From: Douglas Brooker (firstname.lastname@example.org)
Date: Fri 13 Dec 2002 - 18:06:38 GMT
Ray Recchia wrote:
> Let me just add a bit: Legal citation is fundamentally different from
> scientific citation because of its adversarial nature. Scientists don't
> get paid to attack each other's work. They make progress when they can
> build on it. As a result they don't need to scrutinize every word as closely.
Ray, a few comments on this second of your two posts.
In European civilian systems law is widely (but not universally)
considered a science. When I was in Germany earlier this year I was
called a scientist to my face, something that makes someone like myself,
raised in the common law tradition, uncomfortable. In the United States
(and Canada) Legal Realism more or less is the prevailing view of law and calling a lawyer a scientist will provoke laughter.
In the above, you may be conflating the process of citation with the
purposes for which it is done. citation is the incorporation by
reference of another work to one's own. scientists and lawyers use
citation to bolster their arguments or refute those of an opponent
without having to set the whole other work out, on the basis that others
can either find it, or will know it. There is a small literature in
linguistics on citation, I recall an article by Malinowski on the
subject. There is also a body of scientific literature the purpose of
which is to disprove the claims others have made, in whole or in part.
You may also be conflating the process of a legal action with the
result. courts also use citation but issue authoritative judgements -
in both common and civil law systems. Recall Dworkin on the chain of
law? He compared it to a chain novel - each chapter written by a
separate author. This fits the description above that you attribute to
science. Most of theoretical writing about legal process, apart from
procedure, concerns what the judge does, the parties are ignored.
I have some comments on your prior message and will post these later.
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