--- ------_._----_._-------

,j 522

ANZMS 1981,

SECTION 42 : LAW

PRESIDENTIAL_ ADDRESS

BIOTECHNOLOGY, INFORMATICS AND ENERGY HOW }ruST

THE LAW RESPOND?

THE MARRIAGE OF NEW TEGHNOLOGIES

May 1984

,j 522

ANZMS 1981,

SECTION 42 : LAW

PRESIDENTIAL. ADDRESS

BIOTECHNOLOGY, INFORMATICS AND ENERGY HOW }ruST

THE LAW RESPOND?

THE ~\RRIAGE OF NEW TEGHNOLOGIES

May 1984

,.\:-lZ.-L\.S I ~j-!

SEC1'ION 42 : LAW

PRESIDENTIAL ADDRESS

BIOTECHNOLOGY, INFORMATICS AND ENERGY: HOW ~IUST

THE LAW RESPOND?

THE MARRIAGE OF NEW TECHNOLOGIES

The Hon Justice MD Kirby CMG

Chairman of the Australian Law Reform Commission

President, Law Section, ANZAAS 1984

ARE LAWYERS NECESSARY?". ~-

When .my distinguished pre~ec~or '.as J'resident of the Law Section of

ANZAAS, Pro~ess.or Douglas Wh/ilan,. addressed the 52nd Congress.Jn Sydney in Deeember

1982, he'ask~.d a~·.i~po~tant q~estion. It was wh~ther lawyers were re~lly nec~ssary to

~he scienc~la~:"relatio~hip.l' H~ outlined the dirfid~~ce of lawyers i~ 'entering the

Australian' and" New Z';aland Associatio~ 'fo~ the Adv~ncement of 'Scien~~ a~d the

reserva'tio~ of· scie'n-t~is in admif~ing the cr~ft -~~ '~';' to their ranks~- ~e C?nClud~d that

lawyers -were necessary in~he d~velopment' of scie!nce and argued for Ii concept of

'preventative or anticipatoryi\aw.2 B~t he cautioned" that lawy~rs should not "have a. , . . :'-.-.

monopoly in the Cormal law reform process. Interestingly, a similar p~int .was .m~de in

New,:z.k~aland last m~:mth by Lord Scarman. He 'urged that "lawyers must notarrog~te to

t~emselves a position of dominance in the socie~y they serve.3 Professor \-IJhalan has

rightly called attention to the pains taken by law reform bodies at least to engage other

disciplines "in dialogue and.~o prom~te·"a dialogue beyond the law about .:tJrtfp'urposes andshape of our l~g~i rUl~s and institutions. 4. ...:' .

If is ~ow clear, if ever there had been d~ub:ts, that one of the most dynamic

forces for change in the law today is the impact of science and technology on its. rules,

procedures ··a·nd personnel. Many of. the implications of scientific change are not being

addressed efficiently by the legal order. In part, this is because,.~.f. the general problem of

keeping the law up to date when the principal way of doing so 'is ttiro~h cumbersome,

sometimes medieval p!lrliamentary machinery, not well adapted to the pressures of

change of our time.

·...~.

";-'.'

SEC'I'ION 42 : LAW

PRESIDENTIAL ADDRESS

BIOTECHNOLOGY, INFORMATICS AND ENERGY: HOW ~IUST

THE LAW RESPOND?

THE MARRIAGE OF NEW TECHNOLOGIES

The Hon Justice MD Kirby CMG

Chairman of the Australian Law Reform Commission

President, Law Section, ANZAAS 1984

ARE LAWYERS NECESSARY? '-. ~-

;.- ." . . . -.' "

When my distinguished pre~ec~or ',as J'resident of the Law Section of

ANZAAS, Prqfessor' ~ouglas Whalan,_ ad~ressed ~~e 52nd congre~s)~ Sydney in ~eC~mber

1982, he"aske.d an" important question. It was whether lawyers were re~lly necessary to

~he SCienC~la~'" relatio~hip.l- H~ outlined" t~e dirfid~~ce of lawYers i~' enteri.ng the

Australian' and" New Z'ealand Association -for the Adv~ncement of 'Science and the

reservations of sci~n-tisis in admItting the cr~ft of law to their ranks~ He concluded that

lawyers -were necessary in the d~v~lopment: ~i' ~ciEmce and argued f6r ~ concept of

'preventative or anticipatory,'\aw) B~t he ca~ti6ned" that lawy~rs should not "have a . , - :'-.-.

monopoly in the Cormal law reform process. Interestingly, a similar p~int was _ made in

New. :z.k~aland last m~:mth by Lord Scar man. He -urged that "lawyers must -~ot arrog~te to

t~emselves a position of dominance in the socie~y they serve.3 Professor \-IJhalan has

rightly called attention to the pains taken by law reform bodies at least to engage other

disciplines "in dialogue and to promote".'a dialogue beyond the law about _tJrtfp'urposes and shape of our l~g~i rUl~s and -instit~tions. 4- - .. -':-' - -

If is now clear, if ever there had been d~ub:ts, that one of the most dynamic

forces for change in the law today is the impact of science and technology on its. rules,

procedures ··a·nd personnel. Many of. the implications of scientific change are not being

addressed efficiently by the legal order. In part, this is because._~.f. the general problem oC

keeping the law up to date when the principal way of doing so 'is ttiro~h cumbersome,

sometimes medieval p!lrliamentary machinery, not well adapted to the pressures of

change of our time.

-2-

In part, it is because of a certain problem of communications between scientists and

technologi~ts, on the one hand,and lawyers and lawmakers on the other. We tend (with

notable exceptions) to speak a d~fferellt language and to look at the world through

difference spectacles. The -first group' tend to be those who at school were good at

mathematics. The second group tend to be those to triumphed in poetry 'arid had a skill

with words. Fe.w are the lawyers who arE: trained in science. O~e notable exception is Mr.

Justice '~1u~phy of the High Court of Australia and President of the Criminology Section

of ANZAAS. He graduated with Honours in Science and maintains his interest in scientific

journals. Most lawyers. and lawmakers find scientific _~hange mysterious, perplexing and

uncomfortable. Little"~orider that they te"nd to put its legal'implications into the Itoo hard

basketl•

Mind you, lawyers and ~cientists shar~ certain things in common. The law

operates on.proved, not 'certain, facts. In this sense, lawyers and scientists are content to

work with a notion. of relative truth. Claims to absolute verities are left to priests and

politicians.

In the time available to me for this Presidential address, there is no opportunity

for an elegant discourse on the history of famous legal scientist~.Nor can I indUlge myself

with tales of early legal reactions to scientific heresies. (We burned their authors). Nor is

there time for an analysis of interesting forensic cases, such as the trial of Dr. Crippen,

gripping tho~gh thar·: rnIght be. )~tead, I must spEHld m~. allotted' 'time telling, you

~o~ething ~bout 'the A~stralia~-La~ Reform Commi~ion~ det~iiirii some' of' the ca~es in:,

which we h~ve propo~'~d iaw 'reform to put scientific and tecllOological change to the

ser~ic'~. of the law. T!len, .~ s'hail,lnst,ance q~iCkl~ th.e thre,e principal areas of science

which r see as promoting special problems for 'the law : biotechnology, informatics and

new energy scien~es. I·shali ~~nclude with 'comm~nts on th~ institutional pr~blems posed

. for Australian society by the engine of scie":ce and tec~nologY.

USING SCIENCE AND +E;(;HNOLOGY

......Almost every one of the tas~s assigned by ~uccessive Attorneys-General to the

Australian Law Reform Commission h'a~ involved, directly or indirectly, the pressure for. '. ,., -.'

legal change caused bYAidvances in---:sciEmce and technology. In recognition of this fact, :.::.

from the very- outset' 'we" have sough~-' to attract to ·olj"l·d~liberations, consultants from' ­

various scientific disciplines ,able to help us in the tasks of law reform. In a number of

reports, a great deal of attentionJ18s been paid to mobilising scientific advances, to set at

rest agEH>ld disputes:

-2-

In part, it is because of a certain problem of communications between scientists and

technologi~ts, on the one hand, and lawyers and lawmakers on the other. We tend (with

notable exceptions) to speak a d~fferellt language and to look at the world through

difference spectacles. The" first group' tend to be those who at school were good at

mathematics. The second group tend to be those to triumphed in poetry "arid had a skill

" with words. Pe,w are the lawyers who ar~ trained in science. O~e notable exception is Mr.

Justice -~1u~phy of the High Court of Australia and President of the Criminology Section

of ANZA:AS. He graduated with Honours in Science and maintains his interest in scientific

journals. Most lawyers and lawmakers find scientific change mysterious, perplexing and

uncomfortable. Little-'~orid~r that they te"nd to put its i~gal implications into the Itoo hard

basketl•

Mind you, lawyers and ~cientists shar~ certain things in common. The law

operates on.proved, not 'certain, facts. In this s~nse, lawyers and scientists are content to

work with a notion. of relative truth. Claims to absolute verities are left to priests and

politicians.

In the time available to me for this Presidential address, there is no opportunity

for an elegant discourse on the history of famous legal scientist~. Nor can I indulge myself

with tales of early legal reactions to scientific heresies. (We burned their authors). Nor is

there time for an ana~ysis of interesting forensic cases, such, as the trial of Dr. Crippen,

grip-ping th"o~gh thai'-'- rnIght be. I~tead, I must '~perid my 81!?tted -~ime te~ng you

so~ething about 'the A~stralian·Law Reform Commission; detahiiig some- of ' the ca~es in:,:

which we h~v~ propo~"~d iaw 'r~form to put scientific and technologicai' change to the

ser~ic-~ of the law. Then, I s-hall Instance quickly the thre.e principal areas of science

which "i see ~ p~~m~t~ng ~p~cial "prOblems for 't~e m:w : biotechnology, informatics and

new en'~rgy sciences. I ~hali ~~nclude with 'comm~nts on th~ institutional problems posed

- for Australian society by the engine of sCie":ce and tec~nology.

USING SCIENCE AND +E(;HNOLOGY

Almost every one of the tas~_s assigned by ~uccessive Attorneys-General to the

Australian L~w Reform Commissi~n h'as involved~ directly or indirectly, the p:~ssure for

legal change caused bYAidvances in<sciEmce and technology. In recognition of this fact, :.:.:.

from the very' outset 'we' have sough~" to attract to 'olj"r;:d~liberations, consultants from· '

various scientific disciplines .able to help us in the tasks of law reform. In a number of

reports, a. great deal of attention:·has been paid to mobilising scientific advances, to set at

rest agEH>ld disputes:

-"5.

- J -

~.'

In ·the Commission's report 00.- Alcohol. Drugs and Driving prepared for this

Territory,. proposals were .made for the use of the modem Breathalyzer which

~would~priot out the result of its analysis. The facility was ~dvised fot:' taking skin,

bI90dand'.other body samples to recognise the limitation of the Breathalyzer,

which is' not specific to drugs other than alcohol~ These proposaIs"were adopted and

are,law.

In~.our'report on Criminal' Investigation we sought to grafton to the po!,ice

procedures, 'many of them· virtually unchanged since Robert Peel laid: them down in

1829 London, the new facilities of science and technology. To help lay at rest the

disputes about' the. Cair conduct of identity parades·;7-~we.-proposed photography of

sucn par~des. To help lay at rest the disputes about conf~ssionalevidence to police,

we proposed tape recording, wherever practicable,'of such confessions. To help

maintain the indep~ndent judicial superintendence 'of intrusiv~ police actions, we

proposed telephone warrants for police in emergency cases. All of.. these proposals

have been adopted. They are part of the Criminal Investigation' Bill _Which the

Attorney-General has indicated he will introduce into Federal Parliament soon.

That Bill,. --embracing ·the· advantages of science and techn<?logy for police

procedures will represent one of the: most important law reform measures ever to

be placed before' 'Federal Parliament. I- have no doubt that "tape· ·and,- video

recording, when poli~e become.' used to it, will:.prove one olthe most important

weapons in the armoury. of police.in their~ightagainst crime.

In the current project of the Commission on the law af Evidence,. we are· examining

ways in which the rules of evidence: app~ed in Federal courts can be tested against

modern psychological research. Experiments show.. that uninterrupted testimony is

much more reliable:'as a reproduction of· accurate recall than. testimony which is

punctuated by questions.• -Experiments-,·show·conclusively·'that such.questions can

distort the reply. When a test group was shown a basketballer, a~~' half were asked

'how tall is the basketQaller' and half asked 'haw short is the basketbal.l.erl, the

average differ~nce in resp?nses 'was as much as ten.. inches. Yet testimony j~. our

:'y~ourts is produced:by techniques of rapid-fire quest~oning.. Can a legal. technique so

-::·8.ncientand fundamenta~ be changed by the' mere proof or scientists.,that the

centuries-old' 'ways lawyers have been doing things may contribute' to positive

. distortion' of recall?

Even projects _which do,'not ap~ear. to ha~e a cle~r association:...,:,:fih. science and

technology can .be shown to be profoundly' influenced by these forces. Thus, for

example, the current reference 'on reform of the law' governing' Serv.ice and

Execution of Process throughout A~straliaisJ.. "in, part, a reaction·:. to the

development of fast"aeroplanes that can' bring witnesses to different parts' of the

condn~~t with speed lind without undue inconvenience.

-------~~~

~--------------_.~-~----~--------~~-~-~------~._-~~~.-"---_.-----_.._--._,--------~--------~~~

- -

- J -

In -the Commission's report 00,- Alcohol. Drugs and Driving prepared for this

Territory,_ proposals were -made for the use of the modem Breathalyzer which

~would-priot out the result of its analysis. The facility was ~dvised fot:' taking skin,

blpod and- _other body samples to recognise the limitation of the Breathalyzer,

which is'not specific to drugs other than alcohol. These proposaIs,_were adopted and

are,law.

In ~_ our report on Criminal' Investigation we sought to graft on to the po!,ice

procedures, -many of them- virtually unchanged since Robert Peel laid- them down in

1829 London, the new facilities of science and technology. To help lay at rest the

disputes about' the- Cail" conduct of identity parades';7-~we_- proposed photography of

sucn par~des. To help lay at rest the disputes about conf~ssional evidence to police,

we proposed tape recording, wherever practicable, -of such confessions. To help

maintain the indep~ndent judicial superintendence 'of intrusiv~ police actions, we

proposed telephone warrants for police in emergency cases. All of._ these proposals

have been adopted. They are part of the Criminal Investigation' Bill which the

Attorney-General has indicated he will introduce into Federal Parliament soon.

That Bill,_ --embracing -the- advantages of science and techn~logy for police

procedures will represent one of the- most important law reform measures ever to

be placed before' 'Federal Parliament. I- have no doubt that "tape· -and'- video

recording, when poli~e become_- used to it, will:. prove one of the most important

weapons in- the armoury. of police.in their ~ight against crime.

In the current project of the Commission on the law of Evidence,_ we are- examining

ways in which the rules of evidence: app~ed in Federal courts can be tested against

modern psychological research. Experiments show .. that uninterrupted testimony is

much more reliable. as a reproduction of -accurate recall than. testimony which is

punctuated by questions_. -Experiment5--c-show ·conclusively·'that such _questions can

distort the reply. When a test group was shown a basketballer, a~~- half were asked

'how tall is the basketQaller' and half asked 'how short is the basketbal_l.er', the

average differ~nce in resp?"ses -was as mUch as ten .. inches. Yet testimony j~_ our

:·.,,~ourts is produced:by techniques of rapid-fire quest~oning._ Can a legaL technique so

'::'ancient and fundamenta~ be changed by the- mere proof or scientists_,that the

centuries-old' 'ways lawyers have been doing things may contribute' to positive

. distortion' of recall?

Even projects _which do· 'not ap~ear. to ha~e a cle~r association: .. .,:,:fih- science and

technology can .be shown to be profoundly- influenced by these forces. Thus, for

example, . the current reference 'on reform of the law' governing- Servjee and

Execution of Process throughout A~stralia is, .. 'in ,part, a reaction- '. to the

development of fast.-aeroplanes that can' bring witnesses to different parts-of the .. -.

continent with speed lind without undue inconvenience.

.~.

~.'

~-------------~-'~-~----~------------------------~~-,------.~ -----'"----,--------~-

- -i -

In these circumstances, some of the preconditions for the interstate summoning of

wit.nessesand other ·evidence may "need 'review•. The reference: on Admiralty

Jurisdiction requires the Commission to, consider whether that __ancient jurisdiction

of the co~rts should be ·expanded to include new vessels:akin- to .ships : hovercraft

and even 'aircraft of various kinds. The ref.erenceon Contemot of 'court presently

under 'consideration by the Commission is made acutely relevant by the

developments in the modern cm'ediaof·~~'mm!1nications.A statement by Mr Norman

Gallag'-llerabout.· jUdges of ·the Federal 'Court may-do little t6 'harm that court's

esteem in ·the public eye or to diminish respect for the .administratio~ of justice.

Yetwhenretfculated through radio and television to 'the homes of millions, it may

require':'Sbme response by the courts. In virtually every project of the Australian

Law' Reform Commission, past ',and present, some aspect of the impact of science

and .technology can be seen.

PROBLE""S OF SCIE·NCE

Energy Sciences. If one were to identify the thr.ee principal areas of science in

which great advances ·are occurring that will have' implications for the.law, one would

mention ·the energy sciences, informatics .and .biological developments. The South

-Australian Law 'Reform ,Committee has looked'.at changes .in the law·,that will be needed

with any advance- in·~.the use of solar energy in Australia. They have examined such

rna!ters as the:

rights of access-.to solar. radiation

building and planning implications

consumer protection f.a:r.. ,~olar. energy appliances

. contr.ol of solar radiation

None of these matters has, yet been committed to the Australian -Law Reform

Commission. One has oni;"to think of the revolution in SOCi~ty 'and the law brought about

by the motor car to consider the potential for leg.a~::.change that will attend any major

shift from fossil fuels. Dr Bradbrooke presented ~o' the last ANZAAS Congress an

important series of papers on the legai impiications of solar energy. The implications of

wind energy and hydrO:':'.~lec~.ric,_ener:gy have also-been the subject of recent stUdy. Th,E:.

DEeD alre8dYPublish~'0 regUlar j~~rn8l simply titl~d:,-:fNuclear Law'. It is difficult to

foresee the implications of changing energy sources for our legal system. If we go down

the nuclea.r path some of our traditional civil liberties may have to be modified because of

the need for greater security around -nuclear establishments.

- -i -

In these circumstances, some of the preconditions for the interstate summoning of

wit.nesses and other ·evidence may ··need ·review •. The reference: on Admiralty

Jurisdiction requires the Commission to. consider whether that ,ancient jurisdiction

of the co~rts should be ·expanded to include new vessels:akin- to .ships : hovercraft

and even aircraft of various kinds. The ref.erence on Contemot of 'court presently

under 'consideration by the Commission is made acutely relevant by the

developments in the modern cm'edia of·~~'mm!lnications. A statement by Mr Norman

Gallag'lIer about.· judges of ·the Federal 'Court maY'do little t6 'harm that court's

esteem iIi ·the public eye or to diminish respect for the .administratio~ of justice.

Yet when retrculated through radio and television to the homes of millions, it may

require':'Sbme response by the courts. In virtually every project of the Australian

Law' Reform Commission, past· and present, some aspect of the impact of science

and .technology can be seen.

PROBLE!IIS OF SCIE"NCE

Energy Sciences. If one were to identify the thr.ee principal areas of science in

which great advances ·are occurring that will have' implications for the .law, one would

mention ·the energy sciences, informatics .and .biological developments. The South

-Australian Law 'Reform ·Committee has looked·.at changes .in the law·,that will be needed

with any advance' in·~.the use of solar energy in Australia. They have examined such

rna !ters as the:

rights of access· . .to solar. radiation

building and planning implications

consumer protection f.O:r. ,~olar. energy appliances

. contr.ol of solar radiation

None of these matters has. yet been committed to the Australian ·Law Reform

Commission. One has onl;.'1:0 think of the revolution in sOCi~ty 'and the law brought about

by the motor car to consider the potential for leg.a~,,:.change that will attend any major

shift from fossil fuels. Dr Bradbrooke presented ~o' the last ANZAAS Congress an

important series of papers on the legal impiications of solar energy. The implications of

wind energy and hydrcr.~lec~.ric,.ener:gy have also'been the subject of recent stUdy. Th,E:.

OEeD already pUblish~'S regular j~~rnsl simply titled:.-;-Nuclesr Law'. It is difficult to

foresee the implications of changing energy sources for our legal system. If we go down

the nuclea.r path some of our traaitional civil liberties may have to be modified because of

the need for greater security around nuclear establishments.

. ---~

+ •..•

- ,) -

Informatics." The impact of tl)e microchip is only now being felt in the legal

priJfession~ So far it- has involved word' processors, the beginnings of computer retri~valof

legal data' and greater office efficiency. H~wever, I have no doubt that in time

."computiarisation: of land titl-es"will greatly, reduce the"rele which lawyers play in land

conveyancing in Australia. As this presently represents 50% of the fee income of the legal

profession of this country, the implications of this change for a widely distributed service

. ;professi.on must be carefully evaluated and, above all, 'prepared for.

In' terms of the substantive law,,- a number of areas of operation will need

reconsideration to adjust to the' world, of computicati6trs : - computers married to

telecommu'nications systems~ I' leave aside such~matterS 'as national seCurity, the'irTi'pact

of worldwide computications on national languages"arid culture. -If- 'w'e just 'look at -the

changes in our laws that m~y be needed for the greater vulnerability of the wired society,

for the greater protection of the privacy of individuals" mrespect of,'~<?mputerised

personai information data banks and the need for modification of aUf courtroom rules for

the introduction of computer-generated evidence,-'we can see that there is a major task

for reform ahead. The Australian Law Reform Comrnissionin late'l983 delivered a major

report on Privacy protection. The 'report pro'pOsed' new FederaL-laws. on- data protection

and data se~urityr telephonic' interceptions; electronic surveillance and control of the

growing powers' of officials to enter into property and the personal space or-individuals.

Yet this project on privacy'is only one, of the many tasks for law reform"posed

by the advent of the new'-information'technology. There are other tasks to be addressed:

the growing Vulnerability of the wired'~,societyand the: need for laws to' protect

society and, its 'members, against- the dangers posed ,by terr.orism, accident, mistake,

natural and man-made disasters ilnd industrial disruption;

the need for new laws' on computer crime, to take' cognisance of'the·'fact that the

theft of information may~' in 'the nature 'of the~' new ,technology, irtvOlve:· no

,'"asportation of property known to the law., The 'hardware and the software, may not

':6~' carried away. Access 'to the" data itself may be sufficient to commit ·the

wrongful act. The la~'l, often framed in terms apt for the time When the medium

and the message were inseparable, ,must be adjusted for' a time wh.~t:I,.they can bedivorced; :,~ .

intellectual property law needs, reform, as' 'may be' 'illustrated in the recent

litigation in .Australia', and- elseWhere involVing the' :Apple Computer Company. But

what Jorm ,should--that ,:new -law take? 'Should ·w,e, as some urge, embrace the

princip~~'of 'software liberation' or must we in' Australia protect the intellectual

property claimed by those who, devise new soft·....are?

- .) -

Informatics,," The impact of tl)e microchip is only now being felt in the legal

priJfession~ So far it- has involved word- pro(!essors, the beginnings of (!omputer retri~va1 of

legal data' and greater office efficiency. H~wever, I have no doubt that in time

."computerisation_ of land titI-es-'will greatly- reduce the role which lawyers play in land

conveyancing in Australia. As this presently represents 50% of the fee in(!ome of the legal

profession of this country, the implications of this change for a widely distributed service

" 'professi.on must be carefully eValuated and, above all, 'prepared for.

In' terms of- the substantive law,,- a number of areas of operation will need

reconsideration to adjust to the- world· of computicati6rrs : computers married to

telecommu-nications systems~ I' leave aside such~ matters: -as national seCurity, the'il'Ti'pact

of worldwide computications on national languages"arid cUlture. -If- 'w'e just -look at -the

changes in our laws that m~y be needed for the greater vulnerability of the wired society,

for the greater protection of the privacy of individuals" in respect of_ -~<?mputerised

- personai information data banks and the need for mOdification of our courtroom rules for

the introduction of computer-generated evidence;"we can see that there is a major task

for reform ahead. The Australian Law Reform Commission in late-1983 delivered a major

. report on Privacy protection. The 'report pro'posed, new Federal laws on- data protection

and data se~urityr telephonic' interceptions; electronic surveillance and control of the

growing powers' of officials to enter into property and the personal space of -individuals.

Yet this project 00 privacy- is only one- of the many tasks for law reform-'posed

by the advent of the new;-informatioo'technology. There are other tasks to be addressed:

the growing vulnerability of the wired-',society and the: need for laws to- protect

society and- its 'members- against- the dangers posed -by terr.orism, accident, mistake,

natural and man-made disasters and industrial disruption;

the need for new laws- on computer crime, to take- cognisance of -the'-fact that the

theft of information may~" in 'the nature 'of the ~'new ,technology, irtvolve:· no

:"asportation of property known to the law.-The'hardware and the software, may not

"6~' carried away. Access ,to the"data itself may be suffici~nt to commit ·the

wrongful act. The la~'l, often framed in terms apt for the time when the medium

and the message .were inseparable, -must be adjusted for- a time wh.~t:I_. they can be divorced; :,~ .

intellectual property law needs, reform, as- ,may be' 'illustrated in the recent

litigation in Australia'- and- elsewhere involving the' :Apple Computer Company. But

what :form ,should-.that -:new -law take? 'Should ·w_e, as some urge, embrace the

princip~~' of 'software liberation' or must we in' Australia protect the intellectual

property claimed by those who_ devise new soft· .... are? "--;:'- .

'. '-./

- Ii -

the risk of computer error may re9uire special contracts and spe~ial insurance;

the law of evidence requires modification, and some· modificati,ons have already

been introduced, to ensure that computer and computer-generated evidence can be

admittep, in the courts, despite the general rules against the admission of hearsay

testimony.

Bia-ethics. The field of bio-ethics presents the most dramatie and in some ways

the most difficult area where science- promotes the need for law reform. The Law Reform·

Com mission, by a colleetion of distinguished legal, scientific,- philosophical and

theological consultants, produced a report on Hum_an Tissue··lfransplants. rhat report has

._now been adopted in all but, one-,of the jurisdictions of Austra,lia; It ,deals with. sU~h

controversial implications of transplantation as:

." the definition of brain _death

the regime for donations or the sUbstitution of a legal system of implied donation

the question:of donations. by legal minors" under_ the age of 16, to siblings of

non-regenerativetiss.ues in the case of mortal need

the use of ,organs and, tissues from coroners' _cadavers for the production of serum,

in the name of a pUblic interest wider than r,espect for- the bodily integrity of the

dead..

The success of- the implementation of the, Human Tissue Transplant report in several

jurisdictions of- Australia shows ·that progress can' be made in Jaw reform concerning

bio-ethics, if the right techniques of expert and public consultation are carefully followed.

The success of that project, opens up .the possibilities ~lor- .law reform work in many

associated areas of great sensitivity. These are neither hypothetical issues, nor are they

likely conveniently to go. n~ay. They are specially uncomfortable for politicians in the

lawmaking process because o~ the high emotions that they raise. Yet unless the

democratic lawmaking system is to prove incompetent to handle such questions~ we ~all

c'contin~~. to have serious problems associated with bio-ethical- questions posed for us 'by

the o~rti$h'of the technologists. I refer to such issues- as:

the growing use of artificial insemination by donor (AID)

the use of foetal tissue for experiments

the issue of euthanasia and the right of term'inal patients in pain to elect to die or

not to have 'extraordinary medical means' applied to their survival

the predicament, of doctors at the birth of· a spinabi.fida child or a child born

grossly mentally retarded. The jury trial of Dr Leonard. Arthur in England shows

that thi~--is far from an academic question.

- ti -

the risk of computer error may re9uire special contracts and spe~ial insurance;

the law of evidence requires modification, and some· modificati,ons have already

been introduced, to ensure that computer and computer-generated evidence can be

admittep, in the courts, despite the general rules against the admission of hearsay

testimony.

Bio-ethics. The field of bio-ethics presents the most drama tie and in some ways

the most difficult area where science- promotes the need for law reform. The Law Reform·

Commission, by a collection of distinguished legal, scientific" philosophical and

theological consultants, produced a report on Hum,an Tissue-·!fransplants. rhat report has

. _ now been adopted in all but one, ,of the jurisdictions of Austra,lia; It ,deals with. su~h

controversial implications of transplantation as:

." the definition of brain ,death

the regime for donations or the substitution of a legal system of implied donation

the question:of donations: by legal minors" under, the age of 16, to siblings of

non-regenerative tiss.ues in the case of mortal need

the use of ,organs and, tissues from coroners' _cadavers for the production of serum,

in the name of a public interest wider than r,espect for- the bodily integrity of the

dead .. -"./

The success of, the implementation of the Human Tissue Transplant report in several

jurisdictions of- Australia. shows ·that progress can' be made in law reform concerning

bio-ethics, if the right techniques of expert and public consultation are carefully followed.

The success of that projectc opens up. the pOSSibilities -lor- Jaw reform work in many

associated areas of great sensitivity. These are neither hypothetical issues, nor are they

likely conveniently to go. n~ay. They are specially uncomfortable for politicians in the

lawmaking process because o~ the high emotions that they raise. Yet unless the

democratic lawmaking system is to prove incompetent to handle such questions~ we ~all

c'contin~~, to have serious problems associated with bio-ethical- questions posed for us 'by

the o~rti$h-of the technologists. I refer to such issues' as:

the growing use of artificial insemination by donor (AID)

the use of foetal tissue for experiments

the issue of euthanasia and the right of term'inal patients in pain to elect to die or

not to have 'extraordinary medical means' applied to their survival

the predicament of doctors at the birth of· a spina bi.fida child or a child born

grossly mentally retarded. The jury trial of Dr Leonard Arthur in England shows

that thi~--is far from an academic question. :'- .

~., -.

- "j -

the advance of genetic engineering

the. development of children by the processes of i!1 vitro fertilisation which has

been pioneered in part by Professor Carl Wpodandhis team of scientists in

Melbourne.. Australians haVe not been in the forefront of working out the legal

implications, of this development.. Should IVF be confined to married couples?

Should' freezing and retention of the human embryo be permitted? If so, should it

be--permitted for' up to 400 years. as is said to be technically possible? What should

happe'n+'on- thE!" death or divorce of. the donor parents? Should' surrogate, parenthood

be permitted' and if so,- with what rights and duties? What are the implications for

the passing of property and for human identi ty? This is one ~rea Where our

scientifict:capacity has, so far, completely outstripped our legal ingenUity. Since

Professor Whalan1s-address Which touched upon this topic a nuinberof legal reports

have been- delivered- in Australia including by the Victorian· Law Reform

CommisSioner (Professor Louis Waller) and by Ii committee in-Queensland'chaired

by Justice '~la:ri"Demack.5

the development 'of artificial intelligence" .including by the marriage of computing

and biological 'sciences. We are now told that the next generationoC space

exploration -probes is likely to rely almost exclusively on computerised and

automated control systems based on~ artificial' intelligence

MARRIAGE OF NEW TECHNOLOGIES

What is not Jully realised, especiaily amongst lawy;~rs" is ·that :the -sci~ntific:"

developments I have 'mentioned' are coming together in a marriage of technologie$

Already we 'hav'e'seen, during the last' decade,. .the marriage of computers and

telecommunications. The microchip" haS:--beeri--linked to the satellite. Software has been

linked by telefacsimile. Computers- chatter away wi~ computers on the other side of the

world. The integration "of information" technologies in this- way has demanded the

development of a new' no~enclature~'One French Minister, ~n apparent relatiationagainst

Franglais,- devised" the WON:t 'computications"': "c6mputers linked by telecommunications.

But it is now increasingly-accepted that the word'infqr-rnatics' will embrace the marraige

of information technologIes. Informatic~:poses new da~ers, requiri'ng legal responses. It is

one thing for'a stand-to computer .'to collect· data in a way more eCficie~t than the

old-fashioned Ciling systern~;'It"is' quite,..'-ariother to distribute' that data widely, 'so:that, say".·.:.

personal 'information IS a~ailable at t~~ fingertips of ii":fKotisand~interrogatorSin dir~erent'­parts of the country or on-the- other side of'the world.'-A recognition of-these dangers to

individUal freedoms, national safety and international cultural values'has led to the search

for international guidelines that can be adapted in domestic law.

- "j -

the advance of genetic engineering

the, development of children by the processes of i!1 vitro fertilisation which has

been pioneered in part by Professor Carl Wpod and his team of scientists in

Melbourne.. Australians haVe not been in the forefront of working out the legal

implications, of this development .. Should IVF be confined to married couples?

Should' freezing and retention of the human embryo be permitted? If so, should it

be--permitted for' up to 400 years. as is said to be technically possible? What should

happe'n+'on- th-e- death or divorce of the donor parents? Should' surrogate, parenthood

be permitted' and if so,- with what rights and duties? What are the implications for

the passing of property and for human identi ty? This is one ~rea where our

scientifi-c:capacity has, so far, completely outstripped our legal ingenuity. Since

Professor Whalan's- address which touched upon this topic a nuinber of legal reports

have been- delivered- in Australia including by the Victorian, Law Reform

CommisSioner (Professor Louis Waller) and by a committee in Queensland'chaired

by Justice '~la:ri"Demack.5

the development 'of artificial intelligence" -including by the marriage of computing

and biological ,seiences. We are now told that the next generation oC space

exploration -probes is likely to rely almost exclusively on computerised and

automated control systems based on,artiCicial'intelllgence

MARRIAGE OF NEW TECHNOLOGIES

What is not .:.fully realised, especiaily amongst lawY'~rs" is 'that :the -sci~ntific:" '

developments I have 'mentioned' are coming together in a marriage of technologies.

Already we' have 'seen, during the last 'decade, ' the marriage of computers and

telecommunications. The microchip" has--been--linked to the satellite. Software has been

linked by telefacsimile. Computers' chatter away wi~ computers on the other side of the

world .. The integration "of information'- technologies in this- way has demanded the

development of a new' nomenclature~ One French Minister, in apparent relatiation against

Pranglais,- devised" the w~N:t 'computications' : computers linked by telecommunications.

But it is now increasingly-accepted that the word 'infqr-rnatics' will embrace the marraige

of information technologIes. Informatie~: poses new dangers, requiri'ng legal responses. It is

one thing for'a stand-to computer ,'to collect· data in a way more eCficie~t than the

old-fashioned filing systern~"It"is- quite,:'-ariother to distribute'that data widely, 'so :that, say,.,'.:.

personal 'information IS a~ailable at t~~ fingertips of a':'fKo'tisanddnterrogatorS in dir~erent" parts of the country or on-the- other side of'the world.'-.-\. recognition of- these dangers to

individUal freedoms, national safety and international cultural values' has led to the search

for international guidelines that can be adapted in domestie law.

- 6 -

It was one such search, in the Organisation fOf. Economic. Co-operation nod Development,

thatabsor!'ed my e~ergies in 1978-80 in the development ~f the guidelines on privacy and

trans border data flows. Notably, ~hat eff9rt _was rewarded with success, in the adoption

of the guidelines by the Council.of .the DEeD. A,t -this time,_ five y-ears later, Australia is

one of three countries only in the OEeD which has not -adopted the 'guidelines. T~e reason

given has been tii'e need to consult the States. It is, ao, unconvincing reason and,

constitutiqf!~l1y .speaking,. 8 quite unnecessary one•. Yet it illustrates the difficulty we

have in'-;Australia 4nadjusting the languid law-making process of a federation to the

international necessities of rule-making for a _common, instantaneous universal

fast-:-J11ovingtechnology•

.. If ,the .marriage of cOTlJputers,. a.nd:telecommunicationsposesdilemmas in the

form of informatics, much more puzzling are· the problems now b~ing presented by the

marriage of.,informaticsand biotechnology. Jt is,now clear th~t within the coming decade

the information tectulology, industry and the life sciences will join together in.a new field,

one aspect· of, w~ich will. be molecular elec._~~onics. Companies such as the Mitsui

Corporation of Japan afe already planning for,this,'marriage1.by acquiring a large stake in

both bi~techno~ogy,and. micro-ele,ctronics. Tl1e ·obje,ctiveis.to tu.rn living material into

bio-computers and to. us:~ tJ:1ese bio-computers to engineer further liv~l1;g .-material.6 In

the future, it has been predicted, bio-computers will be partly engineered directly into

living systems just as .. micro-computers are engineered into mechanical systems'. today.

Such bio-computers ~in_ monitor activity, adjuSt -performance, spe.ed up or slow. down

.metabolic. activity,. tr~_nsroI:m living ma~erial i~to pre:ducts an~ perform numero~.other:, ,:

supervisory functi(;ms.· Scien~ists are now even writing a~ut the, day, when computers,

made of living material, will aut9maticaUyreproduce themselves, thereby blurring the

remaining distinctionsbetwe.~~M~ing and mechanical processes.

This merger of biote~hnology and computer and communications technologies

has been dis~USSed ina· r~cent book called I Algeny' by Jeremy ,RifkIn. Rifkin concludes

that in the new era of interacting advance~ technologies, the distinction between living

processes and mechanical processes_ will be _blurred~ I.I~ says that mankind in the future

will live in a world engineered and populated b:.' the creations of the new technology.

Rifkin claims that fu~urologists have:g:enerally: failed \0 perceive the full significance of

the interacting techno,l9g'ie~~, ·.I-fe ~~ys' that people have tended to see the': computer

revolution as nothing ·~'~~e t~an a n~~-' method ,of orga~isfrig information -in the industri~iage - a kind of sophisticated filing system. But it -is Rifkin's thesis that the industrial age

reached, it apogee in the .earlY~~l-970s and that since that time we have entered the

post-industrial era. Because non-renewable energy is the organising material of the

industrial age, its depletion, early signs of whic~ were shown to us in 1974, marks the end

of the economic era built from fossil fuels and maintained by them.

- 6 -

It was one such search, in the Organisation for. Economic. Co-operation nnd Development,

that absof!'ed my e~ergies in 1978-80 in the development ~f the guidelines on privacy and

trans border data flows. Notably, ~hat eff9rt was rewarded with success, in the adoption

of the guidelines by the Council.of .the DEeD. A,t -this time,. five y.ears later, Australia is

one of three countries only in the OEeD which has not -adopted the 'guidelines. T~e reason

. given has been tii'e need to consult the States. It is. a~, unconvincing reason and,

constitutiqf!~l1y . speaking, -a quite unnecessary one._ Yet it illustrates the difficulty we

have in'-;Australis -in adjusting the languid law-making process of a federation to the

international necessities of rule-making for a _ common, instantaneous universal

fast-:-J11ovingtechnology •

.. If .the . marriage oC cOTlJPuters.a.nd ·telecommunications poses dilemmas in the

form of informatics, much more puzzling are· the problems now b~ing presented by the

marriage ot..informatics and biotechnology. Jt is,now clear th~t within the coming decade

the information tectulology. industry and the life sciences will join together in.a new field,

one aspect of. w~ich will· be molecular elec._~~onics. Companies such as the Mitsui

Corporation of Japan are already planning for this . 'marriage' .by acquiring a large stake in

both bi~techno~ogy ,and. micro-ele,ctronics. Tl1e ·obje,ctive is. to tU.rn living material into

bio-computers and to. U5:e t1:1ese bio-computers to engineer further liv~~g .-material.6 In

the future, it has been predicted, bio-computers will be partly engineered directly into

living systems just as .. micro-computers are engineered into mechanical systems'. today.

Such bio-computers ~ill monitor activity, adjuSt -performance, spe.ed up or slow. down

.metabolic, activity,. tr~_nsrox:m living ma~erial i~to pra:ducts an~ perform numero~. other:,':

supervisory functi(;ms.· Scien~ists are now even writing a~ut the. day, when computers,

made of living material, will aut9matically reproduce themselves, thereby blurring the

remaining distinctions betwe.e~ l.i~ing and mechanical processes.

This merger of biote~hnology and computer and communications technologies

has been dis~ussed in a recent book called I Algeny' by Jeremy, RifkIn. Rifkin concludes

that in the new era of interacting advance~ technologies, the distinction between living

processes and mechanical processes_ will be _blurred~ I.I~ says that mankind in the future

will live in a world engineered and populated b:.' the creations of the new technology.

Rifkin claims that fu~urologists have:g:enerally: failed \0 perceive the full significance of

the interacting techno.l9gie~~, ·.ffe ~~ys' that people have tended to see the': computer ....... "': .

revolution as nothing 'more than a new_ method ,of organising information -in the industriai

age - 8 kind of sophisticated filing system. But it -is Rifkin's thesis that the industrial age

reached, it apogee in the .early~~1-970s and that since that time we have entered the

post-industrial era. Because non-renewable energy is the organising material of the

industrial age, its depletion, early signs of whic~ were shown to us in 1974, marks the end

of the economic era built from fossil fuels and maintained by them.

- v -".'

On this view of history, the comput~r caught the 'tail end' of the industrial era. It

stretched out the remaining years of that era by organising in a more efficient way the

information used in the inqustrial society. But the real importance of information is yet to

be gleaned. ·:It will come -in the interaction between the computer, communications

technology and the' advances· in biotechnology. Whereas the machine' transformed

non-renewable energy sources into economic utilities, the marriage of the microchip with

biologiCal material will transform that material into economic products and processes.

Pr'edictions are now being made that by the time of the maturity of foday's young- people,

the bio-computer will be commonplace~By successfully 'engineering living material fnto an

.organic, computer' that', can, reproduce itself;" transform~:-other living "materi8.l into

'economic utilities and> even perhaps reason, humanity will asse~~ an even greater control

over"life itself.. Rifkin' asserts that 'when the:, machines-replaced muscle pOwer, mankind's

perceptions changed, ref.l.e,cting the .n-ew 'method "of organisation. De.rwin"c'6nstrUcted

. 'Nature in the image/Of a 10gic8.1 industrial machine~;Now, "'we--are,-'intheGo~p~1 according

tO'RifkIn, beginning to reconstruct Nature ,in the image'of an~electro-nic¢omputer. To the

question 'how doe's nature' operate?', ,the new 'anSWer' ,is that it operates in a- manner

'similar to the electronic computer. It is thiScybernetics~'transferred from 'the informatics

field to biology, that has helped' to accelerate advan.'ces in biotechnolpgY. But it has also

laid the, ground'work for the use 'of the computer ·to engineer living tissue and in this way

to usher in an entirely new-era in civilisation. "'~'

Machines for making short· lengths of DNA, have been- available since early 1980.

They rely on computer, controlled pumps;to mix nucleotides and thechemica,l agents' Which

help them to bind together. Different chemical processes 'for bonding nucleotides have

been used to speed up manufacturing., Laborious tasks like purifying these DNA pieces and

stitching them together in the' long chains needed -to make'.products such as insulin are

still not fUlly--automated~7However; 'although the'machines for thispr:ocess' only' emme

on to the market in 1980~ already about 'a dozen firms sell DNA-making machines, half of

them since the beginning -of', 1984. ,They' include drUgs 'and instrument manufacti.#-ers,

partic.ilJarly in the United States, the United Kingdom and, 'the Federal RepUblic of

Germ~'hY: As the Economist proclaims, somewhat. inelegantly but vividly, the the 'chip' has

married the 'bug'.

The,genetic engineering-ind~tryis still 'fairlycr~de.. But it is;:~f~~r that- a new

era has begun-. The interaction of informatics, bi9techn'0logy and. energy sciences is not

fUlly understood. 'The implications, of this interaction fOf society are' but dimly gleaned.

The point to be made is that the scientific development whicn we have "so far seen as an

adjunct. to t~~~, mechanics 'of- the" industrial 'society"'must 'now",' increasingly~; 'be seen' as

profound new developments'with serious implications for ,the role, of ,the human being and

for the society' in which he or she will live in harmony with new'seiEmce arid technology.

- --- ------------

- v -

On this view of history, the comput~r caught the 'tail end' of the industrial era. It

stretched Qut the remaining years of that era by organising in a more efficient way the

information used in the inqustrial society. But the real importance of information is yet to

--. be gleaned. --It will come -in the interaction between the computer, communications

,technology and the' advances' in biotechnology. Whereas the machine- transformed

non-renewable energy sources into economic utilities, the marriage of the microchip with

biological material will transform that material into economic products and processes.

", Pr'edictions are now being made that by the time of the maturity of foday's young- people,

the bio-computer will be commonplace~ By successfully 'engineering living material into an

. organic, computer' that - can, reproduce itself;" transforrn:-~":-other living "materi8.l into

'economic utilities and>even perhaps reason, humanity will asse~~ an even greater control

over'life itself. Rifkin- asserts that 'when the: machines -replaced muscle pOwer, mankind's

-. perceptions changed, ref.l.e_cting the .n-ew -method --of organisation. Darwin' 'c'6nstrUcted

. 'Nature in the image/Of a logichl industrial machine~ Now,--we--are,--in the Go~p~l according

to- Rifkin, beginning to reconstruct Nature -in the image' of an~ electro-nic ¢omputer. To the

question 'hbw doe's nature- operate?', the new -anSWer- -is that it operates in a- manner

'similar to the electronic computer. It is this cybernetics~- transferred from -the informatics

field to biology, that has helped' to accelerate advaiI'ces in biotechnolpgY. But it has also

laid the- ground 'work for the use -of the computer ·to engineer living tissue and in this way

to usher in an entirely new-era in civilisation. -', ~.

Machines for making short· lengths of DNA, have been'available since early 1980.

They rely on computer· controlled pumps.to mix nucleotides and the chemica.l agents which

help them to bind together. Different Chemical processes -for bonding nucleotides have

been used to speed up manufacturing. ' Laborious tasks like purifying these DNA pieces and

stitching them together in the· long chains needed -to make' ·products such as insulin are

still not fully--automated. 7 However; -although the- machines for this pr:ocess- only' came

on to the market in 1980~ already about'a dozen firms sell DNA-making machines, half of

them since the beginning' of 1984. -They, include drugs -and instrument manufacti.frers,

partic.uJarly in the United States, the United Kingdom and, -the Federal Republic of

Gerri1~'hY: As the Economist proclaims, somewhat. inelegantly but vividly, the the 'chip' has

married the 'bug'.

The -genetic engineering'ind~try is still -fairly cr~de. But it is;'~f~~r that- a new

era has begun-. The interaction of informatics, bi9techn'010gy and. energy sciences is not

fully understood. -The implications- of this interaction for society are' but dimly gleaned.

The point to be made is that the scientific development whicn we have "so far seen as an

adjunct. to t~_~_ mechanics -of- the'- industrial -society---must now, increasingly~' -be seen- as

profound new developments-with serious implications for-the role of -the hUman being and

for the society' in which he or she will live in harmony with new'seiEmce arid technology.

- --- ------------

".'

:-.,;.

- 1u-

THE INSTlTUTIONALBIPLICATIONS

.What are the implications of these developments for the lawyer"and'the law

reformer? Clearly they incll~de the institutional implication of whether our society's

law-making and law-administering institutions ,can cope with the many consequences of

such radical and rapid change.

At <:?ne,,'level, ;the issue is-whether jUdges,and for that matter juries, most of

them, 'technically illiterate'S can cope with. advanced technology, through the -legal

process., We have recently seen large ,p.ublic debates ,about' this ,issue in the, context of the

Chamberlain trial and appeals '""""':,withsuggestions'by··a _number'~'f distinguished scientists

of the- need for new .procedures' and' possibly new-institutions<-to- assess ~complex Rnd

disputed scientific testimo.~y. 'Legislationhas recent~y been 'intr_oduced into the House of

Lord~,in_EngIBll:d, to require ,6 prettial,p.otifica~ion _of,scientific tes~imony,.,rhis legislatio-n

is said" to _follow, the fr~tration :of _t~e Crown at the scientW.c evidence adduced-in the

tr-ial of Dr . Leonard, Arthur.:_ Some: writex:s urge vigorously ,the;,limits,- _,of.. judicial

compet_ence.9 Other- observ~rssuggest the creation-of. -a sp~cial 'science court' to -assist

courts; agencies and -legislatures- t~ decid~: _c_omp~~x :policy issues~ in,_: areas requiring

detailed scientifi~expertise.-Such a science court, utilising'primarily- scientists and

experts, offers one solution. But it is premised -on the beUef that scientific questions may

be extracted from questions of value in' I:?Olicy. In-.issues involving scientific uncertainty; a

science court .would explore -the purely scientificelem ents of the debate. It would produce

an opinion, expressing a probability statement about the extent of scientific

uncertainty. I 0

More -fundamentally, however, there remains the issue of how our society's law

reforming process_ will react.to the social implicat~onsof the new techno~~gy - inclUding

the ~arriageof new"technologies.,In short, can our ancient institutions of Parliament, the

Executive Government and the courts _cope with the dynamics' and complexity of toqay's

.-scienc.~~nd technology as it affects socie~y?

Clearly there are a number of problems:

The first -is to train lawyers who are alert to, knowledgeable about 'and sympathetic

to the language and teChniques of science and technology. This will not be 'easy.

Streaming in education begins, in Australian schools, at an early age. Joint

law/science or law/computing or law!bialogy-coursesa~enot- common. Yet 'there

have been a number of healthy developments~Monash University-has established its

Centre "for Bioethics in which 'lawyers, philosophers; theologians and medical

scientists come together for ;'?regular dialogue.

::.., "

'.~.

'.',;.

- 1u-

THE INSTlTUTIONALBIPLICATIONS

.What are the implications of these developments for the lawyereand' the law

reformer? Clearly they inclt~de the institutional implication of whether our society's

law-making and law-administering institutions ,can cope with the many consequences of

such radical and rapid change.

At <?ne,,-1evel, :the issue is-whether judges, and for that matter juries, most of

them. 'technically illiterate'S can cope with. advanced technology, through the' legal

process.· We have recently seen large 'p.ublic debntes .about· this ,issue in the, context of the

Chamberlain trial and appeals '""""'":.with suggestions ·by··s _number" ~'f distinguished scientists

of the- need .for new" procedures· snd' possibly new -institutions -to assess .complex and

disputed scientific testimo.ryy. -Legislation has recent~y been 'intr_oduced into the House of

Lord~ in _Englan:d to require ,8 pret~ial ,p.otifica~ion -of· scientific tes~imony' •. rhis legislatio-n

is said,_ to _ follow _ the fr~tration -of _t~e Crown at the scientW.c evidence adduced- in the

trjal of Dr. Leonard. Arthur •. _ Some: writex:s urge" vigorously ,the limits'- _,of.. judicial

compet_ence.9 Other- observ~rs suggest the creation .of. -a sp~cial 'science court' to -assist

courts; agencies and -legislatures- t~ decid~: _comp~~x :policy issues_ in'_: areas requiring

detailed scientifi~ expertise.- Such a science court, utilising' primarily- scientists and

experts, offers one solution. But it is premised -on the beUef that scientif.ic questions may

be extracted from questions of value in' BDlicy. In-,issues involving scientific uncertainty; a

science court -would explore -the purely scientific elem ents of the debate. It would produce

an opinion, expressing a probability statement about the extent of scientific

uncertainty. I 0

More -fundamentally, however, there remains the issue of how our society's law

reforming process_ will react.to the social implicat~ons of the new techno~~gy - including

the ~arriage of new .. technologies.,ln short, can our ancient institutions of Parliament, the

Executive Government and the courts _cope with the dynamics' and complexity of toqay's

_-scienc.~ ~nd technology as it affects socie~y?

Clearly there are a number of problems:

The first -is to train lawyers who are alert to, knowledgeable about 'and sympathetic

to the language and techniques of science and technology. This will not be 'easy.

Streaming in education begins, in Australian schools, at an early age. Joint

law/science or law/computing or law/biology- courses 8r:-e not- common. Yet -there

have been a number of healthy developments. Monash University-has established its

Centre' 'for Bioethics in which 'lawyers, philosophers; theologians and medical

scientists come together for dialogue.

-.~-

::-, "

- 1 L -

The University of New South Wales has recently announced the establishment of a

Centre for the study of interacting science and .the law. The University of

Tasmania has taken the forward-looking step of appointing',Dr Roger Brown of the

NSWIn'stitute of Technology to a Chair of.Law, with the expectation 'that he will

there, advance his interests in 1awand information science. It was'Dr, Brown who

inaugurated the JoLirnal of Law and Information, Science. As well, societies for

comp1;J:ters and the law have been inaugurated in many iof the jurisdictions of

Australia•. Medico-legal societies are beginning to 'examine the -puzzling legal

problems presented by 'biotechnology~ Unless a futlfre generation of lawyers can be

trained'whcfare alert to the'implications bf science and' technology, interested and

able'to respond to the developments, the law's voice will be'muted and'its response

inadequate 'to the' challenges 'that are posed because many'of these"challenges will

simply not be seen.

A second problerriis' the lack of institutional means of responding to these

challenges'in·.an orderly, efficient 'and prompt way.' The Australian Law Reform

Commission' received references on grivacy protection and, human tissue

transplantation.,·The Victorian Law Reform Commissioner is Chairman of a

committe'e'on abnormal conception. The Deputy Chairman of t~eNewSouthWales

Law Reform Commission chairs a committee on similar topics in New South Wales.

Justice Alan-·Demack presided"in,'a like committee inc'Queensland.' Justice Howard

Zelling' cha.ire(r~hecommittee on solar"energy:"snd: the law ·in South" Australia. The

tasks' of 'examining the' social and legal "implications of rast.;;.moving science fall to

different bodies ~t different levels, of ·government. 'Sometimes 'we fail to a<1~.ress '

the problems a1tOgether~,or do so in a most tardy fashion. Sometimes we address

the problems repeatedly; because we have failed to secUl'e a: national examination

and"proceed,-instead, W!th,.,r,epetitious' examinations in the various States. When the

Australian,,:Law :Reform' Commission delivered its,'report ,.on. human tissue

transplants it. drew 'attention to the needior an examination of the law On in vitro

fertilisation. It lov,ited a,' iurtherreference to it on that subject, if ,it was the wish

of the government that the matter should· be dealt with. In the event no such

reference was given. It was left to States 'o(.:~\ustraliato develop their own

approaches. The result has, been a multitude 'of- inqUiries. 'There are; or ~ourse.

advantagesc in diversity. Indeed'it is oiu:!"of th~ great advantages of the Federal

system of government.:.;BY, the: ,same token there are a1soadvantage~in approaching'

in a national' w~y, problems whl~h are not disti~-gui~hable in, any significant way·

from State to State. ,S~ch 'national scrutiny' can produce ,more ample resources and

help to promote a nationaV:debate of, the issues 'raised. The difficulty is that many

of ,the science/law- questions 'are not readily identifiable as Federal matters under

our 1901 Constitution.

._ .....

- 1 L -

The University of New South Wales has recently announced the establishment of a

Centre for the study of interacting science and .the law. The University of

Tasmania has taken the forward-looking step of ap~ointing--Dr Roger Brown of the

NSW In'stitute of Technology to a Chair of.Law, with the ex~ectation -that he will

there -advance his interests in 1aw and information science. It was- Dr, Brown who

inaugurated the Journal of Law and Information- Science. As well, societies for

com~1:l:ters and the law have been inaugurated in many 'of the jurisdictions of

Allstralia •. Medico-legal societies are beginning to 'examine the -puzzling legal

problems presented by -biotechnology. Unless a futlfre generation of lawyers can be

trained'who--are alert to the'implications of science and' technology, interested and

able- to respond to the developments, the law's voice -will be'muted and' its response

inadequate -to the- challenges 'that are posed because many' of these'-challenges will

simply not be seen.

A second problem is' the lack of institutional means of responding to these

challenges- in'. aD orderly, efficient -and prompt way.' The Australian Law Reform

Commission' received references on grivacy protection and· human tissue

transplantation.- 'The Victorian Law Reform Commissioner is Chairman of a

committe'e' on abnormal conception. The Deputy Chairman of t~e New South Wales

Law Reform Commission chairs a committee on similar topics in New South Wales.

Justice Alan'·Demack presided, 'in_-a like committee in-'Queensland.' Justice Howard

Zelling' chaire(r~he committee ori solar"energy-"and- the law 'in South" Australia. The

tasks -of -examining the- social and legal -implications of fast";'moving science fall to

different bodies ~t different levels, of ·government. -Sometimes -we fail to a-d~.ress '

the problems altOgether~,or do so in a most tardy fashion. Sometimes we address

the problems repeatedly; because we have failed to secure a: national examination

and-_proceed,-instead, w!th-.. r.epetitious- examinations in the various States. When the

AUstralian:-; Law :Reform Commission delivered' its-- report ,.on" human tissue

transplants it. drew -attention to the need for an examination of the law On in vitro

fertilisation. It lnv,ited a,' iurther reference to it on that subject, if ,it was the wish

of the government that the matter should' be dealt with. In the event no such

reference was given. It was left to States 'o(.:~\ustralia to develop their own

approaches. The result has, been a multitude -bf- inqUiries. -There are; or ~ourse.

advantages- in diversity. Indeed' it is one 'of th~ great advantages ,of t~e Federal

system of government.:.;BY_the:,same token there are also advantages in approaching'

in a national' w~y_ problems whl~h are not disti~-gui~hable in- any significant way'

from State to State. ,S~ch -national scrutiny' can produce -more ample resources and

help to promote a nationaV:debate of- the issues 'raised. The difficulty is that many

of _the science/law· questions -are not readily identifiable as Federa.l matters under

our 1901 Constitution.

, .....

~ - .'

- i ~ -

Yet unless we ceQ develop Ililtional institutions to provide uniform responses, we

run. the risk of squandering scarce. resources, .repeating work already done

elsewhere, failing to mobilise community 'opinion adequately and failing to secure

the best possible intell~ctUal and other resources to the task.. 1 believe that the

success of the Australian Law ReformC.om.miss.ion's endeavour. in its report on

human tissue transplants illustrates that even difficult questions affecting tneinteraction of science and law can be dealt with at a nationallcvel.. :\1odellaws can

be ,prepared '..:and then.offered to State -and Territory Governments for adoption

throughout thf!: ·couIltry,.·w.ith or without modifications. Given,the large number of

proble~s -that ar:e n()~.being ~ttended to, .co~t-effectiveness~.suggeststhat a new

national' approach of this kind is sorely needed.

Ind.~ed,. inStead of' proceeding with.references to ad hoc inquiries or even to

standing law reform commissions, respect· for the complcxityo! the· issues being

raiseq,-their: number and the need for interdis.ciptinaryresponses, may ~uggest that

a new 'institution is needed. This would be· not a science course but a science/law

commission~' Such a, body would ~ot q~.>- dominated (as law reform agencies

inevitably are) ..by lawyers but-: would involve a 'more appropriate,..mixture ~f

lawyers~' scientists- and :experts. with other specialist~:skill$.:., The ·Australian Law

Reform "Commission, in a quest for such .8r~ ins~itutional arrangement, always

secures the appointment of· experts appropriate to the cliscipline inVolved in the

matter. under ,consideration.. Thus- in the privacy .reference .experts on computers

were appointed as consultants.. In the human tissue transplants reference, experts

in 'transpla'ritatio~· surgery, were appointed as consultants. In the proje<:t on:"

defamation law reform, 'experts in communications technology were appointed.. But

it is .one thing to be a -consultant and another to be a Cull member of the

decision-making body~.:lt::.is .. also important, -with- the marriage of differing

technologies, that: experts should be brought together able. to. perceive, to

anticipate as Professor Whalan proposed, and -to respond to: the needs for legal

change presented b¥ fast-moving science, and technology. I realise the resistance

that exists nowadays' to the appointment of still more- quangos and advisory bodies..

Yet the number, complexity and urgency' of man,y.:.of the science/law questions are

such that traditional law reformi~g age.ncies, he,aded by jUdges and overwhelmingly

peopled by lawyers, may not ~~ays be. the 'best instruments for perceiving and

responding to sci.e9~ific,develO.B,ments as ·they affect society and .its laws.

Even if'the approp~iate law.-r~forming agency'cA; be established, the problem

remains of moving the proposals' along with due speed. Movement through the

courts or through advisor}' ..·:commisSions, Where the issues are novel and complex,

tends to be . slow.

- i ~ -

Yet unless we caQ develop rultional inst-itutions to provide uniform responses, we

run. the risk of squandering scarce resources, .repeating work already done

elsewhere, failing to mobilise community ·opinion adequately and failing to secure

the best possible intell~ctUal and other resources to the task .. 1 believe that the

success of the Australian Law Reform C.om.miss.ion's endeavour. in its report on

human tissue transplants illustrates that even difficult questions affecting tne interaction of science and law can be dealt with at a nationallcvel .. :\10dellaws can

be .prepared ·..:and then .offered to State -and Territory Governments for adoption

throughout thE;: ·couIltry,.·w.ith or without modifications. Given, the large number of

proble~s that ru:e no~. being ~ttended to, .co~t-effectiveness~.suggests that a new

national' approach of this kind is sorely needed.

Ind.~ed,. inStead of proceeding with .references to ad hoc inquiries or even to

standing law reform commissions, respect· for the complexity of the· issues being

raiseq,. their: number and the need for interdisciplinary responses, may ~uggest that

a new 'institution is needed. This would be not a science course but a science/law

commission~' Such a· body would ~ot ~~ .... dominated (as law reform agencies

inevitably are) .. by lawyers but-: would involve a 'more appropriate , .. mixture ~f

lawyers,' scientists- and :experts. with other sp'ecialist~. skill$.- .. The -Australian Law

Reform "Commission, in a quest for such .Br~ ins~itutional arrange.ment, always

secures the appointment of· experts appropriate to the discipline involved in the

matter. under ·consideration .. Thus- in the privacy .reference .experts on computers

were appointed as consultantsa In the human tissue transplants reference, experts

in 'transpla'ritatiQ~' surgery· were appointed as consultants. In the projec::t on:"

defamation law reform, 'experts in communications technology were appointed .. But

it is .one thing to be a -consultant and another to be a ftill member of the

decision-making body~ .:.It:: .is .. also important, -with the marriage of differing

technologies, that: experts should be brought together able. to. perceive, to

anticipate as Professor Whalan proposed, and to respond to_ the needs for legal

change presented b¥ fast-moving science, and technology. I realise the resistance

that exists nowadays' to the appointment of still more- quangos and advisory bodies.

Yet the number, complexity and urgency' of man,y.:.of the science/law questions are

such that traditional law reformi~g age.ncies, he,aded by judges and overwhelmingly

peopled by lawyers, may not ~~ays be. the 'best instruments for perceiving and

responding to sci.e9~ific.develo.g,~ents as ·they affect society and .its laws.

Even if'the appropriate law· reforming agency' eli; be established, the problem

remains of moving the proposals· along with due speed. Movement through the

courts or through advisor}' ... :commisSions, where the issues are novel and complex,

tends to be . slow.

Yet even when those bodies have ..made their decision, parliamentary responses may

be slower still. The institution of Parliament is not well geared to the urgent

necessities of law reform in a time of rapid change. The priorities of government

business ,tend to lie elsewhere. The facilities for private members' legislation are

poor in Australia. Difficult and technical problems tend to go to the bottom of the

pile. Rare is the Member of Parliament who is willing to champion law reform

n.eeded -to deal with aspects of technological change. Often those aspects are

complex, technical and sometimes even boring. Often they are acutely sensitive, as

'illustrated in numerous biotechnical issues. Insofar_as there is a response, it is

often. a response which seeks to preserve the status- qUO and, reacts- antipathetically

to scientific developments. The possible use of foetal tiss~e .is a ease in point~ -So is

the possible development of cloning in the human species and the marriage of

informatics and bio.~~chnology to which I have referred. These are developments

that cause -fright in many circles. And'the resl?Oose to fear may be _either rapid

retreat or heavy-handed, -insensitive interference..

There isa fifth-problem. It is the tendency to offer solution to complex s~d novel

issues: presented by science --sndtechnology to the law, without due regard to

articulated- guiding principles. It is very easy, when difficult. and unprecedented

problems are posed, to lapse into a -series of ad hoc decisions without the benefit of

adequate time or resources for clear conceptual,·Jhinking. In the field of in vitro

fertilisation, .. for'·example, there }s, a danger' that solutions _will be offered when

represent little.more than the idiosyncratic- opinions or a group of:- community

representatives. Perhaps_we cannot do better., But it is, for example, -questionable

as to why in vitro fertilisation should:

be confined to -rruirried -couples', when stable non-married relationships are being

increasingly recognised' and respected~inour legal system;

be postponed until other efforts have been tried - when every year of delay

may diminish the possibilities of success. The requirement of delay may be

nothing more than evidence of basic ambivalence to the technique of in ~hro

fertilisation. Do it. But donot do it -too much.

l do not suggest it is easy to find guiding principles. -The debate about the

fundamental values of law reform is a l~rge and controversial one. Nowhere_.i~ it more so

than when novel and ill-understood developments of technology pose urgent problems for

the legal system. Should cloning be forbidden? Who should decide whether a grossly

deformed and retarded neonate should die? By what principle should evidence secured by

illegal telephonic interce?tionbe available in the' courts? WhRt exceptions should be

provided to t~~ right of access by data subjects to computerised personal data? Ad hoc

solutions can be offered to these questions, but they are less likely to last and to form a

coherent body of law reform than a well-thought4)ut proposai·1Qund~6n principle snd

adequate conceptual thinking.

-"E .

Yet even when those bodies have .. made their decision, parliamentary responses may

be slower still. The institution of Parliament is not well geared to the urgent

necessities of ,law reform in a time of rapid change. The priorities of government

business .tend to lie elsewhere .. The facilities for private members' legislation are

poor in Australia. Difficult and technical problems tend to go to the bottom of the

pile. Rare is the Member of Parliament who is willing to champion law reform

n,eeded -to deal with aspects of technological change. Often those aspects are

complex,. technical and sometimes even boring. Often they are acutely sensitive, as

-illustrated in numerous biotechnical issues. Insofar _as there is a response, it is

often. a response which seeks to preserve the status- quo and, reacts- antipathetically

to scientific developments. The possible use of foetal tiss~e .is a case in point~ So is

the possible development of cloning in the human species and the marriage of

informatics and bio.~~chnology to which I have referred. These are developments

that cause -fright in many circles. And'the resl?Onse to fear may be. either rapid

retreat or heavy-handed, 'insensitive interference.

There is a fifth- problem. It is the tendency to offer solution to complex s.~d novel

issues. presented by science -'and technology to the law, without due regard to

articulated- guiding principles. It is very easy, when difficult. and unprecedented

problems are posed, to lapse into a ·series of ad hoc decisions without the benefit of

adequate time or resources for clear conceptual,'Jhinking. In the field of in vitro

fertilisation, .- for ··example, there }s, a danger' that solutions ,will be offered when

represent little. more than the idiosyncratic -opinions of a group of:·community

representatives. Perhaps_ we cannot do better. But it is, for example, .questionable

as to why in vitro fertilisation should:

be confined to -rrllirried -couples-, when stable non-married relationships are being

increasingly recognised- and respected· in our legal system;

be postponed until other efforts have been tried - when every year of delay

may diminish the possibilities of success. The requirement of delay may be

nothing more than evidence of basic ambi-valence to the technique of in ~hro

fertilisation. Do it. But do not do it ·too mUch.

l do not suggest it is easy to find guiding principles. -The debate about the

fundamental values of law reform is a l~rge and controversial one. Nowhere .. i~ it more so

than when novel and ill-understood developments of technology pose urgent problems for

the legal system. Should cloning be forbidden? Who should decide whether a grossly

deformed and reta.rded neonate should die? By what principle should evidence secured by

illegal telephonic interce?tion be available in the' courts? WhRt exceptions should be

provided to t~~ right of access by data subjects to computerised personal data? Ad hoc

solutions can be offered to these questions, but they are less likely to last and to (orm a

coherent body of law reform than a well-thought-out l?t"oposai:1Qund~ 6n principle snd

adequate conceptual thinking.

."E .

.";"

- 1-1-

CON CL USIONS

The great science communicator Jacob Bronowski said that the world today is

fuelled and engined by scienc;e. To ignore this; he claimed, wasta walk with eyes open to

slavery. This is an uncomfortable ,message for the law. Lawyers tend,"ss a group, to be

uncomfortable with science and technology. Uncomfortably for lawyers, the 'age of poetry

and words has been replaced by the age of interplanetary travel, microchips and DNA.

The first faltering institutional stepshavcbeen taken to provide a response to

the advance -of science and technology as It impacts the leg8l systc"m. Some answers are

offered in the ,courts. Law reforming agencies and temporary" ad 'hoc committees are

offering other answers to broader questions.

,But the issue remains whether lawyers wil1 be able, by,dint of U:teir training, to

perceive the issues that have ·..to be solved in time; whether they will have the

multidiciplinary institutions -to help .provide the -response; whether even if they do, the

law-making processes of Parliament will be able -to. respond- at-adequate speed and to

adapt, as advances require" adaptation; and whether'the laws .proposed will be anything

more than ad hoc ruminations of an indiosyncratic quality•. ,,~.

It is later than we think~ W~ are in' an Indian Summer of the law and our

law-making -institutions. They 'Were 'developed in earlier; simpler, more languid times.

There must be doubt that they can respond to the challenge- of science and technology

today. Forthe health of our society and the Rule -of: Law, it is-oimportant that lawyers and

'other citizens should give carefUl thought to the "institutional question for it far

transcends in importance any particular issue of the science/law dialogue.

FOOTNOTES

1. DJ Whalan, 'The Scienc~Law Relationship Are Lawyers Really Necessary?'

(1982) 56 ALJ 658.

2. ibid.

3. Lord Scarma~ New Zealand Law Conference, Rotorua, 1984, Triennial-Times,

April L984.

4. Whalan,660. "-,-..

'.-:?'".

""'.

- 1-1 -

CON CL USIONS

The great science com municator J scab Bronowski said that the world today is

fuelled and engined by scienc;e. To ignore this, he claimed, was to walk with eyes open to

slavery. This is an uncomfortable .message for the law. Lawyers tend, -as a group, to be

uncomfortable with science and technology. Uncomfortably for lawyers, the 'age of poetry

and words has been replaced by the age of interplanetary travel, microchips and DNA.

The first faltering institutional steps have been taken to provide s response to

the advance -of science and technology as It impacts the leg8l 5ystc"m. Some answers are

offered in the -courts. Law reforming agencies and temporary" ad 'hoc committees are

offering other answers to broader questions •

. But the issue remains whether lawyers will be able, by ·dint of tl:teir training, to

perceive the issues that have · .. to be solved in time; whether they will have the

multidiciplinary institutions -to help _provide the response; whet.her even if they dOt the

law-making processes of Parliament will be able -to. respond- at- adequate speed and to

adapt, as advances require adaptation; and whether'the laws proposed will be anything

more than ad hoc ruminations of an indiosyncratic quality •

. . '~'

It is later than we think~ W~ are in; an Indian Summer of the law and our

law-making -institutions. They 'Were 'developed in earlier; Simpler, more languid times.

There must be doubt that they can respond to the challenge- of science and technology

today. Forthe health of our society and the Rule -of: Law, it is-,important that lawyers and

'other citizens should give careful thought to the -institutional question for it far

transcends in importance any particular issue of the science/law dialogue.

FOOTNOTES

1. DJ Whalan, 'The Science-Law Relationship Are Lawyers Really Necessary?'

(1982) 56 ALJ 658.

2. ibid.

3. Lord Scarma~ New Zealand Law Conference, Rotorua, 1984, Triennial-Times,

April L984.

4. Whalan,660. '--,-..

•

- 15 -

7. _. The·-Eeonoinist, 9 July 1983, 74.

J Rifkin, .. Algenv, Viking Press, 1983. See Datamation, May 1983. Cf Future

Watch No 6 September/October 1983, 5.

,\

10. IN Martin, 'Procedures for De<:ision-making Under -Conditions of Scientific

Uncertainty: The Science Court Proposal', 16 Harvard Journal on Legislation,

443 (1979)•..'·See also J Ravetz, 'Scientific Knowledge and Expert Advice in

Debates About Large Technological Innovations' 16 Minerva 273, 277 '(1978); K

Prewitt, IScieJ:lticit Illiteracy and Democratic Theory, 112 Daedalus 49 09:8.3)•

8. Bazelon CJ in Ethyl Corporation v EPA, 541 F 2d I, 67 (DC CIR). cr DL

Bazelone, 'Coping With Technology Through the Legal Process', 62 Cornell L

Rev 817 (1977).

9. S .Jasanoff and D Nelkin, 'Science, Technology and the Limits of Judicial

Compe~~ncel 68 American Bar Association Journal, 1094 (1982). Cf HT Markey,

'Science and Law: A Dialogue on Und.erstanding' 68 American Bar Association,Journal, 154 (1982).

6•

. 5. Queensland, Report· of the Special Committee appointed by the Queensland

Government to Inquire into the Laws RelatIng. to Artificial Insemination, In

Vitro Fertilisation and Other Related Matters, 1984 (two vols).

.~. ~

- 15 -

. 5. Queensland, Report· of the Special Committee appointed by the Quecnsland

Government to Inquire into the Laws RelatIng. to Artificial Insemination, In

Vitro Fertilisation and Other Related Matters, 1984 (two vols).

6 • J Rifkin, .. Algenv, Viking Press, 1983. See Datamation, May 1983. Cf Future

Watch No 6 September/October 1983, 5.

7. _. The-EconOmist, 9 July 1983, 74.

8. Bazelon CJ in Ethyl Corporation v EPA, 541 F 2d I, 67 (DC CIR). cr DL

Bazelone, 'Coping With Technology Through the Legal Process', 62 Cornell L

Rev 817 (J 977).

9. S . Jasanoff and D N elkin, 'Science, Technology and the Limits of Judicial

Compe~~ncel 68 American Bar Association Journal, 1094 (1982). Cf HT Markey,

'Science and Law: A Dialogue on Und.erstandingt 68 American Bar Association , Journal, 154 (J982).

10. IN Martin, 'Procedures for De<:ision-making Under -Conditions of Scientific

Uncertainty: The Science Court Proposal', 16 Harvard Journal on Legislation,

443 (1979) •.. '·See also J Ravetz, 'Scientific Knowledge and Expert Advice in

Debates About Large Technological Innovations' 16 Minerva 273, 277 '(1978); K

Prewitt, 'ScieJ:lticit Illiteracy and Democratic Theory, 112 Daedalus 49 (1S-8.3) •

•

, \