One of the phenomenon that is strongly impacting current societies is the so called “expertization of contemporary life”. The expression evokes the increasing knowledge influence supplied from fields proper to science and technology to human life, generally, communication, information, health, tourism, environment, entertainment and education are human activity manifestations in which we can immediately recognize the huge influence the technological/scientific knowledge wields.
Law, one of the most developed culture expressions,is not stranger to this social expertization phenomenon. The issue, as we see it, does not refer to the consideration of if the knowledge of the law is properly a science. Although is not difficult to find in judicial literature expressions such as “the science of procedural law” or “the science of constitutional law”, showing the attention to the subject from several jurists, the science of law does not seem to attract much interest currently.
“Law expertization”, as we consider it, goes directly to looking into the ways that both cultural expressions are actually linked: how does law affect science? and, simultaneously, how does science impact the legal world?
The relationship between law and science
The first direction of influence, immediately brings us closer to legal provisions that point out the diverse ways the scientific world is affected by the legal world. For example, the provisions that determine the creation of institutions dedicated to science and technology development, such as the CONACYT or the SNI; or the legal provisions aimed to incentivizing knowledge production in general, through the protection of intellectual property; as well as, multiple legal provisions that set up the establishment of research or higher education institutions, or the ones that set up the budgetary mechanisms of support for the realization of these activities. In short, the examples of this influence from law towards the scientific activity are many.
On the other hand, the slope of influence from scientific knowledge towards law is the one that might be attracting more the interest from the legal world. Now it is time to look at law as a regulatory system or sociocultural construction that requires the use of scientific knowledge to achieve the application or efficiency of the law.
This direction of influence was expressed forcefully by the retired minister Jose Ramon Cossio, who pointed out that the interpretive and designer activity of legal norms done by judges requires, frequently, the act of researching the meaning of terms and concepts alien to the law, many of them provided by science and technology. We could point out other examples: “epidemic” (article 73, section XVI of the Political Constitution of the United Mexican States/CPEUM), “hydro-meteorologic phenomenon” (General Civil Protection law) or “INTERNET broadband” (CPEUM, article 73, section XVIII).
The tangible impact of science in law
A great example of the need pointed out by Cossio, within the field of the administration of justice, is the case of the judiciary protection of a member of the army that was sent to retire by army authorities with based on the articles 24, section V and 226, second category, section 106 of the Law for the Institute for Social Security for the Mexican Armed Forces, due to suffering from epilepsy or some other form of seizures or equivalents. The affected soldier requested judiciary protection by means of amparo on the grounds that the aforementioned provision is not in line with the alleged purposes that justified this rule, associated with the efficiency of the armed forces. Even the minister was the creator of a normative interpretation supported on scientific information in this significant issue.
A second “slope”, maybe less explored even through specialized literature than jurisdictional activity, but that is also supported in the impact of science in the law, is the subject of the exercise of legislative function and its support in science and technology. The issue now is How does a legislator dip into expert knowledge when building judicial norms or regulations in general?
A very similar example to the judicial protection due to seizure could give us a guideline to this kind of diverse situation. It entails an analogue amparo referring also to the same contested law in the seizure case, but in this occasion about HIV/AIDS. In a similar way to the aforementioned case, questioned the lack of care from the legislator by not distinguishing the two cases of manifestation of this illness that affects the faculties and possibilities of behavior and social interaction of the people in a very different way in function to their state of manifestation, meaning, it is not the same thing to be HIV carrier as to having AIDS. The lack of legal distinction caused that a member of the army who tested positive for HIV was put in a retirement status supported by section 45 from the second category in article 226 from the aforementioned law. This article was not constitutionally justified in light of the principles of equality and non-discrimination, and therefore the amparo was granted. Additionally, this section was abolished due to its unconstitutionality, because the wrongful qualification of a reason to consider a HIV-positive person useless to serve in the army created a wrongful constitutional discrimination situation.
This second issue points to observe a distinction between the denominated “adjudicative facts”, that are the ones known by judges in the cases submitted to their attention, and the “legislative facts” that are the concepts incorporated to the legislation as normative assumptions. Both, naturally interrelated and supported by science provided knowledge, but fulfill different functions in the legal conducts world because, meanwhile the first refer to a possible situation that occurs in reality and, therefore, must me summited to testing, the legislatives take into consideration the situations provided by science that can be used in law to build the regulatory assumption of a judicial consequence.
Last but not least. The recognition of the relationship between law and science must be known and studied from university classrooms. This means that it would be very convenient that the curricula of the training programs for lawyers consider the incorporation of approaches to the analysis in various areas of the expressions of this relationship between science and law or even the built of subjects that focus on the objective of studying these both fields of knowledge.
Luis Raigosa Sotelo
Acting Director of the Masters Program on