor Ferdinand Sauerbruch had the opportunity to speak to a large lay audience during the GeSoLei in Düsseldorf, the largest hygienic fair in Germany in the inter-war years with more than 7 million visitors. The acronym GeSoLei stood for Gesundheit (health), Sozialfürsorge (welfare), and Leibesübungen (physical exercise) and the goal of this exhibition, as of the other great hygienic exhibitions of the period, was to educate the general public on issues of personal and social hygiene (Weindling, 1989, p. 413ff.). Like Liek, Ferdinand Sauerbruch tried to show sympathy for the apprehensions of patients, who were alienated from modern medicine. Sauerbruch distinguished between the “art of healing” and mere natural science, and he maintained that each time the natural sciences had reached a high point, medicine as a healing art had suffered. He argued that there was no such thing as medical science; there was only a medical art and the physician’s intuition was the most important instrument of this art. Physicians such as Sauerbruch lamented that modern physicians were incapable of giving thorough clinical examinations, but instead wasted their time with so-called scientific examinations. Medicine, Sauerbruch claimed, was a “highly personal art” and exceptional healers would base their art on their subjective feelings and personal experience. Because of their humanity, the physicians were superior to modern technology. The physicians’ empathy made them the “greatest and most accurate physical apparatus that existed”; therefore, intuition, as an improved human instinct, was decisive for the task of the physician, who had to grasp life in a subjective manner (BArchB, R 86, No. 885). For Erwin Liek, the model of such an outstanding healer personality was Otto von Bismarck’s personal physician Ernst Schweninger, who had treated the obese and neurasthenic German Chancellor with natural therapies (Radkau, 1998, p. 60ff.). Because of his criticisms of modern scientific medicine, Schweninger had already been a model physician for the natural therapy movement during the Empire. Liek, on the other hand, was impressed by the charismatic Schweninger, who achieved what no one else had achieved before: to make the Iron Chancellor submit to his authority. He quoted Bismarck as saying: “I was the one who treated my previous physicians (there were about a hundred of them, among them the best names); he (Schweninger) is the first one who treats me” (Liek, 1933, p. 128). Sauerbruch and Liek were not the only physicians who stressed the empathic abilities of outstanding physicians. Karl Jaspers, a former psychiatrist who taught philosophy and psychology in Heidelberg, did the same in his work on General psychopathology (Ash, 1995, p. 289). While many contemporary physicians might have genuinely believed in the need to supplement technical expertise with empathy, such claims also tried to establish an alternative source of authority for modern physicians. The expertise of the physician was not to be based solely on the machine, in this case the laboratory and technology. Instead, experiential immediacy, empathy, and the human touch were supposed to “build a bridge from soul to soul” (Liek, 1930, p. 192) between a physician and his patients, who resented becoming passive objects of soulless scientific experts.

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The emphasis on the humanity of the physicians, as opposed to the physician as a technician, is also evident in the great hygiene exhibitions in Dresden in 1930 and 1931, which were organized by the German Hygiene Museum in Dresden. The core of these exhibitions was the exhibition “Man” (Der Mensch). The goal was to educate the general public on the basic functions of the human body and the principles of modern medicine. Martin Vogel and Roderich von Engelhardt, who edited and wrote parts of the reader for the exhibition, argued that it was necessary for medical practitioners to understand humans in their constitutional and physical individuality through the intuitive gaze of the physician (Vogel, 1930, p. IVf.). They expressed, here, a variation on a contemporary popular discourse marked by a preference for intuition and experiential immediacy over experiment and alienating fragmentation (Ash, 1991). Vogel and von Engelhardt rejected the mechanical world view that saw disease as a phenomenon of functional disturbances of specific organs and of pathological changes in specific tissues. Their argument was reminiscent of Johann Wolfgang von Goethe’s criticism of Newton as the representative of a mechanistic world view in his Theory of colors. Medicine was, in their view, more than a natural science, belonging to the humanities, and as a justification of this position, they pointed to some of the epistemological principles developed by Goethe (Höpfner, 1990). Physicians, von Engelhardt argued, could only understand natural phenomena from “inside” (Vogel, 1930, p. 2f.). In other words, the humanity of the physician as part of the living world was the key to their understanding of other living organisms. Physicians, the exhibition reader claimed, had to be empathic, they had to intuitively grasp the orderly and purposeful organization of an organism in its meaning (Sinnzusammenhang). This was not something that could be done with a dissecting knife or a microscope. Classical mechanistic natural science was regarded necessary, but to fall short of revealing the most important aspects of truth. In examining the physiology or the anatomy of parts of the human body, one had to understand the body as a whole and see individual organs in their dependency on the whole (Vogel, 1930, pp. 3–7, pp. 256–259). This was not the epistemological principle of exact science, but rather an artistic, intuitive approach to understanding nature that was based on the assumption of the epistemological superiority of cultivation (Bildung) as a privileged means to unlock the secrets of nature through intuition. The disillusionment of Weimar physicians with the principles of classical, mechanistic science and medicine is striking. This disillusionment can not exclusively be attributed to the desire of physicians to gain ground on the medical market by appropriating the holistic rhetoric of the natural therapy movement. The rhetoric concerning the humane physician, who took his patients seriously in their individuality, was not always a cynical professional strategy. Some of their self-doubts on the diagnostic and therapeutic possibilities of a medical science, based exclusively on the natural sciences, were genuine. But, many Weimar physicians attributed the popularity of alternative health movements to popular unease about a modern medicine that seemed to rely

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Figure 1. The physician of the future supervising heart beat, blood pressure, breathing, and body temperature of the patients at a distance.

increasingly on technology and the laboratory. They were very worried about the public image of modern medicine, which seemed to increase the emotional distance between physicians and their patients. In the popular press this emotional distance was sometimes represented as geographical distance. An illustrated article in the Berliner Illustrierte Zeitung on the future of modern medicine is a case in point. This article claimed that modern technology would make it possible for the physician to supervise the health of his patients even if the patients were on a different continent, because diagnostic signs, such as heart rate or blood pressure, would be electronically transmitted to the physician in his office. There they would be monitored by machines, and based on the results, the physician would then give his therapeutic prescriptions (Kahn, 1925). According to such visions of modernity, the physician was a technician, a servant of the medical technology of the future (see Figure 1).

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It would, however, be a mistake not to acknowledge the ambiguity of such utopian visions. In the 1920s such visions of technological feasibility also carried considerable promise for contemporaries. Especially after the immediate postwar crisis and the hyper inflation of 1923, there was growing optimism among the public that Germany had finally overcome the adversity of the war years, and that science and modern technology held the promise of the reconstruction of the shattered nation. The GeSoLei as the great hygiene exhibition of the 1920s was conceived in such a technocratic vein also. According to its organizers, the GeSoLei was supposed to demonstrate ways in which the health of the nation and its productivity could be raised through the improvement of the health of individuals. In this respect, the GeSoLei reflected the concern with economic efficiency, rationalization, and Frederick W. Taylor’s ideas of scientific management in public debates about the German economy, an aspect of the so-called Americanism of the Weimar years, which sought technocratic solutions for social as well as for economic problems. During the stabilization years of the Weimar period, popular imagination was captivated by the utopian promises heralded by the achievements of American civilization, and it is in this context that visions of physicians as servants of medical technology have to be understood (Nolan, 1994; Peukert, 1993, pp. 178– 184). However, contemporaries perceived rationalization and mechanization somewhat ambiguously: It was a promise of progress as well as alienation. Such ambivalent attitudes toward technology were, for example, reflected in the discussions of contemporary engineers who felt the need to stress the spiritual aspects of technology to counter charges that modern technology would lead to an alienating, soulless world (Hård, 1998, pp. 40–45). The journalist Adolf Halfeld condemned the dehumanizing aspects of what he denounced as Americanism. He saw a “future society where card files, measurements, soul analyses, and brain tests take over the role of fate for the standardized individual without rights imprisoning them in this or that chamber of the immense social machinery” (Halfeld, 1928, p. 155). Liek was not surprisingly among those who rejected Utopian visions of modern, technological medicine also, because they estranged patients from their healers: The future physician of the magazines? The man in the big machine house, who makes a diagnosis without seeing his patients—the wired results suffice, who treats the patient without seeing him? No, our ideal physician looks different: The physician must be a man who combines knowledge with kindness, and will with understanding patience. (Liek, 1931, p. 30) According to Liek, the ideal physician not only had to be a scholar, technician, physicist, and chemist, but he also had to be a philosopher, priest, and connoisseur of human nature. Appropriating the rhetoric of natural therapists, Liek advocated a gende reactivating of the natural healing powers of the organism. The ideal physician was, in his view, not only well trained in the sciences and the newest medical technology, but he also had to be an educator and a leader of broken and tired souls (Liek, 1931, p. 30).

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The empathic physician had to learn how to bridge the distance between patient and healer by establishing a personal rapport without compromising the physicians authority and expertise. Indeed, in the view of some Weimar physicians, it was the emotional distance that undercut the expert authority of the physician and such authority could only be restored if the physician became a humane expert, and an empathic healer. The Berlin physician Alfred Goldscheider demanded, in the most prestigious German medical journal, the Deutsche Medizinische Wochenschrift, that physicians had to take the subjective experience of their suffering patients into account instead of dismissing these subjective experiences as irrelevant. He maintained that there was a gap between science and the subjective experience of illness and that this experiential gap was exploited by “quacks” who, in contrast to orthodox physicians, tried to relate to the personal experience of the sick. For the sick, according to Goldscheider, their immediate experience and perception of their illness was the disease. Patients would, thus, form an “auto-plastic image of the disease” (autoplastisches Krankheitsbild), as Goldscheider called it, which was partially based on the patient’s subjective experience of pain, nausea, emotions, weakness, listlessness (Unlustgefühle), and so on. In addition, ideas that the patient had about their own illness, along with what they read or heard from other people, or from physicians or “quacks,” would shape that patient’s subjective perception of his illnesses. The auto-plastic image of the disease was full of errors and had nothing to do with objective reality. For Goldscheider, the logical inconsistency of these perceptions was sometimes truly amazing. Nevertheless, they had to be taken seriously by physicians because the auto-plastic experience was easily influenced and manipulated by alternative practitioners who could only relate to the subjective experience of the patient. Medical sectarians would celebrate their greatest triumphs by treating the whole complex of the subjective image of the disease (Krankheitsvorstellungskomplex) without treating the underlying reality of the disease. This was dangerous for patients because, very often, opportunities of timely treatment were missed. For this state of affairs, scientific medicine had to take blame as well, because the auto-plastic image of the disease was not taken into account in the training of physicians, and it was left to the talent and skillfulness of individual practitioners to develop the empathic qualities that enabled the physician to relate to his patients (Goldscheider, 1927, p. 289ff.). Medical historians have repeatedly drawn attention to the diverging discourses of scientific medicine and the lay public. They have usually seen the development of these separate discourses as a source of the expert authority of the modern physician, especially since medical technology (the stethoscope, the laboratory, x-rays) opened up a new discursive field for orthodox practitioners. This gave physicians privileged access to hidden diagnostic signs that made it more difficult for lay people to challenge the interpretations of physicians at the bedside (Lachmund, 1997, p. 235ff., pp. 247–260; Lachmund & Stollberg, 1995, p. 208f., pp. 217–223; Reiser, 1977). In the view of Weimar physicians, however, the divergence of lay and professional discourses created a distance between patients and doctors that undercut

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public trust in scientific medicine. Therefore, it was wrong, in Goldscheider’s view, to rely exclusively on modern technology, on the laboratory, and on x-rays. These could not replace a thorough personal examination of patients, let alone replace the comforting encouragement of patients through the physician (Goldscheider, 1927, p. 331). According to Liek, the physician had to be the friend and counselor of the patient (Liek, 1932, p. 112), and this companionship became the basis for a renewed trust of patients in their physicians. In this respect, a thorough examination of the patient and verbal encouragement took on some ritualistic significance. It was not so much important what the physician said, or whether a thorough examination was necessary from a strict medical point of view. The fact that the physician took their time, listened, and showed no haste in the examination and treatment of their patients, was to convey a sense of care and empathy. In Goldscheider’s and Liek’s view, patients desired nothing more than paternalistic guidance. In contrast to physicians participating in hygiene exhibitions, Liek and Goldscheider were skeptical about the benefits of popular hygienic education. They thought it would encourage “a dangerous half-knowledge” (gefährliches Halbwissen) that might pose a challenge to the authority of physicians apart from encouraging hypochondriacs. The more mysterious the work of the physician, the greater their authority, as long as they could convey their empathy. In Goldscheider’s and Liek’s view, it was necessary that the distance between physicians and the lay public, and their diverging languages and interpretations of diseases, remained intact as the source of the expert authority of the physician, but it would be supplemented by the humane qualities of the physician as the source of empathy (Goldscheider, 1927, p. 332f., p. 377; Liek, 1932, p. 124ff., 1933, p. 174). Liek went even further. In his view, the physician had to become a priest with a magical aura. Since suggestion played an important part in the healing process, the physician would compromise his efficiency if he shared his secrets with his patients. This was something that orthodox physicians could learn from alternative practitioners, who gained the trust of their patients by shrouding their expertise in mystery (Liek, 1930, p. 202). For Liek, the efficiency of the physician lay in his charisma sustained by the mythical belief of his patients in a physicians privileged access to knowledge. Popular hygienic education tended to undercut such naive, yet wholesome, beliefs in the physician’s power and infallibility and deprived the practicing physician of his efficiency.

The Alternative Response The question remains whether the lay public was impressed by the new rhetoric of representatives of the orthodox medical profession and its emphasis on the outstanding, empathic healer personality: The humane expert, who treated his patients by taking their individuality into account and who did not simply treat diseases, but human beings as a whole. The reaction to Sauerbruch’s presentation

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at the GeSoLei, which I cited above, gives us some answers. The observer of the Reich Health Office at the GeSoLei, who had followed Sauerbruch’s presentation, reported to his superiors somewhat laconically: “It is self-evident that the presentation which culminated in the beautiful words ‘Being a physician means being a servant to man’ (Arzt sein ist Dienst am Menschen) triggered tremendous applause” (BArchB, R 86, No. 885). Among supporters of alternative health movements, the promised reorientation of modern scientific medicine was also received quite positively. An author in the leading homeopathic journal, the Leipziger Populäre Zeitschrift für Homöopathie, lauded Liek’s criticism of the practices of the orthodox medical profession (Schmid, 1989, p. 116). In the case of the natural therapy movement the positive reception was mixed with apprehensions. Leaders of the natural therapy movement welcomed the new reform mindedness and the humanization of the traditional medical profession. Physicians such as Bier, Liek, Sauerbruch, and Much were cited as examples of an encouraging new trend within scientific medicine, especially since these physicians tried to integrate natural therapies into their therapeutic arsenal (Kapferer, 1927; Mummert, 1927). But, at the same time, supporters of natural therapy were worried that the rhetoric concerning a reformed medicine would undercut the support of the natural therapy movement among the lay public. In the Naturarzt, the official organ of the national League of Natural Living and Therapy Associations (Deutscher Bund der Vereine für naturgemäße Lebens- und Heilweise), Paul Schirrmacher hoped that the new emphasis in popular hygienic education within scientific medicine was not designed to “take the wind out of the sails of the natural therapy movement” (Schirrmacher, 1926, p. 89). Throughout the 1920s, there were also voices among the natural therapy movement that expressed fears that natural therapy would lose its distinctiveness on the medical market, especially since orthodox physicians increasingly integrated natural therapies into their own therapeutic arsenal. The naturopathic physician Erwin Silber claimed, in 1929, that the adoption of natural therapies by the orthodox medical profession was a superficial concession by the medical establishment to mislead the public. Orthodox medicine tried to misrepresent natural therapy as an achievement of the orthodox medical profession and never mentioned the important contributions that the alternative health movement had made to the development of such therapies. In reality, Silber claimed, orthodox medical practice had changed very little. There was still an overwhelming emphasis on drugs and operations and the natural therapy movement had still an important mission in fighting the materialistic-mechanistic spirit of modern medicine (Silber, 1929). Defenders of natural therapy, thus, clearly saw the danger inherent in the holistic discourse within scientific medicine. Natural therapy was in danger of losing its distinctiveness on the medical market of the Weimar era because orthodox medicine tried to absorb some of the contemporary discontent with the technological and mechanistic aspects of a “scientized” medicine. As early as 1921, the 12th Federal Assembly of the German League of Natural Living and

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Therapy Associations, therefore, adopted a resolution that tried to alert the public to the fundamental differences between therapy as propagated by natural therapists and natural therapies offered by orthodox medicine. According to this resolution, the latter was a compromise doctrine diluting the great heritage of the natural therapy movement with orthodox therapies and the dispensing of drugs. Furthermore, orthodox physicians were inexperienced in activating the natural healing powers of the organism, the claimed forte of the experienced naturopathic (implying empathic) physicians (Anonymous, 1921). The humane expert, the outstanding healer, who took the individuality of his patients into account, had been among the long-standing demands of German health reform movements. This is evident not only in the holistic rhetoric of supporters of natural therapy, but also in their propagandistic denunciations of human experimentation within scientific medicine. However, when orthodox physicians made such demands they were considered suspect, attempting to give a discredited medical science a new legitimacy.

Conclusion During the Weimar Republic orthodox physicians tried to develop discursive strategies to address the crisis of legitimacy of modern scientific medicine. The long university training of physicians in the sciences, as well as contemporary technological visions of modern medical practices, provided important symbolic resources for physicians who wanted to convince the lay public of their competence as modern experts. However, such modern images of medical practice were a double-edged sword, because they also implied an emotional distancing between practitioners and patients, which neither patients nor physicians found appealing. From the point of view of some contemporary physicians, the solution to this dilemma was a new form of expertise that combined the impersonal authority of the modern expert with the personal authority of the outstanding healer personality. This was an attempt to construct a new form of expertise in order to cope with the contradictions of modern society: On the one hand, images of scientific and technical competence create utopian hopes of technological feasibility, on the other hand, these same images provoke fears of an alienating, impersonal society.

Acknowledgment Thanks to Jens Lachmund for his critical comments and suggestions.

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Klasen, E.-M. (1984). Die Diskussion über eine Krise der Medizin in Deutschland zwischen 1925 und 1935. Unpublished doctoral dissertation, Mainz, Germany. Krabbe, W. R. (1974). Gesellschaftsveränderung durch Lebensreform. Strukturmerkmale einer sozialreformerischen Bewegung im Deutschland der Industrialisierungsperiode. Göttingen, Germany: Vandenhoek & Ruprecht. Krehl, L. von. (1929). Krankheitsform und Persönlichkeit. Leipzig, Germany: Thieme. Kretschmer, E. (1929a). Körperbau und Charakter. Untersuchungen zum Konstitutionsproblem und zur Lehre von den Temperamenten (7th and 8th ed.). Berlin: Julius Springer. Kretschmer, E. (1929b). Geniale Menschen. Berlin: Julius Springer. Lachmund, J. (1997). Der abgehorchte Körper. Zur historischen Soziologie der medizinischen Untersuchung. Opladen, Germany: Westdeutscher Verlag. Lachmund, J., & Stollberg, G. (1995). Patientenwelten. Krankheit und Medizin vom späten 18. bis zum frühen 20. Jahrhundert. Opladen, Germany: Westdeutscher Verlag. Liek, E. (1927). Der Arzt und seine Sendung (2nd ed.). Munich, Germany: Lehmann. Liek, E. (1929). Irrwege der Chirurgie. Munich, Germany: Lehmann. Liek, E. (1930). Das Wunder in der Heilkunde. Munich, Germany: Lehmann. Liek, E. (1931). Die zukünftige Entwicklung der Heilkunde. Stuttgart, Germany: Fr. Frommanns. Liek, E. (1932). Krebsverbreitung, Krebsbekämpfung, Krebsverhütung. Munich, Germany: Lehmann. Liek, E. (1933). Die Welt des Arztes. Aus 30 Jahren Praxis. Dresden, Germany: Reissner. Mathes, P. (1924–1929). Die Konstitutionstypen des Weibes, insbesondere der intersexuelle Typus. In J. Halban & L. Seitz (Eds.), Biologie und Pathologie des Weibes. Ein Handbuch der Frauenheilkunde und Geburtshilfe (Vol. III, pp. 1–122). Berlin: Urban & Schwarzenberg. McClelland, C. E. (1997). Modern German doctors. A failure of professionalization? In M. Berg & G. Cocks (Eds.), Medicine and modernity. Public health and medical care in Nineteenth- and Twentieth-Century Germany (chap. 4). Cambridge, UK: Cambridge University Press. Much, H. (1928). Das Wesen der Heilkunst. Grundlagen einer Philosophie der Medizin. Darmstadt, Germany: Reichl. Much, H. (1932). Arzt und Mensch. Das Lebensbuch eines Forschers und Helfers. Dresden, Germany: Reissner. Mummert, O. (1927). Naturheilkunde oder Medizin. Naturarzt, 55, p. 134. Neustätter, O. (1904). Die sogenannte Naturheilkunde. In W. Back (Ed.), Das Kurpfuschertum und seine Bekämpfung (pp. 45–90). Straßburg: Back. Nolan, M. (1994). Visions of modernity. American business and the modernization of Germany. New York: Oxford University Press. Peukert, D. (1993). The Weimar Republic. The crisis of classical modernity. New York: Hill & Wang. Radkau, J. (1998). Das Zeitalter der Nervosität. Deutschland zwischen Bismarck und Hitler. Munich, Germany: Carl Hanser. Regin, C. (1995). Selbsthilfe und Gesundheitspolitik. Die Naturheilbewegung im Kaiserreich, 1889 bis 1914. Stuttgart, Germany: Franz Steiner. Reiser, S. (1977). Medicine and the reign of technology. Cambridge, UK: Cambridge University Press. Schirrmacher, P (1926). Reichsgesundheitswoche. Naturarzt, 54, p. 89. Schleich, C. L. (1948). Besonnte Vergangenheit. Lebenserinnerungen 1859–1919. Stuttgart, Germany: Rowohlt. Schmid, W. (1989). Die Bedeutung Erwin Liek’s für das Selbstverständnis der Medizin in der Weimarer Republik und Nationalsozialismus. Unpublished doctoral dissertation, Friedrich Alexander University, Erlangen-Nuremberg, Germany. Silber, E. (1929). Wie weit ist der Naturheilgedanke in die medizinische Klinik eingedrungen? Naturarzt, 57, 341–245. Stollberg, G. (1988). Die Naturheilvereine im deutschen Kaiserreich. Archiv für Sozialgeschichte, 28, 287–305. Trienes, R, (1989). Type concept revisited. A survey of German idealistic morphology in the first half of the twentieth century. History and Philosophy of the Life Sciences, 11, 23–42.

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Vacha, J. (1985). German constitutional doctrine in the 1920s and 1930s and pitfalls of the contemporary conception of normality in biology and medicine. Journal of Medicine and Philosophy, 10, 339–367. Vogel, M. (Ed.). (1930). Der Mensch. Vom Werden und Wesen des menschlichen Organismus. Leipzig, Germany: Barth. Weindling, P. (1989). Health, race and German politics between national unification and Nazism, 1870–1945. Cambridge, UK: Cambridge University Press. Weisbrod, B. (1996). The crisis of bourgeois society in interwar Germany. In R. Bessel (Ed.), Fascist Italy and Nazi Germany. Comparisons and contrasts (pp. 23–39). Cambridge, UK: Cambridge University Press. Wirtz, R. (1991). Leben und Werk des Hamburger Arztes, Forschers und Schriftstellers Hans Much unter besonderer Berücksichtigung seiner medizintheoretischen Schriften. Unpublished doctoral dissertation, Aachen, Germany. Wolff, E. (1997). Mehr als nur materielle Interessen: Die organisierte Ärzteschaft im Ersten Weltkrieg und in der Weimarer Republik In R. Jütte (Ed.), Geschichte der deutschen Ärzteschaft. Organisierte Berufs- und Gesundheitspolitik im 19. und 20. Jahrhundert (pp. 97–142). Cologne, Germany: Dt. Ärzte-Verlag. Wuttke-Groneberg, W. (1982). “Kraft im Schlagen—Kraft im Ertragen!” Medizinische Reformbewegung und Krise der Schulmedizin in der Weimarer Republik. In H. Cancik (Ed.), Religionsuna Geistesgeschichte der Weimarer Republik (pp. 289–300). Düsseldorf, Germany: Patmos.

Chapter 7 Expertise Not Wanted: The Case of the Criminal Law Jean-Paul Brodeur International Center for Comparative Criminology, Université de Montréal (Québec), Canada [email protected]

My examination of the research literature on expertise in its relation with law has led me to believe that the development of an integrated and comprehensive theory of expertise in law is problematic. Expert risk assessment in toxic tort, or in damage to the environment cases, may be a process so different from the prediction of behavior in criminal cases that the search for common features may be a relatively fruitless endeavor. This is not to say that no common features apply to all expertise. With the exception of lawyers writing on expert testimony, most of the research undertaken on expertise and the criminal law is done by outsiders, that is, by persons who are not themselves involved in transactions between science and the criminal law. This external standpoint is particularly striking in respect to public commissions appointed by governments to study problems or events that have shocked public opinion, and to develop policies to remedy these problematic situations. Excepting the work of Sherman (1978) and of Johnson (1985) in the USA and my own work in Canada (Brodeur, 1984), most of these commissions have been scrutinized from the outside.1 In my years of practice both as a teacher and a consultant in criminology, I was fortunate enough to get an inside view on what was occurring in different fields where scientific expertise meets the criminal law in Canada (i.e., I was a member in various capacities of more than 16 Commissions of Inquiry and policymaking bodies). Instead of presenting abstract proposals on expertise in criminal law, I intend to draw on my previous experience and research to develop the main lessons that I have learned, and to indicate what are the trends that I have identified in the relationship between expertise and the criminal law. This chapter focuses almost exclusively on scientific expertise in relation to the criminal law. This presentation is divided into five parts. First, I will discuss 1 Lawrence Sherman has studied the Knapp Commission on police corruption in New York. Loch Johnson was part of the staff of the US Senate Church Committee which studied the covert operations of the CIA. Brodeur (1984) is a study of the working of several commissions that investigated police corruption in Québec.

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the work of professionals who are not individually sought as expert consultants; they apply their professional expertise on a routine basis in various fields. Second, I will present the results of Ph.D. research undertaken under my supervision on expert witnesses in Canada. Third, I will give the results of an evaluation, that I performed, of a project that tried to introduce the use of expert systems and computerized sentencing data banks in the courtroom. In the fourth part of this chapter, I shall discuss the role of such bodies as public inquiries and study commissions in the formation and reform of criminal law. This discussion will finally be followed by an assessment of the work of these public commissions. The common thread that runs through the five parts of my chapter is the following: I shall argue that when expertise plays an actual role in criminal justice, it is in its less knowledgeable and weakest sense; when expertise is strongly grounded in scientific knowledge, it is then either viewed with great circumspection or altogether rejected from the criminal law.

Experts: In the Weak and in the Strong Sense Before scanning these different domains of expertise within the criminal law, I shall discuss two preliminary topics. The first, is the general meaning of the word “expert”; the second, is its significance in the field of criminal law. In discussing the general meaning of expertise, my aim is not to provide a definition, but to draw a distinction between the weak sense and the strong sense of expertise. Etymologically speaking the word “expert” comes from the Latin expertus, which means “he who has been proven” (to be able at something). Hence, one needs a recognized qualification to be acknowledged as an expert. This qualification can be conceived in general, or in specific terms. What most generally qualifies someone as an expert is the possession of scientific knowledge on a particular subject. In William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., its landmark judgment on the admissibility of expert evidence in court, the US Supreme Court exclusively stressed this criterion, at the expense of “technical or other specialized knowledge” to which Rule 702 of the Federal Rules of Evidence also applies.2 This general qualification is necessary for a person to be acknowl2

In this crucial judgment, the US Supreme Court has developed a set of criteria that qualify a particular form of knowledge as scientific. These criteria draw heavily on the work of the philosophers of science Karl Popper and Carl Hempel. They are: (1) testability or falsifiability; (2) subjection to peer review; (3) the known or potential rate of error; (4) the general acceptance of a theory in the scientific community. Chief Justice Rehnquist and Justice Stevens dissented from the majority ruling, Justice Rehnquist stressing that the ruling did not address the issues raised by forms of knowledge other than scientific (technical and other specialized knowledge). The ruling actually raises many difficulties, particularly in view of the application of its first criterion of scientificity— testability. This criterion may direly constrain the admissibility of psychiatric testimony. See William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786 (1993). This judgment is reproduced in Appendix B of Foster and Huber (1997). For a comment, see Saltzburg (1993).

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edged as an expert, but it may not be sufficient. In addition to the possession of scientific knowledge, one may also need a specific qualification to be an acknowledged authority in a scientific field. With respect to this additional criteria, expertise is embedded within a hierarchical structure. The ranking of an expert by the courts may not coincide with the ranking of this person in the scientific community. As Jasanoff perceptively noted: “in the commodity market of expertise, persuasiveness, more than raw scientific credentials, determines a witness’s worth” (Jasanoff, 1995, p. 49). Many scientists are, thus, reluctant to participate in adversarial proceedings, where an expert is recruited by one of the parties and is expected to testify convincingly on its behalf. Whatever may be the source of this ranking, it cannot be denied that a person is truly qualified as an expert by the weight of authority that is carried by their word. Hence, I propose to distinguish between experts in the weak and in the strong sense of the word. In the weak sense, experts are professionals with a higher education in a scientific discipline and appreciable experience, who perform their speciality within a field of occupation. In the strong sense, experts are qualified scientists whose voices carry a measure of authority in a given field of knowledge. This distinction may not be equally relevant in all fields of expertise, although, as I shall immediately show, it must be made in order to account for the disparity of expertise in the field of criminal justice. This distinction is also useful in drawing attention to the fact that expertise is rather more of a relation than of a thing. In other words, one is acknowledged as an expert according to one’s position in the hierarchy of competitors, rather than according to one’s worth. The amount of qualification needed to move up in a hierarchy varies greatly from one field to the other; it is directly proportional to the availability of scientific knowledge in a given domain. Where there is a wealth of knowledge, one must be uniquely qualified to be acknowledged as an expert. In young fields of knowledge, such as criminology, one needs little qualification to percolate to the top.

Experts in Criminal Law I will now briefly address the meaning of expertise in criminal law. What I just stated about criminology, which is one of the social sciences, may not apply to the field of criminal law. There are fields that are germane to scientific expertise and some that are less so. For instance, the domains over which roam the two US agencies studied by Jasanoff (1990)—the Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA)—are dependent upon scientific expertise in a very crucial sense: Ecology and food and drug testing are to a significant extent constructions of science (see also the natural science examples discussed by Salter & Slaco, 1982). Scientific expertise cannot, then, be perceived as an intrusion by the EPA or the FDA, as they depend upon it, although it may be viewed, thus, by food or drug manufacturers or by logging companies. The situation is markedly different in criminal law, where the field is already occupied—and has been for time immemorial—by persons who have good reason

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to perceive themselves as experts. Judges, lawyers, and legal scholars have a justified claim to legal expertise, although they may not be called scientists. Consequently, what happens in a criminal law forum is a meeting of different kinds of expertise. Such a meeting may proceed smoothly; it may also develop into a confrontation. Conflicts can easily arise because criminal law expertise and scientific expertise belong to two different traditions. Particularly in common law countries, where the mere codification of the legal rules is viewed with suspicion, criminal law tradition focuses on the individual case, and the discussion of legal precedents often takes the form of a tedious casuistry hostile to statistical reasoning. In contrast, not only does science aim to be a set of valid and consistent generalizations, but scientific experts often take a holistic approach to problem solving, which does not play well with legal experts whose approach is incremental.3

Fields of Weak Expertise The title of this section refers to the distinction, made above, between experts in the weak sense and in the strong sense. The activities that I shall now discuss are pursued by experts in the weak sense. These fields of weak expertise are many and I will discuss only the most important of them. For lack of space, I will not discuss the role of the natural sciences in the production of criminal law evidence (e.g., ballistics, DNA fingerprinting, etc.). Despite the prestige of the natural sciences, this kind of evidence is far from being unassailable.

Policing What is characteristic of the police is that its repeated claims to expertise are not met in the reality of their daily operations. These claims are not only made by the police. One of Canada’s foremost scholars in police sociology has recently developed a new paradigm of policing, where police are defined as “knowledge workers,” who broker their expertise in risk assessment to a variety of institutions (e.g., insurance companies; see Ericson & Hagerty, 1997; Stehr, 1994; Stehr & Ericson, 1992). This paradigm may point the way toward the future. However, it is in dire contrast with the present reality of policing. Police professional culture confuses knowledge with intelligence collected through covert sources; when this misunderstanding is dispelled, the police become reluctant to 3

Experts tend to be intolerant of anyone else’s technical jargon. In his dissident opinion in William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., Chief Justice Rehnquist wrote in exemplary judicial fashion: “I defer to no one in my confidence in Federal Judges; but I am at a loss to know what is meant when it is stated that the scientific status of a theory depends on its ‘falsifiability,’ and I suspect some of them will be, too.” (Foster & Huber, 1997, p. 289, Appendix B) Conversely, scientific experts may be at a loss to fathom what is meant by legalese jargon, some of which is even still in Latin. Bridging the islands on which these contentious experts live is always precarious.

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seek expertise for its scientific sake. Knowledge work and expertise imply a certain amount of paperwork, which police are already overburdened with. With the exception of elite forces, such as the Federal Bureau of Investigation (FBI) or the Bundeskriminalamt (BKA), police education is generally much beneath the college level, although it is now increasingly demanded that police investigators should at least obtain university degree.4 Police training is traditional and militaristic and it fails to impart the skills necessary for policing the information age, particularly with respect to communication skills. Although police have invested vast sums of money in buying information technology, Peter Manning has shown that they were either not proficient in the use of such technology, or used it to further the own organizational ends, rather than external service goals, such as the provision of more security to citizens (Manning, 1988, p. 241f., 1992, pp. 388–391). The situation is much the same in relation to the hyped field of criminal profiling, where police do not yet have the training to take advantage of the expert systems provided to them (Jackson & Bekerian, 1997). Other areas where policing expertise is wanted are crime prevention, economic crime, transnational organized crime, and crowd control, to say nothing about “policing the Internet.” What is sure, however, is that the police will have to obtain the necessary expertise to meet its future challenges, or they will be superseded by the private security sector.

The Prediction of Deviant Behavior I previously stated that the issue of scientific expertise, in relation to the criminal law, was not as thoroughly researched as other topics. There is one exception to this assertion; it is the issue of the prediction of behavior, which is the subject of an abundant research literature. This issue divides into two basic questions, which are the prediction of the future behavior of accused and convicted offenders and the prediction of the decisions of criminal justice functionaries. Although there is a growing body of research on the second question, which has gained in prominence because of the great administrative stress under which criminal justice personnel are now operating, it is the first question that has been the focus of most of the research and that I shall address. Because of its scope, the research literature on the prediction of deviant behavior cannot be summarized and I shall limit myself to a few key points immediately related to the question of expertise.

4

This conclusion was also reached by a senatorial study in the Land of Hamburg, Germany (See Bericht des Senats über Absichten und Umsetzungen der Empfehlungen des Parlamentarischen Untersuchungsausschusses “Hamburger Polizei,” Hamburg, Mitteilung des Senats an die Bürgerschaft, Drucksache 15/75/14, 03.06.97).

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Prediction in Theory As it was stressed in Gottfredson and Gottfredson (1980), the entire operation of the criminal justice rests on predictions of behavior. The main points where choices are made on the basis of predictions are the decision to put an offender in preventive custody while awaiting their trial, the sentencing decision, and the decision to release a prison inmate on parole. All these decisions bear on the question of whether or not to incarcerate an offender. In one of the last comprehensive reviews of the accuracy of the prediction of behavior, Gottfredson concluded that the present ability to predict the behavior of offenders, or the decisions of criminal justice professionals, was modest and that predictions of decisions were more accurate than predictions of behavior (Gottfredson, 1987; more generally see the papers in Gottfredson & Tonry, 1987). This increasing modesty is indicated by the shift from selective to categorical incapacitation. In their influential report, Greenwood and Abrahamse (1982) believed that they had found a way to identify potential recidivists and advocated their incapacitation through longer sentences of custody. This belief that high-risk offenders could be identified on an individual basis was short lived, and prediction was geared to the identification of categories or classes of offenders who presented a higher risk of recidivism (e.g., offenders convicted of robbery present a higher risk than offenders convicted of manslaughter; von Hirsch, 1985; von Hirsch & Gottfredson, 1984). Thus, was prediction coupled with classification? This coupling can be seen as a progressive or as a regressive development. An offender’s classification for risk may be interpreted nondeterministically as one factor to be considered among others in the deliberation of their fate, this factor being considered in conjunction with others to produce the final disposition. For instance, Leblanc (1983) showed that the single most important determinant for the rehabilitation of young offenders was their involvement in a stable emotional relationship with a partner, after being released. The network of outside support, for an offender, could then offset or mitigate their classification in a category of high-risk offenders. On the other hand, categorical incapacitation can have disastrous effects, if it is viewed as deterministically as was selective incapacitation. In this latter case, instead of automatically incapacitating individuals selected as bad risks, whole categories of offenders might be seen as requiring longer periods of incarceration for the protection of society. There is, in Canada, a persistent tradition of predictive research, which attempts to “revalidate” prediction instruments developed in the early 1970s (Bonta, Harman, Hann, & Cormier, 1996; Gendreau, Little, & Goggin, 1996). These instruments fare reasonably well on their prediction of general recidivism, establishing at least a positive correlation between a high score on the predictive instrument and any kind of reoffense; they are weaker on their prediction of violent reoffense in the broad sense (e.g., robbery, where the degree of violence used is the object of a discretionary definition); they generate a high percentage of “false positives” (people who do not validate the prediction) when violent reoffense is narrowly defined. Crucially, these predictive instruments are scales composed of static items (e.g., the age of admission into a custodial facility), which

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provide no guidance on how to supervise an offender, once they have been released (Hanson & Harris, 1998). Despite these reservations about the ability to predict offender behavior, the criminal justice system’s craving for predictions of offender behavior remains as strong as ever. In the USA, mercenary psychiatrists testify on whether an offender is redeemable or not in cases involving capital punishment.5 The American Psychiatrist Association (APA) submitted a brief in this regard to the US Supreme Court. It stated that “the APA’s best estimate is that two out of three predictions of long-term future violence made by psychiatrists are wrong.”6 Nevertheless, the US Supreme Court ruled twice that such psychiatric testimony on whether a person was, or was not an unredeemable sociopath, was legally admissible as evidence. There is also a new trend in behavior prediction that is turning into a growing industry. It is now believed that potential violent and/or repeat offenders can be identified at a very young age—during the preschool years—and that the earlier we intervene to modify the behavior of these “high-risk children” the more chances we have of being successful (Tremblay & Craig, 1995, p. 167 [age: prebirth to 17 years], p. 184 [age: 3–5], p. 215 [age: prenatal/early infancy project], p. 224 [in conclusion: “From a policy perspective, it does appear that money invested in early (e.g. preschool) prevention efforts with at-risk families will give greater pay-off than money invested in later (e.g. adolescence) prevention efforts with the same at-risk families.”]). This situation is a paradigm case of the imbalance between actual knowledge and the “will to know”—or, to paraphrase Nietzsche, der Wille zum Wissen— which has been expounded by Michel Foucault (1975, 1976). The criminal law only has regard for “proof beyond reasonable doubt” and despite the limitations of knowledge, it has no use for the suspension of belief that characterizes the scientific attitude. Its perspective is akin to the decisionism developed by Carl Schmitt (1990, 1993) in political theory. Prediction in Practice In North America, the bulk of offender behavior prediction is performed by nonexperts who rely on their intuition and experience and by experts in the weak sense of the word. Among nonexperts—except with regard to their experience—are judges, who monopolize the decision to release an offender on bail, or to put them in preventive custody. The decision to grant parole to an offender is also taken, to a great extent, by persons who possess no scientific expertise (few experts sit on parole boards, where one finds a number of political appointees, 5

In the USA, at least 30 persons were executed on the basis of a diagnosis of “irredeemable sociopathy” by a psychiatrist named Grigson, who was known by defense lawyers as the prosecutor’s hit man or the killer psychiatrist (Robitscher, 1980, p. 199f.), quoted in Poirier (1998, p. 366). 6 Quoted in Barefoot v. Estelle, 463 US 880, 103 S. Ct. 3383 (1983), at 3408. Also see Estelle v. Smith, 451 US 454, 101 S. Ct. 1866 (1981). These references are given in Poirier (1998, p. 365, fn. 269 and 270).

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ex-police persons and members of the public). When experts intervene, they rely on outdated predictive instruments, which have not been revalidated for periods exceeding ten years (Bonta et al., 1996). The experts are mainly drawn from the ranks of probation officers. Probation officers are professionals who supervise offenders enjoying the various forms of conditional freedom (bail, probation, suspended custodial sentences, parole) and who have the responsibility to write pre-sentence reports for the sentencing judge. In many US jurisdictions, such reports are mandatory for sentencing offenders convicted of a serious criminal charge. In Canada, they are presented at the request of the sentencing judge. The expertise of probation officers varies greatly from one jurisdiction to another. In many cases, their greatest claim to expertise lies in their experience with offenders; in the best of cases, they have an undergraduate university degree in criminology, psychology, or a related field. Although probation officers have a general claim to qualify as experts through their scientific education and professional experience, they conduct risk assessments of offenders on a routine basis and, with few exceptions, they are not singled out as individuals whose opinions are uniquely authoritative. Pre-sentence reports show considerable variation in their quality, and probation officers enjoy a fair deal of latitude in the choice of their predictive methods, as they are generally not constrained by scientific standards of procedure. On the few occasions when the opinion of probation officers is challenged in open court, they testify as experts in the weak sense of the word in contrast to their challengers, who are recruited on the basis of their individual reputations (this does not imply, however, that their opinion will not prevail with the court). Double Jeopardy Predictions of offender behavior may be scientifically unbiased in their content, but their legal use is heavily tilted against the reintegration of the offender into society. For example, it is generally recognized that the majority of murderers present a low risk of reoffense. However, since criminal justice jointly follows utilitarian and retributivist goals, what the offender may gain under a utilitarian predictive rationale, they will lose under the orientation of the criminal law toward retribution. This implies that instead of releasing a murderer with a very low-risk assessment, the criminal law will feel obligated to incarcerate this person for an extended period of time for the purposes of punishment (in countries where capital punishment is still applied, this person may be executed). In other words, the expert’s assessment has a much higher probability of being followed if it identifies the offender as a bad risk rather than a good one (in this latter case, other reasons can be found to justify long-term incarceration). This repressive bias in the use that is made of their expertise deters many experts from being involved with the criminal law.

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Therapy I cannot leave the subject of weak expertise without mentioning the fact that the criminal law—particularly its correctional arm—has traditionally provided a harbor for therapeutic practices that pretended to be supported by expertise, but that were both inefficient and abusive of human rights (Brodeur, 1994). Today, there is one correctional institute in Québec, l’Institut Pinel, that claims to have discovered a new method for treating sex offenders. This therapy is administered by experts calling themselves “phallometricians” and is predicated on the common-sense belief that sex offenders lack self-control. The treatment proceeds in this way. The subject of the therapy is seated in a chair surrounded by several monitors and his penis and other parts of his body are fixed with electrical sensors. The subject is then shown sexually arousing pictures and various measurements are made with respect to his erection (speed of arousal, duration, flow of blood, etc.). The subject must learn to look at these pictures and maintain minimum arousal, thus, showing progress in self-control. Although this form of therapy would seem to both laypersons and specialists as a cut from the movie “A Clockwork Orange,” sex offenders are regularly sent to this institute for treatment and the phallometricians publish their findings in scholarly journals. A feature on this treatment was shown on national television in Canada and did not generate any significant feelings of disapproval. It may well be that phallometrics rest, in part, on valid scientific assumptions. However, we only have to refer to Freeman’s ice-pick lobotomies (Smith & Kiloh, 1974) to be reminded that there have been gross abuses of human rights perpetrated in prisons and mental institutions under the guise of therapy. Hence, we should be extremely cautious when we tread within these confines. To sum up, in policing, there is a gap between the expertise and technology presently available and the practical competence and willingness needed to apply them. In corrections, the situation is the reverse. With respect to the prediction of behavior, demands are pressed upon scientists, who cannot meet them in the present state of knowledge. Actually, meeting these demands is left to practitioners who routinely apply prediction instruments while ignoring their limitations. In the worst cases, they abuse their powers to experiment with so-called therapies that would make scientific experts shudder.

Expert Witnesses and the Criminal Law The part played by expert witnesses, in the law, has been increasing ever since the beginning of the 20th century. Jasanoff (1995, p. 43) quotes figures to the effect that 60% of the cases in a Massachusetts Superior Court relied on one kind of specialized testimony. This figure, it must be remembered, refers to all cases and not only to criminal law cases. The situation, as we shall see, is markedly different with respect to the criminal law.

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Research Findings To understand the research results that I will present, two things must be borne in mind. The Anglo-Saxon legal procedure is said to be adversarial, both in civil and in criminal law. In contrast to the Continental civil procedure, which is used in Germany and other countries of Europe, it is the lawyers representing the parties in conflict who play the prominent role in investigating the facts. Although judges may summon experts, as is generally the case in Germany, it is mostly at the behest of the contending parties that expert witnesses testify in court. As was noted by Langbein in an article justly entitled The German advantage in civil procedure, the adversarial procedure is always at risk of distorting the evidence and experts cannot avoid appearing to be partial, since they are testifying at the request of one party against the other (Johnston, 1987; Langbein, 1985, p. 823). Second, it is of the utmost importance to stress that trials are rare events in the Anglo-Saxon criminal law tradition, because of the process of plea bargaining. In the USA and Canada, defendants are enticed to plead guilty to reduce charges, to unburden the courts, and to spare the state the costs of a trial.7 In the USA, plea bargaining results in pleas of guilty and the avoidance of a trial in more than 90% of the cases; in Canadian urban jurisdiction, the figure is at least 70%. This drastic reduction of the number of trials in criminal law also drastically reduces the number of cases where expert witnesses testify, because it is generally within the context of a trial that experts appear in court. The perception of the role of experts in criminal trials is undermined by what I shall call the O. J. Simpson Syndrome. According to the mythology generated by highly “mediatized” cases, expert witnesses are pitted by the defense against the prosecution and ultimately win the day because rich defendants can afford the best experts. This may occur in a few “affaires célèbres, ”but this perception is very far from the actual working of the criminal courts in North America. To support this, I will present the main findings of Robert Poirier, who for his Ph.D. Dissertation studied the role of expert witnesses in the criminal division of the Québec Court in the district of Montréal (this court processes the highest volumes of criminal cases in the province of Québec). I was the supervisor of this thesis and will present my own interpretation of his findings. The research examined a random selection of 10% of the court cases processed every fifth year from 1960 to 1990. In all, more than 10,000 cases were analyzed; Poirier retained 7,557 in the sample and, of these, 815 involved the testimony of expert witnesses. In 1960, 4% of all cases involved expert testimony; this figure had increased to 12% in 1975 and remained at this level through the following years. The proportion of cases where expert witnesses tes7 In many US jurisdictions, defendants who plead guilty are given the choice of the judge who will impose a sentence upon them. They are threatened with having to appear before judges known for their severity if they plead not guilty, thereby, running the risk of being found guilty as the result of their trial. Upon conviction, they then receive a heavy sentence, compared to the one that they might have negotiated by pleading guilty.

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tified was multiplied by three between 1960 and 1975, the use of alcohol tests accounting in great part for this increase. The figure of 12% of the cases involving expert testimony is deceptive. As we have seen, only 30% of all cases go to trial, approximately 70% of all defendants pleading guilty. Since experts mostly testify in the course of a trial, the percentage of 12% of all criminal cases means that experts testified in 36% of the cases that resulted in an actual trial.8 Here now is a glance at Poirier’s mam findings: Expert witnesses testified in 815 cases. In 28% of the cases, their testimony was made in relation to the person accused or convicted of a criminal charge and in 72% they testified in relation to some material fact relevant for the case. In 91% of the cases, where an expert testified on the presumed or convicted offender, the expert was a psychiatrist. They were a psychologist in 7% of the remaining cases, and belonged to one of the social sciences—including criminology—in only 2% of the cases. An overwhelming 98% of these cases involved testimony on the mental or emotional state of the presumed or convicted offender. For these offender cases, the expert was to assess the aptitude of the defendant to stand trial or whether he could comprehend the proceedings in 56% of the instances. It was the prosecutors or the judges themselves who had recourse to such expertise; the defense almost never requested expertise on this question (only in 4 cases out of 111). Surprisingly, psychiatric expertise on the offender’s responsibility for his behavior was requested in only 8% of the cases. These findings deserve comment. The discrepancy, between the use of psychiatric expertise to determine whether an accused can stand trial (56% of testimonies by psychiatrists) and to determine whether the accused was responsible for his behavior at the time of the offense (only 8% of these testimonies), is unexpected. One would expect that the type of questions raised on the ability of a presumed offender to stand trial would also be asked in respect to their responsibility for an offense. A possible explanation for this discrepancy is that these different kinds of expertise are not requested by the same party. The responsibility of the offender is rarely questioned by the defense because of the risk of having them declared insane and committed to a mental institution for an indeterminate period of time (more on this later). However, the prosecution or the judge are not committed to the defendant’s interest; consequently, they are much less reluctant to ask whether this person is fit to stand trial and to have them committed to a psychiatric institution, if the answer to this question is negative. Knowing the consequences of such an opinion, psychiatrists are reluctant to de-

8 Expert witnesses may also appear at the sentencing hearing, which occurs regardless of whether there was a trial. In Poirier’s sample, experts testified at a sentencing hearing in 92 cases. Although the appearance of an expert at the stage of the sentencing hearing does not necessarily mean that the defendant pleaded guilty and that there was no preceding trial, the figure of onethird of the trials involving expert witnesses might be slightly lower. This would be due to the fact that at least some experts may have testified at a sentencing hearing that was not preceded by a trial.

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clare an accused unfit to stand trial and their intervention often results in making the offender fit for punishment. The public perception of the psychiatrist who spares the offender a sentence of imprisonment by denying their criminal responsibility is not borne out by the facts. Actually, there is evidence that psychiatrists may be more punitive than is usually believed (Menzies, 1985, 1989). In the cases where expertise is not requested on the person of the offender, but on the material facts of the case, the expert witness usually possesses technical rather than scientific expertise, with the exception of doctors practicing forensic medicine and biologists. Experts testify on the result of various kinds of tests: writing tests in the case of fraud, alcohol and drugs, ballistic, suspect identification, chemical identification of various substances and explosives, and financial accounting. Experts who testify on the results of alcohol and drug tests have the title of “court toxicologists”; their training varies greatly, as does their level of scientific education. A higher level of expertise is now required in the case of DNA fingerprinting and other biological identification tests (Freckelton, 1990; Robertson, Ross, & Burgoyne, 1990). For the period examined, the experts most frequently called to testify were practitioners of forensic medicine and persons in charge of alcohol and various chemical tests (the evidence for alcohol tests is often presented in writing). The behavior of the defense and of the prosecution is quite different with respect to the criminal charges involved in Poirier’s sample of 815 cases (theft, break and enter, murder and manslaughter, sexual assault, assault and threats, fraud, drunken driving, arson, a variety of minor offenses). With the exception of sexual assault, for which the defense requested expert testimony in 39% of the cases, the defense’s rate of demands for expertise is under 18% for all other offenses (on average, 11%). The prosecution’s rate is much higher, ranging from a high of 98% of the drunken driving offenses to an average of 58% for all offenses, Needless to say, the prosecution makes a much larger use of expert witnesses than does the defense. All types of expertise being considered, 75% of expert testimonies are made on behalf of the prosecution, 9% on behalf of the defense, and the rest on the request of the judge or a source impossible to identify. However, if one only considers the most frequent category of expertise, the one bearing on the facts of the case, rather than on the psychological profile of the offender, the proportion of the requests for expertise by the defense and the judge respectively falls to 4% and 3%, whereas the prosecution’s requests account for 93% of the total. Finally, when the defense presented expert testimony, it was to support the imposition of lighter punishment at the stage of the sentencing hearing. Generally speaking, the prosecution presented expert testimony at the level of the trial to get a conviction and the defense at the stage of the sentencing hearings. Psychiatric expertise was equally likely to be requested by the defense (24% of requests) and the prosecution (23%), with a higher likelihood to be requested by the judge to decide the ability of the defendant to stand trial.

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Outcomes Three conclusions follow from this research. The overwhelming conclusion is that expert testimony is presented on behalf of the prosecution. This conclusion is confirmed by a more recent assessment by a Québec Crown Prosecutor. He asserts that most of the prosecution expertise is not even requested by the Crown Prosecutor, but by the police as a matter of routine (Legault, 1995, p. 43f.). This imbalance is largely rooted in economics. Most of the material expertise, requested by the prosecution, is provided free of charge, the experts being criminal justice functionaries. In the event that the defense would be willing to pay for this expertise, it has little relevance for exculpating the defendant. Being produced for the State Prosecutor, it is geared for the proof of guilt. As for the kind of experts who enjoy the favor of the defense—psychiatrists—their fees are generally very high and cannot be afforded by the average defendant. Jasanoff (1995, p. 46) cites the case of a Manhattan psychiatrist and neurologist who earned as much as US$ 200,000 in 1983 from his work as an expert witness and legal consultant. Second, it also appears that when the defense has recourse to expert psychiatric testimony, it uses it against the most vulnerable of crime victims, that is, victims of sexual assault. The fairly high percentage of the use of psychiatrists by the defense in such cases (39%) is also indicative of the economic status of the accused. Finally, a great number of the special witnesses testifying on behalf of the prosecution would only qualify to me as experts in the weak sense of the word. In the last 20 years, not fewer than three persons—Donald Marshall, David Milgaard, and Guy-Paul Morin—were wrongfully convicted of first-degree murder and officially cleared by the court, after having spent many years in prison. The public inquiries conducted into the circumstances of their convictions stressed the role of so-called expert witnesses as afflicted, as were the police, by tunnel vision. In all fairness, however, it must be stated that the last lingering doubts on the guilt of two of these wrongfully convicted offenders were finally dispelled by DNA testing, that is, by an expert procedure.

A Replay of Weak Expertise There is one postscript that must be added to the rise of experts in the weak sense, who rely mostly on technical knowledge derived from their experience. Until 1997, the evidence of at least two psychiatrists was required for having an offender declared as “a dangerous offender” in Canada, thus, making this offender liable to imprisonment for an indeterminate amount of time (Canada, Criminal Code, 1996, and preceding, s. 755[1]). This was changed drastically by Bill C-55 (Canada, Statutes of Canada, 1997). The law now states that the court indeterminately jail an offender for whom it is of the opinion that there are reasonable grounds to believe that this offender might be found to be a

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dangerous or a long-term offender. The court’s opinion is to be based on an assessment submitted by the person “directed” by the court to be the custodian of the offender and “who can perform an assessment, or can have an assessment performed by experts” (Canada, Criminal Code, 1998, s. 752.1). Not only can a person be declared to be a dangerous or long-term offender upon the assessment of just one person, thus, making these persons liable either to indeterminate sentencing or long-term supervision in the community, but the qualification of the person performing the assessment is not specified beyond the fact that it is the person to whom the offender is “directed” by the court and “who can perform an assessment.” To have a person declared as a dangerous or a long-term offender one now needs only one assessor and that person need not even be a psychiatrist. This again testifies to the rise of the expert in the weak sense of the word, which we have been describing. To sum up, most experts testify for the prosecution and they display weak expertise prone at times to tunnel vision. When strong expertise is needed to decide whether an offender will be jailed for an indeterminate period of time, the law dispenses with experts as much as it can.

Expert Systems and the Criminal Law There is a third area where expertise has numerous interfaces with the law. This area is known under the general designation of information technology and the law, to borrow the title of the reference bibliography published by the Istituto per la documentazione guiridica (1992) of the National Research Council of Italy. The scope of this bibliography—two volumes totaling 475 pages—indicates the magnitude and vitality of the field. In addition to computerized databases and automated legal reference systems, the field comprises of jurimetrics, automated analyses of legal texts (Martino, Natali, & Binozzi, 1986), expert systems in law (Lovegrove, 1989; Martino, 1992; Susskind, 1987, 1993, 1996), and other applications of artificial intelligence in law (Gray, 1997). An expert system is a computer program that has a knowledge base, an inference engine, and interfaces for obtaining specific information; its goal is to provide a reasoned answer to a specific problem (e.g., what kind of sentence to impose upon an offender in a given set of circumstances). Although there were attempts, in Canada, to develop expert systems in criminal law, particularly within the field of sentencing, all such systems addressed very narrow problems and were used only by researchers on an exploratory basis. None is presently used by the criminal courts, nor has been.

Empirically Based Sentencing Guidelines There were, in Canada, two projects that would fall under the heading of information technology and the criminal law, that were developed beyond the experi-

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mental stage. One was articulated by Professor A. N. Doob of the University of Toronto (Doob & Park, 1987) and the other by Professor John Hogarth and his colleagues of the Legal Information Systems and Technologies Foundation (LIST), initially harbored by the University of British Columbia (Franson, 1985; this project is fully described in Brodeur, 1990). Both projects were similar in their conception and can be described as descriptive and empirically based sentencing guidelines intended for judges.9 Such guidelines are submitted to sentencing judges as a remedy against unwarranted disparity, perceived as a fundamental problem in US and Canadian criminal courts. Sentencing disparity is unwarranted when two offenders, charged of the same offense committed in similar circumstances, receive markedly different sanctions (e.g., one is given a fine, and the other a period of imprisonment). Empirically based descriptive guidelines take the form of a sentencing database that describes sentencing practice, that is, what kinds of sanctions are imposed on offenders for all offenses on which data can be collected. These guidelines are based on the assumption that sentencing disparity is caused by the fact that sentencing judges work in the relative isolation of their courtrooms and are unaware of the tariffs that their colleagues impose for a given offense. It is then believed that once provided with this information, judges will adjust to the sentencing trends thus revealed, and that sentencing disparity will be reduced.

Two Promising Projects: Hogarth and Doob The project developed by Professor John Hogarth—the Sentencing Data System (SDS)—is an excellent illustration of this approach. It was heavily subsidized by the Canadian Department of Justice, and I was asked by the Ministry to provide an assessment of its value and use by the legal community. The SDS was composed of five computerized files, its heart consisting of File 1. This file contained approximately 70,000 sentences imposed by various criminal courts in British Columbia and was updated biannually. It provided statistical information on the range of trial sentences for particular offenses and offenders and allowed the user to display information in the form of either graphs, tables of dispositions, or online summaries of individual cases. It incorporated 129 offenses from all penal statutes in Canadian law. The user of the database was able to specify the search criteria in terms of the offense, age, and sex of the offender, and the existence or otherwise of a criminal record. File 2 displayed concise summaries of over 1,600 Court of Appeal decisions. File 3 reported the state of jurisprudence in respect to a large series of mitigating and aggravating factors in sentencing. File 4 was an electronic textbook on sentencing law and File 5 contained a fully detailed directory of all correctional institutions and offender counseling programs in the province.

9 For a detailed presentation of such guidelines, see Chapter 11 of the Report of the Canadian Sentencing Commission (Canada, 1987).

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I went into some detail in my description of this sentencing database to show that it did have the potential to usefully assist the sentencing judges and eventually to reduce unwarranted disparity. The same is true of Professor Doob’s database, which ranged over sentences imposed by Canadian Provincial Courts and Courts of Appeal in five different provinces. Yet, both of these projects are now defunct and there are no indications that similar projects are being developed.

The Demise of These Projects What happened? First, the legal culture in sentencing is underpinned by an unshakeable belief that every case is unique and requires an individualized approach. This belief defeats the idea of relying on sentencing trends, as displayed by a computer, for disposing of cases. It is shared by both judges and lawyers, although they know that because of the volume of criminal cases there is no time for any kind of individual treatment in the overwhelming majority of cases. According to the interviews that I conducted with judges, prosecutors, and defense attorneys, the average sentencing hearing lasts between 5 and 15 minutes. This lack of time, due to the volume of cases, impedes individualized sentencing. It also drastically reduces the appeal of a computerized sentencing database that rests precisely in the speed with which a database can display the sentencing trends in thousands of cases. Yet, it still takes a few minutes to consult the most high-performing and user-friendly database. However small the time may have been, lawyers saw no purpose in investing it for computer searches, because the frantic pace of the sentencing hearings would not allow them any occasion to present what they had learned to the court. Second, the independence of the judiciary is the defining principle of the magistrates’ ethos. Not only is this principle applied collectively, thus, implying that as a group magistrates maintain a distance between themselves and any outside influence, but it also has a strong impact on individual magistrates. As Hogarth and Doob eventually found out, judges are very individualistic and are not particularly interested in learning the sentencing practices of their colleagues, unless of course they belong to a higher court and may break their own decisions on appeal. Finally, the legal community has a keen sense of its corporate interest, which binds all of its members over and above their differences. All judges remember that they were once lawyers. Therefore, when it was contemplated to provide them with personal computers storing sentencing data, they were very reluctant to monopolize a tool to which Crown Prosecutors and defense counsels were to have limited access. More importantly, perhaps, judges insist on being influenced in their sentencing decisions by members of their kind, that is, by lawyers. Lawyers may present expert witnesses, but through cross-examination, they remain master of the game. It was feared by the judiciary that outsiders would have unmediated access to them through what was displayed on computer screens, thus, undermining the monopoly of the legal profession over court outcomes. In other words, the computer database was perceived by judges as an un-

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wanted surrogate of statisticians and social scientists directly intruding into their chambers.

Epilogue When Professor Doob finally convinced himself that judges were not really interested in learning what they were mutually doing through the sentencing database that he was developing for them, he terminated his project. Upon learning the same lesson, Professor Hogarth attempted to recycle his project for the benefit of practicing lawyers. For reasons that were expressed above, this recycling did not succeed. When reviewing the literature of artificial intelligence and the law (e.g., Susskind, 1987, 1993, 2000), one is struck by the optimism that pervades it. The exponential growth of legal information technology in all of its aspects is repeatedly predicted and its impact on the law is foreseen to be massive. With respect to the criminal law, I cannot share this optimism. Systemic sentencing expertise, constructed with the assistance of information technology, is yet simply unwanted in Canada. What is presently happening in the field of criminal justice is more regressive than progressive, as I will now try to show.

Scientific Expertise and Policymaking I have, so far, addressed the role of experts in the application of the criminal law. I will now review their contribution to policymaking and, more particularly, to the formation and the reform of the criminal law. In this regard, Public Commissions of Inquiry, the word being at this point understood in its broadest sense, have traditionally played an important role in governance, and in the making of policy and law in Anglo-Saxon and British Commonwealth countries. According to The Canadian encyclopedia, the Commission on Enclosures appointed by the English King Henry VIII in 1517 may be the distant forerunner of the Canadian Royal Commissions of Inquiry. In an often quoted article entitled Government by commission, the US sociologist Daniel Bell argued that by consulting the public these Commissions provided a forum for open discussion of government policies and were, thus, an alternative to the Seraglio, where “decisions are taken in secluded rooms by small groups of men” (Bell, 1966, p. 9). This positive assessment contrasts with Sheila Jasanoff’s view of scientific advisory committees as forming a relatively independent “fifth branch of government” (Jasanoff, 1990).10 I will first de10

Jasanoff’s book The fifth branch. Science advisors as policymakers is not about Public Commissions as such, but focuses on the scientific advisory committees of two US Federal Regulatory Agencies, the Environmental Protection Agency and the Food and Drug Administration (Jasanoff, 1990, p. vii). However, since Public Commissions are heavily staffed with scientific researchers and act in an advisory capacity toward government bodies, her view of the scientific advisory committees that she studied also applies mutatis mutandis to Commissions of Inquiry.

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scribe the various public commissions and then proceed to an assessment of their impact.

Public Commissions of Inquiry As I previously stated, Public Commissions of Inquiry play an important role in respect to governance in Anglo-Saxon countries.11 Such Commissions bear different designations in various English-speaking countries—“Royal Commissions” in the United Kingdom, “Presidential Commissions” in the USA, “Commissions of Inquiry” in Canada12—but they share common institutional features.13 I shall adopt the designation used in my own country—Canada—to refer to these bodies. Commissions of Inquiry are appointed by law, at the request of the government. The role of the executive branch in the appointment of Presidential Commissions is greater in the USA than in “Westminster style” democracies.14 They share the following features: (a) They are headed by one or several Commissioners, who generally are not chosen on the basis of their knowledge of the issues to be addressed, but on the basis of political affiliation, prestige, and representation in relation to the different constituencies having a stake in the issue(s) to be addressed by the Commission. In the best of cases, the Commissioners are appointed for their reputed good judgment. In Canada, the Chairperson of a Commission of Inquiry is habitually a member of the judiciary; (b) they have a research staff, appointed for the duration of the Commission, and they also hire consultants, usually from the scientific community; (c) they consult the public through an elaborate process (public hearings, hearings held in camera, public 11 In his study of US Presidential Commissions, Frank Popper quotes an excerpt from US Supreme Court Justice Felix Frankfurter’s book The public and its government. Justice Frankfurter asserts that “the history of British democracy might, in considerable measure, be written in terms of the history of successive Royal Commissions” (quoted in Popper, 1970, p. 51). 12 For reasons which are not altogether clear, a significant number of the Canadian Commissions of Inquiry are also called “Royal Commissions.” The former Law Reform Commission of Canada has recommended that the term “Royal Commission” be dropped. Some 147 Commissions out of the more than 450 Federal Commissions of Inquiry were, thus, designated as “Royal Commissions” (National Archives of Canada [NAC], 1990; see the introduction to Vol. 1, p. ix). 13 Frank Popper devotes a chapter of his study of US Presidential Commissions to a comparison between these Commissions and the British Royal Commissions. His conclusion is that “the resemblances between Presidential and Royal Commissions are clearly superficial,” the British Royal Commissions being seen by him in a much more favorable light than the highly politicized Presidential Commissions (Popper, 1970, p. 55). I believe that the institutional or formal resemblances between these Commissions are undeniable. Furthermore, these Commissions tend to be viewed much more critically within the countries where they are respectively appointed, than elsewhere. For instance, Canadians have a vague view of their own Royal Commissions. 14 The separation between the executive and the legislative branches of government is much greater in the USA than in most other democracies, no member of the US Executive Branch being seated in Congress. In Canada, as in the United Kingdom, all Government Ministers are also, as a rule, Members of Parliament.

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and private submissions in writing); (d) depending on whether the Commission is appointed to investigate wrongdoing, it is staffed by practicing lawyers acting as prosecutors during public or in camera hearings. There is one last feature, however, that varies from country to country. It is the degree of independence that a commission enjoys in relation to the authority establishing it. According to commentators of Presidential Commissions, these Commissions may not be as immune from interference from the Chief Executive as British and Canadian Commissions are from their governments (Lehman, 1968; Popper, 1970; Wilson, 1967). Having described the features shared by Commissions of Inquiry in common law countries, I will now talk more specifically of the Canadian Commissions of Inquiry. However, what I have to say does not uniquely refer to the Canadian institutions; it also applies, when properly put in context, to other countries that use such commissions. Frequency Federal Commissions of Inquiry are usually established under the Inquiries Act (Canada, 1985, Revised Statutes of Canada, c. I–11, s. 2). According to an inventory published by the National Archives of Canada (NAC, 1990, Vol. I, p. x), there were over 450 Commissions of Inquiry appointed in Canada under Part 1 of the Inquiries Act, since the birth of the Canadian Confederation in 1867. This figure increases to 1,500 when we take into account the Commissions established by the various departments of the government under Part II of this Act. There are, in Canada, no fewer than 47 Statutes that provide for formal investigations and make reference to the Inquiries Act. Furthermore, since public inquiries can also be appointed at the provincial and municipal levels, we end up with a very significant number of commissions (more than 2,000). I shall add that the word “commission” is used here as a generic term that also refers to legally appointed bodies, such as government committees, task forces, or working groups. Classification Needless to say, not all of these commissions investigated matters related to the criminal law. Commissions can be classified according to their function and to their object. With regard to function, commissions can be divided into policy inquiries, which study a particular issue, and investigative inquiries, which inquire into an event, generally one that shocked public opinion (Brodeur, 1984, pp. 15–19; d’Ombrain, 1997, p. 88; Schwartz, 1997). Policy inquiries may be proactive, that is, appointed before a problem reaches the dimension of a crisis demanding immediate action; investigative inquiries are by definition reactive and are established after the occurrence of a problematic event. Of late, most commissions have fallen in-between this division: They investigate a major scandal—for example, the blood supply contamination by the HIV virus—with a view of making recommendations to prevent the reoccurrence of such a situation. Although there were non-investigative inquiries appointed before the

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1920s, the issues examined by these inquiries were mainly local and were too narrow to be called policy inquiries. With regard to their objectives, NAC (1990, Vol. I, pp. xiii–xiv) classified commissions into four categories, which overlap in several respects: (a) inquiries investigating either major disasters and disturbances or a crisis affecting a ministry; (b) inquiries on conflict situations and on social or cultural issues; (c) inquiries that examine aspects of the economy; (d) inquiries investigating some aspect of the public service, irregularities in specific government departments, or charges against officials in a department. Inquiries with a criminal justice interface can fall into all categories except the third one (any inquiry into a crisis or a conflict situation may have criminal law implications). Distinguishing, when it is possible, between policy and investigative inquiries, Figure 1 presents the average number of inquiries established per year by each Federal Administration—identified by the name of the Prime Minister—since 1867. Three things stand out clearly: First, the number of commissions has declined drastically since its peak under the Borden Administration (1896–1911); second, the policy inquiries were more numerous than the investigations from 1920 to the early 1980s; third, the policy inquiries have now disappeared, the last one having been appointed by Prime Minister Mulroney. After a peak under the Johnson Administration, there was a parallel decline in the number of Presidential Commissions appointed in the USA, all Presidential Commissions being policy inquiries (Popper, 1970, Appendix 1). Legal Powers The legal powers of the commissions are fairly extensive. Commissioners are empowered to subpoena witnesses, take evidence under oath, and requisition documents. The way in which these powers are applied is particularly important. Commissions can use the threat of imprisonment to force witnesses to testify, even when their testimony is self-incriminating.15 Second, commissions have used their power to requisition documents in a very extensive way, particularly when they are investigating secretive agencies, such as security and intelligence services. The one indisputable benefit of Commissions of Inquiry has been the declassification of masses of documents that would otherwise have remained secret.

15 In Canada, the witnesses are offered what is called the “protection of the law.” It means that no part of their testimony before the commission can be used in criminal proceedings against them, although, very paradoxically, the commission may recommend, on the basis of its findings, that criminal charges be laid against some of its witnesses. In this case, their testimony before the commission is not admissible as evidence at their trial In the USA, commissions investigating wrongdoing can grant immunity to a witness even if it was not asked for and can jail that person until they agree to testify. Such practices have given Commissions of Inquiry a mixed reputation in relation to the respect of human rights.

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Duration and Costs Canadian Commissions of Inquiry are not permanent bodies. They conduct their proceedings, however, over a lengthy period of time. Using a representative sampling of commissions (d’Ombrain, 1997, p. 97), I found that policy inquiries lasted on average 3.25 years, the investigative inquiries lasting a shorter average of 1.66 years. The longest policy inquiry lasted nearly 7 years, while the shortest one lasted for 8 months. Generally speaking, Canadian Policy Inquiries take a significantly longer time than US Presidential Commissions to fulfil their mandate. This longevity of policy commissions can have serious adverse effects: Many commissions are appointed by a political administration that, by the time the commission is ready to hand in its report, has changed. Since Commissioners are political appointees, they lose all their clout with the new government and their report is shelved, regardless of the amount of time, money, and work that went into producing it. There is too much variation in the costs of a commission for the average cost to be meaningful. The most expensive policy inquiry cost nearly 60 million Canadian dollars, while the lowest cost was below 100,000 dollars. The last policy commission that was appointed—the Dussault/Erasmus Commission on Aboriginal people (1991–1996)—is the costliest commission in Canadian history. It was appointed by a “Tory” government and reported under a Liberal one. Despite the impressive amount of work and wisdom that went into its making, the Commission’s Report was shelved in the days following its reception. This does not bode well for future policy commissions. Staffing As I previously stated, commissions are headed by commissioners chosen largely from the legal community on the basis of political affiliation. They are also staffed by researchers. It has infrequently happened that academics have been appointed as Commissioners, the need for representation from the academic community being then viewed as a relevant issue. In my experience, the research staff plays a key role. First, it conducts the research to be provided as support for the commissioners’ recommendations. To all practical purposes, the research staff defines the options from which the recommendations are going to be selected by the Commissioners at their meetings. Second, it provides the initial drafts of the commission’s report, which are reviewed with varying degrees of implication by the Commissioners, In a few cases, the Commissioners may properly be said to be the authors of the report; in a greater number of cases, the research staff is the real author, the guidance provided by the Commissioner(s) being perfunctory. The important point is that, in most cases, commission reports are a blend of research, political expediency, and individual commissioners’ intuition. An important point should be made, however, in respect to the quality of the research undertaken in the context of Commissions of Inquiry. Although, these Commissions are usually staffed with dedicated personnel, the research greatly varies in quality. A large proportion of the research is performed by outside consultants, who belong to universities or the private sector. Unless academics are guaranteed

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that their research will be independently published under their own name, thus being subjected to peer review, there is a significant proportion of them who take a mercenary perspective and produce work well below standards. For example, when I was Director of Research for the Canadian Sentencing Commission, I had to deal with academics merely resubmitting their own formerly published work and even plagiarizing the work of others. Studies conducted by private consulting firms also vary greatly in their quality: in some instances, the larger the firm, the lower the quality of research, which was entrusted to persons who would not even have qualified as research assistants in a university. This is not to say that the research published in the context of the proceedings of Commissions of Inquiry Jacks quality, which it generally does not. However, it reinforces Jasanoff’s point on the contingency of knowledge and on the difference between regulatory and research science (Jasanoff, 1990, p. 12 and p. 80, Table 4.1; the pioneering work on the contingency of knowledge is by Knorr-Cetina, 1981, p. 49 and p. 152).

Permanent Commissions The Law Reform Commission of Canada (LRCC) was a proactive Policy Commission operating between 1971 and 1992. During this period, it tabled 33 reports before Parliament and also issued 63 working papers. The LRCC had an excellent internal research staff and sponsored studies by external consultants known for their expertise. The review process of each study undertaken by, or for the LRCC was very thorough, every document being reviewed by peers and going through several stages of writing before its publication. The reports and working papers published by the LRCC were, then, of superior quality. The LRCC enjoyed a great international reputation and its publications were widely circulated. It was abolished in 1992 by the “Tory” government, in the context of drastic budgetary cuts, but was reinstated as the Law Commission of Canada (LCC) in 1997, following a promise made by the Liberal party during its winning electoral campaign. However, the mandate of the LCC is much narrower than that of the LRCC and its profile has been, until now, so low that hardly any Canadian outside a small circle, within the legal community, knows that it exists at all. To my knowledge, it has not yet issued any report.

Commissions on Aspects of the Criminal Law and Criminal Justice Needless to say, only a small fraction of the 2,000 or so commissions that were established since 1867 examined aspects of the criminal law. As we have stated, any commission that investigated crisis or conflict situations had potential ramifications in the criminal law. I did not attempt to assess the number of these commissions. Limiting my count to the most important commissions, I come up with the following results: Three important commissions were established be-

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fore the confederation and some 31 after the confederation; to this sum, we may add approximately 14 provincial inquiries, for a grand total of 48 commissions, without taking into account municipal commissions. The work of the LRCC, which was a permanent commission, had to be taken into account, because of its importance.

The Assessment of the Impact of the Criminal Justice Commissions Within the confines of this chapter, I cannot proceed to an assessment of all the commissions that I have identified as having a connection with the criminal law. I shall proceed in the following way. First, the only criteria that I am going to apply is whether a particular commission has succeeded in generating legislation in line with its recommendations. Even this apparently simple criterion is difficult to apply, since there may be 20 years separating the publication of a commission’s report and the enactment of a Bill of Law that is loosely connected to the commission’s recommendations. It is, in these cases, difficult to assess with any precision what the Bill in question actually owes to the recommendations of the Commission that issued its report 20 years before the legislation was enacted. I will try to avoid such methodological difficulties by focusing on cases where they do not significantly arise. I propose to perform four kinds of assessments. Two of these assessments will be systemic; the third, will focus on a commission that succeeded in generating legislation; the last, on a commission that utterly failed in this regard. After submitting these assessments, I will try to identify factors that account for success and factors that may explain failure. The Work of the Law Reform Commission of Canada: A Systemic Assessment The words “systemic assessment” need not intimidate us in the case of the LRCC. The plain fact is that it failed to generate any kind of legislation during its 17 years of operation, despite the consistent excellence of its work. To be fair, it came very close, on one occasion, to generating law. Unfortunately, the Bill sponsored by the LRCC died on the order paper and the government that was committed to passing it was not reelected. Although there were many references to the reports and working papers of the LRCC in Canadian jurisprudence—the Supreme Court of Canada often referred to it—its failure to spur any legislative reform was an important factor in its demise in 1992. The other factor was that the LRCC had been specifically requested in 1991 by the Minister of Justice to examine how to reform criminal justice in respect to the Aboriginal and what we call in Canada the visible minorities, the term “visibility” referring to the color of the skin. Despite strong signals from the Ministry that it was not prepared to condone the establishment of an independent system of Aboriginal justice completely under the responsibility of First Nations people, the LRCC concluded that this was the most promising direction for reform. The reluctance to meet

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the Ministry’s expectations may have played a role in the abolition of the Commission, although it is difficult to assess how significant it was.16 The Issue of Incarceration: A Recurrent Assessment In this second case, it is also relatively easy to perform a systemic assessment. In its 1987 report, the Canadian Sentencing Commission (CSC) quoted the position of the 16 most important bodies (1831–1983: Federal Commissions, Provincial Commissions, Government Statements) that had previously studied incarceration (CSC, 1987). There is not one of these bodies that is not critical of the effects of incarceration, which hardens criminals rather that deters them from reoffending. Again, there is not one commission that does not advocate that incarceration should be used with more restraint. This was also the position taken by the CSC, which presented a comprehensive package of recommendations to reform the criminal law to restrain the use of incarceration. The CSC was no more successful than the appointed bodies that preceded it in moving the government to take legislative action to reduce imprisonment. The situation is more dramatic in the USA, where incarceration has reached unprecedented proportions (the incarceration rate tops 600 persons per 100,000 adults; at least 1.7 million adults are in prison; together with Canada, the USA admits more youths to custody than any other Western democracy, the USA jailing its youths for longer terms than Canada). Yet the Report of the President’s Commission on Law Enforcement and Administration of Justice (1967) had stated with respect to juveniles, that “detention pending court determination (...) must be based on clearly articulated standards and reduced to a minimum” (p. 293); it had also advocated, with regard to adult corrections, that (...) the wholesale strengthening of community treatment of offenders, and much greater commitment of resources to their rehabilitation, are the main lines where action is needed to make correctional treatment more effective in reducing recidivism (p. 297). These pronouncements were echoed in the reports of the National Advisory Commission on Criminal Justice Standards and Goals, which diagnosed “institution-oriented corrections” as a failure and accordingly stated: The Commission believes that the most hopeful move toward effective corrections is to continue and strengthen the trend away from confining people in institutions and toward supervising them in the community. (US Department of Justice, 1973, p. 48f.) None of these pronouncements—nor many more that were to be made by US state commissions—resulted in action curbing the exponential growth of incarceration in the USA. 16 I was personally involved in the process of follow-up to the Minister’s special reference in relation to the access to justice of Aboriginal and visible minorities. The Minister’s displeasure at the course for reforming Aboriginal justice advocated by the LRCC was then common knowledge.

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The McDonald Inquiry: A Partial Success Story The McDonald Commission conducted, in Canada, an investigation into allegations of wrongdoing by the Royal Canadian Mounted Police (RCMP) Security Service. At the time of the investigation, the Canadian Security Service was nested within the RCMP, our national police force. The McDonald Inquiry was established in 1978 and its several reports were issued in 1981. Its main recommendation was to abolish the RCMP and create a civilian security intelligence service that would be stripped of the legal powers granted to police organizations, most notably the RCMP (Canada, 1981a, 1981b), This recommendation was finally applied in 1984 through the enactment of the Canadian Security Intelligence Service Act, but not without a major struggle against the government’s obvious intent to thwart the main thrust of the McDonald Report recommendations, which aimed to reduce the powers vested in the new civilian agency. The government’s first project—Bill C–157 (Canada, House of Commons, 1983; Bill C–157 was not made into legislation as such and numerous amendments were introduced to develop a new Bill: See Canada, Senate, 1983)—was seen as such a perversion of the recommendations of the McDonald Commission by public opinion that it had to appoint a Senate Committee to amend its initial project (Canada, Senate, 1983). The Canadian Security Intelligence Service (CSIS) was finally established in 1984 upon the recommendations of the Senate Committee. A great number of the McDonald Report recommendations were discarded with the creation of the CSIS. The House Special Committee appointed in 1989 to review the CSIS Act tried to reactivate the spirit of the McDonald Commission, but to no avail (Canada, House of Commons, 1990). With the exception of a very few recommendations, all of the 117 proposals of this Committee were rejected by the Ministry of the Solicitor General, which is answerable to the CSIS in Parliament (Canada, Solicitor General, 1991).17 Although the framework developed for security intelligence by the McDonald Inquiry was applied only in part, the gist of its recommendations resulted nevertheless in the CSIS Act, which did not betray the spirit of the McDonald Inquiry, due in great part to the intervention of the Special Senate Committee.

Winning Factors In the case of investigative inquiries, such as McDonald’s, where policymaking is less important than identifying personal and collective responsibilities, the quality of expertise only plays an indirect role in explaining why a commission succeeds in generating law and, ultimately, in accomplishing reform. In the adversarial context of Investigative Commissions, is nonetheless the aggressive lawyers, rather than the experts who are the major players. Here is a list of factors that foster success. 17 Sources from the House Special Committee estimate that “two and one-half” of all its recommendations were retained by the Ministry of the Solicitor General.

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Public Opinion Support The overwhelming factor for success is the support of public opinion, which crucially depends on media visibility and a positive attitude from the press. Some of the most successful commissions have been, such as the McDonald Commission, investigative bodies appointed to conduct an inquiry into a scandal that deeply shocked the public. Holding public hearings with star witnesses keeps these commissions in the public eye and nurtures the support of the public. Another recent commission, which succeeded in achieving significant reforms, investigated the very emotional question of the transfusion of blood tainted by the HIV virus. The interest of the public and of the press, on this issue, never wavered and many of the Commission’s recommendations were finally implemented. The Weight of Past and Concurrent Inquiries When the McDonald Commission was appointed in 1978, the RCMP Security Service had previously been the object of two investigative inquiries (Canada, 1966, 1969a). The 1969 Mackenzie Inquiry had already recommended the replacement of the RCMP Security Service by a civilian agency. More crucially, two provinces had appointed Commissions of Inquiry into RCMP Security Service abuses; these Commissions ran parallel to the McDonald Inquiry. In the province of Québec, where most of the RCMP abuses had taken place, the provincial government appointed its own inquiry a few months before the federal government finally did so, in order not to be upstaged by a province (Québec, 1981).18 In Ontario, the RCMP Security Service was under investigation for having recruited doctors as informants and using their patients’ medical records (Ontario, 1980). Hence, by the time the McDonald Inquiry started its own investigation, the RCMP Security Service was already under siege. It had been formerly investigated twice, one of the previous inquiries having recommended its abolition. Furthermore, it was under the very determined scrutiny of two provincial commissions. In other words, the time was overripe for reform. The reoccurrence of a problem previously investigated plays a significant role in the building up of a commission’s ultimate impact. Linkages Because of the fact that one previous commission had recommended the replacement of the RCMP Security Service by a civilian agency, this idea was already circulating and was gaining acceptance, since the RCMP Security Service was again in deep trouble. According to my own interviews, the McDonald Commission tried to prepare the minds of the government officials for its recommendation to abolish the RCMP Security Service, which was thoroughly discredited when its report was made public. Some members of the McDonald staff had also attempted to build a constituency within the RCMP for its replacement by a 18 I was the Director of Research for this Québec Commission, headed by lawyer Jean F. Keable (Québec, 1981).

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civilian agency, which would be staffed, during its beginnings, by ex-members of the RCMP Security Service. These attempts by the McDonald Commission, to break away from a commission’s traditional isolation and to initiate some form of negotiation with the persons to be affected by their recommendations, proved a major factor in its success. As we shall immediately see, the CSC paid a crippling price for having failed to break its way out of its insularity.

The Canadian Sentencing Commission: An Almost Complete Failure Having been the Research Director for the CSC and responsible for the writing of its report, I naturally took a keen interest in monitoring the implementation of its recommendations. The CSC report presented 91 recommendations mainly designed to remedy disparity in sentencing and to restrain the use of incarceration through the development of sentencing guidelines. The sentencing guidelines were grounded in a consistent declaration of the goals and principles of sentencing. The Commission also reviewed the maximum and minimum penalties for all the offenses in the Canadian Criminal Code and related statutes. It recommended the abolition of all mandatory minimum penalties and the reduction of all standing maxima. The only legislation that was distantly related to the CSC’s recommendations was a Statement of the Goals and Principles of Sentencing that was enacted in 1995—Bill C–41 (Canada, Statutes of Canada, 1995)—that is, eight years after the publication of the CSC’s report in 1987. The Statement blends all possible goals that sentencing could be following and is at odds with the one proposed by the CSC, which emphasized the need for consistency in the Statement of the Goals and Principles of Sentencing. The sole measure embedded in Bill C–41 to restrain the use of incarceration, which was never contemplated by the CSC, is an oxymoron: a conditional sentence of incarceration to be served in the community, that is, a non-custodial sentence of incarceration. Such a contradiction in terms can only add to the confusion of an already aggressively puzzled public. Bill C–41 was not the only legislation that was passed between 1987 and today. Brodeur (1999) shows that there has been sustained legislative activity since the publication of the CSC’s report up to today. Here is a non-exhaustive list of the amendments to the criminal law: Legislation increasing maximum penalties for individual offenses Bill C–15 (S.C. 1987): increased penalties for sexual offenses. Bill C–128 (S.C. 1993, c. 46): increased penalties for child pornography. Bill C–53 (S.C. 1994, c. 44): life sentences for arson. Bill C–28 (S.C. 1997, c. 16): new offense: sexual tourism. Bill C–27 (S.C. 1997, c. 16): new offense: aggravated procuring; (procuring juveniles for prostitution); minimum penalty of 5 years of incarceration. Structural legislation Bill C–61 (S.C. 1988, c. 5) on the Proceeds of Crime (the Canadian equivalent of the US RICO Legislation): creation of a new offense.

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Correctional and Conditional Release Act (S.C. 1992, c. 21): restraints on conditional release. Bill C–37 (S.C. 1995, c. 19): increase of maxima for young offenders and facilitation of their deferment before adult courts. Bill C–68, Firearms Act (S.C. 1995, c. 39): minimum penalty of 4 years of incarceration for crimes perpetrated with a firearm. Bill C–8 (S.C. 1996, c. 19) consolidation of drug offenses with a presumptive sentencing guideline favoring incarceration. Bill C–55 (S.C. 1997, c. 17): facilitation of indeterminate confinement for high-risk offenders. Bill C–95 (S.C. 1997, c. 23): new offense: criminal organization offense; miscellaneous dispositions on organized crime. There is not one of these developments that does not run counter to the CSC’s recommendations. More particularly, the return to minimum penalties, the facilitation of indeterminate sentencing, and the development of a sentencing presumptive guideline in favor of incarceration all directly contradict both the letter and the spirit of the recommendations of the CSC. Furthermore, there is not one of these legal developments that was ushered by scientific expertise.19 How and why did this happen? Losing Factors

In contrast with the McDonald and Krever inquiries, the Archambault Commission or CSC was a policy commission. It could even be argued that it was the paradigm case of the policy commission. Although it met with selected individuals in camera, it held no public hearings and had no media profile whatsoever. Its report was received as a thoughtful piece of work in academic circles and is still highly regarded and used in university teaching.20 As we already noted, it was devoid of effects in practice. There are many reasons for this lack of effects, and I shall only discuss those that go beyond this particular case.

19 In 1993, Philip Heymann came to the University of Toronto, where he lectured. I was then on sabbatical at the Centre of Criminology of this university. Mr. Heymann had just resigned from the US Department of Justice, where he was the highest-ranking civil servant and second only to the Attorney General, Janet Reno. No longer bound by government solidarity, Mr. Heymann was highly critical of the “two strikes and you’re out” legislation that was then being passed at the federal level and in many of the states. Basically, such legislation stipulates that an offender is to be jailed for life upon their third conviction for a type of offense specified in the law (e.g., robbery). During a question period, I asked Mr. Heymann if research had played any part in the development of such legislation. He answered that it had played no role at all, these laws being essentially instigated by political advisors and lobbyists who relied on public opinion polls. 20 Parts of the Report were reprinted in readers on sentencing (e.g., von Hirsch & Ashworth, 1992).

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Politicization There are many ways for an inquiry to become politicized. The most common one is to have the political authority that established it try to prescribe its orientations. To my knowledge, this never occurred during the proceedings of the CSC. Politicization took another form. The CSC was created at the end of the mandate of the Liberal Party, which then formed the government. With the exception of one academic, all of its nine Commissioners were associated in one way or another with the Liberal Party, which had appointed them. Unfortunately, the Liberals lost the next election and the Commission had to report to a “Tory” Minister of Justice. Although the Minister never hindered the Commission’s proceedings, he remained aloof and never showed any commitment to the work of the Commission. After having tabled the Commission’s Report very discreetly in parliament, the Minister’s first decision was to appoint a House Committee headed by a Member of Parliament from his own party—David Daubney—to review once again all the issues on which the CSC had reported. Because of the lengthy periods of time taken by Canadian commissions to fulfil their mandate, the CSC was far from the only one to have been appointed by one government and to report under another. Two of the most recent and costly inquiries—the Dussault/Erasmus Inquiry on the plight of Aboriginal peoples and the Létourneau Inquiry on the deployment of the Canadian Airborne Regiment in Somalia—were appointed by a “Tory” government and reported under the Liberals. Both reports were shelved despite the considerable efforts that went into writing them. No Linkage The CSC’s recommendations were bound to be resisted by powerful groups. It recommended curtailing the discretion of the sentencing magistrates by submitting them to the application of sentencing guidelines. It also proposed the abolition of full parole, thus, threatening the powerful bureaucracy of paroling authorities and parole officers.21 The Commission compounded these difficulties by utterly neglecting to establish any kind of working relationship with the professional groups that would be affected by its recommendations. The first Chairman of the Commission was so obsessed by the defense of its independence that he refused all offers by government publications to advertise the Commission’s call for submissions from parties having a stake in its mandate. The Commission worked in a vacuum and its recommendations also fell in a vacuum. The CSC is the paradigm case of a Commission that presented its book to the Minister and then severed any future relationship with the political authorities that held power over the application of the report’s recommendations. This severance of all links between a commission and the government is usually lethal to the Commission’s report, as its implementation is left to the 21 The Commission did not oppose all forms of early release and even recommended that persons convicted of murder apply for early release after serving a period of 15 years, rather than the 25 years that was mandatory at the time.

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bureaucratic machinery of government, which abhors change. No innovative reform can spring from these quarters. For instance, the officers of the Ministry of Justice decided to hold a seminar to study the CSC’s recommendations and their implications; the person chosen by the Ministry to organize the seminar was the ex-Chairman of the Parole Board, which, following the CSC’s recommendations, was to be abolished. Collision With Public Opinion Polls When the CSC was created in 1984 by the Liberal government, the public did not yet suffer from “compassion fatigue” and was still sensitive to the need to use incarceration with restraint. Capital punishment had been abolished and replaced by life imprisonment, with a possibility of being released on mandatory supervision after a period of 25 years in prison. When the CSC issued its report in 1987, both the government’s and the public’s mood had moved toward more intolerance. Unfortunately, the moment of the report’s release coincided with the campaign to reinstate the death penalty in Canada. To hold a free vote in parliament to reestablish the death penalty had been one of the much touted promises of the “Tories” during the election campaign. When the CSC’s report came out, it was criticized even by the Liberals. Its recommendation to shorten the mandatory period of incarceration of convicted murderers was perceived as throwing oil into the fire, thus, inciting the Members of Parliament to vote in favor of the reinstatement of the death penalty. As it actually happened, the pollsters had misread public opinion as usual, and when they realized that, the Members of Parliament voted against the reestablishment of the death penalty. Nevertheless, this coincidence between the publication of the CSC’s report and the rekindling of the debate on capital punishment helped to push the report further into the shadows. It also raises two important issues. The first issue is the ever-increasing importance of pollsters and spin-doctors in the framing of the public debate. The second, is whether experts should accommodate their message and try to preempt the often devastating effects of public opinion polls. Zeitgeist There is, however, much more involved in the failure of the CSC than public opinion polls. Paradoxically, some early commissions that were appointed before we had begun to talk about the advent of the age of information or of the age of knowledge were, at least in part, successful in generating reforms within Canadian criminal justice (Canada, 1956, 1969b; Québec, 1968). It now seems that the dramatic shift of the public mood toward intolerance, which we have been experiencing since the mid-1980s, is now neutralizing any emancipatory effects of the knowledge work performed by the latest commissions. This change of the Zeitgeist has been variously interpreted. It was branded in North America as the coming of age of the “politics of resentment.” Whatever its interpretation, it implies a severance of the bond of civic solidarity that, not so long ago, still linked the convicted offenders with the convicting society.

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Concluding Remarks After reviewing the role of expertise both in the application and the generation of the criminal law in Canada and other Anglo-Saxon countries, I come to three conclusions. First, technical expertise applied on a routine basis by low-ranking professionals is playing an increasing role in criminal justice, at the expense of scientific and research expertise. These professionals are integrated in the regular staff of the criminal justice system and they individually attend to its daily operations. The truth of this first observation can be verified on a massive scale in the field of private security, where devices, such as lie detectors, which produce assessments not admissible as evidence in court, are routinely used. Second, the growth of individual expertise, of the kind that I just described, has largely outpaced the development of team expertise, such as was found in policymaking commissions and other bodies devoted to the study of criminal justice problems. Not only are policy commissions on the wane, but government agencies are reducing their research departments, when not getting rid of them altogether. Finally, Habermas develops the concept of an “emancipatory cognitive interest” (Habermas, 1972, p. 198), in which the mature (mündig) pursuit of knowledge for its own sake coincides with its investment in the self-formation of the human species (p. 197f. and p. 210). As I read him, Habermas establishes a key connection between knowledge and freedom (or self-realization) through the notion of emancipation. Expressed in this terminology, my third conclusion is that expertise no longer serves an emancipatory interest in the field of criminal justice, as it is essentially used to pursue security, viewed as a set of limitations imposed upon the freedom of others. Taken together, my three conclusions would point to the emergence of what could be called techno-managerialism in the field of criminal justice. At the end of this chapter, I would like to state something about what I believe to be the present predicament. One hears constantly that we have entered into the information age (Castells, 1996, 1997, 1998), the knowledge society (Stehr, 1994), or the millennium of intelligence. Although I basically agree with these descriptions, I would like to introduce a caveat, to which I shall give the name of the “Berkeley Syndrome.” Bishop George Berkeley is, with John Locke and David Hume, one of the three great British empiricist philosophers of the 18th century. His name is forever associated with the enigmatic dictum “esse est percipi, ”which is translated as “to be is to be perceived.” I will take this dictum at its face value and avoid being embroiled in its much debated significance. It seems to me that the world we live in, with respect to criminal justice, is not the world as it is known, but the world as it is perceived. The crucial difference between a world of knowledge and a world of perception is the following: The world is known according to scientific rules of construction that break with common sense or, to borrow an expression from Edmund Husserl, with the Lebenswelt (the world as concretely experienced in actual life) . Although the ideal of truth is never achieved under these rules, and even if this ideal loses some of its significance under a view of science that is radically constructivist, epistemic

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validity is at least pursued. However, the world is now increasingly perceived within a sphere of pretended common sense or perverted Lebenswelt that has lost all immediacy and that is, in great part, under the spell of what we call in North America spin-doctors, who manipulate common sense and manufacture perceptions. Within this overheated sphere of conflicting and flicking perceptions, all scientific expertise dissolves like wax over fire. It has repeatedly been my experience, over the last decade, that in North America policymaking in the field of criminal justice has been much more influenced by the policymakers’ beliefs on how the world is perceived and acted out by “the majority,” whether it be silent, vocal, moral, or otherwise, than by what we actually know about this world. The next years may witness the rise to prominence of a relatively new type of expert: not the expert on how things are, nor the expert on how things are known, but the expert on how they are perceived and mythologized for political ends.

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President’s Commission on Law Enforcement and the Administration of Justice. (1967). Report: The challenge of crime in a free society. Washington, DC: US Government Printing Office. Québec. (1968). La société face au crime. Rapport de la commission d’enquête sur l’administration de la justice en matière criminelle et pénale au Québec. Québec, Canada: Gouvernement du Québec, Éditeur officiel du Québec. Québec. (1981). Rapport de la commission d’enquête sur des opérations policières en territoire Québécois (The Keable Report). Québec, Canada: Ministère des Communications. Robertson, J., Ross, A. M., & Burgoyne, L. A. (Eds.). (1990). DNA in forensic science. New York: Ellis Harwood. Robitscher, J. (1980). The powers of psychiatry. Boston, MA: Houghton Mifflin. Salter, L., & Slaco, D. (1982). Les enquêtes publiques au Canada. Ottawa, Canada: Conseil des sciences du Canada (Étude de documentation No. 47). Saltzburg, S. (1993). Judicial control of scientific evidence: The implications of DAUBERT. Framework of the issues. Scientific Evidence Review, Monograph No. 2, 7–16. (Ed. by Standing Committee on Scientific Evidence Section of Science and Technology, American Bar Association) Schmitt, C. (1990). Du politique: “Légalité et légitimité; et autres essais”. Puiseaux, France: Pardès, Schmitt, C. (1993). Théorie de la constitution (L. Deroche, Trans.). Paris, France: Presses Universitaires de France. Schwartz, B. (1997). Public inquiries. Canadian Public Administration, 40(1), 72–85. Sherman, L. W. (1978). Scandal and reform: Controlling police corruption. Berkeley, CA: University of California Press. Smith, J. S., & Kiloh, L. G. (1974), Psychosurgery and society. Oxford: Pergamon Press. Stehr, N. (1994). Knowledge society. London, UK: Sage. Stehr, N., & Ericson, R. V. (Eds.). (1992). The culture of power and knowledge: Inquiries into contemporary society. Berlin, Germany: de Gruyter. Susskind, R. E. (1987). Expert systems in law Oxford, UK: Clarendon Press. Susskind, R. E. (1993). Essays on law and artificial intelligence. Oslo, Norway: Tano. Susskind, R. E. (1996). The future of law. Oxford, UK: Clarendon Press. Susskind, R. E. (2000). Transforming the law. Essays on technology, justice and the legal market. New York: Oxford University Press. Tremblay, R. E., & Craig, W. M. (1995). Developmental crime prevention. In M. Tonry & D. P. Farrington (Eds.), Building a safer society. Strategic approaches to crime prevention, crime and justice. A review of justice (Vol. 19). Chicago: The University of Chicago Press. US Department of Justice. (1973). Executive summary—Reports of the National Advisory Commission on Criminal Justice Standards and Goals. Washington, DC: Law Enforcement Assistance Administration. Wilson, J. Q. (1967). A reader’s guide to the crime commission reports. The Public Interest, Fall 1967 (4), 64–82.

Cases Cited Barefoot v. Estelle, 463 US 880, 103 S. Ct. 3383 (1983). Estelle v. Smith, 451 US 454, 101 S. Ct. 1866 (1981). William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786 (1993).

Chapter 8 Air Pollution Control: Who Are the Experts? Matthias Heymann Munich Center for the History of Science and Technology c/o Deutsches Museum, 80306 Munich, Germany [email protected]

In July 1998, the Scientific Steering Committee of EUROTRAC, the largest European research project on tropospheric air pollution problems, made an unusual decision. Its members, all of them renowned atmospheric scientists, accepted a historical project on air pollution as a subproject. EUROTRAC was established in 1986 to support the scientific understanding of emissions, transport, chemical transformation, and deposition of atmospheric pollutants. It has the explicit goal to improve the scientific basis for political decisions related to air pollution problems. In 1990, EUROTRAC included 14 coordinated subprojects dealing with laboratory and field experiments, computer simulation projects, and measurement techniques. These subprojects involved more than 200 individual scientific projects and more than 500 scientists, mostly physicists, chemists, and meteorologists from 17 European countries (Isaksen, 1991, p. 16). In 1996, a second phase started (EUROTRAC-2). The historical project Tropospheric Air Pollution Problems and Air Pollution Abatement in Europe since 1945 (TRAP45) became the 12th subproject of EUROTRAC-2; its purpose was to investigate historical perspectives of air pollution and air pollution control in post-war Europe. In particular, its goals were to analyze roots and causes of air pollution problems in Europe, to support the integration of information and knowledge on air pollution, and to improve the identification of shortcomings or neglected problems regarding air pollution control (Heymann, 1998; for further details see http://www.gsf.de/eurotrac/index_subprojects.html). It appears somewhat surprising to include historical research in an atmospheric science research project. Air pollution research has traditionally been a field dominated by experts from the technical and natural sciences. Is there any need for historical expertise to support atmospheric sciences and air pollution control policy? What are the historical questions that need to be answered and what can historians (and, more generally, social scientists) contribute? There is general agreement that scientific expertise is needed for future air pollution control. But, it is less clear what kind of knowledge and expertise is needed. Scientific experts have struggled to help control air pollution. They have been involved in all major steps of problem analysis and in the formation of air pollu159

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tion control policies (Jasanoff, 1990; Salter, 1988; Wolf, 1986). But, in spite of several decades of environmental research and environmental policy and despite an enormous growth of scientific knowledge and environmental legislation, air pollution problems remain among the most important environmental concerns in Europe. Emissions of sulfur and nitrogen oxides, volatile organic compounds (VOCs), and carbon monoxide still cause problems of acid formation, photo-oxidant pollution (e.g., ozone), and eutrophication (by the deposition of nutrients in ecosystems). Emissions of chlorofluorocarbons (CFCs) and other compounds threaten the ozone layer in the stratosphere. Also, emissions of carbon dioxide, methane, and other pollutants may cause global warming. There is common agreement that there is still a lack of perspectives for comprehensive solutions to these problems (Grant, 1999; Schneider, 1998). In this chapter, I argue that air pollution has been perceived mainly as a technological problem, to be delegated to technical experts, such as engineers. Only recently, and with much reluctance, has it become clear that the problem is not only technological, but involves experts outside the technical domain, such as economists, social scientists, and even historians (Miller & Edwards, 2001; Stehr & von Storch, 1999). Despite the spreading of this insight, the need for social and historical research on air pollution control has rarely been recognized.

When Air Pollution Became a Problem Air pollution is not a new problem. It has received growing attention, particularly since the 19th century, when a strong rise in coal combustion as well as in other industrial processes caused extreme local and regional air pollution with dramatic effects on vegetation and health (Andersen, 1996; Brimblecombe, 1987; Brüggemeier, 1996). Large quantities of smoke and sulfur emissions heavily affected the local environment. Most attention in the 19th and early 20th century focused on smoke pollution, though the deleterious effects of sulfuric acid, formed from sulfur emissions, was known by the mid-19th century. The construction of high stacks became the most important measure to relieve local pollution. Due to growing coal consumption and growing industrial activity, however, pollution problems continued, increased, and affected ever larger regions. More effective abatement approaches remained elusive. In 1927, a commission on smoke pollution in the Ruhr area summarized the “deplorable result (...) that yet no means exist to remove, from the smoke gases, the sulfuric acid which is so harmful to plants. (...) The fight against smoke damages, which is an especially important goal, has to be considered hopeless for the time being.” (Spelsberg, 1984, p. 159; translation M. H.). Little change occurred until World War II. After the war, dust and sulfur dioxide concentrations reached intolerable levels in industrial and densely populated regions such as the Ruhr area. Pollution problems caused increased political attention and motivated the introduction of air pollution control measures, mainly the construction of higher stacks

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Figure 1. Estimated costs of environmental pollution in Germany in the early 1980s according to the German Federal Environmental Agency (Umweltbundesamt, cited in Wicke, 1986).

and the installation of dust filters in the stacks’ large emission sources. In the following years, industrial stacks reached a height of up to 300 m; thus, large share of pollutants was transported away over great distances (Prittwitz, 1984). These measures proved very successful. By the 1960s, atmospheric dust and sulfur concentrations in the Ruhr area were reduced significantly, though sulfur emissions still increased. It took two more decades before large emission sources, such as power plants, were legally forced to install desulfurization equipment. This measure also proved extremely successful. Sulfur emissions were reduced sharply within a few years in Germany, and in many other countries in Western Europe, in the USA, in Canada, and in Japan (Organisation for Economic Cooperation and Development [OECD], 1991; United Nations Environment Program [UNEP], 1993). In the Ruhr area, the average concentration of fell from approximately in 1964, to approximately in 1980, and in 1988 (Brüggemeier & Rommelspacher, 1992, p. 69). Emissions of nitrogen and VOCs, in contrast, kept rising until the late 1980s and stagnated in the 1990s. Most experts believe that emission levels of these compounds are still far too high in many regions (United Nations Economic Commission for Europe [UNECE], 1995a, 1996). Despite several decades of environmental research and environmental policy, dying forests and acidified lakes, health hazards and crop losses, material degradation and building damage caused by air pollution are still ubiquitous throughout Europe. Air pollution remains one of the most troublesome environmental prob-

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lems in the European Union (EU). Air pollution in Germany is believed to cause greater monetary damage than any other environmental problem (Figure 1).

Problem Solving With Technology Anthropogenic air pollution is caused by technical processes and has been considered mainly a technical problem. Since the 19th century, air quality control efforts have focused on technical means, such as high stacks, improved combustion techniques, and filter technologies (Brimblecombe, 1987). By approximately 1850, as many as 146 patents in England and 43 patents in France had been granted for smokeless combustion devices. At that time, smoke emissions were understood to be caused by incomplete burning. More efficient burning processes were sought both to save coal resources and avoid emissions. In Autumn 1881, an international exhibition of smokeless combustion devices took place in London. In May 1890, the Association of German Engineers (Verein Deutscher Ingenieure [VDI]) announced an award of 4,000 German marks for combustion techniques that would work as smoke-free as possible. Only two suggestions were submitted, neither of which was deemed worthy to receive the award (Spelsberg, 1984, p. 90ff.). All efforts to provide better combustion techniques remained insufficient to control air pollution. Smoke-free combustion proved impossible. High stacks appeared to be the best compromise to reconcile the conflicting interests of the industry and of the local population (Uekötter, 1996). In the late 19th century, municipalities in Germany usually required a stack height of 20 m for industrial establishments in urban areas (Brüggemeier, 1996, p. 112f.). Lasting disputes on the effects of air pollution were raised in the case of the metallurgical works around the Saxonian town of Freiberg. In the 1840s, the government of Saxony funded comprehensive scientific investigations by Stöckhardt in Tharandt near Freiberg. These investigations confirmed the deleterious effects of the polluted air. As restrictions of production were to be avoided, in 1860, a 60 m stack was built. Twenty-nine years later, in 1889, a new 140 m stack was erected, which remained the highest stack in Europe for several decades. Yet, complaints about nuisances, health effects, and vegetation damage continued. Instead of providing lasting relief, the use of high stacks rather increased the size of the areas affected by air pollution (Andersen, 1996; Andersen, Ott, & Schramm, 1986; Brüggemeier, 1996, p. 161ff.). Numerous experiments with additional devices, such as condensation chambers, subterranean canal systems to divert smoke, or improved ovens, had been performed in Freiberg, but no measure proved successful enough to effectively reduce the emissions (Brüggemeier, 1996, p. 192). Prior to World War I, electric dust filters with an efficiency of 98% were available but very expensive to apply (Brüggemeier, 1996, p. 214). Likewise, the removal of sulfur was a matter of research. In 1933, the London Battersea power station was equipped with a sulfur washing device that needed 35 tons of water

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from the Thames for 1 ton of burned coal. It proved costly and inefficient and was abandoned soon after (Wey, 1982, p. 192f.). After World War II, when pollution levels reached new dimensions, filter and desulfurization technologies became an important feature of air quality control policy. While efforts grew rapidly in the post-war period, approaches and strategies essentially did not change. High-stack policies became professionalized, and stack heights quickly increased. Since the 1980s, legal measures have forced the application of filter technologies such as desulfurization and denitrification techniques to reduce sulfur and nitrogen emissions of large power plants. Elsewhere, the catalytic converter, along with more efficient engine technologies, became the major hope to control vehicle emissions.

Polluted Air and Messy Regulations In the 19th century, the conflict between the economic goal of industrial growth and the objective of a healthy and clean environment emerged. Usually, economic goals had priority and limited the effect of air quality control measures and legislation. In the United Kingdom, the “early smoke abatement clauses failed to work partly because administrators tended to be sympathetic to the needs of industry” (Brimblecombe, 1995, p. 4; see also Ashby & Anderson, 1981). For Germany, Gilhaus described an industry-friendly policy of the central government in Berlin, which often corrected decisions of local administrations with stronger interest in environmental protection. “As a result, environmental standards were continually reduced” (Gilhaus, 1995, p. 316; see also Brüggemeier, 1996, p. 124). The protection of neighborhoods, vegetation, and material goods largely shifted from governmental responsibility to a matter of civil law. Victims of air pollution now had to file legal suits against industrial establishments causing emissions. The accusing party was obliged to provide clear evidence that polluted air caused the observed damages and that a causal relation of emissions and damages existed. Usually, such evidence was impossible to provide. As a consequence, traditional neighborhood rights were “abolished in almost all German states by legislation,” as a contemporary stated (Brüggemeier, 1996, p. 148). A reconciliation of economic and environmental goals seemed impossible. Legislators rather adopted soft approaches to environmental regulation intended both to protect industrial development and avoid intolerable levels of environmental pollution (Prittwitz, 1984, p. 50ff.). Such regulations involved indefinite legal terms that implied a flexibility of interpretation and transferred the responsibility of solving conflicting interests from the governments to local administrations and courts (Wolf, 1986). In Germany, a gradual increase of emissions was legitimized by allowing industrial establishments to pollute the air according to common local conditions (Ortsüblichkeit). As air pollution had quickly become a common local condition in many regions, an increase of air pollution appeared legally justified. Local administrations had to grant permits for the construction

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of industrial establishments. They could demand technical requirements such as high stacks in order to guarantee a minimum protection in the affected neighborhood. Once a permit was granted, it guaranteed continuous protection of the industrial establishment. Legal requirements of emission control according to the state of technology (Stand der Technik) and according to economic reasonableness (wirtschaftliche Zumutbarkeit) created problems of interpretation. Local administrations had to resolve the conflicting interests of industrial promotion and environmental protection and decide on tolerable levels of air pollution. The lack of precision of legal terms produced considerable uncertainties. The actual implementation of regulations varied from region to region, as several case studies have shown (Brüggemeier, 1996; Gilhaus, 1995; Uekötter, 1996, 2001). Mitigation of air pollution remained difficult and very much dependent on personal competence and engagement in local administrations. Local administrations, however, were usually not adequately equipped with manpower and expertise to provide for (more effective) air pollution control (Gilhaus, 1995, p. 399). Common consensus until the 1970s became the protection of industrial growth with an attempt to soften its impact on air pollution by a high-stack policy. Air quality control policy largely narrowed to the formulation of technical rules and regulations such as the German Technical Regulations for Air Quality (Technische Anleitung Luft [TA Luft]). A major step to broaden air quality control policy in Germany was the Air Quality Protection Law of 1974 (Bundesimmissionsschutzgesetz). This law turned air quality control from a peripheral matter of industrial code to a central obligation of the government providing the legislator with far more opportunities for legal intervention. The law was received with considerable enthusiasm by commentators, because it included a fundamental conceptual change from a policy of technical regulation to a policy of precaution and environmental protection. The law obliged the administrations to take action in cases of high pollution levels (Müller, 1986, p. 186ff.; Wolf, 1986, p. 161ff.). The impact of the law remained very limited in the first years. As Mayntz (1978) explained, the limited impact was due to implementation problems. Responsible authorities lacked personnel, expertise, and technical information and equipment to monitor air pollution. Furthermore, due to limited resources the authorities had to fear involvement in legal cases. Mayntz concluded that these conditions “nearly compelled (the authorities) to avoid conflicts and limit administrative costs” (p. 53). Nevertheless, after considerable political struggles the Regulation of Large Burners (Großfeuerungsanlagenverordnung) was finally launched in 1983 and compelled large power plants to install desulfurization and denitrification equipment. With the increased interest in environmental protection since the 1970s, Germany witnessed a rapid expansion of environmental policy and legislation. In the 1980s, environmental legislation had become a highly complex and rather disparate matter due to the increased number of national and international regulations and norms. In the mid-1980s, German environmental legislation had adopted about 1,350 different norms related to pollution control. This set of norms has been described as a “messy collection of highly different and specific

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regulations” (Sammelsurium höchst unterschiedlicher Spezialregelungen) and as a “chaos of norms” (Normenwirrwarr). (Wolf, 1986, p. 19, p. 186). A unified and consistently structured environmental legislation has not yet been achieved (Kloepfer, 1994).

Under Control? As early as the 19th century, damages caused by air pollution motivated systematic research on the roots of air pollution and the effects on vegetation and health. An early example is Stöckhard’s work, which indicated a causal relation between air pollution and health damages in the area of Freiberg, a causal relation of air pollution and damages that could be established with scientific evidence. Experiments suggested that even low levels of sulfur concentration caused damages and health problems. But, no agreement could be reached on effective environmental protection measures, because industrial production goals had political priority (Brüggemeier, 1996, p. 193ff.). What impact did this, and other early scientific studies, have on air quality control? The answers to this question differ considerably. According to Spelsberg (1984, p. 38f.), research efforts related to air pollution remained a limited and rather insignificant political force in air pollution control. They contributed little to making air pollution problems a matter of public and political debate. Gilhaus emphasized that more effective air pollution prevention was hampered by “strong institutional shortcomings and a lack of personnel in the field of scientific research and consultancy” (Gilhaus, 1995, p. 399). Authorities lacked measurement technology and scientific competence. The amount and quality of air quality measurements remained poor and reduced the credibility and political impact of scientific results (p. 131ff.). The historian Uekötter (1996) investigated urban air pollution in Berlin, Stuttgart, and Bremen in the late 19th and early 20th century. Based on an analysis of contemporary technical literature, he considered a technical solution of smoke pollution possible at that time. In his interpretation, air pollution control was an organizational, not a technical problem. “The bottle-neck (of an effective strategy against smoke pollution) was the coordination and organization of an adequate abatement strategy.” It mainly lacked a “constructive dialogue” of technical and legal experts and a clear responsibility for smoke reduction. Air pollution became a ubiquitous and growing problem, because no political group or authority existed that would have been willing, and able, to establish adequate organizational conditions for air pollution control (p. 13ff.). From case studies of 19th century industrial air pollution in Germany, Italy, and Belgium, Stolberg (1994) drew the conclusion that scientific experts began to play an important role, not for the abatement of air pollution, but for legitimizing industrialization and creating acceptance for its negative impacts. According to Stolberg, the question of tolerable pollution levels could not be answered with scientific rigor, but had to be based on value decisions. Whereas

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statements and recommendations from scientists carried authority, environmental interests and arguments of the local population often remained unheard. As a result, scientists helped “to make the pollution of air and water acceptable as an indispensable consequence of striving for progress, prosperity, and labor” (p. 304). A similar tendency of professionalization of expertise and a shift of political influence was observed in the 20th century. According to Wey (1982), the investigation and discussion of air pollution problems shifted from political or public institutions to scientific conference rooms. The problem of air pollution was gradually transformed from a matter of public interest and debate to a matter of expert discourse. As a result, two different approaches to environmental protection existed and remained separated: conservation of nature and technology-oriented environmental protection. These strategies never became linked and integrated into a consistent concept of pollution control (p. 13ff.). Stolberg, Wey, and Wolf described a de-politicization of pollution control in the 19th and 20th century that lasted until the 1970s. Developments since the 1970s, on the other hand, have been interpreted as a re-politicization of pollution control (Müller, 1986, p. 56ff.; Wolf, 1986, p. 161ff.). With the rise of the environmental movement, political interest in environmental matters increased. While scientific expertise apparently contributed to a de-politicization of pollution control up to the 1970s, the re-politicization of environmental matters did not reduce its importance. Quite to the contrary, investments in policy-oriented research grew considerably. Scientific expertise became a matter of great public and political interest.

Research After 1945: Who Are the Experts? Growing air pollution problems fostered an extraordinary growth of air pollution research in post-war Europe. Knowledge about air pollution was largely insufficient in the 1950s. Data on emissions and emission sources were incomplete and unreliable (only for the largest sources did any data exist), little information on atmospheric transport processes was available, and what was known lacked details about the effects of air pollution (e.g., critical levels of pollutant concentrations). Concepts for comprehensive control strategies did not exist. The growth of research on air pollution since the 1950s is mirrored by a rising flood of scientific publications. In the 1950s, the number of publications on air pollution world-wide jumped from about 160 annually in the pre-war years to more than 800 (Halliday, 1964, p. 3). The atmospheric scientist Stern counted about 3,600 scientific publications on air pollution in the first half of the 20th century compared to about 60,000 publications in the period 1952–1976 (Stern, 1977, p. 1022; see Figure 2). Research efforts for atmospheric and climate research, funded by the German federal and state governments, grew by almost 29% annually, from 6.2 million DM in 1979 to 168 million DM in 1992 (Bundesministerium für Forschung und Technologie [BMFT], 1990, p. 347; Wissenschaftsrat, 1994, p. 138).

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Figure 2. Number of scientific publications on air pollution (based on counts published in Halliday, 1964; Spelsberg, 1984; Stern, 1977).

Not surprisingly, post-war research efforts and scientific expertise on air pollution remained characterized by a technology orientation. The VDI established a commission for air quality control in 1957. The VDI Commission became the leading institution of expertise for clean air policy. It set up numerous working groups in four major fields of research (Spiegelberg, 1984, p. 47ff.): (1) origin and emission of dust and gases (700 experts in 75 working groups in 1983); (2) transport and deposition of dust and gases (24 working groups in 1983); (3) effects on human health, animals, vegetation, and material goods (approx. 170 experts in 37 working groups); and (4) measurement technologies and technological problems (450 experts in 50 working groups). Experts in the VDI Commission came from industry (48.2%), universities and research institutes (23.8%), from governmental authorities (16.6%), and other institutions. The professional background was mainly engineering, physics, or chemistry (76.2%), and to a minor degree medical sciences, biology, forestry, and so forth (14.5%). Economists, legal scientists, and social scientists played only a marginal role (Wolf, 1986, p. 147f.). The VDI Commission worked out technical regulations supportive of legal air quality control measures. An example is the technical regulation for the construction of high stacks that was set forth in 1964 (Technische Anleitung Luft, 1964). It described the application of sophisticated calculation techniques for the determination of the required minimum height of stacks (Prittwitz, 1984, p. 71f.).

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Figure 3. Number of research projects on air pollution funded by the German Federal Environmental Agency (Umweltbundesamt) in engineering, the natural, and the social sciences (calculated from project listings of the German Federal Environmental Agency). In the period 1974–1995, approximately 64% of all projects on air pollution problems funded by the German Federal Environmental Agency were in engineering, approximately 34% in the natural sciences, and only approximately 1.5% in the social sciences (Figure 3). In the technical and natural sciences air pollution research reached a high degree of complexity, organization, and internationalization beginning in the 1970s. In 1978 the European Monitoring and Evaluation Program (EMEP) was established by the UNECE. Hence, considerable research efforts flowed directly into policy-related negotiations (UNECE, 1995b). In 1988 the EUROTRAC program started to work and provided the strongest European network of research in atmospheric sciences on tropospheric air pollution. The extent of research efforts and the degree of organization and internationalization in social research on tropospheric air pollution remained far lower. The acidification problem raised considerable interest of social scientists in the 1980s (Jänicke, 1990; Knoepfel & Weidner, 1983; Mayntz, 1978; Regens & Rycroft, 1988; Weidner, 1986; Wetstone & Rosencrantz, 1983). Most of these contributions focused on problems of policy implementation and international cooperation. In the 1990s, the number of contributions from the social sciences on problems related to tropospheric air pollution strongly declined. The interest rather shifted to topics related to the problem of climate change (van der Sluijs, 1997). In 1996, the German government launched a new comprehensive research program on tropospheric air pollution problems. As one of four key actions of the program socio-economic research on tropospheric air pollution had been planned. This part of the program, however, was never realized.

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Supplementing Technology: Effect and Incentive Control In the past years different air quality control strategies have been distinguished. Various European countries, among them Germany, Austria, Switzerland, and Sweden, applied emission reduction strategies based on the best available technology. These technology-based approaches allowed rather quick reductions of emissions in important sectors. Environmental regulation forced the use of emission reduction technology such as desulfurization techniques in power plants or the catalytic converter in motor vehicles. Technology-based approaches have the advantage of a potentially quick implementation, because they do not require a great deal of additional research (Heymann, Trukenmüller, & Friedrich, 1993). Implementation of technological abatement measures has, in the past, rather been a problem of institutional structures and political interest and power than a problem of scientific understanding and evidence (Boehmer-Christiansen & Skea, 1991; Mayntz, 1978; Uekötter, 2001; Wolf, 1986). In recent years, however, scientists have objected that technology-based approaches are inefficient, because investments in air quality control based on best available technology do not necessarily lead to a maximum reduction of environmental damages. The investment in best technology to reduce emissions in a particular sector may prove extremely expensive and less effective than investments of a comparable order of magnitude in other regions or sectors. This problem becomes especially obvious in the international context. Investments in Germany, dedicated to the further reduction of atmospheric acidification, are likely to be much less effective than investments of the same order of magnitude in Poland or the Czech Republic, which still use much older and less efficient technology. The international context of air pollution has proved to be of particular importance, because large shares of total national emissions in Europe are exported to other countries (Sandnes & Styve, 1992). To recover from the shortcomings of technology-based approaches, from the late 1980s scientists have suggested effects-based abatement strategies (Grennfelt, Hov, & Derwent, 1994). Effects-based reduction strategies have the goal of improving the cost effectiveness of air pollution control (best results with least costs). As emission reduction measures cause considerable expense, it was believed to be a matter of great importance to provide knowledge on which atmospheric pollutants to reduce, and to what degree to reduce them, in order to achieve maximum environmental improvements. Effects-based strategies seek a maximum reduction of deleterious effects caused by atmospheric pollution, which may mean different emission reduction rates in different sectors and regions and not necessarily maximum emission reduction in all sectors and regions. These strategies, ideally, require full knowledge of the causal chain of emissions and subsequent damages, that is, the causal relation of emissions, atmospheric transport, deposition of pollutants, effects, and damages caused by these pollutants, and the monetary value of these damages. Atmospheric scientists in EUROTRAC and many other projects have focused on investigating the relation between emissions and effects with the help of computer-based atmos-

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pheric simulation models (source-receptor modeling). Based on knowledge of actual emissions, meteorological parameters, atmospheric chemistry and deposition behavior, source-receptor relationships have been calculated. Based on such calculations, the positive impact of potential emission reduction measures can be investigated. This approach is called Integrated Assessment Modeling (LAM). It implies, however, very complex and costly efforts in itself. Furthermore, it still involves fundamental uncertainties (Heymann, 2000; van der Sluijs, 1997). Effects-based emission reduction strategies have been applied in the framework of the Convention on Long Range Transboundary Air Pollution (UNECE, 1995b). The Second Protocol on Sulfur Emission Reduction, which was signed in 1994, obliges the member states to reduce sulfur emissions according to the damages they cause. Currently, there still is a large gap between actual sulfur deposition in Europe and maximum deposition levels without negative impacts on the environment (critical load). The agreement in the second sulfur protocol demands member states to reduce this gap by 60% (60% gap closure) by 2010. Due to different sensitivity of ecosystems, countries such as Spain and Greece have to reduce their sulfur emissions by 35% and 4%, respectively, relative to emissions in 1980, while Germany, Sweden, and the United Kingdom have to realize a reduction of sulfur emissions by 80% (ApSimon, Pearce, & Özdemiroglu, 1997, p. 5). Another area of research dedicated to air pollution control is environmental economics. Economists have suggested substituting an environmental policy that is based on a large number of individual regulations by the introduction of new economic incentive systems compatible with environmental goals. Such incentive systems could include economic instruments such as environmental taxes, for example, taxes on energy use or on emissions, or the purchase of tradable emission permits, which allow the owner to release a particular amount of emissions into the environment. The additional costs caused by environmental taxes, or by the purchase of emission permits, set an economic incentive to reduce emissions, if emission reduction measures (or energy saving measures) could be expected to be cheaper. Strategies based on economic incentives have the goal of shifting environmental control from regulative policy to market mechanisms and, thus, relieving governmental authorities from preparing, implementing, and controlling a huge set of environmental regulations and norms, and relieving the industry from coping with hundreds of different regulations. Yet, economic instruments remained, hitherto, marginal in European environmental policy (Frey & Schneider, 1996; OECD, 1994).

Signs of Discomfort Politicians, scientists, and environmentalists generally agree on the need for research on air pollution. Recently, signs of discomfort regarding the quality and applicability of scientific results for environmental policy have been notable. One example is related to the EUROTRAC project. At the EUROTRAC Symposium

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in 1990, the responsible official of the German Ministry of Research and Technology, Bernhard Rami, expressed some disappointment in his opening address. He emphasized that “at some time the need will be very clear to tell the public what EUROTRAC has done and what its exact contributions to solving the pressing problems of air pollution are” (Rami, 1991). Two years later, reviewers of EUROTRAC concluded at the EUROTRAC Symposium in 1992, that “very limited progress toward this objective” had been made (Hardy & Muirhead, 1993). EUROTRAC scientific research projects and researchers had produced the impression that purely scientific interests dominated. The EUROTRAC Steering Committee received the message with great attention. As a response, it set up a new subproject called the Application Project, to be carried out by a few of the most prominent atmospheric scientists in EUROTRAC. The project members had the task of synthesizing EUROTRAC research results, drawing political recommendations from these results, and presenting them in a form to be understood by environmental politicians (Borrell, Builtjes, Grennfelt, & Hov, 1997). In EUROTRAC-2 a different strategy has been adopted to provide for an adequate science-policy relation from the beginning. Parallel to EUROTRAC research projects, an Environmental Assessment Group has been established, in which leading EUROTRAC and other atmospheric scientists and representatives of environmental authorities continually review and communicate progress in EUROTRAC. Signs of discomfort have also been notable with regard to research results in environmental economics. Former German Minister of the Environment, Klaus Töpfer, considered research efforts inadequate: Scientists have engaged in quibbling over abstract and theoretical models under ideal conditions far removed from reality. Recommendations of control instruments (...) consequently relied on isolated analyses of economic and ecological efficiency under model conditions. The examination of these hypotheses under real conditions and the elaboration of detailed recommendations for political action remained an exception. The irritation in the field of politics caused by this deficit did not contribute to improving the political weight of economic instruments in administrative frameworks. (...) In the end, all such political initiatives came to nothing. (Töpfer, 1989) Similarly, Frey and Schneider (1996) came to the assessment that the potential of economic incentives in environmental policy has been overrated and, by the same token, the problems that come with the implementation of such economic measures have been underrated for constitutional democracies.

Perceptions of Air Pollution: A Technocratic Prejudice? In recent years, the limits of technical approaches to fighting air pollution have become apparent. This is especially true for the emissions of mobile sources, which is still “one of the more pressing and intractable problems” (Grant, 1999,

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p. 1). “Many air pollution problems persist because much progress in countering these problems is nullified by economic growth and especially growth in traffic.” (De Boer, 1998, p. 4) “Technological improvements are not adequate to offset growth trends,” van Egmond concluded (van Egmond, 1998, p. 45). In a comprehensive evaluation of environmental research in Germany, the German Science Council (Wissenschaftsrat) criticized the continuing dominance of “end-ofpipe technologies” to mitigate environmental problems, which do not affect or change emission processes, but attempt to reduce emissions after they have been produced (Knoepfel & Weidner, 1983; Wissenschaftsrat, 1994, p. 30). Why have technology-oriented approaches been so enormously attractive? Why did social research on air pollution lack continuity and integration? At first glance, the reason may simply be attributed to the nature of the problem. Air pollution causes complex problems to be answered by technical and natural sciences. Still, the German Science Council raised concern on the low representation of humanities and social sciences in environmental research which, hitherto, appeared to be of “minor importance” (Wissenschaftsrat, 1994, p. 8). A factor of great importance may have been the availability and choice of measures and indicators to describe the state of pollution. As long as smoke and sulfur concentrations were the leading (or even the only) indicators and investigations focused on urban and industrial regions, other pollution phenomena remained out of sight. Air pollution appeared to be a local problem of dust and sulfur. In this view, high stacks appeared fully sufficient to improve air quality, while emissions still increased. Just as important may have been the lack of generally accepted indicators describing the effects of air pollution. Health effects of air pollution could rarely be proved, and complaints about nuisances and rather diffuse feelings of unhealthiness, due to air pollution, were not taken very seriously. It was well-known that even low concentrations of sulfur in the atmosphere were likely to affect ecosystems. But, this part of the problem appeared marginal and was largely neglected until the late 1960s. The discovery of problems such as dying fish populations in acidified Scandinavian lakes (in the mid1960s), high ozone pollution levels in Europe (in the mid-1970s), dying forests in Germany (in the early 1980s), stratospheric ozone depletion (in the mid1980s), and global warming (in the late 1980s) consequently appeared like scientific sensations with strong repercussions in the public and in politics. These problems had been predicted or analyzed long before, but had appeared marginal and received little attention (Brimblecombe, 1995). But, scientific, political, and public perception of these events strongly changed. The development of effects-based abatement strategies in recent years may be considered a result of these shifts of perception.

Communication Among Experts in Different Fields In recent decades, the EU has witnessed a fundamental shift in air pollution from primary pollution problems (sulfur and dust) to secondary pollution prob-

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lems (photo-oxidants). This change reflects a change in economic structures, technologies, lifestyles, and social institutions. While primary air pollution can be regarded as solved, to a large degree, in the EU, secondary pollution problems still are far from being solved. The shift of fuel use from coal to oil, and the shift of major emitting sources from large coal burners such as power plants to scattered small sources such as vehicles, pose new problems for air quality control. Sulfur emissions could effectively be reduced by mitigating emissions of a comparably small number of large sources (mainly power plants) with the help of additional technical equipment. These measures by-and-large did not affect industrial activity, economic growth, or consumer habits and lifestyles (but still caused considerable political struggles). In the case of nitrogen and volatile organic compounds the effective reduction of emissions appears much more difficult. Emissions are caused by a large number of diverse and scattered sources and technology-oriented remedies such as the use of catalytic converters in cars or fuel-saving motor technologies seem to be insufficient, because they are partly compensated by the growth of car size and mileage. Traditional control strategies, thus, appear to be of limited impact. More effective control strategies, in the future, may prove to require deeper interventions into economy and society, such as a reduction of emission activities, for example, the reduction of motor vehicle use. For instance, measures such as a rise in fuel prices or the introduction of ecological tax systems have been suggested and enacted in Germany. Future efforts to solve air pollution problems may require political, economic, and social processes in parallel with technical measures. Another challenge that deserves attention is the relation of science and politics. The production and the transfer of appropriate knowledge does not seem to be a simple matter. Organizational problems such as those Uekötter (1996, 2001) described in historical case studies are also to be observed in current research and control efforts. They raise the question of what institutions are required to enable and improve the flow of information and mutual communication, as well as to define future research needs and strategies. Problems of exchange and communication not only affect the relation of science and politics, but also exist between different fields of research: A deficit of dialogue in German environmental research is obvious both inside different fields of the natural, technical and social sciences, but most of all between these big domains of science. This deficit impairs the achievements of environmental research and hampers especially the conception and implementation of strategies and measures of environmental protection. (Wissenschaftsrat, 1994, p. 8) Currently, the research agenda appears to divide into economists researching economic control strategies, atmospheric scientists focusing on tools for effectsbased control strategies, and technologists working on abatement technology. How do such strategic options fit together? Are there any perspectives of integration and combination? It appears to be a very difficult task for decision makers

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to make their selection from a large pool of different strategic options, which are developed and evaluated in completely different scientific communities that have no notable overlap and apparently do not communicate intensively (Grant, 1999; Haas, Keohane, & Levy, 1993; The Social Learning Project at Harvard, see Clark, 2001).

Is There a Role for Historical Expertise? Why has problem management and control failed in spite of enormous scientific and political efforts? To what degree is it a failure of problem perception, of scientific problem understanding, or of environmental politics and legislation? How was the relation between science and politics institutionalized? What are the problems and perspectives for future air quality control? Those addressing future air quality control should be aware of experiences and limitations of past efforts. To answer the questions raised above is a genuine task of historical research, particularly of environmental historians. Historical research will not be a means to find comprehensive solutions to air pollution problems. Still, it can contribute to air pollution management by improving our understanding of the problem. Historians have the task of reviewing the perceptions and approaches in atmospheric sciences and environmental policy of the past years, and highlighting the strengths and the problems of past developments. Regional conditions, political structures, economic interests, and institutional settings as well as ways of understanding, beliefs, convictions, and ideologies contribute to problem development, problem understanding, and problem management in manifold ways. It is the strength of historical research to dive into the depth of historical processes (which may be processes of a very recent past) and reassess the multitude of factors and causal relations. Historical expertise can contribute to identifying problems, improving the understanding of problems, and providing recommendations for policymaking. Such expertise may include recommendations related to questions, such as how air pollution problems changed in past years and what this may mean for the need of future research efforts, or what problems of knowledge integration and scientific expertise existed and how these may be overcome in the future. The TRAP45 project, mentioned in the introduction, is a small step in this direction. The acceptance of TRAP45 as a EUROTRAC subproject indicates an awareness of the interdisciplinary nature of the air pollution problem. The development of the project, however, gives a pessimistic outlook. While the goals of TRAP45 have been appreciated by the scientific community, its tasks could not be fulfilled in full scale by 2002 due to a lack of support by national and international funding agencies.

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Heymann, M., Trukenmüller, A., & Friedrich, R. (1993). Development prospects of emission inventories and atmospheric transport and chemistry models. Results of the DEMO-project. Stuttgart, Germany: Institut für Energiewirtschaft und Rationelle Energieanwendung. Isaksen, I. S. A. (1991). The EUROTRAC Project. In P. Borrell, P. M. Borrell, &: W. Seiler (Eds.), Transport and transformation of pollutants in the troposphere: Proceedings of the EUROTRAC Symposium ’90 (pp. 15–16). The Hague, The Netherlands: SPB Academic. Jänicke, M. (1990). Erfolgsbedingungen von Umweltpolitik im internationalen Vergleich: Zeitschrift für Umweltpolitik und Umweltrecht, 13, 213–232. Jasanoff, S. (1990). The fifth branch. Science advisers as policymakers. Cambridge MA: Harvard University Press. Kloepfer, M. (1994). Zur Geschichte des deutschen Umweltrechts. Berlin: Duncker & Humblot. Knoepfel, P., & Weidner, H. (1983). Die Durchsetzbarkeit planerischer Ziele auf dem Gebiet der Luftreinhaltung aus Sicht der Politikwissenschaft. Zeitschrift für Umweltpolitik, 4(2), 87–115. Mayntz, R. (Ed.). (1978). Vollzugsprobleme der Umweltpolitik. Empirische Untersuchung der Implementation von Gesetzen im Bereich der Luftreinhaltung und des Gewässerschutzes. Stuttgart, Germany: Kohlhammer. Miller, C, & Edwards, P. N. (Eds.). (2001). Changing the atmosphere. Expert knowledge and environmental governance. Cambridge, MA: MIT Press. Müller, E. (1986). Innenwelt der Umweltpolitik, Sozialliberale Umweltpolitik—(Ohn)Macht durch Organisation? Opladen, Germany: Westdeutscher Verlag. Organisation for Economic Co-operation and Development (OECD). (1991). The state of the environment. Paris: OECD. Organisation for Economic Co-operation and Development (OECD). (1994). Project and policy appraisal: Integrating economics and environment. Paris: OECD. Prittwitz, V. von. (1984). Umweltaußenpolitik. Grenzüberschreitende Luftverschmutzung in Europa. Frankfurt a.M., Germany: Campus. Rami, B. (1991). Opening address. In P. Borrell, P. M. Borrell, & W. Seiler (Eds.), Transport and transformation of pollutants in the troposphere: Proceedings of the EUROTRAC Symposium ’90 (pp. 5–6). The Hague, The Netherlands: SPB Academic. Regens, J. L., & Rycroft, R. W. (1988). The acid rain controversy. Pittsburgh, PA; University of Pittsburgh Press. Salter, L. (1988). Mandated science: Science and scientists in the making of standards. Dordrecht, The Netherlands: Kluwer. Sandnes, H., & Styve, H. (1992). Calculated budgets for airborne acidifying components in Europe (EMEP MSC-W Report 1–92). Blindern, Norway: EMEP MSC-W. Schneider, T. (Ed,). (1998). Air pollution in the 21st century: Priority issues and policy. Amsterdam: Elsevier. Sluijs, J. P. van der. (1997). Anchoring amid uncertainty. On the management of uncertainties in risk assessment of anthropogenic climate change. Unpublished doctoral dissertation, University of Utrecht, The Netherlands. Spelsberg, G. (1984). Rauchplage. Hundert Jahresaurer Regen. Aachen, Germany: Alano. Spiegelberg, F. (1984). Reinhaltung der Luft im Wandel der Zeit. Düsseldorf, Germany: VDI. Stehr, N., & Storch, H. von (1999). Klima, Wetter, Mensch. Munich, Germany; Beck. Stern, A. C. (1977). Problem areas in writing a “history of air pollution.” In H. M. Englund & W.T. Beery, Proceedings of the Fourth International Clean Air Congress (pp. 1021–1025). Tokyo: Toppan. Stolberg, M. (1994). Ein Recht auf saubere Luft? Umweltkonflikte am Beginn des Industriezeitalters. Erlangen, Germany: Fischer. Technische Anleitung Luft. (1964). Technische Anleitung zur Reinhaltung der Luft. Allgemeine Verwaltungsvorschriften über genehmigungsbedürftige Anlagen nach §16 der Gewerbeordnung vom 8.9.1964 (Gesetzliches Mitteilungsblatt S. 433). Töpfer, K. (1989). Zur Funktion von Abgaben in der Umweltpolitik. Vortrag gehalten anlässlich der Jahresversammlung der Gesellschaft zur Förderung der Finanzwissenschaftlichen For-

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schung e.V. Cologne, Germany: Finanzwissenschaftliches Forschungsinstitut an der Universität Köln. Uekötter, F. (1996). Die Rauchfrage. Das erste komplexe Luftverschmutzungsproblem in Deutschland und seine Bekämpfung 1880–1914. Thesis of state examination, University of Bielefeld, Germany, Uekötter, F. (2001). Von der Rauchplage zur ökologischen Revolution. Eine politische Geschichte der Luftverschmutzung in Deutschland und den Vereinigten Staaten von Amerika 1880–1970. Ph.D. Thesis, University of Bielefeld, Germany. United Nations Economic Commission for Europe (UNECE). (1995a). Effects and control of long range transboundary air pollution. Report prepared within the framework of the Convention on Long Range Transboundary Air Pollution. Geneva, Switzerland: United Nations. United Nations Economic Commission for Europe (UNECE). (1995b), Strategies and policies for air pollution abatement. Review prepared under the Convention on Long-range Transboundary Air Pollution. Geneva, Switzerland: United Nations. United Nations Economic Commission for Europe (UNECE). (1996). Manual on methodologies and criteria for mapping critical loads, levels and geographical areas where they are exceeded. UNECE Convention on Long-Range Transboundary Air Pollution (2nd rev. version). Berlin: Federal Environmental Agency. United Nations Environment Program (UNEP). (1993). In M. K. Tolba (Ed.), The world environment: 1972–1992. Two decades of challenge. London: Chapman & Hall. Weidner, H. (1986). Air pollution control strategies and policies in the F. R. Germany. Berlin: sigma, Wetstone, G., & Rosencrantz, A. (1983). Acid rain in Europe and North America: National responses to an international problem. Washington, DC: Environmental Law Institute. Wey, K.-G. (1982), Umweltpolitik in Deutschland. Kurze Geschichte des Umweltschutzes in Deutschland seit 1900. Opladen, Germany: Westdeutscher Verlag. Wicke, L. (1986). Die ökologischen Milliarden: Das kostet die zerstörte Umwelt—so können wir sie retten. Munich, Germany: Kösel. Wissenschaftsrat. (1994). Stellungnahme zur Umweltforschung in Deutschland (Vol. 1). Cologne, Germany: Author. Wolf, R. (1986). Der Stand der Technik. Geschichte, Strukturelemente und Funktion der Verrechtlichung technischer Risiken am Beispiel des Immissionsschutzes. Opladen, Germany; Westdeutscher Verlag.

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Section 3 Experts, Redefined The chapters in this third section seek to redefine the expert by rethinking the expert’s task, and the expert’s legitimacy to make certain judgments, and by considering the history of the modern expert. Andreas Føllesdal is interested in ethics consultancy, in particular the role of philosophers as ethics consultants to committees that need to address sensitive issues in medicine, research, and other policy areas. Is the philosopher in a position to counsel such committees on morality and good reasoning? Føllesdal’s answer presents the philosopher in the role of a coach to the committee, offering skills rather than moral authority. Fenna Poletiek and Carel Stolker question the traditional procedure of assigning monetary compensation to victims who were harmed by a liable third person. Who decides the worth of an arm or a leg, or the appropriate compensation for a whiplash, or the loss of smell? The authors propose to break with tradition, where judges use a list of previous judgments by the courts, and suggest allowing “the person on the street” to specify the appropriate relative amounts of compensation. With such an empirical approach the social scientist enters the legal arena not as an expert witness, but as an expert on how to measure and represent people’s judgments. Although the term “expert” derives from Latin, its modern designation for someone whose specialized knowledge and skills are called upon is rather recent. As Achim Landwehr argues, however, the modern expert had a precedent: the commissioner in the early modern period. Landwehr refers to the 16th century Venetian commissioners who were sent out by the state when problems arose within the extensive Venetian territory on the Italian mainland. These commissioners were more or less educated patricians, but not experts with specialized knowledge. Such knowledge was rather acquired in the course of their assignment. Commissions are put into place by an authority as a response to a special problem or situation. In response, commissions produce reports and, thereby, establish a truth. This was the case with the Venitian Sindici and continues to be the case with commissions in the present-day.

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Chapter 9 The Philosopher as Coach1 Andreas Føllesdal Department of Philosophy, University of Oslo, Norway [email protected]

Philosophers are regularly called upon to assist in deliberation about ethical matters. Committees are established at the European Union (EU) level, as well as by domestic governments and at the institutional level, to address sensitive issues in medicine, research, and other policy areas. Such committees are often designed to include an ethics expert, or an ethics consultant, on the assumption that philosophers have something to offer. But, what is it that philosophers can offer such committees? To be sure, ethics consultancy is nothing new: The very first ethics consultants may have been the sophists of ancient Greece. However, from Socrates onwards, philosophers have also reflected on the moral appropriateness of offering their services to governments and individuals in power. Socrates denounced the sophists roundly: No one should make a living by selling arguments as tools of manipulation. Recent critics voice more modest concerns: Philosophy is most true to itself as a critical rather than as an immediate constructive force and as a discipline based in the academy rather than mired in the political fray. (Weisbard, 1987, p. 783) What is called for is the exercise of philosophical talents in the service of alternative ways of influencing public policy, outside of establishmentorganized, officially sanctioned bodies that can do little—and usually intend even less—to change the status quo. (Momeyer, 1990, p. 402) Undoubtedly, the philosopher can serve a valuable role as outside critic. The plight of Socrates, and more recently the tragic slaying of Ignacio Ellacuria, Francisco Peccorini Letona, and other philosophers and theologians in El

1 I am grateful for comments and criticism from audiences at the European Business Ethics Network (EBEN) Conference, and at the Center for Medical Ethics, University of Oslo; also from Michael Davis, Kai Dramer, Birgitta Forsman, Dagfinn Føllesdal, Reidun Førde, Rune Giske, Ola Hole, Peter Kemp, Ragnar Lie, Sigmund Loland, Per Sandberg, Robert Strickwerda, Knut Erik Tranøy, and Ken Winston.

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Salvador and Guatemala, remind us that “the persecution visited upon them is a strange testimony to their influence” (Camacho, 1993). But, can philosophers also serve a legitimate role as counsels of morality and reasoning within institutions, as “inside” consultants to committees? I argue that such services are consistent with the doing of philosophy, and consistent with other philosophers serving honorably and credibly as social critics. This chapter proceeds in three steps. I first identify the subject matter of this exploration: philosophers as consultants to committees, as contrasted with their role as members of committees or as consultants to individuals. I then present an account of philosophers’ expertise—the special competence they provide—and compare it to some alternative accounts. I defend an account of the philosopher coaching the committee toward reflective equilibrium of their considered judgments on the issue at hand. In light of this conception of the role of philosopher-consultants, I discuss some of their obligations. My concern is with philosophers engaged as consultants to committees, working groups, and commissions on moral matters. Committees often have, and should have, expectations about the services provided by philosophers. However, these expectations should be accurate, and they are too important to leave to the committees themselves (Crosthwaite, 1995, p. 369). Hence, we seek a public account of the role and responsibilities of philosophers serving as consultants. The assumption of publicity is important for the practice, making future committees aware of the professed expertise, function, and responsibilities of the philosopher. Several points of clarification are appropriate. I shall use the term “philosophers” broadly, to include those who claim to be philosophers, often with training from a philosophy department or its equivalent, but they need not be philosophers based in the academy. The committee, working group, or commission—“committee” for short—has a mandate of some practical importance, for example, in assessing or recommending institutions or policies. However, it has no formal political power on its own. The role of such committees within democratic decision making is not merely to aggregate votes, but to provide somewhat better opportunities for reasoning than allowed by the flurry of day-to-day party politics (Kamm, 1990, p. 351). The committee, thus, offers room for practical, public deliberation on issues, therefore, determining what it regards as best reasons. We may expect discussions and reflection to be somewhat more complex in committee discussions than in the general public debate, though there are still constraints on complexity due to the public nature of the tasks. Even though the composition of the committee often reflects various constituencies, committee members are usually not required to act as representatives of such groups. The philosopherconsultants do hot serve as full members of the committee. Instead, they contribute their expertise at the request of the committee.

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What Is a Philosopher Good for? What is the contribution of philosophers as consultants to a committee? This question is fundamental for delineating the mutual expectations and responsibilities of the committee and the philosopher. What special qualifications do philosophers have that render their services useful for a committee—and ultimately for society at large? In her book The elimination of morality, Ann Maclean put the challenge succinctly: “How does an education in philosophy make one better at answering moral questions than someone who lacks such an education?” (Maclean, 1993, p. 3). I shall suggest that philosophers’ training makes them skilled at moral reasoning. They can coach a committee, helping to clarify and improve its moral reasoning. The philosopher is trained in arguing ethical values, seeking to increase coherence and system to the various moral concerns voiced in the committee. To further this goal, the philosopher offers distinctions, interpretations, and relationships between various judgments so that they appear as defensible premises and conclusions as parts of a theory. But, first consider competing accounts of what philosophers may contribute. We may assume that committees are intended to promote important values in a democracy, and that the philosopher takes on some responsibilities within such a valuable social scheme. If this is not true, we should indeed be worried (Kamm, 1990, p. 354). But, what is the philosopher’s unique contribution?

Further the Good Society? Surely, the philosophers’ special strength is not that they make the world a better place. Graduate schools in philosophy do not exclude applicants on the basis of their moral commitments, and philosophers’ training is not in exhortation or aimed directly at the moral improvement of themselves or others. They are not trained to maximize well-being in the world. Moreover, there is no reason to believe that ordinary members of an appointed committee are less honorably motivated, or less equipped to pursue the common good as they see fit.

Provide Touchstones of Truth? One response might be that philosophers provide commissions with the truth on moral matters. That is, the professional philosopher provides the correct moral theory, either by offering a blueprint of how the world should look, or by offering the correct fundamental principles of morality, whence all moral truth flows. Philosophers have spent much time reflecting on the good life and the just society, and they might, therefore, be expected to hold more well-thought-out and systematic views than others (Singer, 1972, p. 117). However, these views

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will certainly be contested and controversial—just as are most other such views in a democracy. Should consultants be permitted—and requested—to pursue their own particular and contested values when serving a committee? Such claims often meet with suspicion. If moral philosophy yields truth, why aren’t all moral philosophers nice people? More to the point, this view is at odds with philosophers’ practice: There is profound and prevalent disagreement among philosophers precisely about what morality requires. So, there is no unique philosophical view of right action or the good society that the philosopher brings to bear. Will Kymlicka, for instance, has suggested that the goal of arriving at the true ethical theory may be inconsistent with the democratic mandate of a committee; the members of a committee will—and should—disagree: The fact that Commissioners disagree is not just an unlucky accident. Citizens generally have different views on these issues, and Commissioners are chosen to represent different viewpoints. Hence they are supposed to come up with recommendations that, so far as possible, are acceptable to a variety of ethical perspectives. Government Commissions are instruments within the system of representative democracy. Like elected representatives in parliament, Commissions are intended to be representative of the general community (...) increased room for persuasion and flexibility cannot, and is not intended to, displace the need for recommendations that are acceptable to a wide range of viewpoints. The adoption of a particular ethical theory, therefore, is not only unrealistic, it defeats the purpose of the Commission. (Kymlicka, 1993, p. 8) Kymlicka’s conclusions may be correct, but the argument is flawed. The goal of arriving at one shared theory of morality does not violate the democratic mandate of a committee for three reasons. When committees are directly charged by politicians with making decisions, democratic accountability is not lost. Democracy is not more at stake if the committee reaches a unanimous decision by convincing all representatives, than if it decides by majority vote or by the Chair’s dictum. The function of representatives of different constituents is to voice reasoned concerns, rather than to represent constituents in decision making. There is, for instance, often no attempt at providing proportional representation of different groups in such committees. Groups within democracies often disagree strongly, but such disagreements do not always rest on different moral theories. Several philosophical theories are explicitly constructed as responses to a pluralism of competing, yet not unreasonable moral views. They may provide views on what social institutions should allow and prohibit, which are more acceptable than more controversial moral views. However, there are more troubling objections to the view that philosophy provides truth. Ann Maclean rejects a particular version of “pure” utilitarianism, which she holds to be typical of modern bioethics—at least in the United King-

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dom. She argues, convincingly, that this particular kind of moral theory is implausible, since it holds that: (...) it is philosophical enquiry which must provide, sanction or underwrite the set of rational principles from which moral judgments should be deduced. The source of the philosopher’s special expertise in moral matters is his knowledge of these principles; it is this which gives his pronouncements upon moral issues an authority to which the pronouncements of others can lay no claim. (Maclean, 1993, p. 5) This pure theory of morality is foundational in the following sense. It seeks to justify moral judgments on particular cases by deduction from a more general moral principle—in this case the principle of utility—whence moral authority flows. This principle needs no further justification and overrides competing moral intuitions on individual cases. The role of moral philosophers is to establish the deductive connections between particular cases, mid-level principles, and the foundational principle of utility. Maclean criticizes this account of moral knowledge. She also notes that philosophers cannot know, with certainty, what is “implicitly” meant by “the value of life,” or about what a decision “implies” (p. 32). Rational verdicts based on such principles are still the philosophers’ own moral opinions (p. 189). Let us agree with Maclean that the moral expertise of philosophical training does not consist in knowledge of the correct moral principles. However, the title of Maclean’s book, The elimination of morality, misleads: She has not argued convincingly for the elimination of morality, nor against the existence of moral expertise. Her criticism of moral theories in general (and that of van Willigenburg, 1991, pp. 186–191) fail for several reasons. First, there are more plausible versions of utilitarianism than the one she criticizes; second, many bioethicists—and other ethicists—are not utilitarians; and third, Maclean fallaciously assumes that utilitarians must accept Mill’s account of the role of moral theory (Maclean, 1993, p. 10). There are more plausible accounts of justification in ethics, consistent with a wide range of moral theories, utilitarian and otherwise. Eliminating this form of utilitarianism eliminates neither claims to moral expertise, utilitarianism, bioethics, nor morality. Major traditions in moral philosophy, including Aristotelian and contractualist theories, stand wrongly accused. Philosophers are not particularly well prepared to promote the good directly, and they cannot claim to know moral truths. The philosophers’ training helps identify the form of “moral expertise” they can contribute.

Foster Coherence of Moral Views in Reflective Equilibrium? Moral philosophers are typically trained both in the history of philosophy and in argumentative skills. They provide and assess arguments and objections and detect inconsistencies in arguments and among moral judgments.

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Rorty criticizes today’s professional philosophers for a cynical view of philosophy’s past, “treating the great dead philosopher as sources of hypotheses or instructive examples of conceptual confusion” (Rorty, 1982, p. 65). I suggest, contrary to Rorty, that the skilled philosopher also turns to earlier writers for insights, ideals, and distinctions that are valuable for the issues at hand—based on charitable interpretations of past thinkers. Philosophy, thus, draws on the past for creative insights and perspectives, in order to make sense of our own moral views. Philosophy is concerned with creating connection and order, and adjusting moral judgments into a coherent framework of premises and conclusions—that is, a theory. One important role of such a theory is to provide unity, coherence, and understanding among our conflicting judgments, as an aid to reach reasoned agreement on common ground. Increased coherence and consistency among moral intuitions is one of the main contributions of moral philosophy. Philosophers take part in theory construction, for instance, by showing how “mid-level principles” of autonomy and beneficence can be spelled out to be rendered consistent with each other and with the concern for persons and, thereby, be justifiable, and how we may conceive, and deal with, remaining disagreements in defensible ways. The philosopher, thus, contributes to the process of gaining “reflective equilibrium” among our moral judgments, among principles, ideals, and moral judgments on particular cases. This method seeks to establish a consistent web of moral judgments in a particular field, often with the practical aim of throwing more light on questions we as yet have not passed judgments on, or where we are in disagreement with each other and where such disagreements matter. It is an equilibrium because at last our principles and judgments coincide; and it is reflective since we know to what principles our judgment conform and the premises of their derivation. (Rawls, 1971, p. 20) This task is not to generate principles by deriving them from higher, more general premises: Neither confidence nor justification must trickle down from above (Kymlicka, 1993, p. 13; Williams, 1985). Rather: “Justification is a matter of mutual support of many considerations, of everything fitting together into one coherent view.” (Rawls, 1971, p. 579) For a committee faced with resolving a practical issue, increased reflective equilibrium may not require complete agreement on all points, but rather sufficient, overlapping consensus to secure common ground regarding the particular issue. Sometimes, complete agreement on the premises for our various views may be unfeasible and unnecessary. Describing the discussion prior to the 1948 UN Declaration on Human Rights, Maritain noted that: Where it is a question of rational interpretation and justification of speculation or theory, the problem of human rights involves the whole structure of moral and metaphysical (or anti-metaphysical) convictions held by each of us. So long as minds are not united in faith or philosophy, there will be mutual conflicts between interpretations and justifications. In the field of

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practical conclusions, on the other hand, agreement on a joint declaration is possible, given an approach pragmatic rather than theoretical, and cooperation in the comparison, recasting and fixing of formulae, to make them acceptable to both parties as points of convergence in practice, however opposed the theoretical viewpoints. (…) It is not reasonably possible to hope for more than the convergence in practice in the enumeration of articles jointly agreed. The reconciling of theories and a philosophic synthesis in the true sense are only conceivable after an immense amount of investigation and elucidation of fundamentals, requiring a high degree of insight, a new systematization and authoritative correction of a number of errors and confusions of thought (...). (Maritain, 1949, p. 11f.)

The Philosopher as a Moral Coach How does moral reasoning proceed toward reflective equilibrium? We start with our moral views and commitments at various levels of generality—including such general and vague ideals as freedom, equality, equal worth, and solidarity. We seek conclusions to our puzzles by hitherto unnoticed arguments, adjusting the moral judgments as we go, in light of these new connections. But, more needs to be said to illustrate this process. Moral reasoning has both a constructive and a negative role, both of which are required in order to identify the philosopher’s contribution. The negative role is the modest one of ensuring consistency: Moral philosophers should attempt to ensure that the Commission’s arguments are clear and consistent. (…) philosophers should focus on identifying conceptual confusions or logical inconsistencies within the Commission’s arguments, without seeking to influence its choice of the underlying theory. (Kymlicka, 1993, p. 2) Philosophers serve as argument inspectors, checking arguments for soundness— or at least validity, that is, that the arguments are logically correct, though not necessarily with true premises. Kymlicka claims that this is too modest a contribution, since valid arguments may be morally unsatisfactory. However, assisting in argument improvement will often serve to weed out some—though not all— outrageous immoral views. Moral reasoning also has a positive, creative role, stemming partly from the philosopher’s familiarity with the history of moral philosophy—of Kantian, utilitarian, and Aristotelian views and their heirs. But, what is the use of moral philosophy for analyzing public policy? It is unrealistic to expect a committee to endure a graduate seminar on the various theories, and this aspiration is inappropriate: The focus on theories is not likely to foster agreement on the issues, for two reasons, states Kymlicka: (1) Knowledge

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of the theories will be insufficient. No particular theory—utilitarianism or contractarianism—will answer the practical questions; each theory “just provides a framework within which to ask them” (Kymlicka, 1993, p. 8); (2) “The fact that these theories have maintained adherents for centuries suggests that they are not obviously illogical.” (p. 6) Hence, a theoretical concern will not resolve the disagreements. However, Kymlicka’s objections do not support the hypothesis that information on moral theories is of no help. First, on many practical issues, all moral theories, currently entertained, may yield the same or similar answers, or provide similar frameworks. Any moral theory will seek to identify affected parties, for instance, while many unreflective views typically ignore certain unintended effects. So, where there is no framework, any normative framework is an improvement—even though philosophers do not agree on the precise content of the preferred comprehensive moral theory. Second, the substantive discussions and disagreements among theories have actually changed over time, partly due to improved arguments and theories. Consider, for instance, views condoning slavery, or the subjection of women. This account of moral reasoning is, generally, in accordance with Maclean’s own view. The philosopher’s role is to provide clarification, helping people decide what answers to the moral questions they themselves are prepared to accept (Maclean, 1993, p. 202f.). However, Maclean denies that there is only one unique, rational answer to moral issues: There is always more than one such answer. I submit, however, that some positions on a particular issue will be ruled out once we try to connect them to other moral judgments—consider, for instance, whether to conduct harmful experiments on prisoners in concentration camps. The view I have presented may seem to conflict with Kymlicka’s account (Kymlicka, 1993, pp. 11–13). Denying that “taking morality seriously requires taking moral philosophy seriously,” he claims that what matters, instead, is to take people seriously, in two distinctly nonphilosophical ways: (1) to identify affected parties; (2) to identify “mid-level” principles, for example, of requiring informed consent, respect for human life, and equality, that “are consistent with, and indeed help spell out, the belief that each person matters in and of herself” (Kymlicka, 1993, p. 13). These two tasks are indeed important, and what is needed is often compassion and forethought (Momeyer, 1990, p. 404). But, I submit that these tasks, in fact, require moral reasoning of the kind I have sketched above. The questions of who is affected in morally relevant ways, and how one should measure and weigh the effects of alternative actions and policies, raise profoundly philosophical issues (Cohen, 1989). To be sure, there is seldom a practical need for a thorough, comprehensive, or complete theory, or to reach complete agreement on one particular moral theory. Nevertheless, it is often necessary to develop parts of a systematic perspective. Sometimes, it suffices to identify various midlevel principles as expressing equal human worth. But, even this requires philosophical reflection when specifying ideals and principles of equal worth, free-

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dom, and the like. However, such specification does not assume that the philosopher “sees” what was meant all along, unbeknownst to others at the time (Maclean, 1993, p. 32). Rather, the philosopher engages in creative reconstruction, interpretation, explication, and specification of concepts and principles (Kymlicka, 1993, p. 26, n. 38; Quine, 1960, pp. 257–262; Richardson, 1990). As commonly used, these principles are not adequately grounded in a unified theory, but only serve as a checklist (Clouser & Gert, 1990, p. 233; van Willigenburg, 1991, p. 184). Unresolved conflicts among these mid-level principles sometimes force us to develop further coherence and unity among vague principles, such as “autonomy and beneficence.” When Beauchamp claims that the principle of beneficence is a “fundamental” principle (Beauchamp, 1984), he should not be taken to hold that such principles need not, or can not, themselves be justified or adjusted in the light of other considerations. What is needed is a systematic encompassing account to settle the conflicts between mid-level or “fundamental” principles. We must determine the scope of application of various rules and principles, and determine the relative order and weight of moral considerations. Philosophers seek to bring various moral considerations to bear, for instance, by asking which interests are secured or promoted by institutional mechanisms, such as informed consent, in order to determine when such procedures are appropriate, or less relevant, as compared to other institutional mechanisms. In the account I have sketched, moral philosophers serve a valuable function by assisting in the process of gaining reflective equilibrium among moral judgments. Philosophers draw on their training and knowledge in asking sensible questions and constructing sound arguments, specifications, distinctions, and fragments of theories. Such skills of creating order and structure among our moral judgments are taught in philosophy departments, and such skills amount to expertise of a certain kind. Acting as a consultant to committees, we may expect the philosopher to contribute to the deliberation of the committee, honing the use of reason in ethics and moral reflection, aimed at solving the practical problems—though not necessarily offering or generating the correct moral theory. I suggest that the philosopher is fruitfully regarded as taking on the role of coach to a committee. In sports, the role of the coach is to enable the athletes to achieve a high level of excellence at their sport, increasing their responsibility for their own results (Giske, 1993; Harre, 1982; Heinemann, 1983, p. 64). Philosopher-consultants focus on the public reasoning of the committee. Philosophers should be expected to arrest weaknesses and flaws in the arguments, identify worrisome premises and consequences, offer their own considered, argued judgment as to improvements and the favored conclusions, and present further arguments and reasonable positions (Ackerman, 1989; Momeyer, 1990, p. 403; van Willigenburg, 1991, p. 2f.). Are such skills properly called “moral expertise”? This is an important question if we are concerned with determining whether philosopher-consultants are a profession, since professions are often taken to command esoteric expertise

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(Hughes, 1963). Philosophers’ skills might be labeled “moral expertise” insofar as the subject matter of their training is moral judgments. However, this label may be misconstrued as claiming that ethicists are particularly worthy people, whose judgments are particularly trustworthy. I am inclined not to regard the philosophers’ skills as moral expertise. The quality of the philosophers’ recommendations does not rest on their authority or on trusting their character, but rather on the quality of arguments that the philosopher has to offer. Referring to philosophers as moral experts is likely to confuse insofar as they—unlike certain other experts—do not claim to command a decision procedure, but only certain skills (Crosthwaite, 1995, p. 369; Kamm, 1990, p. 352). Moreover, this kind of expertise is not exclusionary, in contrast to other relationships between expert and client. The aim of the philosopher-consultants is to transfer knowledge and skills to the client, not to use their expert skills on the client’s behalf. The philosopher’s role is, thus, to increase the rationality of the committee, by improving the committee’s ability to decide what to believe and to weigh reasons for action—in accordance with its own canons of rationality (Scanlon, 1972, p. 215). The client cannot transfer its decision-making responsibility onto the philosopher. The task of the philosopher is, instead, to improve the decision-making ability of the committee itself (Caplan, 1989, p. 77; van Willigenburg, 1991, pp. 24–27).

What Are the Responsibilities of the Philosopher Coach? We turn now to consider the moral responsibilities of philosophers serving as educators to committees in the sense I have developed. Several issues have been raised by other writers, and I shall sketch responses to these in turn. It is appropriate to reflect on the responsibilities of philosophers in the consulting role. Is it true of them, as Brock claims, that: When philosophers move into the policy domain, they must shift their primary commitment from knowledge and truth to the policy consequences of what they do. And if they are not prepared to do this, why did they enter the policy domain? What are they doing there? (Brock, 1987, p. 787) The role of philosophers as advisors to committees is different, in several ways, from that of other advisors, and from that of philosopher members of committees. Thus, reflection is appropriate, but the conclusions are not clear. Let me start with defending the view that there are limits to philosophers’ responsibility for the consequences of their advice. In contrast, consider Dennis Thompson, who appears to lay down strict act consequentialist requirements: An advisor is responsible for the consequences of decisions based on his advice insofar as he could reasonably be expected to foresee that they would follow from his advice. Finally, although the requirements of role can create a prima facie excuse, an advisor is responsible for any foreseeable harm his role-

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bound advice causes when that harm is greater than the harm that would result from breaching the requirements of his role. (Thompson, 1983, p. 288) The publicly acknowledged role of the coach reduces the philosophers responsibilities for the policy results. The philosopher, unlike many professionals, does not make decisions or resolve issues on behalf of others. The philosopher is not generally responsible for the reports, recommendations, and so forth made by the committee. This is because the committee is always free to accept or reject the suggestions offered by consultants—be they philosophers or other expert counsels. The philosopher-consultant should, thus, not be held responsible if the committee adopts views contrary to what the philosopher considers a philosophically more favored position. We must, of course, acknowledge that the interventions of a philosopher causes large conceptual and moral shifts, so that the committee members come to think differently about their experiences. In such a situation, one’s views are often malleable, and one’s ability to reason impaired. Nevertheless, the specific contribution of philosophers is to bolster the rationality of the committee itself. Independent committee members evaluate the policy alternatives and the advice, and their decision breaks the chain of responsibility of the advisor for the causal results: A person who acts on reasons he has acquired from another’s act of expression acts on what he has come to believe and has judged to be a sufficient basis for action. The contribution to the genesis of his action made by the act of expression is, so to speak, superseded by the agents own judgment. (Scanlon, 1972, p. 212) What is at stake here is the allocation of authority to regulate provision of information and arguments in light of expected benefit or harm. It is difficult to defend the view that the philosopher-consultant should generally be entrusted with this authority. First, the ability of philosophers to forecast such consequences is clearly limited. Moreover, this power makes the committee vulnerable to manipulation by the philosopher. As part of a public practice, this authority of philosophers will, hence, tend to remove the demand for such services. Insofar as this creates worse deliberations in committees, we should be wary of such a requirement regulating the practice. In particular cases, then, philosophers should not adjust their advice in light of their perceptions of potential harms. However, this is not to say that philosophers should be prepared to take on any project, or that they must always hide their own views from the committee they serve. We now turn to consider some of these issues. Responsibilities of Taking on Projects Commissions may have illegitimate tasks and mandates that raise dire issues of complicity in clearly immoral acts. It is, indeed, always necessary for the consultant to consider “precisely how such bodies are constituted, what they are charged

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with doing, and whether these are reasonable things to attempt” (Momeyer, 1990, p. 406). Considered judgment is necessary and unavoidable if we do not wish to become accomplices to wrongdoing. However, we should discount some of the objections presented against joining the arenas of practical deliberation as consultants. Criticism may be of two kinds: either that the philosopher has nothing to contribute as a consultant, or that the role as consultant threatens the integrity of philosophers. Neither criticism renders the philosopher’s contribution irresponsible or irrelevant. First, some critics argue that philosophers have nothing to offer committees dealing with practical issues. I shall suggest that these criticisms are misplaced. Moral philosophy is sometimes said to ignore the complex relationships between individuals’ behavior and social institutions. Often a principal concern is with what might be called institutional architecture—the creation of institutional mechanisms designed to guard against and minimize the different sorts of abuse that are apt to disrupt any attempt to translate theory into practice in the complex, messy, and imperfect real world. (…) It is all part of the “art of the possible” for which lawyers are trained. I detect no comparable proclivity within the discipline of philosophy. (Weisbard, 1987, p. 781) Weisbard is correct in pointing out that institutional design is not a part of the philosophers’ training. However, political philosophy is typically carried out with these complexities in mind, insisting that individual ethics and issues of institutional justice must be treated as separate, though related subjects of reflection. Perhaps most interestingly, some critics object to the usefulness of philosophers because of their ideal perspective. The philosophers’ utopian society is unattainable from here, uninhabitable by normal people, and certainly out of reach for a committee with a constrained mandate. Some even go so far as to state that moral truth emerges from compromise and conflict: A more coherentist or pragmatic theory of truth with respect to public policy would see truth as emerging from the process in which conflicting interests and perceptions struggle for resolution. What this outcome will be cannot be known in advance; hence what should be done, what should count as truth, what public policy should be, cannot be determined in detachment, through abstract principle, or by solitary thinkers. On some such theory of truth as this, compromise of views, interests, even values, is not incompatible with the search for what ought to be and what is true. Compromise is essential. (…) Truth will not, in a democratic process, be determined by conformity to abstract principle. Rather, it will emerge from the process whereby contending forces (of both reason and self-interest) encounter one another. Standards of fairness in the representation of divergent interests must be met, but when

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they are, and the process works, whatever results are arrived at will be the correct ones. (Momeyer, 1990, p. 404) In response, I grant that much moral and political philosophy has focused on what the ideal person and society should be like—in part, of course, because of the strategic potential of ideals (Broad, 1916; McPherson, 1982, p. 76). However, philosophers have, historically, also been concerned with “non-ideal” topics: How to act under the constraints of aggressive war, rebellion, revolution, and civil disobedience. There are important and substantive moral issues belonging to non-ideal circumstances, where the philosophers’ training and contribution are relevant. Note, that this view of the relationship between moral theory and the discussions of committees does not commit us to the different and more problematic view of Momeyer on moral truth. Momeyer holds that an actual deliberative and bargaining process, under certain procedural constraints, is both necessary and sufficient, not only to identify, but also to constitute the correct outcome. The view I have presented takes no stand on any of these further claims. Second, does the role of a consultant threaten the integrity of philosophers? One important role of philosophy is clearly to provide a critical view of the status quo, for instance, by offering an ideal or criteria by which to identify and measure the flaws of present circumstances. Political committees, on the other hand, are bound. They are without the political possibilities of creating the best arrangements from scratch. They easily become remedial; moreover, they become agents of compromise and political manipulation. By serving as a consultant to committees, philosophers risk their integrity, both as individuals and as a group. Their responsibilities “make their independence and critical stance immediately suspect” (Wikler, 1982, p. 12). In response, we must agree that the philosopher-consultants clearly cannot maintain a completely detached or independent stand, insofar as they must accept the agenda of the committee. But, why is this loss to be grieved? First, it might be thought that the philosophical profession may have something at stake: One possible result of the increasing participation of philosophers in the public policy arena may be the emergence of adversary philosophers for hire. (…) I am not certain that this is a development that the discipline of philosophy, or the public, should welcome. (Weisbard, 1987, p. 785) Weisbard raises an important point, but we cannot assess the risks without a careful account of both the current public image of philosophers and the public assessment of philosopher-consultants. I submit, that defining clear expectations and responsibilities is one fruitful step to avoid conflating general philosophical studies with the activities of philosophy consultants, and to avoid conflating the responsibility of public intellectuals with the particular obligations an individual philosopher may legitimately take on as a consultant. Second, there is a real and present danger that philosophers lend legitimacy to a project as “a hired pen, wielding grand language for its theoretical and sanctifying power in service of

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the employer” (Wikler, 1982, p. 12). However, this risk is reduced insofar as the acknowledged role of the philosopher is not to offer legitimacy, but rather the more limited one of increasing the rationality of the committee. This risk is further reduced by exploring and expressing, clearly, the grounds and limits of loyalty of a philosopher-consultant toward the committee. Such a code of conduct should address the dilemmas that arise with philosophers who have contributed to documents they find seriously flawed. Generally, it seems that silence, on the philosophers’ part, is a reasonable expectation, as it would be for most professional consultants. The philosopher may have gained access to confidential information and insight in internal disagreements among members. This information may make it apparent to the philosopher that the results of the committee are not due to arguments and reasoned deliberation, but instead, to the wielding of extraneous power—political, economic, or personal. However, the philosopher has gained access to this information on an assumption of confidentiality. This shared understanding generally requires that the philosopher does not reveal such disagreement or the sources of disagreement. The philosopher should, thus, generally refrain from public criticism of the conclusions of such committees to diminish the threat and real danger of revealing confidential information. Moreover, as an “insider” to the committee, the philosopher is given an opportunity to express opinions in advance and has a chance to argue the case to the members of the committee entrusted with public and political power. What shall philosophers do if they find themselves strongly opposed to the conclusions drawn by the committee on philosophical grounds? The philosopher’s own integrity may appear to be at stake, and concern for one’s professional reputation would seem to require that the philosopher is permitted to indicate serious flaws in reasoning or to claim that the committee ignored crucial implications. A member of the committee could include a dissenting opinion. However, a consultant does not have such means available. I suggest that insofar as it is publicly known that the philosopher-consultant is required to keep confidences and maintain loyal opposition, the philosopher’s own silence on particular matters cannot be regarded as acquiescence in the arguments or the results. It falls on other philosophers—“outsiders” to the committee—to criticize the arguments and conclusions, taking due note of the fact that the consultant may not have sanctioned the conclusions. A further step for the philosopher-consultants may be to insist that their names be removed from any documents and public discussions pertaining to the committee. This measure will help prevent a philosopher’s name or title from being misinterpreted by the public as an endorsement or sanction of the results by the consultant or by the philosophical community at large.

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Not Remain Constrained by the Politically Feasible Should the philosopher-consultants only provide philosophical perspectives that are congruent with current policies and the agenda set before the committee? I suggest not. Some claim that radical proposals within a committee are counterproductive or that they are undemocratic. The role of the philosopher-consultant should not be that of the reformer. However, there seems to be little reason to require the consultant to refrain from radical arguments that challenge the presuppositions of the committee. First of all, the philosopher will be acutely aware that as a consultant one is there by invitation based upon trust (van Willigenburg, 1991, p. 35). A consultant will feel constrained by this relationship—which, of course, underscores the legitimate and important role of outsider critics and reformers. A consultant may offer radical criticism—but these comments must still, to have any effect, appeal to the judgments and views of committee members or of the public at large, with the intention of exploring and improving on such commitments (Kamm, 1990, p. 358; van Willigenburg, 1991, pp. 35–39). Shortterm political acceptability may be a prudent consideration for the committee itself when deciding on what to recommend, but there is little need for consultants to feel so constrained in the perspectives they offer as contributions to the deliberative process. Indeed, philosophers may provide creativity and foresight on the sensitive questions and issues that will come up later if current policies are left to unfold by themselves: The proposal may thus end up being prophetic. The underlying reality may be that the questions and queries which led to it are bound to come to historical surface sooner or later. Disruptive proposals (...) may be one of the best contributions philosophy can make to societal life. In the long run they are more valuable than less rigorous policy positions that politically may fit more smoothly into the current public discussion or the dominant moral culture of the health professions. In bioethics public policy, as elsewhere, philosophers should follow their own bests professional lights as long as they involve others in the fundamental issues. We should not let a dim political prospect chill what may be their most constructive and distinctive involvement in public policy. (Menzel, 1990, p. 423)

Point out Flaws of Moral Reasoning While the committee is deliberating, the philosopher has a clear responsibility for training the members to achieve a better reflective equilibrium among their moral judgments. The philosopher is expected to point out important implications of various arguments, for example, when it is clear that current public policy runs counter to the assumptions made by the committee. This task is often central if committee members are to achieve more consistent views. But, sometimes this task can create dilemmas.

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There is a risk in pointing out flaws: Less sound arguments may triumph, due to manipulation among the members, extraneous interests, or confusion (Brock, 1987, p. 789). Indeed, there is a danger that the commission may pay less attention to moral considerations when they become aware that there is philosophical disagreement (Weisbard, 1987, p. 781). I suggest that the conception of a philosopher as a coach helps address this issue. The aim is to increase the committee’s ability to reason and argue, and this concern may legitimately lead the philosopher to hold back some of the philosophical complexities—as is often done when teaching (Davis, 1991, p. 269). Thus, difficult cases arise when moral reasoning raises complex issues without yielding satisfactory resolutions. The role of educator does not require that the philosopher attempts to clarify all errors, particularly not if these errors are so subtle that the remarks are likely to confuse the committee even further (Kymlicka, 1993, p. 23). The aim of the commission is practical recommendations, not a philosophical treatise with maximal validity and consistency. It is, therefore, beyond the philosophers’ role, as educator, to identify and address such topics when they cannot expect the committee to gain increased coherence as a result. Philosophical complexities should not be introduced for their own sake, but rather only when there is a reasonable expectation of improved moral reasoning as a result. Not Always Seek Common Ground Disagreement within the committee is sometimes regarded as particularly troubling. In discussing the Warnock Committee on embryo research, Abram and Wolf note that: (...) a commission such as this one has only the power of persuasion. A group performing ethical analysis with no coercive powers, cannot be persuasive without internal agreement. Unlike a court or legislature, which is structured to have effect as long as a majority agrees, a commission requires agreement that is as close to unanimity as possible, to have any effect at all. Without such virtual unanimity, the commission members simply voice possible arguments; with it, the commission can persuade. The commission method thus forces the commissioners to find areas of common accord. (Abram & Wolf, 1984, p. 629; quoted in Benjamin, 1990, p. 377) Philosophical considerations often serve to identify points of agreement and pinpoint issues of disagreement so that misunderstandings and empirical issues can be resolved. However, the philosopher may also threaten the apparent agreement among committee members. Weisbard describes a situation in which the phrase “justice demands” was regarded as too simplistic a way to put complex arguments. As a result: “Unprepared to win for the wrong reasons, we were forced to concede defeat in defending what we considered the right ones.” (Weisbard, 1987, p. 784) However, we should note that even when apparent agreement is due to improper reasoning, it is not clear that the coach must arrest these flaws. The ability

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of the committee to reason is not always improved by identifying all flaws—particularly if flaws will simply be used strategically. Furthermore, often disagreement among committee members should not be regretted. Sometimes reflection reveals deep-seated disagreement among committee members, or among citizens at large, on central issues. For the philosopher to bring this disagreement out seems quite unobjectionable: Many such conflicts will emerge sooner or later, and committee discussions offer a better arena for reflection and resolution than the alternatives. Concerning the Warnock Committee, Benjamin notes that their responsibility toward Parliament required that they “speak with one voice on whatever recommendation was put forth. For each to go his or her separate way, issuing a series of individual opinions would be to admit failure of the collective project.” (Benjamin, 1990, p. 384) On some issues, failure may be appropriate: A committee may sometimes properly report that no compromise seems likely, and that the issue should, instead, be decided with concern for all sides, or by normal majoritarian political procedures. Moreover, the role of committees within a democracy generally does not seem to require that conflicts and disagreements among members of the committee be suppressed in a report—and it seems even less plausible to require the consultant to refrain from introducing and fostering reasoned disagreement among the committee members. It is often of great public and political importance to know that the recommendations of a committee, even when unanimous, are the result of compromise, rather than the result of general agreement. The philosopher’s role is sometimes to assist committee members in observing how compromise, among different opinions and views, may be the morally appropriate solution, given the need for a unanimous recommendation for political decision, but the responsibility may also be to “raise further questions about when, for example, one should seek or endorse compromise, and when a particular compromise would be worse than no policy at all, or place intolerable strains on integrity” (Benjamin, 1990, p. 387).

Conclusion I have suggested that philosophers can serve a valuable and legitimate role as consultants to committees. Such philosophers can be conceived of as coaches, furthering the committee’s ability to reason about the important practical issues at hand. The general role of a coach involves pointing out flaws in reasoning, teasing out implications and overarching principles. This includes pointing out important solutions and alternatives that are excluded by current politics or from the mandate of the committee. Insofar as the philosopher overlooks major flaws in the arguments being considered, or ignores alternative, important points of view, this must be regarded as a weakness in the services provided. As a coach, the philosopher’s role is, in part, to identify weak arguments and dubious assumptions, at least those that are of some consequence in the discussions. This task is consistent with, and indeed requires, that other philosophers serve as social critics.

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References Abram, M. B., & Wolf, S. (1984). Public involvement in medical ethics. New England Journal of Medicine, 310, 627–632. Ackerman, T. F. (1989). Moral problems, moral inquiry, and consultation in clinical ethics. In B. Hoffmaster, B. Freedman, & G. Fraser (Eds.), Clinical ethics: Theory and practice(pp. 141– 159). Clifton, NJ: Humana Press. Beauchamp, T. (1984). On eliminating the distinction between applied ethics and ethical theory. Monist, 67, 514–531. Benjamin, M. (1990, August). Philosophical integrity and policy development in bioethics. Journal of Medicine and Philosophy, 15, 375–390, Broad, C. D. (1916). On the function of false hypotheses in ethics. International Journal of Ethics, 26, 377–397. Brock, D. W. (1987, July). Truth or consequences: The role of philosophers in policy-making. Ethics, 97, 786–791. Camacho, L. (1993, December). Philosophical responsibilities in Central America. Paper presented at the meeting of the American Philosophical Association, Atlanta, GA. Caplan, A. L. (1989). Moral experts and moral expertise: Do either exist? In B. Hoffmaster, B. Freedman, & G. Fraser (Eds.), Clinical ethics: Theory and practice (pp. 59–87). Clifton, NJ: Humana Press. Clouser, K. D., & Gert, B. (1990). A critique of principlism. Journal of Medicine and Philosophy, 15(2), 219–236. Cohen, G. A, (1989). On the currency of egalitarian justice. Ethics, 99, 906–944. Crosthwaite, J. (1995). Moral expertise: A problem in the professional ethics of professional ethicists. Bioethics, 9(5), 361–379. Davis, M. (1991). On teaching cloistered virtue: The ethics of teaching students to avoid moral risks. Teaching Philosophy, 14(5), 259–276. Giske, R. (1993). The role of the coach before, during and after competitions, Oslo, Norway: Norwegian University for Sports and Physical Education. Harre, D. (1982). Trainingslehre. Berlin: Sportsverlag Berlin. Heinemann, K. (1983). Einführung in die Soziologie des Sports (2nd ed.). Schorndorf, Germany: Karl Hofmann. Hughes, E. C. (1963, Fall). Professions. Daedelus, 92, 655–668. Kamm, F. (1990). The philosopher as insider and outsider. Journal of Medicine and Philosophy, 15, 347–374. Kymlicka, W. (1993). Moral philosophy and public policy: The case of NRTs (New Reproductive Technologies). Bioethics, 7(1), 1–26. Maclean, A. (1993). The elimination of morality: Reflections on utilitarianism and bioethics. London, UK: Routledge. Maritain, J. (1949). Introduction. In UNESCO (Ed.) Human rights: Comments and interpretations. Report from a UNESCO Symposium (pp. 11–12). London, UK: Allan Wingate. McPherson, M. S. (1982). Imperfect democracy and the moral responsibilities of policy advisers. In D. Callahan & B. Jennings (Eds.), Ethics, the social sciences, and policy analysis (pp. 69–81). New York: Plenum. Menzel, P. T. (1990, August). Public philosophy: Distinction without authority. Journal of Medicine and Philosophy, 15, 411–424. Momeyer, R. W. (1990, August). Philosophers and the public policy process: Inside, outside, or nowhere at all? Journal of Medicine and Philosophy, 15, 391–410. Quine, W. V. O. (1960). Word and object. Cambridge, MA: MIT Press. Rawls, J. (1971). A theory of justice. Cambridge, MA: Harvard University Press. Richardson, H. (1990, Fall). Specifying norms as a way to resolve concrete ethical problems. Philosophy and Public Affairs, 19, 279–310.

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Rorty, R. (1982). Professionalized philosophy and transcendentalist culture. In R. Rorty (Ed.), Consequences of pragmatism: Essays 1972–1980 (pp. 60–71). Minneapolis, MN: University of Minnesota Press, Scanlon, T. M. (1972). A theory of freedom of expression. Philosophy and Public Affairs, 1(2), 204–226. Singer, P. (1972). The moral expert. Analysis, 32, 115–117. Thompson, D. F. (1983). Ascribing responsibility to advisers in government. Ethics, 93(3), 546–560. Weisbard, A. J. (1987, July). The role of philosophers in the public policy process: A view from the president’s commision. Ethics, 97, 776–785. Wikler, D. (1982, June). Ethicists, critics, and expertise. Hastings Center Report, 12–13. Williams, B. (1985). Ethics and the limits of philosophy, Cambridge, MA: Harvard University Press. Willigenburg, T. van. (1991). Inside the ethical expert. Kampen, The Netherlands: Kok Pharos.

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Chapter 10 Who Decides the Worth of an Arm and a Leg? Assessing the Monetary Value of Nonmonetary Damage Fenna H. Poletiek and Carel J. J. M. Stolker Cognitive Psychology and Meijers Institute of Legal Studies, Leiden University, The Netherlands [email protected] [email protected]

Nonpecuniary damage is the legal term for both some non-economic loss and the monetary compensation of this loss. The term sounds like a paradox. Indeed, it unifies, on the one hand, hard material value, and on the other, an emotion impossible to quantify: suffering. In spite of this philosophical argument, however, the paradox has to be solved in at least one practical context: the assignment of monetary compensation to victims harmed by a liable third person. The question is: How much has, and will, the victim suffer(ed) and, accordingly, how much money should they obtain to “repair” the damage? This judgment requires that grief be expressed in a monetary value. But, how can this translation of grief be made in monetary terms? Also, who is qualified to make this assessment? That is, who is taken as the expert in the present practice, and who should be considered so, in this legal procedure? The analysis of this problem proceeds in three parts: First, we question what the legal concept of “nonpecuniary damage” is, and what the implications for making this assessment are. We will show that the assessment consists of two different aspects, which we will call subjective and objective aspects. Second, we question who is the expert, and for which aspect of the assessment? In this section, we present some data comparing the assessment by courts and laypersons on the severity of injuries. Third, we present arguments for a standardization of this assessment, and discuss the debates on such a standardization, considering, from a sociological point of view, the role and interests of the actors involved. Our study focuses on the Dutch law and the situation in the Netherlands. However, the problem of translating victims’ suffering into a quantified amount of damage, to be paid by a liable party, exists in most Western societies. Consequently, our analysis may be generalized, to some extent, beyond the country’s frontiers.

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The Legal Philosophy of Nonpecuniary Damages The Article 6:106 of the New Dutch Civil Code (19921) reads: The victim has the right to fairly determined reparation of harm other than economic damage: a. if the person liable had the intention to inflict such non-economic harm; b. if the victim has suffered physical injury, injury in honor or reputation, or if this person has been otherwise afflicted.

However, this text reveals a few intentions the legislature had about nonpecuniary damages. Although nonpecuniary damages can be awarded in a large number of cases (mentioned above under b.), we focus on the cases in which the victim has suffered physical injury. First, it is meant as reparation of harm. In other words, these damages should compensate for something that is lost. This implies that the amount of damages, somehow, should be in accordance with the amount of what is lost. Second, the damages, being reparation of harm, are not intended to punish the person liable for the harm. This clearly contrasts with the idea of “punitive damages” which exists in some common law systems. However, the damages vary as a function of the degree of liability of the wrongdoer. As the act was less intentional, the damages decrease (Dutch Civil Code, Article 6:982). A third idea behind the regulation of nonpecuniary damages in the Dutch law is that, as a principle, they cannot be assigned to relatives of a victim if the event has led to the death of the victim. Indeed, since these damages are meant to compensate the victim, allowing them to “buy new pleasure” to replace the lost one, other persons than the victim cannot, in principle, use these damages to assuage the inflicted harm (Stolker, 1990). This implication, however, is highly debated (Lindenbergh, 1998). Indeed, occasionally, the harm might not inflict the victim himself, but the relatives. This is so when the victim dies or stays in coma. In the following, we will come back to this debate. Fourth, the judge, as Article 6:106 of the Dutch Civil Code3 reads, who has to determine the amount of nonpecuniary loss, is given no more concrete instructions than that they should determine this amount in a “fair” way. But, what is fair? To answer this question, we first deal with the question of who is qualified to determine the seriousness of injuries.

1 Nieuw Nederlands Burgerlijk Wetboek—New Netherlands Civil Code, translation in English and French by P. P. C. Haanappel & Ejan Mackaay, Kluwer Law and Taxation Publishers, Deventer/Boston 1990. 2 See footnote 1. 3 See footnote 1.

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Who Is Expert for Assessing Nonpecuniary Damages? The law states that the assessment should be equitable. Moreover, in Article 6:97 of the Dutch Civil Code,4 it grants the judge the freedom to “estimate these damages when no precise calculation can be made.” But, what considerations should play a role in this estimation? On the one hand, there is the suffering. The Dutch Supreme Court ruled in the famous “AIDS Judgment” (19925), a case in which a patient was infected with the HIV virus due to a medical error, that compensation of nonpecuniary damages should be related to the “kind, duration, and intensity of the pain, suffering, or loss of joy in life.” This judgment again reflects the concept that nonpecuniary damages aim at compensating for personal suffering. On the other hand, the legal practice is that courts base the assessment of the damages on the kind and intensity of the injury, rather than on the actual pain experienced by the individual victim, which can be two completely different assessments, as we will see below. To assess the “intensity” of an injury, courts apply a list of injuries, categorized with regard to their seriousness, in categories varying from mild to extremely severe. This “list” is constructed on the basis of case law; a compilation of hundreds of judgments on nonpecuniary damages from all Dutch courts, the so-called ANWB list (composed by the Dutch Motorists Association [ANWB]). In turn, this database of past amounts assigned has become the informal standard to courts for determining damages in future cases. How did this “list” derive? Before the “list” existed, courts decided in each case on the basis of their estimation of the victim’s suffering. From 1957 onward, decisions on nonpecuniary damages were systematically registered by the ANWB and, importantly, categorized and ranked according to injury. The result is a hierarchy of groups of injuries and corresponding monetary amounts, reflecting the average damages assigned in cases in which a particular injury was suffered. In sum, the seriousness of injuries, as estimated and inferred from past judgments, now predominantly determines the practice of the assessment of nonpecuniary damages by courts, rather than individual suffering aspects. Interestingly, those two factors (personal suffering and injury) can conflict. Indeed, focusing on the intensity of pain implies that the subjective individual experience is taken as the ground for the “loss” that should be compensated. We, therefore, will call the victim-related factor the “subjective aspect.” By contrast, taking the injury as the standard implies that the objective observable result of the event is to be compensated. Accordingly, the injury-related aspect will be called the “objective aspect.” Consider, as an example, two victims from different accidents, resulting with the same injury: an amputated leg. According to the courts’ actual practice, in which the injury is taken as the relevant factor, those two people should obtain the same amount of damages. The subjectively felt pain, however, may vary greatly between victims, depending on the unique indi4 5

See footnote 1. HR 8 July 1992, Nederlandse Jurisprudentie 1992, 714.

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vidual and the event. This uniqueness can derive from numerous circumstances, for example, relating to personal characteristics, such as age, sex, and profession, but also from the attitude of the actor regarding the event. The implication of this is that if their suffering is different, the amount of damages should be, too. Summarizing, the objective factor satisfies the fairness principle in justice that people with the same injury should be compensated equally. The subjective factor satisfies the adequacy principle that the damages should reflect, adequately, the actual amount of subjective lost joy. How do courts come to terms with this contradiction? In the argumentation preceding the final decision on the damages in court or in settlement, the subjective aspects of the suffering are often highly emphasized, especially by the victims’ lawyers. Particular individual circumstances and feelings are argued to interact and add up to the injury itself, increasing the victim’s suffering. However, research has shown that judges do not allow their judgments to be influenced much by these arguments. They generally adhere to the “list.” It has been shown in a statistical analysis of court decisions (Ferwerda, 1987; Vollbehr, 1989) that the final decision on the amount of damages is hardly influenced by subjective circumstances of the victim. The objective factor “seriousness of the injury” almost fully determines the variance of the judgments. The fact that the estimations of damages by courts barely take into account subjective particularities of the suffering may have two reasons: First, some of these circumstances are very difficult to assess because they require the valuation of some very personal feelings. Second, what are the reasonable subjective circumstances to take into account? In the literature, many factors have been advanced (Stolker & Poletiek, 1998), among which are income and social position of the victim. But, authors disagree as to which individual characteristics are relevant for assessing the damages (Lindenbergh, 1998). The third reason may be that courts just do not know how these characteristics should affect their judgment. For example, is a high income a reason for increasing or rather lowering the damages? Should it be assumed that rich persons suffer less or more than poor persons? The objective factor, the severity of the injury, has to be assessed in a different way than the subjective factor. The injury itself can often be determined by a diagnosis from a medical expert. However, the problem is to determine its “intensity” (seriousness) compared to other injuries. Vollbehr (1989), Pieters and van Busschbach (1989), and Stolker and Poletiek (1998) point at the arbitrary character of the “seriousness categorization” of the injuries on the ANWB list. This database reflects what courts consider about the seriousness of injuries, both relatively (one injury as compared to the others) and absolutely (each injury is supposed to correspond to a certain amount of loss in the joy of life, monetarily expressed). This raises the question as to who is the expert in assessing the relative and absolute severity of health damages. We consider three possibilities: first, the court. This is the point of view taken implicitly by our legal system, because this is the practice. The courts base their decisions on the “list,” which in turn is a compilation of court judgments. However, apart from making an accurate esti-

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mation of the damages, courts might have other concerns. For example, courts may tend to keep the seriousness low in order to avoid case laws with huge monetary amounts on the basis of which new victims might base new claims. Also, their estimations on the seriousness of injuries might be affected by factors, such as social status, which is generally above average for judges. Notice, that these considerations only apply to non-jury systems. Second, the victims themselves might be considered as the expert in determining how serious the injury is, absolutely as well as relatively, in comparison to other injuries. However, the victims are influenced by other subjective factors, which might bias their estimation. For example, the very fact that the victims can claim monetary compensation might bias their perception of the seriousness of the injury. The third possible expert is the possible victim, being the civilian to whom this legislation applies. We believe that they are the experts on whose judgment the estimation of the seriousness of injuries should be based, in order to be most in accordance with the legislation. Indeed, possible victims are expected to be least prone to maximize or minimize the estimated seriousness of injuries, for strategic reasons. Thus, the standard on which the court bases its estimation of seriousness of injuries should reflect the feelings of “the person on the street” (being the possible victim) about relative and absolute seriousness of injuries. In the study we present below, we further investigated this point of view by comparing the courts’ (ANWB list) and civilians’ estimations on the seriousness of their injuries. Such a test of the “list” has never been performed, although differences in the estimations courts and people use might have serious financial implications for victims, depending on whose expertise is used as a basis.

Comparing the Courts’ Estimations With Laypersons’ Estimations The problem of the assessment of the seriousness of injuries can be formulated in psychological terms, such as how to measure utilities of health states. In the field of medical decision making, this is an elaborate research program. Indeed, cost effectiveness analyses of medical interventions require that the patients’ experienced health states be quantified, in order to compare the costs of interventions with their benefits in terms of experienced quality of life (Bakker & van der Linden, 1995). The methods applied to measure utilities of health states can also be used in the context of the legal assessment of nonpecuniary damages. We will first investigate the relative utilities of injuries (ranking) by laypersons, which can be directly compared with the courts’ standard. Next, we estimate the absolute utilities of the injuries. These utilities can be compared with the actual average amounts of nonpecuniary damages assigned by courts in the past, as they figure in the standard “list.” We also measured the utilities of a number of events for which no nonpecuniary damages can legally be claimed. These are the cases in

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which a relative (e.g., child, partner) has died due to some event for which a third person is liable (Article 6:108 of the Dutch Civil Code6) and cases in which the victim is in permanent coma. The latter cases are not explicitly excluded from the right of nonpecuniary damages by the law, but they are generally interpreted to be so by legal experts (Stolker, 1990). Since these cases (death of relative, permanent coma of victim) are the topic of a lively public discussion, we investigated them in our study.

The Ranking of Injuries Ninety-one persons participated in this study on a voluntary basis. The participants completed a questionnaire with 19 descriptions of injuries. The injuries were a selection of those mentioned in the ANWB list, plus 3. These are “the death of one’s child,” the “death of one’s partner,” and “being in permanent coma.” Participants were requested to rate the impact these injuries would have on their quality of life, on a scale varying from 0 (no influence on my quality of

6

See footnote 1.

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life) to 9 (my quality of life would be as much affected as by death). The rating scores were analyzed by means of the Thurstone Method. With this method, not only the ranking of the injuries of all participants can be calculated, but also the “distances” between the injuries on the criterion “influence on quality of life” can be inferred. This is obtained by calculating a z-score for each injury. This z-score becomes negative when severe, and positive when not. In Table 1, the ranking of the injuries by participants and the corresponding Thurstone Scores are displayed. The standard “list” is represented as a ranking with discrete categories. The injuries belonging to one category share the same position in the ranking. The ranking globally matches the courts’ ranking. There are some differences, however. In order to compare the continuous participants’ ranking with the courts’ categorization, a difference between the two “lists” was defined as significant when two injuries, ranked in a certain order by participants, were inversely assigned to two courts’ categories. First, participants rate loss of taste to be less severe than a severe whiplash, the courts hold the reverse. Another difference exists with regard to a “scar in the face.” According to the courts, this should cause less suffering than the amputation of the middle finger. However, according to the participants, the inverse is true. With regard to loss of taste and smell, there is also disagreement between the courts and the respondents. These two injuries are estimated as less painful than a large scar on the face, a light or severe whiplash, and one-sided deafness, whereas the courts put loss of taste or smell in a more severe category than these. Finally, it can be seen that the three events not “repairable” by damages according to the law, are considered most serious by laypeople, placing them at the bottom of the ranking in Table 2. Loosing one’s partner, one’s child, and being in permanent coma are felt as the most painful events that can happen. How can these differences be explained? We suggest some tentative explanations. First, whiplashes can affect victims in many ways. They can cause various somatic as well as psychological effects, which are difficult to diagnose. In addition, this injury has obtained much attention from the media, precisely because of its poorly explained and sometimes dramatic effects on victims. Courts might estimate the impact of such “soft” injuries lower than people do. Inversely, loss of taste or smell are injuries that are possibly not well imaginable by people because they are not very frequent, and, therefore, are estimated low. Courts, however, have been faced more frequently with these injuries and estimate their seriousness higher on the basis of life reports from victims. Scars that are visible do not affect one’s physical health, but possibly one’s identity and self-image. Apparently, such an injury is more important for people than courts believe. The same argument might apply to whiplashes: Courts might think of these psychological effects as fuzzy and, therefore, underestimate their seriousness. With regard to the ratings of the events, which are not compensable by damages, we return to them below. Apart from the ranking of injuries, we compared the absolute monetary amounts associated to these injuries by both groups. For this, we used the “Willingness-to-Pay” (WTP) Method. With this method, the psychological value of a

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“good” or a “loss” can be measured. It is frequently used in medical decision making for measuring the utilities of health states (O’Brien & Viramontes, 1994). It proceeds as follows: People are asked how much they would be willing to pay to be entirely cured from injury or illness. Their answer expresses the estimated amount of suffering in monetary terms. In the present study, we asked the respondents to give their WTP value for two injuries only: the one they rated as the least severe and the one they rated as the most severe. The mean least severe WTP score and the mean most severe WTP score were taken as the extreme values of the utilities accorded to the average least and most severe injuries. The WTP amounts for the remaining injuries were obtained by interpolation. The intervals between the injuries were calculated on the basis of the Thurstone scores obtained in the ranking. Thus, the distances between the injuries, calculated with the Thurstone scores, were reflected in the estimated WTP scores. These scores are displayed in Table 2, together with the mean damages awarded by the courts for each category of injuries. The amounts in Dutch guilders, were converted to Euro.

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As can be seen in Table 2, the average WTP scores resulting from this interpolation are higher than the damages. The differences between the two “lists” indicate that courts associate less compensation with the injuries than civilians would estimate to be necessary, given their seriousness. The differences especially increase when the injuries are more severe. In the highest category, courts assign an amount of 50.000 Euro or higher. However, this amount is only about half the amount people assign on average to the most severe injuries. A few remarks must be made with regard to the WTP Method. First, the responses are sensitive to income position. Indeed, people with a higher income position may be willing (because capable) to spend more money for cure than people with a lower income position, for the same suffering. In our sample, different income positions are represented, and the WTP scores are averaged. Therefore, we chose to report the raw WTP scores. A second problem is that quite a few participants (40) gave no specific amount as a response, but answered “millions” or “everything I have” when asked to rate the “most severe injury or event.” Those responses were excluded from the calculations in Table 2. We return to this in the next section. The main conclusions from the present comparison of courts’ with laypeople’s opinions on injuries are firstly that both rankings and absolute estimations of the seriousness of injuries differ on a number of items. Thus, considering civilian rather than courts as the experts makes a difference. The values of the severity of injuries expressed monetarily are, on average, almost twice as high as the average damages from courts. Second, events not compensable by damages, such as the loss of a partner or a child and being in a permanent coma, belong to the most painful experiences people can imagine: They correspond to what people conceive as the greatest loss of quality of life. This reveals the most striking incompatibility between the courts attitude, on the one hand, and layperson’s attitude, on the other, toward the seriousness of injuries. We discuss this difference more in detail below. Although courts do not even consider compensation for pain caused by damages to relatives, this pain is the most severe people can imagine. The law text on nonpecuniary damages assumes that the victim of the event, for which a third person is legally liable, is the one that should be compensated for the pain felt, so that they can “buy” back the lost joy of life. Since a dead person cannot benefit in such a manner from compensation, those victims are excluded from the right to damages, as follows in Article 6:108 of the Dutch Civil Code.7 In the same line of argument, it has been proposed that people in permanent coma (or their relatives) should not be compensated either (Stolker, 1990). However, our study shows that the suffering caused to a relative by the death or coma of their partner or child, is one of the most severe ones. The suffering being so intense, it seems reasonable to compensate it somehow. Another argument in favor of damages for surviving relatives is the Supreme Court’s AIDS judgment8 on nonpecuniary 7 8

See footnote 1. See footnote 5.

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damages. It rules that the suffering, its intensity, and duration are the entities to be compensated. In this statement, the court emphasizes that the suffering, rather than the victim as a person, should be indemnified. In sum, in line with the adequacy principle, according to which the amount of pain inflicted is what should be compensated, it is arguable that relatives, if they suffer the pain ensuing from the event having caused the death or coma of the victim, should be entitled to obtain some damages. This is in contrast with the adequacy principle underlying the law. Recently, however, in a so-called “nervous shock case,” the Dutch Supreme Court authorized the recovery of both pecuniary and nonpecuniary damages by a close relative of a victim of a tort in certain situations.9 The claimant relative must either observe the tort or be confronted immediately thereafter with the suffering or death of the close relative. In addition, a serious mental injury (the court uses the words “recognized psychiatric damage”) on the part of the observer claimant is a prerequisite and, therefore, the court in the case dismissed the claim as far as “only” affective damage (bereavement damages—misery, grief, sorrow) was concerned. Compensating mere affective damage would, indeed, be in conflict with the general principle underlying the law on nonpecuniary damages (Levine & Stolker, 2001). A final remark must be made with regard to these cases. We observed that it was particularly difficult for people to quantify suffering when the suffering was extremely severe. This was expressed in the answers to the WTP question with regard to the death of a partner or child. To our surprise, many respondents gave unlimited answers, such as: “everything I have.” Damages are more difficult to express monetarily as the loss of joy of life is more extreme. Allowing for compensation in these cases again raises the problem: How much should this be? The full discussion of this problem is beyond the scope of this study. But, a possible solution might be to fix a symbolic amount for these cases, meeting the need for some recognition of the inflicted pain without trying to fully compensate it materially.

Standardized Assessment: What Are the Advantages and for Whom? Resuming the previous arguments and findings, we propose that the assessment of nonpecuniary damages is the combination of two aspects. First, an objective aspect on the severity of the injury and, second, a subjective aspect which is the actual individual suffering. These aspects are to be assessed and combined, resulting in an amount of compensation. Although this assessment has, in the past, been fully assigned to the competence of the courts, we have argued that the assessment of the objective part should be based on the opinion of civilians. 9

Hoge Raad 22 February 2002, Rechtspraak van de Week 2002, 48.

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We showed that transferring this expert role from the court to the civilians makes a reasonable difference. The present perspective on the assessment of nonpecuniary damages and the expertise question, furthermore, raises the question as to how this judgment process might be carried out in practice. The two contrasting answers to this question are, first, a standardized procedure and, second, individual judgments of each case. The second method is the current practice in the Netherlands. The severity of the injury, as well as the individual suffering, are weighted and estimated in each individual case by the court and combined to one final monetary amount. Interestingly, in the past, a few attempts were carried out to allow the assessment of nonpecuniary damages to be defined by some kind of standardized procedure. For example, in 1984, the Dutch Association of Insurers proposed a “formula” for calculating the damages. It is a very simple algorithm calculating the damages on the basis of the duration of therapy and recovery, the extent to which the person is disabled (which are rather injury-related “objective” factors, as we called them), and the victim’s age (which is victim-related and, therefore, subjective). All these factors were quite easy to assess and were actually assessed by the court. The formula, however, has hardly been applied in practice. The algorithm was considered to be too simple and the amounts it generated too low and quite arbitrary. In sum, it was seen as equally arbitrary as just using the “list.” However, surprisingly, the criticism that this standardized procedure received was not directed at the parameters of the formula, but primarily at the very fact of standardizing the assessment. The criticism came from legal experts, especially lawyers, attacking the procedure on the grounds of prohibiting proper allowance for numerous subjective circumstances of the individual victim. In fact, it is in the lawyer’s interest to leave some untransparency regarding the damages. This allows the lawyers, within the margins of this opacity, to plead for maximization of the damages, on the basis of the unique situation and characteristics of their client and the situation. Insurers, however, are interested in predictability. Indeed, they are almost always the party who actually awards the compensation. In order to calculate their premiums, they are required to perform accurate cost predictions. This is obviously more simplified when the parameters of the decision procedure are known, bearing in mind that it was the insurers who first proposed the “formula.” Finally, what are the consequences of standardization for the victims? The law exists as a regulation for the victims’ right to fair compensation. On the one hand, victims, as a group, benefit from a transparent standardized procedure, where standardization increases fairness. On the other hand, it has been suggested that this procedure can also be applied against the individual interests of victims. Their unique circumstances are, then, presumably dismissed. However, there are also a few arguments in favor of a standardized approach for the individual. Firstly, as we mentioned above, courts in practice seldom take into account subjective factors, but base their judgment mainly on the severity of the injury, apparently in spite of the subject-based pleas from lawyers. Thus, a stan-

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dardized procedure, in which a fixed weight would be given to objective and subjective factors, might provide an improved, rather than a detrimental guarantee that subjective aspects affecting the experienced pain are taken into account. Secondly, however, subjective circumstances can also be applied against the individuals’ interest. Consider a right-handed illustrator having their left-hand paralyzed. Since this injury does not impede their professional work, the damages might be lowered precisely due to their unique characteristics. In a procedure as the one sketched above, the individual and subjectively felt pain, on the one hand, and the objective severity of the injury, on the other, can be balanced similarly for all victims, allowing acceptable subjective elements to perform a role. Another advantage of leaving the assessment of emotional damages to an “expert procedure” is that it is intelligible and transparent to individuals, increasing its acceptability (van den Bos, Lind, & Wilke, 2001). In conclusion, standardizing the assessment of nonpecuniary damages might be a reasonable way to translate suffering into monetary compensation. In such a procedure the relative weight of the objective and subjective assessment, can be calculated. However, expert roles should be adequately attributed, as we argued. Expertise for estimating the subjective factors should be provided by the victim, and expertise for estimating the severity of the injury should be produced by the possible victims, who actually are all civilian concerned by the legal system. In our view, such a model allows for the difficult task of assessing nonpecuniary damages to be performed in accordance with the intentions of the legislation.

Authors’ Note We thank Mark van Oostrum, Richard Tijink and Willem van der Kloot for their assistance in carrying out the empirical study and analyzing the data.

References Bakker, C., & van der Linden, S. (1995). Health related utility measurement: An introduction. The Journal of Rheumatology, 22, 1197–1199. Ferwerda, M. P. (1987). Statistische analyse van smartegelduitspraken [Statistical analysis of nonpecuniary damages judgments]. Verkeersrecht, 5, 122–124. Levine, D. I., & Stolker, C. J. J. M. (2001). Compensating for psychiatric damage after disasters; A plea for a multifactor approach. In E. R. Muller & C. J. J. M. Stolker (Eds.), Ramp en recht (pp. 127–148). The Hague: Boom Juridische Uitgevers. Lindenbergh, S. D. (1998). Smartengeld [Nonpecuniary damages]. Deventer, The Netherlands: Kluwer. Stolker, C. J. J. M. (1990). The unconscious plaintiff: Consciousness as a prerequisite for compensation of non-pecuniary loss. The International and Comparative Law Quarterly, 39, 82–100. Stolker, C. J. J. M., & Poletiek, F. H. (1998). Smartengeld—Wat zijn we eigenlijk aan het doen? Naar een juridische en psychologische evaluatie [Toward a legal and psychological evaluation of nonpecuniary damages]. In F. Stadermann et al. (Ed.), Bewijs en letselschade (pp. 71–86). Lelystad, The Netherlands: Koninklijke Vermande.

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O’Brien, B., & Viramontes, J. L. (1994). Willingness to pay: A valid and reliable measure of health state preference? Medical Decision Making, 14, 289–297. Pieters, J. A., & Busschbach, J. J. van. (1989). Een empirisch onderzoek naar de vaststelling van smartengeld in geval van letsel [An empirical investigation into the assessment of damages in case of injury]. Verkeersrecht, 6, 141–146. van den Bos, K., Lind, E. A., & Wilke, H. A. M. (2001). The psychology of procedural and distributive justice viewed from the perspective of fairness heuristic theory. In R. Cropanzano (Ed.), Justice in the workplace: From theory to practice (pp. 49–66). Mahwah, NJ: Erlbaum. Vollbehr, W. (1989). Smartegeld en willekeur [Nonpecuniary damages and arbitrariness]. Verkeersrecht, 6, 146–150.

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Chapter 11 The Expert in a Historical Context: The Case of Venetian Politics

Achim Landwehr Faculty of Philosophy, Heinrich Heine University of Düsseldorf, Germany [email protected]

In his book on the Mediterranean Sea as a historical area, the French historian Fernand Braudel included a chapter on Venice up to the end of the Republic in 1797. He was obviously fascinated by the “most serene republic” (Serenissima). Among the many aspects of Venetian politics, he mentioned the cinque savii alla mercanzia, literally the five wise men in matters of trade. Interestingly, however, Braudel did not use this literal translation, but rather employed the more loosely translated phrase five experts in matters of trade (Braudel, 1987, p. 169). This raises an important historical question. Braudel intentionally designated these men as experts. But, is it possible to speak of “experts” in the early modern period? Also, to ask if there were experts from approximately 1500 onward at all is made more complicated by the difficulty of defining experts in general. To prevent disappointment, I have to admit that I will not be able to give satisfactory answers to all of these questions. Rather, I will concentrate, in this article, on the problem of experts in the early modern period with reference to one special institution, the syndics of the Venetian mainland (Sindici in Terraferma). First, I will discuss the problem of early modern experts on a larger scale before turning to commissioners as a form of early modern experts and their role as power/ knowledge forms. The results of this discussion will lead into a case study of the syndics of the Venetian mainland as early modern experts.

What Is an Expert? To answer the question “what is an expert?” appears, at first glance, not to be the most difficult task. An expert is a person who is skilled or one who possesses specialized knowledge (Brint, 1994; Savage, 1996). An illustration of this usage comes from an announcement posted on the internet for the Max Planck Society’s Schloeßmann Seminar on “The Expert in Modern Societies”: The Max Planck Society promotes interdisciplinary research in selected areas of the sciences. For this purpose, a 3-day seminar will be organized every year 215

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in memory of Dr. Ernst-Rudolf Schloeßmann (...). Leading experts in the field are invited to present their views, and young scientists are encouraged to develop research proposals and present them as part of the seminar.1 Thus, the topic of this particular seminar leads to the, in a sense, self-referential situation in which experts are gathered to discuss the role of experts—a research project in itself. But, apart from this broad definition of the expert, etymologically deriving from the Latin adjective expertus, meaning to be skilled in something, it is hardly possible to give further, generally accepted specifications. The prevailing definitions of the expert are far from being consistent. As overviews of several discussions in the social sciences show, experts are either defined as being skilled in specialized fields of knowledge, as having an overall picture of a subject area, or as being generalists (Kleimann, 1996, p. 185f.). Historians, however, are in the habit of posing every question historically and of historicizing every concept. From this perspective the question “what is an expert?” becomes even more intricate—but, as a consequence, all the more interesting. Seen from the historical point of view, the expert in today’s sense is a quite young phenomenon, appearing linguistically on the scene about 1800. Before the 19th century, the word expert is difficult, if not impossible to trace. The Oxford English Dictionary records the first entry of expert as a person whose special knowledge causes them to be regarded as an authority in the year 1825 (Simpson, 1989, p. 566). In the German language, the word Experte also appears only in the 19th century (Brockhaus, 1968, p. 826). In Zedler’s encyclopedia, the most important work of that type in the German-speaking countries before 1800, there is no entry for the term Experte at all (Zedler, 1734). Linguistically, the concept is rarely found throughout the early modern period prior to 1800, let alone in medieval times. Hence, a justification seems to be necessary: How is it possible to talk about experts in the early modern period if the designation did not exist? Does the absence of the term mean that there were no experts? I suggest following Braudel in this respect by not taking terms such as savii too literally. To illuminate how the concept developed and how this group came to be distinguished by the designation expert, it is necessary to study those who had specialized knowledge and were mentioned under different designations in the historical sources. Then, the term commissioner suggests itself immediately.

Commissioners The importance of commissioners, in the early modern period, can hardly be overstated. The period between the late 15th and the early 19th century is—among many other aspects—characterized by the growth of administrations in the 1 URL: http://www.communication.mpg.de/inhalt.htm.

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European countries. Because the embryonic administrations of this period were unable to execute all their organizational charges, commissioners were appointed in many fields of the early modern state. Jean Bodin, the important French theorist of the sovereignty of the early modern state, described this institution theoretically as early as 1583. He gave a definition of the commissioner in his Les six livres de la République: Le commissaire est la personne publique qui a charge extraordinaire limitée par simple commission [the commissioner is an official who has an extraordinary charge and who is limited only by his commission]. (Bodin, 1583, p. 372) According to his definition, there are two major differences between a commissioner and a common official. The commissioner has an extraordinary instruction and is not bound by any laws; he is responsible only to the sovereign. By contrast, a common official has to follow the rules prescribed by the position that bind them to the laws (Bodin, 1583, pp. 372–392). This distinction is crucial, because it signifies, for the first time, the commissioner as a separate institution—an institution that has to be filled with persons who possess the resources of knowledge, experience, and authority to accomplish the relevant tasks. In England, the term commissioner appeared in the 15th century in reference to officials charged by Royal Commission or Warrant with specified duties (Simpson, 1989, p. 558). In the same sense, the designation commissaire appeared in France as early as the mid-l4th century (Dictionnaire, 1898, p. 134), while the German Kommissar or Commissarius raised its head in the 1420s (Deutsches Rechtswörterbuch, 1974–1983, p. 1186f.; Moraw, 1983, p. 52). There are famous historical examples of commissioners and commissions. A very early one is the Domesday Book, commissioned by William the Conqueror as a survey of wealth, population, and cultivation in England following the Norman conquest (Galbraith, 1974; Holt, 1987). Commissions also played an important role during the Inquisition when groups and persons were investigated who were thought to adhere to the wrong religion (Bennassar, 1979; Bethencourt, 1995), and the Poor Law Commission in the United Kingdom in the early 19th century, which developed the early British Social Welfare Legislation (Humphreys, 1995; Rose, 1971). But, the everyday work of a commissioner in early modern Europe between the 16th and the 18th century was not as spectacular as these examples might indicate. As the German historian Otto Hintze (1981) showed in his essay on the Commissarius, the roots of this type of expert mainly laid in the fields of warfare and finance (Hoke, 1978). In Prussia and France, the commissioners had special functions in the supply of armies and in the administration of conquered areas. The Prussian Commissioner of War (Kriegskommissarius) was responsible for organizational duties within the army, while the French legal officials of the army (intendants de justice ou d’armée) received personal closed letters (lettres closes) from the king, which described their wide-ranging military and civil competences (Fischer & Lundgreen, 1975, pp. 499–509; Hintze, 1981, p. 78f., p. 84). It was typical for these and for other commissioners of that period to be respon-

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sible only to their sovereign. Apart from these military officials, there were also the officials responsible for petitions (maîtres de requêtes) in France, commissioners who were sent to the provinces occasionally as the eyes and ears of the king. They controlled the local officials, protocolled complaints from the subjects, and made reports to the government (Mousnier, 1970). But, is it possible to describe these commissioners as experts? Perhaps not in the modern sense of the word. These commissioners were educated (if they had an academic education at all) as generalists in broadly defined fields of knowledge and with almost no specialization. But, the practice of their work more or less forced them to become experts. Early modern states (Blänkner, 1992; Reinhard, 1996, 1999) were faced with a rising complexity and had to react with increasing differentiation (Luhmann, 1997, Vol. 2, pp. 595-618). More and more tasks had to be taken over by these states and, for that reason, personnel had to be recruited that was able to specialize in the relevant fields—that was able to become experts (Fischer & Lundgreen, 1975). Therefore, the early modern period is of special interest for the question of defining the expert. It is—as in many other areas—a period of transition from medieval to modern times, and has been described as a “pattern book of the modern age” (Schulze, 1993, p. 4). Because of changing demands, generalists had to become specialists in certain spheres. In the struggle for power, the European states were especially in need of military and economic expertise: When it was clear that a strong economy meant everything in the international competition for power, one might have concluded that principles of science and technology would have to be applied to practical fields hitherto merely guided by tradition; that the Enlightenment necessary for this development might be achieved by education; that education might be the only promising means for a latecoming nation if it wanted to imitate the forerunner. These circumstances gave birth to (...) the fonctionnaire, the technical expert who never belonged exclusively to the public service but gradually began to play a significant role in private enterprise. This kind of technical personnel is functionally defined by its expert knowledge which it usually gets by education, at least in the case of France and Prussia. (Fischer & Lundgreen, 1975, p. 545f.) In 1727, Prussia established the first Chairs for Cameral Science (Kameralistik) in universities, to transmit specialized knowledge in economics, statistics, and technology (Unruh, 1983). Of greater importance were the learned societies outside the universities, such as the French Academy of Science, which was established in 1666. This event transformed a private gathering of scientists into a royal institution of regularly employed and salaried scientists. The interest of the French monarchy was (…) to have an advisory council of scientific experts; to draw on their knowledge and research in order to improve navigation, warfare, architecture, engineering; to have the economic policy assisted by systematic application of sci-

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ence to industry and by diffusion of technological knowledge (Fischer & Lundgreen, 1975). This development can also be illustrated by the example of the Venetian administration. Even a cursory look at the structure of the Venetian Constitution reveals its enormous complexity (Archivio di Stato di Venezia, 1994; Maranini, 1974). Dozens of offices were responsible for different tasks. Every time a new problem arose, a new institution was set up to address it. The result was a system of overlapping responsibilities intended to ensure that every institution would be controlled by another one. Kretschmayr (1920, p. 78) described this as a system of mistrust, but it is also the result of a permanent process of differentiation.

Commissioners as Power/Knowledge Forms If we accept the proposition that commissioners were an important type of expert in the early modern state, the question remains how this perception can be examined empirically: Is it possible to trace the development of the early modern expert up to his “linguistic birth,” at approximately 1800? Traditionally, historical research has concentrated on the political and administrative functions of commissioners and/or on their social and economic position. These aspects are undoubtedly important and cannot be excluded. However, I would like to make a case for a research perspective that focuses on commissions as forms of power and as producers of knowledge and truth. To understand the processes, by which control was established over people, it is also necessary to study the production of the respective discourses. Central questions, thus, emerge: How were discourses produced, how were they established as truth, and how were they bound to certain institutions and mechanisms of power?2 Discourses develop within a social context and are characterized by the involvement of institutions of power. They are produced in a permanent social and political struggle. If one of the involved institutions is able to dominate the discussion, to establish its significations in the discursive process, its version of the truth prevails (Bourdieu, 1986/87, p. 847; Dinges, 1994; Frank, 1988; Poster, 1997, pp. 134–152). Thus, it is important to carry the analysis of discourses beyond the analysis of changes in word meaning, to the issues of how, by whom, and for what ends these changes were produced. The study of commissions offers the opportunity to study discursive processes from a historical perspective. Quite generally, commissions go through four phases (Ashforth, 1990):

2 In the preface to the German edition of the first volume of The history of sexuality, Foucault (1992) wrote: “It is the problem that dominated almost all of my books: how was the production of discourses in the societies of the Occident connected with different mechanisms and institutions of power and how were the discourses (at least for a certain period of time) charged with a value of truth.” (p. 8; translated by A.L.)

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(1) The first phase of a commission is always marked by a problem, or a question, that can be named. With the establishment of a commission a discursive process begins. (2) The second, investigative phase is highly dependent on the particular task set before the commission. In the most general sense, the commission addresses itself to a continuing process of communication with “the society” to find out more, or at least something, about “the problem.” (3) In the third, persuasive phase, usually a lot of ink is spilled with the production of a commission report. The purpose of the report is to persuade the government to take a particular course of action. (4) In the fourth and final phase, the historical phase, the commission report has ceased to be an active instrument of policymaking. Instead, the report becomes part of history and enters the dialogue with historians; thus, the discourse proceeds. From this theoretical perspective for the analysis of commissions, societal problems are solved through the collective action of experts charged by the state. Commissions are the mediators between “the state” and “society”; they enter dialogues with both of them; they listen to society and speak to the state. The result of this activity is the report that produces knowledge and creates truth. (It is no accident that the name of one of the best known commissions of our day is the Commission of Truth and Reconciliation, South Africa.) The products of these numerous quests are stored in the archives and the memory banks of the state, whence they can be drawn to write history.

The Syndics of the Venetian Mainland: Sindici in Terraferma In the archives all over Europe, there are innumerable sources referring to the work of commissioners of the early modern period. The particular case that I have taken up is that of the syndics of the Italian states, as mentioned in Jean Bodin’s Les six livres de la République of 1583. This reference testifies that the syndics were an important and well-known form of commission in early modern Europe. Since medieval times the syndics (Sindici or Sindacatori), as an institution, had been widely used by the Italian cities (Crescenzi, 1981). Their function was to control the heads of an administration after they completed their term of office. To serve this function, Genoa had the Supremi Sindacatori (Ferrante, 1995), Florence the Soprassindaci (Masi, 1930), Naples the syndicatus (Rovito, 1981), and Sicily and Piedmont the Sindacatori (Balani, 1981; Sciuti Russi, 1981). Bodin especially referred to the cases of the Republics of Genoa and Venice. One of the many institutions the Venetian administrative system produced was the syndics who were charged as commissioners every five years to investigate irregularities and abuses of the local administration (Bodin, 1583, p. 380; Dudan, 1935). These Venetian commissioners were, in fact, dispatched regularly and were occupied with almost every problem of the organization of an early modern state. They represented the attempt to govern the Terraferma,

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the extensive Venetian territory on the Italian mainland. Among others, the Terraferma comprised of the cities of Udine, Padova, Vicenza, Verona, Brescia, and Bergamo. The commissions that were dispatched, whenever certain problems arose in the Terraferma, consisted of patricians of the Venetian society. The possible reasons for sending out the syndics of the Venetian mainland included, for instance, the regulation of rivers, the building of roads and bridges, the investigation into social conflicts, the examination of complaints about the local administration, military matters, appeals in legal cases, or the organization of defense reactions to the plague. But, most of these commissions dealt with economic and financial questions, with peasants who occupied land, with difficulties of levying taxes, or with the increase of prices (Borelli, Lanaro, & Vecchiato, 1982; Cozzi, 1982, pp. 174–216; Cozzi, Knapton, & Scarabello, 1992, pp. 465–470; Tagliaferri, 1981a; Varanini, 1992). Corresponding to their different charges, they appeared under several designations, among them syndics (Sindici), inquisitors (Inquisitori), inspectors (Provveditori), judges (Auditori Nuovi) (Lopez, 1980), or combinations of these (Knapton, 1988). Early modern discussions emphasize that finances are at the heart of politics (pecunia nervus rerum) (Bonney, 1995; de Maddalena & Kellenbenz, 1984; Knapton, 1989; Stolleis, 1983). The general importance of financial issues for the early modern state also make them central for the understanding and study of commissions. The syndics offer an example of the four phases introduced earlier: A commission of syndics came into existence on the occasion of a problem. This problem was usually identified, as such, by the state. To solve the problem, the state brought a group of experts together. Because the syndics of the Venetian mainland were always members of the Venetian patriciate, their qualities as experts were not mainly based on their specialized knowledge, but first of all on their social status. Problems and Investigations One could enumerate an exhaustive list of specific reasons for setting up a commission of syndics, but it was always one specific problem, a problem that could be named, that lead to the establishment of a commission—as if this special problem could be separated from other aspects of social, political, economic, or cultural life. This naming of the problem—a problem that might not have existed before in the minds of the people—is the beginning of a discourse. Also, in the progress of this discourse, the syndics produced knowledge and created truth by several means of communication, of which the commission and its experts were the center (Corrigan & Sayer, 1985, pp. 124–127). Syndics were able to produce truth and knowledge because of their authority (Becker & Clark, 2001). This authority was based on two aspects. Firstly, syndics were authorized, by the government, to conduct investigations on behalf of the government. Secondly, they were empowered to speak authoritatively on particular subjects by virtue of their expertise. On the grounds of this authority, the commissioners found the truth.

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The second, investigative phase was determined by the center-periphery relationship between Venice and the Terraferma. The cities of the Terraferma had a separate economic and social background; they had their own traditions and their own perceptions of right and wrong. Therefore, it is important to look at who was able to control or influence the discourse during a commission. Did the Venetian center dominate the territory or were the subject cities powerful enough to raise their own voices? The society of the Terraferma to which the syndics turned was a relatively complex one. It was far from being a uniform subject population. When the syndics arrived in cities such as Brescia, Treviso, Padova, or Udine, they first met the so-called Rettori, the Venetian officials installed in the cities of the Terraferma. Their time in office was strictly limited, and to monitor their work was one of the main functions of the syndics. The Rettori were responsible for political, legal, financial, and military matters. Thus, between the Venetian center and the periphery of the Terraferma, and between the commissioners and the local societies, various channels of communication evolved during this second phase (Tagliaferri, 1981b). Because the group of syndics never consisted of more than three or four Venetian patricians, and because of their relatively short time in office, they depended heavily on the local elite in the cities (Grubb, 1988). These local elite played no major political role in the Venetian territory—all the important positions here were dominated by the Venetian patriciate—but the government of Venice could not renounce the local elite entirely because of their great local power in the Terraferma. The communication between Venice and the Terraferma was not solely dominated by the respective elite, but included the local population. The inhabitants of the cities were explicitly asked by the syndics to produce complaints against the administration (Cozzi, 1982, pp. 189–191). The population of the mainland always had the possibility to address themselves in any matter to the Venetian center, and they were regularly asked by the commissioners on abuses and irregularities in the administration. Thus, the so-called subjects were an important political factor. These four groups, the syndics, the Rettori, the local elite, and the local population circumscribe a societal “field-of-force.” Inside this field, streams of power and communication flowed between the participants of the commission (Le Goff, 1971; Lüdtke, 1991). Thus, one should not concentrate on the commission as an institution, but as a field of interaction determined by relations of power, by coalition and opposition, and by cooperation and conflict. In respect to the investigative phase, it is also important to pay attention to the form of the commission. Nowadays, many commissions are criticized because of their time-wasting clumsiness in this working phase, and their inefficiency in delivering results—a criticism that can also be found in the 16th or 17th centuries. A commission of syndics frequently needed years to finish its mission (Knapton, 1988, p. 47), but this criticism misses the point. For the proceedings were not just useless modes of investigation of experts, but also perfor-

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mances that served to authorize the commission itself and the results it would produce. Commissions, in general, draw upon the authority of experts to present the state of truth. Also, this truth is the result of a dialogue between the state and the society, the local population and the officials, the citizens and the magistrates, and the different institutions of the administration with the commissioners as mediators between them (Ferrante, 1995, p. 293). Throughout the existence of a commission of syndics, the production of truth and knowledge appeared in the commonplace form of oral interrogations. Oral evidence was the most significant aspect of a commission’s investigative procedure. This part of the multilateral dialogue was of great importance for the production of truth and one of the most controversial ones. The practice of recording verbatim oral testimony served in transforming the mercurial nature of the spoken word into the permanent certitude of the written word. Reports and Archives The core of the third, persuasive phase is the production of the Commission Report—a report that, nowadays, is often published, but in the early modern period was usually only presented to the government. In this phase, the report became an authoritative statement relating to questions of political action, and entered a dialogue with the government. The experts of the commission attempted to persuade the government of their results. However, it was not only the syndics who tried to influence the Venetian center. All the groups involved in the work of the commission actively attempted to have their version of the truth become the only truth. This phase ended as concrete decisions were made—or not made—on the basis of the report. A more recent case might serve to illustrate the importance of commission reports and their ways of establishing a certain view of a political or social situation as the truth: On October 29, 1998, the South African Commission of Truth and Reconciliation delivered its report. The former President of South Africa, F. W. de Klerk, attempted to prevent the publication of the report by going to court (The Guardian, October 26, 1998), but he was not alone. The African National Congress (ANC) also tried to stop the report, only a few hours before its release, by applying to the South African High Court (The Guardian, October 30, 1998). Both de Klerk and the ANC were informed by the Commission that they were found guilty of human rights abuse. In response to the report, the ANC stated: “Some of the gross inaccuracies contained in the report will now, unfortunately, become part of South Africa’s history.” Also, the Deputy President of South Africa, Thabo Mbeki, stated of the Commission: “They are wrong, wrong and misguided,” while Archbishop Desmond Tutu described the report as “a triumph for truth and humanity” (The Guardian, October 30, 1998). Foreign observers generally welcomed the report, but criticized that the truth amounted to little more than the media had already disclosed. The Commission failed to uncover more details about the South African military and about assassinations carried out abroad. The Zulu leader Chief Buthelezi had not been called to ac-

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count because of the Commission’s fear of reigniting the violence that threatened to destroy the country’s political settlement (The Guardian, October 26, 1998). Truth obviously is a very difficult business. A historical case study of the early modern period dealt with the additional difficulty that many sources were lost or have been destroyed over the centuries. How is it possible, then, to reconstruct, a few hundred years later, the various attempts of the aforementioned groups to establish their answers to a particular problem? How is it possible to integrate the different voices in the truthproducing process? Turning to the attempts to persuade the central administration of Venice of the truth, another important aspect of the center-periphery situation shows itself. Because of the geographical distance between Venice and the cities of the Terraferma, everybody involved in the work of the syndics had to bridge space and time. Therefore, everything of importance had to be written down. As a result, the persuasive phase was not solely dominated by the reports of the syndics to the Venetian administration, but also by other forms of written evidence. The Rettori had to write reports for the Venetian senate on their time in office (Relazioni, 1973-1979), and the local elite, such as the local population, always had the possibility to address complaints, petitions, and supplications directly to the government. In short, there are several sources by which the discourse on central conceptions such as good governance (buon governo) (Penuti, 1984), legality, or justice can be reconstructed. Also finally, the last piece of the persuasive phase also exists in written form, the final decision of the Venetian center establishing the one and only version of the truth, Once the reports, letters, petitions, and other written evidence are stored in the archives they become part of the historical phase of the discourse. Archives are not only buildings where enormous amounts of paper are collected, but are also the memory bank of the state (Ashforth, 1990, p. 9). In the archives, everybody can have a look at the facts, everybody can find out what had happened, and the true story can be reconstructed. The archives provide the material for the continuing construction of the world and for the production of truth. A famous example of such an archival dialogue is Friedrich Engels’ Condition of the workingclass in England from 1844 (Engels, 1962), which drew heavily on the English Poor Law Reports of the 1820s. Also, to mention another example, the South African Commission of Truth and Reconciliation sold its archives on the Commission’s official homepage. Under the heading “Own your own slice of history,” the Commission’s website was offered on CD-ROM, including the report of the Commission, interviews, public debates, audio recordings, and a photo gallery.3

3 URL: http://www.truth.org.za.

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Discontinuities Undoubtedly, each historical investigation, on the production of truth in past societies, will become deeply involved in the discourse on truth. Of course, it would be naive to think that it is possible to find out the truth on the question of how other people produced the truth. Does this then mean that the work will be absorbed by the truth of the past, by the archival material documenting the one and only truth, and trying to eliminate other versions? Indeed, this would be the danger if the project was based on the thought of the continuity of history. But, it is important to emphasize the discontinuities in the ways societies constructed their world and produced truth. By marking these distinctions between different times and societies, our own present becomes less self-evident and possibilities of change become visible. Understanding that past societies produced their view of the world contradicts every regime of one truth, the larger implication being that there is no definite and final system of ideas (Scott, 1997). The tensions and conflicts evolving around the Venetian syndics give an impression of this discontinuity. The picture presented by historians often leaves aside the other voices in this process, and the formation of opposition and the formulation of alternatives. The result looks like a natural evolution to the knowledge society of experts we probably live in. Omitting contingency, it is possible to announce the end of history—a proclamation that had been made more than once already. But, a closer look teaches that history is not that simple. Thus, the example of the Venetian syndics can show not only how different groups in the early modern society created the truth, but also that regulations and limits were changeable in the past and that they are changeable in the present—even if it might look as if a commission of historians is necessary to write such a history of commissioners.

Acknowledgments I would like to thank Ela Eakin and David M. Luebke for their invaluable assistance on this article.

References Archivio di Stato di Venezia. (1994). Archivio di Stato di Venezia. Guida generale degli Archivi di State italiani, 4, 857–1148. Ashforth, A. (1990). Reckoning schemes of legitimation: On commissions of inquiry as power/ knowledge forms. Journal of Historical Sociology, 3,1–22. Balani, O. (1981). Ricerche per una storia della burocrazia piemontese nel settecento. L’educazione giuridica: IV. Il pubblico funzionario: Modelli storici e comparativi: Vol. 1. Profili storici. La tradizione italiana (pp. 593–639). Perugia, Italy: Università degli Studi di Perugia. Becker, P., & Clark, W. (2001). Little tools of knowledge. Historical essays on academic and and bureaucratic practices. Ann Arbor, MI: University of Michigan Press.

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Bennassar, B. (1979). L’inquisition espagnole XVe–XIXe siècle. Paris: Hachette. Bethencourt, F. (1995). L’inquisition à l’époque moderne. Espagne, Italie, Portugal XVe-XIXe siècle. Paris: Fayard. Blänkner, R. (1992). “Absolutismus” und “frühmoderner Staat.” Probleme und Perspektiven dec Forschung. In R. Vierhaus et al. (Ed.), Frühe Neuzeit—Frühe Moderne? Forschungen zur Vielschichtigkeit von Übergangsprozessen (pp. 48–74). Göttingen, Germany: Vandenhoeck & Ruprecht. Bodin, J. (1583). Les six livres de la République. Paris. (Reprinted 1961, Aalen: Scientia) Bonney, R. (1995). Economic systems and state finance. Oxford, UK: Clarendon Press. Borelli, G,, Lanaro, P., & Vecchiato, F. (1982). Il sistema fiscale veneto. Problemi e aspetti XV–XVIII secolo. Verona, Italy: Libreria Universitaria. Bourdieu, P. (1986/87). The force of law: Toward a sociology of the juridical field. Hastings Law Journal, 38, 805–853. Braudel, F. (1987). Venedig. In F. Braudel, G. Duby, & M. Aymard (Eds.), Die Welt des Mittelmeeres. Zur Geschichte und Geographie kultureller Lebensformen (Transl. Markus Jacob) (pp. 145170). Frankfurt a.M., Germany: Fischer. Brint, S. (1994). In an age of experts. The changing role of professionals in politics and public life. Princeton, NJ: Princeton University Press. Brockhaus. (1968). Brockhaus Enzyklopädie (Vol. 5). Wiesbaden, Germany: Brockhaus. Corrigan, P., & Sayer, D. (1985). The great arch. English state formation as cultural revolution. Oxford, UK: Blackwell. Cozzi, G. (1982). Repubblica di Venezia e Stati italiani. Politica e giustizia dal secolo XVI al secolo XVIII. Torino, Italy: Einaudi. Cozzi, G., Knapton, M., & Scarabello, G. (1992). La Repubblica di Venezia nell’età moderna (Vol. 1). Torino, Italy: UTET. Crescenzi, V. (1981). Il sindacato degli ufficiali nei comuni italiani. In L’educazione giuridica: IV. Il pubblico funzionario: modelli storici e comparativi: Vol. 1. Profili storici. La tradizione italiana (pp. 383–529). Perugia, Italy: Università degli Studi di Perugia. Deutsches Rechtswörterbuch. (1974–1983). Deutsches Rechtswörterbuch. Wörterbuch der älteren deutschen Rechtssprache (Vol. 7). Weimar, Germany: Böhlau. Dictionnaire. (1898). Dictionnaire de l’ancienne languefrançaise (Vol. 9). Paris: Vieweg, (Reprinted 1965, Vaduz: Scientific Periodicals Establishment) Dinges, M. (1994). The reception of Michel Foucault’s ideas on social discipline, mental asylums, hospitals and the medical profession in German historiography. In C. Jones & R, Porter (Eds.), Reassessing Foucault: Power, medicine and the body (pp. 181–212). London: Routledge. Dudan, B. (1935). Sindicato d’oltremare e di Terraferma. Contributo alla storia di una magistratura e del processo sindicale nella Repubblica Veneta. Rome: Società Editrice del Foro Italiano. Engels, F. (1962). Die Lage der arbeitenden Klasse in England. In K. Marx & F. Engels, Werke (Vol. 2, pp. 225–506). Berlin: Dierz. Ferrante, R. (1995). La difesa della legalità. I sindacatori della Repubblica di Genova. Torino, Italy: Giappichelli. Fischer, W., & Lundgreen, P. (1975). The recruitment and training of administrative and technical personnel. In C. Tilly (Ed.), The formation of national states in western Europe (pp. 456–561). Princeton, NJ: Princeton University Press. Foucault, M. (1992). Sexualität und Wahrheit: Vol. 1. Der Wille zum Wissen. Frankfurt a.M., Germany: Suhrkamp. Frank, M. (1988). Zum Diskursbegriff bei Michel Foucault. In J. Fohrmann & H. Müller (Eds.), Diskurstheorien und Literaturwissenschaft (pp. 25–44). Frankfurt a.M., Germany: Suhrkamp. Galbraith, V. H. (1974). Domesday book. Its place in administrative history. Oxford, UK: Clarendon Press. Grubb, J. S. (1988). Firstborn of Venice. Vicenza in the early Renaissance state. Baltimore, MD: Johns Hopkins University Press. Hintze, O. (1981). Der Commissarius und seine Bedeutung in der allgemeinen Verwaltungsgeschichte. Eine vergleichende Studie. In O. Hintze (Ed.), Beamtentum und Bürokratie (pp. 78– 112). Göttingen, Germany: Vandenhoeck & Ruprecht.

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Hoke, R. (1978). Kommissar. In Handwörterbuch zur deutschen Rechtsgeschichte (Vol. 2, pp. 974– 979). Berlin: Schmidt. Holt, J. C, (1987). Domesday studies. Woodbridge, UK: Boydell Press. Humphreys, R. (1995). Sin, organized charity and the Poor Law in Victorian England. New York: St. Mastins Press. Kleimann, B. (1996). Das Dilemma mit den Experten—Ein Expertendilemma? Literatutbericht. In H.-U. Nennen & D. Garbe (Eds.), Das Expertendilemma: Zur Rolle wissenschaftlicher Gutachter in der öffentlichen Meinungsbildung (pp. 183–215). Berlin: Springer. Knapton, M. (1988). Le istinizioni centrali per l’amministrazione ed il controllo della Terraferma. In G. Ortalli et al. (Eds.), Venezia e le istituzioni di Terraferma (pp. 35–56). Bergamo, Italy: Comune di Bergamo. Knapton, M. (1989). Il Sistema fiscale nello stato di Terraferma, secoli XIV–XVIII. Cenni generali. In M. Knapton et al. (Eds.), Venezia e la Terraferma, Economia e società (pp. 9–30). Bergamo, Italy: Comune di Bergamo. Kretschmayr, H. (1920). Geschichte von Venedig: Vol. 2. Die Blüte. Gotha, Germany: Perthes. (Reprinted 1964, Aalen: Scientia) Le Goff, J. (1971). Is politics still the backbone of history? Daedalus, 100, 1–19. Lopez, C. C. (1980). Gli Auditori Nuovi e il dominio di Terraferma. In G. Cozzi (Ed.), Stato, società e giustizia nella Repubblica Veneta (sec. XV–XVIII) (pp. 259–316). Rome: Jouvence. Lüdtke, A. (Ed.). (1991). Herrschaft als soziale Praxis. Historische und historisch-anthropologische Studien. Göttingen, Germany: Vandenhoeck & Ruprechr. Luhmann, N. (1997). Die Gesellschaft der Gesellschaft (2 vols.). Frankfurt a.M., Germany: Suhrkamp. Maddalena, A. de, & Kellenbenz, H. (Eds.). (1984). Finanze e ragion di Stato in Italia e Germania nella prima età moderna. Bologna, Italy: Il Mulino. Maranini, G. (1974). La costituzione di Venezia: Vol 2. Dopo la serrata del Maggior Consiglio. Firenze, Italy: La Nuova Italia. Masi, G. (1930). Il sindacato delle magistrature comunali net sec. XIV (con speciale riferimento a Firenze). Rome: Sampaolesi. Moraw, E (1983). Die königliche Verwaltung im einzelnen. In K. G. A. Jeserich, H. Pohl, & G.-C. von Unruh (Eds.), Deutsche Verwaltungsgeschichte (Vol. 1, pp. 31–53). Stuttgart, Germany: Deutsche Verlagsanstalt. Mousnier, R, (1970). État et commissaire. Recherches sur la création des intendants des provinces (1634–1648). In R. Mousnier, La plume, la faucille et le marteau. Institutions et société en France du Moyen Age à la Révolution (pp. 179–199). Paris: Presses Universitaires de France. Penuti, C. (1984). Il principe e le comunità soggette: Il regime fiscale dalle “pattuizioni” al “buongoverno.” In A. de Maddalena & H. Kellenbenz (Eds.), Finanze e ragion di Stato in Italia e Germania nella prima età moderna (pp. 89–100). Bologna, Italy: Il Mulino. Poster, M. (1997). Cultural history and postmodernity. Disciplinary readings and challenges. New York: Columbia University Press. Reinhard, W. (1996). Power elites and state-building. Oxford, UK: Clarendon Press. Reinhard, W. (1999). Geschichte der Staatsgewalt, Eine vergleichende Verfassungsgeschichte Europas von den Anfängen bis zur Gegenwart. Munich, Germany: C. H. Beck. Relazioni. (1973–1979). Relazioni dei Rettori veneti in Terraferma (14 vols.). Milano, Italy: Giuffrè. Rose, M. E, (1971). The English Poor Law 1780–1930. Newton Abbot, UK: David & Charles. Rovito, P. L. (1981). Il Syndicatus Officialium nel Regno di Napoli. Aspetti e problemi dell’irresponsabilità magistratuale nell’età moderna. In L’educazione giuridica. IV: Il pubblico funzionario: modelli storici e comparativi: Vol 1. Profili storici. La tradizione italiana (pp. 531–575). Perugia, Italy: Università degli Studi di Perugia. Savage, G. (1996). The social construction of expertise. The English civil service and its influence, 1919–1939. Pittsburgh, PA: University of Pittsburgh Press. Schulze, W. (1993). “Von den großen Anfängen des neuen Welttheaters.” Entwicklung, neuere Ansätze und Aufgaben der Frühneuzeitforschung. Geschichte in Wissenschaft und Unterricht, 44, 3–18.

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Sciuti Russi, V. (1981). Visita e sindacato nella Sicilia spagnola. In L’educazione giuridica: IV. Il pubblico funzionario: modelli storici e comparativi: Vol. 1. Profili storici. La tradizione italiana (pp. 577–592). Perugia, Italy: Università degli Studi di Perugia. Scott, J. W. (1997), Nach der Geschichte? WerkstattGeschichte, 17, 5–23. Simpson, J. A. (1989). The Oxford English Dictionary (Vol. 3). Oxford, UK: Clarendon Press. Stolleis, M. (1983). Pecunia nervus rerum. Zur Staatsfinanzierung in der frühen Neuzeit. Frankfurt a.M., Germany: Klostermann. Tagliaferri, A. (1981a). Venezia e la Terraferma. Attraverso le relazioni dei Rettori. Milano, Italy: Giuffrè. Tagliaferri, A. (1981b). Ordinamento amministrativo dello stato di Terraferma. In A. Tagliaferri (Ed.), Venezia e la Terraferma. Attraverso le relazioni dei Rettori (pp. 15–43). Milano, Italy: Giuffrè. Unruh, G.-C. von. (1983). Polizei, Polizeiwissenschaft und Kameralistik. In K. G. A. Jeserich, H. Pohl, & G.-C. von Unruh (Eds.), Deutsche Verwaltungsgeschichte (Vol. 1, pp. 388–427). Stuttgart, Germany: Deutsche Verlagsanstalt. Varanini, G. M. (1992). Comuni cittadini e stato regionale. Ricerche sulla Terraferma veneta nel Quattrocento. Verona, Italy. Libreria Universitaria. Zedler, J. H. (1734). Grosses vollständiges Universal Lexicon (Vol. 8). Halle, Germany: Zedler. (Reprinted 1994, Graz: Akademische Drucks- und Verlagsanstalt)

Section 4 Innovative Representations The chapters in this fourth section are about experts’ use and development of particular representational means, such as maps, mathematical representations, and models. These chapters are also about innovation, about the design of representational means and their application. The first chapter in this section, by Jens Lachmund, deals with the especially versatile representation of maps and the modern expertise of bio-ecology. Starting in the 1970s biologists in West Germany and Berlin carried out fieldwork in various German cities in order to assess urban nature and habitats. Initially, these projects contributed to nature preservation efforts, but they became increasingly intertwined with city administration and planning. Lachmund shows how cartographic strategies, and the design of the respective maps, shaped the categorization of nature in the city and led to a new kind of biological expert. Interpreting medical test results is an activity with consequences. This makes it all the more important that physicians understand the statistical information that medical tests provide and that patients comprehend what is communicated to them about the meaning of a test result. Ulrich Hoffrage and Gerd Gigerenzer describe an extended project in which they and their collaborators have tested and educated physicians, AIDS counselors, and medical students with the goal to improve these experts’, and aspiring experts’, statistical reasoning. With regard to diagnostic inference, these authors provide a surprisingly simple remedy for a widespread ailment that has been described, depending on severity, as ranging from unease with numbers to innumeracy. The prescription for this often selfdiagnosed condition could not be clearer: When faced with probabilities, translate into natural frequencies. Related to this, in the chapter by Samuel Lindsey, which confronts us with the exceedingly demanding issue of statistical evidence in the courtroom, natural frequencies seem to affect verdicts in favor of acquittal. When brought in, experts carry a certain amount of authority. Experts are recognized as authorities because of their knowledge and skill and because of their association with particular institutions. In the final chapter of this section Kurz-Milcke argues that authority and expertise are related in representations. In this analysis, experts appear as highly trained observers of the authority of representations in their field of expertise. The chapters in this book are about historical individuals and their relationships, among them are particular experts, particular political systems, particular educational institutions, particular commissions, but also particular representations, and interestingly, particular notions of authority.

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Chapter 12 Mapping Urban Nature: Bio-Ecological Expertise and Urban Planning Jens Lachmund Department of Technology and Society Studies, University of Maastricht, The Netherlands J. [email protected]

Urban planning is one of the fields in which environmental sciences have gained social and political importance during the last decades. Newly emerging issues, such as the protection of species, habitats, soils, water, etc., and more generally the issue of “sustainable development,” have not only extended the agenda of urban planning, but have also led to the involvement of scientific experts, other than traditional urban planning professionals. Biologists, landscape ecologists, climatologists, pedologists, and other environmental scientists are now frequently called on as advisors in urban planning affairs. At the same time, the ecology of the city has evolved as a distinct interdisciplinary research field that is closely related to environmental planning matters. In Germany, ecological surveys of cities have become one of the most prominent means by which urban environmental expertise has taken shape.1 Particularly, from the mid-1970s onward, in most cities of the Federal Republic of Germany (FRG), so-called biotope mapping (Biotopkartierung) was carried out for local municipalities. These were comprehensive surveys of plants, animals, and their habitat structures that were considered a basis for nature-promotion measures and more ecological ways of planning in towns. The introduction of official urban biotope mapping was closely linked to the political career of nature promotion in the cities of the Western part of Germany. After unification, however, similar programs were also issued in the cities of the former German Democratic Republic (GDR). This chapter is about the rise of bio-ecological surveying in German town planning. It uses the history of these surveys as an empirical example to shed light on the broader issue of environmental expertise in contemporary societies. In contrast, however, to many studies that have dealt with the professionalization of certain groups of experts (Abbott, 1988) or the role of expert advisors in policy decision-making processes (Jasanoff, 1990), this chapter addresses the 1 On the rise of urban nature conservation in the Anglo-American context see Bunce (1994) for UK and Graham and Keil (1997) for Canada (Toronto).

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specific forms of representation by which environmental knowledge took shape in these surveys. It will focus particularly on the role played by the map as a means of producing and organizing environmental knowledge. Although bioecological surveys also encompass representations, such as lists, statistical tabulations, and textual descriptions, they are first and foremost mapping projects. Maps appear frequently throughout the surveys’ reports and display various thematic aspects of the cities’ ecologies. Maps are also one of the forms in which the results of the surveys have been circulated among various institutions and have taken on administrative meaning in urban planning processes. More recently, bio-ecological maps have also become integrated into geo-information systems (GIS) and other forms of digital cartography that are increasingly being used in municipal administration and planning institutions. Maps and other forms of scientific representation are not merely neutral means of visualizing pre-existing features of reality. As, for example, Brian Harley (1989) or Dennis Wood (1992) have shown, maps are conventional constructions that are actively involved in the shaping of the phenomena they reveal. Much more in the wake of recent social studies of science, David Turnbull (1996) has argued that the history of cartography should be considered as the production of historically specific, but translocally standardized “knowledge spaces.” Various recent historical studies on issues, such as nation building (Gugerli, 1998; Helgerson, 1986; Matless, 1997), territories of legislation (Blomley, 1991), regionalism (Matless, 1991), and bio-geography (Camerini, 1993a, 1993b) have also often touched on the constitutive role of maps in the shaping of knowledge and space. Such a view on the constructive power of maps also underlies this chapter. On the one hand, it focuses on the material form of the map and the related practices of producing, circulating, and interpreting these maps. On the other hand, this is also a study of the construction of a new epistemic and political order of urban space. The environment, biotopes, or what is often called “urban nature” (Kowarik, 1992) will not be considered objects waiting to be discovered by an alert observer. Rather, it will be shown how these entities were shaped visually and conceptually by these representational practices, and how they were, in a certain way, brought into existence by mapping projects. In other words, the bio-ecological survey as a new form of environmental expertise, and the biotope as a new feature of the urban environment, were “co-constructed” (Callon & Latour, 1992; Clarke & Fujimura, 1992) by the same techno-administrative scientific project.

The Emergence of Urban-Ecological Expertise As already mentioned above, the rise of bio-ecological mapping, as with urban bio-ecological research in general, was closely related to a newly emerging interest in nature promotion in the city. Until the 1960s the city was mostly considered a purely artificial environment that was neither of systematic interest for the biological field sciences, nor deserving of any conservational concerns. Tradi-

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tional nature conservation has tended to concentrate on the countryside, creating nature reserves and protecting rare species and disappearing habitats. More conventional forms of urban gardening, on the other hand, evolved much more from aesthetic, hygienic, and social policy considerations than as a means of nature promotion (Milchert, 1980). In the 1970s, however, environmental scientists from different backgrounds joined in some sort of “discourse coalition” (Hayer, 1995) with local policymakers, citizen groups, and other institutions that called for ecological planning and landscape promotion in towns. This coalition not only fit well into a context of broadening concerns on environmental issues in Germany, but also linked up with some international activities, such as UNESCO’s “Man and the Biosphere Program” (since 1971) and Agenda 21 (since 1992) (Sukopp, 1990, 1994). One of the basic tenets of this newly emerging discourse was that cities were not just devoid of nature. In contrast, they were considered specific habitats or biotopes which hosted various species, often even more species than did rural landscapes. On the other hand, however, it was also argued that nature in the city was endangered by intensifying urban development and that, therefore, measures should be taken to integrate nature promotion systematically into the planning process. It was argued that nature in the city was to be preserved not only for its own sake, but also to create better conditions of life for urban citizens (Auhagen & Sukopp, 1983; Brunner, Duhme, Mück, Patsch, & Wenisch, 1979; Sukopp, 1973). Regular contact with natural environments was considered a demand from city dwellers and even a prerequisite for the healthy development of children. Equally important, the existence of nature in the city was also considered as a means to strengthen other components of the urban ecosystem, such as the quality of the air, soil, or water supply. Although, by and large, similar arguments were also to be found in earlier urbanistic writings on urban green or garden cities, this new discourse on urban nature was couched in distinguishably bio-ecological terms. In particular, the term “biotope,” which in German biology denotes a topographical area in which specific biological populations live (Dahl, 1908) and which is roughly equivalent to the English “habitat,” since the 1970s has become a political catchword that has penetrated deeply into public consciousness. Nature promotion in the city also emerged in various new regulations and planning strategies that also increasingly drew upon a conception of nature as a biotope. The creation of nature reserves remained an indispensable aspect of these efforts. However, most of the issued regulations were indicative of a new outlook on urban planning aimed at making biotope management part of the ordinary planning process. This new outlook was characterized by greater flexibility, making use of various strategies such as renaturalizing biotopes considered potentially worthy, creating viable networks of inner-city biotopes, or maintaining a stable amount of “wasteland biotopes” on differing sites throughout the city. In 1976, a new German Nature Conservation Law was issued that obliged planning authorities to develop comprehensive “landscape plans” in addition to pre-existing forms of urban planning. Furthermore, the law included an “encroachment regulation” (Eingriffi-/Ausgleichsregelung). Accordingly, every plan-

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ning project that bore a negative impact either on the ecological balance of that area or on the aesthetic character of the landscape had to be compensated for, for example, by creating equally worthy biotopes elsewhere in the town. Although the determination of equivalences between negative impacts and adequate compensations remained a contentious issue, this regulation became one of the most effective links between urban planning and the political regulation of biotopes. In 1990, environmental assessment procedures also became obligatory for various planning projects, which added further weight to biotope preservation in urbanism. From its onset, bio-ecological surveying has been an important backdrop to this discourse. In the post-war period, inner-urban areas with ruins and rubble from the Second World War bombardment had already attracted the interest of some botanists who investigated them systematically and established that these places were biologically worthy environments (Engel, 1949; Pfeiffer, 1954; Scholz, 1956). These places that were originally associated with death and destruction took on, in these studies, a rather positive meaning of life and growth. Although they were not yet related to any explicit planning ambitions, these studies were, nevertheless, important points of reference for the ensuing “claimsmaking activities” (Hannigan, 1995) of biologists and landscape ecologists on urban issues. Issues of planning figured more prominently in a number of studies from the early 1970s that explored parts of cities or even entire cities (Kienast, 1978; Kunick, 1974) from a botanical, vegetational, or faunistic angle. However, it was only around 1980, when official surveying programs, such as biotope mapping, were issued on the municipal administrative level, where these specialists can be said to have exerted some institutional jurisdiction on planning.

Biotope Mapping: Selective Versus Comprehensive Methods Urban biotope mapping grew from two different research contexts, and the approaches developed in these contexts differed considerably in their aims and methodological designs. One approach originated in the Department of Landscape Ecology in the Technical University of Munich, which was situated in Freising-Weihenstephan, a small town on the outskirts of Munich. It was here, in 1973, that an early mapping survey of “worthy biotopes” in the countryside was carried out, commissioned by the Bavarian government (Kaule, Schaller, & Schober, 1979). This survey was later followed by countryside biotope-mapping projects in other states of Germany. Between 1978 and 1979, the Weihenstephan lecturer Friedrich Duhme and a group of students from a newly created course of studies in “landscape promotion” carried out the first biotope-mapping survey that focused on a city: nearby Munich (Duhme et al., 1983; Kreissn, 1978). Mostly, this survey followed the tack taken by the biotope mapping of the countryside. Particularly, both studies were primarily aimed at identifying

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the so-called “worthy” areas that were to be protected, enhanced, or at least looked after when interventions in their neighborhood were planned. This meant that these studies were not topographically comprehensive. The larger part of the city was not considered to consist of biotopes and, therefore, not systematically investigated. The survey was undertaken in close relationship with the Bavarian Nature Protection Agency (Bayerisches Landesamt für Naturschutz), which, from 1981 onward, gave financial support to Bavarian cities for biotopemapping projects that drew on a similar approach. A second approach to urban biotope mapping was developed by the biologist Herbert Sukopp and his collaborators at the Institute for Ecology at the Technical University of Berlin (Arbeitsgruppe Artenschutzprogramm, Berlin, 1984). The lack of accessible countryside surrounding the politically isolated Western part of Berlin had always been a pragmatic reason for biologists to choose inner-urban areas as sites for botanical or faunistic fieldwork. In contrast to the Munich group, Sukopp and his collaborators were, thus, able to draw upon a rich local tradition of floristic, vegetational, and, partly, faunistic surveys. In a series of biotope-mapping surveys of Berlin that they carried out between 1978 and 1983 they did not restrict scrutiny to certain parts of the city which were supposed to be of special interest for conservation. In contrast, they aimed at a topographically comprehensive survey of the flora, vegetation, and some fauna of the Western part of Berlin. In addition to contributing to a more comprehensive approach to the ecological planning of the city, comprehensive surveying, it was argued, was needed to determine the ecological value of single biotopes in the city. As it was first conducted in three pilot studies of the district of Kreuzberg (Asmus, Martens, & Scharfenberg, 1982/1983; Kunick, 1979; Martens & Scharfenberg, 1982/1983), comprehensive surveying turned out to be too time-consuming to be carried out over the whole city. Alternatively, therefore, a method was developed that later was called the “representative-comprehensive.” This meant that only different types of sample areas were investigated intensively and the results were extrapolated to similar parts of the city (Arbeitsgruppe Artenschutzprogramm, Berlin, 1984, p. 78). This attempt to survey cities comprehensively, or at least representationally, was also pursued in biotope-mapping projects of other cities that were carried out by researchers affiliated with the Sukopp group either during or after the Berlin project.2 As early as 1978 initiatives were taken to establish a committee to coordinate the burgeoning activities of urban biotope mapping all over the FRG. This Working Group for Biotope Mapping in Developed Areas (Arbeitsgemeinschaft Biotopkartierung im besiedelten Bereich) met annually and comprised of environmental scientists and representatives of nature protection agencies at federal and state levels and from local municipalities. From its first meeting in 1979, it was led by Herbert Sukopp. Although researchers from Weihenstephan and administrative personnel from Bavaria also participated in these meetings, in the long 2 For example, the city surveys of Cologne (Kunick, 1983), Rüsselsheim (Asmus, Kunick, Maas, Markstein, & Schneider, 1981), Stuttgart (Kunick, 1983), and Hamburg (Trepl, 1984).

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run, the group took positions that were much more in line with the Berlin project. The Bavarian type of “selective mapping” was not overtly rejected. However, the Working Group quite explicitly declared its preferences for comprehensive mapping (Sukopp, Kunick, & Schneider, 1979). When in 1987 the Working Group issued its “basic program” (Arbeitsgruppe Biotopkartierung im besiedelten Bereich, 1986), which stipulated standards for conducting biotopemapping projects, it called for “representative-comprehensive” mapping as the regular surveying method. This was also the case when, in 1992, a renewed and more complex version of that basic program was issued (Schulte, Sukopp, & Werner, 1993). It turned out that local surveying projects throughout Germany only partly obeyed the rules stipulated by the Working Group and, thus, remained rather diverse with respect to their methodological design. The principle of “representative-comprehensive” mapping, however, became widely accepted as a standard method for urban ecological surveys in German cities, with the only exception being Bavaria.

The Cartographic Ordering of the Urban Environment To understand the role of urban ecological experts in urban planning we have to look in detail at the form of cartographic knowledge they created. Biotope mapping, either comprehensive or selective, drew upon a rich variety of cartographic strategies, These strategies consisted of specific visual conventions of displaying features of the urban environment as well as related practices of observation, data analysis, and knowledge transmission. The mapping strategies were neither mutually exclusive approaches, nor part of a comprehensive pattern. Often, they coexisted within the same survey or, as will be shown for the use of maps in fieldwork, were closely linked to specific sequences of the mapping process. In the remainder of this chapter I will examine, in detail, four important cartographic strategies of biotope mapping. I will argue that it was through these strategies that the urban environment took shape as an object of ecological expertise and that, accordingly, different mapping strategies created different, albeit mutually reinforcing, versions of the urban environment. These cartographic strategies were: the ordering of the city as a site of ecological fieldwork, the depiction of patterns of species’ distribution, the zoning of the city as “biotope types” (Biotoptyp), and the visual display of ecological evaluations of urban spaces.

Ordering the Field Bio-ecological maps of the city emerged from the spatial practice of fieldwork and were, themselves, reflexively involved in the social constitution of that practice. Fieldwork in urban biotope-mapping projects included more passive forms of observation of plants, animals, and other, mostly visual, features of the environment as well as collecting botanical specimen and hunting animals. It,

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furthermore, involved the interpretation of pre-existing maps and, particularly, aerial photographs, and even interviews with local naturalists. In addition to the map-standardized site-record sheets, in which sample areas were described in botanical and faunistic detail, there were basic forms of graphical fixation of these observations. Although many of these fieldwork practices have a long tradition in biological and landscape-ecological research, performing that fieldwork within the city was something completely new. In carrying out their fieldwork observation, biologists now acted as participants in urban life, which had its own rules. Walking outside regular pathways and taking notes aroused suspicions of passersby and also of dogs. Access to private property had to be negotiated with landlords and was sometimes refused. Biologists, themselves, also had to realign their thoughts to the urban environment as being a realm worthy of scrutiny and, therefore, they had to develop some specific skills of observation. This new research environment was at odds with deeply entrenched habits of fieldwork and the related ideal of working “in nature.” Observations in fieldwork usually were elaborated interactively between the survey projects’ participants. Often, workshop meetings were held to compile provisional results and to debate practical research problems. Furthermore, from time to time, participants also met in the field to elaborate common ways of handling fieldwork problems. Maps were of crucial importance in the process of fieldwork. Firstly, the inscription of visible signatures on the map was one of the most important ways in which field observations were transformed into reliable data. Only part of this work was done directly in the field. Information was usually first gathered by filling in site-record sheets that were later transcribed into cartographic signatures. Secondly, from the beginning, maps were reflexively involved in the constitution of the field and the social organization of fieldwork Not only did fieldworkers, Figure 1. Sampling like most ordinary people, draw on maps for orientation areas in the city of within the city, but the division of the city on different Hamburg (Trepl, sheets of maps also served as a criterion for the social di1984, p. 39). vision of expert labor within surveying projects (Kreissn, 1978). Furthermore, sample areas that were to be scrutinized systematically were first chosen and delineated graphically on the map, often based on aerial photo interpretation. They were numbered on the map and also further typified by letters or other signatures (Figure 1). Sometimes, geometrical features of the map served to create either a schematic sampling

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grid that covered the whole city, or a transect that traversed the city at its center (Kunick, 1984). In other surveys, sample areas were delineated according to topographical features, such as streets or blocks of buildings that could easily be identified in the field (Asmus, Martens, & Scharfenberg, 1982/1983; Kreissn, 1978; Kunick, 1983). The reliance on existing maps produced important consequences for what was representable on the map and what was not. It was the official maps of the state’s surveying councils, mostly in a scale of 1:5,000, that were used in the surveys as a mapping resource. Such a scale limited the possible depiction of details which, therefore, were sometimes represented in non-scalar signatures, or additional non-cartographic forms of representation. Furthermore, the official maps were based on a specific projection system, the Gauss-Krüger projection. Accordingly, the surface of the earth is represented as a right-angled grid that is attached to a nearby meridian. This form of projection is considered absolutely faithful regarding angles and of only minor planimetry distortion. Since the existence of various other possible forms of cartographic projection and even mapping practices that explicitly violate geodetic standards of objectivity, taking this tack was, itself, a convention that bore its specific representational selectivity. Basing biotope maps on a standard cartographic system of reference of administrative cartography, however, made these maps comparable with other maps and plans of the city and, thus, served to articulate them with the wider network of administrative practices.

Depicting Distributions A second cartographic strategy in bio-ecological surveying was the visual construction of distribution patterns of certain categories of plants, plant communities, or animal populations. Distribution maps (Figure 2) were already being widely used for the large-scale floristic mapping of Germany since 1973 (Haeupler & Schönfelder, 1988), before they entered urban bio-ecological surveying. The items to be mapped were first registered on record sheets or marked on predefined lists during fieldwork. During further steps of transcriptions they were then transformed either into statistical tabulations or into cartographic representations. On these distribution maps’ predefined spatial units, such as the squares of a geometrical grid or single block units, the abundance of items was represented by points. Mostly, the items’ presence was only noted qualitatively. On some maps, however, variations in the size of the points were used to display some further quantitative information. These maps produced a visual order that would have been impossible to display by drawing on lists and statistical tabulations alone. The points on the maps created synoptic patterns of certain species’ “distributions” and linked them visually to the topographical features of the city. Both the species’ populations, as well as the city, were mutually redefined during this process of representation. On the one hand, the grid of the map divided the city into biotopes in which a

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Figure 2. Maps of the city of Muenster showing the distribution of urbanophilious, urbanoneutral, and urbanophobic plants. certain species was supposed to occur and in areas in which it was not. This difference was of some moral significance for preservation purposes and it became of direct, technical importance for the design of species protection measures (Kunick, 1984). Furthermore, distribution patterns were also considered as displaying wider ecological conditions of the city (Kunick, 1984). Even before the rise of biotope mapping, it was quite common to study the air quality of urban regions by mapping the distribution of lichen. On the other hand, these maps also created the phenomenon of inner-urban “distribution” as a new feature of species’ populations. This is explicitly conceptualized in the distinction of the species of plants, such as “urbanophil,” “urbanophob,” and “urbanoneutral,” which is now common in urban bio-ecology (Wittig, Diesing, & Gödde, 1985; see Figure 2). It should be noted that the construction of distribution maps was a highly selective process. The surveys were expert reports that were to be submitted in a limited time period. Thus, areas under consideration could usually only be visited once. What could be easily observed on such visits depended highly on the vegetation period, or the classificatory skill of the surveyor. In particular, the presence of animals was often difficult to observe and, accordingly, there has always been some bias given to floristic and vegetational observation at the expense of faunistic (Arbeitsgruppe Biotopkartierung im besiedelten Bereich, 1986). Specific emphasis was also given to the mapping of species that were considered endangered, or as “indicator species” (Ellenberg, 1974) which were supposed to reveal other ecological features of the city, such as the humidity or soil composition (Kunick, 1980).

Zoning the City A third cartographic strategy was the use of maps as a means of ecological zoning of the city (Figure 3). These maps differ from distribution maps in that they dis-

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Figure 3. Biotope-type map of Berlin (West) (Senator für Stadtentwicklung und Umweltschutz, Berlin, 1984, p. 38). play information of a much higher level of generalization, synthesized in the concept of a biotope type. Points are not the most important signatures of these maps, but rather fractured mosaics displayed by hachures or colors. There is a long history in urban planning and geography of zoning the city’s land-use patterns.3 The city has often been divided into units, such as residential areas, industrial areas, traffic areas, open spaces, urban wastelands, and so forth. The zoning of landscapes has also been common in vegetational and landscapeecological surveys, in Germany, since the 1940s and 1950s, when mapping of “natural regions” (naturräumliche Gliederung) and of “potential natural vegeta-

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tion” (potentielle natürliche Vegetation) began (Buchwald & Engelhardt, 1968). These, however, were projects that totally neglected cities. There were some attempts to draw upon the latter methods in earlier surveys of the city. Some authors also drew upon phytosociology4 to develop a classification of urban regions according to prevailing plant “societations” (Hard & Otto, 1985; Kienast, 1978). It was the notion of the biotope type, however, that became the master concept: to integrate bio-ecological data of different sorts, and a device for urban zoning that was much more in line with traditional land-use classification. The notion of the biotope type was first created in the context of the earliest biotope-mapping projects in Weihenstephan (Kaule et al., 1979). It was a classification only of those regions that was considered ecologically worthy. This was also the way in which the term was adopted in the Bavarian urban bioecological surveys. Many areas of the city that in conventional land-use planning would have simply been put under the residual category of “wasteland” were now neatly classified according to landscape-ecological criteria. The areas became redefined, for example, as “tall perennial communities,” “primary vegetations,” “wet meadows,” or “dry meadows.” As these examples show, biotope types were categorized primarily according to the forms of vegetation that prevailed in these areas. Although the terminology was partly inspired from phytosociology, biotope categories aimed at a classification of ecologically, homogenous regions and not, as in phytosociology, at least in its Continental European outlook, on the formal delineation of pure types of plant communities. Another feature of the Bavarian approach is that it made a categorical difference between biotope types and land-use types, the former being associated with “nature” and the latter with the more artificial parts of the town. In the surveys of the Berlin group and later in the basic program of the Working Group the concept of “biotope type” became closely related to the notion of “land use,” although the latter took on a more bio-ecological meaning. In the 1950s, the intensity of human influence (Jalas, 1955), had already been used to classify areas and vegetation types of agriculture and forestry. In a 3

In Germany, the concept of zoning can be traced back to the late 19th century and the socalled Zonenplanung (Fehl & Rodriguez-Lores, 1982). The cartographic representation of zones (criminality, income, etc.) was also part of Charles Booth’s late 19th century survey of London (Bulmer, Bales, & Sklar, 1991). During the time of National Socialism, Gottfried Feder in an influential textbook on urban planning (Feder, 1939) called for systematic zoning of the city as a basis for what he considered a more rational method of planning. 4 Generally speaking, phytosociology is the study of the association of plants into specific units of vegetation. In Continental Europe, a phytosociological approach has been dominant that was based on the model of classical plant taxonomy. This approach was developed in the 1920s by the Swiss botanist Josias Braun-Blanquet, the Director of the first Phytosociological Research Station at Montpellier (Sigma). In Germany, the Sigma-approach has been further developed by Reinhold Tüxen, Director of the Empire’s Institute for Vegetation Mapping (Zentralstelle für Vegetationskartierung) set up in 1932 in Stolzenau, Weser. On the history of phytosociology and on the differences between continental (“Sigmatist”) phytosocioiogy and North-American plant ecology see Nicolson (1989).

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similar way, researchers of the Berlin group argued, from the early 1970s, that the intensity and form of land use should be considered the most important factor determining wildlife in towns (Kunick, 1982; Sukopp, 1973). Sukopp (1973) constructed a schematic outline of the city in concentric zones in which specific forms of land uses were correlated with their ecological character. In a 1974 thesis of Sukopp’s former student Wolfram Kunick (1982), the Western part of Berlin was divided into five “regions of common flora” that were consonant with a roughly differentiated pattern of development. When the Berlin biotope-mapping survey changed from its earlier comprehensive method to the representative-comprehensive method, sampling areas were considered as being representative of those urban land-use types of which they formed a part (Arbeitsgruppe Artenschutzprogramm, Berlin, 1984). These land-use types were considered, both methodically and conceptually, as ecologically, homogenous, biotope types which hosted very particular populations and vegetation types. Although partly drawing upon vegetational criteria, this classification was primarily based on urbanistic land-use categories. The city of Berlin was divided into 57 types of biotopes. These included areas considered to have only relatively minor human influence as well as areas considered to have been extremely anthropogenically molded, such as the “biotopes of construction sites,” “biotopes of railway tracks,” or the “biotopes of blocks of flats of 5–6 floors, from the 1890s” (Arbeitsgruppe Artenschutzprogramm, Berlin, 1984). For each of these categories, bio-ecological data were assembled and displayed separately. This data, in turn, served to define what the biotope types meant in terms of detailed bio-ecological inventories, and also to introduce more subtle divisions into the classification scheme. The classification of biotope types became the hallmark of representativecomprehensive mapping. The delineation of categories, however, remained a matter of constant debate and different methods were proposed on how to define them adequately. The basic programs of the Working Group, for example, developed standard schemes for the classification of land use (1986) or biotope types (1992), on which future mapping projects were to be based. In a study on the city of Bochum (Schulte, 1985), one author proposed a quantitative method for translating distribution maps of various plants and some other ecological data into comprehensive zone maps. More recently, researchers at Weihenstephan developed a method of classifying “urban structure types” that was also based on the computational analysis of ecological data (Duhme & Pauleit, 1992). As in the case of distribution maps, maps of zones also created new meanings of the city, but they did this differently. Whereas distribution maps created new spatial patterns and related them visually to the anthropogenic structure of the city, zoning maps melded both aspects on the same visual plane. They not only revealed that there was some form of nature in the city and how, exactly, it was distributed, but moreover, they displayed the city as a hybrid spatial order in which spontaneous biological processes and various forms of human influence were closely interwoven. Areas depicted on the map were never purely natural or purely cultural; there was instead a continuous gradation between these poles.

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This was, as we have already seen, a concept that also characterized a new discourse on nature promotion in the city in general. On the maps of urban bioecological zones this concept took on visual meaning. Furthermore, zoning maps fit well into the rationality of urban planning and, thus, helped to strengthen the impact of environmental expertise. Zoning created homogenous parcels of territories that were planimetrically circumscribed and were easy to articulate, with more administrative forms of zoning of the city as well as with the distribution of private property. Providing information that fitted into the routine of the administrative authorities was considered a major criterion for the choice of mapping practices, with zone maps being considered more suitable for this purpose than distribution maps (Jedicke, 1994, p. 140; Lahl & Haemisch, 1990, p. 488). Comprehensive geo-information systems, of which biotope maps constitute one layer, homologous to various other political and administrative regional orders of the town, are at present the most advanced example of this articulation.

Evaluating Space A fourth cartographic strategy is the use of maps as a display of ecological judgments. In a sense, all the mapping practices considered so far imply certain judgments of the sites that they display. Particularly in the case of selective mapping, every map of the biotopes is also a display of their ecological evaluation. In comprehensive-representative surveying, however, special “maps of biotope evaluation” were also produced (Arbeitsgruppe Artenschutzprogramm, Berlin, 1984; Reidl, 1989; see Figure 4). They were closely related to biotope zoning maps on which they were also technically based. Judgmental maps were the result of further acts of synthesizing and generalizing information. In contrast to selective mapping, which centered only on areas that were considered valuable beforehand, these maps relied on the results of a comprehensive or comprehensive-representative mapping of all sites of a town. During a subsequent process, the ecological value of each of these areas was stipulated according to a system of three or more classes that were then displayed on the map by the use of different hachures or colors. Such a system of formal evaluation was first developed in the Berlin project (Arbeitsgruppe Artenschutzprogramm, Berlin, 1984, Sect. I, p. 99ff.). The procedure of evaluation remained unsetded for most of the period under consideration, but in 1992 the Working Group agreed upon a standard model. Generally speaking, these systems of evaluation consisted of a step-by-step judgment of biotopes according to formal criteria, such as the intensity of land use, the degree of soil sealing, biological diversity, the position in the town, or the frequency of a certain biotope type in the town under investigation. Judgmental maps may be considered a first step toward the transformation of biotope-mapping survey results into administrative or planning strategies. They do not only display what sorts of biotopes exist in the city, but they, further-

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Figure 4. Map showing the value of biotopes, biotope-mapping of Berlin (West) (Senator für Stadtentwicklung und Umweltschutz, Berlin, 1984, p. 45). more, give explicit hints to where they have to be preserved, where they have to be developed, and which are the ecologically indigent quarters of the city. By visualizing evaluations of inner-urban areas, these maps contributed to the production of new “spatial images” (Shields, 1991): They attributed new meanings to places that were sometimes in direct conflict with the deeply entrenched spatial images held by most of the city dwellers. For example, neatly cultured lawns were considered relatively poor places in bio-ecological surveys. On the other hand, wastelands, often considered most ugly by city-dwellers, were held to be of superior value because they often displayed a rich diversity of species.

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Conclusion Since early modernity, it has been common to treat nature and the city as a pair of opposites. Nature was primarily associated with the countryside, whilst the city was seen as something of an epitome of the artificial. At the same time, the history of urbanism has been full of attempts to dissolve this difference, or at least to remedy its most extreme consequences, for example, by building garden cities or creating inner-urban open spaces. Recent concern over inner-urban biotopes might, thus, be related to a long-lasting tradition. However, biotope mapping was not merely a new means of bringing more nature into the city. Rather, it was the meaning of urban and of nature themselves that was recreated in this process. Until approximately 20 years ago, such a thing as a biotope in the city never existed. It was by the visual depiction on the map that the urban biotope emerged as a scientific and political phenomenon. A fuzzy world of streets, trees, and buildings became transformed into synoptic patterns that revealed new objects and relationships of urban phenomena. On the map, phenomena were geometrically circumscribed and consistent with the classificatory order of bio-ecological discourse. Moreover, the maps created a cognitive order that also met the criteria of administrative procedures of standardization and documentary evidence. In the emerging city of biotopes, the natural and artificial lose their former oppositional meaning. The city becomes naturalized as nature becomes urbanized. By categorizing and delineating urban places, according to the bio-ecological criteria, the maps visually inscribe “naturalness” on the urban space. They represent a grid of ontological and moral meanings that differs from both the “cognitive maps” of urban dwellers and the “concept city,” as de Certeau (1988) has called it, of traditional urban planners. Nature, on the other hand, is no longer associated with relatively untouched landscapes, or transhistorically stable biological traits. As “urban nature” it becomes an expression of the complexities and histories of human activities in which it has been molded. Urban biotope mapping, thus, is a good example of the way in which new forms of expertise shape the categories by which we perceive our world.

Acknowledgments I would like to thank the ecologists and planning officials who donated their time and provided material that is analyzed in this chapter. I am also grateful to the various people who commented on earlier versions: the participants of the Joint conference of the Society for the Social Studies of Science and Environmental Studies Association of Canada, Halifax, October 28, 1998, the Schloeßmann Seminar on “The Expert in Modern Societies,” Berlin, November 26-28, 1998, and, particularly, my former colleagues at the Max-Planck-Institute of the History of Science, Berlin.

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Chapter 13 How to Improve the Diagnostic Inferences of Medical Experts Ulrich Hoffrage and Gerd Gigerenzer Center for Adaptive Behavior and Cognition Max Planck Institute for Human Development, Berlin, Germany [email protected]

Women are generally informed that mammography screening reduces the risk of dying from breast cancer by 25%. Does that mean that from 100 women who participate in screening, 25 lives will be saved? Although many people believe this to be the case, the conclusion is not justified. This figure means that from 1,000 women who participate in screening, 3 will die from breast cancer within 10 years, whereas from 1,000 women who do not participate, 4 will die. The difference between 4 and 3 is the 25% “relative risk reduction.” Expressed as an “absolute risk reduction,” however, this means that the benefit is 1 in 1,000, that is, 0.1%. Cancer organizations and health departments continue to inform women of the relative risk reduction, which gives a higher number—25% as compared to 0.1%—and makes the benefit of screening appear larger than if it were represented in absolute risks. The topic of this chapter is the representation of information on medical risks. As the case of mammography screening illustrates, the same information can be presented in various ways. The general point is that information always requires representation, and the choice between alternative representations can influence the patients’ willingness to participate in screening, or more generally, patients’ understanding of risks and choices of medical treatments. The ideal of “informed consent” can only be achieved if the patient knows about the pros and cons of a treatment, or the chances that a particular diagnosis is right or wrong. However, in order to communicate such uncertainties to the patients, the physician has to first understand statistical information and its implications. This requirement sharply contrasts with the fact that physicians are rarely trained in risk communication, and some still think that medicine can dispense with statistics and psychology. Such reluctance may also explain why previous research observed that a majority of physicians do not use relevant statistical information properly in diagnostic inference. Casscells, Schoenberger, and Grayboys (1978), for instance, asked 60 house officers, students, and physicians at the Harvard Medical School to estimate the probability of an unnamed disease given the following information: 249

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If a test to detect a disease whose prevalence is 1/1,000 has a false positive rate of 5 per cent, what is the chance that a person found to have a positive result actually has the disease, assuming that you know nothing about the person’s symptoms or signs? (p. 999) The estimates varied wildly: from the most frequent estimate, 95% (27 out of 60), down to 2% (11 out of 60). The value of 2% is obtained by inserting the problem information into Bayes’s rule (see below)—assuming that the sensitivity of the test, which is not specified in the problem, is approximately 100%. Casscells et al. (1978) concluded that (…) in this group of students and physicians, formal decision analysis was almost entirely unknown and even common-sense reasoning about the interpretation of laboratory data was uncommon (p. 1000). In a seminal article on probabilistic reasoning about mammography, David Eddy (1982) reported an informal study in which he asked an unspecified group of physicians to estimate the probability of breast cancer given a base rate (prevalence) of 1%, a hit rate (sensitivity) of 79%, and a false positive rate of 9.6%. He reported that 95 out of 100 physicians gave estimates of the posterior probability of breast cancer given a positive mammogram (the positive predictive value) of between 70% and 80%, whereas Bayes’s rule results in a value one order of magnitude smaller, namely, 7.7%. Eddy proposed that the majority of physicians confused the sensitivity of the test with the positive predictive value. Evidence of this confusion can also be found in medical textbooks and journal articles (Eddy, 1982), as well as in statistical textbooks (Gigerenzer, 1993). In 1986, Windeler and Köbberling reported responses to a questionnaire they had mailed to family physicians, surgeons, internists, and gynecologists in Germany. Only 13 of the 50 respondents realized that an increase in a disease’s prevalence implies an increase in the positive predictive value. The authors concluded with this puzzling observation: Although intuitive judgment of probabilities is part of every diagnostic and treatment decision, the physicians in their study were obviously unaccustomed to estimating quantitative probabilities. Given these demonstrations that many physicians’ reasoning does not follow the laws of probability (see also Abernathy & Hamm, 1995; Dawes, 1988; Dowie & Elstein, 1988), what can be done to improve diagnostic inference?

Natural Frequencies Help in Making Diagnostic Inferences Each of the three studies summarized above presented numerical information in the form of probabilities and percentages. The same holds for other studies in which the conclusion was that physicians (Berwick, Fineberg, & Weinstein, 1981; Politser, 1984) and laypeople (Koehler, 1996a) have great difficulties in making diagnostic inferences from statistical information. Whether information is presented in probabilities, percentages, absolute frequencies, or some other

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form is irrelevant from a mathematical viewpoint. These different representations can be mapped onto one another in a one-to-one fashion. However, they are not equivalent from a psychological viewpoint, which is the key to our argument. We argue that a specific class of representations, which we call natural frequencies, helps laypeople and experts to make inferences the Bayesian way. We illustrate the difference between probabilities and natural frequencies with the diagnostic problem of inferring the presence of colorectal cancer (C) from a positive result in the hemoccult test (T), a standard diagnostic test. In terms of probabilities, the relevant information is a base rate for colorectal cancer p(C) = 0.3%, a sensitivity and a false positive rate In natural frequencies, the same information would read: Thirty out of every 10,000 people have colorectal cancer. Of these 30 people with colorectal cancer, 15 will have a positive hemoccult test. Of the remaining 9,970 people without colorectal cancer, 300 will still have a positive hemoccult test. Natural frequencies are absolute frequencies as encoded through direct experience and have not been normalized with respect to the base rates of disease and non-disease (Gigerenzer & Hoffrage, 1995, 1999). They are to be distinguished from probabilities, percentages, relative frequencies, and other representations where the underlying natural frequencies have been normalized with respect to these base rates.1 Why should natural frequencies facilitate diagnostic inferences? There are two related arguments. The first is computational. Bayesian computations are simpler when the information is represented in natural frequencies rather than in probabilities, percentages, or relative frequencies (Christensen-Szalanski & Bushyhead, 1981; Kleiter, 1994). For instance, when the information concerning colorectal cancer is represented in probabilities, applying a cognitive algorithm to compute the positive predictive value, that is, the Bayesian posterior probability, amounts to performing the following computation:

The result is 0.048. Equation 1 is Bayes’s rule for binary hypotheses (here, C and not-C) and data (here, T). The rule is named after Thomas Bayes (1702– 1761), an English dissident minister, to whom the solution of the problem of how to make an inference from data to hypothesis is attributed (Stigler, 1983). 1 For instance, the following representation of the colorectal cancer problem is not in terms of natural frequencies (or frequency formats; Gigerenzer & Hoffrage, 1995, 1999), because the frequencies have been normalized with respect to the base rates: a base rate of 30 out of 10,000, a sensitivity of 5,000 out of 10,000, and a false positive rate of 300 out of 10,000.

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When the information is presented in natural frequencies, then the computations are much simpler:

Equation 2 is Bayes’s rule for natural frequencies, where c&t is the number of cases with cancer and a positive test, and not-c&t is the number of cases without cancer but with a positive test. The second argument supplements the first. Minds appear to be tuned to make inferences from natural frequencies rather than from probabilities and percentages. This argument is consistent with developmental studies indicating the primacy of reasoning with discrete numbers over fractions, and studies of adult humans and animals indicating the ability to monitor frequency information in natural environments in fairly accurate and automatic ways (e.g., Gallistel & Gelman, 1992; Jonides & Jones, 1992; Real, 1991; Sedlmeier, Hertwig, & Gigerenzer, 1998). For most of their existence, humans and animals have made inferences from information encoded sequentially through direct experience, and natural frequencies are the final tally of such a process. Mathematical probability emerged only in the mid-17th century (Daston, 1988), and not until the aftermath of the French Revolution—when the metric system was adopted—do percentages appear to have become common representations, mainly for taxes and interests, and only very recently for risk and uncertainty (Gigerenzer et al., 1989). Thus, one might speculate that minds have evolved to deal with natural frequencies rather than with probabilities. Probabilities can be represented in what Gigerenzer and Hoffrage (1995) called the standard menu and the short menu. The standard menu is illustrated above; the short menu presents p(C&T) and p(T). Both lead to the same result. Similarly, natural frequencies can be expressed in both a standard and a short menu (see Appendix for all four versions of the colorectal cancer problem). To compute the Bayesian solution for probabilities, the short menu demands fewer computations than the standard menu, whereas for natural frequencies the computations are the same, except that in the standard menu the two compounds c&t and not-c&t need to be added to determine the denominator (Gigerenzer & Hoffrage, 1995, theoretical results 5 and 6, p. 688).

Do Natural Frequencies Improve Laypeople’s Reasoning? Many studies have concluded that people’s judgments do not follow Bayes’s rule, but little is known about how to help people reason the Bayesian way. We tested whether natural frequencies improve Bayesian inference in laypeople, specifically, students in various fields at the University of Salzburg (Gigerenzer & Hoffrage, 1995). We used 15 problems, including Eddy’s mammography problem and Tversky and Kahneman’s (1982) cab problem. When the information was presented in natural frequencies rather than in probabilities, the proportion

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of Bayesian responses increased systematically for each of the 15 problems. This advantage held whether the frequencies and probabilities were presented in the standard menu or the short menu. The average proportions of Bayesian responses were 16% and 28% for probabilities, rising to 46% and 50% for natural frequencies (standard and short menu, respectively). Thus, although they can be directly inserted in Equation 2, compound probabilities as displayed in the short menu were not as effective as natural frequencies. To conclude, natural frequencies, whether presented in the standard or the short menu, improve Bayesian reasoning without instruction. Similarly, Cosmides and Tooby (1996) showed that natural frequencies improve Bayesian inferences in the Casscells et al. (1978) problem as well. This hypothetical medical problem is numerically simpler (the hit rate is assumed to be 100%) than the problems in the Gigerenzer and Hoffrage (1995) study, and Cosmides and Tooby reported that 76% of the answers were Bayesian (see also Christensen-Szalanski & Beach, 1982). But would medical experts also profit from natural frequencies, and do they use them in communicating risks to their clients? The following studies with medical students and experienced physicians provide an answer to the first question; the final study with AIDS counselors addresses the second question.

Do Natural Frequencies Improve Medical Students’ Diagnostic Inferences? Participants were 87 advanced medical students of whom most had already passed a course in biostatistics and were, on average, in their fifth year, and 9 firstyear interns. Fifty-four studied in Berlin and 42 in Heidelberg; 52 were female and 44 were male. The average age was 25 years. We chose four realistic diagnostic tasks and constructed four versions of each: two in which the information was presented in probabilities (as it typically is), and two in which the information was presented in natural frequencies. For each of these two formats the information was presented either in the standard menu or in the short menu. The four diagnostic tasks were to infer (a) the presence of colorectal cancer from a positive hemoccult test, (b) the presence of breast cancer from a positive mammogram, (c) the presence of phenylketonuria from a positive Guthrie test, and (d) the presence of ankylosing spondylitis (Bekhterev’s disease) from a positive HL-Antigen-B27 (HLA-B27) test. The information on prevalence (base rate), sensitivity (hit rate), and false positives (false-alarm rate) was taken from Eddy (1982), Mandel et al. (1993), Marshall (1993), Politser (1984), and Windeler and Köbberling (1986). The four diagnostic tasks are shown in the Appendix. These problems were given to the participants in a questionnaire. We used a Latin square design: Each participant worked on all problems, each in a different version. Across all participants, the four problems and the four versions appeared

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Figure 1. Medical students’ percentage of Bayesian inferences in four diagnostic tasks, broken down according to the four versions of each task (see Appendix for the four versions of the colorectal cancer problem). on each of the four pages in the questionnaire equally often. The first two problems in each questionnaire were always given in the same format, either both in probabilities or both in natural frequencies. In addition, we systematically varied the order of the two pieces of information in the short menu. Participants were paid a flat fee. They worked on the questionnaire at their own pace and in small groups of mainly three to six participants. The experimenter asked them to make notes, calculations, or drawings, so that we could reconstruct their reasoning. Interviews were performed after the participants completed their questionnaire. When a participant’s estimate was within plus or minus five percentage points (or the equivalent in frequencies) of the Bayesian estimate, and the notes and interview indicated that the estimate was arrived at by Bayesian reasoning (or a shortcut thereof; see Gigerenzer & Hoffrage, 1995) rather than by guessing or other means, then we classified the response as a “Bayesian inference.” Figure 1 shows the percentages of Bayesian inferences for the four diagnostic tasks (the results for the standard menu have already been published in Hoffrage, Lindsey, Hertwig, & Gigerenzer, 2000). For each problem, probabilities in the standard menu made it most difficult for the medical students to reason the Bayesian way. When the standard menu was used with natural frequencies, the performance increased from 18% to 57%. For the short menu, the differences were smaller, from 50% to 68%. This interaction is consistent with the theoretical result men-

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tioned above—that the beneficial effect of the short menu is larger for probabilities than for natural frequencies. To summarize, medical students showed signs of “innumeracy” (Paulos, 1988) similar to those of laypeople when the information was in terms of probabilities (standard menu), but their reasoning improved more than laypeople’s when the frequency representations (or probabilities in the short menu) were used.

Do Natural Frequencies Improve Physicians’ Diagnostic Inferences? As important as this result is for improving medical students’ “insight,” one might suspect that it will not generalize to experienced physicians who treat real patients. We asked 51 physicians to participate in the following study (Gigerenzer, 1996; Hoffrage & Gigerenzer, 1998). Three physicians did not give numerical estimates, either because they generally rejected statistical information as meaningless for medical diagnosis, or because they stated that they were unable to think in numbers. The remaining 48 physicians had practiced for an average of 14 years (ranging from 1 month to 32 years) and had a mean age of 42 years (ranging from 26 to 59). They worked either in Munich or Düsseldorf; 18 were female and 30 were male. Eighteen worked in university hospitals, 16 in private or public hospitals, and 14 in private practice. The sample included internists, gynecologists, dermatologists, and radiologists, among others. The physicians’ status ranged from directors of clinics to physicians commencing their careers. The interviewer visited the physicians individually at their institutions or private offices and, in a few cases, in their homes. She first informed the physician about our interest in studying diagnostic inference and established a relaxed personal rapport. Each physician was then given the same four diagnostic tasks as in the previous study. Each problem was printed on a sheet of paper, followed by a separate blank sheet. The interviewer asked the physician to use the empty sheet to make notes, calculations, or drawings so that we could later reconstruct his or her reasoning. After the physician completed the four tasks, the interviewer reviewed the physician’s notes. If it could not be discerned how the estimate was achieved in each task, the physician was asked for clarification. Given the limited free time of practicing physicians, we only used the standard menu. In two diagnostic tasks, the information was presented in probabilities, in the other two in natural frequencies. We systematically varied which tasks were in which format and which format was presented first with the constraint that the first two tasks had the same format.

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Dr. Average To give the reader a better understanding of the test situation and the results, we first describe the results for Dr. Average, who represents the “average physician” with respect to performance on these diagnostic tasks. Dr. Average is a 59-year-old director of a university clinic who is active in research and teaching, a dermatologist with 32 years of professional experience. He worked on the problems for 30 minutes and spent another 15 minutes discussing the results with the interviewer. He was visibly nervous when working on the first two problems, which used probabilities. Initially, Dr. Average refused to make notes; he acquiesced later, when the interviewer again requested that he do so, but he did not let the interviewer see his notes. Dr. Average first worked on the mammography problem in the probability format. He calculated the probability of breast cancer after a positive mammography to be 90%, by adding the sensitivity to the false positive rate, 80% + 10% = 90%. Nervously, he remarked, “Oh, what nonsense. I can’t do it. You should test my daughter; she studies medicine.” The second problem was on ankylosing spondylitis, also in the probability format. Dr. Average first commented that he himself had performed the HLAB27 test (unlike the mammography test). Then he began to draw and calculate on his sheet of paper and remarked that the prevalence of 5% would be irrelevant. With some hesitation and annoyance, he estimated the probability of ankylosing spondylitis after a positive test to be 0.46%, by multiplying the sensitivity (92%) by the prevalence (5%). Apart from a calculation error by factor 10, this is a common strategy among laypeople (Gigerenzer & Hoffrage, 1995). The third problem was to diagnose colorectal cancer from a positive hemoccult test. The information was presented in natural frequencies. Dr. Average remarked, “But that’s so easy,” and calculated that 15 out of 315 people with a positive test would have colorectal cancer. This was the Bayesian answer. Unlike in the first two diagnostic inferences, he now seemed to realize that he had found the correct solution. His nervousness subsided. The phenylketonuria problem in natural frequencies came last. Dr. Average calculated that 10 out of 60 newborns with a positive Guthrie test have phenylketonuria, which again was the Bayesian answer. He said he had never advised parents on how to interpret a positive Guthrie test, whereas he had advised people on how to interpret a positive hemoccult test. During the following interview, Dr. Average discussed his strategies for estimating the predictive values of the tests with the interviewer, asked her to calculate the estimate for the mammography problem for him, and concluded, “That was fun.” Note that this physician’s performance was independent of whether he had experience with the specific test or not. What made the difference was whether the problem information was communicated in natural frequencies or probabilities. We now report the results aggregated across all physicians.

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Forty-Eight Physicians Each of the 48 physicians made four diagnostic inferences. Thus, we have 48 estimates for each problem, and 24 estimates for each format of each problem. To classify a strategy as Bayesian, we used the same criteria as in the previous study. Figure 2 shows that for each diagnostic problem, the physicians reasoned the Bayesian way more often when the information was communicated in natural frequencies than in probabilities. The effect varied between problems, but even in the problem showing the weakest effect (phenylketonuria), the proportion of Bayesian answers was twice as large. For the two cancer problems, natural frequencies increased Bayesian inferences by more than a factor of five as compared to probabilities. Across all problems, the physicians gave the Bayesian answer with probabilities in only 10% of the cases; with natural frequencies this value increased to 46%. With probabilities, physicians spent an average of 25% more time solving the diagnostic problems than with natural frequencies. Moreover, physicians commented that they were nervous, tense, and uncertain more often when working with probabilities than with natural frequencies. They also stated that they were less skeptical of the relevance of statistical information when it was in natural frequencies. Physicians were conscious of their better and faster performance with natural frequencies, as illustrated by comments such as “Now it’s different.

Figure 2. Physicians’ percentage of Bayesian inferences in the four diagnostic tasks, broken down according to whether the information was presented in probabilities or natural frequencies (in the standard menu only).

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It’s quite easy to imagine. There is a frequency; that’s more visual” and “A first grader could do this!” Innumeracy We asked the physicians how often they took statistical information into account when they interpreted the results of diagnostic tests. Twenty-six answered “very seldom or never,” 15 answered “once in a while,” 5 said “frequently,” and none answered “always.” Their comments suggested two reasons why physicians used statistical information rather infrequently: the physician’s innumeracy and the patient’s uniqueness. Several physicians perceived themselves as mathematically illiterate or suffering from a cognitive disease known as “innumeracy” (Paulos, 1988). Six physicians explicitly remarked on their inability to deal with numbers, stating, for instance, “But this is mathematics. I can’t do that. I’m too stupid for this.” With natural frequencies, however, these same physicians spontaneously reasoned statistically (i.e., in accordance with Bayes’s rule) as often as their peers who did not complain of innumeracy. Innumeracy and individual uniqueness were also the reasons why three physicians refused to complete our questionnaire. A 60-year-old high-ranking physician in a government agency wanted to give up on the first problem: “I simply can’t do that. Mathematics is not my forte.” When the interviewer encouraged her to try again, she tried, failed again, cursed loudly, and gave up. A second physician said: “I can’t do much with numbers. I am an intuitive being. I treat my patients in a holistic manner and don’t use statistics.” Finally, a university professor—an ears, nose, and throat specialist—seemed agitated and affronted by the test and refused to give numerical estimates. “This is not the way to treat patients. I throw all these journals [with statistical information] away immediately. One can’t make a diagnosis on such a basis. Statistical information is one big lie.” This last reaction reminds us of the great physiologist and arch-determinist Claude Bernard, who ridiculed the use of statistical information in medical diagnosis and therapy: A great surgeon performs operations for stone by a single method; later he makes a statistical summary of deaths and recoveries, and he concludes from these statistics that the mortality law for this operation is two out of five. Well, I say that this ratio means literally nothing scientifically and gives us no certainty in performing the next operation. (Bernard, 1865/1957, p. 137) However, unlike Bernard, who contrasted statistics with science and its goal to discover the deterministic laws that rule all individual cases, physicians like those who refused to fill out our questionnaire contrast statistics not with science, but with their own intuition and experience, which are centered on the individual patient.

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Comparing Medical Students and Physicians Presenting the information in Bayesian inference tasks in natural frequencies rather than in probabilities fosters insight in laypeople, advanced medical students, and experienced physicians. This is the main result of the three studies. The four diagnostic tasks for the medical students and the physicians were identical; therefore, we can directly compare their performance, at least for the standard menu. The medical students reasoned the Bayesian way more often than the physicians: The difference was 8 percentage points for the probabilities and 9 percentage points for natural frequencies. The beneficial effect of natural frequencies (as compared to probabilities) was approximately the same: 39 percentage points for the students and 36 percentage points for the physicians. Non-Bayesian Strategies What strategies did the students and the physicians use when they were not reasoning according to Bayes’s rule? From their notes, numerical estimates, and interviews, we were able to identify their strategies in 83% of the cases, using the same criteria as in the identification of Bayesian reasoning. Table 1 lists the ma-

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jor strategies, each of which was also identified for laypeople (Gigerenzer & Hoffrage, 1995, Table 3). One important result is that strategy use was contingent on the menu in which the information was displayed. For the short menu, the most prevalent non-Bayesian strategy was joint occurrence, that is, to use the probability or absolute frequency of disease and positive test. For the standard menu, a strong effect of the information format occurred. When information was communicated in probabilities, the two most frequent strategies relied on the sensitivity of the test and ignored the prevalence of the disease. In 14 (18) cases, the students (physicians) simply mistook the sensitivity for the predictive value—a well-known confusion in reasoning with probabilities in medical, legal, and experimental contexts (e.g., Dawes, 1988; Gigerenzer, 1996). In 10 (20) cases, the students (physicians) subtracted the false positive rate from the sensitivity, a strategy known as This strategy has been discussed as the correct strategy for estimating the covariation between two dichotomous variables, such as disease and symptom (McKenzie, 1994). has also been proposed as a measure of evidential support (Schum, 1994) and as a model of how people assess causal strength (Cheng & Novick, 1992). A shortcut of is the false alarm complement, which was used in 15 of the probability versions. This strategy does not subtract the false alarm rate from the sensitivity (which for most diagnostic tests is close to 100%), but from 100%. With natural frequencies, however, none of these three strategies played a major role. The two most frequent non-Bayesian strategies ignored the sensitivity of the test and focused exclusively on one of the two base rates. In 27 cases (12 for the students, 15 for the physicians), the diagnostic inferences were based only on the prevalence of the disease, and in 12 cases (3 and 9) only on the base rate of a positive test. Thus, natural frequencies not only improved Bayesian inferences, but also encouraged non-Bayesian strategies that rely on the base rates, and discouraged strategies that rely solely on the sensitivity and the false positive rate. In medical diagnostic tasks, the former [p(H) and p(D)] usually yield lower estimates than the latter and and will, thus, be closer to the Bayesian estimate. This is one factor that explains why, with natural frequencies, non-Bayesian strategies resulted in estimates that were closer to the Bayesian answer than with probabilities: an average absolute discrepancy of 20 and 42 percentage points, respectively, for medical students, and 29 and 51 for physicians. The dependency of strategies on menus and formats is one explanation for the frequent observation that people use multiple strategies (Gigerenzer & Hoffrage, 1995; Gigerenzer & Richter, 1990). Furthermore, probability formats seem to generate a high inconsistency of strategy use. For instance, only 38% of the physicians used the same strategy to solve both problems in the probability format, whereas with natural frequencies this number increased to 70%.

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Age and Statistical Education Of all the characteristics known about the physicians, such as gender and specialization, only one was correlated with statistical reasoning: age. Across the two formats, the younger physicians (aged 40 and under) reasoned the Bayesian way in 35% of the cases, the older ones only in 21%. A similar age effect was reported in a study in 1981 (Berwick et al., 1981). The physicians in our study were aware of this difference between young and old, as illustrated by the one physician’s comment, “You should test my daughter; she studies medicine.” Indeed, the percentage of Bayesian inferences obtained from medical students was 37% (for the standard menu and across both formats), similar to that of the younger physicians. Can this age effect be attributed to a shift in university training? We asked the participants after the experiment whether they had heard of Bayes’s rule. Only 10% of the physicians (all among the youngest) had, compared to 40% of the medical students. However, knowledge of Bayes’s rule turned out to be of little assistance. The medical students who stated that they had never heard of Bayes’s rule reasoned the Bayesian way in 47% of the cases, compared to 49% of those who had (across all four versions). Can we at least find an effect of education when the tasks were in probabilities and in the standard menu, which is the format typically used to train medical students? No. The corresponding values were 17% and 19%. Some students wrote that the problem could be solved by Bayes’s rule, but that they had forgotten it. Thus, there appears to be a shift in education: Medical students are more likely to learn Bayes’s rule, but this shift does not transfer into more Bayesian reasoning. We suggest that training students in frequency representation may help to slow down the decay of what students have learned (see below).

AIDS Counseling for Low-Risk Clients An important application of Bayesian reasoning is in AIDS counseling for lowrisk clients. In Germany, for instance, the prevalence of HIV in heterosexual men who are in no known risk group is approximately 0.01%, the specificity of the HIV test (one blood sample; repeated ELISA and Western blot) approximately 99.99%, and the sensitivity approximately 99.9% (specific estimates vary). If a counselor communicates these numbers, the client will most likely not be able to work out his chances of having the virus if he tests positive. Most seem to assume that a positive test means that one has the virus with practical certainty. For instance, in the early days of blood screening in Florida, 22 blood donors (who are typically low-risk persons) were told they were HIV positive; seven committed suicide (Stine, 1996). How do AIDS counselors explain to their clients what a positive test means? We studied AIDS counselors in German public health centers (Gigerenzer, Hoffrage, & Ebert, 1998). One of us visited 20 centers as a client to take 20 HIV tests and make use of the mandatory pre-test counseling. The counselor was asked the

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relevant questions concerning the prevalence, sensitivity, specificity, and what the chances are that the client actually has the virus if he tests positive. Not one counselor communicated the risks to the client in natural frequencies. Instead, they used probabilities and percentages, and in the majority of the counseling sessions the information was either internally inconsistent or incorrect. For instance, one counselor estimated the base rate at approximately 0.1% and the sensitivity and specificity at 99.9%, and concluded that the client’s chance of having the virus if he tests positive is also 99.9%. In fact, 15 out of 20 counselors told their low-risk client that it is 99.9% or 100% certain that he has HIV if he tests positive. If a counselor, however, communicates the information specified above in natural frequencies, insight is more likely: Think of 10,000 heterosexual men like yourself being tested. We expect that one has the virus, and this one will, with practical certainty, test positive. Of the remaining uninfected men, one will also test positive. Thus, we expect that of every two men in this risk group who test positive, only one has HIV. This is the situation you would be in if you tested positive; your chance of having the virus would be roughly 1 to 1, or 50%. With natural frequencies, the client can understand that there is no reason to contemplate suicide if he tests positive. In real-world contexts such as AIDS counseling, the difference between natural frequencies and probabilities can make the difference between hope and despair.

Conclusion Statistical reasoning is an indispensable part of a citizen’s education, similar to the ability to read and write. The last few decades have witnessed much debate on whether minds are equipped with the right or wrong rules for making judgments under conditions of uncertainty. However, the ability to draw inferences from statistical information depends not only on cognitive strategies, but also on the format in which the numerical information is communicated. External representation can “perform” part of the reasoning process. In our studies, natural frequencies improved medical experts’ Bayesian reasoning in every 1 of 4 diagnostic problems, and laypeople’s reasoning in every 1 of 15 problems. The relevance of natural frequencies is not limited to medical diagnosis. As Koehler’s work (e.g., 1996b) demonstrates, the difficulty in drawing inferences from probabilities holds for DNA experts, judges, and prosecutors as well. Nevertheless, in criminal and paternity cases, the general practice in court is to present information in terms of probabilities or likelihood ratios (i.e., ratios of conditional probabilities), with the consequence that jurors, judges, and sometimes the experts themselves are confused and misinterpret the evidence. The O. J. Simpson defense team took notice of the psychological research on information representation and successfully blocked the admission of a DNA expert’s report in which the probative value of blood matches was presented in probabilities and likelihood

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ratios. The prosecution finally presented the evidence in terms of frequencies (Koehler, 1996b). In a recent study, Hoffrage et al. (2000) demonstrated that both law students and jurists profit from natural frequencies: The percentage of Bayesian inferences rose from 3% to 45% when the format of the information concerning DNA fingerprinting changed from probabilities to natural frequencies. Possibly even more important, the probability format led to a higher conviction rate than natural frequencies (for details, see also Hertwig & Hoffrage, 2002). Textbooks and curricula can promote statistical thinking by (a) explaining Bayesian inference in terms of natural frequencies, and (b) teaching people how to translate probabilities and percentages into natural frequencies. Using visual aids, such as tree diagrams and frequency grids, Sedlmeier (1997; Sedlmeier & Gigerenzer, 2001) designed a computerized tutorial that teaches people how to translate probabilities into natural frequencies. Compared with a traditional tutorial that teaches people how to insert probabilities into Bayes’s rule (Equation 1), the immediate effect of the frequency training was approximately twice as high. But how quickly did students forget what they had learned? (As one of the five physicians who stated that they had heard of Bayes’s rule remarked, “We learned such a formula. I have forgotten it.”) In a retest five weeks after the training, the median performance of the group that had received the traditional tutorial decreased (a median of 15% Bayesian responses), whereas the performance of the group that had received training in how to construct frequency representations remained stable at its high level (a median of 90% Bayesian responses). Kurzenhäuser and Hoffrage (2002) implemented both approaches in a traditional classroom tutorial with a blackboard and an overhead projector. The tutorial was designed for medical students, with examples taken from human genetics. The two approaches were evaluated two months later by testing students’ ability to correctly solve a Bayesian inference task with information represented as probabilities. While both approaches improved performance compared to pre-test results, almost three times as many students were able to profit from the representation training as opposed to the rule training. Teaching frequency representations is applicable to different instructional settings and contents. It has proven to be an effective method of teaching Bayesian reasoning that fosters insight and reduces forgetting. One physician wrote in a letter that (…) participating in that study and learning its results is of great importance to me professionally. I’m sure that from now on I will represent medical data to myself in terms of frequencies rather than just glancing over them or being content with some vague idea. The results of our studies illustrate that basic research on reasoning can produce simple and powerful methods of communicating risks that can be applied in various public domains.

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Authors’ Note We are grateful to Maria Zumbeel who conducted the interviews with the physicians. We also thank the Berlin Poison Center, Mathias Licha, Julia Nitschke, and Anke Reimann for their assistance in collecting the data, Valerie M. Chase, Robyn Dawes, Robert M. Hamm, Anita Todd, Angelika Weber, and Jürgen Windeler for their assistance and comments on earlier drafts, and the Deutsche Forschungsgemeinschaft (Ho 1847/1 and SFB 504) for financial support.

References Abernathy, C. M., & Hamm, R. M. (1995). Surgical intuition. What it is and how to get it. Philadelphia, PA: Hanley & Belfus. Bernard, C. (1957). An introduction to the study of experimental medicine (H. C. Greene, Trans.). New York: Dover. (Original work published 1865) Berwick, D, M., Fineberg, H. V., & Weinstein, M. C. (1981). When doctors meet numbers. American Journal of Medicine, 71, 991–998. Casscells, W., Schoenberger, A., & Grayboys, T. (1978). Interpretation by physicians of clinical laboratory results. New England Journal of Medicine, 299,999–1000. Cheng, P. W., & Novick, L. R. (1992). Covariation in natural causal induction. Psychological Review 99, 365–382. Christensen-Szalanski, J. J. J., & Beach, L. R. (1982). Experience and the base-rate fallacy. Organizational Behavior and Human Performance, 29, 270–278. Christensen-Szalanski, J. J. J., & Bushyhead, J. B. (1981). Physicians’ use of probabilistic information in a real clinical setting. Journal of Experimental Psychology: Human Perception and Performance, 7, 928–935. Cosmides, L., & Tooby, J. (1996). Are humans good intuitive statisticians after all? Rethinking some conclusions from the literature on judgment under uncertainty. Cognition, 58,1–73. Daston, L. J. (1988). Classical probability in the Enlightenment. Princeton, NJ: Princeton University Press. Dawes, R. M. (1988). Rational choice in an uncertain world. San Diego, CA: Harcourt, Brace, Jovanovich. Dowie, J., & Elstein, A. (1988). Professional judgment: A reader in clinical decision making. Cambridge, UK: Cambridge University Press. Eddy, D. M. (1982). Probabilistic reasoning in clinical medicine: Problems and opportunities. In D. Kahneman, P. Slovic, & A. Tversky (Eds.), Judgment under uncertainty: Heuristics and biases (pp. 249–267). Cambridge, UK: Cambridge University Press. Gallistel, C. R., & Gelman, R. (1992). Preverbal and verbal counting and computation. Cognition, 44, 43–74. Gigerenzer, G. (1993). The superego, the ego, and the id in statistical reasoning. In G. Keren & C. Lewis (Eds.), A handbook for data analysis in the behavioral sciences: Methodological issues (pp. 313–339). Hillsdale, NJ: Erlbaum. Gigerenzer, G. (1996). The psychology of good judgment: Frequency formats and simple algorithms. Journal of Medical Decision Making, 16, 273–280. Gigerenzer, G., & Hoffrage, U. (1995). How to improve Bayesian reasoning without instruction: Frequency formats. Psychological Review, 102, 684–704. Gigerenzer, G., & Hoffrage, U. (1999). Overcoming difficulties in Bayesian reasoning: A reply to Lewis & Keren and Mellers & McGraw. Psychological Review, 104, 425–430. Gigerenzer, G., Hoffrage, U., & Ebert, A. (1998). AIDS counselling for low-risk clients. AIDS Care, 10, 197–211.

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Gigerenzer, G., & Richter, H. R. (1990). Context effects and their interaction with development: Area judgments. Cognitive Development, 5, 235–264. Gigerenzer, G., Swijtink, Z., Porter, T., Daston, L., Beatty, J., & Krüger, L. (1989). The empire of chance: How probability changed science and everyday life. Cambridge, UK: Cambridge University Press. Hertwig, R., & Hoffrage, U. (2002). Technology needs psychology: How natural frequencies foster insight in medical and legal experts. In P. Sedlmeier & T. Betsch (Eds.), Etc.: Frequency processing and cognition (pp, 285–302). New York: Oxford University Press. Hoffrage, U., & Gigerenzer, G. (1998). Using natural frequencies to improve diagnostic inferences. Academic Medicine, 73, 538–540. Hoffrage, U., Lindsey, S., Hertwig, R., & Gigerenzer, G. (2000). Communicating statistical information. Science, 290, 2261–2262. Jonides, J., & Jones, C. M. (1992). Direct coding for frequency of occurrence. Journal of Experimental Psychology: Learning, Memory, and Cognition, 18, 368–378. Kleiter, G. D. (1994). Natural sampling: Rationality without base rates. In G. H. Fischer & D. Laming (Eds.), Contributions to mathematical psychology, psychometrics, and methodology (pp. 375–388). New York: Springer. Koehler, J. J. (1996a). The base rate fallacy reconsidered: Descriptive, normative and methodological challenges. Behavioral and Brain Sciences, 19,1–53. Koehler, J. J, (1996b). On conveying the probative value of DNA evidence: Frequencies, likelihood ratios, and error rates. University of Colorado Law Review, 67, 859–886. Kurzenhäuser, S., & Hoffrage, U. (2002). Teaching Bayesian reasoning: An evaluation of a classroom tutorial for medical students. Medical Teacher, 24, 531–536. Mandel, J. S., Bond, J. H., Church, T. R., Snover, D. C., Bradley, G. M., Schuman, L. M., & Ederer, F. (1993). Reducing mortality from colorectal cancer by screening for fecal occult blood. New England Journal of Medicine, 328, 1365–1371. Marshall, E. (1993). Search for a killer: Focus shifts from fat to hormones. Science, 259, 618–621. McKenzie, C. R. (1994). The accuracy of intuitive judgment strategies: Covariation assessment and Bayesian inference. Cognitive Psychology, 26, 209–239. Paulos, J. A. (1988). Innumeracy: Mathematical illiteracy and its consequences. New York: Vintage Books. Politser, P. E. (1984). Explanations of statistical concepts: Can they penetrate the haze of Bayes? Methods of Information in Medicine, 23, 99–108. Real, L. A. (1991). Animal choice behavior and the evolution of cognitive architecture. Science, 253. 980–986. Schum, D. A. (1994). The evidential foundations of probabilistic reasoning. New York: Wiley. Sedlmeier, P. (1997). BasicBayes: A tutor system for simple Bayesian inference. Behavior Research Methods, Instruments, & Computers, 29,328–336. Sedlmeier, P., & Gigerenzer, G. (2001). Teaching Bayesian reasoning in less than two hours. Journal of Experimental Psychology: General, 130, 380–400. Sedlmeier, P., Hertwig, R., & Gigerenzer, G. (1998). Are judgments of the positional frequencies of letters systematically biased due to availability? Journal of Experimental Psychology: Learning, Memory, and Cognition, 24,754–770. Stigler, S. M. (1983). Who discovered Bayes’ theorem? American Statistician, 37, 296–325. Stine, G. J. (1996). Acquired immune deficiency syndrome. Biological, medical, social and legal issues. Englewood Cliffs, NJ: Prentice Hall. Tversky, A., & Kahneman, D. (1982). Evidential impact of base rates. In D. Kahneman, P. Slovic, & A. Tversky (Eds.), Judgment under uncertainty: Heuristics and biases (pp. 153–160). Cambridge, UK: Cambridge University Press. Windeler, J., & Köbberling, J. (1986). Empirische Untersuchung zur Einschätzung diagnostischer Verfahren am Beispiel des Haemoccult-Tests [An empirical study of the judgments about diagnostic procedures using the example of the Hemoccult test]. Klinische Wochenschrift, 64, 1106–1112.

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Appendix: The Four Diagnostic Problems We present the full text for the four versions of the colorectal cancer problem. For the other three diagnostic tasks we present only the natural frequency, standard menu version, from which the numerical information for the other three versions can be derived.

Problem 1: Colorectal Cancer To diagnose colorectal cancer, the hemoccult test—among others—is conducted to detect occult blood in the stool. This test is performed not only from a certain age onward, but also in a routine screening for early detection of colorectal cancer. Imagine conducting a screening using the hemoccult test in a certain region. For symptom-free people over 50 years old who participate in screening using the hemoccult test, the following information is available for this region: Probabilities—Standard Menu The probability that one of these people has colorectal cancer is 0.3%. If one of these people has colorectal cancer, the probability is 50% that he or she will have a positive hemoccult test. If one of these people does not have colorectal cancer, the probability is 3% that he or she will still have a positive hemoccult test. Imagine a person (aged over 50, no symptoms) who has a positive hemoccult test in your screening. What is the probability that this person actually has colorectal cancer? % Probabilities—Short Menu The probability that one of these people has colorectal cancer and a positive hemoccult test is 0.15%. The probability that one of these people has a positive hemoccult test is 3.15%. Imagine a person ... Natural Frequencies—Standard Menu Thirty out of every 10,000 people have colorectal cancer. Of these 30 people with colorectal cancer, 15 will have a positive hemoccult test. Of the remaining 9,970 people without colorectal cancer, 300 will still have a positive hemoccult test. Imagine a sample of people (aged over 50, no symptoms) who have positive hemoccult tests in your screening. How many of these people actually do have colorectal cancer? of Natural Frequencies—Short Menu Fifteen out of every 10,000 people have colorectal cancer and a positive hemoccult test. Three hundred and fifteen out of every 10,000 people have a positive hemoccult test. Imagine a sample …

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Problem 2: Breast Cancer To facilitate early detection of breast cancer, from a certain age onward, women are encouraged to participate in routine screening at regular intervals, even if they have no obvious symptoms. Imagine conducting such a breast cancer screening using mammography in a certain geographical region. For symptomfree women aged 40 to 50 who participate in screening using mammography, the following information is available for this region. Ten out of every 1,000 women have breast cancer. Of these 10 women with breast cancer, 8 will have a positive mammogram. Of the remaining 990 women without breast cancer, 99 will still have a positive mammogram. Imagine a sample of women (aged 40–50, no symptoms) who have positive mammograms in your breast cancer screening. How many of these women actually do have breast cancer? of

Problem 3: Ankylosing Spondylitis To diagnose ankylosing spondylitis (Bekhterev’s disease), lymphocyte classification—among other tests—is conducted: For ankylosing spondylitis patients the HL-Antigen-B27 (HLA-B27) is frequently present, whereas healthy people have it comparatively seldom. Of great importance is the presence of HLA-B27 for people with nonspecific rheumatic symptoms, in which case a diagnosis of ankylosing spondylitis will be considered. In this case, lymphocyte classification will be used for differential diagnosis. Imagine conducting an HLA-B27 screening using a lymphatic classification in a certain region. For people with nonspecific rheumatic symptoms who participate in such a screening, the following information is available for this region. Fifty out of every 1,000 people have ankylosing spondylitis. Of these 50 people with ankylosing spondylitis, 46 will have HLA-B27. Of the remaining 950 people without ankylosing spondylitis, 76 will still have HLA-B27. Imagine a sample of people (with nonspecific rheumatic symptoms) who have HLA-B27 in your screening. How many of these people do actually have ankylosing spondylitis? of

Problem 4: Phenylketonuria On the fifth day after birth, blood will be taken from all newborns in a routine screening to test for phenylketonuria (Guthrie test). Imagine working at a women’s clinic. The following information is available for newborns in the region in which the clinic is situated. Ten out of every 100,000 newborns have phenylketonuria. Of these 10 newborns with phenylketonuria, all 10 will have a positive Guthrie test. Of the remaining 99,990 newborns without phenylketonuria, 50 will still have a positive

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Guthrie test. Imagine a sample of newborns being delivered at your clinic who have a positive Guthrie test. How many of these newborns do actually have phenylketonuria? of

Chapter 14 Statistical Scientific Evidence and Expertise in the Courtroom Samuel Lindsey Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany [email protected]

No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best. (Learned Hand, 1901, p. 40) Expert knowledge now not only aids the law, but is a necessary and crucial part of it. Advances of science and technology create cases in which the verdicts, and even the facts themselves, depend on the knowledge of experts. The law then balances on a collaboration of experts, scientists, and judges. Improving collaboration, to ensure it suits the law and the society it serves is, thus, a growing concern, and this chapter explores one way to make such improvements. Whereas law relies mainly on words from natural language, science relies, in addition, on statistics from empirical measurement. The use of statistics has a controversial history in law, but they are often an indispensable part of scientific evidence. Unfortunately, they are also easily and often confused. This chapter addresses the necessary interdependence of science and law using forensic DNA analysis as one of its most prominent examples. It begins with a discussion of the judicial treatment of scientific evidence, followed by an elaboration of some of the complicated aspects of that treatment. It then reviews novel empirical research bearing on some of the problems judges and jurors may have with the statistical complexities of scientific evidence in general, using forensic DNA analysis as a particular example. Necessity of Collaboration Since scientific, technical, or other specialized knowledge is often required for understanding evidence, or for determining the facts of a case, the Anglo-American and Continental legal traditions both codify the needed collaboration between jurists and other experts (US Federal Rules of Evidence, 702 and 706, in the USA, StrafProzessOrdnung, §82 and §83, in Germany). Forensic DNA analysis, for example, requires forensic experts to determine if the DNA profile of an evidentiary sample matches the DNA profile of a suspected source, and the result

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cannot be interpreted without a sophisticated statistical calculation of how frequent certain genotypic features appear in a specified population. Judges themselves typically lack the scientific training required to evaluate these results, and the forensic use of DNA testing illustrates how profound the interdependence of science and law can be. The evidence provided by the expert can mean the difference between conviction and acquittal, or even life and death. Forensic DNA analysis is just one example of the law requiring experts. Medical malpractice, product liability, patent, and antitrust cases can also require experts. Even statutory law can depend on the knowledge of experts, in formulating laws of citizenship, for example, or even civil rights, in the light of new biotechnologies. The consequences of legal and scientific collaboration confer the responsibility of ensuring that any expert analysis is accurate and appropriate. The expertise emerging from evolving biotechnology demands all the more caution, since historical embarrassments from phrenology to physiology hold harsh lessons for the unwary (Friedman, 1910; Gould, 1983; Herschel, 1887; Waid & Orne, 1982). Indeed, the US Supreme Court has given US judges an explicit responsibility to make sure that expert evidence is scientifically sound. In a wake of criticism over “junk science” in the courtroom leading to an endless “battle of experts,” judges must now determine at the outset whether a purported expert will provide genuine scientific knowledge (William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., 1993; Huber, 1991). But, as Justice Breyer acknowledged, “judges are not scientists and do not have the scientific training that can facilitate the making of such decisions” (General Electric Co. v. Joiner, 1997). Nevertheless, the requirements of Daubert supersede earlier standards for admitting expert scientific knowledge as evidence. In Frye v. United States (1923), the Court had ruled that expert knowledge was scientific if it had gained “general acceptance in the particular field in which it belongs” (p. 1014), placing the responsibility for its assessment with those most qualified in the scientific community. Trial judges needed little or no scientific expertise for the Frye test, although determining what qualifies as a field, and general acceptance within it, is not easy. This “general acceptance” standard has scientific experts, rather than legal experts, determining the admissibility of evidence, and it was retained as only one of four considerations of scientific evidence in Daubert: (1) Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. (…) (2) Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. (…) (3) Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, and the existence and maintenance of standards controlling the techniques operation. (4) Finally, “general acceptance” may still have a bearing on the inquiry. These criteria require judges to have a more active duty as evidentiary gatekeepers, although again, because judges are not scientists, performing that duty is not easy. Dissenting Chief Justice Rehnquist noted in Daubert that:

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[The materials in this case] deal with definitions of scientific knowledge, scientific method, scientific validity, and peer review—in short, matters far afield from the expertise of judges. (…) I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role. (p. 2800) Unless judges become experts themselves, in a vast variety of sciences, it is difficult to imagine how they will evaluate scientific claims. Problem of Collaboration This difficulty is compounded because scientists may disagree. Taking again the example of forensic DNA analysis, scientists have disagreed about how to compute various statistics required to interpret the results (National Research Council [NRC], 1992,1997). It would be very unlikely for a suspect to share a DNA profile with some incriminating evidence by coincidence. But just how unlikely this is requires an estimate of how frequently specific combinations of genotypic features (i.e., the DNA profile) occur in a specific population based upon the modeling and sampling assumptions of population genetics. The relevant population may be a certain racial group or, instead, it may be an artificial probability space created by multiplying together the frequencies with which the individual genetic features of the profile appear in a population.1 Scientific disagreement concerning the calculation of these estimates has twice been the subject of an evaluation by the National Academy of Sciences of the forensic application of DNA analyses (NRC, 1992, 1997). These evaluations disagree on various points, and disagreement here, among preeminent experts, leaves little solace to a judge reckoning with genetics and statistics. Moreover, certain technical questions are explicitly left to the courts, such as which population should be used for estimating a profile frequency when the racial group of a perpetrator is unknown. Any computation of a frequency provides only an estimate of how likely a DNA match would be by chance alone. Just because a DNA match is not likely to occur by chance alone does not mean a suspect is guilty, however, so the significance and probative value of that estimate is left to the court. Unfortunately, there is widespread confusion—by judges, jurors, and even DNA experts themselves—over what this estimate means. The chance of a coincidental match is misinterpreted, for example, as the likelihood that an accused person is innocent. One DNA expert in the US affirmed in court that “there would be a 1 in 5 billion chance that anyone else could have committed 1 This probability space can easily exceed the human population. For example, the estimated frequency of President Bill Clinton’s DNA profile was 1 in 7.87 trillion Caucasians (§ I.B.1: Physical Evidence. Final Report of the Office of the Independent Counsel to the United States House of Representatives). But, even this infinitesimal number is consistent with a chance of 1 in 1,430 that at least one person out of the 5.5 billion people on earth shares this DNA profile.

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the crime” (State v. Bethune, 1991, p. 2327), and in Germany the President of the German Society for Forensic Medicine (Deutsche Gesellschaft für Rechtsmedizin) claimed that a DNA match identifies the perpetrator with 100% certainty (“eine hundertprozentige Sicherheit, ihn zu identifizieren”)2 (see Koehler, 1993, for more extensive examples). The statistic is also misinterpreted as the likelihood that a particular person is, or is not, the source of the incriminating evidence. A leading German expert, for instance, employs a likelihood ratio where it is certain that a matching defendant is the source, that is, the trace came from the suspect (= 1, in the case of matching characteristics; = 0, in the case of no matching characteristics) (Die Spur stammt von Tatverdächtigen [= 1, falls Übereinstimmung der Merkmale; = 0, falls keine Übereinstimmung]). On the other hand, American DNA experts have often misinterpreted the chance of a coincidental match as the probability that the DNA evidence could have come from anyone else other than the defendant, leading judges to misunderstand this number similarly in their opinions as “the probability of someone else leaving” the genetic trace (e.g., Wilson v. State, 1998). Misinterpretations aside, the probability of finding a DNA match by chance alone is not the only statistic bearing on a DNA analysis nor is it necessarily the most relevant, A conditional probability for finding another person in the population with a particular DNA profile, given that there is at least one person with that profile already, might be computed instead (Weir, 1999). Even so, any statistic that reflects only the rarity of the DNA profile can be misleading because it ignores the much more likely probability of a laboratory error. Laboratory errors do occur despite widespread expert testimony that false positive errors are impossible (Koehler, 1993, 1996; Thompson, 1995).3 In fact, laboratory proficiency tests reveal that the chance of a laboratory error is typically several orders of magnitude greater than the chance of a coincidental match (Koehler, Chia, & Lindsey, 1995; NRC, 1997). The chance of a laboratory error thus eclipses the chance of a coincidental match because the probability of a laboratory error is so much larger. A judge or juror may seem helpless in the face of such uncertainty and confusion. Hence, some form of gatekeeping is crucial. But, deferring to experts is not gatekeeping, especially if it perpetuates the sort of confusions just described, Daubert’s third criterion requires considering the “known or potential rate of error” of a scientific technique, and the courts, thus, have an opportunity as well as an obligation to examine evidence bearing on that consideration.

2 Frankfurter Allgemeine Zeitung, 14 April 1998, No. 86, p. 13. 3

False positive errors misidentify a person as the source of the forensic DNA evidence although that person is, in fact, not the source. But, there can also be false negative errors—failing to identify a person as the source of the forensic DNA evidence when that person is, indeed, the source. False positive results may potentially lead to wrongful conviction, whereas false negative results may lead to wrongful acquittal.

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Communicating Statistical Evidence The type of evidence bearing on that consideration, however, will be statistical and potentially just as confusing as all the misstatements described above. Consider, for instance, the likelihood ratio, which is often recommended to convey the significance of a DNA match. A likelihood ratio compares the likelihood of an event occurring under alternative binary assumptions: For instance, the probability of a DNA match assuming a suspect is the source of the evidence compared to the probability of a DNA match assuming the defendant is not the source.4 To take one famous example, in the televised trial of O. J. Simpson, there was a likelihood ratio computed to assess “the strength of that DNA evidence E by determining the probabilities of the evidence under the alternative hypotheses that either: [O.J.Simpson] had contact with the Bundy scene, or [O.J.Simpson] did not have contact with the Bundy scene” (Weir, 1995). Notice that the strength of the DNA evidence can vary with the alternative hypotheses chosen for computing the corresponding likelihood ratios—for it is easy to imagine someone having contact with a crime scene without being the perpetrator of a crime. Alternatively, genetic material at a crime scene could come from someone who has never been there, if the evidence was planted, for example, as the defense in this case had alleged (People v. Simpson, 1995). The mathematical expression of such likelihood ratios, for any hypothesis H and any evidence E, is simply

a ratio of the probabilities of finding the evidence E (e.g., DNA match) under the alternative hypotheses H and (e.g., suspect either is, or is not, the source of the evidence). In most legal proceedings involving forensic evidence, however, it is rather the reverse of these conditional probabilities that must ultimately be decided—given the evidence, what is the relative likelihood of the given hypothesis:

Bayes’s theorem bridges the inference from one ratio to the other, adjusting the probability of the hypothesis for the advent of some piece of evidence. The relative likelihood of the hypotheses, given the evidence, is known as a posterior likelihood ratio since it is the product of the relative likelihood of the evidence, given the alternative hypotheses and the assumed likelihood of the hypotheses before any evidence is considered:

4

Some legal scholars have adopted this comparison as the standard of relevance, the degree to which the probability of finding the evidence under one hypothesis differs from the probability of finding that same evidence under another (Lempert, 1977; US Federal Rule of Evidence 401).

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In natural language, these likelihood expressions are ungainly and easy to confuse. Compare the stated relative likelihood of a DNA match assuming a certain suspect is the source of the evidence—it is one million times more likely that the evidence would match if the suspect was the source of the evidence than if he was not—with the stated relative likelihood of the suspect being the source of the evidence assuming there is a DNA match—it is one million times more likely that the suspect is the source of the evidence than that he is not, given this DNA match. Such subtle differences of meaning may be difficult to discern when uttered in court. Moreover, psychological research shows that people often confuse probabilities generally, not recognizing the difference between P(E|H) and P(H|E) and conflating conditional probabilities with conjunctive ones (see Hoffrage & Gigerenzer, this volume). Koehler (1996) studied the psychological impact of stating likelihood ratios on legal outcomes directly. Mock jurors were asked to estimate the probability that a defendant in a rape case was the source of the DNA evidence, which was presented with likelihood-ratio statements such as the ones mentioned above. The different expressions of the likelihood ratios altered the jurors’ probability estimates of the defendant being the source of the DNA evidence and made a difference in how the jurors decided the case. Conviction rates increased from 21% when the evidence was presented only with the frequency of the DNA profile, to 35% and 41% when it was presented with one or the other of the stated likelihood ratios. These and other results show that choices about the presentation of statistical evidence can have dramatic consequences. The same evidence, presented in different ways, can alter the outcome of a case (Koehler et al., 1995). Psychological research over the past decade, however, has shown that certain ways of presenting statistical information can alleviate confusion and improve statistical reasoning dramatically (Gigerenzer & Hoffrage, 1995; Hoffrage & Gigerenzer, this volume). A key distinction is between standardized probabilities and raw frequencies. Statistics standardized into probability ratios obscure the actual counts on which they are based, whereas laying those counts bare allows for an intuitive understanding of what the statistics actually represent. Researchers have documented this effect by comparing how people comprehend the same statistical information when presented in various probability and frequency formats (Gigerenzer & Hoffrage, 1995). Statistical statements involving frequencies are mathematically equivalent to statistical statements involving probabilities, so that the Bayesian bridge of statistical inference spans both. Bayes’s theorem provides formulae to determine the probability of some hypothesis H (e.g., the suspect is the source of the evidence) given a certain piece of evidence E (e.g., DNA match) with regard to some specified prior probability concerning the hypothesis (e.g., the frequency of the genetic profile in the population or the frequency of error in the laboratory). But, Bayes’s theorem differs radically in the frequency and probability formats. Whereas the probability format requires the equation

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where conditional probabilities and base rates have to be computed and multiplied to find the correct answer, the frequency format requires merely separating out the people who are potential sources from all the people who match:

Lindsey, Hertwig, and Gigerenzer (in press) investigated the effect of presenting the same statistical evidence in both frequency and probability formats by asking advanced law students and law professionals to evaluate realistic court case files5 that were closely based on actual rape cases involving DNA evidence. Each case included the written testimony of an expert (Gutachten) who analyzed the DNA samples. The expert reported that the base rate of the DNA profile recovered from the crime scene was one in a million (0.0001%) and that it matched the DNA profile of the defendant. The expert also stated that a DNA analysis is practically certain to find a DNA match if a person actually has a matching DNA profile (i.e., true positive result, or the analysis’ sensitivity). In addition, the expert stated that with this particular kind of DNA technology, the probability of a laboratory error was approximately 1 in 100,000 (0.001%), that is, approximately 100 of those who do not have the matching DNA profile could be said to match in the analysis (false positive results). In light of this evidence, the participants were asked to estimate the probability (1) that the suspect in each case actually had the matching DNA profile in question, P(profile), and (2) that the suspect was actually the source of the evidence, P(source). They were then asked to render a verdict of guilty or not guilty. A variation of the false positive error rate, which was based on laboratory proficiency tests, was also presented in another experimental condition, increasing the probability of an error to as high as 0.3% (Koehler et al., 1995). This second expert testimony was identical to the first except for this change in the false positive error rate. Once again, each participant was asked to answer the same two numerical questions as before and again to render a verdict. The numerical information provided by the expert was presented to each participant in two different formats. One format stated all the information in probabilities (e.g., 0.1%), and the other format stated it in frequencies (e.g., 1 out of 1,000). Figure 1 shows examples of the testimony in each format. After evaluating one case file in either a frequency or probability format, each participant was given a second case file with expert testimony in the format different from the first. They then answered the same questions as before. All participants were randomly assigned to conditions where the different formats of expert testimony (frequency or probability), their order (first or second), and the details of the case were varied systematically and counterbalanced. 5 Criminal trials in Germany proceed in sealed case files (Strafakten) that document all legal proceedings from the initial charges to the final disposition of the court.

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Figure 1. Expert testimony concerning mathematically identical statistical evidence expressed in two different formats. The results showed that the same evidence had dramatically different effects on both statistical reasoning and judicial decision making when presented in the different formats.6 The proportion of guilty verdicts was 50% to 100% greater in the probability format than in the frequency format, for both the law students and the professional jurists in every condition. Figure 2 displays their overall verdicts averaged across conditions. The different formats of the statistical evidence also affected mathematical reasoning and statistical inference. All participants had to infer the conditional probabilities of having a DNA profile given a DNA match, and of being the source of the evidence given a DNA match. As Figure 2 shows, there were far more correct Bayesian answers in the frequency format than in the probability format, in line with findings over the last decade. Only one of the students and a few of the professionals, that is, 0% to 10% respectively, could derive the correct probabilities in the probability format. In contrast, about 40% to 50% of the law student sample and 70% to 75% of the jurist sample spontaneously derived the correct probabilities in the frequency format, as shown in Figure 3. These results were all the more surprising because half the participants reviewed the evidence expressed in terms of frequencies just before viewing that same evidence expressed in terms of probabilities. The statistics in the two formats were 6 Given the authentic nature of the materials, the participants took the cases seriously. Most spent approximately two hours and some two and a half hours evaluating the two case files. All results were replicated using variations in the base rate of the DNA profile (e.g., 0.001 or 0.000001), paying participants with both a flat fee and an additional bonus for each correct Bayesian response. These manipulations did not alter any of the results reported here.

Statistical Scientific Evidence and Expertise in the Courtroom

Figure 2. Proportion of “guilty verdicts.”

Figure 3. Proportion of correct Bayesian inferences.

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mathematically identical; they were not psychologically identical, however, and not without legal consequence. The psychological effect of presenting statistical evidence in one way rather than another is not limited to forensic DNA analysis. Similar considerations concerning the presentation of statistical evidence apply whenever courts must examine such evidence. The quantitative nature of science provides a common currency in which scientists can gather and analyze their evidence, but their evidence requires special considerations in court. The judicial gatekeeper, untrained in science, must now be able to evaluate claims made in the name of science. Following the Continental tradition, the court may appoint its own expert to assist monitoring the hired scientific claims of experts on both sides (Federal Rule of Evidence 706). But, the court-appointed expert opinion may, then, have undue influence and subvert the authority of the court. This chapter suggests that there are methods that can engender the necessary collaboration between science and the law, without relying on scientific experts alone, but by using psychological principles to provide insight without expertise. A crucial first step in scientific and legal collaboration is to ensure that judges and scientists can understand each other since, in the end, they are the experts who will determine what the evidence is.

References Fienberg, S. E. (Ed.). (1989). The evolving role of statistical assessments as evidence in the courts. New York: Springer. Friedman, L. M. (1910). Expert testimony: Its abuse and reformation. Yale Law Journal, 19, 247– 257. Gigerenzer, G., & Hoffrage, U. (1995). How to improve Bayesian reasoning without instruction: Frequency formats. Psychological Review 102,684–704. Gould, S. J. (1983). The mismeasure of man. New York: Norton. Hand, L. (1901). Historical and practical considerations regarding expert testimony. Harvard Law Review 15, 40–58. Herschel, C. (1887). Services of experts in the conduct of judicial inquiries. American Law Review, 21, 571–577. Huber, P. W. (1991). Galileo’s revenge: Junk science in the courtroom. New York: Basic Books. Kaye, D. H., & Koehler, J. J. (1991). Can jurors understand probabilistic evidence? Journal of the Royal Statistical Society, 154, 75–81. Koehler, J. J. (1993). Error and exaggeration in the presentation of DNA evidence at trial. Jurimetrics, 34, 21–39. Koehler, J. J. (1996). On conveying the probative value of DNA evidence: Frequencies, likelihood ratios, and error rates. University of Colorado Law Review, 67, 860–886. Koehler, J. J., Chia, A., & Lindsey, S. (1995). The random match probability (RMP) in DNA evidence: Irrelevant and prejudicial. Jurimetrics, 35, 201–219. Lempert, R. O. (1977). Modelling relevance. Michigan Law Review, 75, 1021–1057. Lindsey, S., Hertwig, R., & Gigerenzer, G. (in press). Fair representation at trial: Statistical evidence and statistical thinking. Manuscript submitted for publication. National Research Council (NRC). (1992). DNA technology in forensic science. Board on Biology. Washington, DC: National Academy of Sciences.

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National Research Council (NRC). (1997). The evaluation of forensic DNA evidence. Committee on DNA forensic science: An update. Washington, DC: National Academy of Sciences. Thompson, W.C. (1995). Subjective interpretation, laboratory error and the value of DNA evidence: Three case studies. Genetica, 96, 153–168. Waid, W. M., & Orne, M. T. (1982). The physiological detection of deception. American Scientist, 70, 402–409. Weir, B. S. (1995). People v. Simpson: Statistical interpretation of the DNA evidence 2. Unpublished manuscript. Weir, B. S. (1999). Are DNA profiles unique? Statistics and Biostatistics Colloquium. University of Virginia.

Cases Cited Federal Rules of Evidence. Frye v. United States, 293 F. 1013 (DC Cir.) (1923). General Electric Co. v. Joiner, No. 96–188; 1997 US LEXIS 7503, December, 15, 1997. People v. Simpson, No. BA 097211 Cal. Super. Ct. L.A. County (1995). State v. Bethune, 821 SW 2d 222 (Tex. App. 1991) Trial Transcript p. 2327. William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., 509 US 579 (1993). Wilson v. State, Ark. S. Ct. (1998).

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Chapter 15 The Authority of Representations Elke Kurz-Milcke College of Computing, Georgia Institute of Technology, Atlanta, Georgia, USA [email protected]

Experts are regarded as authorities because of their knowledge, skill, and professional credentials. Authority is often thought to refer to “an interpersonal relationship in which one person looks upon another as superior” (International Encyclopedia of Sociology, 1995, p. 105). In this chapter, I argue that apart from this particular understanding of authority, namely, as a hierarchical relationship between persons, there is another, arguably, deeper sense of authority that is relevant to the study of experts. This chapter fathoms the authority of representations. I present a case study in which an expert, a mathematician, solved a calculus problem (Kurz, 1997, 1998; Kurz & Tweney, 1998). Admittedly, a case of problem solving that is removed from issues of societal and political urgency to the (more or less undisturbed) quietness of the office of a university professor working out the solution to a rate-flow problem. My aim is to illustrate how the concept of authority can contribute to our understanding of experts’ reasoning.

An Enlightenment View of Authority What does authority mean in relation to representations? How can it foster insight into reasoning processes? My analysis builds on an understanding of representations in terms of agency. With this approach, the cognitive realm is characterized in terms of the manipulation of objects, and is part and partial to human agency; human agency involves the manipulation of objects, including material objects, images, and symbols (Gooding, 1990; Kurz & Tweney, 1998). In the case of mathematical problem solving, that I present below, numerals, numbers, differentials, and equations were among the relevant objects, but also a sketch of a physical system drawn on a piece of paper. I offer a summary presentation of the experts’ reasoning to illustrate how mathematical representations entail specific types of agency and how they function as authorities. An issue related to the authority of representations has been discussed in psychological literature and in literary studies under the heading of The politics of

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representation (Holquist, 1983; Shapiro, 1988). In a conflict, proponents of differing positions can attempt to dominate modes of representation, and (…) if successful, a hierarchy is formed, in which one mode of representing the world (its objects, events, people, etc.) gains primacy over others, transforming modes of representation from an array on a horizontal plane to a ranking on a vertical plane (Mehan, 1993, p. 241). A prime example in the history of mathematics is the development of the calculus (Bertoloni-Meli, 1993). In the 18th century, the conflict over the primacy in the invention of the calculus was even colored by nationalism: Newtonian calculus and notation reigning, on one side, and Leibnizian calculus and notation, on the other side of the English Channel. For a number of reasons, multiplicity of representation has remained characteristic of the practice of calculus and analysis to this day. Similarly, probability theory is characterized by differing and alternative representations of uncertainty and risk (Gigerenzer & Hoffrage, 1995; Hoffrage & Gigerenzer, this volume). Related to the very important issue of how a “ranking” of representations is formed and sustained, the authority of representations, as I conceive it, concerns the process of achieving sustainable representations. Preceding the case study on mathematical problem solving and its analysis in terms of agency and authority, the next sections detail the concept of authority. I rely in this task on Hannah Arendt’s (1994) essay “What is authority?” (Was ist Autorität?), originally published in 1957, and on Kant’s (1784/1988) Answer to the question: “What is Enlightenment?” in particular, on an analysis of Kant’s argument by Onora O’Neill (1989).

What Is Authority? According to Arendt (1994), authority is neither a power that relies on force, nor one that relies on argument. Argument presumes a relationship between equals, whereas authority denotes a relationship that is hierarchical. Because authority is commonly associated with obedience it is often confused with a power that applies force to exert its influence. But, what then is authority? Arendt’s (1994) answer takes the reader to Hellas and Rome: Authority, as known in the political tradition of the Western world, “has existed for a very long time, but not always,” and is “at least in its positive aspects exclusively Roman” (Arendt, 1994, p. 170).1 Only the Romans came to distinguish authority from power for their 1

All citations from Arendt (1994) are translated by Kurz-Milcke. The essay titled Was ist Autorität? was first published in 1957 in a collection of essays by Arendt. In the years 1956 to 1968, Arendt published five essays with this, or a similar title, two in German and three in English (for details see Arendt, 1994, p. 403f.). The German essay that was republished in Arendt (1994) is similar, but not a translation of the English essay What was authority? which appeared in 1958 in Nomos: Yearbook of the American Society for Political and Legal Philosophy, 1, 81–112.

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political institutions. Furthermore, the Romans’ conviction to require “founding fathers” in all matters led them to (...) transfer their political concept of authority and tradition to the intellectual world of the Greeks where they found their intellectual forefathers which they at once turned into authorities, no less in art and poetry than in thought and philosophizing (Arendt, 1994, p. 191). The Greeks Plato, as well as Aristotle, sought to legitimate political power in order to halt the dilapidation of the Polis and to rejuvenate its political life. According to Arendt (1994, p. 171), the Greeks’ experience with power was such that in the private sphere the head of the household, called the despot, had complete power over its members, family, and slaves. Outside the private sphere, power was known to the Greeks only as either tyrannis, which meant the banishment of citizens into the private sphere and the use of force against them, or as a command in the context of warfare. The first case constituted an unacceptable situation in the Greeks’ political understanding, the second was conditioned on an exceptional situation. Therefore, neither of these cases could serve the Greeks as a model of power within the Polis, their public, political arena, which was constituted of despots, all of them rulers and formally equal in this capacity. In his attempt to establish an acceptable form of political power, Plato proposed a number of models, among them the relationship between the shepherd and his herd, the ships mate and his passengers, the physician and his patient, the master and his slave. With these models, either superior knowledge and skill commanded obedience or the partners were thought to belong to distinct categories, human and non-human, again justifying a claim to obedience. Plato also envisioned a model in which philosophy and, thus, the philosopher was in power. The philosopher, he believed, is able to turn the ideas of the good and the useful into rules and standards, even laws, and in this way “the philosopher king” could settle human affairs, “once and for all” (p. 182). However, where Plato saw a “rule of reason,” Aristotle recognized a “tyranny of reason.” For Aristotle, “nature,” not philosophy, had to be the basis for a justification of political power. His favorite model was the difference between the younger and the older generations. By such naturally furnished differences, “nature,” Aristotle sustained, “destined the ones to be ruled and the others to rule” (p. 182). According to Arendt, this method of reasoning caught Aristotle in a state of tension, even contradiction. In Aristotle’s and common Greek understanding, citizens were part of two ways of life, the private which guaranteed survival and the public which facilitated the “good life” (p. 183). In this understanding, the private life was prerequisite to the political life, and the freedom of the political sphere commenced where the necessity of ruler and ruled ceased to be important. Thus, Aristotle found himself in a position where, on the one hand, he claimed that “every polity is constituted of rulers and ruled,” and, on the other hand, that “the Polis is a collective of equals” (p. 182). Similarly, his

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model of the younger versus the older generation referred to the “natural” human being, not the individual who had managed his life and wanted the “good life” (Arendt, 1994, p. 185). According to Arendt (p. 186), the “magnificent attempts of Greek philosophy to find a concept of authority” failed because of a lack of genuinely political experiences that would correspond to what others later would call authority. The proposals that these philosophers put forth were based on experiences drawn from the private sphere, prominently the Greek household and manufacturing, that by their own standards were specifically unpolitical or rather prepolitical. Subsequently, only the Romans were in the position to conceive political hierarchy in the absence of power and force and, thus, to distinguish authority from mere power. The Romans In the Romans’ political understanding, the founding of Rome assumed a central place. This founding was “holy” in the sense that “what once was founded remained binding on all subsequent generations” (Arendt, 1994, p. 187). This attachment and responsibility to the past was part of the Roman religion. The term and concept of “auctoritas,” the basis for the English term “authority,” appeared in connection with this combination of political and religious affairs. Auctoritas was a derivative of the verb “augere” which means “to enlarge,” “to augment.” What “authority, or those who administered it, continuously augmented was the founding” (p. 188). Politically, the Romans distinguished between the power of the people and the authority of the Senate, a council of distinguished elders. This authority showed itself in the weight carried by the Senate’s advice “which in order to be heard required neither the form of an order, nor force” (p. 189). In religious matters, the binding character of the auspices mirrored the binding character of the Senate’s advice. Unlike the Greek oracle, which hinted at the future, the Roman auspices indicated whether a decision found approval with the gods. Thus, “the Roman gods had merely authority among the people, not really power over them” (p. 189). For the Senate, as well as the auspices, the founding of the city was the source of their authority. All auspices were considered to be “derivative of this one grand sign by which the gods empowered Romulus to found the city, to establish the Roman people, and conferred kingship on him” (p. 189). Similarly, the elders had authority because they were closer to the ancestors and the sacred founding, and not, as we today would tend to think, because they had grown to be wise on the basis of their experience. For the Romans, authority remained embedded in the past and functioned to link every act and decision to a sacred origin. Tradition preserved the past by “transferring from one generation to the next witness of the ancestors who had founded the city, had borne witness of this event, and had augmented the founding through the centuries by their authority” (p. 190). For that reason, Arendt (1994, p. 191) described religion—authority—tradition as the “Roman trinity.” Although, initially, related to a particular and binding origin, this Roman spirit

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survived, not only the transformation of the Roman Republic into the Roman Empire, but even its decline. For Arendt (1994, p. 192), this Roman spirit was continued by the Christian Church which after the Empire’s decline had to cope with the political and intellectual heritage of Rome. Subsequently, the Catholic Church (…) assimilated the deeply Roman way of thinking about political affairs to the extent that the renaissance of Christ could become the cornerstone of a new founding, which again provided a sacred basis on which a new human institution of remarkable permanence was founded (p. 192). Further, (…) in as much as the Catholic Church assimilated Greek philosophy to its edifice it amalgamated the Roman political concept of authority (…) with the Greek compulsion for transcendent standards and criteria (p. 193). According to Arendt (1994, p. 194), this particular amalgamation through tradition and authority “has asserted itself as an authority and become decisive for everything that followed, to an extent hardly matched by anything else.”

What Is Enlightenment? Answering the question “what is Enlightenment?” was a political exercise, in Kant’s age. In 1783 a Protestant parish priest in Berlin published an article in which he argued against the introduction of civil marriage, denouncing the commotion that had been caused in the name of Enlightenment. First, he demanded, that one should answer the question “what is Enlightenment?” before one seeks to enlighten others. One of those who took up the challenge of a response was Immanuel Kant who published his Answer to the question: “What is Enlightenment?” in 1784. According to Kant connoisseur O’Neill (1989), this essay is one among several shorter pieces by Kant which stood in close connection to his central critical writings, and which emphasized the political character of his systematic philosophy. Kant applied the German term Autorität (authority) in relation to the law, legislature, government, the Church, the Bible, God, the concept of duty, parents, and reason (Roser & Mohrs, 1992, p. 439). In this listing, the authority of reason was probably the least self-evident concept, and Kant determined its meaning with great care. The question of “what it would be for certain ways of conducting thinking to have authority and to count as principles of reason” occupied Kant’s philosophy in the most crucial ways (O’Neill, 1989, p. 11). Central to the answer was the Categorical Imperative, namely, that we should act on principles that at the same time could qualify as guiding principles for a universal law, which according to Kant was also the supreme principle of reason. “[R]eason,” Kant believed “has no dictatorial authority” (O’Neill, 1989, p. 15). Rather, Kant thought reason to be reminiscent of a tribunal that judges

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and deliberates. The analogy implied that the authority of reason was a “practical and collective task, like that of constituting political authority” (O’Neill, 1989, p. 18). Kant also explored and articulated other political metaphors in his account of reason’s authority, especially, debate and community. Debate requires discursive order and “cannot survive the adoption of principles of destroying debate” (p. 21). Analogously, “any authority that reasoning can have must be constituted by those who reason; it cannot be imposed (…)” but must be “constituted in the process of self-discipline of thought and action” (p. 22f.). Behind the close attention that Kant paid to the authority of reason stood the perceived threat of the Tower of Babel. Human knowledge had to be produced in the face of a plurality of possible voices or agents “who share a world but who are short of principles for doing the sharing” (p. 20). In this situation, Kant sensed that the most basic principles of reason (…) must enable us to accommodate the fact of our plurality and our lack (…) of any preestablished harmony between the modes of thought employed by different parties to a plurality (O’Neill, 1989, p. 27). This line of reasoning led to the Categorical Imperative, the principle of rejecting thought, action, or communication that is guided by principles that others cannot adopt. In Kant’s account, reason derived its authority from self-imposed discipline. In its most complete, enlightened use, reason was not subject to an external authority. Hence, in his Answer to the question: “What is Enlightenment?” (Kant, 1784/1988), Kant characterized Enlightenment as “emergence from self-incurred immaturity,” where immaturity meant “the inability to use one’s own understanding without the guidance of another,” and was “self-incurred if its cause is not lack of understanding, but lack of resolution and courage to use it without the guidance of another” (Kant, 1784/1988, p. 54). In this famous essay, Kant distinguished a private and a public use of reason, both being “defined in terms of the audience whom an act of communication may reach” (O’Neill, 1989, p. 32). Kant spoke of the private use of reason in the case of someone acting on a commission imposed from outside and addressing a restricted audience, such as, for example, a congregation. Communication by officials, civil servants, and clergy signified such private use, in the Kantian sense. By contrast, communication, which did not presuppose an external authority, and which addressed “the real public (i.e., the world at large)” Kant identified as the public use of reason (Kant, 1784/1988, p. 57). Thus, reason’s authority was conceived in contrast to the authority of other, “external” agents. For Kant, reason’s authority resided in the most comprehensive forum, “the real public (i.e., the world at large),” which had to be achieved through communication.

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Not Necessarily to Be Taken Personally! A person can have authority, speak with authority, act with authority, and be recognized as an authority. In these instances authority has a face, most often an office, and amounts to nothing less than “an interpersonal relationship in which one person looks upon another as superior” (International Encyclopedia of Sociology, 1995, p. 105). However, there are dimensions to the concept of authority that are not reducible to the (inter)personal. Historically, the concept of authority related the Romans to the sacred founding of their city, and in its later embellishment to the intellectual world of the Greeks. The authority of the Catholic Church has related the faithful with the renaissance of Christ. Similarly, with the authorities that Kant, a protestant, knew: the Church, the Bible, the law, legislature, government, and the concept of duty; none of which being reducible to interpersonal relationships. Often, particular names and figures are associated with impersonal agents that carry authority, for instance, Plato and Aristotle in the case of classical Greek heritage, the apostles in the case of the Christian Church, or Frederick the Great in the case of government in Kant’s age. This duality of the concept showed already in the by Arendt acclaimed beginnings in the Roman religion, where the founding of the city was associated with the figure of Romulus and, subsequently, became associated with the Romans’ ancestors. The more pronounced duality of the concept that was known by Kant’s age I refer to as the Enlightenment view of authority. In this view, authority can be ascribed to impersonal agents. I propose to use this view of authority in relation to representations. To be precise, for representations to function as agents their authority needs to be endorsed.

Authority and Agency of Representations Demonstrated With a Mathematician’s Protocol In a study of calculus-related representational practices, I asked “mathematical experts” to solve a problem while thinking out loud (Kurz, 1997).2 The participants in this study were free to use paper and pencil, also a calculator, but no access to reference books was permitted. I present one case of problem solving by a 2 The participants were instructed to “think out loud” while working on the problem. Their verbal protocols were tape-recorded and, subsequently, transcribed for analysis (Kurz, 1997). Thinking out loud is a standard technique in cognitive research (Ericsson & Simon, 1993). To obtain a verbal report, participants are instructed to verbalize constantly while working on a problem, and to tell everything they are thinking from the moment they first see the problem until they give an answer. These verbal reports are neither retrospective accounts of problem solving, nor introspective accounts for which a person would be requested to observe their thoughts and describe, even explain them in retrospect. Rather, the instructions for thinking out loud emphasize that participants are requested to concurrently report (not explain) their ongoing thought. Generally, this technique gives rich protocols, which then can be used to reconstruct reasoning processes.

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mathematician who was asked to solve the following problem (presented in Brenner, 1963, p. 12): A flask contains ten liters of water and to it is being added a salt solution that contains 0.3 kilograms of salt per liter. This salt solution is being poured in at a rate of two liters per minute. The solution is being thoroughly mixed and drained off, and the mixture is drained off at the same rate so that the flask contains ten liters at all times. How much salt is in the flask after five minutes? The canonical solution path leads to a differential equation, which expressed in Leibnizian notation is:

With this equation, the variable x denotes the amount of salt in the container and the variable t denotes time. The term to the left of the equal sign represents how fast salt accumulates in the container. The first term on the right-hand side specifies how fast salt enters, subtracted from it is the term that specifies how fast salt leaves the container. Salt leaves the container at a rate of 0.2x, where the variable x denotes the amount of salt in the container. In order to arrive at a numerical solution of this mixture problem, the above stated differential equation has to be integrated and then solved for the variable x, leading to the following expression, which also satisfies the condition that initially there is no salt in the container:

The numerical solution to the problem, then, is that 1.9 kilograms of salt are in the container after five minutes; this result is rounded to one decimal position. Next, is a summary description of the mathematician’s solution, based on his verbal report and on his notes during problem solving (Kurz, 1997). This young, highly productive mathematician was a faculty member in a doctoral level mathematics department, his major field being analysis. He worked approximately 25 minutes on this rate-flow problem. The descriptive account of his protocol is followed by an analysis in terms of agency and authority.

The Mathematician’s Protocol Reading the problem statement, the mathematician thought it best “to give [him]self a picture of the flask” (see Figure 1).3 He drew a rectangle with “an arrow down from the top indicating salt water coming in and an arrow at the bottom indicating water-saline solution coming out.” Next to the top arrow he 3 All citations in this section are from the transcript of the mathematician’s “think out loud” protocol and can be found in Kurz (1997, pp. 113–119), or refer to the mathematicians handwritten notes reprinted in this chapter as Figures 1, 2, and 3.

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wrote “2 liters/minute,” the rate at which solution was poured in, and “.3 kg/ liter,” the concentration of salt solution entering the container. Next to this picture he wrote (in the verbal protocol: “x sub t”), which was “the concentration of kilograms per liter at any given time,” having the units of measurement “kg/liter.” Then he wrote in words, “when t is zero, x naught is what?,” “the concentration is zero kilograms per liter.” After a pause, he said he was trying to find another time t, besides t = 0, for which he knew the salt concentration in the container, and that he seemed unable to find one. He concluded that he “should probably use some calculus, in the sense of rates of change.”

Figure 1. The first page of the mathematician’s handwritten notes with his depiction of the flask showing in- and outgoing solution as arrows. Later, he tried to use calculus, but as the vertical line indicates abandoned this approach, instead of “an instantaneous description” he asked himself “what’s happened after one minute?” He announced a “new attempt at the problem.” Again using to refer to the concentration measured in kilograms per liter, he noted “0.3 kilograms per liter is the rate of, no!” After a deep sigh, he stated “the rate of change of salt, that’s per liter.” He became worried: “What happens if I am not able to solve this problem?” He thought: “I better find the x sub t [pause in the protocol], the x sub t equals, I need what? The rate of change [pause], well, let me try this, I wonna try to compute the derivative with respect to time, so that is d by dt of

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[pause].” He reread parts of the problem statement and concluded: “Let’s try to find dx / dt. So this would be what?” Writing down he conceded: “I am getting myself confused with the rate of change of concentration, which I don’t want.” He was “not seeing how to do this straight forward with calculus either.”

Figure 2. The second page of the mathematician’s handwritten notes showing his computations for fixed time intervals of one minute and thirty seconds. At the end of this bookkeeping-like approach in terms of that much added and that much deleted in a certain fixed time interval stood the “total net gain of salt” after one minute. He knew that he was “supposed to write down sort of a derivative,” but was “not seeing how to do this right off the bat.” Instead, he was going to “try to write down what’s happened, let’s say after one minute, OK? So not an instantaneous [pause] description of the system.” In other words, “I’m just doing it in time increments.” He wrote: “After 1 minute. Added 2 liters of salt water and deleted 2 liters of ‘pure’ water after 1 minute.” This was a “lie,” in his words, because “after 30 seconds, for instance, it’s not pure water left inside, but we’ll pretend that it is, for the time being.” Starting on a new piece of paper (see Figure 2), he wrote: “1 minute,” and asked: “After one minute, what do I see?” He computed: “I see, we’ve added a total of two liters, two liters per minute times, wait a minute? Yes! Two liters per minute times one minute. Water [sic! He should have said ‘salt’] coming in is 0.3 kilograms per liter. So, by multiplying all this out I see 0.6 kilograms, the liters cancel, the minutes cancel, I’m left with 0.6 kilograms, OK. So I’ve added 0.6 kilograms of salt after one minute.” Given this result, he

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could “see what’s happened between the first and second minute, second and third, the third and fourth, and the fourth and fifth.” However, this procedure would only give him “an approximate answer.” Indeed, at this stage he had only considered the amount of incoming salt, completely leaving aside salt loss. Instead, he wanted to “refine until nothing,” in order to “get an instantaneous picture of what’s going on.” He asked: “What’s happened after 30 seconds? Well let’s see, presumably I’ve added, let’s figure out how much salt.” He computed: “Two liters per minute times 30 seconds, is half a minute, times 0.3 kilograms of salt per liter. Multiplying all this out, I get, this cancels with what I got before, 0.3 kilograms of salt.” Although being unsure whether this approach was going “to work,” he moved on to the interval “between 30 and 60 seconds”: “What’s happened? I’ve only added another what? I’ve added another, in 30 seconds I had 0.3 kilograms of salt, total.” But, of course, he was “also throwing salt away,” because after 30 seconds it was a “water-saline solution.” Therefore, he wanted to see “how much salt I’ve deleted.” He computed: “At 30 seconds the approximation says that the saline solution is 0.3 kilograms of salt total, per ten liters [pause], is what? 0.03 kilograms of salt per liter. OK, so my pure water after 30 seconds now is approximately 0.03 kilograms of salt per liter.” He computed that one liter of saline solution was lost in 30 seconds which led to a “total salt loss” of 0.03 kilograms. He felt to have lost direction: “Now I can’t remember what I’m supposed to do, [pause] what’s happening?” Rehearsing his computations, he found that after one minute [sic!] he had “dumped in a total of 0.3 kilograms” and “poured out 0.03 kilograms,” subtracting the latter from the former led him to a “total net gain” of 0.29 kilograms [sic!]. This result looked “sinistrous” to him, also especially because by “the old method in one step” 0.6 kilograms had been added to the flask. A student knocking on the door interrupted the session, he briefly talked to the student. Returning to the task, he expressed his embarrassment for not solving the problem readily. Once again he rehearsed his results. For the “one minute increment” 0.6 kilograms of salt had been added to the flask, then breaking “it down into two 30second stages” he had arrived at a result of 0.29 kilograms. He had doubts: “What if I haven’t done that correct?” He decided to check where he had done it “in two 30-second increments” and found that for the “total net gain of salt” after one minute he had forgotten “to add in the original 0.3,” the amount of salt added in the first 30 seconds. He corrected the result to be 0.59 kilograms. He also realized that he had subtracted incorrectly and corrected his mistake to obtain 0.57 kilograms of salt as a result. He noticed: “The rate in is always the same.” That much said, he was able to ask: “OK, and now the rate out, should be what?” As a response, he computed that one liter of solution was lost in 30 seconds, and that, assuming a concentration of 0.03 kilograms of salt per liter, salt loss was approximately 0.03 kilograms. Subtracting the, thus, approximated salt loss in 30 seconds from the amount added in one minute, he arrived once more at the conclusion that “0.57 sounds good.”

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Next, he abandoned his approach in time increments: “OK, I suppose I could go and do this in—[exasperated sigh]—15-second increments to get a better answer, but will not try to do that.” Instead, he wanted to attempt a different approach: “So I believe, the rate of salt I am adding is a total of 0.6 kilograms salt per minute. What is the rate, so alright, so let’s figure out the rate.” He wrote (see Figure 3): “Rate out: 2 liters/min × x kg salt/liter = 2x kg salt/min,” and concentration per liter of saline solution.” (Had he, at this point, defined x as the amount of salt in the flask, very likely, in the end, he would have obtained the correct numerical solution.) At this point, he was pleased at “coming up with the differential equation.” He wrote: “dx / dt = .6 – 2x.”

Figure 3. The third page of the mathematician’s handwritten notes. The mathematician computed the rate in and the rate out and with these rates developed a differential equation and finally solved this equation.

In routine fashion, he solved this differential equation, separating variables, integrating both sides of the equation, and solving the variable x working with the exponential function. However, because the “rate out” was incorrect by one decimal position, he arrived at a solution that was not meaningfully interpretable and which remained unsatisfactory to him. At this point, being both frustrated and pressed for time, he was unwilling to “debug” his solution.

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Agency When, in the beginning of his problem solving, the mathematician “gave himself a picture,” (see Figure 1) he implemented and manipulated a number of different objects: Paper and pencil, lines forming a rectangle and arrows, the arrangement of these figures on a piece of paper, digits and letters, numbers and words, units of measurement such as liters and kilograms, rates such as concentration and velocity, and variables such as t, x, and Some of these objects were implemented and manipulated simultaneously which is a general feature of human agency. Reasoning requires viable forms of agency. As the mathematician was attempting to generate a solution, he was striving for a computational procedure to obtain a result, not merely a number to answer the posed question. Initially, he found it very difficult to conceive anything that he could do to approach a solution. He believed that he should employ “some calculus, in the sense of rates of change,” that he “should better find the x sub t,” and that he was “supposed to write down sort of a derivative.” But, none of these goals and concepts translated into a procedure that enabled him to approach a solution. He even had doubts whether he was capable to solve the problem at all. He only emerged from this impasse by considering “doing it in time increments,” which initially translated into the question: “What’s happened after one minute?” Then he wrote (see Figure 1): “After 1 minute. [On a new line:] Added 2 liters of salt water [On a new line:] and deleted 2 liters of ‘pure’ water [On a new line:] after 1 minute.” With this spatial arrangement of his notes, he rehearsed the separation of in- and outflow of the solution, as done previously with the arrows in his “picture of the flask.” Subsequently, these two components of the physical process were labeled “added” and “deleted,” as markers these labels provided structure to his notes and representation of the physical process. Agency constitutes its objects. In other words, what is manipulated is, at least, partly constituted by how it is, or can be, manipulated. There was a progression of objects, ranging from added—deleted to rate in—rate out to differential equation, that the mathematician employed to capture the physical process in a mathematical fashion. His initial computations were structured in terms of added and deleted (see Figure 2), reminiscent of items that a bookkeeper uses: that much added, that much deleted, resulting in a particular, in his words, “net gain” of salt (see Figure 3). Instantiating this bookkeeper’s account he lost his thread, he felt uncertain of what he was “supposed to do” and of how his computations related to the described physical process. Rehearsing and checking the obtained numerical results, he regained a sense of direction, especially by affirming that “the rate in is always the same.” With this insight, he proceeded from added and deleted to the rate in and the rate out which, in turn, allowed the transition to a differential equation. Being a mathematician, he was able to manipulate, transform, and solve the equation in a very skilled fashion. With the differential equation, another object emerged or rather re-emerged in his protocol, namely, dx / dt. This object appeared as part of the differential equation, the

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mathematical model of the physical process, and in this situation not as a derivative per se. Agency can be assigned to varying sources during problem solving. For instance, consider the following stream of thought in the mathematician’s protocol during which agency shifts from “I,” to “we,” to factors in an equation, to “water,” and back: “After one minute, what do I see? I see, uhm, we’ve added a total of two liters per minute times, wait a minute? Yes! Two liters per minute times one minute. Water coming in is 0.3 kilograms per liter. So, by multiplying all this out I see 0.6 kilograms, the liters cancel, the minutes cancel, I’m left with 0.6 kilograms, OK. So, I’ve added 0.6 kilograms of salt after one minute.” The original problem statement, of course, is written in the passive voice: Salt solution “is being poured in,” the solution “is being thoroughly mixed,” and the mixture “is drained off.” In this formulation, agent and agency are retracted, with modeling (as with scientific observation and experimentation; Gooding, 1990) agent and agency need to come back in. Because of the way in which the mathematician had inserted himself into the description of the physical process, he experienced great difficulty in modeling “salt loss.” What had worked well with the amount of salt added to the container disoriented him in the case of salt loss, namely, that he, as “I,” was the agent adding the salt. For instance, he stated: “So, let’s see how much salt I’ve deleted;” and in a similar fashion: “So, I’ve dumped in a total of 0.3 kilograms and I’ve poured out 0.03 kilograms.” However, discrete acts of “taking out” a particular amount of salt could only approximate the amount that was lost from the container during a particular time interval. By developing a differential equation the physical process became represented as a mathematical model. The mathematician was very skilled at manipulating this particular symbolic representation, the differential equation as such, but less inclined to engage in the kind of simulative reasoning and observation that such models can support. For comparison, a theoretical physicist solving the same problem (Kurz, 1997) was primarily engaged in simulative observation and manipulation of models, symbolic and perceptual. Nersessian (1992) has characterized this kind of mental simulation in relation to conceptual change in science, in particular of Clerk Maxwell’s quantitative representation of the electromagnetic field, and in relation to thought experimentation. Agency requires skill. “Refining until nothing” in order to “get an instantaneous picture of what’s going on” demands skill with calculus-specific agency. Initially, the mathematician considered increments of one minute, then broke the increment down into two 30-second increments, and finally considered 15second increments (see Figure 2). This approach, in terms of decreasing but fixed time increments, combined two differing notions of limit-taking. On the one hand, he specified fixed increments of diminishing size, which pursued endlessly would become infinitely small, and in this way reminiscent of Leibniz’ differentials, on the other hand, his limit-taking was local as is specific to the historically more recent concept of a derivative. Local limits can be visualized as tangents to points on a curve or, in a theoretically different way, by zooming in on a particular region of a curve; with Leibniz’ calculus, by contrast, limit-taking approxi-

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mated a curve in its entirety and was, therefore, global in character (Bos, 1993). The mathematician found himself in a position in which he had to “unpack” the notion of limit-taking in order to move forward with his problem solution. This “unpacking” meant that he recovered a form of agency that was calculus/analysis-specific, in this case, choice of diminishing fixed time increments.4 When the mathematician felt unable to employ calculus, or more specifically, the derivative, he nevertheless was able to recover and employ a form of calculus-specific agency that eventually allowed him to proceed from decreasing fixed time increments, to rates of change, and to a differential equation.

Agency—Authority—Representation Understood in a cognitive fashion, authority is but one element of a triad, which is agency—authority—representation. These elements combine in a way that is similar to the combination of search, space, and representation in the predominant cognitive science characterization of problem solving; in combination they delineate a particular approach to cognition. A seemingly disparate aim from that of solving a mathematical problem is that of showing one’s affection. Conveying one’s feelings requires agency. One may communicate feelings verbally, or non-verbally, in either case, we can do a large number of things to show our feelings. Consider, for instance, demonstrating one’s affection with a birthday poem. In order to create the poem the words can be arranged in a particular fashion, they can be put into rhyme, and be arranged in an aesthetic pattern on a piece of paper. One may arrange the words of a well-known, pre-existing birthday song on a piece of paper, or author a sonnet, in either case, the arrangement is sought to create and, thereby, obey a pattern. No matter how sophisticated or creative the product turns out to be, creating it means to allow an intended pattern to direct one’s activity (see Ippolito & Tweney, 1995, for a related argument concerning the inception of insight). Intending a representation in this fashion conveys authority upon it. The mathematician realized that a solution would require calculus, but he still had to make such a representation in terms of calculus work. “Doing it in time increments” worked. In other words, the approach lent itself to a computational procedure, and the agency entailed by this representation of the physical process, namely, choice of decreasing, but fixed time increments suggested itself as calculus-specific. The mathematician’s approach followed a particular type of 4 Choice of diminishing, but fixed increments is characteristic of Leibniz’ calculus. Choice is, in a particular way, also built into the definition of the derivative, where it is embedded in an exchange of values (“Give me an [element of a defined domain] and I will return a corresponding value such that.... [a certain inequality holds]”). For other types of calculus-specific agency see Kurz (1997) and Kurz and Tweney (1998). For instance, the agency characteristic of Newton’s calculus of fluxions was the transformation of a changing quantity into the movement of a geometrical object, for instance, a moving point creating a line.

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agency known from the calculus and analysis (differentials and the derivative, in particular). In this way, he developed his solution along the lines of traditional representations of change. The authority of these representations led him from knowing that calculus was required to “doing it in time increments,” and eventually to the formulation of a differential equation. Does agency—authority—representation afford an explanation of how a new representation is achieved? Or, in other words, how “shifting problem representation,” that is, an insight (Kaplan & Simon, 1990), is achieved? When, at a later stage of his problem solving, the mathematician mentioned the rate in and, subsequently, the rate out, he was prepared to shift his representation of the physical process to a differential equation. Computing the amounts that had been added to the flask for the one minute and for the two 30-second increments, he noticed that the “rate in is always the same,” in other words, it is a constant. With this rate, he introduced a new concept to his problem solving. Initially, this object appeared as an inference from previous computations, but soon it became an object in its own right. The mathematician developed this object, and the complementary object that it suggested, namely, the rate out, into a familiar structure, a differential equation. In this way, the rate in came to serve as the connective between the old and the new representation of the physical process. Once the object had been introduced, the potent representation of a differential equation claimed it. The mathematician was pleased at “coming up with the differential equation,” it was his pleasure to heed the emerging representation’s authority. The predominant cognitive science characterization of insight combines search through with search for a problem space. Extending the theory of problem solving (Newell & Simon, 1972) in this way, Kaplan and Simon (1990) described the search for a new representation as the search for a problem space. In their words, “[s]ubjects search at two levels:” (1) “When they have a particular representation that they believe will allow them to solve the problem, subjects search within the corresponding problem space”; (2) as attempts fail, “subjects are forced to search the meta-level space of potential representations to find their next approach” (p. 386f). But, because the “space of possible problem spaces is exceedingly ill-defined, in fact, infinite,” one “has to have or obtain strong constraints that guide search and make it highly selective” (Kaplan & Simon, 1990, p. 381). Possible sources of search constraints are perceptual cues in the problem, prior knowledge, and heuristics. Especially prominent among the search constraints, in Kaplan and Simon’s study of insight, was the Notice Invariant’s heuristic. As a “very general heuristic,” the Notice Invariant’s heuristic has the potential to “facilitate insight across a wide variety of domains” (Kaplan & Simon, 1990, p. 413). In the mathematician’s protocol noticing an invariant, namely, that the rate in is a constant stood at the beginning of a decisive re-representation of the problem. But, in what sense was the mathematician searching a problem space? What is a problem space? With Kaplan and Simon’s account of insight “the terms problem space and representation are used as synonyms” (p. 376). How are

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representations alias problem spaces characterized? Kaplan and Simon (1990) described the problem spaces that they determined for the problem that they used in their research on insight, the Checkerboard problem, in terms of agency. (The Checkerboard problem: On an 8 × 8 checkerboard, two squares on diagonally opposite corners are removed. The task is to determine whether the squares of this mutilated checkerboard can be covered by dominos.) Here agency was phrased as imparative sentences: “Try placing all dominos horizontally./ Try placing all dominos vertically./ Try placing dominos in a spiral pattern./ Try placing dominos in a zig-zag pattern./ Try decomposing board into smaller areas, and cover each area” (p. 387). Or, consider the following representations which were subsumed in the category Parity spaces: “Consider how color might help solve the problem./ Explore why words might be on the squares” (p. 387). (In one of their experimental conditions, instead of being colored in alternating fashion, the squares were labeled either “bread” or “butter.” Removing diagonally opposite squares removes two squares of the same color, or twice either “butter” or “bread.”) Centrally important to the problem-solving account of insight is how switching to a different problem space is achieved, or can be facilitated. (For the Checkerboard problem, specifically, this meant a switch to the Parity spaces. The observation that, in the case of the mutilated checkerboard, parity of color or corresponding attribute is not given, typically leads participants to reason to the problem’s solution.) Kaplan and Simon (1990) proposed to specify, rigorously, the process of switching representation and reasoning to a solution in a computer simulation called SWITCH. SWITCH was provided with knowledge on the problem (“a representation of the actual [external] checkerboard, and a model of the typical subject’s internal representation of the board,” which typically ignored the parity of color; p. 389), inference rules and some general search procedures, including procedures for selecting inference rules and heuristics for shifting to a search for a new representation. Given decisive new information (the Parity hint), the simulation was able to arrive at the correct solution of the problem. Kaplan and Simon (1990, p. 413) found that one of the most potent constraints in searching for a new representation is a general search heuristic which they described as Notice Invariant (in this case, the parity of color on the regular checkerboard). Kaplan and Simon’s powerful heuristic is directed toward the cognitive agent (person or machine): Notice invariant! I restate the imperative as a question posed for the analysis of reasoning and insight: What remains invariant? Specifically, what remained invariant in the mathematician’s successive representations of the physical process? I propose the following answers for the two major shifts in the mathematician’s problem representation. For the first decisive switch, from knowing that he “should probably use some calculus” (see Figure 1) to “doing it in terms of time increments” (see Figure 2) the concept of limit taking served as a connective link; limit taking was implied by his wish to employ calculus and was implemented in his approach in terms of time increments. In this sense, the calculus-specific agency of choosing decreasing, but fixed increments constituted

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an “invariant” which allowed him to overcome the impasse of “not seeing how to do this straight forward with calculus.” The second decisive switch, from “doing it in time increments” (see Figure 2) to proposing a differential equation (see Figure 3), was enabled by a potent object, the rate in. This object stood at the end of his computations in terms of increments and at the beginning of his approach using a differential equation, therefore, in this sense, remained an “invariant” during his switch of representations. Kaplan and Simon (1990) proposed the Notice Invariant heuristic as a means to constrain search for a new representation. According to the analysis that I favor in the case of the mathematician’s protocol, cognition deals in “invariants,” specifically, forms of agency and respective objects. Major changes in the representation of the problem are well described as a process in which particular kinds of agency and particular objects were traded from one representation to the next. In science, many and diverse objects, such as instruments, books, representations, images, models, as well as the skills to handle these objects, are traded from one generation to the next and also across disciplinary boundaries (see Galison, 1997, for an account of tradition and trading in science; also Kurz-Milcke & Martignon, 2002). Phrased more generally, the trading of representations and other objects is paramount to culture and science. I suggest that apart from the trading of representations, trading among representations needs to be considered, especially with scientists and experts’ reasoning and problem solving. As an explanatory concept, the trading of objects and agency among representations, invariably, leads away from a conservative interpretation of the concept “invariant.” What is handed down, or over, is changed in the process and arrives in altered form at its subsequent destination (Galison, 1997, p. 435). Resulting from, and playing into this process are, for instance, different notions of the same concept in science (e.g., the concept of limit taking, the field concept in physics). Representations, thus, appear as composites sharing objects and forms of agency with other representations (for the related notion of a “meaning schema,” Nersessian, 1984). In the case of the mathematician’s protocol, transitions between representations occurred along the lines of objects or forms of agency that are well-established in mathematics, for instance, limit taking. Such culturally, well-established “invariants,” due to their multiple meaning forming constituents, can exert authority in ways that leads solutions and reasoning onto something new. Finally, the proposed shift in emphasis toward trade and authority is in line with Kaplan and Simon’s description of problem spaces in terms of agency, but not necessarily with their characterization of representations in terms of imperative sentences. As amazing as it sounds, the authority of representations can exist without orders, by relying on agency and objects alone.

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Conclusion Kant’s critical philosophy has been said to face the dilemma that a critique of reason presupposes a conception of reason. On this point, it has been argued that in Kant’s philosophy the supreme principle of reason is the Categorical Imperative, a moral, not a cognitive principle, that bases the authority of reason on the principle of only adopting sharable principles (O’Neill, 1989). A similar dilemma has been found to occur for the information-processing account of insight where constraining search in effective ways appears to presuppose “knowing the nature of the problem (and its solution) beforehand” (Kaplan & Simon, 1990, p. 413). In this situation, heuristics that are applicable across a wide variety of domains, such as the Notice Invariant heuristic, are “a cause of celebration.” In this chapter, the authority of representations has been described as the achievement of turning representations into agents (of making them work) in order to solve problems or create new objects and representations. But, how can something exert influence if, in fact, it simultaneously has to be achieved? The answer, suggested by this account of the authority of representations, is that objects and agency are traded among representations, thereby, making aspects of representations available before they are fully developed in a particular fashion. In a broader perspective, this answer suggests that most cognitive achievements defy reduction to searches through problem spaces because the concept of meta-level search falls short of the historical and cognitive riches (see Tweney, 2001). Arendt (1994) saw the modern distrust of everything that appears authoritative reaching as far as the relationship between children and parents, and teachers and students. The modern world witnessed a loss of religion, tradition, and authority, a condition which, according to her analysis, came to threaten any one notion of faith, past, and authority. Thus, her question in the late 1950s was: “What kind of world has come to an end when not this or that kind of authority in this or that part of life has been put into question, but the concept of authority in general has lost its validity?” (Arendt, 1994, p. 169) I am led to ask: Has authority, in conjunction with representation, become so prevalent and pervasive in our world that, for the most part, it goes unnoticed? Also, are we witnessing, in this pervasiveness, another turn in the history of authority? At present, we know several calculi, many logical systems, a large number of literary genres, incredible numbers of stories, songs, images, and metaphors, and an ever-growing number of instruments and devices. The representations relating to these artifacts are potential authorities in our attempts to solve problems and create new things. Experts, in particular, I claim, are highly trained observers of the authority of representations in their fields of expertise. Such observation is by no means a trivial or a straightforward process. For example, Gigerenzer (1993) employed the Freudian terminology of the superego, ego, and the id as a metaphor in his description of the dynamics of psychologists’ relationship with one of their most prevalent methodological authorities, which is inferential statistics. The authority of impersonal agents is possibly in every way—politically, emotionally, and cognitively—as engaging as is the interpersonal kind.

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Author’s Note I thank Ryan Tweney for the invaluable advice on the original study of calculusrelated reasoning; the mathematician’s protocol is a part of this study. I appreciate the mathematician’s willingness to think mathematically while being observed and tape-recorded. I am grateful to the Max Planck Society, who supported me by a Schloeßmann Fellowship while working on this chapter.

References Arendt, H. (1994). Zwischen Vergangenheit und Zukunft. Übungen im politischen Denken I (ed. by U. Ludz). Munich, Germany: Piper. Bertoloni-Meli, D. (1993). Equivalence and priority: Newton and Leibniz. Oxford, UK: Clarendon. Bos, H. J. M. (1993). Lectures in the history of mathematics. Providence, RI: American Mathematical Society. Brenner, J. L. (1963). Problems in differential equations. San Francisco: Freeman. Ericsson, K. A., & Simon, H. A. (1993). Protocol analysis: Verbal reports as data. Cambridge, MA: MIT Press. Galison, P. (1997). Image and logic: A material culture of microphysics. Chicago: The University of Chicago Press. Gigerenzer, G. (1993). The superego, the ego, and the id in statistical reasoning. In G. Keren & G. Lewis (Eds.), A handbook for data analysis in the behavioral sciences: Methodological issues. Hillsdale, NJ: Erlbaum. Gigerenzer, G., & Hoffrage, U. (1995). How to improve Bayesian reasoning without instruction: Frequency formats. Psychological Review, 102, 684–704. Gooding, D. (1990). Experiment and the making of meaning: Human agency in scientific observation and experiment. Dordrecht, The Netherlands: Kluwer. Holquist, M. (1983). The politics of representation. Quarterly Newsletter of the Laboratory of Comparative Human Cognition, 5, 2–9. International Encyclopedia of Sociology. (1995). London: Fitzroy Dearborn. Ippolito, M. F., & Tweney, R. D. (1995). The inception of insight. In R. J. Sternberg & J. E. Davidson (Eds.), The nature of insight (pp. 433–462). Cambridge, MA: MIT Press. Kant, I. (1988). An answer to the question: “What is Enlightenment?” (H. B. Nisbet, Trans.) In H. Reiss (Ed.), Kant’s political writings (pp. 54–60). Cambridge, UK: Cambridge University Press. (original work published 1784) Kaplan, C. A., & Simon, H. A. (1990). In search of insight. Cognitive Psychology, 22, 374–419. Kurz, E. M. (1997). Representational practices of differential calculus: A historical-cognitive approach. Unpublished doctoral dissertation, Department of Psychology, Bowling Green State University, Ohio. Kurz, E. M. (1998). Representation, agency, and disciplinarity: Calculus experts at work. In M. A. Gernsbacher & S. J. Derry (Eds.), Proceedings of the Twentieth Annual Meeting of the Cognitive Science Society, University of Wisconsin, Madison (pp. 585–590). Mahwah, NJ: Erlbaum. Kurz, E. M., & Tweney, R. D. (1998). The practice of mathematics and science: From calculus to the clothesline problem. In M. Oaksford & N. Chater (Eds.), Rational models of cognition (pp. 415–438). Oxford, UK: Oxford University Press. Kurz-Milcke, E., & Martignon, L. (2002). Modeling practices and tradition. In L. Magnani & N. Nersessian (Eds.), Model-based reasoning: Scientific discovery, technological innovation, values (pp. 127–146). New York: Kluwer/Plenum Press. Mehan, H. (1993). Beneath the skin and between the ears: A case study in the politics of representation. In S. Chaiklin & J. Lave (Eds.), Understanding practice: Perspectives on activity and context (pp. 241–268). New York: Cambridge University Press.

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Nersessian, N. J. (1984). Faraday to Einstein: Constructing meaning in scientific theories. Dordrecht, The Netherlands: Martinus Nijhoff. Nersessian, N. J. (1992). How do scientists think? Capturing the dynamics of conceptual change in science. In R. N. Giere (Ed.), Cognitive models of science. Minnesota Studies in the Philosophy of Science, Vol. XV Minneapolis: University of Minnesota Press. Newell, A., & Simon, H. A. (1972). Human problem solving. Englewood Cliffs, NJ: Prentice Hall. O’Neill, O. (1989). Constructions of reason: Explorations of Kant’s practical philosophy. Cambridge, UK: Cambridge University Press. Roser, A., & Mohrs, T. (Eds.). (1992). Kant Konkordanz zu den Werken Immanuel Kants (Vol. 1). Hildesheim, Germany: Olms-Weidmann. Shapiro, M. (1988). The politics of representation. Madison, WI: University of Wisconsin Press. Tweney, R. D. (2001). Towards a general theory of scientific thinking. In K. Crowley, C. D. Schunn, & T. Okada (Eds.), Designing for science: Implications from everyday, classroom, and professional settings (pp. 141–175). Mahaw, NJ: Erlbaum.

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Name Index A

Bekerian‚ D. A. 127‚ 157 Bell‚ D. 54‚ 61‚ 139‚ 155 Benjamin‚ H. 77‚ 79 Benjamin‚ M. 196–198 Bennassar‚ B. 217‚ 226 Bergedorfer Gesprächskreis 57‚ 61 Berger‚ B. 32‚ 44 Berger‚ P. 32‚ 44 Berglund‚ S. 15‚ 23 Bericht des Senats über Absichten und Umsetzungen der Empfehlungen des Parlamentarischen Untersuchungsausschusses “Hamburger Polizei” 127‚ 155 Berkeley‚ G. 154 Bernard‚ C. 258‚ 264 Berndt‚ C. H. 87–89‚ 98‚ 99‚ 101 Berndt‚ R. M. 87–89‚ 96‚ 98f.‚ 101 Bernstein‚ D. E. 3‚ 23 Bertoloni-Meli‚ D. 282‚ 300 Berwick‚ D.M. 250‚ 261‚ 264 Bethencourt‚ F. 217‚ 226 Bier‚ A. 108‚ 118‚ 120 Bingham‚ F.T. 11‚ 24 Binozzi‚ S. 136‚ 157 Blainey‚ G. 87‚ 101 Blakeney‚ M. 89‚ 101 Blankenhorn‚ D. 34‚ 37‚ 41‚ 44 Blänkner‚ R. 218‚ 226 Böckenförde‚W. 51‚ 61 Bodin, J. 217‚ 220‚ 226 Boehmer-Christiansen‚ S. 169‚ 175 Bohannan‚ P. 96‚ 101 Bond‚ J. H. 265 Bonney‚ R. 221‚ 226 Bonta‚ J. 128‚ 130‚ 155 Borchardt‚ K. 57‚ 61 Borelli, G. 221‚ 226 Borrell‚ P. 171‚ 175 Bos‚H.J. M. 295‚ 300 Bosk‚ C. L. 31‚ 45 Bothe‚ D. 107‚ 120 Bourdieu‚ P. 30‚ 44‚ 219‚ 226 Bourke‚ C. 86f.‚ 101 Bradley‚ G. M. 265 Brandt‚ L. 54‚ 61 Braudel‚ F. 215f.‚ 226 Brenner‚ J.L. 288, 300 Brentzel‚ M. 70‚ 79 Brimblecombe‚ P. 160‚ 162f.‚ 172‚ 175

Aberbach‚ J‚ 43f. Abernathy‚ C. M. 250‚ 264 Abrahamse‚ A. 128‚ 156 Abram‚ M. B. 196‚ 198 Abwassertechnische Vereinigung (ATV) 10‚

23 Ackerman‚ T. F. 189‚ 198 Adler‚ E. 6‚ 22 Adorno‚ T. W. 3‚ 5‚ 22‚ 24 Albert‚ H. 22 Alberts‚ F. 86‚ 88f.‚ 101 Alexander‚ C. 109‚120 Amos‚ H. 66‚ 68f.‚ 79 Andersen‚ A. 160‚ 162‚ 175 Anderson‚ C. 86‚ 88f.‚ 101 Anderson‚ M. 163‚ 175 Anonymous 119f. Antons‚ C. 83‚ 85 ApSimon‚ H. 170‚ 175 Arbeitsgemeinschaft für Umweltfragen 6‚ 23 Archivio di Stato di Venezia 219‚ 225 Arendt‚ H. 282–285‚ 287‚ 299f. Aron‚ R. 54‚ 61 Ash, M. G. 112f.‚ 120 Ashby‚ E. 163‚ 175 Ashforth‚ A. 219‚ 224f. Ashworth‚ A. 151‚157

B Backhaus, J. 57‚ 61 Bahrdt‚ H. P. 56‚ 62 Baker‚ D. E. 23 Bakker‚ C. 205‚ 212 Balani‚ D. 220‚ 225 Barth‚ H. 14‚ 23 Bates‚ T. E. 23 Bauerkämper‚ A. 72‚ 79 Baumgartner‚ G. 71‚ 73‚ 79 Bayerische Rück 6‚ 8‚23 Bayme‚ S. 34‚ 44 Beach‚ L. R. 253‚ 264 Beatty‚ J. 265 Beauchamp, T. 189‚ 198 Beck‚ U. 32‚ 35‚ 44 Becker‚ H. S. 34‚ 44 Becker‚ P. 221‚ 225 Beck-Gernsheim‚ E. 32‚ 35‚ 44

303

304 Brint‚ S. 215‚ 226 Broad‚ C. D. 193‚ 198 Brock‚ D.W. 190‚ 196‚ 198 Brockhaus 216‚ 226 Brodeur‚J.-P. 83‚ 123‚ 131‚ 137‚ 141‚ 150‚ 155 Brooks‚ H. 34f.‚ 44 Bruder‚ W. 50‚ 61 Brüggemeier‚ F. J. 160–165‚ 175 Bruins‚ R. J. F. 23 Builtjes‚ P. 171‚ 175 Bundesakademie für Öffentliche Verwaltung 58‚ 61 Bundesarchiv Berlin (BArchB) 68‚ 79‚ 109f.‚ 112‚ 118‚ 120 Bundesministerium der Justiz 66‚ 79 Bundesministerium für Familie und Senioren 32‚ 35‚ 41‚ 45 Bundesministerium für Forschung und Technologie (BMFT) 48‚ 61‚ 166‚ 175 Burgoyne‚ L. A. 134‚ 158 Bushyhead‚ J. B. 251‚ 264 Busschbach‚ J. J. van 204‚ 213

C Camacho‚ L. 182‚198 Cameron‚ J. 16‚ 23 Canada 137‚ 141‚ 148f.‚ 153‚ 155 Canada‚ Criminal Code 135f.‚ 156 Canada‚ House of Commons 148‚156 Canada‚ Senate 148‚ 156 Canada‚ Solicitor General 148‚156 Canada‚ Statutes of Canada 135‚ 150‚ 156 Canadian Sentencing Commission (CSC) 147‚ 150–153‚ 156 Caplan, A. L. 190‚ 198 Caruana‚ W. 89‚ 92‚ 101 Casscells‚ W. 249f.‚ 253‚ 264 Castells‚ M. 154‚ 156 Castles‚ A. 86‚ 101 Chaney‚ R. L. 10f.‚ 12‚ 23f. Chang‚ A. C. 11‚ 23f. Chanock‚ M. 86‚ 101 Chaudri‚ A. M. 15‚ 23 Cheng‚ P. W. 260‚ 264 Chesterman‚ S. 90‚ 101 Chia‚ A. 272‚ 278 Christensen-Szalanski‚ J. J. J. 251‚ 253‚ 264 Church‚ T.R. 265 Clark‚ W. 221‚ 225 Clark‚ W. C. 174f. Clouser‚ K. D. 189‚ 198 Cohen‚ G. A. 188‚ 198 Cole‚ D. W. 23

Name Index Conrad‚ C. 59‚ 61 Coontz‚ S. 34‚ 45 Coppock‚ R. 6‚ 8‚ 23 Cormier‚ R. B. 128‚ 155 Corrigan‚ P. 221‚ 226 Cosmides‚ L. 253‚ 264 Cox‚ H. 86‚ 87‚ 101 Cozzi‚ G. 221f.‚ 226 Craig‚ W. M. 129‚ 158 Crescenzi‚ V. 220‚ 226 Crosthwaite‚ J. 182‚ 190‚ 198

D d’Ombrain‚ N. 141‚ 144‚ 156 Dahrendorf‚ R. 22‚ 65‚ 79 Daston‚ L. 265 Daston‚ L. J. 252‚ 264 Daubney‚ D. 152 Davies‚T. 86‚ 89‚ 95‚ 101 Davis‚ M. 181‚ 196‚ 198 Davis‚ R. D. 15‚ 23 Dawes‚ R. M. 250‚ 260‚ 264 De Boer‚ M. 172‚ 175 Derlien‚ H.-U. 43f. Derwent‚ R. G. 169‚ 175 Deutscher Bundestag 66‚ 79 Deutsches Rechtswörterbuch 217‚ 226 Dictionnaire 217‚ 226 Dinges‚ M. 219‚ 226 Doner‚ H. E. 23 Doob‚ A. N. 137–139‚ 156 Dörter‚ M. 108‚ 120 Dost‚ A. 70‚ 80 Douglas‚ M. 4‚ 6f.‚ 23 Douma‚ E. 69‚ 79 Dowdy‚ R. H. 23 Dowie, J. 250‚ 264 Dreier, T. 88‚ 101 Dudan‚ B. 220‚ 226 Durant‚ J. 8‚ 24

E Eberhardt‚ K.-H‚ 69‚ 71‚ 76‚ 79f. Ebert‚ A. 261‚ 264 Eddy‚ D. M. 250‚ 252f.‚ 264 Ederer‚ F. 265 Edwards‚ B. 87‚ 101 Edwards‚ P. N. 160‚ 176 Egmond‚ N. D. van. 172‚ 175 Elias‚ N. 35‚ 45 Ellinson‚ D. A. 88–90‚ 101 Elshtain‚ J. B. 34‚ 44 Elstein‚ A. 250‚ 264 Engels‚ F. 224‚ 226

Name Index EPA—US Environmental Protection Agency 10–13‚ 15‚ 21‚ 23 Erhard‚ L. 49‚ 54–56‚ 61 Ericson‚ R. V. 126‚ 156‚ 158 Ericsson‚ K. A. 287‚ 300 Etzioni‚ A. 34‚ 37‚ 45 European Communities (EU) 14‚ 23 Evans‚ M. 91‚ 101

F Familiengesetzbuch der Deutschen Demokratischen Republik vom 20. Dezember 1965 73‚ 75‚ 77‚ 80 Ferrante‚ R. 220‚ 223‚ 226 Ferwerda‚ M. P. 204‚ 212 Feth‚ A. 70‚ 80 Fienberg‚ S. E. 278 Fineberg‚ H. V. 250‚ 264 Fischer‚ W‚ 217‚ 218f.‚ 226 Føllesdal‚A. 179‚181 Foster‚ K. R. 3‚ 6‚ 23‚ 124‚ 126‚ 156 Foucault‚ M. 129‚ 156‚ 219‚ 226 Frank‚ M. 219‚ 226 Franson‚ R.T. 137‚ 156 Freckelton‚ I. 134‚ 156 Frey‚ B. 170‚ 171‚ 175 Friedman‚ L. M. 270‚ 278 Friedrich‚ R. 169‚ 176 Fritzsche‚ A. F. 8‚ 23

G Galbraith, V.H. 217‚ 226 Galison‚ P. 298‚ 300 Gallistel‚ C. R. 252‚ 264 Garcia‚ L. D. 4f.‚ 23 Geertz‚ C. 7‚ 23 Gelman‚ R. 252‚ 264 Gendreau‚ P. 128‚ 156 Gerlach‚ I. 27‚ 45 Gert‚ B. 189‚ 198 Giddens‚ A.30‚ 45‚ 52‚ 61 Giersch‚ H. 57‚ 61 Gigerenzer‚ G. 229‚ 249–256‚ 259–261‚ 263–265‚ 274f.‚ 278‚ 282‚ 299f. Gilhaus‚ U. 163–165‚ 175 Giller‚ K.E. 15‚ 23 Giske‚ R. 181‚ 189‚ 198 Goggin‚ C. 128‚ 156 Göhring‚ J. 70‚ 80 Goldscheider‚ A. 116f.‚ 120 Goldstein‚ N. 11‚ 24 Gooding‚ D. 281‚ 294‚ 300 Gottfredson‚ D. M. 128‚ 156f. Gottfredson‚ M. 128‚ 156

305 Gould‚ S. J. 270‚ 278 Grandke‚ A. 67‚ 71‚ 76‚ 78–80 Grant‚ W. 160‚ 171‚ 174f. Gray‚ P. N. 136‚ 156 Gray‚ S. 86‚ 89‚ 101 Grayboys, T. 249‚ 264 Greenwood‚ P. W. 128‚ 156 Grennfelt‚ P. 169‚ 171‚ 175 Griswold‚ W‚ 31‚ 36‚ 45 Grote‚ L. R. 108‚ 120 Grubb‚ J. S. 222‚ 226 Gummow, W. M. C. 91‚ 102 Gusfield‚ J. R. 31‚ 35f.‚ 45

H Haas‚ P. 174‚ 175 Haas‚ P. M. 3‚ 4‚ 6‚ 7‚ 20‚ 22‚ 24 Habermas‚ J. 3‚ 5‚ 22‚ 24‚ 28‚ 45‚ 51‚ 61‚ 154‚ 156 Habicht‚ H. 12‚ 24 Haeni, H. 15‚ 23 Hagerty‚ K. D. 126‚ 156 Haigh‚ N. 14‚ 24 Halfeld‚ A. 115‚ 120 Hall‚ J.E. 15‚ 24 Halliday‚ E. C. 166‚ 167‚ 175 Hamm‚ R. M. 250‚ 264 Hand‚ L. 269‚ 278 Hann‚ R. G. 128‚ 155 Hanson‚ R. K. 129‚ 157 Hård‚ M. 115‚ 120 Hardy‚ D. 171‚ 175 Harman‚W.G. 128‚ 155 Harre‚ D. 189‚ 198 Harris‚ A. 129‚ 157 Harris‚ M. 94, 96‚ 101 Hathaway‚ S. C. 18‚ 24 Hau‚ M. 83‚ 105‚ 111‚ 120 Hebig‚ D. 71‚ 73‚ 79 Heinemann‚ E. D. 69‚ 80 Heinemann‚ K. 189‚ 198 Hempel‚ C. 124 Herf, J. 53‚ 61 Herschel‚ C. 270‚ 278 Hertwig‚ R. 252‚ 254‚ 263‚ 265 Heu‚ E. 57‚ 61 Heuer‚ K. 72‚ 80 Heydon, J. D. 93‚ 101 Heymann‚ M. 83‚ 159‚ 169f.‚ 175f. Heymann‚ P. 151 Hilgartner‚ S. 31‚ 45 Hinesly‚ T. D. 23 Hintze‚ O. 217‚ 226 Hirsch‚ A.von l28‚ 151‚ 157

Name Index

306 Hitzler‚ R. 31‚ 42‚ 45 Hoefs‚ B. 68‚ 80 Hoffrage‚ U. 229‚ 249‚ 251–256‚ 259–261‚ 263–265‚ 274‚ 278‚ 282‚ 300 Hofstede‚ G. 7‚ 24 Hogarth‚ J. 137–139 Hoke‚ R. 217‚ 227 Holquist‚ M. 282‚ 300 Holstein‚ J. A. 31‚ 36‚ 45 Holt‚ J.C. 217‚ 227 Höpfner‚ F. 113‚ 120 Horkheimer‚ M. 5‚ 24 Hov‚ Ø. 169‚ 171‚ 175 Hubenstorf‚ M. 106‚ 120 Huber‚ P. W. 3‚ 6‚ 23‚ 124‚ 126‚ 156‚ 270‚ 278 Hucker‚ G. 15‚ 23 Hucker‚ T. W. G. 15‚ 24 Huerkamp‚ C. 107f.‚ 120 Hughes‚ E. C. 190‚ 198 Hume, D. 154 Humphreys‚ R. 217‚ 227 Husserl‚ E. 154

I Inglehart‚ R. 7‚ 24 International Encyclopedia of Sociology 281‚ 287‚ 300 Ippolito‚ M. F. 295‚ 300 Irwin‚ A. 3f.‚ 6‚ 8f.‚ 24 Isaacs‚ J. 88‚ 102 Isaksen‚ I. S. A. 159‚ 176 Istituto per la documentazione guiridica‚ Consiglio Nazionale delle Ricerce 136‚ 157

J Jackson‚ J. L. 127‚ 157 Jacobs‚ L. W. 11‚ 24 Jänicke‚ M. 168‚ 176 Janke.T. 87‚ 102 Jarausch‚ K. H. 65‚ 67‚ 80‚ 105‚ 120 Jasanoff‚ S. 3–9‚ 24‚ 125‚ 131‚ 135‚ 139‚ 145‚ 157‚ 160‚ 176 Jessen‚ R. 71‚ 80 Johnson‚ L. K‚ 123‚ 157 Johnston‚ P. L. 132‚ 157 Jones‚ C. M. 252‚ 265 Jonides‚ J. 252‚ 265 Joss‚ S. 8‚ 24 Jütte‚ R. 108‚ 120

K Kagan‚ R. A. 6‚ 10‚ 24

Kahn‚ F. 114‚ 120 Kahneman‚ D. 252‚ 265 Kamm‚ F. 182f.‚ 190‚ 195‚ 198 Kant‚ I. 282‚ 285–287‚ 299f. Kapferer‚ Dr. med. 118‚ 120 Kaplan‚ C. A. 296–300 Karnell‚ G. 88‚ 101 Kater‚ M. 105‚ 111‚ 120 Katzenstein‚ P. J. 50‚ 62 Kaufmann‚ F.-X. 27‚ 32‚ 35‚ 41‚ 45 Kaye‚ D. H. 278 Keable‚ J. F. 149 Kellenbenz‚ H. 221‚ 227 Keohane‚ R. O. 174f. Keon-Cohen‚ B. A. 95‚ 102 Kiloh‚ L. G. 131‚ 158 Kitsuse, J. I. 31‚ 35‚ 46 Klasen‚ E.-M. 107‚ 121 Kleimann‚ B. 216‚ 227 Kleiter‚ G. D. 251‚ 265 Kloepfer‚ M. 165‚ 176 Knapton‚ M. 221f.‚ 226f. Knoepfel‚ P. 168‚ 172‚ 176 Knorr-Cetina‚ K. D. 145‚ 157 Köbberling‚ J. 250‚ 253‚ 265 Koch‚ U. 75‚ 81 Koehler‚ J. J. 250‚ 262f.‚ 265‚ 272‚ 274f.‚ 278 Koentjaraningrat 99‚ 102 Kommission für wirtschaftlichen und sozialen Wandel 49‚ 62 Korcak‚ R. F. 23 Krabbe‚ W. R. 108‚ 121 Krehl‚ L. von 108‚ 121 Kretschmayr‚ H. 219‚ 227 Kretschmer‚ E. 108‚ 111‚ 121 Krüger‚ L. 265 Kuhn‚ T. S. 3‚ 24 Kurzenhäuser‚ S. 263‚ 265 Kurz-Milcke‚ E. M. 229‚ 281f.‚ 287f.‚ 294f.‚ 298‚ 300 Kymlicka, W. 184‚ 186–189‚ 196‚ 198

L L’Hermite‚ P. 14f.‚ 23f. Lachmund‚ J. 107‚ 116‚ 119‚ 121‚ 229 Lanaro‚ P. 221‚ 226 Landwehr, A. 179‚ 215 Langbein‚ J. H. 132‚ 157 Law Reform Commission 86‚ 102 Le Goff‚ J. 222‚ 227 Leblanc‚ M. 128‚ 157 Legault‚ F. 135‚ 157 Lehane‚ J. R. F. 91‚ 102 Lehman‚ W. 141‚ 157

Name Index Leibniz 294 Leiss‚ L. 3‚ 25 Lempert‚ R. O. 273‚ 278 Levine‚ D. I. 210‚ 212 Levy‚ E. 3‚ 25 Levy‚ M. A. 174f. Liek‚ E. 108‚ 111f.‚ 115‚ 117f.‚ 121 Lind‚ E. A. 212f. Lindenbergh‚ S. D. 202‚ 204‚ 212 Lindsey‚ S. 229‚ 254‚ 265‚ 269‚ 272‚ 275‚ 278 List Gesellschaft 57‚ 62 Little‚ T. 128‚ 156 Locke‚ J. 154 Logan‚ T. J. 9‚ 11‚ 24‚ 25 Lopez‚ C. C. 221‚ 227 Lovegrove‚ A. 136‚ 157 Lüdtke‚ A. 222‚ 227 Luhmann‚ N. 58‚ 60‚ 62‚ 74‚ 80‚ 218‚ 227 Lundgreen‚ P. 217–219‚ 226

M Maclean‚ A. 183–185‚ 188f.‚ 198 Maddalena‚ A. de 221‚ 227 Mahler‚ R. J. 11‚ 24 Mandel‚ J. S. 253‚ 265 Manning‚ P. K. 127‚ 157 Maranini‚ G. 219‚ 227 Maritain, J. 186f.‚ 198 Marshal‚ E. 10‚ 24 Marshall‚ E. 253‚ 265 Martignon‚ L. 298‚ 300 Martino‚ A. A. 136‚ 157 Masi‚ G. 220‚ 227 Mathes‚ P. 111‚ 121 Mayntz‚ R. 28‚ 45‚ 50‚ 56‚ 58‚ 60‚ 62‚ 164‚ 168f.‚ 176 McCarthy‚ E. 4‚ 24 McClelland‚ C. E. 107‚ 121 McGrath, S. P. 10f.‚ 15f.‚ 23f. McKenzie‚ C. R. 260‚ 265 McKeough‚ J. 87‚ 102 McPherson‚ M. S. 193‚ 198 Meagher‚ R. P. 91‚ 102 Mehan‚ H. 282‚ 300 Menzel‚ P. T. 195‚ 198 Menzies‚ R. J. 134‚ 157 Metzler‚ G. 1‚ 47‚ 54‚ 62 Meuschel‚ S. 77‚ 80 Miller‚ C. 160‚ 176 Miller‚ G. 31‚ 36‚ 45 Moeller‚ R. G. 32‚ 45‚ 69‚ 80 Mohrs‚ T. 285‚ 301 Momeyer‚ R. W. 181‚ 188f.‚ 192f.‚ 198

307 Moraw‚ P. 217‚ 227 Morse‚ D. 10–12‚ 25 Mousnier‚ R. 218‚ 227 Moyser‚ G. 39‚ 45 Much‚ H. 110f.‚ 121 Muirhead‚ K. 171‚ 175 Müller‚ E. 164‚ 166‚ 176 Muller‚ J. Z. 54‚ 62 Müller-List‚ G. 69‚ 80 Mummert‚ O. 118‚ 121 Murswieck‚ A. 35‚ 45

N Naschold‚ F. 50‚ 62 Natali‚ F. C. 136‚ 157 National Archives of Canada‚ Government Archives Division (NAC) 140–142‚ 157 National Research Council (NRC) 8‚ 11‚ 25‚ 271f.‚ 278f. Nave-Herz‚ R. 32‚ 35‚ 41‚ 45 Neate‚ G. 92–97‚ 102 Nersessian‚ N. J. 294‚ 298‚ 301 Neumann‚ U. 74‚ 80 Neustätter‚ O. 109‚ 121 Newell‚ A. 296‚ 301 Nolan‚ M. 115‚ 121 Novick‚ L. R. 260‚ 264

O O’Brien‚ B. 208‚ 213 O’Connor‚ G. A. 11‚ 24 O’Neill‚ O. 282‚ 285f.‚ 299‚ 301 O’Riordan‚ T. 4‚ 6‚ 8‚ 14‚ 16‚ 23‚ 25 Olbrechts-Tyteca‚ L. 37‚ 45 Ontario 149‚ 157 Organisation for Economic Co-operation and Development (OECD) 161‚ 170‚ 176 Orne‚ M. T. 270‚ 279 Ott‚ H. 15‚ 24 Ott‚ R. 162‚ 175 Overcash‚ M. A. 11‚ 24 Özdemiroglu‚ E. 170‚ 175

P Page‚ A. L. 9‚ 11‚ 24f. Park‚ N. W. 137‚ 156 Parkinson‚ P. 86‚ 91‚ 102 Paulos‚ J. A. 255‚ 258‚ 265 Pearce‚ D. 170‚ 175 Penuti‚ C. 224‚ 227 Perelman‚ C. 37‚ 45 Peterson‚ J. 15‚ 25 Peukert‚ D. 115‚ 121

Name Index

308 Pieters‚ J. A. 204‚ 213 Pilot‚ H. 22 Plé‚ B. 56‚ 62 Plitzko‚ A. 57‚ 62 Poirier, R. 129‚ 132–134‚ 157 Poletiek‚ F. H. 179‚ 201‚ 204‚ 212 Politser‚ P. E. 250‚ 253‚ 265 Popenoe‚ D. 32‚ 34‚ 37‚ 40‚ 45f. Popitz‚ H. 56‚ 62 Popper‚ F. 140–142‚ 157 Popper‚ K. 124 Popper‚ K. R. 22 Porter‚ T. 265 Poster‚ M. 219‚ 227 President’s Commission on Law Enforcement and the Administration of Justice 147‚ 158 Prittwitz‚ V. von 161‚ 163‚ 167‚ 176 Puri‚ K. 88–90‚ 102

Q Québec 149‚ 153‚ 158 Quine, W. V. O. 189‚ 198

R Radkau‚ J. 112‚ 121 Rakel‚ H. 1‚ 3‚ 5‚ 16‚ 25 Rami‚ B. 171‚ 176 Ramm‚ T. 68‚ 80 Rawls‚ J. 186‚ 198 Real‚ L. A. 252‚ 265 Regens‚ J. L. 168‚ 176 Regin‚ C. 108f.‚ 121 Reinhard‚ W. 218‚ 227 Reiser‚ S. 116‚ 121 Relazioni 224‚ 227 Renn‚ O. 4–6‚ 8‚ 10‚ 14‚ 25 Richardson‚ H. 189‚ 198 Richter‚ H. R. 260‚ 265 Ricketson‚ S. 88‚ 102 Rietz‚ E. 15‚ 23 Robertson‚ J. 134‚ 158 Robitscher‚ J. 129‚ 158 Rockman‚ B. 43f. Rohe‚ K. 7‚ 25 Rohrmann‚ B. 8‚ 25 Rommelspacher‚ T. 161‚ 175 Rorty‚ R. 186‚ 199 Rose‚ M. E. 217‚ 227 Rosencrantz‚ A. 168‚ 177 Roser‚ A. 285‚ 301 Rosidi‚ A. 99‚ 102 Ross‚ A. M. 134‚ 158 Ross‚ J. S. R. 5‚ 25

Rothstein‚ H. 4‚ 24 Rottleuthner‚ H. 65‚ 80 Rovito‚ P. L. 220‚ 227 Royal Commission on Environmental Pollution 4–6‚ 10‚ 25 Ruck‚ M. 65‚ 80 Ryan‚ J. A. 9‚ 11‚ 23‚ 24f. Rycroft‚ R. W. 168‚ 176 Rygiewicz‚ P. 11‚ 24

S Salter‚ L. 3‚ 6‚ 8f.‚ 25‚ 125‚ 158‚ 160‚ 176 Saltzburg‚ S. 124‚ 158 Sandnes‚ H. 169‚ 176 Sauerbeck‚ D. R. 15‚ 23f. Savage‚ G. 215‚ 227 Sayer‚ D. 221‚ 226 Scanlon, T. M. 190f.‚ 199 Scarabello‚ G. 221‚ 226 Scharpf‚ F. 50‚ 62 Schelsky‚ H. 56–58‚ 61f. Schiffer‚ E. 68‚ 72‚ 80 Schirrmacher‚ P. 118‚ 121 Schleich‚ C. L. 107‚ 121 Schmid‚ W. 118‚ 121 Schmidt-Gernig‚ A. 54‚ 62 Schmitt‚ C. 129‚ 158 Schneider‚ F. 170f.‚ 175 Schneider‚ T. 160‚ 176 Schneider‚ U. 1‚ 65‚ 69‚ 73‚ 80 Schoenberger‚ A. 249‚ 264 Schönfeldt‚ H.-A. 72‚ 80 Schramm‚ E. 162‚ 175 Schröder‚ R. 66‚ 80 Schroeder‚ K. 73‚ 80 Schulze, W. 218‚ 227 Schum‚ D. A. 260‚ 265 Schuman‚ L. M. 265 Schwartz‚ B. 141‚ 158 Sciuti Russi‚ V. 220‚ 228 Scott‚ J. W. 225‚ 228 Sedlmeier‚ P. 252‚ 263‚ 265 Shapiro‚ M. 282‚ 301 Sherman‚ B. 86‚ 102 Sherman‚ L. W. 123‚ 158 Shrader-Frechette‚ K. S. 5‚ 25 Siegrist‚ H. 65‚ 81 Silber‚ E. 118‚ 121 Simon‚ H. A. 287‚ 296–301 Simorangkir‚ J. C. T. 99‚ 102 Simpson‚ J. A. 216f.‚ 228 Singer‚ O. 31‚ 43‚ 46 Singer‚ P. 183‚ 199 Skea‚ J. 169‚ 175

Name Index Skolnick‚ A. 31f.‚ 34‚ 46 Slaco‚ D. 125‚ 158 Smith‚ J. E. 23 Smith‚ J. S. 131‚ 158 Snover‚ D. C. 265 Sparschuh‚ V. 75‚ 81 Spector‚ M. 31‚ 35‚ 46 Spelsberg‚ G. 160‚ 162‚ 165f.‚ 176 Spiegelberg‚ F. 167‚ 176 Stacey‚ J. 32‚ 34‚ 37‚ 40f.‚ 46 Stanner‚ W. E. H. 87‚ 102 Steding‚ R. 72‚ 81 Stehr‚ N. 30‚ 44‚ 46‚ 60‚ 62‚ 126‚ 154‚ 158‚ 160‚ 176 Steiner‚ H. 75‚ 81 Stern‚ A. C. 166f.‚ 176 Stewart‚ A. 87‚ 102 Stigler‚ S. M. 251‚ 265 Stine‚ G. J. 261‚ 265 Stolberg‚ M. 165f.‚ 176 Stolker‚ C. J. J. M. 179‚ 201f.‚ 204‚ 206‚ 209f.‚ 212 Stollberg‚ G. 107f.‚ 116‚ 121 Stolleis‚ M. 221‚ 228 Storch‚ H. von 160‚ 176 Styve‚ H. 169‚ 176 Susskind‚ R. E. 136‚ 139‚ 158 Swain‚ T. 87‚ 99‚ 102 Swijtink‚ Z. 265

T Tagliaferri‚ A. 221f.‚ 228 Technische Anleitung Luft 164‚ 167‚ 176 Thibaut‚ J. 33‚ 46 Thompson‚ D. F. 190f.‚ 199 Thompson‚ W. C. 272‚ 279 Tonry, M. 128‚ 156 Tooby‚ J. 253‚ 264 Töpfer‚ K. 171‚ 176 Toulmin‚ S. E. 37‚ 46 Tremblay‚ R. E. 129‚ 158 Trienes‚ R. 111‚ 121 Trukenmüller‚ A. 169‚ 176 Tversky‚ A. 252‚ 265 Tweney‚ R. D. 281‚ 295‚ 299–301

U Uekötter‚ F. 162‚ 164f.‚ 169‚ 173‚ 177 United Nations Economic Commission for Europe (UNECE) 161‚ 177 United Nations Environment Program (UNEP) 161‚ 177 Unruh‚ G.-C. von 218‚ 228 US Department of Justice 147‚ 158

309

V Vacha‚ J. 111‚ 122 van den Bos‚ K. 212f. van der Linden‚ S. 205‚ 212 van der Loo‚ H. 5‚ 25 van der Sluijs‚ J. P. 168‚ 170‚ 176 van Reijen, W. 5‚ 25 Varanini‚ G. M. 221‚ 228 Vecchiato‚ F. 221‚ 226 Verein für Socialpolitik 57‚ 62 Verwaltungs-Hochschulwochen 58‚ 62 Viramontes, J. L. 208‚ 213 Vogel‚ M. 113‚ 122

W Waid‚ W. M. 270‚ 279 Walker‚ L. 33‚ 46 Wallich‚ H. C. 51‚ 62 Walter‚ W. 1‚ 27‚ 32‚ 34–36‚ 39‚ 40f.‚ 46 Wambugu Githaiga‚ J. 88‚ 102 Waxman‚ C. 54‚ 63 Weaver‚ R. K. 41‚ 43‚ 46 Weber‚ H. 77‚ 81 Weber‚ M. 74‚ 81 Webler‚ T. 5‚ 6‚ 25 Weidner‚ H. 168‚ 172‚ 176f. Weindling‚ P. 112‚ 122 Weiner‚ J. G. 88‚ 99‚ 102 Weinstein‚ M. C. 250‚ 264 Weir‚ B. S. 272f.‚ 279 Weisbard‚ A. J. 181‚ 192f.‚ 196‚ 199 Weisbrod‚ B. 105‚ 122 Weiss‚ C. H. 29‚ 46 Wentker‚ H. 66‚ 81 Wetstone‚ G. 168‚ 177 Wey‚ K.-G. 163‚ 166‚ 177 Weyer, J. 56‚ 63 Whitehead‚ B. D. 34‚ 37f.‚ 41‚ 46 Wicke‚ L. 161‚ 177 Wiedemann‚ P. 5‚ 25 Wikler‚ D. 193f.‚ 199 Wildavsky‚ A. 4‚ 6f.‚ 23 Wilke‚ H. A. M. 212f. Wilke‚ M. 73‚ 80 Williams‚ B. 186‚ 199 Willigenburg‚ T. van 185‚ 189f.‚ 195‚ 199 Wilson‚ J. Q. 141‚ 158 Windeler‚ J. 250‚ 253‚ 264f. Wingens‚ M. 29‚ 46 Wirtz‚ R. 110‚ 122 Wissenschaftsrat 166‚ 172f.‚ 177 Witter‚ E. 11‚ 24 Wolf‚ R. 160‚ 163–167‚ 169‚ 177

Name Index

310 Wolf‚ S. 196‚ 198 Wolff‚ E. 105‚ 122 World Trade Organization (WTO) 5‚ 9‚ 16– 20‚ 25 Wuttke-Groneberg‚ W. 108‚ 122 Wynne‚ B. 4‚ 6‚ 8‚ 14‚ 25

Y Yearley‚ S. 4‚ 24

Z Zabik‚ M. J. 11‚ 24 Zedler‚ J. H. 216‚ 228

Subject Index A

civil servant 58‚ 65‚ 72‚ 151‚ 286 coach 179‚ 181‚ 183‚ 187‚ 189–191‚ 196f. codex 5‚ 17f. coincidental match 271f. colorectal cancer 251–253‚ 256‚ 266 commissioner 94f.‚ 140‚ 142‚ 144‚ 152‚ 179‚ 184‚ 196‚ 215–223‚ 225 committee 5‚ 11–13‚ 18‚ 22‚ 34‚ 67‚ 69–78‚ 109f.‚ 123‚ 139‚ 141‚ 148‚ 152‚ 159‚ 171‚ 179‚ 181–184‚ 186f.‚ 189–197‚ 235 communist 66–68‚ 70‚ 72f.‚ 75‚ 78 Communist Party of Germany 66 comparative law 31 competence 3‚ 42‚ 66‚ 68‚71f.‚ 105f.‚ 108‚ 111‚ 119‚131‚ 164f.‚ 182‚ 210‚ 217 computer simulation 159‚ 297 confidentiality 194 consistency 150‚ 186f.‚ 196 consultant 51‚ 60‚ 123f.‚ 135‚ 140‚ 144f.‚ 179‚ 181–184‚ 189–195‚ 197 Continental tradition 33‚ 278 copyright copyright protection 83‚ 85‚ 88 copyright violation 85 criminal law 83‚ 123–127‚ 129–132‚ 136‚ 139‚ 141f.‚ 145–147‚ 150‚ 154 criminology 123‚ 125‚ 130‚ 133‚ 151 cultural cultural bias theory 4‚ 7 cultural war 32 customary law 83‚ 85–87‚ 89f.‚ 92–95‚ 98‚ 100

Aboriginal artist 85‚ 87–91‚ 94‚ 97f.‚ 101 adversarial 8‚ 14‚ 21‚ 24‚ 28‚ 125‚ 132‚ 148 adversarial model 28‚ 33–35 adversarial vs. inquisitorial model 41 advisor 1‚ 3f.‚ 9‚ 21df.‚ 28‚ 30‚ 34f.‚ 43‚ 51‚ 58‚ 60f.‚ 139‚ 151‚ 190f.‚ 231 agency 1‚ 10f.‚ 17‚ 21‚ 35‚ 89‚ 125‚ 139‚ 148–150‚ 168‚ 235‚ 258‚ 281f.‚ 287f.‚ 293–299 Aid to Families with Dependent Children (AFDC) 32 AIDS counselor 229‚ 253‚ 261 alienation 110‚ 115 Americanism 115 ankylosing spondylitis 253‚ 256‚ 267 anthropologist 83‚ 85‚ 95–97‚ 100 archive 71‚ 73‚ 76f.‚ 79‚ 140f.‚ 220‚ 223f. authority 7‚ 20‚ 40‚ 42‚ 61‚ 71‚ 99f.‚ 105– 108‚ 110–112‚ 116f.‚ 119‚ 125‚ 141‚ 152‚ 165f.‚ 179, 185‚ 190f.‚ 216f.‚ 221‚ 223‚ 229‚ 271‚ 278‚ 281–288‚ 295f.‚ 298f. authorization 89–91‚ 98

B base rate 250f.‚ 253‚ 260‚ 262‚ 275f. Bayes Bayes’s rule 250–252‚ 258f.‚ 261‚ 263 Bayes’s theorem 273f. best technology 169 bioethics 184f.‚ 195 biotope 232–236‚ 238‚ 240–243‚ 245 biotope mapping 231‚ 234–236‚ 239‚ 245 bovine spongiform encephalopathy (BSE) 6 breast cancer 249f.‚ 253‚ 256‚ 267

D decision 3–9‚ l lf.‚ 15f.‚ 19f.‚ 22‚ 33‚ 36‚ 43‚ 47–50‚ 52‚ 55–60‚ 76‚ 87‚ 90–92‚ 95‚ 100‚ 110‚ 127–129‚ 137–139‚ 152‚ 159‚ 163‚ 165‚ 173‚ 182‚ 184f.‚ 190f.‚ 197‚ 203–205‚ 208‚ 211‚ 223f.‚ 231‚ 250‚ 270‚ 276‚ 284 decisionism 129 democracy 50, 57‚ 68‚ 140‚ 147‚ 183f.‚ 197 Democratic Women’s Union of Germany 69 discourse 1‚ 5‚ 27–29‚ 31‚ 35‚ 39–43‚ 53‚ 55f.‚ 58f.‚ 66‚ 97‚ 106‚ 108‚ 110‚ 113‚ 116‚ 118‚ 166‚ 219–222‚ 224f.‚ 233f.‚ 243‚ 245 DNA DNA analysis 269–272‚ 275f.‚ 278

C Canadian Sentencing Commission (CSC) 137‚ 145‚ 147‚ 150 cartographic strategy 238f.‚ 243 casuistry 126 Categorical Imperative 285f.‚ 299 charisma 108‚ 112‚ 117 civil civil code 66‚ 70–73‚ 202f.‚ 206‚ 209 civil law 70‚ 72–74‚ 77–79‚ 98‚ 163

311

Subject Index

312 DNA expert 262, 271f. DNA fingerprinting 126, 134, 263 DNA match 271–276 DNA profile 269, 271f., 274–276 drugs 8f., 18, 108, 118f., 134 dual model 28

feminist 50, 98 fiduciary obligation 91 folklore 85, 87f., 98, 100 French Academy of Science 218 frequency representations 255, 263

E

gatekeeping 271f. German Civil Code 66, 70–73 German Federal Environmental Agency 168 globalization 4, 5, 20, 22 good life 183, 283f. Guthrie test 253, 256, 267f.

early modern state 217–221 economic instruments 170f. economist 43, 51, 55, 57f., 160, 167, 170, 173 effects-based strategies 169 elders 85, 91, 94, 101, 284 elite 1, 7, 39, 43, 50f., 59–61, 65f., 78, 127, 222, 224 empathy 106, 111f., 117 engineer 83, 105, 115, 160, 162 Enlightenment 281f., 285–287 environmental environmental policy 19, 160f., 164, 170f., 174 Environmental Protection Agency 10, 125, 139 environmental regulation 5, 21, 163, 169f. environmental research 160f., 172f. environmental scientist 231, 233, 235 epistemic epistemic communities 6f., 20 epistemic community formation 4, 6, 22 ethics 179 ethics consultant 179, 181 EUROTRAC 159, 168-171, 174 expert expert evidence 85, 93, 96–98, 100, 124, 270 expert system 83, 124, 127, 136 expert witness 83, 85, 93, 95–97, 124, 131–135, 138, 179 expertus 124, 216

F false false positive error 272, 275 false positive rate 250f., 256, 260 families 27, 32, 35f., 38, 41, 67, 77, 129 family family debate 27f., 31–34, 37–43 family law 66–69, 71–79 family policy 1, 27, 31, 33 Family Support Act 32 family values 34, 55

G

H habitat 229, 231, 233 Halbwissen 117 health 1, 4, 6, 9, 16–18, 20–22, 106–109, 112-115, 118f., 160–162, 165, 167, 172, 195, 204f., 207f., 249, 261 hemoccult test 251, 253, 256, 266 heterodoxy 30, 36 heuristics 296f., 299 historian 66, 100, 107, 116, 159f., 165, 174, 215–217, 220, 225 historical expertise 83, 159, 174 historical individual 1, 83, 229 HIV 141, 149, 203, 261f. HIV test 261 holistic approach 108, 110, 126 hormone 16–18 hormone-raised beef 4, 9, 16f., 19 human rights 131, 142, 186, 223 hygienic education 109, 117f.

I incarceration 128, 130, 147, 150f., 153 informed consent 188, 189, 249 innumeracy 229, 255, 258 inquisitorial inquisitorial model 28, 34, 41–43 inquisitorial vs. the adversarial models 33 institution 5, 11, 22, 28, 31, 33–35, 48, 51– 53, 58f., 77, 90, 126, 131, 133, 137, 141, 147, 166f., 173, 182, 184, 192, 215, 217–220, 222f., 229, 232f., 255, 283, 285 Integrated Assessment Modeling 170 intellectual property right 87 International Standards Organization (ISO) 5 internationalization 5, 168 interview 36, 39f., 71, 74, 76, 79, 138, 149,

Subject Index 224, 237, 254, 256, 259, 264 intuition 111–113, 129, 144, 185f., 258

J judge 33, 66, 68, 70f., 74, 90f., 93–96, 126, 129f., 132–134, 137–139, 179, 202– 205, 221, 262, 269–272, 278, 285 juror 262, 269, 271f., 274

313

N National Socialism 54, 65, 69, 241 natural therapy 83, 106, 108–110, 112f., 118f. Nazis 69 nicotine 8 nuclear power 8

K

O

Kameralistik 218 Keynesian theory 57 knowledge society 29f., 42–44, 154, 225

object 37, 47, 60, 86, 111f., 128, 141, 149, 192, 232, 236, 245, 281f., 293, 295f., 298f. Office of Technology Assessment 4 origin 9, 87, 167, 284 orthodox 34f.,37f., 106, 108–111, 116–119 orthodox physician 105f., 109–111, 116–119 orthodoxy 30, 36

L laboratory proficiency test 272, 275 landscape 88f., 91, 231, 233f., 237, 240f., 245 Law Reform Commission of Canada 140, 145f. lawyer 65–75, 78f., 88, 92, 95f., 105, 123, 126, 129, 132, 138f., 141, 148f., 192, 204, 211 lay public 30, 105–107, 109, 116–119 legal legal monopoly 51 legal studies 28 legal term 163, 201 legitimacy 9, 20f., 52, 105–107, 109–111, 119, 193f. legitimation 50f., 60f. liberal vs. conservative welfare state 41 likelihood ratio 262, 272–274

M Maastricht Treaty 16, 19 mammography 250, 252, 256, 267 mammography screening 249 map 229, 232, 236–240, 242–245 Marxist 50 Marxist ideology 75, 78 mathematician 281, 287f., 293–298, 300 mechanistic world view 113 mediator 87, 220, 223 medical diagnosis 255, 258, 262 Ministry of Justice 66–73, 76–78, 153 model 7,11f., 27–35, 37, 41–43, 49, 57, 77, 99, 112, 170f., 212, 229, 241, 243, 260, 283f., 294, 297f. modeling 170, 271, 294 modernity 48, 52f., 114, 245 moral moral entrepreneur 34 moral reasoning 183, 187f., 195f.

P patent 70, 87, 162, 270 patient 106–108, 110–117, 119, 149, 203, 205, 229, 249, 255, 258, 267, 283 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)32 personality 83, 108, 110–112, 117, 119 phallometrician 131 phenylketonuria 253, 256,f., 267f. philosopher 115, 124, 154, 179, 181–197, 283f. physician 83, 105–119, 229, 249f., 253, 255–264, 283 planning 1, 47, 49–54, 57, 59-61, 229, 231– 236, 240f., 243, 245 policing 83, 126f., 131 policy 1, 6f., 9, 12f., 15, 17, 20–22, 27–29, 31–33, 35f., 39, 41–43, 47–51, 54, 57, 59f., 65–68, 70, 72, 75, 77f., 86, 94, 129, 139, 141f., 144f., 151, 154, 159– 161, 163f., 166–168, 170f., 174, 179, 181, 187, 190–193, 195, 197, 218, 231, 233 political affiliation 140, 144 pollutant 9–14, 16, 159–161, 166, 169 posterior probability 250f. poverty 36, 38 precautionary principle 15f., 19, 21 prediction instrument 128, 131 probation officer 130 problem problem solving 126, 162, 281f., 287f., 293–298

Subject Index

314 problem space 296–299 professionalization 65f., 107, 166, 231 property law 76f., 87 psychiatric testimony 124, 129, 135 psychologist 133, 299 public Public Commissions of Inquiry 139f. public health 1, 4, 6, 9, 16, 20f., 261 public opinion poll 151, 153

R rape 274, 275 rationality 15, 28f., 38, 54, 190f., 194, 243 rationalization 53, 115 reactionary modernism 53 regulation 3f., 8, 10, 12–16, 19–21, 76f., 90, 163f., 167, 169, 202, 211, 221, 233f. regulatory regulatory agencies 4, 8, 139 regulatory science approach 4, 22 relative risk reduction 249 religion 30, 87, 99, 217, 284, 287, 299 religious symbolism 85, 89, 99 representation of information 249 responsibility 32, 51, 68, 130, 133f., 146, 163, 165, 189–191, 193, 195, 197, 270f., 284 rhetoric 21, 34, 37, 39f., 106, 108, 110, 113, 115, 117–119 risk 3f., 6f., 11–13, 18f., 128–130, 132f., 151, 193f., 196, 249, 261f., 282 risk assessment 1, 11f., 15–19, 123, 126, 130

S safety regulations 4, 16 scientific scientific advisor 34f. scientific community 38, 124f., 140, 174, 270 scientific rigor 165 security 67, 127, 142, 148–150, 154 sensitivity 21, 170, 250f., 253, 256, 259– 262, 275 sentencing Sentencing Data System (SDS) 137 sentencing disparity 137 sewage sludge regulation 9f., 13, 16, 19f. single mothers 27,32, 36, 38f. social scientist 35, 38, 40f., 48–51, 55, 58, 60f., 139, 159f., 167f., 179 socialist socialist law 73f., 76, 78

Socialist Unity Party of Germany 66 specificity 26 1f. spin-doctors 153, 155 standardization 105, 201, 211, 245 statistical reasoning 126, 229, 261f., 274, 276 stress 127 suffering 8, 107, 116, 201, 203f., 207–212, 258 surveillance 30 syndics 215, 220–225

T team expertise 154 technocracy 28, 29 Temporary Assistance for Need Families (TANF) 33 therapeutic 17,83, 107–110, 113f., 118, 131 think tank 34, 39–41, 43 trade 4f., 17, 20, 22, 49, 55, 57f., 87, 215, 298 tradition 31, 33, 36f., 53, 56, 60, 66f., 72, 77f., 85, 89f., 92, 98, 126, 128, 132, 179, 185, 218, 222, 235, 237, 245, 269, 278, 282–285, 298f. trial of O. J. Simpson 273 trust 60, 106–108, 111, 117, 195 truth 34, 113, 154, 179, 183–185, 190, 192f., 219–221, 223–225

U urban planning 231–234, 236, 240f., 243 utilitarianism 184f., 188 utilities 205, 208 utopian 115, 119, 192

V Verein Deutscher Ingenieure (VDI) 162,167 victim 8, 135, 163, 179, 201–207, 209–212

W Weimar Republic 68f., 71, 78, 83, 105, 119 welfare 27, 36–38, 41, 57, 109, 112, 217 welfare state 31, 35f., 41, 47, 59 world World Health Organization (WHO) 18 World Trade Organization (WTO) 5, 9, 17, 19f.

Z zoning 236, 239–243