From: Ray Recchia (firstname.lastname@example.org)
Date: Sat 14 Dec 2002 - 20:20:11 GMT
At 06:06 PM 12/13/2002 +0000, Douglas Brooker wrote:
>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
>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
The scientific process and legal process are very different in nature. A
paper published in a journal should ideally describe a repeatable
experiment or set of observations. If the information contained in the
paper is inaccurate or incomplete then other scientists will not be able to
repeat the experiment or observations. Accurate citation is of lesser
importance if the same results can be achieved.
By contrast, a judicial decision is not a testable result in any practical
sense. Judical decisions are not descriptions of observations or
experiments. They are legal acts which govern and direct future behavior.
I suspect that Dworkin would agree with my analysis. His chain concept
involves judges deliberately using differences in factual circumstances to
modify the scope of a prior decision so that it aligns more closely with
their own moral stance. It is not a misquote or mistake on their part but
an intentional act of adaptation. It is gradual process based upon changes
in morality, not a scientific procedure.
Anyway, that's my take.
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