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 PUBLISHERSNEW YORK, BOSTON, DORDRECHT, LONDON, MOSCOW
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 meet- ing, 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 af- forded 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 wantto argue with the verity that experts have expertise, and are called in for their ex-pertise? Semantics notwithstanding, the chapters in this volume demonstratethat it would be ill-advised to consider expertise merely a personal attribute, nomatter 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 thischoice has served the project well for advancing our understanding of expertise.A human-centered perspective on expertise brings home the actualities of expertsliving in particular societies, participating in particular organizations and institu-tions, engaging in particular practices, and thus partaking in particular cultures. We recognize that in many areas of society, especially in those related totraining and education, the issue arises of how to best foster well-versed exper-tise. The answer is in engaging students, and we think the same must be assumedfor the study of expertise. The chapters in this volume engage with the particu-larities of the historical cases that the authors have chosen. The sociologist andoccasional methodologist of the cultural and social sciences Max Weber realized 1 1921, Gesammelte Aufsätze zur Wissenschaftslehre (p. 207) [Collected Essays in the Logicof 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 Univer-sity Press. v
vi Preface 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 cate- gories. 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 Wage- naar 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. Wewere 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 gratefulto the staff at the Max Planck Institute for Human Development in Berlin fortheir support with the preparation of the manuscript for this volume and the re-lated 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 forkeeping a strong commitment to this publication and for enduring an editorialprocess that took longer and was more intense than any of us had probably an-ticipated. The Schloessmann Seminar is an ongoing series of workshops by theMax Planck Society in memory of Dr. Ernst-Rudolf Schloessmann, a formersupporting member of the Society, and especially dedicated to the encourage-ment of challenging research proposals by young scholars. The aim of the Semi-nar is to bring young people together, whose voices tell and whose views shapewhat most of this volume is about. As a result, we had the opportunity to workwith a dynamic and also mobile group of authors, which turned keeping the listof affiliations and addresses up-to-date into an ongoing task. Working with thisgroup has expanded “the sphere of our interest.”
ContentsSection 1Political Systems and the Experts They Support 1 Scientists as Expert Advisors: Science Cultures Versus National Cultures? Horst Rakel 3 2 Experts’ Discourses as Judicial Drama or Bureaucratic Coordination: Family Debate in the United States and Germany Wolfgang Walter 27 3 The Integration of Social Science Expertise Into the Political Process: Did It Actually Happen? Gabriele Metzler 47 4 Socialist Legal Experts: A New Profession? Ute Schneider 65Section 2Who Is Called Upon as Expert? 5 Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? Christoph Antons 85 6 The Humane Expert: The Crisis of Modern Medicine During the Weimar Republic Michael Hau 105 7 Expertise Not Wanted: The Case of the Criminal Law Jean-Paul Brodeur 123 8 Air Pollution Control: Who Are the Experts? Matthias Heymann 159 vii
viii ContentsSection 3Experts, Redefined 9 The Philosopher as Coach Andreas Føllesdal 181 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 201 11 The Expert in a Historical Context: The Case of Venetian Politics Achim Landwehr 215Section 4Innovative Representations 12 Mapping Urban Nature: Bio-Ecological Expertise and Urban Planning Jens Lachmund 231 13 How to Improve the Diagnostic Inferences of Medical Experts Ulrich Hoffrage and Gerd Gigerenzer 249 14 Statistical Scientific Evidence and Expertise in the Courtroom Samuel Lindsey 269 15 The Authority of Representations Elke Kurz-Milcke 281 Name Index 303 Subject Index 311
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 polit- ical 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 insti- tutional 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 pub- lic health and the environment? Horst Rakel’s chapter brings out how risk assess- ment 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 re- cent decades, Wolfgang Walter argues that the occasionally heated debate sur- rounding this issue in America, and the comparatively moderate debate in Ger- many, each are reflections of the organization of experts within the respective po- litical 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 empha-size the transient nature of political systems and the consequent changing de-mands and opportunities for the experts. Metzler’s case study portrays the inte-gration of social scientific knowledge into the political process of West Germanyafter the Second World War. After the fall of the Nazi regime a modernization ofsociety and government was to be achieved. Planning, as a scientifically basedpolitical instrument, was regarded as a key to a modern political program, espe-cially by the Social Democrats. However, as we can learn from Metzler’s analysis,social scientific expertise prominently took an alternate avenue to cast its influ-ence on the political and administrative elite in West Germany: higher educationand related informal networks. Finally, Schneider asks what happens to a professional elite after the politicalsystem that supported this elite comes to an end. In the German Democratic Re-public, the elite of legal professionals, which has had an extensive history withinGermany, was regarded as an obstacle to the reshaping of society. Schneidershows how radical changes on one level, the level of the political system, play outon another, the organizational, with the new regime relying to a significant ex-tent on the same historical individuals, alias experts, across the political divide. 1
Chapter 1 Scientists as Expert Advisors: Science Cultures Versus National Cultures? Horst Rakel Center for Environmental Risks, University of East Anglia, Norwich, UK firstname.lastname@example.org 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 in- put 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 com- peting interests. In that sense, science and scientists serve to rationalize policy- making (Jasanoff, 1990). However, relative to the experts’ importance in the policymaking process, thework of these advisors is poorly documented and the construction and the appli-cation of expert knowledge is rarely scrutinized. This is all the more surprisinggiven the awareness that all knowledge is preliminary and/or socially constructed (Adorno et al., 1972; Habermas, 1969; Kuhn, 1970). Yet, only a few scholarshave taken up the task to review, systematically and critically, the activities of ex-pert advisors in the regulatory process (Foster, Bernstein, & Huber, 1993; Haas, 1992; Irwin, 1995; Jasanoff, 1990; Salter, Leiss, & Levy, 1988). This task hasbeen approached from differing theoretical perspectives, and a synthesizingframework of how to analyze expert involvement in policymaking has not yetbeen established. Additional complexity arises if we turn to risk-based policy-making on a multinational or even global level. Apart from very few exceptions,scholarly investigations on expert involvement in policymaking focus either onissues of risk and decision making within a national framework, or on multina-tional programs with little or no reference to questions of risk and decision mak-ing. Thus, we usually find either the international dimension or the uncertaintydimension missing from the analyses. Given frequently competing, or even contradictory expert advice on risk reg-ulation, the question arises which factors are responsible for this divergence ofsupposedly rational actors, basing their judgment on scientific evidence. So far, 3
4 Horst Rakelmost of the academic debate concerning this question has revolved either aroundthe national cultures, in which the experts are embedded, or around the sciencecultures, to which the experts belong, according to their professional training andrespective affiliations. The thesis pursued by this chapter is that both aspects arenecessary for a comprehensive analysis of expert advice on risk regulation withinan international context. Three theoretical perspectives have been selected thatwill serve to show how focusing solely on the nationally or professionally definedcontexts of the role of science and the scientist in standard setting, guideline de-velopment, and the determination of “best practice” methods is insufficient. With the accelerating globalization of trade, the harmonization of environ-mental, health, and safety standards is rapidly becoming a major international is-sue. Two case studies will help to illustrate the role of scientists as expert advisorsin the development of environmental, health, and safety regulations with multi-national and global implications; one case study concerns the regulation of sew-age sludge land application, the other the dispute over hormone-raised beef.Both case studies involve a comparison of how the respective issue has been dealtwith in the United States and in the European Union (EU). In each case, the re-spective regulation was developed on the basis of expert advice and scientific evi-dence but, nevertheless, led to considerably different regulations in the EU, onthe one hand, and the USA, on the other. The marked differences between thesetwo 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 regulatoryscience approach (Irwin, Rothstein, Yearley, & McCarthy, 1997; Jasanoff, 1990,1995). Based on the evidence provided by the two case studies, we will discuss towhat extent these analytical frameworks can provide for a comprehensive inter-pretation of the role of science and the scientist(s) in the regulatory decision-making process. Environmental and Public Health Standard SettingThe interest in the role of science in the environmental and public health stan-dard setting has grown over the last decade. Apart from appearing in a numberof scholarly investigations, the subject has also increasingly caught the interest ofnational governments and regulatory agencies. In the USA, for instance, productsafety standard setting has been subject to a thorough review by the Office ofTechnology Assessment (Garcia, 1992). Recently, the United Kingdom’s RoyalCommission on Environmental Pollution concluded a 3-year study with a de-tailed report on environmental standard setting (Royal Commission on Envi-ronmental Pollution, 1998). The reasons behind this increasing attention arecomplex and manifold: Two main forces are globalization and scientification.
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 5 GlobalizationIn recent years, the internationalization of markets and trade has assumed a newquality, with trade volumes worth billions of dollars circulating around theglobe. In 1992, almost half of the US-manufactured goods exported to the EUwere subject to product safety standards alone (Garcia, 1992, p. 537). Compli-ance with environmental regulations, worldwide, was estimated to cost $500 bil-lion by the year 2000 (Royal Commission on Environmental Pollution, 1998,p. 1). Competition has transcended national boundaries as much as knowledgedissemination and communication. The internet and electronic publishing havemade advances in scientific knowledge by being almost instantly availablearound the globe and scientific journals without international editorial boardsare increasingly considered substandard in the academic community. Globaleconomic actors are rapidly forming, Daimler-Chrysler being a particularlyprominent case in point. However, global industrial enterprises and the interna-tional financial markets are insufficiently controlled through national regulatoryframeworks. In the absence of a credible global (political) decision-making body,institutions, such as the World Trade Organization (WTO), the InternationalStandards 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 onscientific committees, that is, on expert advice.ScientificationSince the Enlightenment, the scientification (Verwissenschaftlichung) of modernsociety has been subject to scholarly debate. Some have argued that science hasexpanded its ambitions to control the natural environment and into controllingsociety, rationalizing social processes for the purpose of technological advance-ment (Habermas, 1969; Horkheimer & Adorno, 1947; van der Loo & vanReijen, 1992). However, critique concerning such ambitions has not diminishedthe penetrating power of science in all aspects of human life. Value-adding eco-nomic processes nowadays almost always depend on scientific advances or theapplication of scientific knowledge in previously “underdeveloped” areas. Cur-rently the service industries, such as logistics, energy services, catering, or tele-communications services, are undergoing rapid changes, primarily due to tech-nological advances and increasing computerization. This scientification of the“lifeworld” (Habermas, 1981) threatens to exclude nonexperts from public dis-course (Jasanoff, 1990; Renn, Webler, & Wiedemann, 1995; Webler, Rakel, &Ross, 1992), elevating a scientific rationale to the position of being the only ac-ceptable basis for decision making (Shrader-Frechette, 1991). Consequently, thecommand over scientific knowledge and the interpretation of scientific evidenceoccupies a central position in the resolution of interests, problems, and societalconflicts.
6 Horst Rakel Scientific evidence in the area of environmental and public health standardsetting is, more often than not, contradictory. What one expert interprets as theabsence 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 thematter since a relationship between BSE and the Creutzfeld-Jakob disease wasnot scientifically proven. But, it was also not proven that BSE did not have thesuspected effect. Public pressure eventually forced the EU Commission to issue aban on the import of British beef. Yet, there was no conclusive scientific evidencefor either claim. Despite being subject to interpretation, expert advice is often mandated as aprecondition for an objective assessment of the issue to be regulated (Arbeitsge-meinschaft für Umweltfragen, 1986; Royal Commission on Environmental Pol-lution, 1998). In recent years, this has triggered an increasingly controversial ac-ademic debate on the role of science and scientists in the process of regulatorydecision making. Scholars in the field have highlighted the political dimensionof “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 roleof science in the courtroom (Foster & Huber, 1999; Foster et al., 1993; Kagan,1994). Analysis of Expert Input to Regulatory Decision Making on an International LevelA theoretical framework for the analysis of expert input to regulatory decisionmaking on an international level is still missing. Existing approaches focus on in-ternational agreements, national decision making, and the scientific basis forregulatory standard setting. In the following, three approaches will be intro-duced to illustrate the potential of a synthesis of differing perspectives on regula-tory decision making. Haas’s (1992) epistemic community formation providesan excellent “backbone” for such a synthesis, but needs to be embedded in a reg-ulatory science framework informed by the cultural, that is, socially constructed,dimension of risk evaluation.Epistemic CommunitiesDrawing on work in the area of international policy coordination, Haas (1992)and Adler and Haas (1992) introduced the notion of networks of knowledge-based experts, that is, epistemic communities, as an important factor in nationaland international policymaking. According to these authors, epistemic commu-nities play a decisive role in “articulating the cause-and-effect relationships of
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 7complex problems, helping States identify their interests, framing issues for col-lective debate, proposing specific policies, and identifying salient points for ne-gotiation” (Haas, 1992, p. 2). These expert communities are characterized by: a shared set of normative and principled beliefs, providing a value-based ra- tionale for social action, shared causal beliefs, shared notions of validity, a common policy enterprise.Thus, epistemic communities provide consensual knowledge. Based on theirreputation, professional training, and claim to scientific authority, members ofan epistemic community can wield considerable influence over domestic and in-ternational policy debates, particularly if their expertise is anchored in an areahighly valued by society or elite decision makers. Haas emphasizes that the dy-namics underlying the formation of epistemic communities is based on the aimto reduce uncertainty, so much dreaded by policymakers. Central to this aim isnot just the presence of “raw” data, or the absence of guesses, but knowledge asthe product of human interpretation of social and physical phenomena (Haas,1992, p. 4). With respect to research methodology, Haas (1992) recommends acombination of tools largely drawn from the ethnomethodological and struc-tural analysis toolbox. This approach focuses on biographical data, such as publi-cations, delegation lists to meetings and conferences, testimonies before legisla-tive bodies, and speeches and reports for decision-making agencies, but can alsoinclude the analysis of mathematical models to identify key variables and equa-tions used by epistemic community members.Cultural Bias TheoryThe term “cultural bias theory” is used here as an umbrella for a number of ap-proaches that have grown considerably diverse over the last decades. Culturalbias approaches differ greatly depending on the definition of the social groupthat one wishes to analyze. However, all of them share the notion of culture as adetermining factor in the formation of knowledge, policies, or larger societaltrends (Douglas & Wildavsky, 1982; Geertz, 1973; Hofstede, 1994; Inglehart,1990; Jasanoff, 1986; Rohe, 1990). Of particular interest, for this chapter, arenotions of culture as a “world-view” and the manifestation of culture in rulemaking or policymaking, variably referred to as “regulatory style,” “regulatoryculture,” or “political style.” Such “cultures” or “styles” have, for instance, beenidentified as “hierarchical,” “entrepreneurial,” or “egalitarian” (Douglas &Wildavsky, 1982). According to this theoretical perspective, national back-grounds appear to be less important than the affiliation with professional and so-cial groups, such as, for example, “bankers,” “politicians,” or “environmental ac-tivists.” With respect to the analysis of risk management, one would inquirewhether the risks to be regulated are perceived to be “objective” or socially “con-structed.” From an “objective” viewpoint, a “rational” actor or society would reg-
8 Horst Rakelulate risks equally based on comparable parameters. These risks could encom-pass, for example, the number of fatalities per year associated with a given activ-ity. From this perspective, it is highly inconsistent to regulate nuclear poweroperations in Germany to a (theoretical) risk level of less than 8 fatalities per yearwhile, at the same time, accepting a death toll of some 8,000 traffic-related fatal-ities in that same society (Fritzsche, 1991). Likewise, all “hard” drugs taken to-gether claim 2,500 victims in Germany every year, whereas nicotine alone kills100,000, equivalent to a jumbo jet with a full complement of passengers crash-ing 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.” Anumber of scholars argue that risk regulation is part of a national style of govern-ment (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 con-sidered to have a strong bearing on the process and outcome of governmentalregulation. Especially in the context of comparisons between the EU and theUSA, styles have been labeled consensual and corporatist versus adversarial. Otherresearch has emphasized the US focus on due process and the (Northern) Euro-pean 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 characteris- tic of academic science. In many areas, for example, in the case of new chemicalsor pharmaceutical drugs, regulation has to address risks that are not yet fully un-derstood. Test results from animal studies are extrapolated to the human body,although underlying processes and mechanisms are largely unknown. Regulatoryaction is based on a limited pool of scientific knowledge, analogies drawn fromsimilar cases in the past, and the collective opinions of leading experts in the re-spective field. Consequently, risk assessments employed by regulatory agencieshave often been described as an “art” rather than as a science, and as working byless stringent norms than ordinary science (Irwin et al., 1997; National ResearchCouncil [NRC], 1996; Rohrmann, 1993).
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 9 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 pro- cess 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 ac- cess to information and control over the respective information, with its implica- tions for democratic legitimacy, become important variables in the standard- setting 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 inter- national 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 SludgeSewage sludge is the (largely organic) residue left after waterborne waste (sewage)from domestic and industrial sources has been treated. Whereas the effluent ofsewage treatment plants, in most cases, is clean enough to be discharged into riv-ers or the sea, contaminants present in raw sewage accumulate in the solid phase.Thus, sewage sludge usually contains a number of organic and inorganic pollu-tants (e.g., heavy metals) of varying quantity, depending on the area and thecomposition of the sources discharging into the sewer system. However, becauseof its origin, sewage sludge also holds considerable amounts of plant nutrientsand 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 beneficialrecycling practice if risks to public health and the environment were not of con-cern. Although sewage sludge had been spread onto soil for many years, the issueattracted renewed regulatory attention in the late 1980s and early 1990s because
10 Horst Rakelof international agreements to ban the disposal of sewage sludge into the sea(Marshal, 1988; McGrath et al., 1989). At the same time, tightening standardson wastewater treatment led to increasing quantities of sewage sludge that stillcontinues. In the United Kingdom, for example, the total amount of sewagesludge is projected to rise from roughly 1 million tons (dry solids) in 1992 to 1.5million tons by 2005 (Royal Commission on Environmental Pollution, 1996,p. 82). Similarly, in 1991, 3.2 million tons were generated in Germany, rising toan estimated 4 million tons by the year 2000 (Abwassertechnische Vereinigung[ATV], 1996, p. 15). So, while one of the major disposal routes has been shutdown, the overall amount to be disposed of continues to rise. This disparity ex-plains, in part, the political pressure to find an adequate solution to the problemof sewage sludge disposal.In the USA: Experts Criticizing ExpertsThe development of Sewage Sludge Regulation in the USA commenced in thelate 1970s and turned out to be particularly long winded (Chaney, 1990a;Marshal, 1988). After prolonged political haggling, in particular between Con-gress and the Reagan administration, the development of federal sludge regula-tion—also known as “Rule 503”—eventually took shape in the late 1980s. In1989, the US Environmental Protection Agency (EPA) published a draft regula-tion for commentary (EPA, 1989). The strictness and range of the standards sentshock waves through the industry and upset many experts outside the EPA(Chaney, 1990a, 1990b; Morse, 1989; see Table 1). As a result, considerable re-sistance was shaping up and thousands of responses to the proposed Rule arrivedat 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 bya number of experts outside the EPA were perhaps more ferocious than anybody
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 11within the regulatory agency had expected. “Obituaries were being written” forthe 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 Chaneyfrom the US Department of Agriculture, was particularly concerned about thedisregard for the benefits associated with sludge land application, such as its highcontent in plant nutrients, as well as its soil conditioning and erosion preventionproperties, 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 regula- tions 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 princi-ple of a science-based approach that is considered to be at the heart of regulatorydecision making in the USA (EPA, 1995, p. iii; NRC, 1982). Yet, while the ex-pert critics did not question the risk-assessment approach per se, they attackedthe EPA on the grounds that the assumptions and the models used in the risk-assessment process were overly conservative and the experimental data employeddid not adequately represent pollutant behavior in the field (EPA, 1995). The widespread criticism that the 1989 draft Rule received led to the estab-lishment of a Scientific Advisory Committee whose brief was to assist the EPAwith revising the Rule. The Peer Review Committee was largely composed ofhigh-profile researchers in the field and was co-chaired by Professor Logan (OhioState University) and Professor Page (University of California, Riverside). To-gether with Drs. Chaney, Logan, and Page, the team consisted of ten additionalexperts from institutions all over the USA and Canada (EPA, 1995, p. 141). Atleast half of the members of the Scientific Advisory Committee had joint publi-cations (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). Thispeer review process and the work of the Scientific Advisory Committee led to aset 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 qualityin the “40-Cities-Study” was considered outdated. The EPA had already beenaware of the limitations of this study as a database for the assessment of sewagesludge quality during its development of the 1989 Rule (EPA, 1989, p. 5763).This led the EPA to conduct the National Sewage Sludge Survey (NSSS) during1988 to 1989. The NSSS used state-of-the-art analytical techniques and equip-ment and covered a wider spread of Publicly Owned Treatment Works (POTWs)
12 Horst Rakel 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 con- centrations, 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 ongreenhouse and pot studies to calculate the pollutant uptake by plants. Thesestudies simulated pollutant concentrations in soil through application of metalsalts or pure organic compounds. The Scientific Advisory Committee was ableto demonstrate that the behavior of sewage sludge pollutants in the field wasconsiderably different from the experiments in the greenhouse. Because of cer-tain 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 determinedin laboratory experiments (Chaney, 1980, p. 63, 1990a, p. 56). The EPA accepted the results from field studies as being more representativeof real-world situations and decided, for the revised Rule, to rely as far as possi-ble on data from field studies (EPA, 1995, p. 28). Revision of exposure path models. The models employed for the proposed Ruleassumed a 100% transfer of a pollutant simultaneously into ground water, sur-face water, and air. That approach was deemed too conservative. The revisedRule assumed a mass-balance approach, whereby the pollutant transfers are pro-portionally assigned to the respective medium. From MEI to HEI. One of the core criticisms leveled against the EPA was theuse of the Most Exposed Individual (MEI) model. In the eyes of the Peer Re-view Committee, the MEI combined too many conservative assumptions andrepresented an individual that could not exist in reality. To conduct a risk assess-ment for a hypothetical person was, according to the critics, pointless (Chaney,1990b, p. 70; Morse, 1989, p. 50). Because of the Peer Review Committees rec-ommendations the EPA administrator decided to drop the MEI and replace itwith the Highly Exposed Individual (HEI) model (Habicht, 1992). In contrastto the MEI, the HEI was considered to provide a more representative model ofthose being at a higher risk than the general population. The “worst case” as-sumptions of the MEI were, thus, replaced by an “unlikely case” scenario in theHEI model. Risk-level scenarios. For the proposed regulation, the EPA originally evaluatedscenarios for risk levels of and (i.e., scenarios evaluating fatalitiesper 10,000/100,000/1,000,000 exposed population). Since the new risk assess-ments indicated a very low risk, even at the current practice of sewage sludge dis-posal, the EPA made the policy decision to use, in general, the level of for
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 13 the revised Rule. This level then represents the lifetime cancer risk of a highly ex- posed individual (EPA, 1995, p. 35). Omission of organic compounds. Organic compounds were deleted from therevised Rule because all of the reviewed substances fulfilled at least one of the fol-lowing 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 Con- centration Limits by Rule 503 represent what has been discussed in the literatureas 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 limitsthat were so low that the respective sludges can be applied with very little regula-tory constraint (EPA, 1994, p. 7). According to the EPA, EQ concentration lim-its are so low that even when applied over many years no adverse affects to hu-mans or the environment will occur. Thus, in principle, EQ sludges can still beapplied to sites that have already reached their maximum pollutant load. Theselimits are supposed to provide an incentive for the industry to produce high-quality 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 ofRule 503. After implementing the changes outlined above, as well as a numberof other changes recommended by the Scientific Advisory Committee, the EPAproceeded to publish the final Rule 503 in 1993 (because of a number of law-suits, the details of which cannot be addressed at this point, the Rule receivedadditional minor modifications until 1995). Table 1 shows the dramatic changesin standards from the initial to the final Rule. Apart from the complete omissionof organic pollutants, the limit values for inorganic pollutants have become con-siderably less stringent. A comparison with the corresponding regulation by theEU provides for an interesting point of reference for policy analysts. The devel-opment of the EU Sewage Sludge Regulation is outlined below, followed by adiscussion of the commonalities and differences of the two approaches.
14 Horst RakelIn the EU: Experts Among ThemselvesThe corresponding EU Regulation to Rule 503 is the “Directive on the protec-tion of the environment, and in particular of the soil, when sewage sludge isused in agriculture” (European Communities [EC], 1986). The Directive waspassed in 1986, but has its origins in a European Cooperation in the field of Sci-entific and Technical Research (EU COST) program. The research projectstarted in 1971 and became known as the COST Project 68. The researchproject was extended several times and eventually merged into a proposed regu-lation in 1982. Concerns were raised by the member states about imposing uni-form standards across the whole of the EU, not taking into account regionalvariations and the cost associated with over-stringent standards. However, afterfour years of negotiation, the Council of Ministers eventually formally adoptedthe Directive in 1986 (Haigh, 1995). Since the Directive essentially goes back to a joint EU research project, thelimit values shown in Table 2 were also strongly influenced by expert input. Inthe EU case, however, the majority of the expert input occurred before a proposalwas published. The difference in procedural approaches can perhaps be ex-plained with the different regulatory styles in Western Europe and the USA,which have been described as corporatist and consensual versus adversarial, re-spectively (O’Riordan & Wynne, 1987; Renn, 1995). The elicitation and discussion of expert opinion in the EU developed alongthe above mentioned COST program. Particularly in the late 1970s and early1980s the COST program sponsored a string of expert workshops, where viewswere exchanged and potential regulatory provisions were discussed among theEuropean scientists involved. The proceedings of these conferences were pub-lished on a regular basis, representing a quite extensive documentation of theparticipating experts’ assessment of the issue (Barth & L’Hermite, 1987;
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 15 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 mak- ing on the EU level, until very recently, was renowned for its intransparency and closed-door political horse trading (Peterson, 1995). Thereby, the rational- ity behind a particular regulation is often completely obscured to an outsider. Fortunately, in the sewage sludge case, the published workshop proceedings doprovide us with a comparatively comprehensive insight into the experts’point(s) of view. The contributions to the COST workshops and the location of the venuesmake clear that the European expert exchange was dominated by presentationsfrom German, Dutch, Swedish, and British scientists. There certainly was a dif-ference 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 im-plement. However, these differences appear insignificant if compared to the USlimit values (see Table 2). What seems to have concerned the European COSTexperts the most was the potential effects of heavy metals, contained in sewagesludge, on soil microorganisms. While the EU researchers took their analysis tothe microbiological level, their US colleagues used earthworm activity as the tar-get organism for their ecological risk assessment (EPA, 1995, p. 46). Field exper-iments in Sweden, Germany, and the United Kingdom, however, had shown po-tential adverse effects on the soil microbe Rhizobium that raised concerns aboutlong-term soil fertility among the European expert community (Chaudri,McGrath, Giller, Rietz, & Sauerbeck, 1993; McGrath et al., 1994, p. 113). Inthis context, McGrath et al. (1994, p. 109) emphasize the difference between theHighest Non Observed Adverse Effect Concentration (HNOAEC) and the Low-est Observed Adverse Effect Concentration (LOAEC), as these may vary consid-erably. Depending on the chosen point of reference otherwise identical toxicitytests may, thus, lead to a different assessment of risk and possibly regulation.Summary of Case Study IThe case study above has illustrated that two expert communities, assessing anidentical environmental issue, have come to widely different conclusions con-
16 Horst Rakelcerning the standards required to protect public health and the environment. Incomparison, the expert community advising the European regulatory body didnot conduct a systematically structured risk assessment of the type of theirAmerican counterparts, except for the Dutch regulator. Instead, they reviewedthe field for evidence of an adverse effect occurring and then drafted their rec-ommendations accordingly, taking into account the technical feasibility of theiradvice. In their review of the experimental data employed in both the US andEU 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 inter- pret 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 inthe two regulatory frameworks differ. These differences are summarized inTable 3. Table 3 may be said to overemphasize the disparities between the two frame-works. For instance, European scientists are not solely driven by technical feasi-bility at the expense of scientific accuracy. European countries, such as the United Kingdom, Switzerland, or the Netherlands have been employing risk as-sessment for environmental and public health regulation for many years. In fact,with increasing harmonization of European legislation, risk assessment is be-coming more widespread throughout the EU, for example, in OccupationalSafety Regulations (Rakel, 1996). However, the differences are quite pro-nounced with respect to the way in which uncertainty is handled and environ-mental integrity is interpreted within the respective cultural paradigms. From aUS point of view, the probability of harm above a certain level has to be scientif-ically substantiated to justify regulatory action. In Western Europe, the burdenof proof rests on the other side, that is, it has to be proven beyond reasonabledoubt that harm does not occur. Whereas in the USA environmental change isaccepted, as long as harm to humans is not to be expected, in the EU the precau-tionary principle is the yardstick for the acceptability of human intervention inthe environment. This commitment has recently even been included in theMaastricht Treaty, which has become a cornerstone for political decision makingin the modern EU (Cameron & O’Riordan, 1994).Case Study II: Hormone-Raised BeefBecause of a number of incidents involving illegal drug applications to farm ani-mals, food safety became a rising concern in the EU during the 1970s. As a re-sult, the European Commission proposed legislation to ban, entirely, the use ofhormone products in the rearing of beef and veal (WTO, 1997, p. 9). In the1980s, following reports of significant use of illegal growth-promoting hormonalsubstances in a number of EU member states, several Council Directives were
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 17 passed, effectively banning the use of hormonal substances, except for therapeu- tic 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 thera- peutic 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 unnec- essary 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 namesprovided by the Codex Alimentarius Commission (Codex) and the InternationalAgency for Research on Cancer (IARC) the panel selected six experts to advisethem: Dr. Francois André, France; Dr. Dieter Arnold, Germany; Dr. GeorgeLucier, USA; Dr. Jock McLean, Australia; Dr. Len Ritter, Canada; Dr. AlanRandell, Codex Secretariat. The composition of the panel has been explicitlyspelled out here as an important input to epistemic community and cultural biasmethodology. The panel ruling and the documentation of the case illustrate that the jointmeeting with the experts was of crucial importance for the dispute settlementprocess (WTO, 1997, 1998). Although the original panel ruling (WTO, 1997)was overturned on certain accounts of appeal, the EU eventually lost the case be-cause its regulatory process and, in particular, its use of scientific expertise wasfound not to be consistent with WTO rules. The main issues are briefly de-scribed below.Risk AssessmentThe first and foremost argument against the EU ban on hormone-raised beefwas 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 ex-amination of data and factual studies; it is not a policy exercise involving socialvalue judgements made by political bodies” (WTO, 1997, p. 191). Article 5.1 ofthe GATT agreement on sanitary and phytosanitary measures (SPS) states that (…) members shall insure that their (…) measures are based on an assess- ment, (…) of the risks to human, animal or plant life or health, taking into
18 Horst Rakel account risk assessment techniques developed by the relevant international organizations (Hathaway, 1993, p. 189; WTO, 1997, p. 191).After prolonged deliberation, the panel ruled that the EU had not met its bur-den of proof in that the (scientific) studies it referred to actually fulfilled the re-quirements of a proper risk assessment (WTO, 1997, p. 196).International StandardsSimilarly, the panel also found that the respective EU standards were not in ac-cordance with international standards (WTO, 1997, p. 186ff.). There, the panelwas, in particular, referring to the recommendations published by Codex. Codexpublishes recommendations, such as Acceptable Daily Intakes (ADIs) or Maxi-mum Residue Limits (MRLs). However, Codex recommendations are not bind-ing. One of the expert committees, on which Codex relies, is the Joint Food andAgricultural Organization/World Health Organization (FAO/WHO) ExpertCommittee on Food Additives (JECFA). The goal of JECFA’s evaluation of vet-erinary 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 asthe international standard from which the EU ruling could only deviate on sci-entifically justified grounds. For the EU experts, however, deviating from Codexrecommendations was justified because, in the past, drug abuse had occurredand good veterinary practice could not necessarily be assumed.Conclusive EvidenceThe EU scientists had submitted the hypothesis of a “potential genotoxicity ofhormones” based on tests carried out with elevated doses of oestrogen (WTO,1997, p. 202). However, data on genotoxicity at low levels (roughly equivalentto the levels expected in meat) were not available at this point. The panel dis-missed 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 issuefor 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 wasobserved. However, this lack of evidence did not mean that no scientific studieswere available. Rather, two of the appellees, the USA and Canada, “declined tosubmit any assessment of MGA upon the ground that the material they wereaware of was proprietary and confidential in nature” (WTO, 1998, p. 78f.).
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 19Precautionary PrincipleThe EU claimed that the application of the “precautionary principle,” as a gen-eral customary rule in European environmental policymaking, places “the attain-ment of a high level of consumer protection before the commercial interests offarmers and pharmaceutical companies” (WTO, 1997, p. 86). Moreover, thecustomary application of the precautionary principle affects, not only politicaldecision making, but even the scientific assessment of risks (WTO, 1998, p. 7).The panel concluded, nevertheless, that although governments may act from aperspective of prudence and precaution, the precautionary principle does notoverride the provisions of the respective agreements under the WTO (1998,p. 46).Summary of Case Study IICasting aside for the moment the legalized setting in which the dispute tookplace, the case study outlined above, to a large extent, mirrors the key aspects ofthe case study on sewage sludge regulation. First, it again shows the differingusage of scientific expertise in the regulatory process. From a US point of view,scientific expertise should not be influenced by political considerations andjudgments should strictly adhere to scientific principles. The European experts,on the other hand, having experienced the difficulty of enforcing “good veteri-nary practice,” were led to opt for much larger safety margins than their NorthAmerican colleagues. The opposing viewpoints are reinforced by differing normative standards.For the appellees’ (USA, etc.) scientists, the absence of evidence of harm is suffi-cient to justify lenient standards or no regulatory action. For the appellants, ex-perts’ positive evidence of no harm occurring is required to legitimize lenient orno regulatory intervention. Last, but not least, the approach by the EU scientistswas consistent with the overall regulatory framework provided by the MaastrichtTreaty with its emphasis on the precautionary principle as a yardstick for policy-making. A formalized risk assessment of the kind required by the GATT/WTO
20 Horst Rakelagreements, therefore, would very likely not change the European evaluation ofthe issue, as the fundamental preconditions for regulatory (in)action would stillnot be met. Table 4 summarizes the key positions of the opposing parties duringthe WTO dispute settlement process. A Synthesis of Multiple Perspectives on Regulatory Decision Making In the wake of globalization, previously autonomous areas of society are increas- ingly 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 de- cision 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 overbur-dening and remote bureaucracy. Yet, the mechanisms of international trade mayreplace the asserted local authority with an even more remote and non-transpar-ent decision-making structure. Naturally, local environmental and public health regulation can turn out tobe a stumbling block for the unrestricted flow of goods and services betweentrading blocks (incidentally, sewage sludge regulation may lead to grain exportrestrictions between the USA and the EU). As the WTO agreements indicate,the hope is that science provides the “objective” yardstick that is necessary toharmonize differing standards. This hope is, at best, naive. The probabilistic sci-entific findings in the area of environmental and public health risks cannot pro-vide 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 sewagesludge regulation, pot studies vs. field studies, or MEI vs. HEI), and the selec-tion of evidence (earthworm vs. soil microbes), thus, having a massive bearingon 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 va-lidity and certain causal beliefs and, perhaps most importantly, they pursue acommon policy enterprise, which may also be described as the “mission” of therespective epistemic community. However, and different from Haas’ (1992)original proposal, in the two presented case studies membership in the respectiveepistemic communities was strongly dependent on cultural affiliation, and na-tional background, in particular. In the case study on sewage sludge regulation,research results generated by members of each epistemic community (NorthernAmerican/European) were known and available to all. The members of the twocommunities even attended the same conferences. So, professional training andscientific knowledge were perhaps as comparable as possible, taking into account
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 21 the different (national) educational systems involved. Given this shared knowl- edge 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 reg- ulatory process. In both case studies, the European experts felt a strong obligation to adhere to the precautionary principle. By contrast, in the USA, acceptable environmen- tal change and cost-effectiveness provide a legitimatory basis for much more lenient standards. Differences in the regulatory process concern the timing of ex- pert 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 im- portant 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 contextof this chapter, it appears that under an adversarial mode of rule making expertsare held to locating their policy choices upstream in the epistemological process.Under a consensual mode, a certain degree of political sensitivity on the part ofthe expert is tolerated, if not expected. From a regulatory science perspective it is, thus, evident that expert advice inpolicymaking needs to be viewed and interpreted within the political context itoccurs. Problems arise when (national) regulatory standards are placed and eval-uated outside their frame of reference. This holds particularly true if the evalua-tor(s) is/are unaware of their own culturally preconditioned biases when puttinginto question the validity and legitimacy of the “deviating” expert community. Itis universally accepted that challenges to claims of validity are a fundamental andintegral part of the scientific endeavor. However, as the discussion at theSchloeßmann workshop in November 1998 has suggested, the role of the scien-tist should, perhaps, be separated from the role of the expert. When scientists actas policy advisors or regulatory scientists, they are invariably entering a politi-cized sphere. Thus, separating environmental regulation into “science-based”and “policy-based” approaches (as the EPA argues, perhaps in an attempt to pre-empt potential criticism; EPA, 1995, p. iii) appears to be more driven by politi-cal rhetoric, than by a profound appreciation of the issue at hand. ConclusionWhen regulating identical environmental and public health risks the USA andthe EU arrive at considerably different conclusions. In the presented case studiesthe standards developed are largely a result of scientists providing expert advicefor policymaking. The interesting finding is that the actual knowledge base, therespective experts drew upon, was not contested. The different expert communi-ties were rather separated by the interpretation of the available scientific evi-
22 Horst Rakel dence. The interpretation of scientific evidence for policy advice is, to a large de- gree, 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 ana- lyzing environmental and public health standard setting. However, since the epistemic community approach was developed within the context of interna- tional policy coordination, it has not adequately addressed the issues of regula- tory 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 prerog- ative 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 com- pletely different set of rules and perhaps employing a different epistemic ap- proach than we have been used to so far. Therefore, it seems more than timely toglobalize 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 scien- tific evidence. However, because of the globalization of markets and interna- tional trade agreements an increasing number of standards and regulations areset by international bodies or organizations. These new regulatory systems arenot yet subject to the same checks and balances as it is a characteristic of the na-tional systems. There is an urgent need to investigate decision making on an in-ternational level and, in particular, the roles of expert advisory committees in theregulatory process. It is necessary to expand these studies beyond issues, such asozone depletion and global warming. Although less visible in the media, foodsafety or product safety standards affect a large number of people and have hugeeconomical 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 globalizedinstitutions. Is their role to provide purely “scientific” input regardless of politi-cal implications? How can science input into policymaking be “objective” if theevidence itself is open to interpretation? Perhaps somewhat contrary to the tradi-tional view on science and scientists, it might still be early days in the formationof a global science culture. ReferencesAdler, E., & Haas, P. M. (1992). Conclusion: Epistemic communities, world order, and the cre- ation of a reflective research program. International Organization, 46(1), 367–390.Adorno, T. W., Dahrendorf, R., Pilot, H., Albert, H., Habermas, J., & Popper, K. R. (1972). Der Positivismusstreit in der deutschen Soziologie. Darmstadt, Germany: Luchterhand.
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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@example.com 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 Ger- man policies for families, children, and their welfare. In the US, the obligations of (absent) fathers to financially support their fam- ilies 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 cur-tailed. Moreover, highly critical pronouncements on so-called “unconventionalfamily forms” such as single-parent, divorced, or step-families, as well as on themoral situation of American youth, presumably caused by these conditions, havebecome widespread. In Germany,1 families have been gradually relieved of the costs of raisingchildren; parents (i.e., in most cases mothers) can take parental leave for up tothree years (with modest financial support), and family members responsible forthe care of frail elderly relatives have been granted support by care-provision in-surance programs. The public debate has treated families as being rather similar;the distinction between “conventional” and “unconventional” families is less im-portant than that between families and “non-families,” that is, persons or house-holds without children or other dependents. Likewise, the problems attributedto 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 paperrefers to West Germany, that is, the Federal Republic of Germany; for the period after 1990, to thegeographical unit bearing the same name that combines former West and East Germany. For sev-eral reasons, unification has led to continuity rather than discontinuity in the dominant publicviews 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). 27
28 Wolfgang Walter I will argue in this chapter that these differences can be attributed to the in-stitutional resources, strategies, and world-views of the experts who shape thepublic debate on the family in the two countries. I will try to show that two setsof factors, the organization of the field of experts and their strategies, account forthe characteristics of the debate on family issues and the resulting policies. Refer-ring to a well-established distinction found in comparative legal studies, I willdenote the difference between experts’ discourses in the US and Germany withthe terms “adversarial model” and “inquisitorial model.” In the first section (Experts as Advisors), I review older approaches on the uti-lization of the social sciences with regard to my own research strategy. In the sec-ond section (Experts and Policy Change: A Comparative Case Study), I provide anoverview of family debate and family-policy developments in each country, toexplain the different paths of policy development arising from the specific link-age between the institutionalization of expertise and experts’ strategies—adver-sarial and inquisitorial. In the third section (Methodological Issues in the Study ofExperts), I analyze three aspects of the account: the societal embeddedness of ex-perts’ 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, thesociology of experts. Experts as AdvisorsThe Utilization of Social ScienceThe role of experts in the scientific counseling of policymakers has been studiedfor a long time with—it seems—largely inconclusive results. In this chapter, Iwill deal mainly with policy experts drawn from the social sciences. Even thoughmy analysis is restricted to this subject, there are still questions regarding the ex-tent of such experts’ influence and their impact on policies, and the policy-maker’s reception or rejection of advice. Part of the problem is that the two mainanalytical frameworks, the “dual model” and the “conceptualizing utilization”model, result in conflicting interpretations and unanswered questions.The Dual Model and the Study of Scientific CounselingThe “dual model” (Mayntz, 1994, p. 12), a framework which was in use fromthe post-World War II era until the late 1970s, assumes that polity and scienceare two distinct institutions, each with its own rationality. Whereas the polity isa sphere where maximizing societal power is a main goal, science aims at maxi-mizing knowledge. The results of the scientific counseling of policymakers wereseen either as Enlightenment, through which scientific rationality was to be trans-formed into political practice, or technocracy, through which political power andscientific expertise would create a powerful coalition to suppress the democraticprocess (Habermas, 1978).
Family Debate in the United States and Germany 29 Polity and science were portrayed in a rather systematic way, which made theconclusions (“Enlightenment” vs. “technocracy”) plausible and fruitful for empiricalstudies. But, it was virtually impossible to confirm the presumed effects in either di-rection. Empirical evidence was interpreted as showing the irrelevance of the socialsciences for the political process (Wingens, 1988). The problem lies in the assump-tion underlying the dual model, namely, that the political and scientific spheres havedistinct forms of rationality, criteria of validity, and ideals of efficiency. Because thepolity is a system of actors exercising power to gain societal control, it needsscientific expertise, but at the same time, it is unable to work with it adequately. Thesame is true in the other direction; science may imply a certain “mission” to en-lighten policymakers, but cannot be translated into power-oriented action.Conceptualizing UtilizationOut of the disappointment with the older approach, grew a new one, based onCarol H. Weiss’s (1983, 1991) insight that the main function of social scientificknowledge is of a conceptualizing nature, so that political discourse is framed byscientific terminology. What influences policy and gives it a more realistic andreliable foundation is not ideas or data, but rather semantics as a link betweenthe scientific and political discourses. In its departure from the assumptions of the dual model, this approach fo-cused on the process of utilizing scientific conclusions in political communica-tion. This idea was fruitful in further research, but it deliberately abandoned thequestion posed by the older approach, namely, how actors in different socialspheres (politics and science) influence each other. Specifically, the utilizationapproach had three characteristics: Instead of reconstructing the interaction of scientists and policymakers, utili- zation 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 StrategyThe study of scientific counseling and its utilization seems to be torn betweenthe alternatives of a philosophically profound, but empirically unacceptable ap-proach and a simpler model that provides more empirical evidence, but at thecost of neglecting many relevant aspects. There are two sources that serve as astarting point for a new approach to the study of the role of scientific expertise inthe polity. The first is a theoretical, macro-sociological perspective, associatedwith the notion of a “knowledge society”; the second stems from the construc-tionist study of social problems.
30 Wolfgang WalterThe Knowledge SocietyThe concept of the “knowledge society” is derived from theories of so-called“post-industrial” society. The main claim of this approach is that knowledge hasbecome an integral part of the institutional structure of modern societies (Stehr,1992). In modern times, different types of scientific knowledge play an increas-ingly important role in the economy. There are natural science-based industriessuch as the chemical industry, where knowledge has become a major productiveforce. There are also sectors of the service economy that depend more and moreon social scientific knowledge, such as marketing and personal services, as well asprofessions such as social work or therapy that are almost exclusively based on it.Moreover, social scientific knowledge has become a means of social control andpolicymaking with the expanded use of official statistics, social reporting, andscientific advisory capacity vis-à-vis the State, which Giddens (1990) has sum-marized under the notion of “surveillance.” Many theorists of the “knowledgesociety” see, in this process, the rise of a new societal class of experts and advisorswho play a central role in social change (either furthering or impeding it) by “de-fining die situation,” that is, by constructing “social problems” and giving adviceon 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 struc-ture of the industrial society. Bourdieu (1976) analyzes the social structure of ex-perts with his general concept of a “field,” seen as an ordered set of social posi-tions and cultural goods. Experts are equipped with social, economic, and cul-tural capital, that is, networks, financial means, and educational backgrounds.This set of resources is unequally distributed in the social space where expertiseis 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 financialmeans, media, rhetorical skills, etc.) to compete for hegemony in their field, thatis, 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 theirproposals by the lay public. Groups of experts form antagonistic camps commit-ted to the advancement and defense of “orthodoxy” versus “heterodoxy,” relyingon their resources and claims to hegemony in matters of ethical principles andsocial norms.The Construction of Social ProblemsThe second set of ideas used in revising the conventional paradigms on scientificcounseling stems from the qualitative analysis of social problem construction.The link between this approach and the considerations mentioned above lies inthe definition of the expert as a strategic player who attempts to convince othersof their views on issues. The constructionist approach to social problems
Family Debate in the United States and Germany 31(Gusfield, 1976; Holstein & Miller, 1993; Spector & Kitsuse, 1977) stresses theactive role of experts in making claims and trying to set the agenda within a fieldof policy or debate. Experts are seen as “constructing reality” in their respective areas, mainly byrhetorical means. Although this is a contested idea, it is at least plausible thatclaims have to be routinely supported by the framing of research questions, theorganization of evidence, and its convincing presentation. Recent developmentsin this approach do, however, admit that there are limitations set by societal con-ditions, be they the structure of arenas in which social-problem discourses takeplace (Hilgartner & Bosk, 1988), cultural traditions (Griswold, 1994, Chap. 4),or welfare states (Gusfield, 1989).A New Approach to the Sociology of ExpertsI see my own approach of combining these two sets of considerations as a meansto 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 devel- opments 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 po- sitions, 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 knowl- edge—the institutional context of policymaking. Therefore, the study of ex- perts 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 Meth- odological Issues in the Study of Experts). Experts and Policy Change: A Comparative Case StudyFamily Debate and Family Policy in the US and GermanyThe subject of the comparative case study is the political debate on the family inthe US and Germany. The term “family debate,” as used here, denotes all formsof public discussion of the situation and development of the family as a societaldomain (Skolnick, 1993). The family debate is intended to define the mutual re-sponsibilities of family members and of the family as a whole vis-à-vis other areasof society, for example, the economy or the polity.
32 Wolfgang Walter 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 “tra- ditional 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 coun- terpart 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 ad-vocates of a strictly traditional family model, on the one hand, and the promot-ers 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 con-sensus on the family serves as a broad umbrella under which a debate on themeans of giving practical support to families is being conducted with far less ac-rimony. Most scholars agree that there is a gulf separating families (i.e., peoplewith children), on the one hand, and non-families (singles, childless couples), onthe other, although interpretations differ (Kaufmann, 1990, 1995, vs. Beck &Beck-Gernsheim, 1995). Likewise, differences can be found in the area of policy development (for thefollowing: Walter, 1997a). In the US, various initiatives and legislative proposalshave aimed at reestablishing and reinforcing self-reliance, financial support obli-gations for family members, and a commitment to the family in a traditionalsense. Prominent examples are the Family Support Act, the stricter implementa-tion of support obligations for fathers, federal programs and state initiatives tomove single mothers into the workforce, attempts to reduce abortion rates, andthe 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
Family Debate in the United States and Germany 33Work Opportunity Reconciliation Act of 1996 (PRWORA). Currently there aredifferent 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 improvethe situation of children born out of wedlock and of children after divorce.These children have gradually been granted the same status as the children ofmarried parents, which has also improved the legal status of divorced and un-married fathers. Second, family members, especially the male wage earner whowas central in the traditional family model, have been relieved of (some of) theirfinancial obligations. There are minimum criteria for the child tax credit, prom-ulgated by the German Constitutional Court; court decisions have eliminatedthe support obligations of adult children for their elderly parents, and there havebeen sustained debates and pending legislation on the equalization of familyburdens. Third, there have been attempts to acknowledge and to financially sup-port persons who fulfil their family responsibilities. Although the latter policiesare gender-neutral, women are almost exclusively the beneficiaries of the paren-tal-leave allowance, a credit in the pension system for raising children, and care-provision insurance, which funds care for frail, elderly relatives within the house-hold (“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 em- phasis on family obligations (US) versus moderate debate and reduced/subsi- dized family obligations (Germany). As preconditions of the policy change in the 1980s were similar in both countries (the official family ideal, Conservativeadministrations), the reasons why debates and policies have moved in oppositedirections are to be sought in the activities of experts and their strategies withinthe 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 legaltheory. The Continental and the American legal traditions have been differenti-ated along the lines of the inquisitorial versus the adversarial models (Thibaut &Walker, 1975, pp. 22–27). The distinguishing criterion is the control exercisedby third parties. In the Continental tradition, trials are strongly influenced byjudges, who have extensive powers to supervise and exercise initiative in directingthe proceedings. They play an active role in questioning witnesses and in framingor reformulating issues. In the common law tradition, control is up to the con-tending attorneys, who steer trials by making competing claims, whereas thethird parties (judge and/or jury) respond to and decide on their motions.
34 Wolfgang WalterJudicial Drama in the USThe agenda-setting process in the American debate follows the adversarialmodel. It is a judicial drama performed before the “jury” of the American publicand Congress. There is little or no institutionalization of the debate in terms oflaws, 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 anddisseminate knowledge (using scholarly papers, unbiased reports, pamphlets, ormass demonstrations). Consequently, different forms of rhetoric exist to explainsome 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 Americanfamily debate are “crusading reformers,” as Becker calls the prototype of the“moral entrepreneur.” Most of the protagonists in the American family debatebelieve they have a “moral” mission to fulfil. Crusading reformers are best suitedto the adversarial structure of the field of family debate in America (and viceversa!). For one group of experts, reviving “family values” is a means to heal every illin American society (Blankenhorn, 1995; Blankenhorn, Bayme, & Elshtain,1990) or—to put it positively—forms the core of a new communitarian basis ofsocietal cohesion (Etzioni, 1993; Whitehead, 1992). This is the dominant or“orthodox” view, which means that this group has the resources and the idea-tional background to define the main issues of the debate. A group that could bereferred to as the “academic intellectuals” takes the “heterodox” position. Theirself-image centers around the duty to defend and promote both the truth andthe fundamental values of individual freedom and social equality. Consequently,they regard an academic critique of the claims of the “orthodox” group as theirmain contribution to the family debate (Coontz, 1992; Skolnick, 1993; Stacey,1993).Bureaucratic Coordination in GermanyThe German family debate tends more toward the inquisitorial model. On thewhole, it centers around bureaucratic inquiry initiated by, and carried out for thegovernment. Many protagonists in the debate are appointed by the state and in-tegrated into the more consensual discussion with family associations and thepublic. Scientific counseling is highly institutionalized, including permanentand ad hoc commissions (Walter, 1994b, 1995). Scientific studies and public re-ports are the most prominent ways of disseminating knowledge. The prevailing type of expert in Germany is the “scientific advisor,” as de-scribed by Brooks (1964). They serve on committees and working groups withinthe different layers of the bureaucratic hierarchy. Their expertise serves severalfunctions, from providing technical information to designing political programs.All these tasks are tied to the demands of the political institutions in which advi-
Family Debate in the United States and Germany 35 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, al- though it developed there in an unprecedented way, especially in the countrywhere modern bureaucracy was invented, namely, Germany. There, we find aubiquitous system of scientific counseling as part of the bureaucratic coordina-tion process (Murswieck, 1993). Through the close coordination of political dis-course and scientific expertise in the bureaucratic apparatus, this actor-institu-tion link encourages a preference for political approaches in accordance with theoverall orientation of public policy: policies of financial support for families un-der 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 thefamily, experts have a near-monopoly on political counseling. Many of the ideasthat have proliferated in the German debate were originally developed in officialreports, written at the behest of and for state institutions by commissions ap-pointed by these institutions and staffed by social scientists from family-relevantdisciplines (Walter, 1995). The counterpart to the orthodox position is not as clearly visible as in thecase of the “adversarial model.” Criticism is rare and episodic; the “heterodox”position lacks a clear-cut type of counter-expert. Nevertheless, some voices canbe identified, most notably those who see family change as a more fundamentalprocess of modernization that is leading to the end of the traditional modernfamily (cf., e.g., Beck & Beck-Gernsheim, 1995). Methodological Issues in the Study of ExpertsMy aim in this section is twofold: first, to present methods adequate to theframework introduced above and, second, to contribute to a deeper understand-ing of the dynamics of the field and experts in the family-related agenda-settingprocess. My starting point is the agency model of the “expert,” as discussed in interac-tionist approaches to the construction of “social problems” (Gusfield, 1963;Spector & Kitsuse, 1977). According to this theory, experts are actors in a fieldwhere a situation is defined and a problem is constructed, resulting in proposalsfor the agenda of possible solutions. Three methodological consequences of thisapproach will be discussed in this section. As described above, this view in-cludes the assumption that the conditions for the interaction process are given,and must be managed and integrated into action strategies. I analyze this em-
36 Wolfgang Walterbeddedness with respect to cultural traditions and welfare-state profiles in thetwo countries. The main activity in the field of expertise consists in claims making. There-fore, the second method can help us analyze written documents in terms oftheir persuasive content. The detection of rhetorical means aims at a deeper un-derstanding of the construction of problem images. The third method is the useof the expert interview, with which experts’ strategies in the field are recon-structed from their self-reports. I conclude this section with some remarks onthe relations of these three arenas: society, written communication, and individ-ual action.The Embeddedness of the Field Actors and their fields are embedded in a larger societal framework. Although in- teractionist 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 “real- ity” (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). Es- pecially 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 tradi- tional family ideal, the principle of self-reliance, a maternalist policy chiefly in- tended to help single mothers, and policies aimed at alleviating poverty, as wellas the exclusion of the middle class from these policies. Because the decision-making process in the political system is decentralized, oriented to special inter-ests and not guided by an overall political rationale, it has made possible expand-ing policies and increasing their coverage, especially by loosening eligibility crite-ria and increasing AFDC support levels in ways contrary to the overall frame-work of economic liberalism. Because the (white) middle class is one of the maingroups in the electorate and does not benefit from welfare policies, political sup-port for these measures has been gradually waning in reaction to the deteriora-tion of the economic situation of the middle class. In Germany, the combination of ideas, policies, and interests related to “thefamily” that evolved in the post-war period consists of three elements: the tradi-tional family ideal (including the principle of subsidiarity, with the state requiredto support all families), the financial support of motherhood and the family ingeneral through family allowances and tax credits as a way of equalizing the liv-ing conditions of families and non-families, and the inclusion of the middle class
Family Debate in the United States and Germany 37in this welfare-state system of family support. Family policies have been gradu-ally consolidated and adjusted to the changing realities of family life. Differences among family forms or living arrangements are scrutinized withrespect to the amount of horizontal equality between those who have children(with all the resulting financial burdens and social responsibilities) and thosewho do not. As a result, “the family” is, in principle, viewed more broadly (afamily 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 pro-grams of family support and facilitates their expansion. The interest of the mid-dle class in the maintenance and expansion of financial support, which it viewsas 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. Rhe- torical analysis aims at revealing mechanisms by which claims are made persua- sive. Based on the so-called “new rhetoric” (Perelman & Olbrechts-Tyteca, 1969; Toulmin, 1958), various methodological approaches have been developed in dif- ferent areas. Rhetoric, or the study of persuasion, deals with aspects of commu- nication that make a particular message convincing and provide incentives for a specific course of action. In other words, it deals with the emotional and prag- matic 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 isroughly as follows: Anyone who takes a close look at the situation of children to-day will find that all living arrangements, except the so-called “nuclear family,”cause social and psychological deprivation and that the absence of the father inthe home is the single most important factor in producing this effect. The mainpoint I wish to make, using the following example, is that the persuasiveness ofthe text depends on the sequence of assertions, not on how plausible they are inthe light of scientific evidence. Barbara Dafoe Whitehead (1993), at the time a research associate at the Insti-tute for American Values, is the author of an article entitled Dan Quayle wasright, alluding to an incident in which the then Vice-President accused a fictionalTV comedy-series character (“Murphy Brown”) of exacerbating America’s deteri-orating moral situation by having and raising a child as an unmarried mother. Al-though Dan Quayle was much ridiculed for his moralizing stance, Whiteheaduses 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 intothree parts. The first deals with the description of a conversion. Under the head-
38 Wolfgang Waltering The Education of Sara McLanahan, Whitehead describes this in the follow-ing 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 pre- sented a vivid portrait of the drug addicts, welfare mothers, and school drop- outs 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 implica- tion that single-mother families were contributing to the growth of an under- class. 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 fam-ily change who subsequently adopted Auletta’s view. The implication of the firstpart, upon which the persuasive strategy is built, is that newly-available knowl-edge (i.e., journalistic reports and not-so-mainstream research) had convincedthe once liberal Sara McLanahan that single motherhood was bad for children.In the second part, Whitehead further supports and broadens her message bylinking 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 moth- ers in the United States live below the poverty line. (...) Moreover, the pov- erty experienced by single mothers is no more brief than it is mild. (...) Sin- gle-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 fre-quent changes of address. The economic hardships of single mothers, thereby,become a result of their unconventional family form, especially the absence of afather as the chief wage earner and central figure for the moral education of thechild. Portraying children as “conservative creatures,” Whitehead concludes: “Allthis uncertainty can be devastating to children” (p. 64). This is intended to sup-port Dan Quayle’s point: Single motherhood undermines the child’s education. Having stretched her argument thus far, Whitehead “invests” the first twosteps, conversion story and claims-extension, in the next part, which is constitutivefor 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 ac-cept them. Because the public is not a scientific community with a specific ra-tionality and standards of validation, success depends on skill in using rhetorical
Family Debate in the United States and Germany 39means. Therefore, rhetorical analysis reveals the creative side of constructing apublic family image in a contested field of family debate.The Reconstruction of Experts’ StrategiesThe term “experts’ strategies” denotes the competitive side of public discourses.To a certain extent, they can be uncovered by analyzing documents, but as thestrategies behind a particular rhetoric always remain implicit, a different methodmust be used to unearth motives and plans of action. Expert interviews, a formof qualitative interview, are used to study the specific perspectives of experts. In-terviews help in analyzing perceptions of family change, the strategies by whichthe participants in debates influence agenda setting and policymaking and theperception of embeddedness. Methods of performing expert interviews have been developed in qualitativeresearch and in elite studies (Moyser, 1988; Walter, 1994a). Basically, they aresemi-structured interviews designed to display the very personal perspective ofthe expert on their work, public activities, and the social conditions they see asrelevant for the discourse. The aim is to construct ideal types of experts who canbe used to explain the structure of the field. In interviewing participants in the American family debate, I regularly beganwith an open question as to what they believed were the “main features of thecontemporary family debate.” One interviewee held that aspects such as race orgender were the most prominent issues in the debate. Then I turned to thequestion of whether the subject had engaged in the debate and received the fol-lowing 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 aca- demic research think tanks, the Heritage Foundation, the American Enter- prise 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 intel- lectuals and the academics in the university and intellectuals and academics in these research institutes. You don’t lose your prestige all that much in aca- demia for working in these places (...) and the other thing is that these re- search 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)
40 Wolfgang WalterTo understand the strategy that can be reconstructed from this interview, twopoints are important. First, the expert does not say anything about herself, herinterests, activities, and so on. She presents her involvement by means of a reac-tion to something already going on—without her participation and, quite obvi-ously, not to her liking. Second, the interview is only one in a series I held withseveral California academics. In a more detailed account, I have made the pointthat they belong to a specific type of expert in the American family debate that Icall “academic intellectuals,” whose strategy is to take a “critical stance” (Walter,1997b). It is characteristic that this group sees itself as opposed to the dominantdiscourse and criticizes the position portrayed in the previous section because ofthe funding, the strategy, and the rhetoric involved in their discourse. In the interviewee’s account, a sense of social distance from the wealthier ac-tivist groups and think tanks, she believes are financed by conservative dona-tions, is combined with cognitive and political distance. The resource imbalanceleads to an argumentative hegemony in the field of family debate. Concerningtheir publications, she affirms: “(...) they’re more in the order of facts marshalledto promote certain points of view (...) geared to getting a message out to themedia.” She acknowledges the hegemony: “(...) they are able to define the termsof the debate.” Most people in this academic-intellectual group are social scientists at univer-sities, and their common denominator is a highly skeptical attitude toward posi-tions promoted with extensive use of resources or media presence that provokestheir opposition. Thus, there is a clear-cut divide between two “camps” that rec-ognize each other as opponents in the American family debate (Popenoe, 1992;Stacey, 1994a, 1994b). They have different views and different strategies. Thisconstellation contributes to the apparent polarization of the American family de-bate. The “critical stance,” as one tendency in the debate, even reinforces the im-balance in public perceptions of the debate.The Interrelated Arenas and the Field of Family DebateThe methodological approaches discussed above serve as “analytical tools,” thatis, they dissect several aspects of the overall process. They could be seen as dis-playing different arenas of the field: the interactionist arena of strategies, thepublic-discourse arena of rhetoric, and the societal arena, in which the other twoare embedded. The field of family debate (as a whole) is constituted by the inter-relations of these arenas. The respective links that connect the arenas can beidentified in the institutionalization of experts, that is, the source of their author-ity on the subject (by the state or by self-definition), the resources mobilized andemployed to disseminate the contested ideas, and the procedures of disseminat-ing 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 theAmerican family debate. One of the most important organizations in this move-
Family Debate in the United States and Germany 41 ment is the New York City-based Institute for American Values. It links research dis- semination 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 coop- eration and reciprocal support. In part, they have different foci, such as the “Pro- gressive Policy Institute” of the so-called “New Democrats” or the Communitarian movement, with a broader political agenda. Some have a different policy orienta- tion, such as “Focus on the Family” or the “Family Research Council,” which be- long to the Religious Right. All these organizations are “advocacy think tanks” that “combine a strong policy, partisan or ideological, bent with aggressive salesman- ship and an effort to influence current policy debates” (Weaver, 1989, p. 567). The institutionalization of the expert in the German family debate is best ex- emplified by the official family reports of the German national government, pro- duced 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 family- policy 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-pol- icy domain, which facilitates communication between the Administration, fam- ily 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 hasadopted most of the central lines of argument (Bundesministerium für Familieund Senioren, 1994). Given the integration of scientific counseling into the process of bureaucraticpolicy development, I have found three strategies that are complementary(Walter, 1994a): “empirical Enlightenment,” which stresses the provision oftechnical information to policymakers; “pragmatic dialogue,” by combining po-litical and scientific perspectives; and “systematic program development” as anattempt to give policy a rational basis. In the German case, these counselingstyles contribute to the overall direction of policy change, which is more of amoderate change based on the system of entitlements for families. The expert-field characteristics (adversarial vs. inquisitorial model), the em-bedding of the discourse (Liberal vs. Conservative welfare state), the rhetoricalmechanisms and experts’ strategies, as well as the institutional links among thesearenas, contributed to policy change in the period under consideration: “welfarereform” in the US and the policies of economic support for families in Germany.
42 Wolfgang Walter ConclusionsThe thesis of this chapter is that the influence of experts on policy change shouldbe analyzed in terms of the relationship between the field of discourse, on theone hand, and the positions and strategies of experts, on the other. For the com-parative case study presented here, I have argued that there are specific linkagesbetween field and actor in the American and German family debates that are re-lated to the adversarial and inquisitorial models. This explains the differences infamily-policy change in the two countries to the degree that the respective com-binations of field characteristics and types of experts favor a certain policy style.Finally, I have demonstrated how this theoretical idea could be empiricallyproven 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 fewpoints worth considering. First, I will ask whether a general definition of the ex-pert can be derived from this case study. Second, I will discuss the general impli-cations of the discourse models, inquisitorial and adversarial. Finally, I will askwhether 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 struc- tural approaches (An Alternative Research Strategy, above). In light of this consid- eration, the expert can be viewed as a social figure in the distribution of knowl- edge, which is one element of the social structure of modern “knowledge so- cieties.” This leads to the interactionist-relational definition of the expert (Hitzler, 1994). Because the ascription of expert status is based on perceived dif-ferences in knowledge, the expert can only be defined relationally. Experts arepeople 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 knowl-edge into popular meaning systems. Consequently, the dynamics of the expert-layperson interaction depends, inpart, on their embeddedness in a particular social structure. The strength of in-stitutionalization is what defines an expert’s social status. On one side of thespectrum, there is the specialist, who has a high degree of institutionalized free-dom to research and to produce knowledge, but little or no authority to drawconclusions binding on others. On the other side of the spectrum, there are pro-fessionals with their autonomous organizations, monopolization of knowledge,and politically institutionalized status that allow for legitimate interventionseven in highly personal matters. In terms of these poles, most experts are locatedsomewhere in the middle, partly receive and partly create their authority, contin-ually demonstrate their competence and stage knowledge transfers from scienceto the public or to power holders.
Family Debate in the United States and Germany 43 With respect to nonexperts, the study presented here has dealt mainly withtwo addressees: the “public,” consisting of more or less well-informed citizenswith an interest in an issue, and decision makers, persons in charge of policychange. Other layperson groups include “clients,” who seek advice on a contrac-tual basis, or “associations/organizations,” which have their own resources forknowledge production and analysis. Moreover, the definitions of the counter-parts are not mutually exclusive. For example, in the German family debate thegovernment acts as a client to the experts in the family debate, and family associ-ations are also important participants in the public discourse. With the relational definition in mind, we have an analytical tool that allowsfor the differentiation of constellations of experts vis-à-vis nonexperts. My prop-osition is that it is necessary to analyze the dynamics of scientific counseling interms of its communicative content, dramatic elements, and political impact.Adversarial Versus Inquisitorial ModelWe find a similar distinction of adversarial versus inquisitorial models in Singer’s(1993) analysis of American economic policy, which, at least during the Reaganand Bush administrations, relied heavily on “heterodox” economics produced byadvocacy think tanks. In contrast, German economic policy is characterized bythe dominance of state-legitimized advisors like those serving on the “Council ofEconomic Experts,” and a state-subsidized field of economists who share a con-sensus on economic policy. One could argue that a degree of organization is the key difference betweenthe European and American administrative cultures (“unity” vs. “fragmenta-tion”; Aberbach, Derlien, & Rockman, 1994). In contrast to the EuropeanState-centered model, the US employs a society-centered model resulting in amore fragmented advisory system. The highly-organized counseling system ofthe European state provides a continuing foundation of advice, but often suffersfrom a lack of flexibility and adaptability. Based on entrepreneurial organiza-tions, the American system is more volatile and promotes unequal competitionfor influence among different groups of experts (Weaver, 1989), but it does pro-mote a broader spectrum of opinions.Toward a Sociology of the Knowledge SocietyThe sociology of knowledge has attempted, ever since its founding fathers(Marx, Engels, Mannheim), to determine whether knowledge exclusively servesthe interests of knowledge providers, or whether it can also be a force in trans-forming power structures. The relation between knowledge and power in the“knowledge society” remains open to debate. For some, experts and advisorsconstitute a new elite that is becoming the ruling class of society; for others, thesheer growth of knowledge in the service economy tends to lower the status of
44 Wolfgang Walter 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 priest- like 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 knowl- edge, which means that they also, simultaneously, increase public dependency on experts (due to their increased presence or even “omni-presence”) and de- crease 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 ex- pert available for every question. This is exactly what creates the genuine power of experts as a group in society. ReferencesAberbach, J., Derlien, H.-U., & Rockman, B. (1994). Unity and fragmentation. Themes in Ger- man 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 commit- ment 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 Humanver- mögens. 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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Chapter 3The Integration of Social Science Expertise Into the Political Process: Did It Actually Happen? Gabriele Metzler Institute for Contemporary History, University of Tübingen, Germany firstname.lastname@example.orgThe 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 polit- ical program, as in the case of West Germany in the 1960s. This chapter focuses on the social sciences and their influence on political re- form and decision making in West Germany after the Second World War. How-ever, the declared demand for social scientific knowledge and skill is not an iso-lated German phenomenon. Planning as a modern, scientifically based politicalinstrument was practiced in other countries as well, particularly in those with aSocial Democratic government, such as Sweden, where the Social Democrats in power had been expanding the welfare state since the end of the war, or theUnited Kingdom under the Labor government after 1964. However, planningwas not only a social democratic political program; in France where planningwas en vogue following the end of the war, it was continued and even intensifiedas a political program after de Gaulle came to power in 1958. Thus, the idea of asocial scientific basis of political decision making certainly was not restricted toWest Germany. How far, however, did the influence of the social sciences in theFederal Republic really reach? In the 1960s “modern” and “modernization” were the political catchwords ofthe day. In West Germany, the coalition of Social Democrats and Liberals thatcame into power in 1969 had won the election on the basis of both a modernimage—Chancellor Willy Brandt himself, a German version of the dynamic,promising young John F. Kennedy, was the key element of this image—and amodern political program: The new government intended, as Brandt declared inhis inaugural speech, to modernize society, the economy, as well as the politicalsystem of the country. There was hardly any area that was not the object of thiswide-ranging reform program, extending from changes in government and ad-ministration, to economy and infrastructure, and to social policy and the educa-tion system. The instrument to reach these ambitious goals was political plan-ning, perceived as a “modern” decision-making method based on scientific con- 47
48 Gabriele Metzler 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 machin- ery 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 path- finders 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 im- pact on the legislative process and its output. However, this assessment of the in- fluence of social scientific expertise changes remarkably when we adopt a less re-strictive definition of institutional change, incorporating the production and dis-tribution of knowledge, and its transfer from the field of science to the sphere ofpolitics. The following is a case study of the influence of social scientific expertise onpolitical decision making and change. I have pursued this case study mainlyfrom a historical perspective. The presented history is not organized chronologi-cally, but rather like concentric circles. First, the role that social sciences and so-cial scientific experts played in the political process during the 1960s will be dis-cussed. Then, I will extend the theoretical focus by adopting a more encompass-ing conception of “institution” and “institutional change.” Next, I will give anoverview of the (ideas of) modernization of German society and governmentafter the war and how the social sciences helped in this development. With thisbackground, it will be possible to address the question of how social scientists ac-tually influenced political and administrative structures and processes. Institutionalized Contacts Between Social Scientists and the German Government in the 1960sGreat hopes often tend to be disappointed, and this is probably also true for therelationship between politics and social sciences after 1969, if we look at the in-stitutionalized contacts between them. Without any doubt, there was significantsupport of the social sciences in terms of funding. According to an annual reportby the Federal Ministry for Science and Technology (Bundesministerium für For-
The Integration of Social Science Expertise Into the Political Process 49 schung und Technologie [BMFT]; 1975, p. 81), state expenditure supporting so- cial 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), estab- lished in 1971. Both Commissions consisted of a number of experts—from the social sciences, economics, law, and from the administration—as well as repre- sentatives 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 develop- ment of social policy in the widest sense of the word (Gesellschaftspolitik) and itwas expected to give advice pertaining to the chances of further promoting tech-nical and social change and shaping it in correspondence with the interest of thecitizens—a very demanding job indeed for the Commission (Kommission für wirtschaftlichen und sozialen Wandel) headed by sociologist Karl-Martin Bolte. Itended its work five years later, delivering its final report (Kommission fürwirtschaftlichen und sozialen Wandel, 1977) and some 140 working papers on avariety of specific problems. Some of the results found their way into the legisla-tion 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 tothe expectations with which its members had started their investigations. Thesame is true for the Project Group for the Governmental and Administration Re-form (Projektgruppe Regierungs- und Verwaltungsreform), which was, in some re-spects, more successful, but the work of which was stopped by 1972. The ProjectGroup had to investigate the organizational framework for decision making, par-ticularly on the levels of the ministerial organization and the administrative ma-chinery of the Federal Republic. It had to make proposals as to which improve-ments 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, theBavarian partner of the CDU), and Social Democrats (SPD) came into power in 1966 after the fallof Chancellor Ludwig Erhard. It was the first time, in the history of the Federal Republic, that theSPD participated in the Federal Government. The Grand Coalition under Chancellor Kurt GeorgKiesinger was faced with a number of severe problems (economic crisis 1966–1967, student riotsand social protest 1967–1968). This coalition was succeeded in 1969 by the coalition of SPD andLiberal Democrats (FDP).
50 Gabriele Metzler 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 in- deed, 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 sci- entists and administrative elite hardly ever found much common ground for dis- cussing 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 oflegitimation arose out of the implicit contradictions of the planning program it-self that were articulated particularly by the New Left. This alliance of radicalstudents, sections of the peace movement, as well as early feminist and ecologygroups, with intellectuals of varied backgrounds and orientations, reached thepeak of its influence in the late 1960s. The New Left was strongly influenced bya revival of Marxist thought. Although there was a great variety of political ideascirculating in these movements, they found some common ground on the basisof two ideas: “participatory democracy” and radical criticism of what they called“the system.” Interestingly enough, in some respect, the strongest criticism of thepolitical aims and reform strategies of the government did not come from theopposition in parliament, but rather from the Left outside the representativebody of the Federal Republic of Germany (Bundestag). It would be inconsistent,they argued, to preach about individual freedom and social emancipation, totalk 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 theymay have been, remained limited, as did the impact of social sciences on genuinepolitical decisions. In the very center of this story of failure, as it has been presented here, was thequestion of legitimation. How could the influence of social scientists on politicaldecision making and goal defining be legitimized within the framework of ademocratic, parliamentary political system? That was one of the most importantquestions that arose in connection with the growing political relevance of the so-
The Integration of Social Science Expertise Into the Political Process 51 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 gesamt- wirtschaftlichen Entwicklung [SVR]), was established in 1963. The Council con- sisted 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 eco- nomic policy (Wallich, 1968). It was not allowed to make any explicit policy rec- ommendations; the task of its members was to analyze prospective developments and to present alternative scenarios. Of course, when they gave their annual re- ports, which the government had to respond to within a certain period, the SVR economists, without a doubt, made implicit policy recommendations. The posi- tion 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 frame- work 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 ofthe SVR was regarded by some of the leading German legal experts as inconsis- tent with both the parliamentary system and Cabinet responsibility (Böcken-förde, 1964, p. 256f.). Thus, it was difficult to reconcile expert advice from out-side the political system, particularly in an institutionalized form, with the rulesof parliamentary government. This is especially true if experts were not only ap-pointed as internal consultants, but if they also had the right to publish theiradvice and to inform the public about their findings, as was the case with theSVR. The political process in Germany was (and still is) very much dominated bythinking in terms of the law. This was also reflected in the predominance of lawgraduates in the ranks of the German administrative and political elite. Al-though the so-called “legal monopoly” (Juristenmonopol)was getting weaker dur-ing the 1960s, the study of law was still considered to be the best qualificationfor any prospective member of the administration, especially for the higher ranksof the civil service that opened their doors to graduates from other faculties, suchas social sciences, only very reluctantly. Generally speaking, social scientists werenot able to infiltrate the state bureaucracy in significant numbers; they weremost 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 theissues of general organization, such as the Ministry of the Interior. As a preliminary result, it may be said that the influence of social scientistson the change of political institutions was very limited when seen from a strictly
52 Gabriele Metzlerlegal perspective. Their advice was sought, but not very often put into practicaleffect, while the legitimacy of that advice was always debated. Even in the late1960s and early 1970s, the golden years of planning euphoria, the intended “so-cial 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 ResourcesThe concept of an “institution” may be defined in a number of ways. In itsmost immediate sense it may denote a material, legal entity; one might think ofa federal ministry as an example. The concept, as it is used here, is inspired byAnthony 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 “systemicform” (p. 17). Those practices with the greatest extension in time and space aredefined as “institutions.” Institutions contain a set of rules and resources andexist over a considerable period of time. Resources may be described as alloca-tive or authoritative; the former type refers to material features of the environ-ment, means of production, or produced goods, the latter, among other ele-ments, to the organization of life chances. In the present context, it is useful toextend the meaning of authoritative resources to include knowledge about so-cial systems, modes of reproduction of social systems, and social change. Insti-tutional change may, then, be understood as the result of changes in resourcesand corresponding changes in social practices. This understanding of “institutions” and “institutional change” offers the op-portunity to overcome the more narrow legalistic perspective that is deeplyrooted in West German political culture. It also allows us to extend our analyticframework: Rather than focusing solely on the question to what extent the socialsciences had an immediate influence on government and legislature, research canalso focus on the impact of social scientific knowledge on societal and politicalchange and, thus, also on the informal and less direct impact of the social sci-ences. With this extended focus, the analysis of the influence of social scienceson institutional change may lead to a different assessment.Extending the Focus: Modernity in Post-War GermanyPolitical systems and their decision-making agencies are not static entities. Atany given time, their outlook depends on various factors, ranging from the inputof specific social interest groups to ideas of how the political process might bebest organized, to political philosophy and, thus, questions concerning the roleof “the State.” In the present context, social and technological change and thealtering role of the state provide the decisive coordinates for the analysis of WestGermany’s political system.
The Integration of Social Science Expertise Into the Political Process 53 After the Second World War, West Germany, as were nearly all other coun- tries 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 signifi- cance. The change of allocative resources brought about by West Germany’s rapid economic and social reconstruction, the economic miracle (Wirtschafts- wunder) manifested itself as a modernization of the agrarian sector, as the in- creasing 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 changesin 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. Whatmade the West German case different from other Western European countrieswas the predominance of specific German traditions of political philosophy and discourse on technology, both traditions being closely interwoven with one an-other. 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 backto the 1920s: While some were regarding technical progress very skeptically ingeneral, others were generally approving it, but at the same time, combiningtheir acceptance of modern technology with very authoritarian political ideals,thereby, rejecting Enlightenment reason and the political ideas of the FrenchRevolution. This attitude has been adequately termed “reactionary modernism”(Herf, 1984). Having these powerful traditions in the background, it was verydifficult to construct a concept of a democratic modernity, based on moderntechnology, to reconcile the notion of technical progress with the idea of individ-ual freedom and to adapt institutions to social change. Moreover, the completeabsence of any democratic tradition of political planning in Germany and the as-sociation of planning with either Hitler’s four-year plan or the Socialist plannedeconomy in East Germany—both were condemned in the name of antitotalitar-ianism—made it absolutely impossible in West Germany, in the 1950s, even tothink about planning as an instrument for promoting social change. At the sametime, no one was thinking of making use of new technologies in the politicalprocess (e.g., data processing), thereby, modernizing the political apparatus onthe basis of technical advance. A powerful reason for the inertia, in this respect, may be found in the dis-course on technology. At a first glance, this discourse was, in the 1950s, still verysimilar to that of the 1920s. The idea that modern technology would bringabout dangers to the “soul of man” was still dominant, corresponding with avery conservative cultural setting in general. However, there was one significantdifference between the 1950s and the 1920s: After the war, notions of “reaction-
54 Gabriele Metzler ary modernism” collapsed completely, due to the shocking experiences that Na- tional Socialism—as the once desired practical expression of a marriage between modern technology and authoritarian politics—had presented to radical Conser- vatives (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 at- titude 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 in- dustrial 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 mal- leable future may even be considered as a project constituting a common Euro- pean “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 inWest 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 administra-tion—took up the challenge of technical and social change. The question ofwhich forms of political and administrative organization were most appropriateand effective became one of the main issues of domestic policy. Conjured upwith this was the question of which role the state was to play, what kinds of po-litical 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 beeasily 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 tocontrol, steer, and even bring about social change. Political planning becamevery fashionable since a strong belief in the possibility of rational, “social-scien-tificized” political processes was associated with it. Rationality and the applica-tion of scientific methods to the political process were thought by those inpower—and by large parts of the German public—to be the best antidote to stu-dent riots, growing political extremism, and increasing complexity of the politi-
The Integration of Social Science Expertise Into the Political Process 55cal decision-making process. Although social scientific methods and ways ofthinking did not penetrate the process of political decision making very much,as discussed above, the question still is why social scientists had increased oppor-tunities during the 1960s to promote their ideas, and why, for some years atleast, attempts to treat politics as a “science” were made at all. This question is es-pecially 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 the1950s. 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 de- mands from society. Expert knowledge and its diffusion provided the link be- tween 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 wasthe political-cultural catchword of the day, the meaning of which extended wellinto the sphere of politics. Cultural, as well as political conservatism was the an-swer to it. It was seen as a political task to save man from the bad consequencesof social and technological change by strengthening traditional values, that is,family values and the notion of “community,” in the sense of the genuine Ger-man distinction between the community (Gemeinschaft) and the society (Gesell-schaft). While, on the one hand, new technical developments and industrialchange were promoted by the government for economic reasons, attempts weremade, on the other hand, by Chancellor Konrad Adenauer and his administra-tion to prevent all the negative influences on the soul of the individual that thesechanges were considered to bring about. The aim of government and adminis-tration was to preserve, in as many respects as possible, a traditional order thatwould serve as a lighthouse for a society having lost its sense of direction. Forthat reason, there was no need to make a major change in the basic assumptionsbuilt into the political system, or to try to make political decisions on a scientificbasis, as the Brandt Government was to claim a decade later. The following anec-dote may help to illustrate this point: When asked as Minister of Trade andCommerce whether he would consult economists and social scientists, LudwigErhard answered that he, being a scientist himself, would not have to consultothers.
56 Gabriele Metzler 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 institutionaliz- ing 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. So- cial sciences contributed to institutional change—in the sense of a change in knowledge about society and perception of technological and social develop- ments—because they became the dominant elements in the discourse of indus- trial society. That was the result of two developments: First, as already men- tioned, there was an increasing openness of society with respect to the future; second, there was a change in the social sciences themselves, especially in sociol- ogy, 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 de- crease of its historical-philosophical orientation, the growing number of empir- ical studies, and the birth of a number of specialized fields of sociological re- search, the so-called “Bindestrich-Soziologien” (e.g., industrial sociology, sociol-ogy of organizations). The rise of industrial sociology, in particular, had an enormous impact on the scientific and public discourse in society and societalchange. The first studies in industrial sociology were published in the late 1950sby Heinrich Popitz and Hans Paul Bahrdt (Popitz, Bahrdt et al., 1957a, 1957b),Helmut Schelsky (1957), Renate Mayntz (1958, 1963), and others, and wereconcerned with the impact of technology on industrial work, as well as withbureaucracy and the organization of office work. All these studies highlightedthe dynamics of the technological and industrial change that was going on, andthey showed that de-individualization (Vermassung) was not the dangerous out-come of the change that had always been painted as a black picture. In provingthis on an empirical basis, they produced a set of knowledge and interpretationthat was to shape authoritative resources and, thereby, bring about institutionalchange. The political implications became obvious very soon. One of the most pro-nounced theses in the context of the new sociology and the role of experts inmodern 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 besubstituted by the rule of the inherent pressures (Sachzwang). The state would,at some point in this development, completely lose its function; technology and
The Integration of Social Science Expertise Into the Political Process 57 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 above- mentioned change in authoritative resources. There was an increase in authori- tative 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 sci- ences 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 work- ing 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 con- ferences 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 Socialpoli- tik, 1967). Keynesian approaches became more and more attractive, stressing the active part the state has to play in the economic process, especially when itcomes to market failure and economic downswing, as was the case in West Ger-many in 1966. The state then, according to Keynesian theory, had to play a veryspecial role in fostering material welfare and growth. Although Keynesianismnever really dominated the mainstream of West German economic thought (forKeynesianism 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 forsome time also of Finance) from 1966 to 1972. Thus, the idea of “politics as ascience,” as an instrument to control and steer social change, found its concom-itant in the economic sphere in the conception of the global steering (Global-steuerung) 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 theshaping of technical, economic, and social change its own and very special taskthat was to be managed with the help of experts and reconciled with the basicideas of democracy.
58 Gabriele Metzler “Social Scientification” of West German Politics: Channels of Influence Beginning in the 1960s, social scientists dominated the public discourse on tech- nological progress and industrial society. They delivered the frameworks of inter- pretation 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 train- ing, 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) govern- ments were trained at “summer schools,” the so-called “university weeks” (Hoch- schulwochen). 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 col- leagues—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-Hochschul- wochen, 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 (Bundes- akademie für Öffentliche Verwaltung, 1974). In this way, social scientists helped to shape the way civil servants saw themselves, and the ideas about the organiza- tion 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 de- cision making than institutionalized expert advice, as in the Project Group (Pro-jektgruppe Regierungs- und Verwaltungsreform) or the Commission for Investigat-
The Integration of Social Science Expertise Into the Political Process 59ing Economic and Social Change (Kommisson für wirtschaftlichen und sozialenWandel). ConclusionWhen it comes to the question of scientific influence upon political decisionmaking, West Germany was a latecomer. In France, for example, the state metthe challenges posed by technological and social change immediately after thewar by embarking on a course of planning. La planification was based on scien-tific concepts, not only from the social sciences, but also from mathematics andengineering with which the French administrative elite were made familiar atone of the Grandes Écoles, notably the École Nationale d’Administration(ENA). Thus, in France the distance from social scientific knowledge to practicalapplication was much shorter than in West Germany, where planning as a polit-ical option reached its peak only at a time when the French were already in-volved in a process of revision. The impact of the social sciences on West Germany’s political order and itsinstitutions was near to insignificant when seen from a strictly legal and consti-tutional point of view. In a long-term perspective, the organizational (i.e., minis-terial) framework of decision making only underwent some minor changes at-tributable to social scientific expertise. To assess the impact of the social sciencesadequately, “institutions” have to be defined as systems of social practices andknowledge about society, thus, as allocative and authoritative resources. Fromthis perspective, the influence of the social sciences, and notably of sociology,was considerable. From the late 1950s the social sciences dominated the public discourse ontechnological change and on the future of industrial society. While undergoing aprocess of fundamental change themselves, the social sciences, especially sociol-ogy, destroyed traditional perceptions of technology and contributed to bringingabout a more pragmatic image of the State. Having liberated the thinking aboutthe state from its metaphysical connotations, government and administrationcould define a more active role for the state, a role that, such was at least the un-derlying idea, would reconcile social and technological changes with individualfreedom. At the same time, however, it was still perceived to be one of the mostprominent tasks of the state to save the individual from the bad consequences ofthese 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 asplendid example of the “path dependency” of political developments (for a dis-cussion of this concept and an example of social policy see Conrad, 1998). Often, the channels of influence that social scientific knowledge traveled toreach the members of the political and administrative elite were based on per-sonal 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
60 Gabriele Metzler 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 scientifica- tion” of West German politics is, in certain respects, a history of semantic mod- ernization (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 them- selves—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 break- down 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 legiti- mation in the political process? To answer this question, we have to take into ac- count the belief in the feasibility of all-embracing political and social reforms, in the possibility of steering economic processes and, thereby, guaranteeing perma- nent 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 rationaldecisions, and only rational decisions would guarantee that there would be nopredominance of any single social group in the decision-making process, but rather, that all interests involved would be taken into account. Therefore, it wasargued, that only rational decisions (based on social scientific expertise) are dem-ocratic decisions. But, how did the social scientists legitimize themselves as expert advisors,both in the political process and within their own peer group? What motivatedthem to provide expert knowledge? It may be presumed that not all of them hadgenuine political motivations although there is a tradition of reform policy in theGerman social sciences, notably in sociology. Many of the social scientists, whoacted as consultants to government and administration, were driven by their sci-entific interests and ignored (or tried to ignore) the political implications of theirwork (on this problem see Mayntz, 1977). These questions suggest we shouldthink about the relationship between social scientists as expert advisors, and thepolitical as well as administrative elite, in terms of supply and demand: both sidesoffering and seeking something (information, knowledge, funding, or even legit-imation). However, these market-style exchange relations, themselves, need to be
The Integration of Social Science Expertise Into the Political Process 61legitimized, as the sharp criticism from within the ranks of scientists in the 1970sindicates: Helmut Schelsky, for example, condemned, with very strong words,that intellectuals (especially social scientists) would monopolize new means ofpower and control, and establish themselves as the new elite. As he saw it, socialscientists were about to become a class of meaning-producers whose authoritywould be based on their insider knowledge (Herrschaftswissen). New forms ofdomination 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 regardingsocial scientists as experts and political advisors: legitimation. Questions of moti-vation and legitimation, arise not only in the context of this research project, butare relevant with respect to the role of the experts in modern—and demo-cratic—societies in general. ReferencesAron, R. (1957). The opium of the intellectual. New York: Doubleday.Backhaus, J. (1988). Die “Allgemeine Theorie”: Reaktionen deutscher Volkswirte. In H. Hage- mann & 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 Sozialstaatlich- keit. NS-Diktatur, Bundesrepublik und DDR im Vergleich (pp. 101–116). Munich, Germany: Oldenbourg.Erhard, L. (1965). Regierungserklärung. In Verhandlungen des Deutschen Bundestages, 5. Wahlperi- ode. 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-Parten- kirchen 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, Ger- many.: 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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The Integration of Social Science Expertise Into the Political Process 63Waxman, C. (Ed.). (1968). The end of ideology debate. New York: Funk & Wagnalls.Weyer, J. (1984). Westdeutsche Soziologie 1945–1960. Deutsche Kontinuitäten und nordamerika- nischer Einfluß. Berlin: Duncker & Humblot.
Chapter 4 Socialist Legal Experts: A New Profession?1 Ute Schneider TU Darmstadt, Department of History, Schloss, 64283 Darmstadt, Germany email@example.comThe German state has played a much stronger and more central role in the train- ing, recruitment, and control of its lawyers than the British or American state. Incontrast to their Anglo-American colleagues, German lawyers have had the priv-ilege and the burden of the so-called Juristenmonopol since the 19th century, in-herited from the age in which most lawyers were employed by the state as civilservants. This means that they need a final university examination and a secondexamination after two years of articling. Even though since the late 19th centurymost of the trained lawyers have not been able to find a position in the civil ser-vice for a variety of reasons and have had to establish themselves as free solicitorsor in similar professions, the Juristenmonopol has not been revoked. For this rea-son, Rottleuthner calls the German lawyers a “spurious profession,” and Jarauschtalks about “unfree professions” (Jarausch, 1990; Rottleuthner, 1988). The professionalization of lawyers as well as their place in the elites of admin-istration and government have been a continuing research topic in the social sci-ences. Starting in the 19th century, the history of this successful professionaliza-tion involved the so-called Juristenmonopol, that is, lawyers’ privileged access topositions in civil service, the self-recruiting mechanisms of the profession, as wellas a commitment to delineate oneself from other professional groups. Often,studies focus on the two dictatorships, National Socialism and the GermanDemocratic Republic (GDR). Whereas research on National Socialism in thelate 1960s was dominated by the idea that politically conformist elites were oust-ing 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, ques-tioning 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 in-fancy. At the moment most inquiries emphasize, above all, the process of politi- 1 I owe a very special thank to Tom Saunders, who made very stimulating comments andhelped me to negotiate with the obstacles of the English language. 65
66 Ute Schneider cization and de-professionalization. The struggle against “class law” and the den- igration 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 in- stitutional 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 Bundes- tag, 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 re- gard 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 so- cialist one. A generation of legal experts, German lawyers trained in the German Civil Code (Bürgerliches Gesetzbuch [BGB]), continued to occupy key positionsin the Ministry of Justice of the GDR. Being in leading positions, they used thelaw and legislation to influence and regulate politics and society, always, ofcourse, in accordance with the political guidelines. These experts codified thenew socialist norms, which affected the society as a whole, while they equallykept up the standards of their own profession. They used their competence tocounter tendencies of de-professionalization in the early years of the Soviet Zoneand GDR, insisting on consistent standards and expert knowledge. They notonly applied these to their own profession, but they also contributed to social re-search more broadly (the Verwissenschaftlichung) and, especially, to the establish-ment of sociology in the GDR. At the same time, they did not remain un-touched by the political changes and their own efforts to transform the legal sys-tem into a socialist one. The results became obvious when the new generation ofsocialist legal experts gained more influence in legislation and other areas of po-litical importance. Some of the older lawyers struggled to keep up with these ex-perts, but at the end of the 1960s they had to recognize that the era of their in-fluence was over. This process will be presented in the following pages with a case study. All re-sults are limited to the Central Administration of Justice, the later GDR Minis-try 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-
Socialist Legal Experts: A New Profession? 67 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 ne- cessity 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 ex- perts, 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 Administra- tion (Sowjetische Militäradministration Deutschlands [SMAD]) in the period im- mediately after the war, and second, I will deal with the composition of the com- mittee that dealt with the codification of a new family law. In discussing theworking processes within the committee and the role technical terminologyplayed for the lawyers, I would like to clarify their insistence on professionalknowledge. Although professional knowledge was one demand, socialism wasthe other. Their work was dedicated to the project of socialism and the develop-ment of a socialist legal system. That was by no means an easy task, and conflictsarose over important legal questions, especially with the younger generation ofsocialist lawyers. One fundamental area of dissent, presented in this chapter, illu-minates very clearly the deficiencies of the first generation and the different po-litical attitudes of both age groups concerning individual rights and society. In the GDR, it was always a political demand to integrate different politicalorganizations and the people into the lawmaking process. But, sometimes it wasnot 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 endof the 1960s. The relationship between the committee’s needs and work, the es-tablishment of sociological research, and the institutionalization of family law asa 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 AdministrationCriticism of justice was an old tradition under the Social Democrats and Com-munists. Lack of security before the law and the high proportion of lawyers in-volved in the National Socialist perversion of law strengthened, among exile andopposition groups, the recognition that after the end of the war a reform of jus-tice was urgently required. In spite of various proposals, reform of the law wasnot a priority among the Communists. There were a number of reasons for this,the most important of which was certainly that traditionally very few lawyerswere Communists and that few among them—and this seems much more im-portant—had been able to find their way into a legal position before 1933. In
68 Ute Schneideraddition, in the period immediately after the war Communists preferred to sit inthe critical positions of power and consequently preferred other positions of re-sponsibility. For that reason, non-party, Liberal, Christian Democratic, and alsoSocial 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 amember of the German Democratic Party (Deutsche Demokratische Partei) andhad 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 begin-ning 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 Administrationbecause in the 1920s he had spoken up for legal reform and for law to be mademore accessible for the population. However, as far as the conceptions of familyand family law were concerned, he warned against an appreciation and emula-tion of Russian law. For the Communists in the Central Office, Party headquar-ters (Zentralsekretariat [ZS]) Schiffer’s suggestions soon came to be regarded as“retrograde in character.” According to them, his demand for the independenceof the judiciary and other guarantees of a constitutional state tended in the samedirection, “namely to afford an isolated caste of judges a privileged and dominat-ing position.” Schiffer refused to budge from his commitment to an indepen-dent judiciary, “to protect democracy against injustice and lawlessness.” More-over, he continued to demand professional judges and justice in general, and animportant 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 al- lowing 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 “Volksrich- ter.” On the contrary, I wish to strengthen and deepen the professional train- ing 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 compe-tence and with it professionalism were central criteria to obtain a job underSchiffer, even if the Soviet Military Administration had the final word about theappointment. Almost all leading officials were fully trained lawyers. Among thetotal 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 1860and 1911. The majority had studied in the time of the Empire or the WeimarRepublic. They had served as lawyers in different capacities before 1933. Con-
Socialist Legal Experts: A New Profession? 69sidering the period of National Socialism, we can divide them into four differentcategories: a small group of those who had not compromised themselves underthe Nazis but remained in their positions, a second small group of Eastern emi-grants, the larger group of Western emigrants, and those who had somehow sur-vived persecution in Germany (Amos, 1996; BArchB, DP 1 VA 1, pp. 62–196;Schneider, 1999). From the Traditional to the Socialist Legal ExpertAfter the war, and partly as a consequence of it, women’s legal and societal statuswas debated in all zones. Demands for modernization were accompanied bythose for changes in family law, which had been on the agenda of democraticlawyers since the Weimar Republic. Whereas the discussion about central as-pects, such as equal rights, was postponed in the Western Zones and the laterFederal Republic of Germany until the 1950s, the GDR went ahead with reformin the form of individual laws and then a new codification. Demands for equalopportunities in marriage and family, questions of adoption, divorce, and, veryimportant in the post-war context, the question of illegitimate children weretaken 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’sstatus in society, family, and law independently of each other after the war.Among the groups who strove for new socio-political solutions, the female orga-nizations—such as the Democratic Women’s Union of Germany (Demokra- tischer Frauenbund Deutschlands [DFD]), but also a study group of female law-yers—were particularly prominent (BArchB, DP 1 VA 6633, p. 168; BArchB,DP 1 VA 7354). These individual efforts were combined in 1949 after theCouncil of the People (Volksrat) gave the Ministry of Justice the task of reform-ing 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 afew intimate members of the staff. In 1949, the Ministry of Justice, commis-sioned by the Council of the People, brought these different attempts together.It created the Committee for Family Law, which functioned through several sub-committees. Each of them dealt with one specific subject, for example, the lawof inheritance. The composition of the sub-committees remained more or lessunchanged during the years of their existence. The Committee consisted ofmembers of staff of the Ministry of Justice and lawyers from the universities. Atthe beginning of the 1960s, the number of delegates representing various sec-
70 Ute Schneider tions of society was raised for political reasons and, in the 1950s, younger law- yers 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 ac- quainted 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 So- cial 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 him- self as politically “disinterested.” However, relatives recruited him for the Ger- man 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 inManchester. It was in Manchester that he worked for the first time in his life in afactory, where he joined the Communist Party. In 1946, Nathan returned to theSoviet Zone. He got a job in the Department of Justice after a talk with Mels-heimer 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 purgesof the early 1950s that shook most Eastern countries with the aim of exposingsupposed Western spies. Nathan was quite lucky, under the circumstances, andbecame main editor of the legal journal Neue Justiz (New Justice). Nathan him-self would have preferred to remain in the administration. Looking back, hecharacterized his time in the Ministry as his “most fruitful and creative period.”Shortly after changing jobs, he was appointed Professor of Civil Law at theHumboldt University in Berlin and became very active in legal education. Hewas Dean from 1954 to 1961, and Head of the Institute for Invention andPatent Law (Institut für Erfindungs- und Urheberrecht) from 1963 until he re-tired. All these years he remained an active member of several legislative commit-tees. He died highly decorated and honored in 1971 (BArchB, DP 1 VA 821;
Socialist Legal Experts: A New Profession? 71BArchB, DP 1 VA 8232; Stiftung Archive der Parteien und Massenorganisa-tionen 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] withErich Buchholz, 17 April 1998; Karl-Heinz Eberhardt, 8 August 1997; SabineNathan, 27 June 1997). Nathan had attributes that many would have regarded as typical of a Germanlawyer. Academically Nathan “had above average legal knowledge in the field ofbourgeois legislation,” a qualification that Karl Polak (1905–1963) (Baumgartner& Hebig, 1996), one of the leading lawyers in the GDR, had bestowed uponhim in 1946. He was regarded as a “good and many-sided lawyer” with longpractical experience in all areas of jurisprudence, had experienced “a broadeningof 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 legalexpert.” According to other sources, this reached the point that “when judgesread a statement of Dr. Nathan, who with his articles is regarded as an authorityin 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 wasviewed 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 quali- fied lawyers in his department. (SAPMO-BArchB, DY 30/IV 2/V 1036)This judgment openly criticizes Nathans legal professionalism, which had appar-endy survived both the cadre system and nomenclature. Nathan—and thismakes him prototypical for us—was a decisive factor in the recruitment oflegally trained young talent not only for the Committee for Family Law but alsofor many other important positions. If one looks at the younger generation born around 1930 who were in theMinistry of Justice and the legislative Committee for Family Law, it emergesthat the decisive people were recruited by Nathan. These were lawyers who stud-ied at the beginning of the 1950s in the GDR, a period when the German CivilCode (BGB) was still authoritative in the GDR, and when students were still be-ing taught by lawyers with a clean record, such as Nathan, even though the po-litical approach toward the universities was strengthened and early reforms hadalready started in 1947 (Jessen, 1999; interview with Anita Grandke, 26 June1997). Among them was even a female people’s judge (Volksrichterin), whichdoes appear to have contravened the principles of recruitment. Closer examina-tion makes it clear, however, that her training as people’s judge was only the con-clusion of a legal career that had begun in the Weimar Republic (BArchB, DP 1VA 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
72 Ute Schneider accompanying habitus and behavior, is very interesting given the cadre system as the basis for recruitment. Qualifications and patronage as well as political relia- bility were obviously important criteria for recruitment to the Ministry of Jus- tice 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, how- ever, were sufficiently familiar with the German Civil Code (BGB) and its ra- tionales. 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 be- cause 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 onlyheavily affected economic and social structures, but also had profound legalconsequences. The competence of the Committee’s members did not really ex- tend to these new parts of the law, which, to a certain extent, were establishedparallel to, and in close connection with, the discussion of the new codification.Therefore, changes were prescribed by individual laws (Einzelverordnungen) inthe agricultural sector until the late 1950s. The legal framework for the agricul-tural sector was set down by law as late as 1959 and 1982, but this is outside theperiod we are discussing here. (This is not the place to discuss the developmentof agricultural and LPG law and the arguments it provoked. For details seeHeuer, 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 con-tradiction between equal rights set down in the constitution and, thereby, appli-cable to family law, and the principle of indivisibility of the properties of thosewho first received title to land on the new expropriated land (Neubauern). Fam-ily law should have standardized equal rights for women, but the principle of in-divisibility discriminated against the collective farmer’s wife because she did nothave access to the land. The wife of a long-established farmer, by contrast, had a
Socialist Legal Experts: A New Profession? 73 claim on any marital wealth in the case of divorce. These contradictions were de- bated 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 coun- terpart 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) be- longed 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 aprofessor of the German Academy for State and Law (Deutsche Akademie für Staat und Recht [DASR]) in Potsdam (Baumgartner & Hebig, 1996). His knowl-edge of land law and the situation in different types of collective farms finallyhelped the Committee to find a solution to the problem. It prescribed jointownership of property between husband and wife in the Family Law (Familien-gesetzbuch [FGB]), and awarded both the power of disposal (Familiengesetzbuch, 1965, §§39–40). However, the problem of equal rights of the new female farm-ers was not satisfactorily solved. This became evident when the Ministry of Jus-tice, in cooperation with Arlt and other experts, drafted an “argumentation forthe discussion of the FGB plan with members of LPGs.” These discussions werean integral part of the process of codification, because “laws of the people”meant not only participation of the population in the Committee, but also theparticipation of a selected public through talks and discussions (Schneider,2000). Finally, there was no choice but to deal with the problem of equal rightsfor the female collective farmers. The advice was that “full equal rights were onlyrealizable when she became a member of an LPG herself” (Archive of the Uni-versity of Potsdam, AS 6476; SAPMO-BArchB, DY 34, 4295). The example of the LPGs is of importance because it marks the transition ofthe civil law of the German Civil Code (BGB) to the “socialist law” of the FamilyLaw (FGB). This did not happen without difficulties, traces of which can befound in examples taken from the process by which the Family Law (FGB)emerged. That process witnessed particularly heavy conflicts along generationallines. One of the oldest Committee members, Nathan, summed up his experi-ences in a legally and politically important meeting in February 1960. Respond-ing 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 criticismand self-criticism. This principle was one of the most important for the politicaldevelopment and function of the cadres within the leadership of Communistparties, 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
74 Ute Schneider 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 bour- geois lawyers and then practiced for years, who studied civil law, it is particu- larly difficult to abandon accustomed paths. It is not a case of malicious in- tent, but simply how difficult it is, how much beyond one’s ability, to aban- don 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, partici- pated 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 profes- sions, 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 doingaway with “legal German.” This may have meant undermining their own posi-tion and function, but many lawyers feared accusations of bourgeois formalismdue to their technical terminology. Consequently, they worked out all new co-dices in cooperation with workers, taken from several areas of production. In ad-dition, they took up suggestions from the public. But, it proved impossible “toturn the law into a reader” (interview with Erich Buchholz, 17 April 1998).Thus, linguistic simplification was restricted to modifications that did notchange the sense of legal requirements. Some legal expressions, though not un-derstandable to the laity, would not permit changes without altering their mean-ing. Here, in their very own domain, lawyers fended off all political attacks. Atthe same time, they tried to introduce easier or more appropriate terms in allareas they found politically relevant and/or legally less important. However, theCommittee did not unanimously agree on the use of certain ideological termswithin legal documents. One example is the preamble of the Family Law (FGB),which was corrected after the 12th Party Conference. One member suggestedextending the first paragraph with the statement that “Family Law supports thedevelopment of the means of production.” Heinrich Toeplitz, President of theHigh Court and experienced Member of the Committee, “warned against for-mulations which call people means of production in the law.” His opinion car-ried a great deal of weight, and the “means of production” did not replace hu-
Socialist Legal Experts: A New Profession? 75 man beings in the Family Law (FGB) (BArchB, DP 1 VA 1925; Familien- gesetzbuch, 1965). This example demonstrates how technical terminology remained one dis- tinctive characteristic of the lawyers and a characteristic of their profession- alism, even in the GDR. Despite all political concessions, lawyers were not pre- pared to give up practiced and established linguistic standards of their profes- sion. 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 influ- enced the work of the Committee. Its several drafts are like a seismograph, show- ing 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 Com- mittee’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 Marx- ist 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 Econ- omy, part of the Faculty of Economics, at Humboldt University in Berlin. Afterfounding the Research Division of Sociology in the year 1961, he became Headof the Research Group Sociology and Society (Soziologie und Gesellschaft). In ad-dition, Braunreuther contributed to the establishment of the discipline in severalother functions (Sparschuh & Koch, 1997). The connection between the incorporation of sociology into the academicsystem of the GDR and a need for socio-political analyses is evident in the caseof the Committee for Family Law. Whereas in the 1950s the Committee alwaysrelied on statistics drawn up by the Ministry itself, from 1962 onward membersrepeatedly demanded sociological studies of the family. It was mainly theyounger generation who drew constant attention to this deficit. Their com-plaints had a concrete cause. The Committee struck an impasse on one of theimportant questions of family law. The question dealt with the problem of sepa-ration or community of goods and property (Gütertrennung oder Gütergemein-schaft) in marriage. The opinion of lawyers was divided on generational lines.The older generation, such as Benjamin and Nathan, had already occupiedthemselves with this question after the war. In 1948, after intensive discussions,they declared themselves in favor of the so-called Errungenschafts- oder Zuge-
76 Ute Schneider winngemeinschaft (separate property with equal division of property acquired after marriage). Their debates resulted in a rejection of the originally favored sep- aration 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 con- demned 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 di- vorce 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 obli- gation 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 com- pensated 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 vehe- mently 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 memberfrom the late 1950s. Grandke defended the principle of joint property ardently as an achievement of socialism and an expression of “socialist law.” But, shecould not convince the older members of the Committee and was, as a conse-quence, even prevented from publishing her dissertation on that subject (Archiveof the University of Potsdam, AS 6476). Neither the following private discus-sions, nor the calculation of conflicts about property as the result of divorce, nornotarial contracts and the regulation of property law in other socialist lands, pro-duced clear results. Finally, it was decided to consult empirical data concerningthe financial condition of married couples in the GDR (BArchB, DP 1 VA 8150;interview with Karl-Heinz Eberhardt, 8 August 1997; Interview with AnitaGrandke, 26 June 1997). On this occasion, the lack of academic sociology became obvious. Since thediscipline was incorporated in the Institute for Political Economy, empirical so-cial science was in its infancy. There were no empirical data to enable the Minis-try of Justice as well as the Committee to come to a decision. Again, the Com-
Socialist Legal Experts: A New Profession? 77 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 consid- ered 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 educa- tional 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 con- ducted 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 par- ticipants 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 con- ception 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 handledinternally. At the same time, with its specific questions, the Committee pro-moted the further establishment and differentiation of sociology. Furthermore,almost every scientific statement concerning family law emphasized the necessityof a sustained sociology of the family (Archive of the University of Potsdam, AS6476; Benjamin, 1965). Finally, this process influenced the institutionalizationof family law itself. Family law still today does not constitute an independent area of law at Ger-man universities. Instead, as part of civil law, it is dealt with by experts in civillaw. At first, the GDR passed on this tradition, also. But, within the context ofthe already mentioned new generation and the shift of the ideological focus to-ward education after the 6th Party Conference in 1963, the GDR drew new at-tention to the family as part of society. In contrast to the previous period, thesignificance of the family, at least as an important institution of socialization,was now fully recognized. Surveys proved a close connection between children’ssuccess at school and the background and situation of their family at home(Archive of the University of Potsdam, AS 6476). These discoveries and the newpolitical situation of the GDR after the construction of the Wall, which madeGerman legal traditions and common features less relevant, again placed theproject of a new family law on the agenda. The reason for this is obvious: Familylaw regulates not only the relations between families and the state, but also therelations among family members. This was the important and crucial point, be-cause it opened a possibility for the state to intervene in the family and create theconditions for education reform as a further step toward socialism as the basis ofsociety. In fact, the GDR followed the already adopted course to use family lawas an instrument of the state’s social policy and requirements of social regulation.
78 Ute SchneiderWithout any public notice the Committee and Ministry worked on this projectcontinuously from 1954. The passing of the Code of Family Law, which cameinto force on 1 April 1966, was one stage on this path. Experts had, as alreadymentioned, realized the necessity of a sociology of the family and constantly de-manded its establishment. In their opinion, a sociology of the family should notrestrict itself to legal aspects, but should constitute a “complex science” of thefamily and acquire its own intellectual and institutional identity in the univer-sity. For this purpose, it was also necessary to establish family law as one inde-pendent branch of the legal system. Its codification as a separate branch, not ac-cording to German tradition within the civil law, had already created the basisfor such a research center. The establishment of a new Chair for Social Law ofthe Family (Familiensozialrecht) at the Humboldt University in Berlin soon fol-lowed in accordance with the intention of the state. Anita Grandke, member ofthe Committee and expert on family law in the GDR, was holder of the Chairuntil emeritus status was conferred on her in 1995. Her status as an EmeritusProfessor meant the end of a Chair dedicated specifically to family law, becausewith German unification the former GDR returned to the traditional Germanlegal system and its established university structures. Conclusion This case study concentrated on one aspect of law and society in the GDR be- tween 1945 and 1966, namely, the Committee on Family Law. A look at the decisive members of this Committee demonstrated that the consistently pur- sued, 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 overin 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 theCommittee, reveal that Communist lawyers did not abandon their professionalethos with the establishment of the new regime. They held onto their profes-sional standards, including their professional identity. Through their exampleand recruitment policy, they passed it on to the younger generation. In contrast to them, this second generation acquired its professional qualifi-cations after the war. Even if they still were taught by the older generation, thefundamental differences between the two groups became obvious when theywere occupied with questions of law and its codification. In addition, there wereclass differences, the younger generation being steeped in socialism and Marxistideology. Political activities and demands were part of their life at least since theirstudent days. Whereas the first generation of GDR lawyers was mainly con-cerned with the stabilization of the new regime and society after the war, the sec-ond generation headed toward “socialist law.” The older generation had increas-ing difficulties keeping up, and the younger generation accused them of being
Socialist Legal Experts: A New Profession? 79 “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 ex- perts. 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’ de- mand for empirical data on family life in the GDR became one important impe- tus 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. ReferencesArchive 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 (SAPMO- BArchB): 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: dtv- Taschenbuch.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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Socialist Legal Experts: A New Profession? 81Siegrist, H. (1996). Advokat, Bürger und Staat. Sozialgeschichte der Rechtsanwälte in Deutschland (18.–20. Jahrhundert). Frankfurt a.M., Germany: Vittorio Klostermann.Sparschuh, V., & Koch, U. (Eds.). (1997). Sozialismus und Soziologie. Die Gründergeneration der DDR-Soziologie. Versuch einer Konturierung. Opladen, Germany: Westdeutscher Verlag.Steding, R. (1995). Agrarrecht. In U.-J. Heuer (Ed.), Die Rechtsordnung der DDR (pp. 75–94). Baden-Baden, Germany: Nomos.Steiner, H. (1992). Soziologie und empirische Sozialforschung in der Nachkriegsperiode Deutsch- lands. In D. Jaufmann, E. Kistler, K. Meier, & K.-H. Strech (Eds.), Empirische Sozialforschung im vereinten Deutschland. Bestandsaufnahme und Perspektiven (pp. 145–154). Frankfurt a.M., Germany: Campus.Weber, H. (1999). Geschichte der DDR. Munich, Germany: dtv.Weber, M. (1964). Wirtschaft und Gesellschaft. Grundriss der Verstehenden Soziologie. Cologne, Ger- many: Kiepenheuer & Witsch.Wentker, H. (Ed.). (1997). Volksrichter in der SBZ/DDR 1945–1952. Eine Dokumentation. Munich, Germany: Oldenbourg.
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 con- cerned with Aboriginal art. Should Aboriginal elders be considered expert wit- nesses on customary law in such cases? This is a question that has posed a con- tinuing 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 crimi-nal justice. Often, such strong expertise cannot be tailored to fit into standardlegal, policing, and therapeutic procedures. Instead, Brodeur describes howmuch weaker forms of expertise have been established in many areas related tothe application of criminal law. He also presents us with a case in which the re-sistance of a judiciary and legal community to adopt sentencing guidelines basedon empirical databases, presented in expert systems, led to the complete demiseof such efforts. Brodeur, a criminologist, served as the director of research for acommission of experts advising the Canadian government on how to establishnew sentencing guidelines—a case of strong expertise that failed in particularways. Brodeur is in a good position to tell us why. The final chapter in this section presents us with a case in which historical ex-pertise has made its entrance into a research arena that is traditionally populatedby natural scientists and engineers: The control of air pollution. This is a prob-lem with a scientific, technological, and political history, involving many histor-ical individuals. Matthias Heymann’s chapter makes the point that the study ofthis complex history contributes to the science of air pollution control. 83
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 firstname.lastname@example.org 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 Mel- bourne 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 ex-pressions of indigenous people in Australia for the purposes of copyright protec-tion. The difficulties to gather evidence for copyright violations of Aboriginalmotifs and designs have come from the secret and sacred character of the tradi-tional part of Aboriginal art. Not only does much of traditional art make use ofreligious symbolism, but it also often establishes a connection to the ancestralland by depicting the tracks and sites of ancestral spirits. In cases of alleged copy-right violations involving Aboriginal art, the courts have, therefore, been forcedto rely on expert witnesses drawn from the ranks of anthropologists and fromthe Aboriginal communities concerned. Since under the Australian law of evi-dence, only experts are allowed to express opinions based on generalizationsfrom earlier research, Aboriginal evidence about their own customary law waspreviously often excluded as mere “hearsay.” In recent years, the courts havetried to avoid this paradoxical state of affairs by trying to match anthropologicalexpert evidence and the evidence of Aboriginal artists and community elderswithout interpreting the rules of evidence too narrowly. A survey of these ap-proaches will then be followed by some comparative observations drawn fromexperiences 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 andwould like to acknowledge the support of the Australian Research Council for this research. 85
86 Christoph Antonstwo countries and the involvement of experts, however, a brief outline of the po-litical 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 nul- lius (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 Eng- lish 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 de- scribed 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 Brit- ish Crown and attempts at concluding individual treaties were declared void (Castles, 1982, pp. 20–31). The attitude of Australians toward Aboriginal cultural expressions slowly be-gan to change during the 20th century, a development that has been aptly char-acterized as having led “from the non-original to the ab-original” (Sherman, 1994). Formerly frequently classified as “ethnographic objects,” Aboriginal artworks have increasingly been recognized as fine art and as an international suc-cess 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 thesame time, government policies regarding Aboriginals changed from assimila-tionist approaches to a support of self-management and self-determination (LawReform Commission, 1986, pp. 18–23). During the 1980s and 1990s, Australians also developed a new and differentunderstanding of Australia’s position in the world. Links to “Mother England,”by now a member of the European Union (EU), continued to weaken and bythe early 1990s, Japan and Korea were Australia’s most important trading part-ners. The, then, Labour government began to place the country firmly into thecontext of the Asia-Pacific region. This, in turn, required the correction of Aus-tralia’s negative image in Asia due to the former “White Australia Policy,” whichrestricted 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).
Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? 87 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 Ab-original 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 cus- tomary law and Australian state law is perceived: the field of intellectual property rights. Intellectual property rights are discussed in relation to two areas of tradi- tional Aboriginal knowledge: artistic expressions and traditional medical knowl- edge 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 intellectualproperty protection. Intellectual property rights that have been under discussion toprotect 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 “industrialproperty” once it is used by pharmaceutical and biotechnology companies. Aborig-inal communities nowadays prefer, therefore, to speak of indigenous cultural andintellectual property rights (Janke, 1997, p. 24). They claim the recognition ofthese rights as a new field of intellectual property and its protection under specificlegislation (Janke, 1998). For the purposes of this chapter, I will leave aside the de-bate about traditional knowledge and genetic resources and concentrate on indige-nous people’s artistic expressions and the difficulties in protecting them. Most traditional Australian artwork relates to an Aboriginal dreaming, Thedreaming can be roughly explained as both the Aboriginals’ creation myth andtheir local religion. The term “dreaming” is a translation into English of one ofthe expressions used by Aboriginals to refer, in their different local languages, toa complex of mystical stories about the creative period of their ancestral beingsand 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 isimportant to remember that the Aboriginals were originally nomadic peoplewho would wander around in a particular part of the Australian continent thatthey 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 thiscountry and occasionally become transformed into a sacred site (e.g., a rock, atree; 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 infact a lot of artwork was originally made for that purpose), traditional Aboriginalartists 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 ofparticular symbols, colors, and designs in representing the spirits and the tribal
88 Christoph Antonsarea. Moreover, in picturing the landscape, the artist is only allowed to refer tothe 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 incentral Australia, paintings of land were often fairly accurate depictions of a par-ticular area from a bird’s-eye perspective with rivers, waterholes, and the tracks ofthe wandering spirits. If someone familiar with Aboriginal art flies over centralAustralia, they will immediately see that what appears as tracks, waterholes,trees, and shrubs in the art will look like dots from above. These depictions ofland with the symbols and colors of the artist’s tribe were then also quasi claimsof 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 Continental- European 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 artworkwould actually have little difficulty fulfilling the requirements of at least theAnglo-American concept of originality, it is often due to mass production of cer- tain designs and motifs, for a growing market of tourists and overseas buyers, that this material has become classified as “folklore” with insufficient originalityfor 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 in-put 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 didgeridoosmass-produced for tourist shops, it should be clear from my earlier outline ofAboriginal art that the same cannot be said for traditional Aboriginal artworks.Of course, as mentioned above, the traditional artist would be confined by thefeatures of the surrounding landscape and the colors and symbols used in thearea. Apart from the motifs, the artist is additionally confined by what is avail-able for painting and sculpting in the natural surrounding: rocks and wood forsculptures and clay, charcoal and manganese to make paint in different tones ofred, white, yellow, and black (Berndt & Berndt, 1996, p. 409f.). However, whatAboriginal artists create with these means and within the confinements of so-cially acceptable motifs is, in fact, highly original. Their artistic freedom is fur-ther accentuated through the personal alliance of the artists with particular spir-
Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? 89 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 neverthe- less, created masterpieces that show the style and approach of the same individ- ual in different manifestations. Although copyright protects only individual ex- pressions and not the underlying ideas, there will in most cases be sufficient indi- vidual 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 ap- ply copyright principles to this material but rather the social and religious signif- icance 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 authoriza- tion by his community to do all those acts that would be a natural part of copy- right in the Western sense. These conflicting approaches to the protection of ar-tistic 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 atotemic Morning Star Pole could not be prevented, because the court acknowl-edged 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 artwith religious motifs. Of course, these traditions are not static; they have evolvedover time and adapted new materials and forms of expression (Caruana, 1993, p.11, p. 14; Gray, 1996). What has, nevertheless, remained as an essential featureof this art is its religious symbolism.3 But, there is also a “modern” version of Ab-original art, meant to meet the rising demand for this kind of art in Australiancities and overseas, to express political objectives, or both. In this category be-longs not only artwork that avoids religious motifs and symbols,4 but also thework of so-called “urban Aboriginals,”5 who depict contemporary Australianlandscapes 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 materialssuch as canvas and synthetic paints has led to the creation of new art forms which often comple-ment, 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 compara-tively rare (see Berndt & Berndt, 1996, p. 413). 5 The term is used to refer to the social milieu of these Aboriginals. Aboriginals use differentterms in their local languages to refer to themselves (Caruana, 1993, p. 179). As to estimates ofthe number of “traditionally oriented” Aboriginals and the difficulties with such a definition, seeEllinson (1994, p. 328f.).
90 Christoph Antons 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 her- itage 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 co- herent piece of legislation. After decades of discussion, the Copyright Act is, therefore, still the only legislation that Aboriginal artists can turn to for protec- tion. A few recent cases involved the Aboriginal artists Johnny Bulun Bulun and George Milpurrurru, whose designs and motifs were reproduced without author- ization on T-shirts, among other things, and on towels and carpets made in Viet- nam (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 ex- tent evidence about indigenous customs and traditions can be used within theAustralian 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 Austra-lian legal system has been effectively answered by the above-mentioned decisionof the High Court in Mabo and Others v. Queensland (1992). While the decisionrecognized that Aboriginal customary laws have survived the colonization ofAustralia and may be recognized by the common law, this remains true only aslong as such a recognition does not (in the words of Justice Brennan) “fracture askeletal 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 realproperty and intellectual property, and between the respective common law andstatutory institutions these property rights are based upon, is such a “skeletalprinciple” of the Australian legal system (John Bulun Bulun & Anor v. R. & T.Textiles Pty. Ltd., p. 13). Consequently, the courts rejected claims by Aboriginalartists that the native title in land recognized in Mabo extended further to intel-lectual property, such as copyright, because in Aboriginal customary law artisticexpressions were not separated from the right to land. The courts acknowledgedthat such customary rights to the ownership of artistic works might exist, butthey refused to acknowledge that such rights could become binding upon non-Aboriginals, because the notion of copyright for the whole of Australia would beexclusively 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-basedindigenous copyright, the Aboriginal community was, nevertheless, able toclaim an important partial success for their customary rights in the decision ofJohn Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., 3 September 1998. Justice
Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? 91von Doussa of the Federal Court concluded in this case that the individual Ab-original artist alone, as the author of a work of art, was entitled to hold the copy-right to this work. In an important further finding, the judge concluded, how-ever (p. 18f.), that this copyright was impressed with a fiduciary obligation thatthe artist owed to his community to preserve the religious and ritual significanceof the work. A fiduciary relationship is a concept of the law of equity that im-poses particular stringent duties on the so-called fiduciary to respect the interestsof another person, because they are in a position to affect the interests of thatother person in a detrimental way (Meagher, Gummow, & Lehane, 1992,p. 130). Traditional examples of such fiduciary relationships are the relationshipsbetween trustees and beneficiaries, solicitors and clients, directors and compa-nies, stock brokers and clients, and between partners in a partnership (Evans,1996, pp. 100–107; Parkinson, 1996, pp. 326–331). The Canadian courts werethe first courts in the Commonwealth to make use of this equitable concept forindigenous affairs and they developed the notion of a fiduciary relationship be-tween the Canadian state and its indigenous population (R. v. Sparrow, 1990, 70DLR [4th] 385, cited in Parkinson, 1996, p. 360). Although this approach hasnot yet been followed in Australia,6 the decision of the Federal Court has nowintroduced the concept to regulate the relationship between indigenous people,namely between the indigenous artists and their community. Aboriginals as WitnessesTo decide whether such a fiduciary obligation is owed by the indigenous artist torespect the ritual knowledge incorporated in a work, the Federal Court now alsohas to decide on the religious significance of the work for a particular tribal com-munity. However, since most of these symbols are secret and sacred, the courthas often no other choice than to rely on the expertise of community elders andthe artists themselves to explain the significance of the work. In the case of JohnBulun Bulun v. R. & T. Textiles Pty. Ltd., the main evidence came from an affida-vit 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 caseconcerned a painting of a waterhole that had been reproduced on textile withoutauthorization by the defendant. Mr. Bulun Bulun stated in his affidavit that thiswaterhole was the main totemic well for his lineage of the Ganalbingu people; itwas the source from which their creator ancestor had emerged. This creator an-cestor created not only the natural landscape of the area, but also the designs andelements for the artwork. The artwork was, therefore, part of the Madayin (cor-pus of ritual knowledge) that was associated with the land and an unauthorizedreproduction would mean a severe disturbance of the natural order. Mr. BulunBulun 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 minorityopinion of J. Toohey in Mabo v. Queensland (No. 2).
92 Christoph Antonsan art book), for which he was generally authorized by his people, and otherusage (such as the one in question), for which he would have to consult widelywith 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 seniorGanalbingu and himself a well-known artist who represented the Ganalbingupeople and their claim to the artwork, and by Mr. Ashley, who was in a positionof a so-called Djungayi to Mr. Bulun Bulun. Mr. Ashley stated that his role couldbe approximately described as that of a manager or a policeman. A better de-scription would perhaps be that of a traditional custodian. Mr. Ashley himselfdescribed 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 some- times 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 con- cerning 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 pro- duce 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 isguarded by the traditional custodians of an Aboriginal community. In mostcases, it is, therefore, unavoidable that the most important witnesses are peoplewho have an important stake in the claim as a member of the communitywhose customs they describe (as to a similar situation with regards to landrights see Neate, 1989, p. 190). The knowledge of experts outside this commu- 7 Yolngu is the term that Aboriginal people of the central Arnhem land in the Northern Terri-tory use to refer to themselves. Traditional rights to designs and ritual symbols are, here, shared bythe different clans of the area (Caruana, 1993, p. 47). 8 Djulibinyamurr is the name of the waterhole in the local language.
Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? 93nity, about the ritual significance of symbols, is necessarily limited. However, a1986 report of the Law Reform Commission on the recognition of Aboriginalcustomary laws identified mainly two problem areas with regard to Aboriginalwitnesses, if the courts insist on a strict application of the common law rules ofevidence. The first problem is the “rule against hearsay,” which excludes testi-monies that are not based on direct personal experience (Law Reform Commis-sion, 1986, p. 475f.). However, to a certain degree, all evidence regarding cus-tomary law, even if provided by “insiders,” will always involve generalizationsfrom personal observations to the more general custom and these generaliza-tions will also be based on information received from others. In the leading caseof Milirrpum v. Nabalco Pty. Ltd. (1971, 17 FLR 141), the judge partly circum-vented this problem by greatly extending the scope of what to regard as ques-tions of fact. Since a person’s beliefs and perceptions, at a particular time, wouldessentially be questions of fact, an Aboriginal person could, within certain lim-its, give evidence as to the beliefs and perceptions of their community. In thewords 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 Ab- originals, 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 individu- als. (Milirrpum v. Nabalco Pty. Ltd., p. 153, cited in Law Reform Commis- sion, 1986, p. 476)Nevertheless, the exclusion of generalizations on customary rules, in particularcircumstances in this judgment, could still preclude much Aboriginal evidenceon customary law. In this particular case, the judge was able to prevent this con-sequence by using an exception to the rule against hearsay that allows testimonieson declarations of deceased persons in matters of public and general rights (LawReform Commission, 1986, p. 476f.). More generalizations would be possibleunder 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 alsoallow the courts to overcome the second related problem, which is the distinctionbetween facts and opinion. Only expert witnesses may be called upon to expressan opinion based on generalizations from earlier research carried out by others orby expert witnesses themselves (Heydon, 1996, p. 795). However, in Milirrpumv. Nabalco Pty, Ltd,, the Federal Court refused to regard Aboriginal clan leaders asexperts in the customary laws of their own clan, and Justice Blackburn spoke of“two kinds of witnesses, namely, Aboriginals (…) and expert witnesses” (cited inNeate, 1989, p. 192). This could be based on the earlier assumption in othercases that expert evidence relates to “an organized branch of knowledge in whichthe witness is an expert” (Clark v. Ryan, 1960, 103 CLR 486, p. 50lf. andp. 508, cited in Heydon, 1996, p. 791f.). “Organized branches of knowledge”
94 Christoph Antonsare further defined as “those, in which those who are trained or experienced sharegenerally accepted principles and techniques.” Apparently, in the eyes of the Fed-eral Court in Milirrpum v. Nabalco Pty. Ltd., Aboriginal elders did not fit such atechnical 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 Hind-marsh Island case, 1996). The Law Reform Commission has, therefore, sug-gested that the rules of evidence, with regard to customary law, should be relaxedand the hearsay rule disregarded in particular “where the person giving the evi-dence has special knowledge of the customary laws of the community in relationto that matter” or “would be likely to have such knowledge or experience if suchlaws existed.” Federal and state legislation regarding land rights has gone a stepfurther. The Aboriginal Land Rights Commissioner, established by legislationfor the Northern Territory, for example, conducts an administrative inquiry andis only bound by the rules of natural justice and not by the specific rules of evi-dence. 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 partic- ular, as a general proposition, hearsay evidence will be admitted, the weight to be attached to it to be a matter for submission and determination. Rele- vancy 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 LawReform Commission has so far shied away from recommending a general exclu-sion of the rules of evidence with regard to customary law. The Law ReformCommission concluded instead: Excluding the law of evidence would have the disadvantage of leaving argu- ments about admissibility unstructured, and depriving the courts of the assis- tance 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 considerableweight to the evidence of the Aboriginal artists and custodians without inter-preting the rules of evidence too strictly. In doing so, the courts often, appar-ently, applied the approach in Milirrpum v. Nabalco Pty. Ltd. to include ques-tions of belief and personal perception as matters of fact, or argue that the rulescan be relaxed because the issues involve questions of public policy (John BulunBulun & Anor v. R. & T. Textiles Pty. Ltd., p. 11). It has also been observedmore generally, however, that the case law in this area is characterized by laxityand non-observance of the rules (Justice Muirhead in R. v. William Davey, un-
Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? 95reported, Federal Court of Australia [13 November 1980], cited in Law Re-form Commission, 1986, p. 470; as to similar complaints by Canadian judgessee Keon-Cohen, 1993, p. 190). On a more positive note, the Law ReformCommission regards the law of Australia as moving in the right direction. TheCommission points in particular to the decision in Napaluma v. Baker (1982,29 SASR 192, 194), in which the qualification of an expert witness was basedon “habit and experience,” provided that the nature and depth of the experi-ence was more thoroughly scrutinized than usual (Law Reform Commission,1986, p. 470f., p. 474). Even further, Keon-Cohen has argued that as a resultof the Mabo decision, the distinction made in Milirrpum should no longer ap-ply where native title is at stake and the courts should, therefore, rely on a yet-to-develop head of admissibility of “traditional evidence” (Keon-Cohen, 1993,pp. 192–197). However, even if such “traditional evidence” came to be ac-cepted as a separate category, this would not solve the problem in cases wherecustomary 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 WitnessesIn practice, the approach of the courts in land rights disputes, as in other cases,has been to combine evidence from the Aboriginal community involved withexpert opinions. Usually, the detailed Aboriginal evidence is heard first beforean anthropologist or an expert in Aboriginal art (Davies, 1996, p. 7) puts theissue into a more general context (Davies, 1996, p. 7; Neate, 1989, p. 192). InMr. Bulun Bulun’s case, two anthropology professors from James Cook Univer-sity in North Queensland and from University College London were heard toconfirm the importance of inherited designs as part of the sacred Madayin of thepeoples of Arnhem land. Anthropologists have played a vital role in cases in-volving proof of Aboriginal customary laws. In general, their evidence is seen ascomplementing the Aboriginal testimony, and their opinion is welcomed asproviding a different angle on the problem than the lawyer’s view would allow.Nevertheless, anthropologists are in a difficult position when asked to testify insuch cases: They have to communicate with lawyers, on the one hand, and withthe Aboriginal community, on the other. Statements by different AboriginalLand Commissioners under the Aboriginal Land Rights Act, 1976 (Cth)(Northern Territory), although generally praising the anthropologists’ contribu-tion to the fact-finding process, reveal also a certain reserve. Justice Toohey, forexample, pointed out in the Utopia Land Claim the limits of the role of anthro-pologists 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 an- thropologists concerning the language of the Act, especially where the statute
96 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 sayingthat “these inquiries are very much exercises in anthropology,” butacknowledged that this was so “despite the problems that lawyers might have incoming to terms with the language and ideas of anthropologists” (WarumunguLand Claim, 1 October 1985, cited in Neate, 1989, p. 239). The same judgealso expressed concern about a potential bias of anthropologists because of anover-reliance on preferred informants and a close relationship with the re-searched community. Neate (1989, p. 246) has added that anthropologists mustbe concerned about maintaining their relationship with a community for futureresearch. Similar allegations of bias were made from both sides in the Hind-marsh Island case, which according to Harris (1996, p. 123) resulted in a “riftwithin the anthropological fraternity in South Australia.” Anthropologists, on the other hand, were also often dissatisfied with theirroles. Professor Ronald Berndt, for example, warned his colleagues not to fall“into the trap of over-simplifying data for legal consumption.” He further de-scribed the relationship between lawyers and anthropologist expert witnesses asfollows: 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-con- suming and because “reliable” (valid) information depends on adequate com- municative 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 anthropo- logical opinion and irrespective of Aboriginal views. (Berndt, 1981, cited in Neate, 1989, p. 284)This echoes similar concerns expressed earlier by Bohannan (1957, 1969) basedon his research experiences in Africa (Neate, 1989, p. 285) on the differences inmental framework and concepts of lawyers and anthropologists, respectively. Dogmatically, expert evidence from anthropologists encounters similar diffi-culties with the rule against hearsay as the evidence provided by Aboriginals. Be-cause of their status as experts, anthropologists would be able to express an opin-ion and, therefore, have fewer difficulties in making generalizations based ontheir observations. Nevertheless, by its very nature, anthropological evidence andresearch contains much that is based on hearsay. Again, anthropological expert
Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? 97evidence would be difficult if the rule against hearsay was strictly applied. Aus-tralian courts have, therefore, come to distinguish between the inadmissiblemere repetition of hearsay and the admissible expression of an opinion that isbased in part on hearsay (Law Reform Commission, 1986, p. 473). This distinc-tion 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 con- clusion which has significance in that field of discourse. It could not be con- tended—and was not—that the anthropologists could be allowed to give evi- dence 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 pub- lished work of other experts; and, applying principles of analysis and verifica- tion 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 distinctionbetween “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 appli- cation of an unexpressed opinion. Moreover, he states the “facts” in special- ized 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 ad-missible, but how much weight should be given to it. As the High Court laterpointed out, this depends on the number of statements based on hearsay and onwhether they are confirmed by other evidence: Statements made to an expert witness are admissible if they are the founda- tion, 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 claimsof Aboriginal artists that views Aboriginal artists as fiduciaries of their communi-ties where they make use of secret and sacred symbols. If this approach is further
98 Christoph Antonsapplied, expert evidence, such as this, will need to be consulted to decidewhether Aboriginal artists have acted within the limits of their authorization bytheir community when producing an artwork. But, such evidence will also be-come relevant to decide on the use of traditional Aboriginal symbols and designsby urban Aboriginals with little relationship to their respective communities andon the use of Aboriginal symbols by outsiders. A recent example here is the con-troversy about a book by Martha Sykes. Dr. Sykes is a renown feminist and aca-demic of partly Afro-American descent. Her book described her difficult child-hood in growing up as a colored person in Northern Queensland. Shortly afterthe publication of her book, Dr. Sykes was accused by members of the Aborigi-nal community of her home town of falsely creating the impression of being ofAboriginal descent and of having used the totemic snake symbol of that Aborigi-nal 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 ex- pressions 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 Aus- tralia. In addition, the British colonial tradition of absorbing different custom- ary laws, under the umbrella of the common law, makes it easier to solve prob-lems on the cutting edge of state and customary law than the Dutch colonial sys- tem of a fairly strict separation of different races and their laws. The choice ofIndonesia for a comparison demands some explanation. Firstly, Indonesia andAustralia are both societies with a large number of different ethnic communities.As in Australia, artwork of tribal communities, such as the Asmat or Dayak andof the various people from different regions of the vast archipelago that makesup Indonesia, are to be found in most tourist shops. Secondly, and perhaps moreimportantly, the religious and social significance of the artwork of many Indone-sian population groups is, in many ways, similar to that of the different Austra-lian Aboriginal communities. This similarity is no coincidence. Recent research into the precolonial con-tacts between Asian people and Australian Aboriginals has shown that thesecontacts were more extensive and better developed than previously thought.There are, of course, those theories that assume an Aboriginal migration fromSoutheast Asia to Australia in prehistoric times when the sea gap between Aus-tralia 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 con-tacts. The mythology of Aboriginal people in the Kimberley region in north-western Australia refers to an ancestor’s homeland that seems to be the Indone-
Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? 99 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 Ab- original Australian art, traditional Indonesian handicraft, such as the Javanese dagger, the kris, or the gamelan, a musical instrument, often have a spiritual con- notation. Indonesians speak of artefacts that punya isi (have a content). The con- tent 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 re- spect 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, cere- monies 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 (Koentja- raningrat, 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. Arti- cle 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 foreigncountries.” The last part of the provision was added as a compromise solution,because in Indonesia’s multiethnic society, a complete exercise of the copyrightby the state would be regarded by ethnic groups, in the different provinces, as anappropriation of the copyright by the central government in Jakarta. The currentinterpretation of the provision is, therefore, that the state is restricted in the exer-cise of its rights to foreigners, whereas local communities remain entitled to usetheir material (Rosidi, 1984, p. 79f.; Simorangkir, 1982, p. 136). The provision obviously creates a range of problems, the most prominent ofwhich 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 regu-late the details of the exercise of the copyright by the state. Perhaps not surpris-
100 Christoph Antonsingly, these administrative decrees still need to be implemented 16 years after theCopyright Act came into force. Without a “competent authority,” currently noone is able to distinguish between traditional and modern art or between indi-vidualist expressions of a particular motif and “folklore,” and there is also nobody to decide on the distribution of royalties. In the racially volatile climate inIndonesia 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 artisticquality and use of traditional artwork stemming from the different provinces?Every attempt at further centralization of decision-making powers in Jakarta iscurrently likely to encounter resistance in the provinces. In view of these diffi-culties, the Indonesian Folklore Protection Provisions will probably remain un-implemented for the time being. ConclusionAustralia and Indonesia are both countries with a multiethnic population. In both countries, policies of the central government with regard to ethnic minori-ties attract much attention. Due to a renewed interest in the cultural expressions of such ethnic minorities and the technological progress that greatly facilitatescopying, the protection of such cultural expressions has become an importantissue in this context. Here, the two countries have chosen vastly different ap-proaches. Indonesia interprets the necessity to protect folklore largely as yet an-other variant of the North-South conflict and seeks to collect appropriate remu-neration for Indonesian art from foreigners. Folklore and art are interpreted aspart of a national culture and the approach is a centralized one. Under the cur-rent legislation, experts would play a crucial role in deciding potential conflictsof interests between different Indonesian parties. However, the legislation itselfprovides little guidance as to the administrative details, and the necessary imple-menting provisions are still awaited. In Australia, on the other hand, the courts have already debated some ofthese issues at great length. While the federal court recently rejected separate in-digenous copyright, customary law has, nevertheless, been introduced via equi-table doctrines to define the boundaries of artistic expression when religioussymbols are used. For proof of these customary rules, the courts once again turnto experts. “Experts” were earlier defined in a Western sense as scientific expertsand distinguished from members of the Aboriginal community. More recently,the courts have avoided clarifying the status of Aboriginal witnesses, but havegiven, in many cases, considerable weight to their evidence. However, such evi-dence from community members needs to be complemented by expert evidenceprovided by anthropologists, art historians, and the like. In the same way, expertevidence will be of little value if it is not confirmed by the testimony of commu-nity members. The courts look for complementary statements. Because of thedifferent restrictions stemming from the rules of evidence, such complementary
Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? 101evidence will most often be achieved with testimony from community elders asto details, and from expert opinion as to the general context of this evidence. ReferencesAlberts, 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 Univer- sity 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 heri- tage [Special issue]. Law in Context, 14(2), I–X.Chesterman, S. (1998). Skeletal legal principles: The concept of law in Australian land rights juris- prudence. 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.), Aborigi- nal Australia: An introductory reader in Aboriginal studies (2nd ed., pp. 77–99). St. Lucia, Aus- tralia: University of Queensland Press.Ellinson, D. A. (1994). Unauthorised reproduction of traditional Aboriginal art. UNSW Law Jour- nal, 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” Ab- original 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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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@example.com 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 profes- sions 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 pro-vided by any individual mastering the knowledge and skills required to gain ac-cess to a profession. This impersonal portrait of the modern expert is not generally adequate. Aninstructive case in this respect is the reaction of German orthodox physicians (Schulmediziner) to challenges that where posed to their professional authorityduring the Weimar Republic. Legitimacy in the eyes of a professional peer groupand in the eyes of the lay public may differ. While access to modern professionsmay, 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 onthe personal characteristics and reputation of individual professionals that tran-scend mastery of professional skills in the narrow sense. During the Weimar years physicians saw their professional autonomy threat-ened for several reasons. The market for medical services was saturated becauseof the rising number of university-trained physicians. The number of registeredphysicians in Germany grew from about 34,000 in 1913 to about 52,500 in1932, and the rising number of medical students from the middle of the 1920sonward reinforced physicians’ fears about an oversupply of doctors and decliningincomes (Kater, 1986, pp. 49–58; Wolff, 1997, pp. 124–130). Such a crisis wasnot unique to the medical profession; other professionals, be they lawyers, teach-ers, or engineers, also faced similar prospects that, along with the traumatic ex-perience of inflation in 1923, contributed significantly to the gloomy moodamong the German educated middle classes (Jarausch, 1989; Weisbrod, 1996). 105
106 Michael HauPhysicians further blamed the increasing power of the legal health insurance sys-tem over the allocation of resources for restricting their professional autonomyin a tight market for medical services (Hubenstorf, 1993). In the eyes of contemporary physicians there was also a growing number ofalternative 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 fromtheir patients. The practice of medicine, they claimed, could not be reduced tothe mastery of scientific knowledge. There was more to a physician than justtechnical skills. To gain the respect and trust of their patients, modern phy-sicians also had to have strong personal characteristics. They had to becomeempathic experts and outstanding healer personalities who tried to understandtheir patients as individual human beings. In making such claims Weimar physi-cians appropriated the discourse of the natural therapy movement that had chal-lenged the authority of the orthodox profession even before the war. In this chapter I first outline Weimar physicians’ attitudes toward alternativemedical practitioners. Being concerned about the legitimacy and reputation oftheir profession, physicians saw the propaganda by supporters of alternativemedical practices as a serious challenge. Then I address the physicians’ responsesto this situation and the call for a new form of expertise that would renew thelegitimacy of the orthodox medical profession among the lay public. The finalsection presents how representatives of alternative medicine assessed the newrhetoric of orthodox physicians professing the importance of empathy and per-sonal understanding as integral aspects of modern medical practice. Modern Medical Practice and the Challenge of Alternative MedicineIn the early 1920s the physician Carl Ludwig Schleich looked back at the rapiddevelopment of modern medicine during his long and successful career. Likemany of his colleagues in the 1920s, he was particularly concerned about theconsequences of modern medical practice being based on the laboratory andtechnological innovations: The general aesculap of the laboratory is replacing the physician like a pil- grim 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 diag- noses 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 be- come suspicious because of the spectre of an impersonal medicine, has one
The Humane Expert 107 thing in his experienced, humane, consoling hand, which neither the labora- tory, 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 univer- sal, the more the physician has to become ethical, cultivated, and high- minded. 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 tech- nology would not alter the core of medical practice by undermining the trust be- tween physicians and their patients. Such fears would become exacerbated dur- ing 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 audi- ence, physicians conceded that the analytical and reductionist methodology of scientific medicine had often neglected patients as human beings. Modern med- icine had distanced physicians from their patients and, to overcome this dis- tance, the physician had to become an empathic healer, a humane expert. In ad- dition to medical expertise, physicians had to develop qualifications that tran-scended their expertise as experts trained in the natural sciences. According topropagators of the ideal of the humane expert, physicians who faced the alienat-ing prospects of modern medicine had to become outstanding healer personali- ties to win the trust of the lay public and their patients. Historians who haveexamined the professionalization of German physicians have argued that theexpert authority of modern German physicians was based on specialized knowl-edge that was accessible only on the basis of a long, expensive, and theoreticallybased education. The theoretical knowledge of modern physicians became themain basis of their expertise, which was independent of, and unaffected by, theirpersonal character or reputation (Huerkamp, 1990; Lachmund & Stollberg,1995, p. 208f.; McClelland, 1997). During the 1920s, however, German physicians argued that specialized train-ing in the natural sciences was a necessary, yet insufficient basis for the therapeu-tic practice of the modern physician. The physician, some argued, had to bemore 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 practi-tioners also had to fulfil the role of priests who listened to the confessions of 1 All translations by M. H.
108 Michael Hau their patients and consoled them. Other Weimar physicians argued, it was tech- nical competence and outstanding personal characteristics that made the dif- ference between a mediocre physician and a charismatic healer personality who had the trust of his patients. For some of them such characteristics were in- variably 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 physi- cians 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 differ- ent 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 home- opathy and new medical fads such as “biochemistry.” The immense popularity of “biochemistry” was a relatively short-lived phenomenon of the 1920s. Draw- ing 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 com- peted with natural therapy and orthodox medicine (Dörter, 1991; Jütte, 1996;Wuttke-Groneberg, 1982). To counter such challenges university-trained physi- cians increasingly appropriated elements of the discourse of alternative health movements. The renowned surgeon August Bier demanded that regular medi-cine become more open to outsider methods such as homeopathy. He argued fora less interventionist approach in surgery and claimed that homeopathy and nat- ural therapy were important means to reactivate the self-healing powers of thehuman organism (Bier, 1926, p. 8ff., p. 30ff.). Demands that physicians should take the spiritual-physical unity and the in-dividual constitutions of their patients into account when making therapeuticprescriptions also became quite frequent among prominent representatives ofthe orthodox medical profession (Bier, 1926, p. 9; Grote, 1921, pp. 31–34;Krehl, 1929, p. 33ff.). However, it remains unclear whether the rhetoric stress-ing holistic approaches and the need to take the individuality of each patientinto consideration entailed any tangible changes in regular medical practice. It isalso not clear, one should add, what such a rhetoric entailed for the actual prac-tices of the natural therapy movement and other brands of alternative medicine.
The Humane Expert 109 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 alter- native medicine (Bundesarchiv Berlin [BArchB], R 1501, No. 9371, p. 20ff.). Neustätter increasingly acknowledged the misgivings of the lay public about or- thodox medicine and he was willing to concede to lay people, organized in natu- ral 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 Com- mittees for Hygienic People’s Education (Landesausschüsse für hygienische Volks- belehrung) and the Reich Committee for Hygienic People’s Education (Reichs- ausschuss für hygienische Volksbelehrung) because he believed that the integration of these natural therapy associations would increase the credibility and legiti- macy 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 purposewas 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 mostnotable action of the Reichsausschuss was the Reich Health Week (Reichsgesund-heitswoche) in 1926, at the request of the Ministry of the Interior. During thisNational Hygienic Propaganda Week, lectures by physicians, hygienic exhibi-tions, and educational movies, as well as other events with hygienic propaganda,were organized on the local and state levels in cooperation with the State Com-mittees 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, whohad written one of the most aggressive attacks on the natural therapy movementtwo decades earlier; Alexander, 1899) had distinguished themselves as crusadersagainst natural therapists, Neustätter’s suggestion to tame the natural therapy as-sociations by integrating them found a mixed reaction among orthodox physi-cians. Ultimately his plans were doomed, because the German League of Physi-cians’ Associations (Deutscher Ärztevereinsbund), the professional association oforthodox physicians, refused to cooperate in any way with natural therapy associ-
110 Michael Hauations. Its representative, Herzau, successfully resisted acceptance of natural ther-apy associations in the Reich and State Committees, because such a cooperationwould 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 medi-cine to appropriate the discourse of alternative medicine by acknowledging theshortcomings of mechanistic approaches within orthodox medicine. As Friedrich Martius, a leading professor for clinical medicine, explained in1921, it was essential for the orthodox medical profession not to alienate themoderate sectors of the natural therapy movement. Martius argued that the sci-entific medicine of the late 19th century, with its chemical-physical materialism,had contributed to a deep antagonism between scientific medicine and the “bio-logical feelings” of the people. By acknowledging the fact that therapies couldnot always be derived completely from chemical and physical principles, and byemphasizing the importance of “pure experience in the biological sense,” Martiushoped it would be possible to end the alienation between scientific medicine andthe natural therapy movement without compromising the professional authorityof 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 classi- cal modern scientific medicine as exemplified by modern laboratory medicine,which supposedly treated human beings like machines. They argued that physi-cians had to be more than mechanics or technicians who simply repaired themalfunctions of the human body. The modern physician’s expertise still was to be based on technical skills and scientific knowledge. However, personal charac-teristics, not directly related to specialized knowledge and practical skills, werecentral 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 indi-viduality of each patient as well as the physical-spiritual unity of patients. Theinternist and immunologist Hans Much, for example, argued that results fromlaboratory research and animal experimentation could not become the basis fortherapeutic decisions. Since every patient was different, and since every patienthad a unique individual constitution, it was necessary to tailor therapies to indi-vidual patients (Much, 1928, pp. 22–55, 1932, pp. 92–104; Wirtz, 1991). Thiswas, of course, nothing new. What was new was that orthodox physicians of theWeimar era appropriated the rhetoric of the natural therapy movement, whoserepresentatives had maintained, for a long time, that university-trained physi-
The Humane Expert 111 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 at- tempted to comprehend the totality of the constitutional habitus (Gesamthabi- tus) 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 nat- ural sciences was considered a crucial foundation for the expertise of the modern physician. But, intuition and empathy were important for physicians also. Med- icine was perceived as an art, and the intuitive gaze of the physician had to syn- thesize countless symptoms and characteristics of individual patients to capture the constitutional essence and individuality of every single patient. Such invoca- tions of the intuitive gaze of the physician, implying an analogy between medi- cine 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 do- ing so, they responded to the concerns of their patients, who feared becomingpassive objects of scientific experts who did not take them seriously as full humanbeings. The physician Erwin Liek (Kater, 1990), who published several bestsell-ers on the crisis of the medical profession, argued that it was necessary for physi-cians of the future to grasp the sick individual in their entirety and establish a re-lationship of trust between themselves and their patients. Therefore, a physiciancould not be a remote scientist in a university laboratory. According to Liek, thephysician, as a humane healer, had to understand intuitively the entire humanbeing. However, the relationship between physician and patients was not to be asymmetrical one. Liek argued that confidence in the physician had to be basedon faith and trust in the physician’s expertise, because it was expertise shroudedin 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 competenceof orthodox medicine. But, the renewed legitimacy of the medical profession wasno longer to be based exclusively on specialized expertise in the methodology ofthe natural sciences. Instead, it had to be supplemented by the personal authorityof 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 mod-ern medicine become especially obvious when we look at those occasions when
112 Michael Hau physicians addressed a popular audience. In 1926 the famous surgeon and med- ical 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 (physi- cal exercise) and the goal of this exhibition, as of the other great hygienic exhibi- tions 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 incapa- ble 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 feel- ings and personal experience. Because of their humanity, the physicians were su- perior to modern technology. The physicians’ empathy made them the “greatestand most accurate physical apparatus that existed”; therefore, intuition, as animproved 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 theobese 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 move-ment during the Empire. Liek, on the other hand, was impressed by the charis-matic Schweninger, who achieved what no one else had achieved before: to makethe Iron Chancellor submit to his authority. He quoted Bismarck as saying: “Iwas the one who treated my previous physicians (there were about a hundred ofthem, among them the best names); he (Schweninger) is the first one who treatsme” (Liek, 1933, p. 128). Sauerbruch and Liek were not the only physicians who stressed the empathicabilities of outstanding physicians. Karl Jaspers, a former psychiatrist who taughtphilosophy and psychology in Heidelberg, did the same in his work on Generalpsychopathology (Ash, 1995, p. 289). While many contemporary physiciansmight have genuinely believed in the need to supplement technical expertisewith empathy, such claims also tried to establish an alternative source of author-ity for modern physicians. The expertise of the physician was not to be basedsolely on the machine, in this case the laboratory and technology. Instead, expe-riential immediacy, empathy, and the human touch were supposed to “build abridge from soul to soul” (Liek, 1930, p. 192) between a physician and hispatients, who resented becoming passive objects of soulless scientific experts.
The Humane Expert 113 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 physi- cian (Vogel, 1930, p. IVf.). They expressed, here, a variation on a contemporary popular discourse marked by a preference for intuition and experiential immedi- acy over experiment and alienating fragmentation (Ash, 1991). Vogel and von Engelhardt rejected the mechanical world view that saw dis- ease as a phenomenon of functional disturbances of specific organs and of patho- logical changes in specific tissues. Their argument was reminiscent of Johann Wolfgang von Goethe’s criticism of Newton as the representative of a mechanis- tic 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 posi- tion, they pointed to some of the epistemological principles developed by Goethe (Höpfner, 1990). Physicians, von Engelhardt argued, could only under- stand 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 un- derstanding 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 re- garded necessary, but to fall short of revealing the most important aspects oftruth. 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 de-pendency on the whole (Vogel, 1930, pp. 3–7, pp. 256–259). This was not theepistemological principle of exact science, but rather an artistic, intuitive ap-proach to understanding nature that was based on the assumption of the episte-mological superiority of cultivation (Bildung) as a privileged means to unlock thesecrets of nature through intuition. The disillusionment of Weimar physicians with the principles of classical,mechanistic science and medicine is striking. This disillusionment can not exclu-sively be attributed to the desire of physicians to gain ground on the medicalmarket by appropriating the holistic rhetoric of the natural therapy movement.The rhetoric concerning the humane physician, who took his patients seriouslyin their individuality, was not always a cynical professional strategy. Some oftheir self-doubts on the diagnostic and therapeutic possibilities of a medical sci-ence, based exclusively on the natural sciences, were genuine. But, many Weimar physicians attributed the popularity of alternative healthmovements to popular unease about a modern medicine that seemed to rely
114 Michael HauFigure 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 thepublic image of modern medicine, which seemed to increase the emotional dis-tance between physicians and their patients. In the popular press this emotionaldistance was sometimes represented as geographical distance. An illustrated arti-cle in the Berliner Illustrierte Zeitung on the future of modern medicine is a casein point. This article claimed that modern technology would make it possible forthe physician to supervise the health of his patients even if the patients were on adifferent continent, because diagnostic signs, such as heart rate or blood pres-sure, would be electronically transmitted to the physician in his office. Therethey would be monitored by machines, and based on the results, the physicianwould then give his therapeutic prescriptions (Kahn, 1925). According to suchvisions of modernity, the physician was a technician, a servant of the medicaltechnology of the future (see Figure 1).
The Humane Expert 115 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 post- war 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 1920swas 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 ef- ficiency, rationalization, and Frederick W. Taylor’s ideas of scientific manage- ment in public debates about the German economy, an aspect of the so-calledAmericanism of the Weimar years, which sought technocratic solutions for socialas well as for economic problems. During the stabilization years of the Weimar period, popular imagination wascaptivated by the utopian promises heralded by the achievements of Americancivilization, and it is in this context that visions of physicians as servants of medi-cal technology have to be understood (Nolan, 1994; Peukert, 1993, pp. 178–184). However, contemporaries perceived rationalization and mechanizationsomewhat ambiguously: It was a promise of progress as well as alienation. Suchambivalent attitudes toward technology were, for example, reflected in the dis-cussions of contemporary engineers who felt the need to stress the spiritual as-pects of technology to counter charges that modern technology would lead to analienating, soulless world (Hård, 1998, pp. 40–45). The journalist Adolf Halfeldcondemned the dehumanizing aspects of what he denounced as Americanism.He saw a “future society where card files, measurements, soul analyses, and braintests take over the role of fate for the standardized individual without rightsimprisoning 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 dif- ferent: The physician must be a man who combines knowledge with kind- ness, 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 connois-seur of human nature. Appropriating the rhetoric of natural therapists, Liek ad-vocated a gende reactivating of the natural healing powers of the organism. Theideal physician was, in his view, not only well trained in the sciences and thenewest medical technology, but he also had to be an educator and a leader ofbroken and tired souls (Liek, 1931, p. 30).
116 Michael Hau 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 physi- cians, 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 physi- cians had to take the subjective experience of their suffering patients into ac- count instead of dismissing these subjective experiences as irrelevant. He main- tained that there was a gap between science and the subjective experience of ill- ness 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, emo- tions, 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 subjec- tive 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 percep- tions was sometimes truly amazing. Nevertheless, they had to be taken seriously by physicians because the auto-plastic experience was easily influenced and ma-nipulated by alternative practitioners who could only relate to the subjective ex-perience of the patient. Medical sectarians would celebrate their greatest triumphs by treating the whole complex of the subjective image of the disease (Krankheits- vorstellungskomplex) without treating the underlying reality of the disease. Thiswas dangerous for patients because, very often, opportunities of timely treatmentwere 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 thetraining of physicians, and it was left to the talent and skillfulness of individualpractitioners to develop the empathic qualities that enabled the physician to relateto his patients (Goldscheider, 1927, p. 289ff.). Medical historians have repeatedlydrawn attention to the diverging discourses of scientific medicine and the laypublic. They have usually seen the development of these separate discourses as asource of the expert authority of the modern physician, especially since medicaltechnology (the stethoscope, the laboratory, x-rays) opened up a new discursivefield for orthodox practitioners. This gave physicians privileged access to hiddendiagnostic signs that made it more difficult for lay people to challenge the inter-pretations 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 profes-sional discourses created a distance between patients and doctors that undercut
The Humane Expert 117 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 (Gold- scheider, 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 be- came 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 Gold- scheider were skeptical about the benefits of popular hygienic education. They thought it would encourage “a dangerous half-knowledge” (gefährliches Halb- wissen) that might pose a challenge to the authority of physicians apart from en- couraging hypochondriacs. The more mysterious the work of the physician, thegreater their authority, as long as they could convey their empathy. In Gold-scheider’s and Liek’s view, it was necessary that the distance between physiciansand the lay public, and their diverging languages and interpretations of diseases,remained intact as the source of the expert authority of the physician, but itwould be supplemented by the humane qualities of the physician as the sourceof 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 witha magical aura. Since suggestion played an important part in the healing process,the physician would compromise his efficiency if he shared his secrets with hispatients. This was something that orthodox physicians could learn from alterna-tive practitioners, who gained the trust of their patients by shrouding their ex-pertise in mystery (Liek, 1930, p. 202). For Liek, the efficiency of the physicianlay in his charisma sustained by the mythical belief of his patients in a physiciansprivileged access to knowledge. Popular hygienic education tended to undercutsuch naive, yet wholesome, beliefs in the physician’s power and infallibility anddeprived the practicing physician of his efficiency. The Alternative ResponseThe question remains whether the lay public was impressed by the new rhetoricof representatives of the orthodox medical profession and its emphasis on theoutstanding, empathic healer personality: The humane expert, who treated hispatients by taking their individuality into account and who did not simply treatdiseases, but human beings as a whole. The reaction to Sauerbruch’s presentation
118 Michael Hau 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 presenta- tion, 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 reorienta- tion of modern scientific medicine was also received quite positively. An author in the leading homeopathic journal, the Leipziger Populäre Zeitschrift für Homö- opathie, lauded Liek’s criticism of the practices of the orthodox medical profes- sion (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 med- icine, 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 move- ment 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 de- signed 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 inte- grated 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 movementhad made to the development of such therapies. In reality, Silber claimed, ortho-dox medical practice had changed very little. There was still an overwhelmingemphasis on drugs and operations and the natural therapy movement had stillan important mission in fighting the materialistic-mechanistic spirit of modernmedicine (Silber, 1929). Defenders of natural therapy, thus, clearly saw the danger inherent in theholistic discourse within scientific medicine. Natural therapy was in danger oflosing its distinctiveness on the medical market of the Weimar era because or-thodox medicine tried to absorb some of the contemporary discontent with thetechnological and mechanistic aspects of a “scientized” medicine. As early as1921, the 12th Federal Assembly of the German League of Natural Living and
The Humane Expert 119Therapy Associations, therefore, adopted a resolution that tried to alert the pub-lic to the fundamental differences between therapy as propagated by naturaltherapists and natural therapies offered by orthodox medicine. According to thisresolution, the latter was a compromise doctrine diluting the great heritage ofthe natural therapy movement with orthodox therapies and the dispensing ofdrugs. Furthermore, orthodox physicians were inexperienced in activating thenatural healing powers of the organism, the claimed forte of the experiencednaturopathic (implying empathic) physicians (Anonymous, 1921). The humane expert, the outstanding healer, who took the individuality of hispatients into account, had been among the long-standing demands of Germanhealth reform movements. This is evident not only in the holistic rhetoric ofsupporters of natural therapy, but also in their propagandistic denunciations ofhuman experimentation within scientific medicine. However, when orthodoxphysicians made such demands they were considered suspect, attempting to givea discredited medical science a new legitimacy. Conclusion During the Weimar Republic orthodox physicians tried to develop discursivestrategies to address the crisis of legitimacy of modern scientific medicine. Thelong university training of physicians in the sciences, as well as contemporarytechnological visions of modern medical practices, provided important symbolicresources for physicians who wanted to convince the lay public of their compe-tence as modern experts. However, such modern images of medical practice werea double-edged sword, because they also implied an emotional distancing be-tween practitioners and patients, which neither patients nor physicians foundappealing. From the point of view of some contemporary physicians, the solu-tion to this dilemma was a new form of expertise that combined the impersonalauthority of the modern expert with the personal authority of the outstandinghealer personality. This was an attempt to construct a new form of expertise inorder to cope with the contradictions of modern society: On the one hand,images of scientific and technical competence create utopian hopes of technolog-ical feasibility, on the other hand, these same images provoke fears of an alienat-ing, impersonal society. AcknowledgmentThanks to Jens Lachmund for his critical comments and suggestions.
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Chapter 7 Expertise Not Wanted: The Case of the Criminal Law Jean-Paul Brodeur International Center for Comparative Criminology, Université de Montréal (Québec), Canada firstname.lastname@example.org 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 pre- diction 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 ap-ply 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 transactionsbetween science and the criminal law. This external standpoint is particularlystriking in respect to public commissions appointed by governments to studyproblems or events that have shocked public opinion, and to develop policies toremedy 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, Iwas fortunate enough to get an inside view on what was occurring in differentfields where scientific expertise meets the criminal law in Canada (i.e., I was amember in various capacities of more than 16 Commissions of Inquiry and pol-icymaking bodies). Instead of presenting abstract proposals on expertise in crim-inal law, I intend to draw on my previous experience and research to develop themain lessons that I have learned, and to indicate what are the trends that I haveidentified in the relationship between expertise and the criminal law. This chapter focuses almost exclusively on scientific expertise in relation tothe 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 covertoperations of the CIA. Brodeur (1984) is a study of the working of several commissions that inves-tigated police corruption in Québec. 123
124 Jean-Paul Brodeurthe work of professionals who are not individually sought as expert consultants;they apply their professional expertise on a routine basis in various fields. Sec-ond, I will present the results of Ph.D. research undertaken under my super-vision on expert witnesses in Canada. Third, I will give the results of an evalua-tion, that I performed, of a project that tried to introduce the use of expert sys-tems and computerized sentencing data banks in the courtroom. In the fourthpart of this chapter, I shall discuss the role of such bodies as public inquiriesand study commissions in the formation and reform of criminal law. This dis-cussion will finally be followed by an assessment of the work of these publiccommissions. The common thread that runs through the five parts of my chapter is the fol-lowing: 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 stronglygrounded in scientific knowledge, it is then either viewed with great circumspec-tion or altogether rejected from the criminal law. Experts: In the Weak and in the Strong SenseBefore scanning these different domains of expertise within the criminal law, Ishall discuss two preliminary topics. The first, is the general meaning of theword “expert”; the second, is its significance in the field of criminal law. In dis-cussing 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 exper-tise. Etymologically speaking the word “expert” comes from the Latin expertus,which means “he who has been proven” (to be able at something). Hence, oneneeds a recognized qualification to be acknowledged as an expert. This qualifica-tion can be conceived in general, or in specific terms. What most generally qual-ifies someone as an expert is the possession of scientific knowledge on a particularsubject. In William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., its land-mark judgment on the admissibility of expert evidence in court, the USSupreme Court exclusively stressed this criterion, at the expense of “technical orother specialized knowledge” to which Rule 702 of the Federal Rules of Evidencealso applies.2 This general qualification is necessary for a person to be acknowl- 2 In this crucial judgment, the US Supreme Court has developed a set of criteria that qualify aparticular form of knowledge as scientific. These criteria draw heavily on the work of the philoso-phers of science Karl Popper and Carl Hempel. They are: (1) testability or falsifiability; (2) subjec-tion to peer review; (3) the known or potential rate of error; (4) the general acceptance of a theory inthe scientific community. Chief Justice Rehnquist and Justice Stevens dissented from the majorityruling, Justice Rehnquist stressing that the ruling did not address the issues raised by forms ofknowledge other than scientific (technical and other specialized knowledge). The ruling actuallyraises 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 WilliamDaubert et al. v. Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786 (1993). This judgment is repro-duced in Appendix B of Foster and Huber (1997). For a comment, see Saltzburg (1993).
Expertise Not Wanted: The Case of the Criminal Law 125edged as an expert, but it may not be sufficient. In addition to the possession ofscientific knowledge, one may also need a specific qualification to be an ac-knowledged authority in a scientific field. With respect to this additional criteria,expertise is embedded within a hierarchical structure. The ranking of an expertby the courts may not coincide with the ranking of this person in the scientificcommunity. As Jasanoff perceptively noted: “in the commodity market of exper-tise, persuasiveness, more than raw scientific credentials, determines a witness’sworth” (Jasanoff, 1995, p. 49). Many scientists are, thus, reluctant to participatein adversarial proceedings, where an expert is recruited by one of the parties andis expected to testify convincingly on its behalf. Whatever may be the source ofthis ranking, it cannot be denied that a person is truly qualified as an expert bythe weight of authority that is carried by their word. Hence, I propose to distin-guish between experts in the weak and in the strong sense of the word. In theweak sense, experts are professionals with a higher education in a scientific dis-cipline and appreciable experience, who perform their speciality within a field ofoccupation. In the strong sense, experts are qualified scientists whose voices carrya measure of authority in a given field of knowledge. This distinction may not beequally relevant in all fields of expertise, although, as I shall immediately show, itmust be made in order to account for the disparity of expertise in the field ofcriminal justice. This distinction is also useful in drawing attention to the factthat expertise is rather more of a relation than of a thing. In other words, one isacknowledged as an expert according to one’s position in the hierarchy of com-petitors, rather than according to one’s worth. The amount of qualificationneeded to move up in a hierarchy varies greatly from one field to the other; it isdirectly proportional to the availability of scientific knowledge in a givendomain. Where there is a wealth of knowledge, one must be uniquely qualifiedto be acknowledged as an expert. In young fields of knowledge, such as criminol-ogy, one needs little qualification to percolate to the top. Experts in Criminal LawI will now briefly address the meaning of expertise in criminal law. What I juststated about criminology, which is one of the social sciences, may not apply tothe field of criminal law. There are fields that are germane to scientific expertiseand some that are less so. For instance, the domains over which roam the twoUS agencies studied by Jasanoff (1990)—the Environmental Protection Agency(EPA) and the Food and Drug Administration (FDA)—are dependent upon sci-entific expertise in a very crucial sense: Ecology and food and drug testing are toa significant extent constructions of science (see also the natural science exam-ples discussed by Salter & Slaco, 1982). Scientific expertise cannot, then, be per-ceived as an intrusion by the EPA or the FDA, as they depend upon it, althoughit 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 oc-cupied—and has been for time immemorial—by persons who have good reason
126 Jean-Paul Brodeurto perceive themselves as experts. Judges, lawyers, and legal scholars have a justi-fied claim to legal expertise, although they may not be called scientists. Conse-quently, what happens in a criminal law forum is a meeting of different kinds ofexpertise. Such a meeting may proceed smoothly; it may also develop into a con-frontation. Conflicts can easily arise because criminal law expertise and scientificexpertise belong to two different traditions. Particularly in common law coun-tries, where the mere codification of the legal rules is viewed with suspicion,criminal law tradition focuses on the individual case, and the discussion of legalprecedents often takes the form of a tedious casuistry hostile to statistical reason-ing. In contrast, not only does science aim to be a set of valid and consistent gen-eralizations, but scientific experts often take a holistic approach to problem solv-ing, which does not play well with legal experts whose approach is incremental.3 Fields of Weak ExpertiseThe title of this section refers to the distinction, made above, between experts inthe weak sense and in the strong sense. The activities that I shall now discuss arepursued by experts in the weak sense. These fields of weak expertise are manyand I will discuss only the most important of them. For lack of space, I will notdiscuss the role of the natural sciences in the production of criminal law evi-dence (e.g., ballistics, DNA fingerprinting, etc.). Despite the prestige of the nat-ural sciences, this kind of evidence is far from being unassailable.PolicingWhat is characteristic of the police is that its repeated claims to expertise are notmet in the reality of their daily operations. These claims are not only made bythe police. One of Canada’s foremost scholars in police sociology has recentlydeveloped a new paradigm of policing, where police are defined as “knowledgeworkers,” who broker their expertise in risk assessment to a variety of institu-tions (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 profes-sional culture confuses knowledge with intelligence collected through covertsources; 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 inWilliam Daubert et al. v. Merrell Dow Pharmaceutical, Inc., Chief Justice Rehnquist wrote in exem-plary judicial fashion: “I defer to no one in my confidence in Federal Judges; but I am at a loss toknow what is meant when it is stated that the scientific status of a theory depends on its ‘falsifiabil-ity,’ and I suspect some of them will be, too.” (Foster & Huber, 1997, p. 289, Appendix B) Con-versely, scientific experts may be at a loss to fathom what is meant by legalese jargon, some ofwhich is even still in Latin. Bridging the islands on which these contentious experts live is alwaysprecarious.
Expertise Not Wanted: The Case of the Criminal Law 127seek expertise for its scientific sake. Knowledge work and expertise imply a cer-tain amount of paperwork, which police are already overburdened with. Withthe exception of elite forces, such as the Federal Bureau of Investigation (FBI) orthe Bundeskriminalamt (BKA), police education is generally much beneath thecollege level, although it is now increasingly demanded that police investigatorsshould at least obtain university degree.4 Police training is traditional and mili-taristic and it fails to impart the skills necessary for policing the information age,particularly with respect to communication skills. Although police have investedvast sums of money in buying information technology, Peter Manning hasshown that they were either not proficient in the use of such technology, or usedit to further the own organizational ends, rather than external service goals, suchas 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 ofcriminal profiling, where police do not yet have the training to take advantage ofthe expert systems provided to them (Jackson & Bekerian, 1997). Other areaswhere policing expertise is wanted are crime prevention, economic crime, trans-national organized crime, and crowd control, to say nothing about “policing theInternet.” What is sure, however, is that the police will have to obtain the neces-sary expertise to meet its future challenges, or they will be superseded by the pri-vate security sector.The Prediction of Deviant BehaviorI previously stated that the issue of scientific expertise, in relation to the crimi-nal law, was not as thoroughly researched as other topics. There is one exceptionto this assertion; it is the issue of the prediction of behavior, which is the subjectof an abundant research literature. This issue divides into two basic questions,which are the prediction of the future behavior of accused and convicted offend-ers and the prediction of the decisions of criminal justice functionaries. Althoughthere is a growing body of research on the second question, which has gained inprominence because of the great administrative stress under which criminal jus-tice personnel are now operating, it is the first question that has been the focusof most of the research and that I shall address. Because of its scope, the researchliterature on the prediction of deviant behavior cannot be summarized and Ishall limit myself to a few key points immediately related to the question ofexpertise. 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 Un-tersuchungsausschusses “Hamburger Polizei,” Hamburg, Mitteilung des Senats an die Bürgerschaft,Drucksache 15/75/14, 03.06.97).
128 Jean-Paul Brodeur 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 compre- hensive reviews of the accuracy of the prediction of behavior, Gottfredson con- cluded that the present ability to predict the behavior of offenders, or the deci- sions of criminal justice professionals, was modest and that predictions of deci- sions 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 in- fluential 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 of- fenders convicted of manslaughter; von Hirsch, 1985; von Hirsch & Gott- fredson, 1984). Thus, was prediction coupled with classification? This coupling can be seen as a progressive or as a regressive development. An offender’s classifi- cation for risk may be interpreted nondeterministically as one factor to be con- sidered among others in the deliberation of their fate, this factor being consid- ered in conjunction with others to produce the final disposition. For instance, Leblanc (1983) showed that the single most important determinant for the reha- bilitation of young offenders was their involvement in a stable emotional rela-tionship with a partner, after being released. The network of outside support, foran offender, could then offset or mitigate their classification in a category ofhigh-risk offenders. On the other hand, categorical incapacitation can have di-sastrous effects, if it is viewed as deterministically as was selective incapacitation.In this latter case, instead of automatically incapacitating individuals selected asbad risks, whole categories of offenders might be seen as requiring longer periodsof incarceration for the protection of society. There is, in Canada, a persistent tradition of predictive research, which at-tempts 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 predictiveinstrument and any kind of reoffense; they are weaker on their prediction of vio-lent reoffense in the broad sense (e.g., robbery, where the degree of violence usedis the object of a discretionary definition); they generate a high percentage of“false positives” (people who do not validate the prediction) when violent reof-fense is narrowly defined. Crucially, these predictive instruments are scales com-posed of static items (e.g., the age of admission into a custodial facility), which
Expertise Not Wanted: The Case of the Criminal Law 129provide no guidance on how to supervise an offender, once they have been re-leased (Hanson & Harris, 1998). Despite these reservations about the ability to predict offender behavior, thecriminal justice system’s craving for predictions of offender behavior remains asstrong as ever. In the USA, mercenary psychiatrists testify on whether an of-fender is redeemable or not in cases involving capital punishment.5 The Ameri- can Psychiatrist Association (APA) submitted a brief in this regard to the USSupreme Court. It stated that “the APA’s best estimate is that two out of threepredictions of long-term future violence made by psychiatrists are wrong.”6 Nev-ertheless, the US Supreme Court ruled twice that such psychiatric testimony onwhether a person was, or was not an unredeemable sociopath, was legally admis-sible as evidence. There is also a new trend in behavior prediction that is turning into a grow-ing industry. It is now believed that potential violent and/or repeat offenderscan be identified at a very young age—during the preschool years—and that theearlier we intervene to modify the behavior of these “high-risk children” themore 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 infancyproject], p. 224 [in conclusion: “From a policy perspective, it does appear thatmoney invested in early (e.g. preschool) prevention efforts with at-risk familieswill give greater pay-off than money invested in later (e.g. adolescence) preven-tion efforts with the same at-risk families.”]). This situation is a paradigm case of the imbalance between actual knowledgeand the “will to know”—or, to paraphrase Nietzsche, der Wille zum Wissen—which has been expounded by Michel Foucault (1975, 1976). The criminal lawonly has regard for “proof beyond reasonable doubt” and despite the limitationsof knowledge, it has no use for the suspension of belief that characterizes the sci-entific attitude. Its perspective is akin to the decisionism developed by CarlSchmitt (1990, 1993) in political theory.Prediction in PracticeIn North America, the bulk of offender behavior prediction is performed bynonexperts who rely on their intuition and experience and by experts in theweak sense of the word. Among nonexperts—except with regard to their experi-ence—are judges, who monopolize the decision to release an offender on bail, orto put them in preventive custody. The decision to grant parole to an offender isalso taken, to a great extent, by persons who possess no scientific expertise (fewexperts 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 so-ciopathy” by a psychiatrist named Grigson, who was known by defense lawyers as the prosecutor’shit 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).
130 Jean-Paul Brodeurex-police persons and members of the public). When experts intervene, they relyon outdated predictive instruments, which have not been revalidated for periodsexceeding ten years (Bonta et al., 1996). The experts are mainly drawn from the ranks of probation officers. Probationofficers are professionals who supervise offenders enjoying the various forms ofconditional freedom (bail, probation, suspended custodial sentences, parole) andwho have the responsibility to write pre-sentence reports for the sentencingjudge. In many US jurisdictions, such reports are mandatory for sentencing of-fenders convicted of a serious criminal charge. In Canada, they are presented atthe request of the sentencing judge. The expertise of probation officers variesgreatly from one jurisdiction to another. In many cases, their greatest claim toexpertise lies in their experience with offenders; in the best of cases, they have anundergraduate university degree in criminology, psychology, or a related field.Although probation officers have a general claim to qualify as experts throughtheir scientific education and professional experience, they conduct risk assess-ments of offenders on a routine basis and, with few exceptions, they are not sin-gled out as individuals whose opinions are uniquely authoritative. Pre-sentencereports show considerable variation in their quality, and probation officers enjoya fair deal of latitude in the choice of their predictive methods, as they are gener-ally not constrained by scientific standards of procedure. On the few occasionswhen the opinion of probation officers is challenged in open court, they testifyas experts in the weak sense of the word in contrast to their challengers, who arerecruited on the basis of their individual reputations (this does not imply, how-ever, that their opinion will not prevail with the court).Double JeopardyPredictions of offender behavior may be scientifically unbiased in their content,but their legal use is heavily tilted against the reintegration of the offender intosociety. For example, it is generally recognized that the majority of murdererspresent a low risk of reoffense. However, since criminal justice jointly followsutilitarian and retributivist goals, what the offender may gain under a utilitarianpredictive rationale, they will lose under the orientation of the criminal law to-ward retribution. This implies that instead of releasing a murderer with a verylow-risk assessment, the criminal law will feel obligated to incarcerate this personfor an extended period of time for the purposes of punishment (in countrieswhere capital punishment is still applied, this person may be executed). In otherwords, the expert’s assessment has a much higher probability of being followed ifit 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 repressivebias in the use that is made of their expertise deters many experts from being in-volved with the criminal law.
Expertise Not Wanted: The Case of the Criminal Law 131Therapy 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). To-day, there is one correctional institute in Québec, l’Institut Pinel, that claims tohave discovered a new method for treating sex offenders. This therapy is admin-istered by experts calling themselves “phallometricians” and is predicated on the common-sense belief that sex offenders lack self-control. The treatment pro-ceeds in this way. The subject of the therapy is seated in a chair surrounded byseveral monitors and his penis and other parts of his body are fixed with electri- cal sensors. The subject is then shown sexually arousing pictures and variousmeasurements 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 main-tain minimum arousal, thus, showing progress in self-control. Although thisform of therapy would seem to both laypersons and specialists as a cut from themovie “A Clockwork Orange,” sex offenders are regularly sent to this institutefor treatment and the phallometricians publish their findings in scholarly jour-nals. A feature on this treatment was shown on national television in Canadaand did not generate any significant feelings of disapproval. It may well be thatphallometrics rest, in part, on valid scientific assumptions. However, we onlyhave to refer to Freeman’s ice-pick lobotomies (Smith & Kiloh, 1974) to be re-minded that there have been gross abuses of human rights perpetrated in pris-ons and mental institutions under the guise of therapy. Hence, we should be ex-tremely cautious when we tread within these confines. To sum up, in policing, there is a gap between the expertise and technologypresently available and the practical competence and willingness needed to applythem. In corrections, the situation is the reverse. With respect to the predictionof behavior, demands are pressed upon scientists, who cannot meet them in thepresent state of knowledge. Actually, meeting these demands is left to practition-ers who routinely apply prediction instruments while ignoring their limitations.In the worst cases, they abuse their powers to experiment with so-called thera-pies that would make scientific experts shudder. Expert Witnesses and the Criminal LawThe part played by expert witnesses, in the law, has been increasing ever sincethe beginning of the 20th century. Jasanoff (1995, p. 43) quotes figures to the ef-fect that 60% of the cases in a Massachusetts Superior Court relied on one kindof specialized testimony. This figure, it must be remembered, refers to all casesand not only to criminal law cases. The situation, as we shall see, is markedly dif-ferent with respect to the criminal law.
132 Jean-Paul BrodeurResearch 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 par- ties in conflict who play the prominent role in investigating the facts. Althoughjudges 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 pro- cedure, 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 re- quest 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 generatedby highly “mediatized” cases, expert witnesses are pitted by the defense againstthe prosecution and ultimately win the day because rich defendants can affordthe best experts. This may occur in a few “affaires célèbres, ”but this perception isvery 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 forhis Ph.D. Dissertation studied the role of expert witnesses in the criminal divi-sion of the Québec Court in the district of Montréal (this court processes thehighest volumes of criminal cases in the province of Québec). I was the super-visor of this thesis and will present my own interpretation of his findings. The research examined a random selection of 10% of the court cases pro-cessed every fifth year from 1960 to 1990. In all, more than 10,000 cases wereanalyzed; Poirier retained 7,557 in the sample and, of these, 815 involved thetestimony of expert witnesses. In 1960, 4% of all cases involved expert testi-mony; this figure had increased to 12% in 1975 and remained at this levelthrough the following years. The proportion of cases where expert witnesses tes- 7 In many US jurisdictions, defendants who plead guilty are given the choice of the judge whowill impose a sentence upon them. They are threatened with having to appear before judgesknown for their severity if they plead not guilty, thereby, running the risk of being found guilty asthe result of their trial. Upon conviction, they then receive a heavy sentence, compared to the onethat they might have negotiated by pleading guilty.
Expertise Not Wanted: The Case of the Criminal Law 133 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 involv- ing 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 criminol- ogy—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 of- fender. 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 in- stances. 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 psychiat-ric expertise to determine whether an accused can stand trial (56% of testimo-nies by psychiatrists) and to determine whether the accused was responsible forhis behavior at the time of the offense (only 8% of these testimonies), is unex-pected. One would expect that the type of questions raised on the ability of apresumed offender to stand trial would also be asked in respect to their responsi-bility for an offense. A possible explanation for this discrepancy is that these dif-ferent kinds of expertise are not requested by the same party. The responsibility ofthe offender is rarely questioned by the defense because of the risk of havingthem declared insane and committed to a mental institution for an indetermi-nate period of time (more on this later). However, the prosecution or the judgeare not committed to the defendant’s interest; consequently, they are much lessreluctant to ask whether this person is fit to stand trial and to have them com-mitted 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 ofwhether 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 necessarilymean that the defendant pleaded guilty and that there was no preceding trial, the figure of one-third of the trials involving expert witnesses might be slightly lower. This would be due to the factthat at least some experts may have testified at a sentencing hearing that was not preceded by atrial.
134 Jean-Paul Brodeurclare an accused unfit to stand trial and their intervention often results in mak-ing the offender fit for punishment. The public perception of the psychiatristwho spares the offender a sentence of imprisonment by denying their criminalresponsibility is not borne out by the facts. Actually, there is evidence that psy-chiatrists 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 tech- nical 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 re- quired 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 practi- tioners 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 re- spect 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 excep- tion 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 testi- monies 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. How- ever, 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 of- fender, the proportion of the requests for expertise by the defense and the judge re- spectively 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. Gen- erally 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. Psychi- atric expertise was equally likely to be requested by the defense (24% of re- quests) and the prosecution (23%), with a higher likelihood to be requested by the judge to decide the ability of the defendant to stand trial.
Expertise Not Wanted: The Case of the Criminal Law 135OutcomesThree conclusions follow from this research. The overwhelming conclusion is that expert testimony is presented on behalf of the prosecution. This conclusion isconfirmed by a more recent assessment by a Québec Crown Prosecutor. He as-serts 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.). Thisimbalance is largely rooted in economics. Most of the material expertise, re-quested by the prosecution, is provided free of charge, the experts being criminaljustice functionaries. In the event that the defense would be willing to pay forthis expertise, it has little relevance for exculpating the defendant. Being pro-duced for the State Prosecutor, it is geared for the proof of guilt. As for the kindof experts who enjoy the favor of the defense—psychiatrists—their fees are gen-erally very high and cannot be afforded by the average defendant. Jasanoff(1995, p. 46) cites the case of a Manhattan psychiatrist and neurologist whoearned as much as US$ 200,000 in 1983 from his work as an expert witness andlegal consultant. Second, it also appears that when the defense has recourse to expert psychiat-ric testimony, it uses it against the most vulnerable of crime victims, that is, vic-tims of sexual assault. The fairly high percentage of the use of psychiatrists bythe defense in such cases (39%) is also indicative of the economic status of theaccused. Finally, a great number of the special witnesses testifying on behalf of theprosecution 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, DavidMilgaard, and Guy-Paul Morin—were wrongfully convicted of first-degree mur-der and officially cleared by the court, after having spent many years in prison.The public inquiries conducted into the circumstances of their convictionsstressed the role of so-called expert witnesses as afflicted, as were the police, bytunnel vision. In all fairness, however, it must be stated that the last lingeringdoubts on the guilt of two of these wrongfully convicted offenders were finallydispelled by DNA testing, that is, by an expert procedure.A Replay of Weak ExpertiseThere is one postscript that must be added to the rise of experts in the weaksense, who rely mostly on technical knowledge derived from their experience.Until 1997, the evidence of at least two psychiatrists was required for having anoffender declared as “a dangerous offender” in Canada, thus, making this of-fender liable to imprisonment for an indeterminate amount of time (Canada,Criminal Code, 1996, and preceding, s. 755). This was changed drastically byBill C-55 (Canada, Statutes of Canada, 1997). The law now states that thecourt indeterminately jail an offender for whom it is of the opinion that thereare reasonable grounds to believe that this offender might be found to be a
136 Jean-Paul Brodeurdangerous or a long-term offender. The court’s opinion is to be based on an as-sessment submitted by the person “directed” by the court to be the custodian ofthe offender and “who can perform an assessment, or can have an assessmentperformed by experts” (Canada, Criminal Code, 1998, s. 752.1). Not only can aperson be declared to be a dangerous or long-term offender upon the assessmentof just one person, thus, making these persons liable either to indeterminate sen-tencing or long-term supervision in the community, but the qualification of theperson performing the assessment is not specified beyond the fact that it is theperson to whom the offender is “directed” by the court and “who can perform anassessment.” To have a person declared as a dangerous or a long-term offenderone 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, whichwe have been describing. To sum up, most experts testify for the prosecution and they display weak ex-pertise prone at times to tunnel vision. When strong expertise is needed to de-cide whether an offender will be jailed for an indeterminate period of time, thelaw dispenses with experts as much as it can. Expert Systems and the Criminal LawThere is a third area where expertise has numerous interfaces with the law. Thisarea is known under the general designation of information technology and thelaw, to borrow the title of the reference bibliography published by the Istitutoper la documentazione guiridica (1992) of the National Research Council ofItaly. The scope of this bibliography—two volumes totaling 475 pages—indi-cates the magnitude and vitality of the field. In addition to computerized data-bases and automated legal reference systems, the field comprises of jurimetrics,automated analyses of legal texts (Martino, Natali, & Binozzi, 1986), expertsystems in law (Lovegrove, 1989; Martino, 1992; Susskind, 1987, 1993,1996), and other applications of artificial intelligence in law (Gray, 1997). Anexpert system is a computer program that has a knowledge base, an inferenceengine, and interfaces for obtaining specific information; its goal is to provide areasoned answer to a specific problem (e.g., what kind of sentence to imposeupon an offender in a given set of circumstances). Although there were at-tempts, in Canada, to develop expert systems in criminal law, particularlywithin the field of sentencing, all such systems addressed very narrow problemsand were used only by researchers on an exploratory basis. None is presentlyused by the criminal courts, nor has been.Empirically Based Sentencing GuidelinesThere were, in Canada, two projects that would fall under the heading of infor-mation technology and the criminal law, that were developed beyond the experi-
Expertise Not Wanted: The Case of the Criminal Law 137mental stage. One was articulated by Professor A. N. Doob of the University ofToronto (Doob & Park, 1987) and the other by Professor John Hogarth and hiscolleagues 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 intheir conception and can be described as descriptive and empirically based sen-tencing guidelines intended for judges.9 Such guidelines are submitted to sen- tencing judges as a remedy against unwarranted disparity, perceived as a funda-mental problem in US and Canadian criminal courts. Sentencing disparity isunwarranted when two offenders, charged of the same offense committed insimilar circumstances, receive markedly different sanctions (e.g., one is given afine, and the other a period of imprisonment). Empirically based descriptiveguidelines take the form of a sentencing database that describes sentencing prac-tice, that is, what kinds of sanctions are imposed on offenders for all offenses onwhich data can be collected. These guidelines are based on the assumption thatsentencing disparity is caused by the fact that sentencing judges work in the rela-tive isolation of their courtrooms and are unaware of the tariffs that their col-leagues impose for a given offense. It is then believed that once provided withthis information, judges will adjust to the sentencing trends thus revealed, andthat sentencing disparity will be reduced. Two Promising Projects: Hogarth and DoobThe 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 providean assessment of its value and use by the legal community. The SDS was com-posed of five computerized files, its heart consisting of File 1. This file containedapproximately 70,000 sentences imposed by various criminal courts in BritishColumbia and was updated biannually. It provided statistical information on therange of trial sentences for particular offenses and offenders and allowed the userto display information in the form of either graphs, tables of dispositions, or on-line summaries of individual cases. It incorporated 129 offenses from all penalstatutes in Canadian law. The user of the database was able to specify the searchcriteria in terms of the offense, age, and sex of the offender, and the existence orotherwise of a criminal record. File 2 displayed concise summaries of over 1,600Court of Appeal decisions. File 3 reported the state of jurisprudence in respect toa large series of mitigating and aggravating factors in sentencing. File 4 was anelectronic textbook on sentencing law and File 5 contained a fully detailed direc-tory of all correctional institutions and offender counseling programs in theprovince. 9 For a detailed presentation of such guidelines, see Chapter 11 of the Report of the CanadianSentencing Commission (Canada, 1987).
138 Jean-Paul Brodeur I went into some detail in my description of this sentencing database to showthat it did have the potential to usefully assist the sentencing judges and eventu-ally to reduce unwarranted disparity. The same is true of Professor Doob’s data-base, which ranged over sentences imposed by Canadian Provincial Courts andCourts of Appeal in five different provinces. Yet, both of these projects are nowdefunct 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 un- shakeable belief that every case is unique and requires an individualized ap- proach. 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, al- though 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. Ac- cording 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 topresent what they had learned to the court. Second, the independence of the judiciary is the defining principle of themagistrates’ ethos. Not only is this principle applied collectively, thus, implyingthat as a group magistrates maintain a distance between themselves and any out-side influence, but it also has a strong impact on individual magistrates. AsHogarth and Doob eventually found out, judges are very individualistic and arenot particularly interested in learning the sentencing practices of their col-leagues, unless of course they belong to a higher court and may break their owndecisions on appeal. Finally, the legal community has a keen sense of its corporate interest, whichbinds all of its members over and above their differences. All judges rememberthat they were once lawyers. Therefore, when it was contemplated to providethem with personal computers storing sentencing data, they were very reluctantto monopolize a tool to which Crown Prosecutors and defense counsels were tohave limited access. More importantly, perhaps, judges insist on being influ-enced in their sentencing decisions by members of their kind, that is, by lawyers.Lawyers may present expert witnesses, but through cross-examination, they re-main master of the game. It was feared by the judiciary that outsiders wouldhave unmediated access to them through what was displayed on computerscreens, thus, undermining the monopoly of the legal profession over court out-comes. In other words, the computer database was perceived by judges as an un-
Expertise Not Wanted: The Case of the Criminal Law 139wanted surrogate of statisticians and social scientists directly intruding into theirchambers. EpilogueWhen Professor Doob finally convinced himself that judges were not really in-terested in learning what they were mutually doing through the sentencing data-base that he was developing for them, he terminated his project. Upon learningthe same lesson, Professor Hogarth attempted to recycle his project for the bene-fit of practicing lawyers. For reasons that were expressed above, this recycling didnot 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 isrepeatedly predicted and its impact on the law is foreseen to be massive. Withrespect to the criminal law, I cannot share this optimism. Systemic sentencingexpertise, constructed with the assistance of information technology, is yet sim-ply unwanted in Canada. What is presently happening in the field of criminaljustice 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 criminallaw. I will now review their contribution to policymaking and, more particu-larly, to the formation and the reform of the criminal law. In this regard, Pub-lic Commissions of Inquiry, the word being at this point understood in itsbroadest sense, have traditionally played an important role in governance, andin the making of policy and law in Anglo-Saxon and British Commonwealthcountries. According to The Canadian encyclopedia, the Commission on En-closures appointed by the English King Henry VIII in 1517 may be the dis-tant forerunner of the Canadian Royal Commissions of Inquiry. In an oftenquoted article entitled Government by commission, the US sociologist DanielBell argued that by consulting the public these Commissions provided aforum for open discussion of government policies and were, thus, an alterna-tive to the Seraglio, where “decisions are taken in secluded rooms by smallgroups of men” (Bell, 1966, p. 9). This positive assessment contrasts withSheila Jasanoff’s view of scientific advisory committees as forming a relativelyindependent “fifth branch of government” (Jasanoff, 1990).10 I will first de- 10 Jasanoff’s book The fifth branch. Science advisors as policymakers is not about Public Com-missions as such, but focuses on the scientific advisory committees of two US Federal RegulatoryAgencies, the Environmental Protection Agency and the Food and Drug Administration (Jasanoff,1990, p. vii). However, since Public Commissions are heavily staffed with scientific researchers andact in an advisory capacity toward government bodies, her view of the scientific advisory commit-tees that she studied also applies mutatis mutandis to Commissions of Inquiry.
140 Jean-Paul Brodeurscribe the various public commissions and then proceed to an assessment oftheir impact.Public Commissions of InquiryAs I previously stated, Public Commissions of Inquiry play an important role inrespect to governance in Anglo-Saxon countries.11 Such Commissions bear dif-ferent designations in various English-speaking countries—“Royal Commis-sions” in the United Kingdom, “Presidential Commissions” in the USA, “Com-missions of Inquiry” in Canada12—but they share common institutional fea-tures.13 I shall adopt the designation used in my own country—Canada—torefer to these bodies. Commissions of Inquiry are appointed by law, at the request of the govern-ment. The role of the executive branch in the appointment of Presidential Com-missions is greater in the USA than in “Westminster style” democracies.14 Theyshare the following features: (a) They are headed by one or several Commission-ers, who generally are not chosen on the basis of their knowledge of the issues tobe addressed, but on the basis of political affiliation, prestige, and representationin relation to the different constituencies having a stake in the issue(s) to be ad-dressed by the Commission. In the best of cases, the Commissioners are ap-pointed for their reputed good judgment. In Canada, the Chairperson of aCommission of Inquiry is habitually a member of the judiciary; (b) they have aresearch staff, appointed for the duration of the Commission, and they also hireconsultants, usually from the scientific community; (c) they consult the publicthrough an elaborate process (public hearings, hearings held in camera, public 11 In his study of US Presidential Commissions, Frank Popper quotes an excerpt from USSupreme Court Justice Felix Frankfurter’s book The public and its government. Justice Frankfurter as-serts that “the history of British democracy might, in considerable measure, be written in terms ofthe 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 Commis-sions of Inquiry are also called “Royal Commissions.” The former Law Reform Commission ofCanada has recommended that the term “Royal Commission” be dropped. Some 147 Commis-sions out of the more than 450 Federal Commissions of Inquiry were, thus, designated as “RoyalCommissions” (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 compari-son between these Commissions and the British Royal Commissions. His conclusion is that “theresemblances between Presidential and Royal Commissions are clearly superficial,” the BritishRoyal Commissions being seen by him in a much more favorable light than the highly politicizedPresidential Commissions (Popper, 1970, p. 55). I believe that the institutional or formal resem-blances between these Commissions are undeniable. Furthermore, these Commissions tend to beviewed much more critically within the countries where they are respectively appointed, than else-where. 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 muchgreater in the USA than in most other democracies, no member of the US Executive Branch beingseated in Congress. In Canada, as in the United Kingdom, all Government Ministers are also, as arule, Members of Parliament.
Expertise Not Wanted: The Case of the Criminal Law 141and private submissions in writing); (d) depending on whether the Commissionis appointed to investigate wrongdoing, it is staffed by practicing lawyers actingas prosecutors during public or in camera hearings. There is one last feature,however, that varies from country to country. It is the degree of independencethat a commission enjoys in relation to the authority establishing it. Accordingto commentators of Presidential Commissions, these Commissions may not beas immune from interference from the Chief Executive as British and CanadianCommissions are from their governments (Lehman, 1968; Popper, 1970;Wilson, 1967). Having described the features shared by Commissions of Inquiry in commonlaw countries, I will now talk more specifically of the Canadian Commissions ofInquiry. However, what I have to say does not uniquely refer to the Canadian in-stitutions; it also applies, when properly put in context, to other countries thatuse 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 inven-tory 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 1of the Inquiries Act, since the birth of the Canadian Confederation in 1867. Thisfigure increases to 1,500 when we take into account the Commissions estab-lished 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 investi-gations and make reference to the Inquiries Act. Furthermore, since public in-quiries can also be appointed at the provincial and municipal levels, we end upwith a very significant number of commissions (more than 2,000). I shall addthat the word “commission” is used here as a generic term that also refers tolegally appointed bodies, such as government committees, task forces, or work-ing groups.ClassificationNeedless to say, not all of these commissions investigated matters related to thecriminal law. Commissions can be classified according to their function and totheir object. With regard to function, commissions can be divided into policyinquiries, which study a particular issue, and investigative inquiries, which in-quire into an event, generally one that shocked public opinion (Brodeur, 1984,pp. 15–19; d’Ombrain, 1997, p. 88; Schwartz, 1997). Policy inquiries may beproactive, that is, appointed before a problem reaches the dimension of a crisisdemanding immediate action; investigative inquiries are by definition reactiveand are established after the occurrence of a problematic event. Of late, mostcommissions have fallen in-between this division: They investigate a major scan-dal—for example, the blood supply contamination by the HIV virus—with aview of making recommendations to prevent the reoccurrence of such a situa-tion. Although there were non-investigative inquiries appointed before the
142 Jean-Paul Brodeur 1920s, the issues examined by these inquiries were mainly local and were toonarrow to be called policy inquiries. With regard to their objectives, NAC(1990, Vol. I, pp. xiii–xiv) classified commissions into four categories, whichoverlap in several respects: (a) inquiries investigating either major disasters anddisturbances or a crisis affecting a ministry; (b) inquiries on conflict situationsand on social or cultural issues; (c) inquiries that examine aspects of the econ-omy; (d) inquiries investigating some aspect of the public service, irregularitiesin specific government departments, or charges against officials in a department.Inquiries with a criminal justice interface can fall into all categories except thethird one (any inquiry into a crisis or a conflict situation may have criminal lawimplications). Distinguishing, when it is possible, between policy and investiga-tive inquiries, Figure 1 presents the average number of inquiries established peryear by each Federal Administration—identified by the name of the Prime Min-ister—since 1867. Three things stand out clearly: First, the number of commis-sions has declined drastically since its peak under the Borden Administration(1896–1911); second, the policy inquiries were more numerous than the investi-gations from 1920 to the early 1980s; third, the policy inquiries have now disap-peared, the last one having been appointed by Prime Minister Mulroney. After apeak under the Johnson Administration, there was a parallel decline in the num-ber of Presidential Commissions appointed in the USA, all Presidential Com-missions being policy inquiries (Popper, 1970, Appendix 1).Legal PowersThe legal powers of the commissions are fairly extensive. Commissioners areempowered to subpoena witnesses, take evidence under oath, and requisitiondocuments. The way in which these powers are applied is particularly impor-tant. Commissions can use the threat of imprisonment to force witnesses to tes-tify, even when their testimony is self-incriminating.15 Second, commissionshave used their power to requisition documents in a very extensive way, particu-larly when they are investigating secretive agencies, such as security and intelli-gence services. The one indisputable benefit of Commissions of Inquiry hasbeen the declassification of masses of documents that would otherwise have re-mained secret. 15 In Canada, the witnesses are offered what is called the “protection of the law.” It means thatno part of their testimony before the commission can be used in criminal proceedings againstthem, 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 thecommission is not admissible as evidence at their trial In the USA, commissions investigatingwrongdoing can grant immunity to a witness even if it was not asked for and can jail that personuntil they agree to testify. Such practices have given Commissions of Inquiry a mixed reputation inrelation to the respect of human rights.
Expertise Not Wanted: The Case of the Criminal Law 143
144 Jean-Paul BrodeurDuration and CostsCanadian Commissions of Inquiry are not permanent bodies. They conducttheir proceedings, however, over a lengthy period of time. Using a representativesampling of commissions (d’Ombrain, 1997, p. 97), I found that policy inqui-ries lasted on average 3.25 years, the investigative inquiries lasting a shorter aver-age of 1.66 years. The longest policy inquiry lasted nearly 7 years, while theshortest one lasted for 8 months. Generally speaking, Canadian Policy Inquiriestake a significantly longer time than US Presidential Commissions to fulfil theirmandate. This longevity of policy commissions can have serious adverse effects:Many commissions are appointed by a political administration that, by the timethe commission is ready to hand in its report, has changed. Since Commission-ers are political appointees, they lose all their clout with the new governmentand their report is shelved, regardless of the amount of time, money, and workthat went into producing it. There is too much variation in the costs of a commission for the average costto be meaningful. The most expensive policy inquiry cost nearly 60 millionCanadian dollars, while the lowest cost was below 100,000 dollars. The last pol-icy commission that was appointed—the Dussault/Erasmus Commission onAboriginal people (1991–1996)—is the costliest commission in Canadian his-tory. 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. Thisdoes not bode well for future policy commissions. StaffingAs I previously stated, commissions are headed by commissioners chosen largelyfrom the legal community on the basis of political affiliation. They are alsostaffed by researchers. It has infrequently happened that academics have been ap-pointed as Commissioners, the need for representation from the academic com-munity being then viewed as a relevant issue. In my experience, the research staffplays a key role. First, it conducts the research to be provided as support for thecommissioners’ recommendations. To all practical purposes, the research staffdefines the options from which the recommendations are going to be selected bythe Commissioners at their meetings. Second, it provides the initial drafts of thecommission’s report, which are reviewed with varying degrees of implication bythe Commissioners, In a few cases, the Commissioners may properly be said tobe the authors of the report; in a greater number of cases, the research staff is thereal author, the guidance provided by the Commissioner(s) being perfunctory.The important point is that, in most cases, commission reports are a blend of re-search, political expediency, and individual commissioners’ intuition. An impor-tant point should be made, however, in respect to the quality of the research un-dertaken in the context of Commissions of Inquiry. Although, these Commis-sions are usually staffed with dedicated personnel, the research greatly varies inquality. A large proportion of the research is performed by outside consultants,who belong to universities or the private sector. Unless academics are guaranteed
Expertise Not Wanted: The Case of the Criminal Law 145that their research will be independently published under their own name, thusbeing subjected to peer review, there is a significant proportion of them who takea mercenary perspective and produce work well below standards. For example,when I was Director of Research for the Canadian Sentencing Commission, Ihad to deal with academics merely resubmitting their own formerly publishedwork and even plagiarizing the work of others. Studies conducted by privateconsulting firms also vary greatly in their quality: in some instances, the largerthe firm, the lower the quality of research, which was entrusted to persons whowould not even have qualified as research assistants in a university. This is not tosay that the research published in the context of the proceedings of Commis-sions of Inquiry Jacks quality, which it generally does not. However, it reinforcesJasanoff’s point on the contingency of knowledge and on the difference betweenregulatory and research science (Jasanoff, 1990, p. 12 and p. 80, Table 4.1; thepioneering work on the contingency of knowledge is by Knorr-Cetina, 1981,p. 49 and p. 152).Permanent CommissionsThe Law Reform Commission of Canada (LRCC) was a proactive Policy Com-mission operating between 1971 and 1992. During this period, it tabled 33 re-ports before Parliament and also issued 63 working papers. The LRCC had anexcellent internal research staff and sponsored studies by external consultantsknown for their expertise. The review process of each study undertaken by, or forthe LRCC was very thorough, every document being reviewed by peers and go-ing through several stages of writing before its publication. The reports andworking papers published by the LRCC were, then, of superior quality. TheLRCC enjoyed a great international reputation and its publications were widelycirculated. It was abolished in 1992 by the “Tory” government, in the context ofdrastic budgetary cuts, but was reinstated as the Law Commission of Canada(LCC) in 1997, following a promise made by the Liberal party during its win-ning electoral campaign. However, the mandate of the LCC is much narrowerthan that of the LRCC and its profile has been, until now, so low that hardly anyCanadian outside a small circle, within the legal community, knows that it existsat all. To my knowledge, it has not yet issued any report.Commissions on Aspects of the Criminal Law and Criminal JusticeNeedless to say, only a small fraction of the 2,000 or so commissions that wereestablished since 1867 examined aspects of the criminal law. As we have stated,any commission that investigated crisis or conflict situations had potential rami-fications in the criminal law. I did not attempt to assess the number of thesecommissions. Limiting my count to the most important commissions, I comeup with the following results: Three important commissions were established be-
146 Jean-Paul Brodeurfore the confederation and some 31 after the confederation; to this sum, we mayadd 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 itsimportance.The Assessment of the Impact of the Criminal Justice CommissionsWithin the confines of this chapter, I cannot proceed to an assessment of all thecommissions 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 ap-ply is whether a particular commission has succeeded in generating legislation inline with its recommendations. Even this apparently simple criterion is difficultto apply, since there may be 20 years separating the publication of a commis-sion’s report and the enactment of a Bill of Law that is loosely connected to thecommission’s recommendations. It is, in these cases, difficult to assess with anyprecision what the Bill in question actually owes to the recommendations of theCommission that issued its report 20 years before the legislation was enacted. I will try to avoid such methodological difficulties by focusing on cases wherethey 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 commissionthat succeeded in generating legislation; the last, on a commission that utterlyfailed in this regard. After submitting these assessments, I will try to identify fac-tors that account for success and factors that may explain failure. The Work of the Law Reform Commission of Canada: A Systemic AssessmentThe 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 duringits 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 Billsponsored by the LRCC died on the order paper and the government that wascommitted to passing it was not reelected. Although there were many referencesto the reports and working papers of the LRCC in Canadian jurisprudence—theSupreme Court of Canada often referred to it—its failure to spur any legislativereform was an important factor in its demise in 1992. The other factor was thatthe LRCC had been specifically requested in 1991 by the Minister of Justice toexamine how to reform criminal justice in respect to the Aboriginal and what wecall in Canada the visible minorities, the term “visibility” referring to the color ofthe skin. Despite strong signals from the Ministry that it was not prepared tocondone the establishment of an independent system of Aboriginal justice com-pletely under the responsibility of First Nations people, the LRCC concludedthat this was the most promising direction for reform. The reluctance to meet
Expertise Not Wanted: The Case of the Criminal Law 147 the Ministry’s expectations may have played a role in the abolition of the Com- mission, although it is difficult to assess how significant it was.16The Issue of Incarceration: A Recurrent AssessmentIn this second case, it is also relatively easy to perform a systemic assessment. Inits 1987 report, the Canadian Sentencing Commission (CSC) quoted the posi-tion of the 16 most important bodies (1831–1983: Federal Commissions, Pro-vincial Commissions, Government Statements) that had previously studied in-carceration (CSC, 1987). There is not one of these bodies that is not critical ofthe effects of incarceration, which hardens criminals rather that deters themfrom reoffending. Again, there is not one commission that does not advocatethat incarceration should be used with more restraint. This was also the positiontaken by the CSC, which presented a comprehensive package of recommenda-tions to reform the criminal law to restrain the use of incarceration. The CSCwas no more successful than the appointed bodies that preceded it in moving thegovernment to take legislative action to reduce imprisonment. The situation is more dramatic in the USA, where incarceration has reachedunprecedented proportions (the incarceration rate tops 600 persons per 100,000adults; at least 1.7 million adults are in prison; together with Canada, the USAadmits more youths to custody than any other Western democracy, the USA jail-ing its youths for longer terms than Canada). Yet the Report of the President’sCommission on Law Enforcement and Administration of Justice (1967) hadstated 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 AdvisoryCommission on Criminal Justice Standards and Goals, which diagnosed “insti-tution-oriented corrections” as a failure and accordingly stated: The Commission believes that the most hopeful move toward effective cor- rections is to continue and strengthen the trend away from confining people in institutions and toward supervising them in the community. (US Depart- ment of Justice, 1973, p. 48f.)None of these pronouncements—nor many more that were to be made by USstate commissions—resulted in action curbing the exponential growth of incar-ceration in the USA. 16 I was personally involved in the process of follow-up to the Minister’s special reference in re-lation to the access to justice of Aboriginal and visible minorities. The Minister’s displeasure at thecourse for reforming Aboriginal justice advocated by the LRCC was then common knowledge.
148 Jean-Paul BrodeurThe McDonald Inquiry: A Partial Success StoryThe McDonald Commission conducted, in Canada, an investigation into alle-gations of wrongdoing by the Royal Canadian Mounted Police (RCMP) Secu-rity Service. At the time of the investigation, the Canadian Security Service wasnested within the RCMP, our national police force. The McDonald Inquiry wasestablished in 1978 and its several reports were issued in 1981. Its main recom- mendation was to abolish the RCMP and create a civilian security intelligenceservice that would be stripped of the legal powers granted to police organiza-tions, most notably the RCMP (Canada, 1981a, 1981b), This recommendationwas finally applied in 1984 through the enactment of the Canadian Security In- telligence Service Act, but not without a major struggle against the government’sobvious intent to thwart the main thrust of the McDonald Report recommenda-tions, which aimed to reduce the powers vested in the new civilian agency. Thegovernment’s first project—Bill C–157 (Canada, House of Commons, 1983;Bill C–157 was not made into legislation as such and numerous amendmentswere introduced to develop a new Bill: See Canada, Senate, 1983)—was seen assuch a perversion of the recommendations of the McDonald Commission bypublic opinion that it had to appoint a Senate Committee to amend its initialproject (Canada, Senate, 1983). The Canadian Security Intelligence Service(CSIS) was finally established in 1984 upon the recommendations of the SenateCommittee. A great number of the McDonald Report recommendations werediscarded with the creation of the CSIS. The House Special Committee ap-pointed in 1989 to review the CSIS Act tried to reactivate the spirit of theMcDonald Commission, but to no avail (Canada, House of Commons, 1990).With the exception of a very few recommendations, all of the 117 proposals ofthis Committee were rejected by the Ministry of the Solicitor General, which isanswerable to the CSIS in Parliament (Canada, Solicitor General, 1991).17 Al-though the framework developed for security intelligence by the McDonald In-quiry was applied only in part, the gist of its recommendations resulted never-theless 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 FactorsIn the case of investigative inquiries, such as McDonald’s, where policymaking isless important than identifying personal and collective responsibilities, the qual-ity of expertise only plays an indirect role in explaining why a commission suc-ceeds in generating law and, ultimately, in accomplishing reform. In the adver-sarial context of Investigative Commissions, is nonetheless the aggressive law-yers, rather than the experts who are the major players. Here is a list of factorsthat foster success. 17 Sources from the House Special Committee estimate that “two and one-half” of all its rec-ommendations were retained by the Ministry of the Solicitor General.
Expertise Not Wanted: The Case of the Criminal Law 149Public Opinion SupportThe overwhelming factor for success is the support of public opinion, whichcrucially depends on media visibility and a positive attitude from the press.Some of the most successful commissions have been, such as the McDonaldCommission, investigative bodies appointed to conduct an inquiry into a scan-dal that deeply shocked the public. Holding public hearings with star witnesseskeeps these commissions in the public eye and nurtures the support of the pub-lic. Another recent commission, which succeeded in achieving significant re-forms, investigated the very emotional question of the transfusion of bloodtainted by the HIV virus. The interest of the public and of the press, on thisissue, never wavered and many of the Commission’s recommendations werefinally implemented.The Weight of Past and Concurrent InquiriesWhen the McDonald Commission was appointed in 1978, the RCMP SecurityService had previously been the object of two investigative inquiries (Canada,1966, 1969a). The 1969 Mackenzie Inquiry had already recommended the re-placement of the RCMP Security Service by a civilian agency. More crucially,two provinces had appointed Commissions of Inquiry into RCMP Security Ser-vice abuses; these Commissions ran parallel to the McDonald Inquiry. In theprovince of Québec, where most of the RCMP abuses had taken place, the pro-vincial government appointed its own inquiry a few months before the federalgovernment finally did so, in order not to be upstaged by a province (Québec,1981).18 In Ontario, the RCMP Security Service was under investigation forhaving recruited doctors as informants and using their patients’ medical records(Ontario, 1980). Hence, by the time the McDonald Inquiry started its own in-vestigation, the RCMP Security Service was already under siege. It had been for-merly investigated twice, one of the previous inquiries having recommended itsabolition. Furthermore, it was under the very determined scrutiny of two pro-vincial commissions. In other words, the time was overripe for reform. The reoc-currence of a problem previously investigated plays a significant role in thebuilding up of a commission’s ultimate impact.LinkagesBecause of the fact that one previous commission had recommended the replace-ment of the RCMP Security Service by a civilian agency, this idea was alreadycirculating and was gaining acceptance, since the RCMP Security Service wasagain in deep trouble. According to my own interviews, the McDonald Com-mission tried to prepare the minds of the government officials for its recommen-dation to abolish the RCMP Security Service, which was thoroughly discreditedwhen its report was made public. Some members of the McDonald staff had alsoattempted 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).
150 Jean-Paul Brodeurcivilian agency, which would be staffed, during its beginnings, by ex-members ofthe RCMP Security Service. These attempts by the McDonald Commission, tobreak away from a commission’s traditional isolation and to initiate some formof negotiation with the persons to be affected by their recommendations, proveda major factor in its success. As we shall immediately see, the CSC paid a crip-pling price for having failed to break its way out of its insularity.The Canadian Sentencing Commission: An Almost Complete FailureHaving been the Research Director for the CSC and responsible for the writingof its report, I naturally took a keen interest in monitoring the implementationof its recommendations. The CSC report presented 91 recommendations mainlydesigned to remedy disparity in sentencing and to restrain the use of incarcera-tion through the development of sentencing guidelines. The sentencing guide-lines were grounded in a consistent declaration of the goals and principles of sen-tencing. The Commission also reviewed the maximum and minimum penaltiesfor all the offenses in the Canadian Criminal Code and related statutes. It rec-ommended the abolition of all mandatory minimum penalties and the reductionof all standing maxima. The only legislation that was distantly related to the CSC’s recommendationswas a Statement of the Goals and Principles of Sentencing that was enacted in1995—Bill C–41 (Canada, Statutes of Canada, 1995)—that is, eight years afterthe publication of the CSC’s report in 1987. The Statement blends all possiblegoals that sentencing could be following and is at odds with the one proposed bythe CSC, which emphasized the need for consistency in the Statement of theGoals and Principles of Sentencing. The sole measure embedded in Bill C–41 torestrain the use of incarceration, which was never contemplated by the CSC, isan oxymoron: a conditional sentence of incarceration to be served in the com-munity, that is, a non-custodial sentence of incarceration. Such a contradiction interms 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 to-day. Brodeur (1999) shows that there has been sustained legislative activity sincethe publication of the CSC’s report up to today. Here is a non-exhaustive list ofthe 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 equiv- alent of the US RICO Legislation): creation of a new offense.
Expertise Not Wanted: The Case of the Criminal Law 151 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 presump- tive 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’srecommendations. More particularly, the return to minimum penalties, the fa-cilitation of indeterminate sentencing, and the development of a sentencing pre-sumptive guideline in favor of incarceration all directly contradict both the letterand the spirit of the recommendations of the CSC. Furthermore, there is notone of these legal developments that was ushered by scientific expertise.19 Howand why did this happen?Losing FactorsIn contrast with the McDonald and Krever inquiries, the Archambault Commis-sion or CSC was a policy commission. It could even be argued that it was theparadigm case of the policy commission. Although it met with selected individu-als in camera, it held no public hearings and had no media profile whatsoever. Itsreport was received as a thoughtful piece of work in academic circles and is stillhighly regarded and used in university teaching.20 As we already noted, it wasdevoid of effects in practice. There are many reasons for this lack of effects, and Ishall 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 thenon sabbatical at the Centre of Criminology of this university. Mr. Heymann had just resigned fromthe US Department of Justice, where he was the highest-ranking civil servant and second only tothe Attorney General, Janet Reno. No longer bound by government solidarity, Mr. Heymann washighly critical of the “two strikes and you’re out” legislation that was then being passed at the fed-eral level and in many of the states. Basically, such legislation stipulates that an offender is to bejailed 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 develop-ment of such legislation. He answered that it had played no role at all, these laws being essentiallyinstigated 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).
152 Jean-Paul BrodeurPoliticizationThere are many ways for an inquiry to become politicized. The most commonone is to have the political authority that established it try to prescribe its orien-tations. To my knowledge, this never occurred during the proceedings of theCSC. Politicization took another form. The CSC was created at the end of themandate of the Liberal Party, which then formed the government. With the ex-ception of one academic, all of its nine Commissioners were associated in oneway or another with the Liberal Party, which had appointed them. Unfortu-nately, the Liberals lost the next election and the Commission had to report to a“Tory” Minister of Justice. Although the Minister never hindered the Commis-sion’s proceedings, he remained aloof and never showed any commitment to thework of the Commission. After having tabled the Commission’s Report very dis-creetly in parliament, the Minister’s first decision was to appoint a House Com-mittee headed by a Member of Parliament from his own party—DavidDaubney—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 fulfiltheir mandate, the CSC was far from the only one to have been appointed byone government and to report under another. Two of the most recent and costlyinquiries—the Dussault/Erasmus Inquiry on the plight of Aboriginal peoplesand the Létourneau Inquiry on the deployment of the Canadian Airborne Regi-ment in Somalia—were appointed by a “Tory” government and reported underthe Liberals. Both reports were shelved despite the considerable efforts that wentinto writing them. No LinkageThe CSC’s recommendations were bound to be resisted by powerful groups. It recommended curtailing the discretion of the sentencing magistrates by submit-ting them to the application of sentencing guidelines. It also proposed the aboli-tion of full parole, thus, threatening the powerful bureaucracy of parolingauthorities and parole officers.21 The Commission compounded these difficul-ties by utterly neglecting to establish any kind of working relationship with theprofessional groups that would be affected by its recommendations. The firstChairman of the Commission was so obsessed by the defense of its indepen-dence that he refused all offers by government publications to advertise theCommission’s call for submissions from parties having a stake in its mandate.The Commission worked in a vacuum and its recommendations also fell in avacuum. The CSC is the paradigm case of a Commission that presented its bookto the Minister and then severed any future relationship with the politicalauthorities that held power over the application of the report’s recommenda-tions. This severance of all links between a commission and the government isusually 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 per-sons convicted of murder apply for early release after serving a period of 15 years, rather than the25 years that was mandatory at the time.
Expertise Not Wanted: The Case of the Criminal Law 153bureaucratic machinery of government, which abhors change. No innovative re-form can spring from these quarters. For instance, the officers of the Ministry ofJustice decided to hold a seminar to study the CSC’s recommendations and theirimplications; the person chosen by the Ministry to organize the seminar was theex-Chairman of the Parole Board, which, following the CSC’s recommenda-tions, was to be abolished.Collision With Public Opinion PollsWhen the CSC was created in 1984 by the Liberal government, the public didnot yet suffer from “compassion fatigue” and was still sensitive to the need to useincarceration with restraint. Capital punishment had been abolished and re-placed by life imprisonment, with a possibility of being released on mandatorysupervision after a period of 25 years in prison. When the CSC issued its reportin 1987, both the government’s and the public’s mood had moved toward moreintolerance. Unfortunately, the moment of the report’s release coincided withthe campaign to reinstate the death penalty in Canada. To hold a free vote inparliament to reestablish the death penalty had been one of the much toutedpromises of the “Tories” during the election campaign. When the CSC’s reportcame out, it was criticized even by the Liberals. Its recommendation to shortenthe mandatory period of incarceration of convicted murderers was perceived asthrowing oil into the fire, thus, inciting the Members of Parliament to vote infavor of the reinstatement of the death penalty. As it actually happened, the poll-sters had misread public opinion as usual, and when they realized that, theMembers of Parliament voted against the reestablishment of the death penalty.Nevertheless, this coincidence between the publication of the CSC’s report andthe rekindling of the debate on capital punishment helped to push the reportfurther into the shadows. It also raises two important issues. The first issue is theever-increasing importance of pollsters and spin-doctors in the framing of thepublic debate. The second, is whether experts should accommodate their mes-sage and try to preempt the often devastating effects of public opinion polls.ZeitgeistThere is, however, much more involved in the failure of the CSC than publicopinion polls. Paradoxically, some early commissions that were appointed beforewe had begun to talk about the advent of the age of information or of the age ofknowledge were, at least in part, successful in generating reforms within Cana-dian criminal justice (Canada, 1956, 1969b; Québec, 1968). It now seems thatthe dramatic shift of the public mood toward intolerance, which we have beenexperiencing since the mid-1980s, is now neutralizing any emancipatory effectsof the knowledge work performed by the latest commissions. This change of theZeitgeist has been variously interpreted. It was branded in North America as thecoming of age of the “politics of resentment.” Whatever its interpretation, it im-plies a severance of the bond of civic solidarity that, not so long ago, still linkedthe convicted offenders with the convicting society.
154 Jean-Paul Brodeur Concluding RemarksAfter 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 oper- ations. 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 as- sessments not admissible as evidence in court, are routinely used. Second, the growth of individual expertise, of the kind that I just described, has largely out-paced 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 re- ducing 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 knowledgefor its own sake coincides with its investment in the self-formation of the humanspecies (p. 197f. and p. 210). As I read him, Habermas establishes a key connec-tion between knowledge and freedom (or self-realization) through the notion ofemancipation. Expressed in this terminology, my third conclusion is that exper-tise no longer serves an emancipatory interest in the field of criminal justice, as itis essentially used to pursue security, viewed as a set of limitations imposed uponthe freedom of others. Taken together, my three conclusions would point to theemergence of what could be called techno-managerialism in the field of criminaljustice. At the end of this chapter, I would like to state something about what I be-lieve to be the present predicament. One hears constantly that we have enteredinto the information age (Castells, 1996, 1997, 1998), the knowledge society(Stehr, 1994), or the millennium of intelligence. Although I basically agree withthese descriptions, I would like to introduce a caveat, to which I shall give thename of the “Berkeley Syndrome.” Bishop George Berkeley is, with John Lockeand David Hume, one of the three great British empiricist philosophers of the18th century. His name is forever associated with the enigmatic dictum “esse estpercipi, ”which is translated as “to be is to be perceived.” I will take this dictum atits 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, isnot the world as it is known, but the world as it is perceived. The crucial differ-ence 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 withcommon sense or, to borrow an expression from Edmund Husserl, with the Le-benswelt (the world as concretely experienced in actual life) . Although the idealof truth is never achieved under these rules, and even if this ideal loses some ofits significance under a view of science that is radically constructivist, epistemic
Expertise Not Wanted: The Case of the Criminal Law 155validity is at least pursued. However, the world is now increasingly perceivedwithin a sphere of pretended common sense or perverted Lebenswelt that has lostall immediacy and that is, in great part, under the spell of what we call in NorthAmerica spin-doctors, who manipulate common sense and manufacture percep-tions. Within this overheated sphere of conflicting and flicking perceptions, allscientific expertise dissolves like wax over fire. It has repeatedly been my experi-ence, over the last decade, that in North America policymaking in the field ofcriminal justice has been much more influenced by the policymakers’ beliefs onhow 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. Thenext 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, butthe expert on how they are perceived and mythologized for political ends. ReferencesBell, D. (1966, Spring). Government by commission. The Public Interest, 3, 3–9.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).Bonta, J., Harman, W. G., Hann, R. G., & Cormier, R. B. (1996). The prediction of recidivism among federally sentenced offenders: A re-validation of the SIR scale. Canadian Journal of Criminology, 38(1), 61–79.Brodeur, J.-P. (1984). La délinquance de l’ordre. Montréal, Canada: Hurtubise HMH.Brodeur, J.-P. (1990, June). Computers and the law. UBC sentencing database. Final report. Ottawa, Canada: Department of Justice.Brodeur, J.-P. (1994). La criminologie entre savoir et pouvoir. In Science ou Justice? Les savants, l’ordre et la loi. Paris: Éditions Autrement (Série Mutations/Sciences en Société No. 145).Brodeur, J.-P. (1999). Sentencing reform. Ten years after the Canadian Sentencing Commission. In J. V Roberts and D. P. Cole (Eds.), Making sense of sentencing (pp. 332–348). Toronto, Canada: University of Toronto Press.Canada. (1956). Report of a committee appointed to inquire into the principles and procedures followed in the remission service of the Department of Justice of Canada (The Fauteux Report). Ottawa, Canada: Queen’s Printer and Controller of Stationery.Canada. (1966). Report of the Commission of Inquiry into complaints formulated by George Victor Spen- cer (The D.C. Wells Report). Ottawa, Canada: Queen’s Printer and Controller of Stationery.Canada. (1969a). Abridged report of the Royal Commission on Security (The Mackenzie Report). Ottawa, Canada: Queen’s Printer and Controller of Stationery.Canada. (1969b). Report of the Canadian Committee on Corrections. Toward unity: Criminal justice and corrections. Ottawa, Canada: Queen’s Printer and Controller of Stationery.Canada. (1981a). Second report of the Commission of Inquiry concerning certain activities of the Royal Canadian Mounted Police: Freedom and security under the law (The Second McDonald Report, Vols. I & II). Ottawa, Canada: Minister of Supply and Services.Canada. (1981b). Third report of the Commission of Inquiry concerning certain activities of the Royal Mounted Police (The Third McDonald Report). Ottawa, Canada: Minister of Supply and Ser- vices.Canada (1985). Revised Statutes of Canada, c. I–11, s, 2. Ottawa, Canada: Minister of Justice.Canada. (1987). Sentencing reform: A Canadian approach. Report of the Canadian Sentencing Com- mission. Ottwa, Canada: Ministry of Supply and Services.
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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@example.com In July 1998, the Scientific Steering Committee of EUROTRAC, the largest European research project on tropospheric air pollution problems, made an un- usual decision. Its members, all of them renowned atmospheric scientists, ac- cepted a historical project on air pollution as a subproject. EUROTRAC was es- tablished in 1986 to support the scientific understanding of emissions, trans- port, 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 sub- projects dealing with laboratory and field experiments, computer simulationprojects, 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 Tropo- spheric Air Pollution Problems and Air Pollution Abatement in Europe since 1945 (TRAP45) became the 12th subproject of EUROTRAC-2; its purpose was toinvestigate historical perspectives of air pollution and air pollution control inpost-war Europe. In particular, its goals were to analyze roots and causes of airpollution problems in Europe, to support the integration of information andknowledge on air pollution, and to improve the identification of shortcomingsor neglected problems regarding air pollution control (Heymann, 1998; for fur-ther details see http://www.gsf.de/eurotrac/index_subprojects.html). It appears somewhat surprising to include historical research in an atmos-pheric science research project. Air pollution research has traditionally been afield dominated by experts from the technical and natural sciences. Is there anyneed for historical expertise to support atmospheric sciences and air pollutioncontrol policy? What are the historical questions that need to be answered andwhat can historians (and, more generally, social scientists) contribute? There isgeneral agreement that scientific expertise is needed for future air pollution con-trol. But, it is less clear what kind of knowledge and expertise is needed. Scientific experts have struggled to help control air pollution. They have beeninvolved in all major steps of problem analysis and in the formation of air pollu- 159
160 Matthias Heymanntion control policies (Jasanoff, 1990; Salter, 1988; Wolf, 1986). But, in spite ofseveral decades of environmental research and environmental policy and despitean enormous growth of scientific knowledge and environmental legislation, airpollution problems remain among the most important environmental concernsin Europe. Emissions of sulfur and nitrogen oxides, volatile organic compounds(VOCs), and carbon monoxide still cause problems of acid formation, photo-ox-idant pollution (e.g., ozone), and eutrophication (by the deposition of nutrientsin ecosystems). Emissions of chlorofluorocarbons (CFCs) and other compoundsthreaten the ozone layer in the stratosphere. Also, emissions of carbon dioxide,methane, and other pollutants may cause global warming. There is commonagreement that there is still a lack of perspectives for comprehensive solutions tothese problems (Grant, 1999; Schneider, 1998). In this chapter, I argue that air pollution has been perceived mainly as a tech-nological problem, to be delegated to technical experts, such as engineers. Onlyrecently, and with much reluctance, has it become clear that the problem is notonly technological, but involves experts outside the technical domain, such aseconomists, social scientists, and even historians (Miller & Edwards, 2001; Stehr& von Storch, 1999). Despite the spreading of this insight, the need for socialand historical research on air pollution control has rarely been recognized. When Air Pollution Became a ProblemAir pollution is not a new problem. It has received growing attention, particu- larly 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 emissionsheavily affected the local environment. Most attention in the 19th and early 20th century focused on smoke pollution, though the deleterious effects of sul-furic acid, formed from sulfur emissions, was known by the mid-19th century.The construction of high stacks became the most important measure to relievelocal pollution. Due to growing coal consumption and growing industrial activ-ity, however, pollution problems continued, increased, and affected ever largerregions. More effective abatement approaches remained elusive. In 1927, a com-mission on smoke pollution in the Ruhr area summarized the “deplorable result(...) that yet no means exist to remove, from the smoke gases, the sulfuric acidwhich is so harmful to plants. (...) The fight against smoke damages, which is anespecially important goal, has to be considered hopeless for the time being.”(Spelsberg, 1984, p. 159; translation M. H.). Little change occurred until WorldWar II. After the war, dust and sulfur dioxide concentrations reached intoler-able levels in industrial and densely populated regions such as the Ruhr area. Pol-lution problems caused increased political attention and motivated the introduc-tion of air pollution control measures, mainly the construction of higher stacks
Air Pollution Control 161Figure 1. Estimated costs of environmental pollution in Germany in the early1980s 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 fol- lowing years, industrial stacks reached a height of up to 300 m; thus, largeshare of pollutants was transported away over great distances (Prittwitz, 1984).These measures proved very successful. By the 1960s, atmospheric dust and sul-fur concentrations in the Ruhr area were reduced significantly, though sulfuremissions 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 reducedsharply within a few years in Germany, and in many other countries in WesternEurope, in the USA, in Canada, and in Japan (Organisation for Economic Co-operation and Development [OECD], 1991; United Nations Environment Pro-gram [UNEP], 1993). In the Ruhr area, the average concentration of fellfrom approximately in 1964, to approximately in 1980,and in 1988 (Brüggemeier & Rommelspacher, 1992, p. 69). Emis-sions of nitrogen and VOCs, in contrast, kept rising until the late 1980s andstagnated in the 1990s. Most experts believe that emission levels of these com-pounds are still far too high in many regions (United Nations Economic Com-mission 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 degrada-tion and building damage caused by air pollution are still ubiquitous throughoutEurope. Air pollution remains one of the most troublesome environmental prob-
162 Matthias Heymannlems in the European Union (EU). Air pollution in Germany is believed to causegreater monetary damage than any other environmental problem (Figure 1).Problem Solving With Technology Anthropogenic air pollution is caused by technical processes and has been con- sidered mainly a technical problem. Since the 19th century, air quality control efforts have focused on technical means, such as high stacks, improved combus- tion techniques, and filter technologies (Brimblecombe, 1987). By approxi- mately 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 toreceive the award (Spelsberg, 1984, p. 90ff.). All efforts to provide better com- bustion techniques remained insufficient to control air pollution. Smoke-freecombustion proved impossible. High stacks appeared to be the best compromise to reconcile the conflictinginterests 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 mfor industrial establishments in urban areas (Brüggemeier, 1996, p. 112f.). Last-ing disputes on the effects of air pollution were raised in the case of the metal-lurgical works around the Saxonian town of Freiberg. In the 1840s, the govern-ment of Saxony funded comprehensive scientific investigations by Stöckhardt inTharandt near Freiberg. These investigations confirmed the deleterious effects ofthe polluted air. As restrictions of production were to be avoided, in 1860, a60 m stack was built. Twenty-nine years later, in 1889, a new 140 m stack waserected, 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 sizeof the areas affected by air pollution (Andersen, 1996; Andersen, Ott, &Schramm, 1986; Brüggemeier, 1996, p. 161ff.). Numerous experiments withadditional devices, such as condensation chambers, subterranean canal systemsto divert smoke, or improved ovens, had been performed in Freiberg, but nomeasure proved successful enough to effectively reduce the emissions (Brügge-meier, 1996, p. 192). Prior to World War I, electric dust filters with an efficiency of 98% wereavailable but very expensive to apply (Brüggemeier, 1996, p. 214). Likewise, theremoval of sulfur was a matter of research. In 1933, the London Battersea powerstation was equipped with a sulfur washing device that needed 35 tons of water
Air Pollution Control 163from the Thames for 1 ton of burned coal. It proved costly and inefficient andwas abandoned soon after (Wey, 1982, p. 192f.). After World War II, when pol-lution levels reached new dimensions, filter and desulfurization technologies be-came an important feature of air quality control policy. While efforts grew rap-idly 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 technologiessuch as desulfurization and denitrification techniques to reduce sulfur and nitro-gen emissions of large power plants. Elsewhere, the catalytic converter, alongwith more efficient engine technologies, became the major hope to control vehi-cle 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, eco- nomic 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 cen- tral government in Berlin, which often corrected decisions of local administra- tions with stronger interest in environmental protection. “As a result, environ- mental 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 es- tablishments 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 pro-vide. As a consequence, traditional neighborhood rights were “abolished in al-most 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 intendedboth to protect industrial development and avoid intolerable levels of environ-mental pollution (Prittwitz, 1984, p. 50ff.). Such regulations involved indefinitelegal terms that implied a flexibility of interpretation and transferred the respon-sibility of solving conflicting interests from the governments to local administra-tions and courts (Wolf, 1986). In Germany, a gradual increase of emissions waslegitimized by allowing industrial establishments to pollute the air according tocommon local conditions (Ortsüblichkeit). As air pollution had quickly become acommon local condition in many regions, an increase of air pollution appearedlegally justified. Local administrations had to grant permits for the construction
164 Matthias Heymann of industrial establishments. They could demand technical requirements such as high stacks in order to guarantee a minimum protection in the affected neigh- borhood. 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 pro- tection 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 pol- lution 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 effec- tive) 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 Ger- man 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 obliga- tion of the government providing the legislator with far more opportunities for legal intervention. The law was received with considerable enthusiasm by com- mentators, 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 lev- els (Müller, 1986, p. 186ff.; Wolf, 1986, p. 161ff.). The impact of the law re- mained very limited in the first years. As Mayntz (1978) explained, the limited impact was due to implementation problems. Responsible authorities lacked per-sonnel, expertise, and technical information and equipment to monitor air pol-lution. Furthermore, due to limited resources the authorities had to fear involve-ment in legal cases. Mayntz concluded that these conditions “nearly compelled (the authorities) to avoid conflicts and limit administrative costs” (p. 53). Never-theless, after considerable political struggles the Regulation of Large Burners (Großfeuerungsanlagenverordnung) was finally launched in 1983 and compelledlarge 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 ratherdisparate matter due to the increased number of national and international regu-lations and norms. In the mid-1980s, German environmental legislation hadadopted about 1,350 different norms related to pollution control. This set ofnorms has been described as a “messy collection of highly different and specific
Air Pollution Control 165regulations” (Sammelsurium höchst unterschiedlicher Spezialregelungen) and as a“chaos of norms” (Normenwirrwarr). (Wolf, 1986, p. 19, p. 186). A unified andconsistently structured environmental legislation has not yet been achieved(Kloepfer, 1994). Under Control? As early as the 19th century, damages caused by air pollution motivated system- atic 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 rela- tion of air pollution and damages that could be established with scientific evi- dence. 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 po- litical 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 sci- entific research and consultancy” (Gilhaus, 1995, p. 399). Authorities lacked measurement technology and scientific competence. The amount and quality ofair quality measurements remained poor and reduced the credibility and politi-cal 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 ananalysis of contemporary technical literature, he considered a technical solutionof smoke pollution possible at that time. In his interpretation, air pollution con-trol was an organizational, not a technical problem. “The bottle-neck (of an ef-fective strategy against smoke pollution) was the coordination and organizationof an adequate abatement strategy.” It mainly lacked a “constructive dialogue” oftechnical and legal experts and a clear responsibility for smoke reduction. Airpollution became a ubiquitous and growing problem, because no political groupor authority existed that would have been willing, and able, to establish adequateorganizational 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 beganto play an important role, not for the abatement of air pollution, but for legiti-mizing industrialization and creating acceptance for its negative impacts. Ac-cording to Stolberg, the question of tolerable pollution levels could not beanswered with scientific rigor, but had to be based on value decisions. Whereas
166 Matthias Heymannstatements and recommendations from scientists carried authority, environmen-tal interests and arguments of the local population often remained unheard. As aresult, scientists helped “to make the pollution of air and water acceptable as anindispensable consequence of striving for progress, prosperity, and labor”(p. 304). A similar tendency of professionalization of expertise and a shift of po-litical influence was observed in the 20th century. According to Wey (1982), theinvestigation and discussion of air pollution problems shifted from political orpublic institutions to scientific conference rooms. The problem of air pollutionwas gradually transformed from a matter of public interest and debate to amatter of expert discourse. As a result, two different approaches to environmen-tal protection existed and remained separated: conservation of nature and tech-nology-oriented environmental protection. These strategies never became linkedand integrated into a consistent concept of pollution control (p. 13ff.). Stolberg, Wey, and Wolf described a de-politicization of pollution control inthe 19th and 20th century that lasted until the 1970s. Developments since the1970s, on the other hand, have been interpreted as a re-politicization of pollu-tion control (Müller, 1986, p. 56ff.; Wolf, 1986, p. 161ff.). With the rise of theenvironmental movement, political interest in environmental matters increased.While scientific expertise apparently contributed to a de-politicization of pollu-tion control up to the 1970s, the re-politicization of environmental matters didnot reduce its importance. Quite to the contrary, investments in policy-orientedresearch grew considerably. Scientific expertise became a matter of great publicand political interest.Research After 1945: Who Are the Experts?Growing air pollution problems fostered an extraordinary growth of air pollu-tion research in post-war Europe. Knowledge about air pollution was largely in-sufficient in the 1950s. Data on emissions and emission sources were incompleteand unreliable (only for the largest sources did any data exist), little informationon atmospheric transport processes was available, and what was known lackeddetails about the effects of air pollution (e.g., critical levels of pollutant concen-trations). Concepts for comprehensive control strategies did not exist. Thegrowth of research on air pollution since the 1950s is mirrored by a rising floodof scientific publications. In the 1950s, the number of publications on air pollu-tion world-wide jumped from about 160 annually in the pre-war years to morethan 800 (Halliday, 1964, p. 3). The atmospheric scientist Stern counted about3,600 scientific publications on air pollution in the first half of the 20th centurycompared 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 (Bundes-ministerium für Forschung und Technologie [BMFT], 1990, p. 347; Wissen-schaftsrat, 1994, p. 138).
Air Pollution Control 167Figure 2. Number of scientific publications on air pollution (based on countspublished in Halliday, 1964; Spelsberg, 1984; Stern, 1977). Not surprisingly, post-war research efforts and scientific expertise on airpollution remained characterized by a technology orientation. The VDI estab-lished a commission for air quality control in 1957. The VDI Commission be-came the leading institution of expertise for clean air policy. It set up numerousworking 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 technolo-gies and technological problems (450 experts in 50 working groups). Expertsin the VDI Commission came from industry (48.2%), universities and researchinstitutes (23.8%), from governmental authorities (16.6%), and other institu-tions. The professional background was mainly engineering, physics, or chem-istry (76.2%), and to a minor degree medical sciences, biology, forestry, and soforth (14.5%). Economists, legal scientists, and social scientists played only amarginal role (Wolf, 1986, p. 147f.). The VDI Commission worked out tech-nical regulations supportive of legal air quality control measures. An example isthe technical regulation for the construction of high stacks that was set forth in1964 (Technische Anleitung Luft, 1964). It described the application of sophis-ticated calculation techniques for the determination of the required minimumheight of stacks (Prittwitz, 1984, p. 71f.).
168 Matthias HeymannFigure 3. Number of research projects on air pollution funded by the GermanFederal Environmental Agency (Umweltbundesamt) in engineering, the natural,and the social sciences (calculated from project listings of the German FederalEnvironmental Agency). In the period 1974–1995, approximately 64% of all projects on air pollution problems funded by the German Federal Environmental Agency were in engi- neering, 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 inter- nationalization beginning in the 1970s. In 1978 the European Monitoring and Evaluation Program (EMEP) was established by the UNECE. Hence, consider-able research efforts flowed directly into policy-related negotiations (UNECE,1995b). In 1988 the EUROTRAC program started to work and provided thestrongest European network of research in atmospheric sciences on troposphericair pollution. The extent of research efforts and the degree of organization and internation-alization in social research on tropospheric air pollution remained far lower. Theacidification 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 contribu-tions focused on problems of policy implementation and international coopera-tion. In the 1990s, the number of contributions from the social sciences onproblems related to tropospheric air pollution strongly declined. The interestrather shifted to topics related to the problem of climate change (van der Sluijs,1997). In 1996, the German government launched a new comprehensive re-search program on tropospheric air pollution problems. As one of four keyactions of the program socio-economic research on tropospheric air pollutionhad been planned. This part of the program, however, was never realized.
Air Pollution Control 169Supplementing 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 tech- nology. These technology-based approaches allowed rather quick reductions of emissions in important sectors. Environmental regulation forced the use of emis- sion 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 ap- proaches are inefficient, because investments in air quality control based on best available technology do not necessarily lead to a maximum reduction of environ- mental damages. The investment in best technology to reduce emissions in a particular sector may prove extremely expensive and less effective than invest- ments 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, arelikely 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 partic-ular importance, because large shares of total national emissions in Europe areexported to other countries (Sandnes & Styve, 1992). To recover from the shortcomings of technology-based approaches, from thelate 1980s scientists have suggested effects-based abatement strategies (Grennfelt,Hov, & Derwent, 1994). Effects-based reduction strategies have the goal of im-proving the cost effectiveness of air pollution control (best results with leastcosts). As emission reduction measures cause considerable expense, it was be-lieved to be a matter of great importance to provide knowledge on which atmos-pheric pollutants to reduce, and to what degree to reduce them, in order toachieve maximum environmental improvements. Effects-based strategies seek amaximum reduction of deleterious effects caused by atmospheric pollution,which may mean different emission reduction rates in different sectors and re-gions and not necessarily maximum emission reduction in all sectors and re-gions. These strategies, ideally, require full knowledge of the causal chain ofemissions and subsequent damages, that is, the causal relation of emissions,atmospheric transport, deposition of pollutants, effects, and damages caused bythese pollutants, and the monetary value of these damages. Atmospheric scien-tists in EUROTRAC and many other projects have focused on investigating therelation between emissions and effects with the help of computer-based atmos-
170 Matthias Heymann pheric simulation models (source-receptor modeling). Based on knowledge of actual emissions, meteorological parameters, atmospheric chemistry and deposi- tion 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 frame- work of the Convention on Long Range Transboundary Air Pollution (UN- ECE, 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, rela- tive to emissions in 1980, while Germany, Sweden, and the United Kingdomhave 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 environmentaleconomics. Economists have suggested substituting an environmental policythat is based on a large number of individual regulations by the introduction ofnew economic incentive systems compatible with environmental goals. Such in-centive systems could include economic instruments such as environmentaltaxes, for example, taxes on energy use or on emissions, or the purchase oftradable emission permits, which allow the owner to release a particular amountof emissions into the environment. The additional costs caused by environmen-tal taxes, or by the purchase of emission permits, set an economic incentive to re-duce emissions, if emission reduction measures (or energy saving measures)could be expected to be cheaper. Strategies based on economic incentives havethe goal of shifting environmental control from regulative policy to marketmechanisms and, thus, relieving governmental authorities from preparing, im-plementing, 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 environ-mental policy (Frey & Schneider, 1996; OECD, 1994). Signs of DiscomfortPoliticians, scientists, and environmentalists generally agree on the need for re-search on air pollution. Recently, signs of discomfort regarding the quality andapplicability of scientific results for environmental policy have been notable. Oneexample is related to the EUROTRAC project. At the EUROTRAC Symposium
Air Pollution Control 171in 1990, the responsible official of the German Ministry of Research and Tech-nology, Bernhard Rami, expressed some disappointment in his opening address.He emphasized that “at some time the need will be very clear to tell the publicwhat EUROTRAC has done and what its exact contributions to solving thepressing problems of air pollution are” (Rami, 1991). Two years later, reviewers ofEUROTRAC concluded at the EUROTRAC Symposium in 1992, that “verylimited progress toward this objective” had been made (Hardy & Muirhead,1993). EUROTRAC scientific research projects and researchers had producedthe impression that purely scientific interests dominated. The EUROTRACSteering Committee received the message with great attention. As a response, itset up a new subproject called the Application Project, to be carried out by a fewof the most prominent atmospheric scientists in EUROTRAC. The projectmembers had the task of synthesizing EUROTRAC research results, drawingpolitical recommendations from these results, and presenting them in a form tobe understood by environmental politicians (Borrell, Builtjes, Grennfelt, & Hov,1997). In EUROTRAC-2 a different strategy has been adopted to provide for anadequate science-policy relation from the beginning. Parallel to EUROTRAC re-search projects, an Environmental Assessment Group has been established, inwhich leading EUROTRAC and other atmospheric scientists and representativesof environmental authorities continually review and communicate progress inEUROTRAC. Signs of discomfort have also been notable with regard to research results inenvironmental economics. Former German Minister of the Environment, KlausTöpfer, considered research efforts inadequate: Scientists have engaged in quibbling over abstract and theoretical models under ideal conditions far removed from reality. Recommendations of con- trol 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 recommen- dations 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 potentialof economic incentives in environmental policy has been overrated and, by thesame token, the problems that come with the implementation of such economicmeasures 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 havebecome apparent. This is especially true for the emissions of mobile sources,which is still “one of the more pressing and intractable problems” (Grant, 1999,
172 Matthias Heymannp. 1). “Many air pollution problems persist because much progress in counteringthese problems is nullified by economic growth and especially growth in traffic.”(De Boer, 1998, p. 4) “Technological improvements are not adequate to offsetgrowth trends,” van Egmond concluded (van Egmond, 1998, p. 45). In a com-prehensive evaluation of environmental research in Germany, the German Sci-ence Council (Wissenschaftsrat) criticized the continuing dominance of “end-of-pipe technologies” to mitigate environmental problems, which do not affect orchange emission processes, but attempt to reduce emissions after they have beenproduced (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 firstglance, the reason may simply be attributed to the nature of the problem. Airpollution causes complex problems to be answered by technical and natural sci-ences. Still, the German Science Council raised concern on the low representa-tion of humanities and social sciences in environmental research which, hith-erto, appeared to be of “minor importance” (Wissenschaftsrat, 1994, p. 8). A factor of great importance may have been the availability and choice ofmeasures and indicators to describe the state of pollution. As long as smoke andsulfur concentrations were the leading (or even the only) indicators and investi-gations focused on urban and industrial regions, other pollution phenomena re-mained out of sight. Air pollution appeared to be a local problem of dust andsulfur. 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 gen-erally accepted indicators describing the effects of air pollution. Health effects ofair pollution could rarely be proved, and complaints about nuisances and ratherdiffuse feelings of unhealthiness, due to air pollution, were not taken very seri-ously. It was well-known that even low concentrations of sulfur in the atmos-phere were likely to affect ecosystems. But, this part of the problem appearedmarginal and was largely neglected until the late 1960s. The discovery of prob-lems such as dying fish populations in acidified Scandinavian lakes (in the mid-1960s), high ozone pollution levels in Europe (in the mid-1970s), dying forestsin Germany (in the early 1980s), stratospheric ozone depletion (in the mid-1980s), and global warming (in the late 1980s) consequently appeared like sci-entific sensations with strong repercussions in the public and in politics. Theseproblems had been predicted or analyzed long before, but had appeared mar-ginal and received little attention (Brimblecombe, 1995). But, scientific, politi-cal, and public perception of these events strongly changed. The development ofeffects-based abatement strategies in recent years may be considered a result ofthese shifts of perception.Communication Among Experts in Different FieldsIn recent decades, the EU has witnessed a fundamental shift in air pollutionfrom primary pollution problems (sulfur and dust) to secondary pollution prob-
Air Pollution Control 173 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 problemsstill are far from being solved. The shift of fuel use from coal to oil, and the shiftof major emitting sources from large coal burners such as power plants to scat- tered small sources such as vehicles, pose new problems for air quality control.Sulfur emissions could effectively be reduced by mitigating emissions of a com-parably small number of large sources (mainly power plants) with the help of ad-ditional technical equipment. These measures by-and-large did not affect indus-trial activity, economic growth, or consumer habits and lifestyles (but still causedconsiderable political struggles). In the case of nitrogen and volatile organic compounds the effective reduc-tion of emissions appears much more difficult. Emissions are caused by a largenumber of diverse and scattered sources and technology-oriented remedies suchas the use of catalytic converters in cars or fuel-saving motor technologies seemto be insufficient, because they are partly compensated by the growth of car sizeand mileage. Traditional control strategies, thus, appear to be of limited impact.More effective control strategies, in the future, may prove to require deeper in-terventions into economy and society, such as a reduction of emission activities,for example, the reduction of motor vehicle use. For instance, measures such as arise in fuel prices or the introduction of ecological tax systems have beensuggested and enacted in Germany. Future efforts to solve air pollution problemsmay require political, economic, and social processes in parallel with technicalmeasures. Another challenge that deserves attention is the relation of science and poli-tics. The production and the transfer of appropriate knowledge does not seem tobe a simple matter. Organizational problems such as those Uekötter (1996,2001) described in historical case studies are also to be observed in current re-search and control efforts. They raise the question of what institutions are re-quired to enable and improve the flow of information and mutual communica-tion, as well as to define future research needs and strategies. Problems of ex-change 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 in- side different fields of the natural, technical and social sciences, but most of all between these big domains of science. This deficit impairs the achieve- ments 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 researchingeconomic control strategies, atmospheric scientists focusing on tools for effects-based control strategies, and technologists working on abatement technology.How do such strategic options fit together? Are there any perspectives of integra-tion and combination? It appears to be a very difficult task for decision makers
174 Matthias Heymannto make their selection from a large pool of different strategic options, which aredeveloped and evaluated in completely different scientific communities thathave 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 sci- entific 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 re- search will not be a means to find comprehensive solutions to air pollution prob-lems. Still, it can contribute to air pollution management by improving our un- derstanding of the problem. Historians have the task of reviewing the percep-tions and approaches in atmospheric sciences and environmental policy of the past years, and highlighting the strengths and the problems of past develop-ments. Regional conditions, political structures, economic interests, and institu-tional settings as well as ways of understanding, beliefs, convictions, and ideolo-gies contribute to problem development, problem understanding, and problemmanagement in manifold ways. It is the strength of historical research to diveinto the depth of historical processes (which may be processes of a very recentpast) and reassess the multitude of factors and causal relations. Historical expertise can contribute to identifying problems, improving theunderstanding of problems, and providing recommendations for policymaking.Such expertise may include recommendations related to questions, such as howair pollution problems changed in past years and what this may mean for theneed of future research efforts, or what problems of knowledge integration andscientific expertise existed and how these may be overcome in the future. TheTRAP45 project, mentioned in the introduction, is a small step in this direction.The acceptance of TRAP45 as a EUROTRAC subproject indicates an awarenessof the interdisciplinary nature of the air pollution problem. The development ofthe project, however, gives a pessimistic outlook. While the goals of TRAP45have been appreciated by the scientific community, its tasks could not be ful-filled in full scale by 2002 due to a lack of support by national and internationalfunding agencies.
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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 con- sidering the history of the modern expert. Andreas Føllesdal is interested in eth- ics 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 as- signing 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 compensa- tion for a whiplash, or the loss of smell? The authors propose to break with tradi- tion, 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 thelegal arena not as an expert witness, but as an expert on how to measure and rep- resent people’s judgments. Although the term “expert” derives from Latin, its modern designation forsomeone whose specialized knowledge and skills are called upon is rather recent.As Achim Landwehr argues, however, the modern expert had a precedent: thecommissioner in the early modern period. Landwehr refers to the 16th centuryVenetian commissioners who were sent out by the state when problems arosewithin the extensive Venetian territory on the Italian mainland. These commis-sioners were more or less educated patricians, but not experts with specializedknowledge. Such knowledge was rather acquired in the course of their assign-ment. Commissions are put into place by an authority as a response to a specialproblem or situation. In response, commissions produce reports and, thereby, es-tablish a truth. This was the case with the Venitian Sindici and continues to bethe case with commissions in the present-day. 179
Chapter 9 The Philosopher as Coach1 Andreas Føllesdal Department of Philosophy, University of Oslo, Norway firstname.lastname@example.orgPhilosophers are regularly called upon to assist in deliberation about ethical mat-ters. Committees are established at the European Union (EU) level, as well as bydomestic governments and at the institutional level, to address sensitive issues inmedicine, research, and other policy areas. Such committees are often designedto include an ethics expert, or an ethics consultant, on the assumption that phi-losophers have something to offer. But, what is it that philosophers can offersuch committees? To be sure, ethics consultancy is nothing new: The very first ethics consult-ants may have been the sophists of ancient Greece. However, from Socrates on-wards, philosophers have also reflected on the moral appropriateness of offeringtheir services to governments and individuals in power. Socrates denounced thesophists roundly: No one should make a living by selling arguments as tools ofmanipulation. Recent critics voice more modest concerns: Philosophy is most true to itself as a critical rather than as an immediate con- structive 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 establishment- organized, 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. Theplight 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 EthicsNetwork (EBEN) Conference, and at the Center for Medical Ethics, University of Oslo; also fromMichael Davis, Kai Dramer, Birgitta Forsman, Dagfinn Føllesdal, Reidun Førde, Rune Giske, OlaHole, Peter Kemp, Ragnar Lie, Sigmund Loland, Per Sandberg, Robert Strickwerda, Knut ErikTranøy, and Ken Winston. 181
182 Andreas Føllesdal 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: phi- losophers as consultants to committees, as contrasted with their role as members of committees or as consultants to individuals. I then present an account of phi- losophers’ 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 con- sultants. 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 “philos- ophers” broadly, to include those who claim to be philosophers, often with train- ing from a philosophy department or its equivalent, but they need not be phi-losophers based in the academy. The committee, working group, or commis-sion—“committee” for short—has a mandate of some practical importance, forexample, in assessing or recommending institutions or policies. However, it hasno formal political power on its own. The role of such committees within democratic decision making is notmerely to aggregate votes, but to provide somewhat better opportunities forreasoning than allowed by the flurry of day-to-day party politics (Kamm, 1990,p. 351). The committee, thus, offers room for practical, public deliberation onissues, therefore, determining what it regards as best reasons. We may expectdiscussions and reflection to be somewhat more complex in committee discus-sions than in the general public debate, though there are still constraints oncomplexity due to the public nature of the tasks. Even though the compositionof the committee often reflects various constituencies, committee members areusually not required to act as representatives of such groups. The philosopher-consultants do hot serve as full members of the committee. Instead, they con-tribute their expertise at the request of the committee.
The Philosopher as Coach 183 What Is a Philosopher Good for?What is the contribution of philosophers as consultants to a committee? Thisquestion is fundamental for delineating the mutual expectations and respon-sibilities of the committee and the philosopher. What special qualifications dophilosophers have that render their services useful for a committee—and ulti-mately for society at large? In her book The elimination of morality, Ann Macleanput the challenge succinctly: “How does an education in philosophy make onebetter at answering moral questions than someone who lacks such an educa-tion?” (Maclean, 1993, p. 3). I shall suggest that philosophers’ training makes them skilled at moral reason-ing. They can coach a committee, helping to clarify and improve its moral rea-soning. The philosopher is trained in arguing ethical values, seeking to increasecoherence and system to the various moral concerns voiced in the committee. Tofurther this goal, the philosopher offers distinctions, interpretations, and rela-tionships between various judgments so that they appear as defensible premisesand conclusions as parts of a theory. But, first consider competing accounts ofwhat philosophers may contribute. We may assume that committees are intended to promote important valuesin a democracy, and that the philosopher takes on some responsibilities withinsuch 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 betterplace. Graduate schools in philosophy do not exclude applicants on the basis oftheir moral commitments, and philosophers’ training is not in exhortation oraimed directly at the moral improvement of themselves or others. They are nottrained to maximize well-being in the world. Moreover, there is no reason to be-lieve that ordinary members of an appointed committee are less honorably moti-vated, 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 truthon moral matters. That is, the professional philosopher provides the correctmoral theory, either by offering a blueprint of how the world should look, or byoffering the correct fundamental principles of morality, whence all moral truthflows. Philosophers have spent much time reflecting on the good life and the justsociety, and they might, therefore, be expected to hold more well-thought-outand systematic views than others (Singer, 1972, p. 117). However, these views
184 Andreas Føllesdalwill certainly be contested and controversial—just as are most other such viewsin a democracy. Should consultants be permitted—and requested—to pursuetheir own particular and contested values when serving a committee? Such claims often meet with suspicion. If moral philosophy yields truth, whyaren’t all moral philosophers nice people? More to the point, this view is at oddswith philosophers’ practice: There is profound and prevalent disagreementamong philosophers precisely about what morality requires. So, there is nounique philosophical view of right action or the good society that the philoso-pher brings to bear. Will Kymlicka, for instance, has suggested that the goal of arriving at the trueethical 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. Citi- zens 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 par- liament, Commissions are intended to be representative of the general com- munity (...) 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, there- fore, 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 ofarriving at one shared theory of morality does not violate the democratic man-date 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 pro-vides 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-
The Philosopher as Coach 185dom. She argues, convincingly, that this particular kind of moral theory is im-plausible, 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 de- duced. 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 estab- lish 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 phi- losophers 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 trainingdoes not consist in knowledge of the correct moral principles. However, the ti-tle of Maclean’s book, The elimination of morality, misleads: She has not arguedconvincingly for the elimination of morality, nor against the existence of moralexpertise. Her criticism of moral theories in general (and that of van Willigen-burg, 1991, pp. 186–191) fail for several reasons. First, there are more plausibleversions of utilitarianism than the one she criticizes; second, many bioethi-cists—and other ethicists—are not utilitarians; and third, Maclean fallaciouslyassumes that utilitarians must accept Mill’s account of the role of moral theory(Maclean, 1993, p. 10). There are more plausible accounts of justification inethics, consistent with a wide range of moral theories, utilitarian and otherwise.Eliminating this form of utilitarianism eliminates neither claims to moral ex-pertise, utilitarianism, bioethics, nor morality. Major traditions in moral phi-losophy, including Aristotelian and contractualist theories, stand wrongly ac-cused. Philosophers are not particularly well prepared to promote the good directly,and they cannot claim to know moral truths. The philosophers’ training helpsidentify 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 inargumentative skills. They provide and assess arguments and objections and de-tect inconsistencies in arguments and among moral judgments.
186 Andreas Føllesdal Rorty criticizes today’s professional philosophers for a cynical view of philos-ophy’s past, “treating the great dead philosopher as sources of hypotheses or in-structive examples of conceptual confusion” (Rorty, 1982, p. 65). I suggest, con-trary to Rorty, that the skilled philosopher also turns to earlier writers for in-sights, ideals, and distinctions that are valuable for the issues at hand—based oncharitable interpretations of past thinkers. Philosophy, thus, draws on the past for creative insights and perspectives, inorder to make sense of our own moral views. Philosophy is concerned with creat-ing connection and order, and adjusting moral judgments into a coherent frame-work of premises and conclusions—that is, a theory. One important role of sucha theory is to provide unity, coherence, and understanding among our conflictingjudgments, as an aid to reach reasoned agreement on common ground. Increasedcoherence and consistency among moral intuitions is one of the main contribu-tions of moral philosophy. Philosophers take part in theory construction, for in-stance, by showing how “mid-level principles” of autonomy and beneficence canbe spelled out to be rendered consistent with each other and with the concern forpersons and, thereby, be justifiable, and how we may conceive, and deal with, re-maining disagreements in defensible ways. The philosopher, thus, contributes to the process of gaining “reflective equi-librium” among our moral judgments, among principles, ideals, and moral judg-ments on particular cases. This method seeks to establish a consistent web ofmoral judgments in a particular field, often with the practical aim of throwingmore light on questions we as yet have not passed judgments on, or where we arein 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 gen-eral premises: Neither confidence nor justification must trickle down from above(Kymlicka, 1993, p. 13; Williams, 1985). Rather: “Justification is a matter ofmutual support of many considerations, of everything fitting together into onecoherent view.” (Rawls, 1971, p. 579) For a committee faced with resolving a practical issue, increased reflectiveequilibrium may not require complete agreement on all points, but rather suffi-cient, overlapping consensus to secure common ground regarding the particularissue. Sometimes, complete agreement on the premises for our various viewsmay be unfeasible and unnecessary. Describing the discussion prior to the 1948UN Declaration on Human Rights, Maritain noted that: Where it is a question of rational interpretation and justification of specula- tion 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
The Philosopher as Coach 187 practical conclusions, on the other hand, agreement on a joint declaration is possible, given an approach pragmatic rather than theoretical, and coopera- tion in the comparison, recasting and fixing of formulae, to make them ac- ceptable to both parties as points of convergence in practice, however op- posed 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 CoachHow does moral reasoning proceed toward reflective equilibrium? We start withour moral views and commitments at various levels of generality—includingsuch general and vague ideals as freedom, equality, equal worth, and solidarity.We seek conclusions to our puzzles by hitherto unnoticed arguments, adjustingthe moral judgments as we go, in light of these new connections. But, moreneeds to be said to illustrate this process. Moral reasoning has both a constructive and a negative role, both of whichare required in order to identify the philosopher’s contribution. The negativerole is the modest one of ensuring consistency: Moral philosophers should attempt to ensure that the Commission’s argu- ments are clear and consistent. (…) philosophers should focus on identifying conceptual confusions or logical inconsistencies within the Commission’s ar- guments, 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 notnecessarily with true premises. Kymlicka claims that this is too modest a contri-bution, since valid arguments may be morally unsatisfactory. However, assistingin 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 thephilosopher’s familiarity with the history of moral philosophy—of Kantian, util-itarian, and Aristotelian views and their heirs. But, what is the use of moral philosophy for analyzing public policy? It is un-realistic to expect a committee to endure a graduate seminar on the various theo-ries, and this aspiration is inappropriate: The focus on theories is not likely tofoster agreement on the issues, for two reasons, states Kymlicka: (1) Knowledge
188 Andreas Føllesdal of the theories will be insufficient. No particular theory—utilitarianism or con- tractarianism—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 dis- agreements. However, Kymlicka’s objections do not support the hypothesis that informa- tion 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 pro- vide 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 im- provement—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 de- cide what answers to the moral questions they themselves are prepared to ac- cept (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 concen- tration 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 af-fected parties; (2) to identify “mid-level” principles, for example, of requiring in- formed 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 compas-sion 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 ques-tions of who is affected in morally relevant ways, and how one should measureand weigh the effects of alternative actions and policies, raise profoundly philo-sophical issues (Cohen, 1989). To be sure, there is seldom a practical need for athorough, comprehensive, or complete theory, or to reach complete agreementon one particular moral theory. Nevertheless, it is often necessary to developparts of a systematic perspective. Sometimes, it suffices to identify various mid-level principles as expressing equal human worth. But, even this requires philo-sophical reflection when specifying ideals and principles of equal worth, free-
The Philosopher as Coach 189 dom, and the like. However, such specification does not assume that the phi- losopher “sees” what was meant all along, unbeknownst to others at the time (Maclean, 1993, p. 32). Rather, the philosopher engages in creative reconstruc- tion, 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 uni- fied theory, but only serve as a checklist (Clouser & Gert, 1990, p. 233; van Willigenburg, 1991, p. 184). Unresolved conflicts among these mid-level prin- ciples 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, them- selves 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 applica- tion of various rules and principles, and determine the relative order and weight of moral considerations. Philosophers seek to bring various moral consider- ations 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 in- stitutional mechanisms. In the account I have sketched, moral philosophers serve a valuable func- tion by assisting in the process of gaining reflective equilibrium among moraljudgments. Philosophers draw on their training and knowledge in asking sensi- ble 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 skillsamount to expertise of a certain kind. Acting as a consultant to committees, wemay expect the philosopher to contribute to the deliberation of the committee,honing the use of reason in ethics and moral reflection, aimed at solving thepractical problems—though not necessarily offering or generating the correctmoral theory. I suggest that the philosopher is fruitfully regarded as taking onthe role of coach to a committee. In sports, the role of the coach is to enable the athletes to achieve a high levelof 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 argu-ments, identify worrisome premises and consequences, offer their own consid-ered, argued judgment as to improvements and the favored conclusions, andpresent 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 ques-tion if we are concerned with determining whether philosopher-consultants are aprofession, since professions are often taken to command esoteric expertise
190 Andreas Føllesdal(Hughes, 1963). Philosophers’ skills might be labeled “moral expertise” insofaras the subject matter of their training is moral judgments. However, this labelmay 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. Thequality of the philosophers’ recommendations does not rest on their authorityor on trusting their character, but rather on the quality of arguments that thephilosopher has to offer. Referring to philosophers as moral experts is likely toconfuse insofar as they—unlike certain other experts—do not claim to com-mand a decision procedure, but only certain skills (Crosthwaite, 1995, p. 369;Kamm, 1990, p. 352). Moreover, this kind of expertise is not exclusionary, incontrast to other relationships between expert and client. The aim of the philos-opher-consultants is to transfer knowledge and skills to the client, not to usetheir expert skills on the client’s behalf. The philosopher’s role is, thus, to in-crease the rationality of the committee, by improving the committee’s ability todecide what to believe and to weigh reasons for action—in accordance with itsown canons of rationality (Scanlon, 1972, p. 215). The client cannot transfer itsdecision-making responsibility onto the philosopher. The task of the philoso-pher 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 ed-ucators to committees in the sense I have developed. Several issues have beenraised by other writers, and I shall sketch responses to these in turn. It is appropriate to reflect on the responsibilities of philosophers in the con-sulting 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 commit-tees. Thus, reflection is appropriate, but the conclusions are not clear. Let mestart with defending the view that there are limits to philosophers’ responsibilityfor 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 ad- vice insofar as he could reasonably be expected to foresee that they would fol- low 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-
The Philosopher as Coach 191 bound advice causes when that harm is greater than the harm that would re- sult from breaching the requirements of his role. (Thompson, 1983, p. 288)The publicly acknowledged role of the coach reduces the philosophers responsi-bilities for the policy results. The philosopher, unlike many professionals, doesnot make decisions or resolve issues on behalf of others. The philosopher is notgenerally responsible for the reports, recommendations, and so forth made bythe committee. This is because the committee is always free to accept or rejectthe suggestions offered by consultants—be they philosophers or other expertcounsels. The philosopher-consultant should, thus, not be held responsible if thecommittee adopts views contrary to what the philosopher considers a philosoph-ically more favored position. We must, of course, acknowledge that the interventions of a philosophercauses large conceptual and moral shifts, so that the committee members cometo think differently about their experiences. In such a situation, one’s views areoften malleable, and one’s ability to reason impaired. Nevertheless, the specificcontribution 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 causalresults: A person who acts on reasons he has acquired from another’s act of expres- sion 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 infor-mation and arguments in light of expected benefit or harm. It is difficult to de-fend the view that the philosopher-consultant should generally be entrustedwith this authority. First, the ability of philosophers to forecast such conse-quences is clearly limited. Moreover, this power makes the committee vulnerableto manipulation by the philosopher. As part of a public practice, this authorityof philosophers will, hence, tend to remove the demand for such services. Insofaras this creates worse deliberations in committees, we should be wary of such a re-quirement regulating the practice. In particular cases, then, philosophers should not adjust their advice in lightof their perceptions of potential harms. However, this is not to say that philoso-phers should be prepared to take on any project, or that they must always hidetheir own views from the committee they serve. We now turn to consider someof these issues.Responsibilities of Taking on ProjectsCommissions may have illegitimate tasks and mandates that raise dire issues ofcomplicity in clearly immoral acts. It is, indeed, always necessary for the consult-ant to consider “precisely how such bodies are constituted, what they are charged
192 Andreas Føllesdalwith doing, and whether these are reasonable things to attempt” (Momeyer,1990, p. 406). Considered judgment is necessary and unavoidable if we do notwish to become accomplices to wrongdoing. However, we should discount someof the objections presented against joining the arenas of practical deliberation asconsultants. Criticism may be of two kinds: either that the philosopher has nothing tocontribute as a consultant, or that the role as consultant threatens the integrityof philosophers. Neither criticism renders the philosopher’s contribution irre-sponsible or irrelevant. First, some critics argue that philosophers have nothing to offer committeesdealing with practical issues. I shall suggest that these criticisms are misplaced.Moral philosophy is sometimes said to ignore the complex relationships betweenindividuals’ behavior and social institutions. Often a principal concern is with what might be called institutional architec- ture—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. (Weis- bard, 1987, p. 781)Weisbard is correct in pointing out that institutional design is not a part of thephilosophers’ training. However, political philosophy is typically carried outwith these complexities in mind, insisting that individual ethics and issues of in-stitutional justice must be treated as separate, though related subjects of reflec-tion. Perhaps most interestingly, some critics object to the usefulness of philoso-phers because of their ideal perspective. The philosophers’ utopian society is un-attainable from here, uninhabitable by normal people, and certainly out of reachfor a committee with a constrained mandate. Some even go so far as to state thatmoral 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 contend- ing forces (of both reason and self-interest) encounter one another. Standards of fairness in the representation of divergent interests must be met, but when
The Philosopher as Coach 193 they are, and the process works, whatever results are arrived at will be the cor- rect 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). How- ever, philosophers have, historically, also been concerned with “non-ideal” top- ics: 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 de-liberative and bargaining process, under certain procedural constraints, is bothnecessary and sufficient, not only to identify, but also to constitute the correctoutcome. The view I have presented takes no stand on any of these furtherclaims. 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 thestatus quo, for instance, by offering an ideal or criteria by which to identify andmeasure the flaws of present circumstances. Political committees, on the otherhand, are bound. They are without the political possibilities of creating the bestarrangements from scratch. They easily become remedial; moreover, they be-come agents of compromise and political manipulation. By serving as a con-sultant to committees, philosophers risk their integrity, both as individuals andas a group. Their responsibilities “make their independence and critical stanceimmediately suspect” (Wikler, 1982, p. 12). In response, we must agree that the philosopher-consultants clearly cannotmaintain a completely detached or independent stand, insofar as they must ac-cept the agenda of the committee. But, why is this loss to be grieved? First, itmight 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 philos- ophy, or the public, should welcome. (Weisbard, 1987, p. 785)Weisbard raises an important point, but we cannot assess the risks without acareful account of both the current public image of philosophers and the publicassessment of philosopher-consultants. I submit, that defining clear expectationsand responsibilities is one fruitful step to avoid conflating general philosophicalstudies with the activities of philosophy consultants, and to avoid conflating theresponsibility of public intellectuals with the particular obligations an individualphilosopher may legitimately take on as a consultant. Second, there is a real andpresent danger that philosophers lend legitimacy to a project as “a hired pen,wielding grand language for its theoretical and sanctifying power in service of
194 Andreas Føllesdal 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 fur- ther reduced by exploring and expressing, clearly, the grounds and limits of loy- alty of a philosopher-consultant toward the committee. Such a code of conduct should address the dilemmas that arise with philoso- phers 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 re- sults 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 assump- tion 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 con- clusions of such committees to diminish the threat and real danger of revealing confidential information. Moreover, as an “insider” to the committee, the phi- losopher 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 theconclusions drawn by the committee on philosophical grounds? The philoso-pher’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 indicateserious flaws in reasoning or to claim that the committee ignored crucial impli-cations. A member of the committee could include a dissenting opinion. How-ever, a consultant does not have such means available. I suggest that insofar as itis publicly known that the philosopher-consultant is required to keep confi-dences and maintain loyal opposition, the philosopher’s own silence on particu-lar matters cannot be regarded as acquiescence in the arguments or the results. Itfalls on other philosophers—“outsiders” to the committee—to criticize the argu-ments and conclusions, taking due note of the fact that the consultant may nothave sanctioned the conclusions. A further step for the philosopher-consultantsmay be to insist that their names be removed from any documents and publicdiscussions pertaining to the committee. This measure will help prevent a phi-losopher’s name or title from being misinterpreted by the public as an endorse-ment or sanction of the results by the consultant or by the philosophical com-munity at large.
The Philosopher as Coach 195Not Remain Constrained by the Politically FeasibleShould the philosopher-consultants only provide philosophical perspectives thatare congruent with current policies and the agenda set before the committee? Isuggest not. Some claim that radical proposals within a committee are counterproductiveor that they are undemocratic. The role of the philosopher-consultant shouldnot be that of the reformer. However, there seems to be little reason to requirethe consultant to refrain from radical arguments that challenge the presupposi-tions of the committee. First of all, the philosopher will be acutely aware that asa consultant one is there by invitation based upon trust (van Willigenburg,1991, p. 35). A consultant will feel constrained by this relationship—which, ofcourse, underscores the legitimate and important role of outsider critics and re-formers. A consultant may offer radical criticism—but these comments must still, tohave any effect, appeal to the judgments and views of committee members or ofthe public at large, with the intention of exploring and improving on such com-mitments (Kamm, 1990, p. 358; van Willigenburg, 1991, pp. 35–39). Short-term political acceptability may be a prudent consideration for the committee it-self when deciding on what to recommend, but there is little need for consult-ants to feel so constrained in the perspectives they offer as contributions to thedeliberative process. Indeed, philosophers may provide creativity and foresighton the sensitive questions and issues that will come up later if current policies areleft 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 his- torical 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 involve- ment in public policy. (Menzel, 1990, p. 423)Point out Flaws of Moral ReasoningWhile the committee is deliberating, the philosopher has a clear responsibilityfor training the members to achieve a better reflective equilibrium among theirmoral judgments. The philosopher is expected to point out important implica-tions of various arguments, for example, when it is clear that current public pol-icy runs counter to the assumptions made by the committee. This task is oftencentral if committee members are to achieve more consistent views. But, some-times this task can create dilemmas.
196 Andreas Føllesdal 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 payless attention to moral considerations when they become aware that there isphilosophical disagreement (Weisbard, 1987, p. 781). I suggest that the concep-tion of a philosopher as a coach helps address this issue. The aim is to increasethe committee’s ability to reason and argue, and this concern may legitimatelylead the philosopher to hold back some of the philosophical complexities—as isoften done when teaching (Davis, 1991, p. 269). Thus, difficult cases arisewhen moral reasoning raises complex issues without yielding satisfactory resolu-tions. The role of educator does not require that the philosopher attempts toclarify all errors, particularly not if these errors are so subtle that the remarks arelikely to confuse the committee even further (Kymlicka, 1993, p. 23). The aimof the commission is practical recommendations, not a philosophical treatisewith maximal validity and consistency. It is, therefore, beyond the philosophers’role, as educator, to identify and address such topics when they cannot expectthe committee to gain increased coherence as a result. Philosophical complexi-ties should not be introduced for their own sake, but rather only when there is areasonable expectation of improved moral reasoning as a result.Not Always Seek Common GroundDisagreement within the committee is sometimes regarded as particularly trou-bling. In discussing the Warnock Committee on embryo research, Abram andWolf 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 persua- sive without internal agreement. Unlike a court or legislature, which is struc- tured to have effect as long as a majority agrees, a commission requires agree- ment that is as close to unanimity as possible, to have any effect at all. With- out 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 pin-point issues of disagreement so that misunderstandings and empirical issues canbe resolved. However, the philosopher may also threaten the apparent agreementamong committee members. Weisbard describes a situation in which the phrase“justice demands” was regarded as too simplistic a way to put complex argu-ments. As a result: “Unprepared to win for the wrong reasons, we were forced toconcede 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 im-proper reasoning, it is not clear that the coach must arrest these flaws. The ability
The Philosopher as Coach 197of the committee to reason is not always improved by identifying all flaws—par- ticularly if flaws will simply be used strategically. Furthermore, often disagreement among committee members should not be regretted. Sometimes reflection reveals deep-seated disagreement among com-mittee members, or among citizens at large, on central issues. For the philoso- pher to bring this disagreement out seems quite unobjectionable: Many suchconflicts will emerge sooner or later, and committee discussions offer a betterarena for reflection and resolution than the alternatives. Concerning the Warnock Committee, Benjamin notes that their responsibil-ity toward Parliament required that they “speak with one voice on whatever rec-ommendation was put forth. For each to go his or her separate way, issuing aseries of individual opinions would be to admit failure of the collective project.”(Benjamin, 1990, p. 384) On some issues, failure may be appropriate: A com-mittee may sometimes properly report that no compromise seems likely, andthat the issue should, instead, be decided with concern for all sides, or by normalmajoritarian political procedures. Moreover, the role of committees within ademocracy generally does not seem to require that conflicts and disagreementsamong members of the committee be suppressed in a report—and it seems evenless plausible to require the consultant to refrain from introducing and fosteringreasoned disagreement among the committee members. It is often of great pub-lic and political importance to know that the recommendations of a committee,even when unanimous, are the result of compromise, rather than the result ofgeneral agreement. The philosopher’s role is sometimes to assist committeemembers in observing how compromise, among different opinions and views,may be the morally appropriate solution, given the need for a unanimous recom-mendation for political decision, but the responsibility may also be to “raise fur-ther questions about when, for example, one should seek or endorse compro-mise, and when a particular compromise would be worse than no policy at all, orplace intolerable strains on integrity” (Benjamin, 1990, p. 387). ConclusionI have suggested that philosophers can serve a valuable and legitimate role as con-sultants to committees. Such philosophers can be conceived of as coaches, further-ing 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 outimplications and overarching principles. This includes pointing out importantsolutions and alternatives that are excluded by current politics or from the man-date of the committee. Insofar as the philosopher overlooks major flaws in the ar-guments being considered, or ignores alternative, important points of view, thismust be regarded as a weakness in the services provided. As a coach, the philoso-pher’s role is, in part, to identify weak arguments and dubious assumptions, atleast those that are of some consequence in the discussions. This task is consistentwith, and indeed requires, that other philosophers serve as social critics.
198 Andreas Føllesdal ReferencesAbram, 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. Jour- nal 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 ethi- cists. 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: Norwe- gian 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 interpreta- tions. 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 Medi- cine 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. Phi- losophy and Public Affairs, 19, 279–310.
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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@example.com firstname.lastname@example.org 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, how- ever, the paradox has to be solved in at least one practical context: the assign- ment 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 beconsidered so, in this legal procedure? The analysis of this problem proceeds in three parts: First, we question whatthe legal concept of “nonpecuniary damage” is, and what the implications formaking this assessment are. We will show that the assessment consists of two dif-ferent aspects, which we will call subjective and objective aspects. Second, wequestion who is the expert, and for which aspect of the assessment? In this sec-tion, we present some data comparing the assessment by courts and laypersonson the severity of injuries. Third, we present arguments for a standardization ofthis 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. How-ever, the problem of translating victims’ suffering into a quantified amount ofdamage, to be paid by a liable party, exists in most Western societies. Conse-quently, our analysis may be generalized, to some extent, beyond the country’sfrontiers. 201
202 Fenna H. Poletiek and Carel J. J. M. Stolker The Legal Philosophy of Nonpecuniary DamagesThe 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 nonpecuni-ary damages. Although nonpecuniary damages can be awarded in a large num-ber of cases (mentioned above under b.), we focus on the cases in which the vic-tim has suffered physical injury. First, it is meant as reparation of harm. In otherwords, these damages should compensate for something that is lost. This impliesthat the amount of damages, somehow, should be in accordance with theamount of what is lost. Second, the damages, being reparation of harm, are notintended to punish the person liable for the harm. This clearly contrasts with theidea 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 theact 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 isthat, as a principle, they cannot be assigned to relatives of a victim if the eventhas led to the death of the victim. Indeed, since these damages are meant tocompensate the victim, allowing them to “buy new pleasure” to replace the lostone, other persons than the victim cannot, in principle, use these damages toassuage the inflicted harm (Stolker, 1990). This implication, however, is highlydebated (Lindenbergh, 1998). Indeed, occasionally, the harm might not inflictthe victim himself, but the relatives. This is so when the victim dies or stays incoma. In the following, we will come back to this debate. Fourth, the judge, asArticle 6:106 of the Dutch Civil Code3 reads, who has to determine the amountof nonpecuniary loss, is given no more concrete instructions than that theyshould determine this amount in a “fair” way. But, what is fair? To answer thisquestion, we first deal with the question of who is qualified to determine theseriousness of injuries. 1 Nieuw Nederlands Burgerlijk Wetboek—New Netherlands Civil Code, translation in Eng-lish 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.
Who Decides the Worth of an Arm and a Leg? 203Who 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 judg- ment 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 serious- ness, 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-calledANWB 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? Be- fore the “list” existed, courts decided in each case on the basis of their estimationof the victim’s suffering. From 1957 onward, decisions on nonpecuniary dam-ages were systematically registered by the ANWB and, importantly, categorizedand ranked according to injury. The result is a hierarchy of groups of injuries andcorresponding monetary amounts, reflecting the average damages assigned incases in which a particular injury was suffered. In sum, the seriousness of in-juries, as estimated and inferred from past judgments, now predominantly deter-mines the practice of the assessment of nonpecuniary damages by courts, ratherthan individual suffering aspects. Interestingly, those two factors (personal suffering and injury) can conflict.Indeed, focusing on the intensity of pain implies that the subjective individualexperience 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 ofthe event is to be compensated. Accordingly, the injury-related aspect will becalled the “objective aspect.” Consider, as an example, two victims from differentaccidents, resulting with the same injury: an amputated leg. According to thecourts’ actual practice, in which the injury is taken as the relevant factor, thosetwo people should obtain the same amount of damages. The subjectively feltpain, however, may vary greatly between victims, depending on the unique indi- 4 See footnote 1. 5 HR 8 July 1992, Nederlandse Jurisprudentie 1992, 714.
204 Fenna H. Poletiek and Carel J. J. M. Stolker 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 fac- tor 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 subjec- tive aspects of the suffering are often highly emphasized, especially by the vic- tims’ lawyers. Particular individual circumstances and feelings are argued to in- teract 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 cir- cumstances to take into account? In the literature, many factors have been ad- vanced (Stolker & Poletiek, 1998), among which are income and social position of the victim. But, authors disagree as to which individual characteristics are rel- evant for assessing the damages (Lindenbergh, 1998). The third reason may be that courts just do not know how these characteristics should affect their judg- ment. 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 differentway than the subjective factor. The injury itself can often be determined by adiagnosis from a medical expert. However, the problem is to determine its “in-tensity” (seriousness) compared to other injuries. Vollbehr (1989), Pieters andvan Busschbach (1989), and Stolker and Poletiek (1998) point at the arbitrarycharacter of the “seriousness categorization” of the injuries on the ANWB list.This database reflects what courts consider about the seriousness of injuries, bothrelatively (one injury as compared to the others) and absolutely (each injury issupposed to correspond to a certain amount of loss in the joy of life, monetarilyexpressed). This raises the question as to who is the expert in assessing the rela-tive 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, becausethis is the practice. The courts base their decisions on the “list,” which in turn isa compilation of court judgments. However, apart from making an accurate esti-
Who Decides the Worth of an Arm and a Leg? 205mation of the damages, courts might have other concerns. For example, courtsmay tend to keep the seriousness low in order to avoid case laws with huge mon-etary 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, suchas social status, which is generally above average for judges. Notice, that theseconsiderations only apply to non-jury systems. Second, the victims themselvesmight be considered as the expert in determining how serious the injury is, abso-lutely as well as relatively, in comparison to other injuries. However, the victimsare influenced by other subjective factors, which might bias their estimation. Forexample, the very fact that the victims can claim monetary compensation mightbias their perception of the seriousness of the injury. The third possible expert isthe possible victim, being the civilian to whom this legislation applies. We believethat they are the experts on whose judgment the estimation of the seriousness ofinjuries 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 minimizethe estimated seriousness of injuries, for strategic reasons. Thus, the standard onwhich the court bases its estimation of seriousness of injuries should reflect thefeelings of “the person on the street” (being the possible victim) about relativeand absolute seriousness of injuries. In the study we present below, we further investigated this point of view bycomparing the courts’ (ANWB list) and civilians’ estimations on the seriousnessof their injuries. Such a test of the “list” has never been performed, although dif-ferences in the estimations courts and people use might have serious financialimplications for victims, depending on whose expertise is used as a basis. Comparing the Courts’ Estimations With Laypersons’ EstimationsThe 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’ ex-perienced health states be quantified, in order to compare the costs of interven-tions with their benefits in terms of experienced quality of life (Bakker & van derLinden, 1995). The methods applied to measure utilities of health states can also be used inthe context of the legal assessment of nonpecuniary damages. We will first inves-tigate the relative utilities of injuries (ranking) by laypersons, which can bedirectly compared with the courts’ standard. Next, we estimate the absolute utili-ties of the injuries. These utilities can be compared with the actual averageamounts of nonpecuniary damages assigned by courts in the past, as they figurein the standard “list.” We also measured the utilities of a number of events forwhich no nonpecuniary damages can legally be claimed. These are the cases in
206 Fenna H. Poletiek and Carel J. J. M. Stolkerwhich a relative (e.g., child, partner) has died due to some event for which athird person is liable (Article 6:108 of the Dutch Civil Code6) and cases inwhich the victim is in permanent coma. The latter cases are not explicitly ex-cluded from the right of nonpecuniary damages by the law, but they are gener-ally interpreted to be so by legal experts (Stolker, 1990). Since these cases (deathof relative, permanent coma of victim) are the topic of a lively public discussion,we investigated them in our study.The Ranking of InjuriesNinety-one persons participated in this study on a voluntary basis. The partici-pants completed a questionnaire with 19 descriptions of injuries. The injurieswere a selection of those mentioned in the ANWB list, plus 3. These are “thedeath of one’s child,” the “death of one’s partner,” and “being in permanentcoma.” Participants were requested to rate the impact these injuries would haveon their quality of life, on a scale varying from 0 (no influence on my quality of 6 See footnote 1.
Who Decides the Worth of an Arm and a Leg? 207 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, how- ever. 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 as- signed 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 ex- ists 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 whip- lash, 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 lay- people, placing them at the bottom of the ranking in Table 2. Loosing one’spartner, one’s child, and being in permanent coma are felt as the most painfulevents that can happen. How can these differences be explained? We suggest some tentative explana-tions. First, whiplashes can affect victims in many ways. They can cause varioussomatic as well as psychological effects, which are difficult to diagnose. In addi-tion, this injury has obtained much attention from the media, precisely becauseof its poorly explained and sometimes dramatic effects on victims. Courts mightestimate the impact of such “soft” injuries lower than people do. Inversely, loss oftaste or smell are injuries that are possibly not well imaginable by people becausethey are not very frequent, and, therefore, are estimated low. Courts, however,have been faced more frequently with these injuries and estimate their seriousnesshigher on the basis of life reports from victims. Scars that are visible do not affectone’s physical health, but possibly one’s identity and self-image. Apparently, suchan injury is more important for people than courts believe. The same argumentmight apply to whiplashes: Courts might think of these psychological effects asfuzzy and, therefore, underestimate their seriousness. With regard to the ratingsof the events, which are not compensable by damages, we return to them below. Apart from the ranking of injuries, we compared the absolute monetaryamounts associated to these injuries by both groups. For this, we used the “Will-ingness-to-Pay” (WTP) Method. With this method, the psychological value of a
208 Fenna H. Poletiek and Carel J. J. M. Stolker“good” or a “loss” can be measured. It is frequently used in medical decisionmaking for measuring the utilities of health states (O’Brien & Viramontes,1994). It proceeds as follows: People are asked how much they would be willingto pay to be entirely cured from injury or illness. Their answer expresses the esti-mated amount of suffering in monetary terms. In the present study, we asked therespondents to give their WTP value for two injuries only: the one they rated asthe least severe and the one they rated as the most severe. The mean least severeWTP score and the mean most severe WTP score were taken as the extreme val-ues of the utilities accorded to the average least and most severe injuries. TheWTP amounts for the remaining injuries were obtained by interpolation. Theintervals between the injuries were calculated on the basis of the Thurstonescores obtained in the ranking. Thus, the distances between the injuries, calcu-lated with the Thurstone scores, were reflected in the estimated WTP scores.These scores are displayed in Table 2, together with the mean damages awardedby the courts for each category of injuries. The amounts in Dutch guilders, wereconverted to Euro.
Who Decides the Worth of an Arm and a Leg? 209 As can be seen in Table 2, the average WTP scores resulting from this inter- polation are higher than the damages. The differences between the two “lists” in- dicate 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 re- sponses 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, dif- ferent 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 re- turn to this in the next section. The main conclusions from the present comparison of courts’ with lay- people’s opinions on injuries are firstly that both rankings and absolute estima- tions of the seriousness of injuries differ on a number of items. Thus, consider- ing 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 dam- ages, such as the loss of a partner or a child and being in a permanent coma, be- long to the most painful experiences people can imagine: They correspond towhat 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 lay-person’s attitude, on the other, toward the seriousness of injuries. We discuss thisdifference more in detail below. Although courts do not even consider compensation for pain caused by dam-ages to relatives, this pain is the most severe people can imagine. The law text onnonpecuniary damages assumes that the victim of the event, for which a thirdperson is legally liable, is the one that should be compensated for the pain felt, sothat they can “buy” back the lost joy of life. Since a dead person cannot benefitin such a manner from compensation, those victims are excluded from the rightto damages, as follows in Article 6:108 of the Dutch Civil Code.7 In the sameline of argument, it has been proposed that people in permanent coma (or theirrelatives) should not be compensated either (Stolker, 1990). However, our studyshows that the suffering caused to a relative by the death or coma of their partneror child, is one of the most severe ones. The suffering being so intense, it seemsreasonable to compensate it somehow. Another argument in favor of damagesfor surviving relatives is the Supreme Court’s AIDS judgment8 on nonpecuniary 7 See footnote 1. 8 See footnote 5.
210 Fenna H. Poletiek and Carel J. J. M. Stolkerdamages. It rules that the suffering, its intensity, and duration are the entities tobe compensated. In this statement, the court emphasizes that the suffering,rather than the victim as a person, should be indemnified. In sum, in line withthe adequacy principle, according to which the amount of pain inflicted is whatshould be compensated, it is arguable that relatives, if they suffer the pain ensu-ing from the event having caused the death or coma of the victim, should be en-titled to obtain some damages. This is in contrast with the adequacy principleunderlying the law. Recently, however, in a so-called “nervous shock case,” the Dutch SupremeCourt authorized the recovery of both pecuniary and nonpecuniary damages bya close relative of a victim of a tort in certain situations.9 The claimant relativemust either observe the tort or be confronted immediately thereafter with thesuffering or death of the close relative. In addition, a serious mental injury (thecourt uses the words “recognized psychiatric damage”) on the part of the ob-server claimant is a prerequisite and, therefore, the court in the case dismissedthe claim as far as “only” affective damage (bereavement damages—misery, grief,sorrow) was concerned. Compensating mere affective damage would, indeed, bein conflict with the general principle underlying the law on nonpecuniary dam-ages (Levine & Stolker, 2001). A final remark must be made with regard to these cases. We observed that itwas particularly difficult for people to quantify suffering when the suffering wasextremely severe. This was expressed in the answers to the WTP question withregard to the death of a partner or child. To our surprise, many respondents gaveunlimited answers, such as: “everything I have.” Damages are more difficult toexpress monetarily as the loss of joy of life is more extreme. Allowing for com-pensation in these cases again raises the problem: How much should this be? Thefull discussion of this problem is beyond the scope of this study. But, a possiblesolution might be to fix a symbolic amount for these cases, meeting the need forsome recognition of the inflicted pain without trying to fully compensate itmaterially. Standardized Assessment: What Are the Advantages and for Whom?Resuming the previous arguments and findings, we propose that the assessmentof nonpecuniary damages is the combination of two aspects. First, an objectiveaspect on the severity of the injury and, second, a subjective aspect which is theactual individual suffering. These aspects are to be assessed and combined, re-sulting in an amount of compensation. Although this assessment has, in thepast, been fully assigned to the competence of the courts, we have argued thatthe 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.
Who Decides the Worth of an Arm and a Leg? 211 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 pro- cess might be carried out in practice. The two contrasting answers to this ques- tion 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 esti- mated 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 re- ceived 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 char- acteristics 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 per- form accurate cost predictions. This is obviously more simplified when the para- meters of the decision procedure are known, bearing in mind that it was the in- surers who first proposed the “formula.” Finally, what are the consequences of standardization for the victims? Thelaw exists as a regulation for the victims’ right to fair compensation. On the onehand, victims, as a group, benefit from a transparent standardized procedure,where standardization increases fairness. On the other hand, it has been sug-gested that this procedure can also be applied against the individual interests ofvictims. Their unique circumstances are, then, presumably dismissed. However,there are also a few arguments in favor of a standardized approach for the indi-vidual. Firstly, as we mentioned above, courts in practice seldom take into ac-count subjective factors, but base their judgment mainly on the severity of theinjury, apparently in spite of the subject-based pleas from lawyers. Thus, a stan-
212 Fenna H. Poletiek and Carel J. J. M. Stolkerdardized procedure, in which a fixed weight would be given to objective andsubjective factors, might provide an improved, rather than a detrimental guaran-tee that subjective aspects affecting the experienced pain are taken into account.Secondly, however, subjective circumstances can also be applied against the indi-viduals’ interest. Consider a right-handed illustrator having their left-hand para-lyzed. Since this injury does not impede their professional work, the damagesmight be lowered precisely due to their unique characteristics. In a procedure asthe one sketched above, the individual and subjectively felt pain, on the onehand, and the objective severity of the injury, on the other, can be balanced sim-ilarly for all victims, allowing acceptable subjective elements to perform a role.Another advantage of leaving the assessment of emotional damages to an “expertprocedure” is that it is intelligible and transparent to individuals, increasing itsacceptability (van den Bos, Lind, & Wilke, 2001). In conclusion, standardizing the assessment of nonpecuniary damages mightbe a reasonable way to translate suffering into monetary compensation. In such aprocedure the relative weight of the objective and subjective assessment, can becalculated. 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 thepossible victims, who actually are all civilian concerned by the legal system. Inour view, such a model allows for the difficult task of assessing nonpecuniarydamages to be performed in accordance with the intentions of the legislation. Authors’ NoteWe thank Mark van Oostrum, Richard Tijink and Willem van der Kloot fortheir assistance in carrying out the empirical study and analyzing the data. ReferencesBakker, 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 non- pecuniary 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 compen- sation 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.
Who Decides the Worth of an Arm and a Leg? 213O’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 dis- tributive 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]. Ver- keersrecht, 6, 146–150.
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@example.comIn his book on the Mediterranean Sea as a historical area, the French historianFernand 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 allamercanzia, literally the five wise men in matters of trade. Interestingly, however,Braudel did not use this literal translation, but rather employed the more looselytranslated phrase five experts in matters of trade (Braudel, 1987, p. 169). This raises an important historical question. Braudel intentionally designatedthese men as experts. But, is it possible to speak of “experts” in the early modernperiod? Also, to ask if there were experts from approximately 1500 onward at allis made more complicated by the difficulty of defining experts in general. To pre-vent disappointment, I have to admit that I will not be able to give satisfactoryanswers to all of these questions. Rather, I will concentrate, in this article, on theproblem of experts in the early modern period with reference to one special in-stitution, the syndics of the Venetian mainland (Sindici in Terraferma). First, Iwill discuss the problem of early modern experts on a larger scale before turningto 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 thesyndics 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 themost difficult task. An expert is a person who is skilled or one who possesses spe-cialized knowledge (Brint, 1994; Savage, 1996). An illustration of this usagecomes from an announcement posted on the internet for the Max Planck So-ciety’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
216 Achim Landwehr 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 defini- tions of the expert are far from being consistent. As overviews of several discus- sions in the social sciences show, experts are either defined as being skilled in spe- cialized 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 ex- pert?” becomes even more intricate—but, as a consequence, all the more inter- esting. 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. Be- fore 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 spe-cial 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 appearsonly in the 19th century (Brockhaus, 1968, p. 826). In Zedler’s encyclopedia,the most important work of that type in the German-speaking countries before1800, there is no entry for the term Experte at all (Zedler, 1734). Linguistically, the concept is rarely found throughout the early modernperiod prior to 1800, let alone in medieval times. Hence, a justification seems tobe necessary: How is it possible to talk about experts in the early modern periodif the designation did not exist? Does the absence of the term mean that therewere no experts? I suggest following Braudel in this respect by not taking termssuch as savii too literally. To illuminate how the concept developed and how thisgroup came to be distinguished by the designation expert, it is necessary to studythose who had specialized knowledge and were mentioned under different desig-nations in the historical sources. Then, the term commissioner suggests itself im-mediately. CommissionersThe importance of commissioners, in the early modern period, can hardly be over-stated. The period between the late 15th and the early 19th century is—amongmany other aspects—characterized by the growth of administrations in the 1 URL: http://www.communication.mpg.de/inhalt.htm.
The Expert in a Historical Context 217European countries. Because the embryonic administrations of this period wereunable to execute all their organizational charges, commissioners were appointedin many fields of the early modern state. Jean Bodin, the important French theorist of the sovereignty of the earlymodern state, described this institution theoretically as early as 1583. He gave adefinition 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 commis- sioner and a common official. The commissioner has an extraordinary instruc- tion 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 cru- cial, because it signifies, for the first time, the commissioner as a separate institu- tion—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 ap- peared 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 Nor- man conquest (Galbraith, 1974; Holt, 1987). Commissions also played an im- portant role during the Inquisition when groups and persons were investigatedwho were thought to adhere to the wrong religion (Bennassar, 1979; Bethen-court, 1995), and the Poor Law Commission in the United Kingdom in theearly 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 betweenthe 16th and the 18th century was not as spectacular as these examples might in-dicate. As the German historian Otto Hintze (1981) showed in his essay on theCommissarius, the roots of this type of expert mainly laid in the fields of warfareand finance (Hoke, 1978). In Prussia and France, the commissioners had specialfunctions in the supply of armies and in the administration of conquered areas.The Prussian Commissioner of War (Kriegskommissarius) was responsible for or-ganizational 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 compe-tences (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-
218 Achim Landwehrsible only to their sovereign. Apart from these military officials, there were alsothe officials responsible for petitions (maîtres de requêtes) in France, commission-ers 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, andmade reports to the government (Mousnier, 1970). But, is it possible to describe these commissioners as experts? Perhaps not inthe modern sense of the word. These commissioners were educated (if they hadan academic education at all) as generalists in broadly defined fields of knowl-edge and with almost no specialization. But, the practice of their work more orless forced them to become experts. Early modern states (Blänkner, 1992; Rein-hard, 1996, 1999) were faced with a rising complexity and had to react with in-creasing differentiation (Luhmann, 1997, Vol. 2, pp. 595-618). More and moretasks had to be taken over by these states and, for that reason, personnel had tobe recruited that was able to specialize in the relevant fields—that was able to be-come experts (Fischer & Lundgreen, 1975). Therefore, the early modern period is of special interest for the question ofdefining the expert. It is—as in many other areas—a period of transition frommedieval to modern times, and has been described as a “pattern book of themodern age” (Schulze, 1993, p. 4). Because of changing demands, generalistshad to become specialists in certain spheres. In the struggle for power, the Euro-pean states were especially in need of military and economic expertise: When it was clear that a strong economy meant everything in the interna- tional 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 devel- opment might be achieved by education; that education might be the only promising means for a latecoming nation if it wanted to imitate the fore- runner. These circumstances gave birth to (...) the fonctionnaire, the techni- cal 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 & Lund- green, 1975, p. 545f.)In 1727, Prussia established the first Chairs for Cameral Science (Kameralistik)in universities, to transmit specialized knowledge in economics, statistics, andtechnology (Unruh, 1983). Of greater importance were the learned societiesoutside the universities, such as the French Academy of Science, which was es-tablished in 1666. This event transformed a private gathering of scientists into aroyal institution of regularly employed and salaried scientists. The interest of theFrench monarchy was (…) to have an advisory council of scientific experts; to draw on their knowl- edge and research in order to improve navigation, warfare, architecture, engi- neering; to have the economic policy assisted by systematic application of sci-
The Expert in a Historical Context 219 ence to industry and by diffusion of technological knowledge (Fischer & Lundgreen, 1975).This development can also be illustrated by the example of the Venetian admin-istration. Even a cursory look at the structure of the Venetian Constitution re-veals its enormous complexity (Archivio di Stato di Venezia, 1994; Maranini,1974). Dozens of offices were responsible for different tasks. Every time a newproblem arose, a new institution was set up to address it. The result was a systemof overlapping responsibilities intended to ensure that every institution would becontrolled by another one. Kretschmayr (1920, p. 78) described this as a systemof 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 ex- pert 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, histori-cal research has concentrated on the political and administrative functions ofcommissioners and/or on their social and economic position. These aspects are undoubtedly important and cannot be excluded. However, I would like to makea case for a research perspective that focuses on commissions as forms of powerand as producers of knowledge and truth. To understand the processes, by whichcontrol was established over people, it is also necessary to study the productionof the respective discourses. Central questions, thus, emerge: How were dis-courses produced, how were they established as truth, and how were they boundto certain institutions and mechanisms of power?2 Discourses develop within a social context and are characterized by the in-volvement of institutions of power. They are produced in a permanent social andpolitical struggle. If one of the involved institutions is able to dominate the dis-cussion, to establish its significations in the discursive process, its version of thetruth 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 be-yond 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 commissionsoffers 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 productionof discourses in the societies of the Occident connected with different mechanisms and institutionsof power and how were the discourses (at least for a certain period of time) charged with a value oftruth.” (p. 8; translated by A.L.)
220 Achim Landwehr(1) The first phase of a commission is always marked by a problem, or a ques- tion, that can be named. With the establishment of a commission a discur- sive 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 produc- tion 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 be- comes part of history and enters the dialogue with historians; thus, the dis- course proceeds.From this theoretical perspective for the analysis of commissions, societal prob-lems are solved through the collective action of experts charged by the state.Commissions are the mediators between “the state” and “society”; they enterdialogues with both of them; they listen to society and speak to the state. The re-sult of this activity is the report that produces knowledge and creates truth. (It isno accident that the name of one of the best known commissions of our day isthe Commission of Truth and Reconciliation, South Africa.) The products ofthese numerous quests are stored in the archives and the memory banks of thestate, whence they can be drawn to write history.The Syndics of the Venetian Mainland: Sindici in TerrafermaIn the archives all over Europe, there are innumerable sources referring to thework of commissioners of the early modern period. The particular case that Ihave taken up is that of the syndics of the Italian states, as mentioned in JeanBodin’s Les six livres de la République of 1583. This reference testifies that thesyndics were an important and well-known form of commission in early mod-ern Europe. Since medieval times the syndics (Sindici or Sindacatori), as an in-stitution, had been widely used by the Italian cities (Crescenzi, 1981). Theirfunction was to control the heads of an administration after they completedtheir 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; SciutiRussi, 1981). Bodin especially referred to the cases of the Republics of Genoaand Venice. One of the many institutions the Venetian administrative systemproduced was the syndics who were charged as commissioners every five yearsto investigate irregularities and abuses of the local administration (Bodin, 1583,p. 380; Dudan, 1935). These Venetian commissioners were, in fact, dispatchedregularly and were occupied with almost every problem of the organization ofan early modern state. They represented the attempt to govern the Terraferma,
The Expert in a Historical Context 221 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 rea-sons for sending out the syndics of the Venetian mainland included, for instance, the regulation of rivers, the building of roads and bridges, the investi- gation into social conflicts, the examination of complaints about the local ad- ministration, military matters, appeals in legal cases, or the organization of de- fense reactions to the plague. But, most of these commissions dealt with eco-nomic and financial questions, with peasants who occupied land, withdifficulties 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 theirdifferent charges, they appeared under several designations, among them syn-dics (Sindici), inquisitors (Inquisitori), inspectors (Provveditori), judges (Auditori Nuovi) (Lopez, 1980), or combinations of these (Knapton, 1988). Early mod-ern discussions emphasize that finances are at the heart of politics (pecunia ner- vus rerum) (Bonney, 1995; de Maddalena & Kellenbenz, 1984; Knapton, 1989;Stolleis, 1983). The general importance of financial issues for the early modernstate also make them central for the understanding and study of commissions. The syndics offer an example of the four phases introduced earlier: A com-mission of syndics came into existence on the occasion of a problem. This prob-lem was usually identified, as such, by the state. To solve the problem, the statebrought a group of experts together. Because the syndics of the Venetian main-land were always members of the Venetian patriciate, their qualities as expertswere not mainly based on their specialized knowledge, but first of all on their so-cial status. Problems and InvestigationsOne could enumerate an exhaustive list of specific reasons for setting up a com-mission of syndics, but it was always one specific problem, a problem that couldbe named, that lead to the establishment of a commission—as if this specialproblem could be separated from other aspects of social, political, economic, orcultural life. This naming of the problem—a problem that might not have ex-isted before in the minds of the people—is the beginning of a discourse. Also, inthe progress of this discourse, the syndics produced knowledge and created truthby several means of communication, of which the commission and its expertswere 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, syn-dics were authorized, by the government, to conduct investigations on behalf ofthe government. Secondly, they were empowered to speak authoritatively onparticular subjects by virtue of their expertise. On the grounds of this authority,the commissioners found the truth.
222 Achim Landwehr The second, investigative phase was determined by the center-periphery re- lationship 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 atwho was able to control or influence the discourse during a commission. Did theVenetian 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 syn-dics arrived in cities such as Brescia, Treviso, Padova, or Udine, they first met theso-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 ofthe main functions of the syndics. The Rettori were responsible for political,legal, financial, and military matters. Thus, between the Venetian center and theperiphery of the Terraferma, and between the commissioners and the local socie-ties, various channels of communication evolved during this second phase (Tagliaferri, 1981b). Because the group of syndics never consisted of more than three or fourVenetian patricians, and because of their relatively short time in office, they de-pended heavily on the local elite in the cities (Grubb, 1988). These local eliteplayed no major political role in the Venetian territory—all the important posi-tions here were dominated by the Venetian patriciate—but the government ofVenice could not renounce the local elite entirely because of their great localpower in the Terraferma. The communication between Venice and the Terraferma was not solely dom-inated by the respective elite, but included the local population. The inhabit-ants of the cities were explicitly asked by the syndics to produce complaintsagainst the administration (Cozzi, 1982, pp. 189–191). The population of themainland always had the possibility to address themselves in any matter to theVenetian center, and they were regularly asked by the commissioners on abusesand irregularities in the administration. Thus, the so-called subjects were an im-portant political factor. These four groups, the syndics, the Rettori, the local elite, and the local popu-lation circumscribe a societal “field-of-force.” Inside this field, streams of powerand communication flowed between the participants of the commission (LeGoff, 1971; Lüdtke, 1991). Thus, one should not concentrate on the commis-sion as an institution, but as a field of interaction determined by relations ofpower, by coalition and opposition, and by cooperation and conflict. In respect to the investigative phase, it is also important to pay attention tothe form of the commission. Nowadays, many commissions are criticized be-cause of their time-wasting clumsiness in this working phase, and their ineffi-ciency in delivering results—a criticism that can also be found in the 16th or17th centuries. A commission of syndics frequently needed years to finish itsmission (Knapton, 1988, p. 47), but this