Page - 171 - in Critical Issues in Science, Technology and Society Studies - Conference Proceedings of the 17th STS Conference Graz 2018

‘[Legal and forensic] worlds are quite different…On closer inspection it becomes apparent that we…share a language only on a superficial level.’1 Evidence from empirical studies of legal, and forensic-scientific, interactions would tend to support these views. Autopoietic theories of interdisciplinary communication A focus on the problematic semantic relations of competing legal and scientific discourses (above) resonates with communicative accounts of social organization, particularly Luhmann and Teubner’s theory of autopoiesis. Autopoietic theory is predicated on a definition of society as being composed of communications, rather than individuals (and their social groups). Thus, the concept of the ‘expert’, as an autarchic agent, is dispensed with from the outset (further, the concept of enculturation is relegated to the first order social sub-system). Nonetheless, communications may be grouped together in self-propogating societal sub- systems. The interactions between these different spheres of knowledge – particularly the scientific, and governmental – has been the subject of renewed attention amongst systems theorists and, in particular, proponents of autopoiesis. Luhmann2, Teubner3, and King4, together argue that modern society has become so complex that rationality itself has fragmented. They view society as a complex system containing a group of sub-systems and argue that these sub- systems – such as law, or science – are completely self-contained, and completely self- referential. However, they may attempt to translate and absorb knowledge from each other in order to resolve internal conflicts. They propose that each of these discrete sub-systems is cognitively open to its environment but normatively (or operationally) closed. Thus, data can enter the sub-system from outside but such data will be devoid of any meaningful normative content, the normative content being applied by the sub-system itself. In other words, science and law may handle the same elements but will understand them in completely different ways which accord with the internal logic of their respective subsystems. Luhmann and his followers go into some detail on the ways in which information (such as an expert opinion) may be transposed from one sub-system to another. The legal sub-system filters communications and reconstructs them according to its own norms. Some non-legal discourses are considered capable of reproduction within the sub-system, while others are disqualified, since each sub-system filters data according to a process of binary coding. For example, the legal system filters data according to the coding lawful/unlawful. The science sub-system filters data according to the encoding true/false. This filtering process allows the legal sub-system to make use of scientific information (‘resonant stimuli’, in autopoietic terms) without ever being 1 Kruse, C. (2013) The Bayesian approach to forensic evidence: Evaluating, communicating and distributing responsibility. Social Studies of Science 2013 43: 887 2 See Luhmann, N. Operational Closure and Structural Coupling (1992) Cardozo Law Review 13/5 (1992), 1434 and Luisi, LP. Autopoiesis: a review and a reappraisal Naturwissenschaften (2003) 90:49–59 3 See Teubner, G. ed. (1988) Autopoietic Law: A New Approach to Law and Society (Berlin, New York: Walter de Gruyter) and Law as an Autopoietic System, (1993), Oxford: Basil Blackwell 4 See King, M. and F. Kaganas, The Risks and Dangers of Experts in Court (1998)1Current Legal Issues 221– 42; An Autopoietic Approach to the Problems Presented by Parental Alienation Syndrome (2002)13 Journal of Forensic Psychiatry 609–35, The 'Truth' About Autopoiesis 20 Journal of Law & Society 218 1993 and The Construction and Demolition of the Luhmann Heresy Law and Critique 12: 1–32, 2001. 171