Elke Kurz-Milcke, Gerd Gigerenzer-Experts in Science and Society (2003)

Experts in Science
and Society
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Experts in Science
and Society
Edited by
Elke Kurz-Milcke
Georgia Institute of Technology
Atlanta, Georgia
Gerd Gigerenzer
Max Planck Institute for Human Development
Berlin, Germany
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Preface
For none of those systems of thought without which we cannot do if we want

to conceive of those parts of reality which are significant in each case, can
possibly exhaust the infinite richness of reality. None is anything else than an
attempt (…) to bring order into the chaos of those facts, which in each case
we have included within the sphere of our interest.
Max Weber1
Experts are called in when there is something at stake for an individual, a group,
or society at large. This volume represents a multi-authored endeavor towards a
nuanced understanding of the expert in modern societies. The initial impetus for
bringing together the contributors to this volume came from an invitational
meeting by the Max Planck Society for the Advancement of Science. This meet-
ing, a Schloessmann Seminar, gathered a group of young scientists and established
scholars to discuss research and research proposals pertinent to the phenomenon
of The Expert in Modern Societies, Past and Present. The specific opportunity af-
forded by this seminar and, subsequently, this volume has been inclusiveness as
regards scientific disciplines and research domains. This volume is about experts
and by the same token about science, cultures, political systems, representational
practices, public debate, organizations, institutions, law, ethics, modernity, risk,
environmental protection, and, last but not least, about expertise.
Expertise easily appears to be a personal attribute. After all, who would want
to argue with the verity that experts have expertise, and are called in for their ex-
pertise? Semantics notwithstanding, the chapters in this volume demonstrate
that it would be ill-advised to consider expertise merely a personal attribute, no
matter how skilled, knowledgeable, and educated a person may be. Nevertheless,
this volume is focused on experts and in many ways on people. We think that this
choice has served the project well for advancing our understanding of expertise.
A human-centered perspective on expertise brings home the actualities of experts
living in particular societies, participating in particular organizations and institu-
tions, engaging in particular practices, and thus partaking in particular cultures.
We recognize that in many areas of society, especially in those related to
training and education, the issue arises of how to best foster well-versed exper-
tise. The answer is in engaging students, and we think the same must be assumed
for the study of expertise. The chapters in this volume engage with the particu-
larities of the historical cases that the authors have chosen. The sociologist and
occasional methodologist of the cultural and social sciences Max Weber realized
1
1921, Gesammelte Aufsätze zur Wissenschaftslehre (p. 207) [Collected Essays in the Logic
of Science], Tübingen, Germany: Mohr. Cited in an English translation by Thomas Burger, 1976,
Max Weber’s theory of concept formation: History, laws, and ideal types, Durham, NC: Duke Univer-
sity Press.
v
vi Preface
that such engagement does not need to run counter to characterizations in terms
of more general categories that serve understanding beyond the particulars of a
case. In fact, Weber thought that the social scientist’s engagement with historical
events and relationships could not but be coupled with emphasis on such cate-
gories. In Weber’s position we sense a call for boldness and reasonableness when
it comes to our engagement with particular cases of expertise, past and present.
We can boldly assume that with the analyses of particular cases, we bespeak
larger issues related to expertise in modern societies, and reasonably do so to the
extent that we are careful in our analyses.
The preparation of this volume was generously supported by the Max Planck
Society for the Advancement of Science, who provided the means to gather the
authors at a three-day Schloessmann Seminar and funded the editorial work on
this volume. We thank the members of the participating Max Planck Institutes
(MPI), in particular, Hans-Jörg Albrecht (MPI for Foreign and International
Criminal Law), Jürgen Baumert (MPI for Human Development), Lorraine
Daston and Hans-Jörg Rheinberger (MPI for the History of Science), Renate
Mayntz (MPI for the Study of Societies), Hartmut Lehmann and Manfred
Jakubowski-Tiessen (MPI for History), Gerhard Schricker (MPI for Intellectual
Property, Competition and Tax Law), Manfred E. Streit (MPI for Research into
Economic Systems), and James W. Vaupel (MPI for Demographic Research). We
also wish to thank Jean-Paul Brodeur, Karin Knorr Cetina, and Willem Wage-
naar for their participation in the Seminar and their commentaries on various
contributions during the workshop. As editors, we are grateful to a number of
scholars for their willingness to serve as reviewers for the contributions in this
volume, among them Valerie Chase, Salvatore Ciriacono, Peter Imhof, Lothar
Krappmann, Stephanie Kurzenhäuser, Gero Lenhardt, Renate Mayntz, François
Mélard, Theodore Porter, Frank Stahnisch, Heike Trappe, and Ryan Tweney. We
were greatly supported in the editorial work by Anita Todd and Christel Fraser,
who both went out of their way in editing language and text. We are also grateful
to the staff at the Max Planck Institute for Human Development in Berlin for
their support with the preparation of the manuscript for this volume and the re-
lated organizational tasks: Jürgen Baumgarten, Dagmar Fecht, Hannes Gerhardt,
Dagmar Gülow, Ulrich Kuhnert, Erika Nüssle, Erna Schiwietz, and Rona Unrau.
As editors, we wish to express our gratitude to the authors of this volume for
keeping a strong commitment to this publication and for enduring an editorial
process that took longer and was more intense than any of us had probably an-
ticipated. The Schloessmann Seminar is an ongoing series of workshops by the
Max Planck Society in memory of Dr. Ernst-Rudolf Schloessmann, a former
supporting member of the Society, and especially dedicated to the encourage-
ment of challenging research proposals by young scholars. The aim of the Semi-
nar is to bring young people together, whose voices tell and whose views shape
what most of this volume is about. As a result, we had the opportunity to work
with a dynamic and also mobile group of authors, which turned keeping the list
of affiliations and addresses up-to-date into an ongoing task. Working with this
group has expanded “the sphere of our interest.”
Contents
Section 1
Political Systems and the Experts They Support
1 Scientists as Expert Advisors: Science Cultures Versus National
Cultures?
Horst Rakel 3
2 Experts’ Discourses as Judicial Drama or Bureaucratic Coordination:
Family Debate in the United States and Germany
Wolfgang Walter 27
3 The Integration of Social Science Expertise Into the Political Process:
Did It Actually Happen?
Gabriele Metzler 47
4 Socialist Legal Experts: A New Profession?
Ute Schneider 65
Section 2
Who Is Called Upon as Expert?
5 Folklore Protection in Australia: Who Is Expert in Aboriginal
Tradition?
Christoph Antons 85
6 The Humane Expert: The Crisis of Modern Medicine During the
Weimar Republic
Michael Hau 105
7 Expertise Not Wanted: The Case of the Criminal Law
Jean-Paul Brodeur 123
8 Air Pollution Control: Who Are the Experts?
Matthias Heymann 159
vii
viii Contents
Section 3
Experts, Redefined
9 The Philosopher as Coach
Andreas Føllesdal 181
10 Who Decides the Worth of an Arm and a Leg? Assessing the
Monetary Value of Nonmonetary Damage
Fenna H. Poletiek and Carel J. J. M. Stolker 201
11 The Expert in a Historical Context: The Case of Venetian Politics
Achim Landwehr 215
Section 4
Innovative Representations
12 Mapping Urban Nature: Bio-Ecological Expertise and Urban
Planning
Jens Lachmund 231
13 How to Improve the Diagnostic Inferences of Medical Experts
Ulrich Hoffrage and Gerd Gigerenzer 249
14 Statistical Scientific Evidence and Expertise in the Courtroom
Samuel Lindsey 269
15 The Authority of Representations
Elke Kurz-Milcke 281
Name Index 303
Subject Index 311

Section 1
Political Systems and the Experts They Support
The chapters in this first section span a wide terrain, relating experts and political
systems as historical individuals. The presented case studies make plain that polit-
ical systems are not merely a context for the experts’ agency. Rather, the study of
the experts’ standing and advice can serve as an entrance to the study of the insti-
tutional organizations and the political systems that call upon these experts.
How is it possible that expert advisors in the United States and Europe reach
widely diverging conclusions concerning the standards required to protect pub-
lic health and the environment? Horst Rakel’s chapter brings out how risk assess-
ment and the related interpretation of probabilistic scientific evidence is in the
culture of the beholder, particularly the expert advisor’s national culture. In a
comparative case study of family policy in Germany and the United States in re-
cent decades, Wolfgang Walter argues that the occasionally heated debate sur-
rounding this issue in America, and the comparatively moderate debate in Ger-
many, each are reflections of the organization of experts within the respective po-
litical field. Experts on family policy in Germany and the United States meet in
differing arenas and relate in differing ways to the public discourse. According to
Walter’s analysis, the institutionalized interaction of experts shapes family policy
in the two nations.
As historical individuals, political systems and the specific powers within
them come and go. The chapters by Gabriele Metzler and Ute Schneider empha-
size the transient nature of political systems and the consequent changing de-
mands and opportunities for the experts. Metzler’s case study portrays the inte-
gration of social scientific knowledge into the political process of West Germany
after the Second World War. After the fall of the Nazi regime a modernization of
society and government was to be achieved. Planning, as a scientifically based
political instrument, was regarded as a key to a modern political program, espe-
cially by the Social Democrats. However, as we can learn from Metzler’s analysis,
social scientific expertise prominently took an alternate avenue to cast its influ-
ence on the political and administrative elite in West Germany: higher education
and related informal networks.
Finally, Schneider asks what happens to a professional elite after the political
system that supported this elite comes to an end. In the German Democratic Re-
public, the elite of legal professionals, which has had an extensive history within
Germany, was regarded as an obstacle to the reshaping of society. Schneider
shows how radical changes on one level, the level of the political system, play out
on another, the organizational, with the new regime relying to a significant ex-
tent on the same historical individuals, alias experts, across the political divide.
1
Chapter 1
Scientists as Expert Advisors:
Science Cultures Versus National Cultures?
Horst Rakel
Center for Environmental Risks, University of East Anglia, Norwich, UK
horst.rakel@motorola.com
Since the onset of the Enlightenment, the role of science and its scientist(s) has
gained a growing significance in the political sphere of modern societies. Using
scientists as expert advisors to policymakers is now so commonplace that it rarely
generates public or media interest in the precise nature of the role of, or the in-
put provided by, these experts. On the contrary, expert advice, these days, is an
essential ingredient in policymaking, supplying the competence and intelligence
necessary to assure the public at large that policies and regulations have been
based on the best knowledge available, provided by sources independent of com-
peting interests. In that sense, science and scientists serve to rationalize policy-
making (Jasanoff, 1990).
However, relative to the experts’ importance in the policymaking process, the
work of these advisors is poorly documented and the construction and the appli-
cation of expert knowledge is rarely scrutinized. This is all the more surprising
given the awareness that all knowledge is preliminary and/or socially constructed
(Adorno et al., 1972; Habermas, 1969; Kuhn, 1970). Yet, only a few scholars
have taken up the task to review, systematically and critically, the activities of ex-
pert advisors in the regulatory process (Foster, Bernstein, & Huber, 1993; Haas,
1992; Irwin, 1995; Jasanoff, 1990; Salter, Leiss, & Levy, 1988). This task has
been approached from differing theoretical perspectives, and a synthesizing
framework of how to analyze expert involvement in policymaking has not yet
been established. Additional complexity arises if we turn to risk-based policy-
making on a multinational or even global level. Apart from very few exceptions,
scholarly investigations on expert involvement in policymaking focus either on
issues of risk and decision making within a national framework, or on multina-
tional programs with little or no reference to questions of risk and decision mak-
ing. Thus, we usually find either the international dimension or the uncertainty
dimension missing from the analyses.
Given frequently competing, or even contradictory expert advice on risk reg-
ulation, the question arises which factors are responsible for this divergence of
supposedly rational actors, basing their judgment on scientific evidence. So far,
3
4 Horst Rakel
most of the academic debate concerning this question has revolved either around
the national cultures, in which the experts are embedded, or around the science
cultures, to which the experts belong, according to their professional training and
respective affiliations. The thesis pursued by this chapter is that both aspects are
necessary for a comprehensive analysis of expert advice on risk regulation within
an international context. Three theoretical perspectives have been selected that
will serve to show how focusing solely on the nationally or professionally defined
contexts of the role of science and the scientist in standard setting, guideline de-
velopment, and the determination of “best practice” methods is insufficient.
With the accelerating globalization of trade, the harmonization of environ-
mental, health, and safety standards is rapidly becoming a major international is-
sue. Two case studies will help to illustrate the role of scientists as expert advisors
in the development of environmental, health, and safety regulations with multi-
national and global implications; one case study concerns the regulation of sew-
age sludge land application, the other the dispute over hormone-raised beef.
Both case studies involve a comparison of how the respective issue has been dealt
with in the United States and in the European Union (EU). In each case, the re-
spective regulation was developed on the basis of expert advice and scientific evi-
dence but, nevertheless, led to considerably different regulations in the EU, on
the one hand, and the USA, on the other. The marked differences between these
two economic entities will be discussed under three theoretical perspectives:
epistemic community formation (Haas, 1992), a cultural bias theory (Douglas
& Wildavsky, 1982; O’Riordan & Wynne, 1987; Renn, 1995), and a regulatory
science approach (Irwin, Rothstein, Yearley, & McCarthy, 1997; Jasanoff, 1990,
1995). Based on the evidence provided by the two case studies, we will discuss to
what extent these analytical frameworks can provide for a comprehensive inter-
pretation of the role of science and the scientist(s) in the regulatory decision-
making process.
Environmental and Public Health Standard Setting

The interest in the role of science in the environmental and public health stan-
dard setting has grown over the last decade. Apart from appearing in a number
of scholarly investigations, the subject has also increasingly caught the interest of
national governments and regulatory agencies. In the USA, for instance, product
safety standard setting has been subject to a thorough review by the Office of
Technology Assessment (Garcia, 1992). Recently, the United Kingdom’s Royal
Commission on Environmental Pollution concluded a 3-year study with a de-
tailed report on environmental standard setting (Royal Commission on Envi-
ronmental Pollution, 1998). The reasons behind this increasing attention are
complex and manifold: Two main forces are globalization and scientification.
Scientists as Expert Advisors: Science Cultures Versus National Cultures? 5
Globalization
In recent years, the internationalization of markets and trade has assumed a new
quality, with trade volumes worth billions of dollars circulating around the
globe. In 1992, almost half of the US-manufactured goods exported to the EU
were subject to product safety standards alone (Garcia, 1992, p. 537). Compli-
ance with environmental regulations, worldwide, was estimated to cost $500 bil-
lion by the year 2000 (Royal Commission on Environmental Pollution, 1998,
p. 1). Competition has transcended national boundaries as much as knowledge
dissemination and communication. The internet and electronic publishing have
made advances in scientific knowledge by being almost instantly available
around the globe and scientific journals without international editorial boards
are increasingly considered substandard in the academic community. Global
economic actors are rapidly forming, Daimler-Chrysler being a particularly
prominent case in point. However, global industrial enterprises and the interna-
tional financial markets are insufficiently controlled through national regulatory
frameworks. In the absence of a credible global (political) decision-making body,
institutions, such as the World Trade Organization (WTO), the International
Standards Organization (ISO), or the Codex Alimentarius Commission (Codex)
have stepped in to fill the regulatory vacuum and to provide the much-needed
“level playing field.” Common to these agencies is their strong dependence on
scientific committees, that is, on expert advice.
Scientification
Since the Enlightenment, the scientification (Verwissenschaftlichung) of modern
society has been subject to scholarly debate. Some have argued that science has
expanded its ambitions to control the natural environment and into controlling
society, rationalizing social processes for the purpose of technological advance-
ment (Habermas, 1969; Horkheimer & Adorno, 1947; van der Loo & van
Reijen, 1992). However, critique concerning such ambitions has not diminished
the penetrating power of science in all aspects of human life. Value-adding eco-
nomic processes nowadays almost always depend on scientific advances or the
application of scientific knowledge in previously “underdeveloped” areas. Cur-
rently the service industries, such as logistics, energy services, catering, or tele-
communications services, are undergoing rapid changes, primarily due to tech-
nological advances and increasing computerization. This scientification of the
“lifeworld” (Habermas, 1981) threatens to exclude nonexperts from public dis-
course (Jasanoff, 1990; Renn, Webler, & Wiedemann, 1995; Webler, Rakel, &
Ross, 1992), elevating a scientific rationale to the position of being the only ac-
ceptable basis for decision making (Shrader-Frechette, 1991). Consequently, the
command over scientific knowledge and the interpretation of scientific evidence
occupies a central position in the resolution of interests, problems, and societal
conflicts.
6 Horst Rakel
Scientific evidence in the area of environmental and public health standard

setting is, more often than not, contradictory. What one expert interprets as the
absence of proof, another views as certainty found wanting (Bayerische Rück,
1993). Consider, for instance, the case of bovine spongiform encephalopathy
(BSE) or “mad cow disease.” Initially, the British government did not act on the
matter since a relationship between BSE and the Creutzfeld-Jakob disease was
not scientifically proven. But, it was also not proven that BSE did not have the
suspected effect. Public pressure eventually forced the EU Commission to issue a
ban on the import of British beef. Yet, there was no conclusive scientific evidence
for either claim.
Despite being subject to interpretation, expert advice is often mandated as a
precondition for an objective assessment of the issue to be regulated (Arbeitsge-
meinschaft für Umweltfragen, 1986; Royal Commission on Environmental Pol-
lution, 1998). In recent years, this has triggered an increasingly controversial ac-
ademic debate on the role of science and scientists in the process of regulatory
decision making. Scholars in the field have highlighted the political dimension
of “regulatory” science (Irwin et al., 1997; Jasanoff, 1990; Salter et al., 1988),
the influence of cultural background and regulatory styles (Coppock, 1985;
Douglas & Wildavsky, 1982; Jasanoff, 1986; O’Riordan & Wynne, 1987; Renn,
1995), the technocratization of expert advice (Webler et al., 1992), and the role
of science in the courtroom (Foster & Huber, 1999; Foster et al., 1993; Kagan,
1994).
Analysis of Expert Input to Regulatory Decision Making

on an International Level
A theoretical framework for the analysis of expert input to regulatory decision
making on an international level is still missing. Existing approaches focus on in-
ternational agreements, national decision making, and the scientific basis for
regulatory standard setting. In the following, three approaches will be intro-
duced to illustrate the potential of a synthesis of differing perspectives on regula-
tory decision making. Haas’s (1992) epistemic community formation provides
an excellent “backbone” for such a synthesis, but needs to be embedded in a reg-
ulatory science framework informed by the cultural, that is, socially constructed,
dimension of risk evaluation.
Epistemic Communities
Drawing on work in the area of international policy coordination, Haas (1992)
and Adler and Haas (1992) introduced the notion of networks of knowledge-
based experts, that is, epistemic communities, as an important factor in national
and international policymaking. According to these authors, epistemic commu-
nities play a decisive role in “articulating the cause-and-effect relationships of
complex problems, helping States identify their interests, framing issues for col-
lective debate, proposing specific policies, and identifying salient points for ne-
gotiation” (Haas, 1992, p. 2). These expert communities are characterized by:
a shared set of normative and principled beliefs, providing a value-based ra-
tionale for social action,
shared causal beliefs,
shared notions of validity,
a common policy enterprise.
Thus, epistemic communities provide consensual knowledge. Based on their
reputation, professional training, and claim to scientific authority, members of
an epistemic community can wield considerable influence over domestic and in-
ternational policy debates, particularly if their expertise is anchored in an area
highly valued by society or elite decision makers. Haas emphasizes that the dy-
namics underlying the formation of epistemic communities is based on the aim
to reduce uncertainty, so much dreaded by policymakers. Central to this aim is
not just the presence of “raw” data, or the absence of guesses, but knowledge as
the product of human interpretation of social and physical phenomena (Haas,
1992, p. 4). With respect to research methodology, Haas (1992) recommends a
combination of tools largely drawn from the ethnomethodological and struc-
tural analysis toolbox. This approach focuses on biographical data, such as publi-
cations, delegation lists to meetings and conferences, testimonies before legisla-
tive bodies, and speeches and reports for decision-making agencies, but can also
include the analysis of mathematical models to identify key variables and equa-
tions used by epistemic community members.
Cultural Bias Theory

The term “cultural bias theory” is used here as an umbrella for a number of ap-
proaches that have grown considerably diverse over the last decades. Cultural
bias approaches differ greatly depending on the definition of the social group
that one wishes to analyze. However, all of them share the notion of culture as a
determining factor in the formation of knowledge, policies, or larger societal
trends (Douglas & Wildavsky, 1982; Geertz, 1973; Hofstede, 1994; Inglehart,
1990; Jasanoff, 1986; Rohe, 1990). Of particular interest, for this chapter, are
notions of culture as a “world-view” and the manifestation of culture in rule
making or policymaking, variably referred to as “regulatory style,” “regulatory
culture,” or “political style.” Such “cultures” or “styles” have, for instance, been
identified as “hierarchical,” “entrepreneurial,” or “egalitarian” (Douglas &
Wildavsky, 1982). According to this theoretical perspective, national back-
grounds appear to be less important than the affiliation with professional and so-
cial groups, such as, for example, “bankers,” “politicians,” or “environmental ac-
tivists.” With respect to the analysis of risk management, one would inquire
whether the risks to be regulated are perceived to be “objective” or socially “con-
structed.” From an “objective” viewpoint, a “rational” actor or society would reg-
8 Horst Rakel
ulate risks equally based on comparable parameters. These risks could encom-
pass, for example, the number of fatalities per year associated with a given activ-
ity. From this perspective, it is highly inconsistent to regulate nuclear power
operations in Germany to a (theoretical) risk level of less than 8 fatalities per year
while, at the same time, accepting a death toll of some 8,000 traffic-related fatal-
ities in that same society (Fritzsche, 1991). Likewise, all “hard” drugs taken to-
gether claim 2,500 victims in Germany every year, whereas nicotine alone kills
100,000, equivalent to a jumbo jet with a full complement of passengers crash-
ing every day.
Yet, these 365 “jumbo crashes” arouse no public interest at all, even though
they entail not only much personal suffering but also considerable societal
cost. (…) “Risk,” it seems, is all in the mind—a construct. (Bayerische Rück,
1993, p. 7)
Cultural bias may also be approached from the position of “regulatory styles.” A
number of scholars argue that risk regulation is part of a national style of govern-
ment (Coppock, 1985; Jasanoff, 1986; O’Riordan & Wynne, 1987; Renn,
1995). The respective style of governmental decision making and, in particular,
the way in which expertise is utilized and public opinion is elicited are con-
sidered to have a strong bearing on the process and outcome of governmental
regulation. Especially in the context of comparisons between the EU and the
USA, styles have been labeled consensual and corporatist versus adversarial. Other
research has emphasized the US focus on due process and the (Northern) Euro-
pean orientation toward consultation and round-table decision making
(Coppock, 1985; Joss & Durant, 1995; O’Riordan & Wynne, 1987; Renn,
1995).
Regulatory Science
Over the last ten years or so, a growing number of scholars have identified the
role of science in regulatory decision making as a research subject in its own
right (Irwin, 1995; Irwin et al., 1997; Jasanoff, 1990, 1997; Salter et al., 1988).
In particular, it is argued that science used in rule making does not, and cannot
proceed under the same conditions, or adhere to the same standards characteris-
tic of academic science. In many areas, for example, in the case of new chemicals
or pharmaceutical drugs, regulation has to address risks that are not yet fully un-
derstood. Test results from animal studies are extrapolated to the human body,
although underlying processes and mechanisms are largely unknown. Regulatory
action is based on a limited pool of scientific knowledge, analogies drawn from
similar cases in the past, and the collective opinions of leading experts in the re-
spective field. Consequently, risk assessments employed by regulatory agencies
have often been described as an “art” rather than as a science, and as working by
less stringent norms than ordinary science (Irwin et al., 1997; National Research
Council [NRC], 1996; Rohrmann, 1993).
Because of the variety of assumptions, opinions, and interpretations included

in environmental and public health standard setting, a number of critics have
pointed out the potential for bias and manipulation in the regulatory science
context. For some, science in the regulatory process may become subjugated to
political interests disguised in scientific jargon (Irwin et al., 1997, p. 19;
Jasanoff, 1990). Because of its location at the leading edge of technology, it has
also been emphasized that scientific knowledge required in the regulatory pro-
cess often is not available in the public domain. As for new drugs, information is
of a proprietary nature and cannot be publicly scrutinized, or knowledge has to
be specifically generated for the purpose of regulatory action. It follows that ac-
cess to information and control over the respective information, with its implica-
tions for democratic legitimacy, become important variables in the standard-
setting process (Irwin et al., 1997; Jasanoff, 1990, 1997; Salter et al., 1988).
The following two case studies concern strongly risk-driven regulatory issues;
both are comparatively well documented (and, therefore, accessible to policy
analysis). They provide a unique opportunity to compare two groups of experts
acting on identical, or nearly identical, regulatory issues. The two case studies
also complement each other. Sewage Sludge Regulations were developed at a
time when the international political stakes were still low. If there was any inter-
national debate at all, it was mostly occurring in academic circles, and finding a
resolution to the problem of sewage sludge land application, on an international
level, was not a major objective. The hormone-raised beef dispute, on the other
hand, arose at a time when the international political stakes were already high
and the timetable for a resolution fixed by WTO procedures. Taken together, the
two case studies will serve to illustrate the importance of multiple theoretical
perspectives on the role of scientists as expert advisors in regulatory decision
making.
Case Study I: Land Application of Sewage Sludge

Sewage sludge is the (largely organic) residue left after waterborne waste (sewage)
from domestic and industrial sources has been treated. Whereas the effluent of
sewage treatment plants, in most cases, is clean enough to be discharged into riv-
ers or the sea, contaminants present in raw sewage accumulate in the solid phase.
Thus, sewage sludge usually contains a number of organic and inorganic pollu-
tants (e.g., heavy metals) of varying quantity, depending on the area and the
composition of the sources discharging into the sewer system. However, because
of its origin, sewage sludge also holds considerable amounts of plant nutrients
and physical properties that make it a valuable fertilizer and soil improver (Page,
Logan, & Ryan, 1987).
The application of sewage sludge to agricultural land would be a beneficial
recycling practice if risks to public health and the environment were not of con-
cern. Although sewage sludge had been spread onto soil for many years, the issue
attracted renewed regulatory attention in the late 1980s and early 1990s because
10 Horst Rakel
of international agreements to ban the disposal of sewage sludge into the sea
(Marshal, 1988; McGrath et al., 1989). At the same time, tightening standards
on wastewater treatment led to increasing quantities of sewage sludge that still
continues. In the United Kingdom, for example, the total amount of sewage
sludge is projected to rise from roughly 1 million tons (dry solids) in 1992 to 1.5
million tons by 2005 (Royal Commission on Environmental Pollution, 1996,
p. 82). Similarly, in 1991, 3.2 million tons were generated in Germany, rising to
an estimated 4 million tons by the year 2000 (Abwassertechnische Vereinigung
[ATV], 1996, p. 15). So, while one of the major disposal routes has been shut
down, the overall amount to be disposed of continues to rise. This disparity ex-
plains, in part, the political pressure to find an adequate solution to the problem
of sewage sludge disposal.
In the USA: Experts Criticizing Experts

The development of Sewage Sludge Regulation in the USA commenced in the
late 1970s and turned out to be particularly long winded (Chaney, 1990a;
Marshal, 1988). After prolonged political haggling, in particular between Con-
gress and the Reagan administration, the development of federal sludge regula-
tion—also known as “Rule 503”—eventually took shape in the late 1980s. In
1989, the US Environmental Protection Agency (EPA) published a draft regula-
tion for commentary (EPA, 1989). The strictness and range of the standards sent
shock waves through the industry and upset many experts outside the EPA
(Chaney, 1990a, 1990b; Morse, 1989; see Table 1). As a result, considerable re-
sistance was shaping up and thousands of responses to the proposed Rule arrived
at the agency, eventually adding up to some 5,500 pages of commentary (EPA,
1995, p. 20).
While controversial public debate is not unusual in the US regulatory process
(Kagan, 1994; Renn, 1995), the amount and the intensity of criticism leveled by
a number of experts outside the EPA were perhaps more ferocious than anybody
within the regulatory agency had expected. “Obituaries were being written” for
the agricultural use of sewage sludge (Goldstein, 1991, p. 68). “They [the EPA]
went overboard” commented Professor Terry Logan of Ohio State University
(Morse, 1989, p. 50). One of the most outspoken critics, Dr. Rufus Chaney
from the US Department of Agriculture, was particularly concerned about the
disregard for the benefits associated with sludge land application, such as its high
content in plant nutrients, as well as its soil conditioning and erosion prevention
properties, among others.
One last aspect of sludge use on cropland that should never be forgotten, is
that beneficial use lowers the net cost to society. (…) Taxpayers need regula-
tions for sludge utilization based on proper research findings so that the
minimum cost associated with environmental protection can be obtained.
(Chaney, 1990a, p. 55)
To the outside observer this reaction was all the more surprising, as the EPA had
conducted a very elaborate risk assessment backed up by extensive experimental
studies and documentation. In this respect, the EPA had adhered to the princi-
ple of a science-based approach that is considered to be at the heart of regulatory
decision making in the USA (EPA, 1995, p. iii; NRC, 1982). Yet, while the ex-
pert critics did not question the risk-assessment approach per se, they attacked
the EPA on the grounds that the assumptions and the models used in the risk-
assessment process were overly conservative and the experimental data employed
did not adequately represent pollutant behavior in the field (EPA, 1995).
The widespread criticism that the 1989 draft Rule received led to the estab-
lishment of a Scientific Advisory Committee whose brief was to assist the EPA
with revising the Rule. The Peer Review Committee was largely composed of
high-profile researchers in the field and was co-chaired by Professor Logan (Ohio
State University) and Professor Page (University of California, Riverside). To-
gether with Drs. Chaney, Logan, and Page, the team consisted of ten additional
experts from institutions all over the USA and Canada (EPA, 1995, p. 141). At
least half of the members of the Scientific Advisory Committee had joint publi-
cations (Chaney et al., 1987; Chang et al., 1987; Jacobs, O’Connor, Overcash,
Zabik, & Rygiewicz, 1987; Logan & Chaney, 1987; Mahler, Bingham, Page, &
Ryan, 1982; McGrath, Chang, Page, & Witter, 1994; Page et al., 1987). This
peer review process and the work of the Scientific Advisory Committee led to a
set of recommendations that the EPA used for revising the proposed Rule 503.
Some of the key elements of the revision are briefly described below:
Validity of survey data. The original data set used for assessing sludge quality
in the “40-Cities-Study” was considered outdated. The EPA had already been
aware of the limitations of this study as a database for the assessment of sewage
sludge quality during its development of the 1989 Rule (EPA, 1989, p. 5763).
This led the EPA to conduct the National Sewage Sludge Survey (NSSS) during
1988 to 1989. The NSSS used state-of-the-art analytical techniques and equip-
ment and covered a wider spread of Publicly Owned Treatment Works (POTWs)
12 Horst Rakel
to assure a more representative assessment of the current situation (EPA, 1995,

p. 20).
The results of the NSSS showed that the contaminant levels in the sludges
were generally much lower than indicated by the “40-Cities-Study.” Lead con-
centrations, for example, were only at 40% of their previously assumed levels.
Also the levels for chlorinated hydrocarbons were lower than expected (EPA,
1995, p. 21).
Validity of experimental data. In the proposed Rule the EPA relied largely on
greenhouse and pot studies to calculate the pollutant uptake by plants. These
studies simulated pollutant concentrations in soil through application of metal
salts or pure organic compounds. The Scientific Advisory Committee was able
to demonstrate that the behavior of sewage sludge pollutants in the field was
considerably different from the experiments in the greenhouse. Because of cer-
tain matrix effects in the sewage sludge and the so-called “Soil-Plant Barrier,”
transfer rates found in field studies were much lower than the rates determined
in laboratory experiments (Chaney, 1980, p. 63, 1990a, p. 56).
The EPA accepted the results from field studies as being more representative
of real-world situations and decided, for the revised Rule, to rely as far as possi-
ble on data from field studies (EPA, 1995, p. 28).
Revision of exposure path models. The models employed for the proposed Rule
assumed a 100% transfer of a pollutant simultaneously into ground water, sur-
face water, and air. That approach was deemed too conservative. The revised
Rule assumed a mass-balance approach, whereby the pollutant transfers are pro-
portionally assigned to the respective medium.
From MEI to HEI. One of the core criticisms leveled against the EPA was the
use of the Most Exposed Individual (MEI) model. In the eyes of the Peer Re-
view Committee, the MEI combined too many conservative assumptions and
represented an individual that could not exist in reality. To conduct a risk assess-
ment for a hypothetical person was, according to the critics, pointless (Chaney,
1990b, p. 70; Morse, 1989, p. 50). Because of the Peer Review Committees rec-
ommendations the EPA administrator decided to drop the MEI and replace it
with the Highly Exposed Individual (HEI) model (Habicht, 1992). In contrast
to the MEI, the HEI was considered to provide a more representative model of
those being at a higher risk than the general population. The “worst case” as-
sumptions of the MEI were, thus, replaced by an “unlikely case” scenario in the
HEI model.
Risk-level scenarios. For the proposed regulation, the EPA originally evaluated
scenarios for risk levels of and (i.e., scenarios evaluating fatalities
per 10,000/100,000/1,000,000 exposed population). Since the new risk assess-
ments indicated a very low risk, even at the current practice of sewage sludge dis-
posal, the EPA made the policy decision to use, in general, the level of for
the revised Rule. This level then represents the lifetime cancer risk of a highly ex-
posed individual (EPA, 1995, p. 35).
Omission of organic compounds. Organic compounds were deleted from the

revised Rule because all of the reviewed substances fulfilled at least one of the fol-
lowing three criteria:
The pollutant has been banned or restricted for use in the USA, or is no
longer manufactured for use in the USA.
The pollutant is not present in sludges at significant frequencies of detection
based on data gathered in the NSSS.
The limit for a pollutant from the sludge exposure assessment is not expected
to be exceeded in sludges that are used, or disposed of, based on data from
the NSSS (i.e., the potential limits would most likely not be exceeded in
practice anyway).
The “exceptional quality” concept. The quality criteria listed as Pollutant Con-
centration Limits by Rule 503 represent what has been discussed in the literature
as the “clean sludge concept,” or occasionally the Exceptional Quality (EQ)
sludge. This concept was originally suggested by the Peer Review Committee
(EPA, 1995, p. 22f.), the basic idea being to issue pollutant concentration limits
that were so low that the respective sludges can be applied with very little regula-
tory constraint (EPA, 1994, p. 7). According to the EPA, EQ concentration lim-
its are so low that even when applied over many years no adverse affects to hu-
mans or the environment will occur. Thus, in principle, EQ sludges can still be
applied to sites that have already reached their maximum pollutant load. These
limits are supposed to provide an incentive for the industry to produce high-
quality sludges.
The Modified Rule 503. In summary, public consultation and, in particular,

the activities of the expert Peer Review Committee led to a complete overhaul of
Rule 503. After implementing the changes outlined above, as well as a number
of other changes recommended by the Scientific Advisory Committee, the EPA
proceeded to publish the final Rule 503 in 1993 (because of a number of law-
suits, the details of which cannot be addressed at this point, the Rule received
additional minor modifications until 1995). Table 1 shows the dramatic changes
in standards from the initial to the final Rule. Apart from the complete omission
of organic pollutants, the limit values for inorganic pollutants have become con-
siderably less stringent. A comparison with the corresponding regulation by the
EU provides for an interesting point of reference for policy analysts. The devel-
opment of the EU Sewage Sludge Regulation is outlined below, followed by a
discussion of the commonalities and differences of the two approaches.
14 Horst Rakel
In the EU: Experts Among Themselves

The corresponding EU Regulation to Rule 503 is the “Directive on the protec-
tion of the environment, and in particular of the soil, when sewage sludge is
used in agriculture” (European Communities [EC], 1986). The Directive was
passed in 1986, but has its origins in a European Cooperation in the field of Sci-
entific and Technical Research (EU COST) program. The research project
started in 1971 and became known as the COST Project 68. The research
project was extended several times and eventually merged into a proposed regu-
lation in 1982. Concerns were raised by the member states about imposing uni-
form standards across the whole of the EU, not taking into account regional
variations and the cost associated with over-stringent standards. However, after
four years of negotiation, the Council of Ministers eventually formally adopted
the Directive in 1986 (Haigh, 1995).
Since the Directive essentially goes back to a joint EU research project, the
limit values shown in Table 2 were also strongly influenced by expert input. In
the EU case, however, the majority of the expert input occurred before a proposal
was published. The difference in procedural approaches can perhaps be ex-
plained with the different regulatory styles in Western Europe and the USA,
which have been described as corporatist and consensual versus adversarial, re-
spectively (O’Riordan & Wynne, 1987; Renn, 1995).
The elicitation and discussion of expert opinion in the EU developed along
the above mentioned COST program. Particularly in the late 1970s and early
1980s the COST program sponsored a string of expert workshops, where views
were exchanged and potential regulatory provisions were discussed among the
European scientists involved. The proceedings of these conferences were pub-
lished on a regular basis, representing a quite extensive documentation of the
participating experts’ assessment of the issue (Barth & L’Hermite, 1987;
Berglund, Davis, & L’Hermite, 1984; Davis, Haeni, & L’Hermite, 1986;
Davis, Hucker, & L’Hermite, 1983; Hall, Sauerbeck, & L’Hermite, 1992;
Hucker & Catroux, 1981; L’Hermite & Ott, 1984). Regulatory decision mak-
ing on the EU level, until very recently, was renowned for its intransparency
and closed-door political horse trading (Peterson, 1995). Thereby, the rational-
ity behind a particular regulation is often completely obscured to an outsider.
Fortunately, in the sewage sludge case, the published workshop proceedings do
provide us with a comparatively comprehensive insight into the experts’
point(s) of view.
The contributions to the COST workshops and the location of the venues
make clear that the European expert exchange was dominated by presentations
from German, Dutch, Swedish, and British scientists. There certainly was a dif-
ference in opinion between the more lenient British approach, on the one side,
and the precautious Dutch, German, and Scandinavian approach, on the other.
This is reflected in the span of limit values the EU allows its member states to im-
plement. However, these differences appear insignificant if compared to the US
limit values (see Table 2). What seems to have concerned the European COST
experts the most was the potential effects of heavy metals, contained in sewage
sludge, on soil microorganisms. While the EU researchers took their analysis to
the microbiological level, their US colleagues used earthworm activity as the tar-
get organism for their ecological risk assessment (EPA, 1995, p. 46). Field exper-
iments in Sweden, Germany, and the United Kingdom, however, had shown po-
tential adverse effects on the soil microbe Rhizobium that raised concerns about
long-term soil fertility among the European expert community (Chaudri,
McGrath, Giller, Rietz, & Sauerbeck, 1993; McGrath et al., 1994, p. 113). In
this context, McGrath et al. (1994, p. 109) emphasize the difference between the
Highest Non Observed Adverse Effect Concentration (HNOAEC) and the Low-
est Observed Adverse Effect Concentration (LOAEC), as these may vary consid-
erably. Depending on the chosen point of reference otherwise identical toxicity
tests may, thus, lead to a different assessment of risk and possibly regulation.
Summary of Case Study I

The case study above has illustrated that two expert communities, assessing an
identical environmental issue, have come to widely different conclusions con-
16 Horst Rakel
cerning the standards required to protect public health and the environment. In
comparison, the expert community advising the European regulatory body did
not conduct a systematically structured risk assessment of the type of their
American counterparts, except for the Dutch regulator. Instead, they reviewed
the field for evidence of an adverse effect occurring and then drafted their rec-
ommendations accordingly, taking into account the technical feasibility of their
advice. In their review of the experimental data employed in both the US and
EU Sewage Sludge Regulations, McGrath et al. concluded:
The dilemma of setting pollutant loading limits goes beyond the imperfect
scientific evidence, and is influenced by the attitudes of scientists, who inter-
pret the data, and of the general public toward environmental protection in
the countries concerned. (1994, p. 116)
The analysis so far suggests five key dimensions on which the role of experts in
the two regulatory frameworks differ. These differences are summarized in
Table 3.
Table 3 may be said to overemphasize the disparities between the two frame-
works. For instance, European scientists are not solely driven by technical feasi-
bility at the expense of scientific accuracy. European countries, such as the
United Kingdom, Switzerland, or the Netherlands have been employing risk as-
sessment for environmental and public health regulation for many years. In fact,
with increasing harmonization of European legislation, risk assessment is be-
coming more widespread throughout the EU, for example, in Occupational
Safety Regulations (Rakel, 1996). However, the differences are quite pro-
nounced with respect to the way in which uncertainty is handled and environ-
mental integrity is interpreted within the respective cultural paradigms. From a
US point of view, the probability of harm above a certain level has to be scientif-
ically substantiated to justify regulatory action. In Western Europe, the burden
of proof rests on the other side, that is, it has to be proven beyond reasonable
doubt that harm does not occur. Whereas in the USA environmental change is
accepted, as long as harm to humans is not to be expected, in the EU the precau-
tionary principle is the yardstick for the acceptability of human intervention in
the environment. This commitment has recently even been included in the
Maastricht Treaty, which has become a cornerstone for political decision making
in the modern EU (Cameron & O’Riordan, 1994).
Case Study II: Hormone-Raised Beef

Because of a number of incidents involving illegal drug applications to farm ani-
mals, food safety became a rising concern in the EU during the 1970s. As a re-
sult, the European Commission proposed legislation to ban, entirely, the use of
hormone products in the rearing of beef and veal (WTO, 1997, p. 9). In the
1980s, following reports of significant use of illegal growth-promoting hormonal
substances in a number of EU member states, several Council Directives were
passed, effectively banning the use of hormonal substances, except for therapeu-
tic purposes (WTO, 1997, p. 10).
However, in the USA, as in a number of other countries, such as Canada,
Australia, New Zealand, and Japan, the use of hormones is permitted for thera-
peutic as well as for production purposes. From a US regulatory viewpoint the
application of the hormones in question is safe when used for the promotion of
growth in accordance with good animal husbandry practices (WTO, 1997,
p. 30). Consequently, the EU enacted a ban on the import of hormone-raised
beef and veal. In the years prior to the ban US exports of beef and veal to the EU
“averaged in the hundreds of millions of dollars” (p. 17), and, most importantly,
trade in beef was growing at about 30% a year. After the ban was enacted in
1989, US beef exports to the EU plummeted to nearly zero (p. 17).
The USA, Canada, Australia, and New Zealand held joint consultations with
the EU on the issue but failed to reach a mutually satisfactory solution. Hence
the USA proceeded to sue the EU before the WTO on the grounds of an unnec-
essary restriction of trade under the General Agreement on Tariffs and Trade
(GATT). Following formal procedures, the Dispute Settlement Body (DSB) of
the WTO established a panel to investigate and possibly settle the matter.
Because the dispute revolved, to a large extent, around scientific matters, the
panel decided to conduct an expert hearing on the issue. Based on a list of names
provided by the Codex Alimentarius Commission (Codex) and the International
Agency for Research on Cancer (IARC) the panel selected six experts to advise
them: Dr. Francois André, France; Dr. Dieter Arnold, Germany; Dr. George
Lucier, USA; Dr. Jock McLean, Australia; Dr. Len Ritter, Canada; Dr. Alan
Randell, Codex Secretariat. The composition of the panel has been explicitly
spelled out here as an important input to epistemic community and cultural bias
methodology.
The panel ruling and the documentation of the case illustrate that the joint
meeting with the experts was of crucial importance for the dispute settlement
process (WTO, 1997, 1998). Although the original panel ruling (WTO, 1997)
was overturned on certain accounts of appeal, the EU eventually lost the case be-
cause its regulatory process and, in particular, its use of scientific expertise was
found not to be consistent with WTO rules. The main issues are briefly de-
scribed below.
Risk Assessment
The first and foremost argument against the EU ban on hormone-raised beef
was the absence of a proper risk assessment (WTO, 1998, p. 99). For the WTO,
“An assessment of risks is, at least for risks to human life or health, a scientific ex-
amination of data and factual studies; it is not a policy exercise involving social
value judgements made by political bodies” (WTO, 1997, p. 191). Article 5.1 of
the GATT agreement on sanitary and phytosanitary measures (SPS) states that
(…) members shall insure that their (…) measures are based on an assess-
ment, (…) of the risks to human, animal or plant life or health, taking into
18 Horst Rakel
account risk assessment techniques developed by the relevant international

organizations (Hathaway, 1993, p. 189; WTO, 1997, p. 191).
After prolonged deliberation, the panel ruled that the EU had not met its bur-
den of proof in that the (scientific) studies it referred to actually fulfilled the re-
quirements of a proper risk assessment (WTO, 1997, p. 196).
International Standards
Similarly, the panel also found that the respective EU standards were not in ac-
cordance with international standards (WTO, 1997, p. 186ff.). There, the panel
was, in particular, referring to the recommendations published by Codex. Codex
publishes recommendations, such as Acceptable Daily Intakes (ADIs) or Maxi-
mum Residue Limits (MRLs). However, Codex recommendations are not bind-
ing. One of the expert committees, on which Codex relies, is the Joint Food and
Agricultural Organization/World Health Organization (FAO/WHO) Expert
Committee on Food Additives (JECFA). The goal of JECFA’s evaluation of vet-
erinary drugs is:
(…) to establish safe levels of intake by setting Acceptable Daily Intakes
(ADIs) and to develop Maximum Residue Limits (MRLs) when veterinary
drugs are used in accordance with good veterinary practice (WTO, 1997,
p. 181).
Despite its nonbinding character, the panel took the Codex recommendation as
the international standard from which the EU ruling could only deviate on sci-
entifically justified grounds. For the EU experts, however, deviating from Codex
recommendations was justified because, in the past, drug abuse had occurred
and good veterinary practice could not necessarily be assumed.
Conclusive Evidence
The EU scientists had submitted the hypothesis of a “potential genotoxicity of
hormones” based on tests carried out with elevated doses of oestrogen (WTO,
1997, p. 202). However, data on genotoxicity at low levels (roughly equivalent
to the levels expected in meat) were not available at this point. The panel dis-
missed the claim because the EU scientists did not provide conclusive evidence
“(…) that an identifiable risk arises from the use of any of the hormones at issue
for growth promotion purposes in accordance with good practice” (WTO,
1997, p. 205). It should be noted that for the hormone melengestral acetate
(MGA) an “almost complete absence of evidence” in the panel proceedings was
observed. However, this lack of evidence did not mean that no scientific studies
were available. Rather, two of the appellees, the USA and Canada, “declined to
submit any assessment of MGA upon the ground that the material they were
aware of was proprietary and confidential in nature” (WTO, 1998, p. 78f.).
Precautionary Principle
The EU claimed that the application of the “precautionary principle,” as a gen-
eral customary rule in European environmental policymaking, places “the attain-
ment of a high level of consumer protection before the commercial interests of
farmers and pharmaceutical companies” (WTO, 1997, p. 86). Moreover, the
customary application of the precautionary principle affects, not only political
decision making, but even the scientific assessment of risks (WTO, 1998, p. 7).
The panel concluded, nevertheless, that although governments may act from a
perspective of prudence and precaution, the precautionary principle does not
override the provisions of the respective agreements under the WTO (1998,
p. 46).
Summary of Case Study II

Casting aside for the moment the legalized setting in which the dispute took
place, the case study outlined above, to a large extent, mirrors the key aspects of
the case study on sewage sludge regulation. First, it again shows the differing
usage of scientific expertise in the regulatory process. From a US point of view,
scientific expertise should not be influenced by political considerations and
judgments should strictly adhere to scientific principles. The European experts,
on the other hand, having experienced the difficulty of enforcing “good veteri-
nary practice,” were led to opt for much larger safety margins than their North
American colleagues.
The opposing viewpoints are reinforced by differing normative standards.
For the appellees’ (USA, etc.) scientists, the absence of evidence of harm is suffi-
cient to justify lenient standards or no regulatory action. For the appellants, ex-
perts’ positive evidence of no harm occurring is required to legitimize lenient or
no regulatory intervention. Last, but not least, the approach by the EU scientists
was consistent with the overall regulatory framework provided by the Maastricht
Treaty with its emphasis on the precautionary principle as a yardstick for policy-
making. A formalized risk assessment of the kind required by the GATT/WTO
20 Horst Rakel
agreements, therefore, would very likely not change the European evaluation of
the issue, as the fundamental preconditions for regulatory (in)action would still
not be met. Table 4 summarizes the key positions of the opposing parties during
the WTO dispute settlement process.
A Synthesis of Multiple Perspectives on Regulatory

Decision Making
In the wake of globalization, previously autonomous areas of society are increas-
ingly exposed to outside influences. The level and degree of regulation in the
areas of environmental protection and public health are closely linked to the
questions of legitimacy, sovereignty, and democratic decision making. Within
the EU, the concept of subsidiarity was introduced to ensure that regulatory de-
cision making is located at the most appropriate level. Whether this objective has
been met cannot be discussed here, but its mere provision illustrates the desire of
the involved regions and nation states not to be left at the mercy of an overbur-
dening and remote bureaucracy. Yet, the mechanisms of international trade may
replace the asserted local authority with an even more remote and non-transpar-
ent decision-making structure.
Naturally, local environmental and public health regulation can turn out to
be a stumbling block for the unrestricted flow of goods and services between
trading blocks (incidentally, sewage sludge regulation may lead to grain export
restrictions between the USA and the EU). As the WTO agreements indicate,
the hope is that science provides the “objective” yardstick that is necessary to
harmonize differing standards. This hope is, at best, naive. The probabilistic sci-
entific findings in the area of environmental and public health risks cannot pro-
vide the desired “yes” or “no” answers. Cultural biases, political convictions, and
(personal) world-views enter not only the interpretation of scientific evidence,
but influence even the generation of scientific insights (in the case of the sewage
sludge regulation, pot studies vs. field studies, or MEI vs. HEI), and the selec-
tion of evidence (earthworm vs. soil microbes), thus, having a massive bearing
on the shape of the final regulation.
The two case studies are, in various aspects, consistent with the notion of
“epistemic community.” Epistemic communities espouse certain notions of va-
lidity and certain causal beliefs and, perhaps most importantly, they pursue a
common policy enterprise, which may also be described as the “mission” of the
respective epistemic community. However, and different from Haas’ (1992)
original proposal, in the two presented case studies membership in the respective
epistemic communities was strongly dependent on cultural affiliation, and na-
tional background, in particular. In the case study on sewage sludge regulation,
research results generated by members of each epistemic community (Northern
American/European) were known and available to all. The members of the two
communities even attended the same conferences. So, professional training and
scientific knowledge were perhaps as comparable as possible, taking into account
the different (national) educational systems involved. Given this shared knowl-
edge base, the differences in the proposed safety levels are striking. Two main
factors appear to be responsible for this marked divergence of standards: the
value basis shaped by cultural affiliation of the involved scientists and/or the reg-
ulatory process.
In both case studies, the European experts felt a strong obligation to adhere
to the precautionary principle. By contrast, in the USA, acceptable environmen-
tal change and cost-effectiveness provide a legitimatory basis for much more
lenient standards. Differences in the regulatory process concern the timing of ex-
pert input. In Europe, in both case studies, the major expert input occurred prior
to drafting the legislation. In the USA, at least in the sewage sludge case, the im-
portant expert intervention took place after the regulatory agency had issued the
first draft. Although this pattern is generally reflected in the literature, the actual
relevance of expert consultation prior to, or after issuing the draft legislation has
not been fully explored. Thus, the question is not whether “value interference”
occurs during expert consultation, but rather when and how. Within the context
of this chapter, it appears that under an adversarial mode of rule making experts
are held to locating their policy choices upstream in the epistemological process.
Under a consensual mode, a certain degree of political sensitivity on the part of
the expert is tolerated, if not expected.
From a regulatory science perspective it is, thus, evident that expert advice in
policymaking needs to be viewed and interpreted within the political context it
occurs. Problems arise when (national) regulatory standards are placed and eval-
uated outside their frame of reference. This holds particularly true if the evalua-
tor(s) is/are unaware of their own culturally preconditioned biases when putting
into question the validity and legitimacy of the “deviating” expert community. It
is universally accepted that challenges to claims of validity are a fundamental and
integral part of the scientific endeavor. However, as the discussion at the
Schloeßmann workshop in November 1998 has suggested, the role of the scien-
tist should, perhaps, be separated from the role of the expert. When scientists act
as policy advisors or regulatory scientists, they are invariably entering a politi-
cized sphere. Thus, separating environmental regulation into “science-based”
and “policy-based” approaches (as the EPA argues, perhaps in an attempt to pre-
empt potential criticism; EPA, 1995, p. iii) appears to be more driven by politi-
cal rhetoric, than by a profound appreciation of the issue at hand.
Conclusion
When regulating identical environmental and public health risks the USA and
the EU arrive at considerably different conclusions. In the presented case studies
the standards developed are largely a result of scientists providing expert advice
for policymaking. The interesting finding is that the actual knowledge base, the
respective experts drew upon, was not contested. The different expert communi-
ties were rather separated by the interpretation of the available scientific evi-
22 Horst Rakel
dence. The interpretation of scientific evidence for policy advice is, to a large de-
gree, influenced by shared values within the respective epistemic community,
cultural factors, and, quite possibly, political interests.
The epistemic community formation is a useful theoretical approach for ana-
lyzing environmental and public health standard setting. However, since the
epistemic community approach was developed within the context of interna-
tional policy coordination, it has not adequately addressed the issues of regula-
tory science and cultural contingencies in decision making about risks. From a
regulatory science point of view, on the other hand, we have to realize that the
focus of most of the current inquiries into the standard setting process has been
too narrowly defined. While we still debate standard setting as a national prerog-
ative in countries, such as Germany, the United Kingdom, France, and the USA,
just to name a few, globalization moves on. We should wake up to the fact that
important regulatory decisions are made on the international level, under a com-
pletely different set of rules and perhaps employing a different epistemic ap-
proach than we have been used to so far. Therefore, it seems more than timely to
globalize the scope and analytical framework of the regulatory science approach.
Environmental and public health standards are a reflection of the cultural
and social context in which they occur. This applies, not just to the regulatory
process, but also to the culturally bounded interpretation of probabilistic scien-
tific evidence. However, because of the globalization of markets and interna-
tional trade agreements an increasing number of standards and regulations are
set by international bodies or organizations. These new regulatory systems are
not yet subject to the same checks and balances as it is a characteristic of the na-
tional systems. There is an urgent need to investigate decision making on an in-
ternational level and, in particular, the roles of expert advisory committees in the
regulatory process. It is necessary to expand these studies beyond issues, such as
ozone depletion and global warming. Although less visible in the media, food
safety or product safety standards affect a large number of people and have huge
economical and financial implications.
Taken together, this then raises the question of the future role of the expert,
in particular the scientist, in a globalized economy and the respective globalized
institutions. Is their role to provide purely “scientific” input regardless of politi-
cal implications? How can science input into policymaking be “objective” if the
evidence itself is open to interpretation? Perhaps somewhat contrary to the tradi-
tional view on science and scientists, it might still be early days in the formation
of a global science culture.
References
Adler, E., & Haas, P. M. (1992). Conclusion: Epistemic communities, world order, and the cre-
ation of a reflective research program. International Organization, 46(1), 367–390.
Adorno, T. W., Dahrendorf, R., Pilot, H., Albert, H., Habermas, J., & Popper, K. R. (1972). Der
Positivismusstreit in der deutschen Soziologie. Darmstadt, Germany: Luchterhand.
Arbeitsgemeinschaft für Umweltfragen (Ed.). (1986). Das Umweltgespräch: Umweltstandards—

Findungs- und Entscheidungsprozeß. Bonn, Germany: Arbeitsgemeinschaft für Umweltfragen.
Abwassertechnische Vereinigung (ATV). (1996, August). Zahlen zur Abwasser- und Abfall-
wirtschaft. Hennef, Germany: Abwassertechnische Vereinigung.
Barth, H., & L’Hermite, P. (Eds.). (1987). Scientific basis for soil protection in the European Commu-
nity. London: Elsevier.
Bayerische Rück. (Ed.). (1993). Risk is a construct: Perceptions of risk perception. Munich, Germany:
Knesebeck.
Berglund, S., Davis, R. D., & L’Hermite, P. (Eds.). (1984). Utilisation of sewage sludge on land:
Rates of application and long-term effects of metals. Dordrecht, The Netherlands: Reidel.
Cameron, J., & O’Riordan, T. (Eds.). (1994). Interpreting the precautionary principle. London:
Cameron May.
Chaney, R. L. (1980). Health risks associated with toxic metals in municipal sludge. In G. Bitton,
B. L. Damron, G. T. Edds, & J. M. Davidson (Eds.), Sludge—Health risks of land application
(pp. 59–83). Ann Arbor, MI: Ann Arbor Science.
Chaney, R. L. (1990a, September). Twenty years of land application research. BioCycle, 54–59.
Chaney, R. L. (1990b, October). Public health and sludge utilization. BioCycle, 68–73.
Chaney, R. L., Bruins, R. J. F., Baker, D. E., Korcak, R. F., Smith, J. E., & Cole, D. W. (1987).
Transfer of sludge-applied trace elements to the food chain. In A. L. Page, T. J. Logan, & J. A.
Ryan (Eds.), Land application of sludge (pp. 67–99). Chelsea, MI: Lewis.
Chang, A. C., Hinesly, T. D., Bates, T. E., Doner, H. E., Dowdy, R. H., & Ryan, J. A. (1987). Ef-
fects of long-term sludge application on accumulation of trace elements by crops. In A. L. Page,
T. J. Logan, & J. A. Ryan (Eds.), Land application of sludge (pp. 53–66). Chelsea, MI: Lewis.
Chaudri, A. M., McGrath, S. P., Giller, K. E., Rietz, E., & Sauerbeck, D. R. (1993). Enumeration
of indigenous Rhizobium Legominosarum Biovar Trifolii in soils previously treated with metal-
contaminated sewage sludge. Soil Biology and Chemistry, 25(3), 301–309.
Coppock, R. (1985). Interactions between scientists and public officials: A comparison of the use
of science in regulatory programs in the United States and West Germany. Policy Sciences, 18,
371–390.
Davis, R. D., Haeni, H., & L’Hermite, P. (Eds.). (1986). Factors influencing sludge utilisation prac-
tices in Europe. London: Elsevier.
Davis, R. D., Hucker, G., & L’Hermite, P. (Eds.). (1983). Environmental effects of organic and inor-
ganic contaminants in sewage sludge. Dordrecht, The Netherlands: Reidel.
Douglas, M., & Wildavsky, A. (1982). Risk and culture. Berkeley, CA: University of California
Press.
European Communities (EU). (1986). Council Directive of 12 June 1986 “On the protection of
the environment, and in particular of the soil, when sewage sludge is used in agriculture (86/
278/EEC).” Official Journal of the European Communities (No. L 181/6–12, 4 June 1986).
EPA—US Environmental Protection Agency. (1989). Standards for the disposal of sewage
sludge—Proposed rule. Federal Register, 54(23), 5745–5902.
EPA—US Environmental Protection Agency. (1994, September). A plain English guide to the EPA
part 503 biosolids rule. Washington, DC: Office of Wastewater Management.
EPA—US Environmental Protection Agency. (1995, September). A guide to the biosolids risk assess-
ments for the EPA part 503 rule. Washington, DC: Office of Wastewater Management.
Foster, K. R., Bernstein, D. E., & Huber, P. W. (Eds.). (1993). Phantom risk. Scientific inference
and the law (paperback ed. 1999). Boston, MA: MIT Press.
Foster, K. R., & Huber, P. W. (Eds.). (1999). Judging science. Scientific knowledge and the courts.
Boston, MA: MIT Press.
Fritzsche, A. F. (1991). Die Gefahrenbewältigung in einem gesellschaftlichen Spannungsfeld—
Standortbestimmung und Ausblick. In J. Schneider (Ed.), Risiko und Sicherheit technischer Sys-
teme (pp. 29–42). Basel, Switzerland: Birkhäuser.
Garcia, L. D. (1992). Standard setting in the United States: Public and private sector roles. Journal
of the American Society for Information Science, 43(8), 531–537.
Geertz, C. (1973). The interpretation of cultures. London: Fontana. (Reissued 1993)
24 Horst Rakel
Goldstein, N. (1991, September). Beneficial use should survive new 503 regs. BioCycle, 68–69.
Haas, P. M. (1992). Introduction: Epistemic communities and international policy coordination.
International Organization, 46(1), 1–35.
Habermas, J. (1969). Technik und Wissenschaft als Ideologie. Frankfurt a.M., Germany: Suhrkamp.
Habermas, J. (1981). Theorie des kommunikativen Handelns (Vols. I and II). Frankfurt a.M., Ger-
many: Suhrkamp.
Habicht, H. (1992). Guidance on risk characterization for risk managers and risk assessors (Memoran-
dum). Washington, DC: US Environmental Protection Agency.
Haigh, N. (1995). Manual of environmental policy (Release 0), Chapter 5.9: Sewage sludge. Lon-
don: Cartermill International.
Hall, J. E., Sauerbeck, D. R., & L’Hermite, P. (Eds.). (1992). Effects of organic contaminants in sew-
age sludge on soil fertility plants and animals. Luxembourg: Office for Official Publications of
the European Communities.
Hathaway, S. C. (1993). Risk assessment procedures used by the Codex Alimentarius Commission
and its subsidiary and advisory bodies. Food Control, 4(4), 189–201.
Hofstede, G. (1994). Culture and organisations. London: Harper Collins.
Horkheimer, M., & Adorno, T. W. (1947). Dialektik der Aufklärung. Amsterdam, The Nether-
lands: Querido.
Hucker, T. W. G., & Catroux, G. (Eds.). (1981). Phosphorous in sewage sludge and animal waste
slurries. Dordrecht, The Netherlands: Reidel.
Inglehart, R. (1990). Culture shift in advanced industrial society, Princeton, NJ: Princeton Univer-
sity Press.
Irwin, A. (1995). Citizen science: A study of people, expertise and sustainable development. London:
Routledge.
Irwin, A., Rothstein, H., Yearley, S., & McCarthy, E. (1997). Regulatory science—Towards a so-
ciological framework. Futures, 29(1), 17–31.
Jacobs, L. W., O’Connor, G. A., Overcash, M. A., Zabik, M. J., & Rygiewicz, P. (1987). Effects of
trace organics in sewage sludges on soil-plant systems and assessing their risk to humans. In A. L.
Page, T. J. Logan, & J. A. Ryan (Eds.), Land application of sludge (p. 53ff.). Chelsea, MI: Lewis.
Jasanoff, S. (1986). Risk management and political culture. New York: Russell Sage Foundation
(Social Research Perspectives 12).
Jasanoff, S. (1990). The fifth branch. Science advisers as policy makers. Cambridge, MA: Harvard
University Press.
Jasanoff, S. (1997). Civilisation and madness: The great BSE scare of 1996. Public Understanding
of Science, 6, 221–232.
Joss, S., & Durant, J. (Ed.). (1995). Public participation in science: The role of consensus conferences
in Europe. London: Science Museum.
Kagan, R. A. (1994). Do lawyers cause adversarial legalism? A preliminary inquiry. Law & Social
Inquiry, 19(1), 1–62.
Kuhn, T. S. (1970). The structure of scientific revolutions (2nd ed.). Chicago: University of Chicago
Press.
L’Hermite, P., & Ott, H. (Eds.). (1984). Processing and use of sewage sludge. Dordrecht, The
Netherlands: Reidel.
Logan, T. J., & Chaney, R. L. (1987). Nonlinear rate response and relative crop uptake of sludge
cadmium for land application of sludge risk assessment. In Proceedings of the Sixth Interna-
tional Conference on Heavy Metals in the Environment (pp. 387–389). Edinburgh, UK: CEP
Consultants.
Mahler, R. J., Bingham, F. T., Page, A. L., & Ryan, J. A. (1982). Cadmium enriched sewage sludge
addititions to acid and calcareous soils: Effect on soil and nutrition of lettuce, corn, tomato,
and swiss chard. Journal of Environmental Quality, 11, 694–700.
Marshal, E. (1988, October). The sludge factor. Science, 242, 507–508.
McGrath, S. P., Chang, A. C., Page, A. L., & Witter, E. (1994). Land application of sewage sludge:
Scientific perspectives of heavy metal loading limits in Europe and the United States. Environ-
mental Review, 2, 108–118.
Morse, D. (1989, August). Sludge in the nineties. Civil Engineering, 47–50.

National Research Council (NRC). (1982). Risk assessment in the federal government: Managing the
process. Washington, DC: National Academy Press.
National Research Council (NRC). (1996). Understanding risk: Informing decisions in a democratic
society. Washington, DC: National Academy Press.
O’Riordan, T., & Wynne, B. (1987). Regulating environmental risk: A comparative perspective. In
P. R. Kleindorfer & H. C. Kunreuther (Eds.), Insuring and managing hazardous risks: From
Seveso to Bhopal and beyond (pp. 391–410). Berlin: Springer.
Page, A. L., Logan, T. J., & Ryan, J. A. (Eds.). (1987). Land application of sludge. Chelsea, MI:
Lewis.
Peterson, J. (1995). Playing the transparency game: Consultation and policy-making in the Euro-
pean Commission. Public Administration, 73(3), 473–492.
Rakel, H. (1996). Workplace risk assessment: A comparative analysis of regulatory practices in five EU
member states. Norwich, UK: University of East Anglia (CERM Research Report No. 27).
Renn, O. (1995). Style of using scientific expertise: A comparative framework. Science and Public
Policy, 22(3), 147–156.
Renn, O., Webler, T., & Wiedemann, P. (Eds.). (1995). Fairness and competence in citizen partici-
pation. Dordrecht, The Netherlands: Kluwer.
Rohe, K. (1990). Politische Kultur und ihre Analyse. Historische Zeitschrift, 250, 321–346.
Rohrmann, B. (1993). Risk management by setting environmental standards. In Bayerische Rück
(Ed.), Risk is a construct: Perceptions of risk perception (pp. 269–289). Munich, Germany:
Knesebeck.
Royal Commission on Environmental Pollution. (1996). Sustainable use of soil. London: HMSO
(Nineteenth Report, Cm. 3165).
Royal Commission on Environmental Pollution. (1998). Setting environmental standards. London:
The Stationary Office (Twenty-first Report, Cm. 4053).
Salter, L., Leiss, L., & Levy, E. (1988). Mandated science: Science and scientists in the making of stan-
dards. Dordrecht, The Netherlands: Kluwer.
Shrader-Frechette, K. S. (1991). Risk and rationality. Berkeley, CA: University of California Press.
van der Loo, H., & van Reijen, W. (1992). Modernisierung. Projekt und Paradox. Munich, Ger-
many: dtv.
Webler, T., Rakel, H., & Ross, J. S. R. (1992). A critical theoretic look at technical risk analysis.
Industrial Crisis Quarterly, 6, 23–38.
World Trade Organization (WTO). (1997, August). EC measures concerning meat and meat prod-
ucts (hormones). Complaint by the United States. Report of the Panel (WT/DS26/R/USA).
Geneva, Switzerland: WTO.
World Trade Organization (WTO). (1998, January). EC measures concerning meat and meat prod-
ucts (hormones). Report of the Appellate Body (WT/DS26/AB/R). Geneva, Switzerland: WTO.
Chapter 2
Experts’ Discourses as Judicial Drama or
Bureaucratic Coordination:
Family Debate in the United States and Germany
Wolfgang Walter
Institute for Sociology, University of Freiburg, Germany
ww-wolfgang.walter@t-online.de
This study deals with the influence of experts in political counseling. It analyzes
a comparative case study in the field of family policy. The starting point is a
striking difference in the approaches adopted since 1980 in American and Ger-
man policies for families, children, and their welfare.
In the US, the obligations of (absent) fathers to financially support their fam-
ilies has been vigorously enforced, as have work requirements for single mothers;
welfare benefits as lifelong entitlements have been abolished on the federal level,
and the respective programs of the individual states have been substantially cur-
tailed. Moreover, highly critical pronouncements on so-called “unconventional
family forms” such as single-parent, divorced, or step-families, as well as on the
moral situation of American youth, presumably caused by these conditions, have
become widespread.
In Germany,1 families have been gradually relieved of the costs of raising
children; parents (i.e., in most cases mothers) can take parental leave for up to
three years (with modest financial support), and family members responsible for
the care of frail elderly relatives have been granted support by care-provision in-
surance programs. The public debate has treated families as being rather similar;
the distinction between “conventional” and “unconventional” families is less im-
portant than that between families and “non-families,” that is, persons or house-
holds without children or other dependents. Likewise, the problems attributed
to families have been located not in the moral, but rather in the financial sphere.
1
For the period prior to German unification in 1990, the term “Germany” used in this paper
refers to West Germany, that is, the Federal Republic of Germany; for the period after 1990, to the
geographical unit bearing the same name that combines former West and East Germany. For sev-
eral reasons, unification has led to continuity rather than discontinuity in the dominant public
views and the state’s policies on the family under the auspices of the West German model (e.g.,
Gerlach, 1996, p. 121ff., p. 165ff.; Kaufmann, 1990, 1995).
27
28 Wolfgang Walter
I will argue in this chapter that these differences can be attributed to the in-
stitutional resources, strategies, and world-views of the experts who shape the
public debate on the family in the two countries. I will try to show that two sets
of factors, the organization of the field of experts and their strategies, account for
the characteristics of the debate on family issues and the resulting policies. Refer-
ring to a well-established distinction found in comparative legal studies, I will
denote the difference between experts’ discourses in the US and Germany with
the terms “adversarial model” and “inquisitorial model.”
In the first section (Experts as Advisors), I review older approaches on the uti-
lization of the social sciences with regard to my own research strategy. In the sec-
ond section (Experts and Policy Change: A Comparative Case Study), I provide an
overview of family debate and family-policy developments in each country, to
explain the different paths of policy development arising from the specific link-
age between the institutionalization of expertise and experts’ strategies—adver-
sarial and inquisitorial. In the third section (Methodological Issues in the Study of
Experts), I analyze three aspects of the account: the societal embeddedness of ex-
perts’ discourses, the rhetorical content of texts, and the self-reports of experts.
My concluding remarks relate the case study to my broader theme, that is, the
sociology of experts.
Experts as Advisors
The Utilization of Social Science
The role of experts in the scientific counseling of policymakers has been studied
for a long time with—it seems—largely inconclusive results. In this chapter, I
will deal mainly with policy experts drawn from the social sciences. Even though
my analysis is restricted to this subject, there are still questions regarding the ex-
tent of such experts’ influence and their impact on policies, and the policy-
maker’s reception or rejection of advice. Part of the problem is that the two main
analytical frameworks, the “dual model” and the “conceptualizing utilization”
model, result in conflicting interpretations and unanswered questions.
The Dual Model and the Study of Scientific Counseling

The “dual model” (Mayntz, 1994, p. 12), a framework which was in use from
the post-World War II era until the late 1970s, assumes that polity and science
are two distinct institutions, each with its own rationality. Whereas the polity is
a sphere where maximizing societal power is a main goal, science aims at maxi-
mizing knowledge. The results of the scientific counseling of policymakers were
seen either as Enlightenment, through which scientific rationality was to be trans-
formed into political practice, or technocracy, through which political power and
scientific expertise would create a powerful coalition to suppress the democratic
process (Habermas, 1978).
Family Debate in the United States and Germany 29
Polity and science were portrayed in a rather systematic way, which made the
conclusions (“Enlightenment” vs. “technocracy”) plausible and fruitful for empirical
studies. But, it was virtually impossible to confirm the presumed effects in either di-
rection. Empirical evidence was interpreted as showing the irrelevance of the social
sciences for the political process (Wingens, 1988). The problem lies in the assump-
tion underlying the dual model, namely, that the political and scientific spheres have
distinct forms of rationality, criteria of validity, and ideals of efficiency. Because the
polity is a system of actors exercising power to gain societal control, it needs
scientific expertise, but at the same time, it is unable to work with it adequately. The
same is true in the other direction; science may imply a certain “mission” to en-
lighten policymakers, but cannot be translated into power-oriented action.
Conceptualizing Utilization
Out of the disappointment with the older approach, grew a new one, based on
Carol H. Weiss’s (1983, 1991) insight that the main function of social scientific
knowledge is of a conceptualizing nature, so that political discourse is framed by
scientific terminology. What influences policy and gives it a more realistic and
reliable foundation is not ideas or data, but rather semantics as a link between
the scientific and political discourses.
In its departure from the assumptions of the dual model, this approach fo-
cused on the process of utilizing scientific conclusions in political communica-
tion. This idea was fruitful in further research, but it deliberately abandoned the
question posed by the older approach, namely, how actors in different social
spheres (politics and science) influence each other. Specifically, the utilization
approach had three characteristics:
Instead of reconstructing the interaction of scientists and policymakers, utili-
zation research aimed at describing the osmosis of concepts between the two
spheres.
The study of utilization lost empirical depth by proposing a general model of
scientific expertise whose main feature was its conceptualizing use by political
actors.
The conceptualization approach was not interested in actors, replacing agents
with anonymous processes of knowledge dissemination.
An Alternative Research Strategy

The study of scientific counseling and its utilization seems to be torn between
the alternatives of a philosophically profound, but empirically unacceptable ap-
proach and a simpler model that provides more empirical evidence, but at the
cost of neglecting many relevant aspects. There are two sources that serve as a
starting point for a new approach to the study of the role of scientific expertise in
the polity. The first is a theoretical, macro-sociological perspective, associated
with the notion of a “knowledge society”; the second stems from the construc-
tionist study of social problems.
30 Wolfgang Walter
The Knowledge Society

The concept of the “knowledge society” is derived from theories of so-called
“post-industrial” society. The main claim of this approach is that knowledge has
become an integral part of the institutional structure of modern societies (Stehr,
1992). In modern times, different types of scientific knowledge play an increas-
ingly important role in the economy. There are natural science-based industries
such as the chemical industry, where knowledge has become a major productive
force. There are also sectors of the service economy that depend more and more
on social scientific knowledge, such as marketing and personal services, as well as
professions such as social work or therapy that are almost exclusively based on it.
Moreover, social scientific knowledge has become a means of social control and
policymaking with the expanded use of official statistics, social reporting, and
scientific advisory capacity vis-à-vis the State, which Giddens (1990) has sum-
marized under the notion of “surveillance.” Many theorists of the “knowledge
society” see, in this process, the rise of a new societal class of experts and advisors
who play a central role in social change (either furthering or impeding it) by “de-
fining die situation,” that is, by constructing “social problems” and giving advice
on possible solutions (Stehr, 1992).
Access to knowledge and the ability to use it is becoming a major resource.
This is leading to the development of specialized roles for “knowledge workers,”
professionals, advisors, and the like. As a consequence, the “knowledge society”
is developing a genuine form of social stratification in addition to the class struc-
ture of the industrial society. Bourdieu (1976) analyzes the social structure of ex-
perts with his general concept of a “field,” seen as an ordered set of social posi-
tions and cultural goods. Experts are equipped with social, economic, and cul-
tural capital, that is, networks, financial means, and educational backgrounds.
This set of resources is unequally distributed in the social space where expertise
is provided and obtained.
The main cultural goods at stake in the fields of experts are contested ideas.
Experts use their resources (academic titles, reputations, access to financial
means, media, rhetorical skills, etc.) to compete for hegemony in their field, that
is, for public acceptance of their ideas, as opposed to those of their competitors.
This model is mainly derived from Max Weber’s sociology of religion (Bourdieu,
1971a, 1971b); like religious leaders, experts compete for the acceptance of their
proposals by the lay public. Groups of experts form antagonistic camps commit-
ted to the advancement and defense of “orthodoxy” versus “heterodoxy,” relying
on their resources and claims to hegemony in matters of ethical principles and
social norms.
The Construction of Social Problems

The second set of ideas used in revising the conventional paradigms on scientific
counseling stems from the qualitative analysis of social problem construction.
The link between this approach and the considerations mentioned above lies in
the definition of the expert as a strategic player who attempts to convince others
of their views on issues. The constructionist approach to social problems
(Gusfield, 1976; Holstein & Miller, 1993; Spector & Kitsuse, 1977) stresses the
active role of experts in making claims and trying to set the agenda within a field
of policy or debate.
Experts are seen as “constructing reality” in their respective areas, mainly by
rhetorical means. Although this is a contested idea, it is at least plausible that
claims have to be routinely supported by the framing of research questions, the
organization of evidence, and its convincing presentation. Recent developments
in this approach do, however, admit that there are limitations set by societal con-
ditions, be they the structure of arenas in which social-problem discourses take
place (Hilgartner & Bosk, 1988), cultural traditions (Griswold, 1994, Chap. 4),
or welfare states (Gusfield, 1989).
A New Approach to the Sociology of Experts

I see my own approach of combining these two sets of considerations as a means
to redesign research on the role of experts in three ways:
The research question aims at reconstructing the active contributions of
groups of experts to policy development. How is agenda setting and program
development influenced by the strategies experts adopt in presenting their
considerations within a contested area of political debate? The policy devel-
opments to be explained in the comparative case study are described in the
next section.
The analytical model focuses on experts’ strategies, on the one hand, and the
institutionalization of the fields where experts have social and intellectual po-
sitions, on the other (see also Singer, 1990). This linkage between field and
actor leads to the development of a comparative model of the debates on the
family, in the two countries, adapted from comparative law (see Institutions
and Strategies).
The central social actor is the “expert,” who creates and disseminates knowl-
edge—the institutional context of policymaking. Therefore, the study of ex-
perts is shaped by the relational definition of the expert as a public actor who
manages knowledge production and reception (Hitzler, 1994). This chapter
discusses several methodological consequences of this perspective (see Meth-
odological Issues in the Study of Experts).
Experts and Policy Change: A Comparative Case Study

Family Debate and Family Policy in the US and Germany
The subject of the comparative case study is the political debate on the family in
the US and Germany. The term “family debate,” as used here, denotes all forms
of public discussion of the situation and development of the family as a societal
domain (Skolnick, 1993). The family debate is intended to define the mutual re-
sponsibilities of family members and of the family as a whole vis-à-vis other areas
of society, for example, the economy or the polity.
32 Wolfgang Walter
After World War II, the Federal Republic of Germany and the US affirmed
the same dominant official family ideal, the so-called modern “nuclear” or “tra-
ditional modern” family—the lifelong married couple consisting of a male
breadwinner (and head of the family) and a female homemaker, together with
their biological children (Moeller, 1993, for West Germany; Skolnick, 1993, for
the US). This ideal underwent a reformulation in the late 1960s and early
1970s, and since the 1980s conservative administrations in both countries have
made “The Family” a major issue on the political agenda. Their family policies
can be seen as attempts to adjust the ideal to the changed reality of family life
since the 1960s.
Although the starting points of the family debate and the climate of policy
change were similar at the beginning of the 1980s, the results have been almost
diametrically opposite. Whereas the American family debate has produced a host
of diverse definitions and openly contradictory representations of family forms
as well as assessments of their change (Popenoe, 1988; Stacey, 1994a), its coun-
terpart in Germany has tended to broaden the family definition judiciously,
which has led to a less ideology-laden discussion emphasizing the similarities of
all life situations in which children are raised (Bundesministerium für Familie
und Senioren, 1994; Nave-Herz, 1994). In other words, families are seen in
terms of their similarity, which does not mean that all family forms are regarded
as equivalent, but does imply that no type of family should be discriminated
against.
As a result, the American policy arena resembles a “cultural war” (Berger &
Berger, 1983; Popenoe, 1993c) with heated disputes over the legitimate image of
the family and the correct evaluation of family change, especially between the ad-
vocates of a strictly traditional family model, on the one hand, and the promot-
ers of a plurality of alternatives, on the other (Popenoe, 1988, vs. Stacey, 1994a).
In Germany, the notion of the two-generation group as the core of a loose con-
sensus on the family serves as a broad umbrella under which a debate on the
means of giving practical support to families is being conducted with far less ac-
rimony. Most scholars agree that there is a gulf separating families (i.e., people
with children), on the one hand, and non-families (singles, childless couples), on
the other, although interpretations differ (Kaufmann, 1990, 1995, vs. Beck &
Beck-Gernsheim, 1995).
Likewise, differences can be found in the area of policy development (for the
following: Walter, 1997a). In the US, various initiatives and legislative proposals
have aimed at reestablishing and reinforcing self-reliance, financial support obli-
gations for family members, and a commitment to the family in a traditional
sense. Prominent examples are the Family Support Act, the stricter implementa-
tion of support obligations for fathers, federal programs and state initiatives to
move single mothers into the workforce, attempts to reduce abortion rates, and
the dismantling and replacement of Aid to Families with Dependent Children
(AFDC) which began as a federal financial support program for children in
(widowed) single-parent families. After years of public and political debate,
AFDC was finally abolished and replaced by the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA). Currently there are

different programs in each of the 50 states under an umbrella federal program—
Temporary Assistance for Need Families (TANF).
In Germany, three goals are aimed at by family policies and policy proposals.
First, the broadening of the legal definition of the family is intended to improve
the situation of children born out of wedlock and of children after divorce.
These children have gradually been granted the same status as the children of
married parents, which has also improved the legal status of divorced and un-
married fathers. Second, family members, especially the male wage earner who
was central in the traditional family model, have been relieved of (some of) their
financial obligations. There are minimum criteria for the child tax credit, prom-
ulgated by the German Constitutional Court; court decisions have eliminated
the support obligations of adult children for their elderly parents, and there have
been sustained debates and pending legislation on the equalization of family
burdens. Third, there have been attempts to acknowledge and to financially sup-
port persons who fulfil their family responsibilities. Although the latter policies
are gender-neutral, women are almost exclusively the beneficiaries of the paren-
tal-leave allowance, a credit in the pension system for raising children, and care-
provision insurance, which funds care for frail, elderly relatives within the house-
hold (“cash for care”).
Institutions and Strategies

Since 1980, there have been two distinctly different patterns of family debate
and family policy in the two countries: ideological antagonism and a strong em-
phasis on family obligations (US) versus moderate debate and reduced/subsi-
dized family obligations (Germany). As preconditions of the policy change in
the 1980s were similar in both countries (the official family ideal, Conservative
administrations), the reasons why debates and policies have moved in opposite
directions are to be sought in the activities of experts and their strategies within
the field of experts.
My paradigm for analyzing the linkage between institutions’ and actors’ styles
(and the differences in outcomes) is a typification derived from comparative legal
theory. The Continental and the American legal traditions have been differenti-
ated along the lines of the inquisitorial versus the adversarial models (Thibaut &
Walker, 1975, pp. 22–27). The distinguishing criterion is the control exercised
by third parties. In the Continental tradition, trials are strongly influenced by
judges, who have extensive powers to supervise and exercise initiative in directing
the proceedings. They play an active role in questioning witnesses and in framing
or reformulating issues. In the common law tradition, control is up to the con-
tending attorneys, who steer trials by making competing claims, whereas the
third parties (judge and/or jury) respond to and decide on their motions.
34 Wolfgang Walter
Judicial Drama in the US

The agenda-setting process in the American debate follows the adversarial
model. It is a judicial drama performed before the “jury” of the American public
and Congress. There is little or no institutionalization of the debate in terms of
laws, official committees, and so forth. By founding organizations and think
tanks, protagonists create resources for the claims-making process (Stacey,
1994a). They have much latitude concerning appropriate procedures. Not only
are there different views of the problem, but also of legitimate ways to create and
disseminate knowledge (using scholarly papers, unbiased reports, pamphlets, or
mass demonstrations). Consequently, different forms of rhetoric exist to explain
some of the antagonistic exchanges between protagonists (Popenoe, 1993a;
Stacey, 1994b).
The prevailing type of expert in the US is the “moral entrepreneur” (Becker,
1973) who invests resources in moral causes. Experts in the field of the American
family debate are “crusading reformers,” as Becker calls the prototype of the
“moral entrepreneur.” Most of the protagonists in the American family debate
believe they have a “moral” mission to fulfil. Crusading reformers are best suited
to the adversarial structure of the field of family debate in America (and vice
versa!).
For one group of experts, reviving “family values” is a means to heal every ill
in American society (Blankenhorn, 1995; Blankenhorn, Bayme, & Elshtain,
1990) or—to put it positively—forms the core of a new communitarian basis of
societal cohesion (Etzioni, 1993; Whitehead, 1992). This is the dominant or
“orthodox” view, which means that this group has the resources and the idea-
tional background to define the main issues of the debate. A group that could be
referred to as the “academic intellectuals” takes the “heterodox” position. Their
self-image centers around the duty to defend and promote both the truth and
the fundamental values of individual freedom and social equality. Consequently,
they regard an academic critique of the claims of the “orthodox” group as their
main contribution to the family debate (Coontz, 1992; Skolnick, 1993; Stacey,
1993).
Bureaucratic Coordination in Germany

The German family debate tends more toward the inquisitorial model. On the
whole, it centers around bureaucratic inquiry initiated by, and carried out for the
government. Many protagonists in the debate are appointed by the state and in-
tegrated into the more consensual discussion with family associations and the
public. Scientific counseling is highly institutionalized, including permanent
and ad hoc commissions (Walter, 1994b, 1995). Scientific studies and public re-
ports are the most prominent ways of disseminating knowledge.
The prevailing type of expert in Germany is the “scientific advisor,” as de-
scribed by Brooks (1964). They serve on committees and working groups within
the different layers of the bureaucratic hierarchy. Their expertise serves several
functions, from providing technical information to designing political programs.
All these tasks are tied to the demands of the political institutions in which advi-
sors serve. This leads, on the side of policymakers, the administration, and the
public, to a “double-bind.” advisors are expected to provide an unbiased picture
of the situation and—at the same time—engage in a political cause, that is, to
adopt a mixture of detachment and engagement, using terms from Norbert
Elias’s (1987) sociology of knowledge.
As Brooks’s (1964) studies of American scientific counseling institutions
show, this type of actor is not confined to Continental European polities, al-
though it developed there in an unprecedented way, especially in the country
where modern bureaucracy was invented, namely, Germany. There, we find a
ubiquitous system of scientific counseling as part of the bureaucratic coordina-
tion process (Murswieck, 1993). Through the close coordination of political dis-
course and scientific expertise in the bureaucratic apparatus, this actor-institu-
tion link encourages a preference for political approaches in accordance with the
overall orientation of public policy: policies of financial support for families un-
der the auspices of the Continental welfare state (Walter, 1997a).
The dominant position is formed by the network of scientific advisors (cf.,
e.g., Bundesministerium für Familie und Senioren, 1994; Kaufmann, 1990,
1995; Nave-Herz, 1994). Given the state-subsidized field of expertise on the
family, experts have a near-monopoly on political counseling. Many of the ideas
that have proliferated in the German debate were originally developed in official
reports, written at the behest of and for state institutions by commissions ap-
pointed by these institutions and staffed by social scientists from family-relevant
disciplines (Walter, 1995).
The counterpart to the orthodox position is not as clearly visible as in the
case of the “adversarial model.” Criticism is rare and episodic; the “heterodox”
position lacks a clear-cut type of counter-expert. Nevertheless, some voices can
be identified, most notably those who see family change as a more fundamental
process of modernization that is leading to the end of the traditional modern
family (cf., e.g., Beck & Beck-Gernsheim, 1995).
Methodological Issues in the Study of Experts

My aim in this section is twofold: first, to present methods adequate to the
framework introduced above and, second, to contribute to a deeper understand-
ing of the dynamics of the field and experts in the family-related agenda-setting
process.
My starting point is the agency model of the “expert,” as discussed in interac-
tionist approaches to the construction of “social problems” (Gusfield, 1963;
Spector & Kitsuse, 1977). According to this theory, experts are actors in a field
where a situation is defined and a problem is constructed, resulting in proposals
for the agenda of possible solutions. Three methodological consequences of this
approach will be discussed in this section. As described above, this view in-
cludes the assumption that the conditions for the interaction process are given,
and must be managed and integrated into action strategies. I analyze this em-
36 Wolfgang Walter
beddedness with respect to cultural traditions and welfare-state profiles in the

two countries.
The main activity in the field of expertise consists in claims making. There-
fore, the second method can help us analyze written documents in terms of
their persuasive content. The detection of rhetorical means aims at a deeper un-
derstanding of the construction of problem images. The third method is the use
of the expert interview, with which experts’ strategies in the field are recon-
structed from their self-reports. I conclude this section with some remarks on
the relations of these three arenas: society, written communication, and individ-
ual action.
The Embeddedness of the Field

Actors and their fields are embedded in a larger societal framework. Although in-
teractionist approaches have long ignored this, it is one of the main concerns of
newer developments (Gusfield, 1989; Holstein & Miller, 1993) that take into
account the embeddedness of social interaction. Because experts construct “real-
ity” (or claims to reality), the process of construction is embedded in a meaning
horizon constituted by the overall societal framework that reduces or increases
the plausibility of claims (“cultural construction”: Griswold, 1994, Chap. 4). Es-
pecially in the distinction of orthodoxy versus heterodoxy (or the dominant
group of experts and their critics), a decisive factor is how much each group is
supported by dominant ideas and policy trends. These trends can be derived
from comparative social science. In a nutshell, the US has a market-oriented
Liberal, Germany a Catholic-Conservative welfare state and political culture
(Walter, 1997a, 1997b).
For the US, the specific approach to “the family” is a combination of a tradi-
tional family ideal, the principle of self-reliance, a maternalist policy chiefly in-
tended to help single mothers, and policies aimed at alleviating poverty, as well
as the exclusion of the middle class from these policies. Because the decision-
making process in the political system is decentralized, oriented to special inter-
ests and not guided by an overall political rationale, it has made possible expand-
ing policies and increasing their coverage, especially by loosening eligibility crite-
ria and increasing AFDC support levels in ways contrary to the overall frame-
work of economic liberalism. Because the (white) middle class is one of the main
groups in the electorate and does not benefit from welfare policies, political sup-
port for these measures has been gradually waning in reaction to the deteriora-
tion of the economic situation of the middle class.
In Germany, the combination of ideas, policies, and interests related to “the
family” that evolved in the post-war period consists of three elements: the tradi-
tional family ideal (including the principle of subsidiarity, with the state required
to support all families), the financial support of motherhood and the family in
general through family allowances and tax credits as a way of equalizing the liv-
ing conditions of families and non-families, and the inclusion of the middle class
in this welfare-state system of family support. Family policies have been gradu-
ally consolidated and adjusted to the changing realities of family life.
Differences among family forms or living arrangements are scrutinized with
respect to the amount of horizontal equality between those who have children
(with all the resulting financial burdens and social responsibilities) and those
who do not. As a result, “the family” is, in principle, viewed more broadly (a
family is every living arrangement including children and other dependents).
Also, this broader family model serves as the object of the respective policies.
Based on the bureaucratic tradition, the system of entitlements stabilizes pro-
grams of family support and facilitates their expansion. The interest of the mid-
dle class in the maintenance and expansion of financial support, which it views
as essential to preserve its status, has contributed to this process.
The Use of Rhetoric

In recent research, special attention has been paid to the rhetoric of texts. Rhe-
torical analysis aims at revealing mechanisms by which claims are made persua-
sive. Based on the so-called “new rhetoric” (Perelman & Olbrechts-Tyteca, 1969;
Toulmin, 1958), various methodological approaches have been developed in dif-
ferent areas. Rhetoric, or the study of persuasion, deals with aspects of commu-
nication that make a particular message convincing and provide incentives for a
specific course of action. In other words, it deals with the emotional and prag-
matic aspects of communication.
In the following paragraphs, I will analyze an article from the “orthodox”
camp in the American family debate. It is not only a widely-known text, but also
representative of a certain line of argument typically used by this group
(Blankenhorn, 1995; Blankenhorn et al., 1990; Etzioni, 1993; Popenoe, 1988,
1993a, 1993b, 1996; for an overview: Stacey, 1994a, 1994b). The argument is
roughly as follows: Anyone who takes a close look at the situation of children to-
day will find that all living arrangements, except the so-called “nuclear family,”
cause social and psychological deprivation and that the absence of the father in
the home is the single most important factor in producing this effect. The main
point I wish to make, using the following example, is that the persuasiveness of
the text depends on the sequence of assertions, not on how plausible they are in
the light of scientific evidence.
Barbara Dafoe Whitehead (1993), at the time a research associate at the Insti-
tute for American Values, is the author of an article entitled Dan Quayle was
right, alluding to an incident in which the then Vice-President accused a fictional
TV comedy-series character (“Murphy Brown”) of exacerbating America’s deteri-
orating moral situation by having and raising a child as an unmarried mother. Al-
though Dan Quayle was much ridiculed for his moralizing stance, Whitehead
uses him as her starting point, which can be seen as a bold rhetorical move.
To analyze the sequence of arguments, I have subdivided the article into
three parts. The first deals with the description of a conversion. Under the head-
38 Wolfgang Walter
ing The Education of Sara McLanahan, Whitehead describes this in the follow-
ing words:
In 1981 Sara McLanahan (...) read a three-part series by Ken Auletta in The
New Yorker. Later published as a book titled The underclass, the series pre-
sented a vivid portrait of the drug addicts, welfare mothers, and school drop-
outs who took part in an education-and-training program in New York City.
Many were the children of single mothers, and it was Auletta’s clear implica-
tion that single-mother families were contributing to the growth of an under-
class. McLanahan was taken aback by this notion. “It struck me as strange
that he would be viewing single mothers at that level of pathology.” (p. 60f.)
Whitehead then describes McLanahan as a supporter of the liberal view of fam-
ily change who subsequently adopted Auletta’s view. The implication of the first
part, upon which the persuasive strategy is built, is that newly-available knowl-
edge (i.e., journalistic reports and not-so-mainstream research) had convinced
the once liberal Sara McLanahan that single motherhood was bad for children.
In the second part, Whitehead further supports and broadens her message by
linking several claims:
For the vast majority of single mothers, the economic spectrum turns out to
be narrow, running between precarious and desperate. Half the single moth-
ers in the United States live below the poverty line. (...) Moreover, the pov-
erty experienced by single mothers is no more brief than it is mild. (...) Sin-
gle-mother families are vulnerable (...) to a particularly debilitating form of
poverty: welfare dependency—[a point that is then elaborated on for half a
page] (...) Uncertainty about money triggers other kinds of uncertainty,
(p. 62)
Examples offered are changes in employment, household composition, and fre-
quent changes of address. The economic hardships of single mothers, thereby,
become a result of their unconventional family form, especially the absence of a
father as the chief wage earner and central figure for the moral education of the
child. Portraying children as “conservative creatures,” Whitehead concludes: “All
this uncertainty can be devastating to children” (p. 64). This is intended to sup-
port Dan Quayle’s point: Single motherhood undermines the child’s education.
Having stretched her argument thus far, Whitehead “invests” the first two
steps, conversion story and claims-extension, in the next part, which is constitutive
for the “orthodox” group in the American family debate:
Sara McLanahan’s investigation and others like it have helped to establish a
broad consensus on the economic impact of family disruption on children.
Most social scientists now agree that single motherhood is an important and
growing cause of poverty, and that children suffer as a result. (p. 64)
Public arguments are intended to present a message and convince people to ac-
cept them. Because the public is not a scientific community with a specific ra-
tionality and standards of validation, success depends on skill in using rhetorical
means. Therefore, rhetorical analysis reveals the creative side of constructing a

public family image in a contested field of family debate.
The Reconstruction of Experts’ Strategies

The term “experts’ strategies” denotes the competitive side of public discourses.
To a certain extent, they can be uncovered by analyzing documents, but as the
strategies behind a particular rhetoric always remain implicit, a different method
must be used to unearth motives and plans of action. Expert interviews, a form
of qualitative interview, are used to study the specific perspectives of experts. In-
terviews help in analyzing perceptions of family change, the strategies by which
the participants in debates influence agenda setting and policymaking and the
perception of embeddedness.
Methods of performing expert interviews have been developed in qualitative
research and in elite studies (Moyser, 1988; Walter, 1994a). Basically, they are
semi-structured interviews designed to display the very personal perspective of
the expert on their work, public activities, and the social conditions they see as
relevant for the discourse. The aim is to construct ideal types of experts who can
be used to explain the structure of the field.
In interviewing participants in the American family debate, I regularly began
with an open question as to what they believed were the “main features of the
contemporary family debate.” One interviewee held that aspects such as race or
gender were the most prominent issues in the debate. Then I turned to the
question of whether the subject had engaged in the debate and received the fol-
lowing reply (for a detailed account of my method and procedure, see Walter,
1997b):
No, not really no (...) One of the other things that characterizes the debate is
this tremendous imbalance in resources between the right side of the debate
and the left side of the debate (...) there was a growth of the conservative
movement that is funded by conservative businesses that set up these aca-
demic research think tanks, the Heritage Foundation, the American Enter-
prise Institute and many others. And they do several things; one is that they
make research reports, on the one hand, they may seem like policy analysis or
reviews of the literature, but they’re more in the order of facts marshalled to
promote certain points of view (...) there’s this blurry line between the intel-
lectuals and the academics in the university and intellectuals and academics
in these research institutes. You don’t lose your prestige all that much in aca-
demia for working in these places (...) and the other thing is that these re-
search outfits are geared to getting a message out to the media. (...) What
they do is that they are able to define the terms of the debate, and so we have
this debate about single mothers (...) to blame for all of our social issues,
while Dan Quayle got a lot of ridicule for that speech (...). (Interview No.
US–17, line 369–439)
40 Wolfgang Walter
To understand the strategy that can be reconstructed from this interview, two
points are important. First, the expert does not say anything about herself, her
interests, activities, and so on. She presents her involvement by means of a reac-
tion to something already going on—without her participation and, quite obvi-
ously, not to her liking. Second, the interview is only one in a series I held with
several California academics. In a more detailed account, I have made the point
that they belong to a specific type of expert in the American family debate that I
call “academic intellectuals,” whose strategy is to take a “critical stance” (Walter,
1997b). It is characteristic that this group sees itself as opposed to the dominant
discourse and criticizes the position portrayed in the previous section because of
the funding, the strategy, and the rhetoric involved in their discourse.
In the interviewee’s account, a sense of social distance from the wealthier ac-
tivist groups and think tanks, she believes are financed by conservative dona-
tions, is combined with cognitive and political distance. The resource imbalance
leads to an argumentative hegemony in the field of family debate. Concerning
their publications, she affirms: “(...) they’re more in the order of facts marshalled
to promote certain points of view (...) geared to getting a message out to the
media.” She acknowledges the hegemony: “(...) they are able to define the terms
of the debate.”
Most people in this academic-intellectual group are social scientists at univer-
sities, and their common denominator is a highly skeptical attitude toward posi-
tions promoted with extensive use of resources or media presence that provokes
their opposition. Thus, there is a clear-cut divide between two “camps” that rec-
ognize each other as opponents in the American family debate (Popenoe, 1992;
Stacey, 1994a, 1994b). They have different views and different strategies. This
constellation contributes to the apparent polarization of the American family de-
bate. The “critical stance,” as one tendency in the debate, even reinforces the im-
balance in public perceptions of the debate.
The Interrelated Arenas and the Field of Family Debate

The methodological approaches discussed above serve as “analytical tools,” that
is, they dissect several aspects of the overall process. They could be seen as dis-
playing different arenas of the field: the interactionist arena of strategies, the
public-discourse arena of rhetoric, and the societal arena, in which the other two
are embedded. The field of family debate (as a whole) is constituted by the inter-
relations of these arenas. The respective links that connect the arenas can be
identified in the institutionalization of experts, that is, the source of their author-
ity on the subject (by the state or by self-definition), the resources mobilized and
employed to disseminate the contested ideas, and the procedures of disseminat-
ing knowledge.
For the US, I use as an example the so-called “family-values movement”
(Stacey, 1994a; Walter, 1997b), which is part of the dominant strain in the
American family debate. One of the most important organizations in this move-
ment is the New York City-based Institute for American Values. It links research dis-
semination with influencing public opinion. The Institute founded a Council on
Families in America; it publishes a working paper series, articles, and books
(Blankenhorn et al., 1990). It sponsors or supports conferences (Whitehead,
1992) and has also staged mass events at which the importance of fathering was
communicated to larger audiences, the so-called “National Fatherhood Tour” by
David Blankenhorn (1995). Similar organizations form a network involving coop-
eration and reciprocal support. In part, they have different foci, such as the “Pro-
gressive Policy Institute” of the so-called “New Democrats” or the Communitarian
movement, with a broader political agenda. Some have a different policy orienta-
tion, such as “Focus on the Family” or the “Family Research Council,” which be-
long to the Religious Right. All these organizations are “advocacy think tanks” that
“combine a strong policy, partisan or ideological, bent with aggressive salesman-
ship and an effort to influence current policy debates” (Weaver, 1989, p. 567).
The institutionalization of the expert in the German family debate is best ex-
emplified by the official family reports of the German national government, pro-
duced by regularly appointed commissions that are mainly composed of social
scientists (Bundesministerium für Familie und Senioren, 1994; Walter, 1994b,
1995). The reports are official and comprehensive; they are intended to offer an
extensive overview of the family as a whole or of a certain aspect, with special
attention to politically relevant social change in this societal domain, its causes
and its consequences. In these reports, the official family ideal is reformulated
with the help of scientific arguments. Proposals for a fairly systematic family-
policy program are offered that can be used as a consensual basis for evaluating
policy outcomes. Moreover, there is a dense network of actors in the family-pol-
icy domain, which facilitates communication between the Administration, fam-
ily associations, and the public. Experts include their research findings in these
reports and their report chapters in their publications (e.g., Kaufmann, 1990,
1995, vis-à-vis Bundesministerium für Familie und Senioren, 1994; Nave-Herz,
1994). Consensus-building affects even the German government, which has
adopted most of the central lines of argument (Bundesministerium für Familie
und Senioren, 1994).
Given the integration of scientific counseling into the process of bureaucratic
policy development, I have found three strategies that are complementary
(Walter, 1994a): “empirical Enlightenment,” which stresses the provision of
technical information to policymakers; “pragmatic dialogue,” by combining po-
litical and scientific perspectives; and “systematic program development” as an
attempt to give policy a rational basis. In the German case, these counseling
styles contribute to the overall direction of policy change, which is more of a
moderate change based on the system of entitlements for families.
The expert-field characteristics (adversarial vs. inquisitorial model), the em-
bedding of the discourse (Liberal vs. Conservative welfare state), the rhetorical
mechanisms and experts’ strategies, as well as the institutional links among these
arenas, contributed to policy change in the period under consideration: “welfare
reform” in the US and the policies of economic support for families in Germany.
42 Wolfgang Walter
Conclusions
The thesis of this chapter is that the influence of experts on policy change should
be analyzed in terms of the relationship between the field of discourse, on the
one hand, and the positions and strategies of experts, on the other. For the com-
parative case study presented here, I have argued that there are specific linkages
between field and actor in the American and German family debates that are re-
lated to the adversarial and inquisitorial models. This explains the differences in
family-policy change in the two countries to the degree that the respective com-
binations of field characteristics and types of experts favor a certain policy style.
Finally, I have demonstrated how this theoretical idea could be empirically
proven by studying different arenas of expert influence (society, public discourse,
interaction) and their interrelationships.
Is it possible to generalize the approach or the theory? I will address a few
points worth considering. First, I will ask whether a general definition of the ex-
pert can be derived from this case study. Second, I will discuss the general impli-
cations of the discourse models, inquisitorial and adversarial. Finally, I will ask
whether this case study is significant for the sociology of the “knowledge society.”
Definition of the Expert

In this chapter, I opted for a combination of interactionist-relational and struc-
tural approaches (An Alternative Research Strategy, above). In light of this consid-
eration, the expert can be viewed as a social figure in the distribution of knowl-
edge, which is one element of the social structure of modern “knowledge so-
cieties.” This leads to the interactionist-relational definition of the expert
(Hitzler, 1994). Because the ascription of expert status is based on perceived dif-
ferences in knowledge, the expert can only be defined relationally. Experts are
people who—in comparison to those with whom they interact—not only have
more knowledge, but also are able to manage knowledge transfers. People “become”
experts through performances in which they translate and integrate their knowl-
edge into popular meaning systems.
Consequently, the dynamics of the expert-layperson interaction depends, in
part, on their embeddedness in a particular social structure. The strength of in-
stitutionalization is what defines an expert’s social status. On one side of the
spectrum, there is the specialist, who has a high degree of institutionalized free-
dom to research and to produce knowledge, but little or no authority to draw
conclusions binding on others. On the other side of the spectrum, there are pro-
fessionals with their autonomous organizations, monopolization of knowledge,
and politically institutionalized status that allow for legitimate interventions
even in highly personal matters. In terms of these poles, most experts are located
somewhere in the middle, partly receive and partly create their authority, contin-
ually demonstrate their competence and stage knowledge transfers from science
to the public or to power holders.
With respect to nonexperts, the study presented here has dealt mainly with
two addressees: the “public,” consisting of more or less well-informed citizens
with an interest in an issue, and decision makers, persons in charge of policy
change. Other layperson groups include “clients,” who seek advice on a contrac-
tual basis, or “associations/organizations,” which have their own resources for
knowledge production and analysis. Moreover, the definitions of the counter-
parts are not mutually exclusive. For example, in the German family debate the
government acts as a client to the experts in the family debate, and family associ-
ations are also important participants in the public discourse.
With the relational definition in mind, we have an analytical tool that allows
for the differentiation of constellations of experts vis-à-vis nonexperts. My prop-
osition is that it is necessary to analyze the dynamics of scientific counseling in
terms of its communicative content, dramatic elements, and political impact.
Adversarial Versus Inquisitorial Model

We find a similar distinction of adversarial versus inquisitorial models in Singer’s
(1993) analysis of American economic policy, which, at least during the Reagan
and Bush administrations, relied heavily on “heterodox” economics produced by
advocacy think tanks. In contrast, German economic policy is characterized by
the dominance of state-legitimized advisors like those serving on the “Council of
Economic Experts,” and a state-subsidized field of economists who share a con-
sensus on economic policy.
One could argue that a degree of organization is the key difference between
the European and American administrative cultures (“unity” vs. “fragmenta-
tion”; Aberbach, Derlien, & Rockman, 1994). In contrast to the European
State-centered model, the US employs a society-centered model resulting in a
more fragmented advisory system. The highly-organized counseling system of
the European state provides a continuing foundation of advice, but often suffers
from a lack of flexibility and adaptability. Based on entrepreneurial organiza-
tions, the American system is more volatile and promotes unequal competition
for influence among different groups of experts (Weaver, 1989), but it does pro-
mote a broader spectrum of opinions.
Toward a Sociology of the Knowledge Society

The sociology of knowledge has attempted, ever since its founding fathers
(Marx, Engels, Mannheim), to determine whether knowledge exclusively serves
the interests of knowledge providers, or whether it can also be a force in trans-
forming power structures. The relation between knowledge and power in the
“knowledge society” remains open to debate. For some, experts and advisors
constitute a new elite that is becoming the ruling class of society; for others, the
sheer growth of knowledge in the service economy tends to lower the status of
44 Wolfgang Walter
experts (Stehr, 1992). This study suggests a double image. Experts are portrayed
simultaneously as highly capable of defining the terms of debate and yet also as
dependent on the overall conditions of the field.
The power of expertise depends on the specific type of expert involved and
their relationship to non-experts. Today, there are increasing numbers of priest-
like experts who apply knowledge already conceived and validated. Also, there
are more prophet-like experts who create new doctrines. This distinction is made
in a similar way by Becker (1973), who discusses “rule enforcers” versus “rule
creators.”
In the “knowledge society,” electronic media have assumed a larger role in the
communication of expertise. The media improve public access to expert knowl-
edge, which means that they also, simultaneously, increase public dependency
on experts (due to their increased presence or even “omni-presence”) and de-
crease our dependency on particular experts (due to the available alternatives). In
any case, the “knowledge society” has created an abundance of highly-regarded
knowledge suitable for practical purposes. The well-informed citizen does not
need personal knowledge of many things, because there is almost always an ex-
pert available for every question. This is exactly what creates the genuine power
of experts as a group in society.
References
Aberbach, J., Derlien, H.-U., & Rockman, B. (1994). Unity and fragmentation. Themes in Ger-
man and American public administration. In H.-U. Derlien, U. Gerhardt, & F. W. Scharpf
(Eds.), Systemrationalität und Partialinteresse. Festschrift für Renate Mayntz (pp. 271–289).
Baden-Baden, Germany: Nomos.
Beck, U., & Beck-Gernsheim, E. (1995). The normal chaos of love. Cambridge, UK: Polity Press.
Becker, H. S. (1973). Outsiders. Studies in the sociology of deviance. New York: The Free Press.
Berger, P., & Berger, B. (1983). The war over the family. Capturing the middle ground. London:
Hutchinson.
Blankenhorn, D. (1995). Fatherless America. Confronting our most urgent problem. New York: Basic
Books.
Blankenhorn, D., Bayme, S., & Elshtain, J. B. (Eds.). (1990). Rebuilding the nest. A new commit-
ment to the American family. Milwaukee, WI: Family Service America.
Bourdieu, P. (1971a). Une interprétation de la théorie de la religion selon Max Weber. Archives
européennes de sociologie, 12(1), 3–21.
Bourdieu, P. (1971b). Genèse et structure du champ religieux. Revue française de sociologie, 12,
295–334.
Bourdieu, P. (1976). Le champ scientifique. Actes de la recherche en sciences sociales, 2(2/3), 88–104.
Brooks, H. (1964). The scientific adviser. In R. Gilpin & C. Wright (Eds.), Scientists and national
policy-making (pp. 73–96). New York: Columbia University Press.
Bundesministerium für Familie und Senioren [Federal Ministry for Family and Senior Citizens]
(Ed.). (1994). Familien und Familienpolitik im geeinten Deutschland—Zukunft des Humanver-
mögens. Bonn, Germany: Author (Bundestagsdrucksache 12/7560).
Coontz, S. (1992). The way we never were. American families and the nostalgia trap. New York: Basic
Books.
Elias, N. (1987). Involvement and detachment. Essays in the sociology of knowledge. Oxford, UK:
Blackwell.
Etzioni, A. (1993). The spirit of community. The reinvention of American society. New York: Touch-
stone.
Gerlach, I. (1996). Familie und staatliches Handeln. Ideologie und politische Praxis. Opladen, Ger-
many: Leske + Budrich.
Giddens, A. (1990). The consequences of modernity. Stanford, CA: Stanford University Press.
Griswold, W. (1994). Cultures and societies in a changing world. Thousand Oaks, CA: Pine Forge
Press.
Gusfield, J. R. (1963). Symbolic crusade. Status politics and the American temperance movement.
Urbana, IL: University of Illinois Press.
Gusfield, J. R. (1976), The literary rhetoric of science: Comedy and pathos in drinking driver re-
search. American Sociological Review, 41, 16–34.
Gusfield, J. R. (1989). Constructing the ownership of social problems. Fun and profit in the wel-
fare state. Social Problems, 36,431–441.
Habermas, J. (1978). Technik und Wissenschaft als “Ideologie.” Frankfurt a.M., Germany: Suhr-
kamp.
Hilgartner, S., & Bosk, C. L. (1988). The rise and fall of social problems: A public arena model.
American Journal of Sociology, 94, 53–78.
Hitzler, R. (1994). Wissen und Wesen des Experten. Ein Annäherungsversuch—zur Einleitung. In
R. Hitzler, A. Honer, & C. Maeder (Eds.), Expertenwissen. Die institutionalisierte Kompetenz
zur Konstruktion von Wirklichkeit (pp. 13–30). Opladen, Germany: Westdeutscher Verlag.
Holstein, J. A., & Miller, G. (Eds.). (1993). Reconsidering social constructionism. Debates in social
problems theory. New York: de Gruyter.
Kaufmann, F.-X. (1990). Zukunft der Familie. Stabilität, Stabilitätsrisiken und Wandel der famili-
alen Lebensformen sowie ihre gesellschaftlichen und politischen Bedingungen. Munich, Germany:
Beck (Perspektiven und Orientierungen. Schriftenreihe des Bundeskanzleramtes, Vol. 10).
Kaufmann, F.-X. (1995). Zukunft der Familie im vereinten Deutschland. Gesellschaftliche und poli-
tische Bedingungen. Munich, Germany: Beck (Perspektiven und Orientierungen. Schriften-
reihe des Bundeskanzleramtes, Vol. 16).
Mayntz, R. (1994). Politikberatung und politische Entscheidungsstrukturen: Zu den Voraus-
setzungen des Politikberatungsmodells. In A. Murswieck (Ed.), Regieren und Politikberatung
(pp. 17–30). Opladen, Germany: Leske + Budrich.
Moeller, R. G. (1993). Protecting motherhood. Women and the family in the politics of postwar West
Germany. Berkeley, CA: University of California Press.
Moyser, G. (1988). Non-standardized interviewing in élite research. Studies in Qualitative Method-
ology, 1, 109–136.
Murswieck, A. (1993). Policy advice and decision making in the German federal bureaucracy. In
B. G. Peters & A. Barker (Eds.), Advising West European governments. Inquiries, expertise and
public policy (pp. 87–97). Edinburgh, UK: Edinburgh University Press.
Nave-Herz, R. (1994). Familie heute. Darmstadt, Germany: Wissenschaftliche Buchgesellschaft.
Perelman, C., & Olbrechts-Tyteca, L. (1969). The new rhetoric. A treatise on argumentation. Notre
Dame, IN: University of Notre Dame Press.
Popenoe, D. (1988). Disturbing the nest. Family change and decline in modern societies. New York:
de Gruyter.
Popenoe, D. (1992, December 26). The controversial truth: Two-parent families are better. The
New York Times, p. 21.
Popenoe, D. (1993a, April 10). Scholars should worry about the disintegration of the American
family. The Chronicle of Higher Education, p. A48.
Popenoe, D. (1993b). American family decline, 1960–1990: A review and appraisal. Journal of
Marriage and the Family, 55, 527–542.
Popenoe, D. (1993c). The national family wars. Journal of Marriage and the Family, 55, 553–555.
Popenoe, D. (1996). L i f e without father. Compelling new evidence that fatherhood and marriage are
indispensable for the good of children and society. New York: The Free Press.
Singer, O. (1990). Policy communities and discourse coalitions. The role of policy analysis in eco-
nomic policy making. Knowledge, 11(4), 428–458.
46 Wolfgang Walter
Singer, O. (1993). Knowledge and politics in economic policy-making. Official economic advisors
in the USA, Great Britain and Germany. In B. G. Peters & A. Barker (Eds.), Advising West Eu-
ropean governments. Inquiries, expertise and public policy (pp. 72–86). Edinburgh, UK: Edin-
burgh University Press.
Skolnick, A. (1993). Embattled paradise. The American family in an age of uncertainty. New York:
Basic Books.
Spector, M., & Kitsuse, J. I. (1977). Constructing social problems. Menlo Park, CA: Cummings.
Stacey, J. (1993). Good riddance to “The Family”: A response to David Popenoe. Journal of Mar-
riage and the Family, 55, 545–547.
Stacey, J. (1994a, Fall). Scents, scholars, and stigma. Social Text, 40, 51–75.
Stacey, J. (1994b, July 25). The new family crusaders. Dan Quayle’s revenge. The Nation, 119–
122.
Stehr, N. (1992). Experts, counsellors and advisers. In N. Stehr & R. V. Ericson (Eds.), The culture
and power of knowledge. Inquiries into contemporary societies (pp. 107–156). Berlin, Germany:
de Gruyter.
Thibaut, J., & Walker, L. (1975). Procedural justice. A psychological analysis. New York: Wiley.
Toulmin, S. E. (1958). The uses of argument. Cambridge, UK: Cambridge University Press.
Walter, W. (1994a). Strategien der Politikberatung. Die Interpretation der Sachverständigen-Rolle
im Lichte der Experteninterviews. In R. Hitzler, A. Honer, & C. Maeder (Eds.), Expertenwis-
sen. Die institutionalisierte Kompetenz zur Konstruktion von Wirklichkeit (pp. 268–284). Op-
laden, Germany: Westdeutscher Verlag.
Walter, W. (1994b, July 20). The surveillance of family. Towards a conceptual scheme for the compari-
son of family reporting in Germany, France, and the United States. Paper presented at the XIIIth
World Congress of Sociology (Research Committee 06 ‘Family Research’), Bielefeld, Germany.
Walter, W. (1995). Familienberichterstattung und familienpolitischer Diskurs. In U. Gerhardt et
al. (Eds.), Familie der Zukunft. Lebensbedingungen und Lebensformen (pp. 81–97). Opladen,
Germany: Leske + Budrich.
Walter, W. (1997a). Subsidiarität und Selbstverantwortung. Individualisierungsstrategien und
Risikokonzeptionen in den Familienpolitiken der Bundesrepublik Deutschland und den USA.
In S. Hradil (Ed.), Differenz und Integration. Die Zukunft moderner Gesellschaften (pp. 1021–
1037). Frankfurt a.M., Germany: Campus.
Walter, W. (1997b). Der Wert der Familie. Institutionenwandel und familiale Lebensführung. Un-
published manuscript, Universität Konstanz, Germany.
Weaver, R. K. (1989). The changing world of think tanks. PS: Political Science & Politics, 22(3),
563–578.
Weiss, C. H. (1983). Three terms in search of reconceptualization: Knowledge, utilization, and de-
cision making. In B. Holzner, K. Knorr, & H. Strasser (Eds.), Realizing social science knowl-
edge. The political realization of social science knowledge and research: Toward new scenarios (pp.
201–219).Vienna: Physica.
Weiss, C. H. (1991). Policy research: Data, ideas, or arguments? In P. Wagner, C. H. Weiss,
B. Wittrock, & H. Wollmann (Eds.), The policy orientation: Legacy and promise (pp. 307–332).
Cambridge, UK: Cambridge University Press.
Whitehead, B. D. (1992). Crossing the cultural divide. A new familism? Family Affairs, 5(1), 1–5.
Whitehead, B. D. (1993). Dan Quayle was right. The Atlantic Monthly, 271(4), 47–84.
Wingens, M. (1988). Soziologisches Wissen und politische Praxis. Neuere theoretische Entwicklungen
der Verwendungsforschung. Frankfurt a.M., Germany: Campus (Campus Forschung, Vol. 591).
Chapter 3
The Integration of Social Science Expertise Into the
Political Process: Did It Actually Happen?
Gabriele Metzler
Institute for Contemporary History, University of Tübingen, Germany
gabriele.metzler@uni-tuebingen.de
The integration of social scientific experts and expertise into the political process
is a recent phenomenon. Interestingly, this process has not been smooth, even
when “social scientification” of political decision making, or planning, was a polit-
ical program, as in the case of West Germany in the 1960s.
This chapter focuses on the social sciences and their influence on political re-
form and decision making in West Germany after the Second World War. How-
ever, the declared demand for social scientific knowledge and skill is not an iso-
lated German phenomenon. Planning as a modern, scientifically based political
instrument was practiced in other countries as well, particularly in those with a
Social Democratic government, such as Sweden, where the Social Democrats in
power had been expanding the welfare state since the end of the war, or the
United Kingdom under the Labor government after 1964. However, planning
was not only a social democratic political program; in France where planning
was en vogue following the end of the war, it was continued and even intensified
as a political program after de Gaulle came to power in 1958. Thus, the idea of a
social scientific basis of political decision making certainly was not restricted to
West Germany. How far, however, did the influence of the social sciences in the
Federal Republic really reach?
In the 1960s “modern” and “modernization” were the political catchwords of
the day. In West Germany, the coalition of Social Democrats and Liberals that
came into power in 1969 had won the election on the basis of both a modern
image—Chancellor Willy Brandt himself, a German version of the dynamic,
promising young John F. Kennedy, was the key element of this image—and a
modern political program: The new government intended, as Brandt declared in
his inaugural speech, to modernize society, the economy, as well as the political
system of the country. There was hardly any area that was not the object of this
wide-ranging reform program, extending from changes in government and ad-
ministration, to economy and infrastructure, and to social policy and the educa-
tion system. The instrument to reach these ambitious goals was political plan-
ning, perceived as a “modern” decision-making method based on scientific con-
47
48 Gabriele Metzler
cepts. Indeed, as Horst Ehmke, the Head of the Chancellory and a key figure in
Brandt’s first Cabinet, put it, politics and policy were, from now on, considered
to be a science.
In retrospect, the years of the “Brandt Coalition” from 1969 to 1974 seem to
have been the heyday of the power of the social sciences. It was generally held,
especially by the Social Democrats and the Liberals, that if the political machin-
ery was to be reconstructed, it would be on a social-scientific basis; if the goals of
political decisions were to be reassessed, politicians would have to take the results
of social research into account. Social sciences were seen by many as the path-
finders to modernity, as the guarantors of rational agenda setting and decision
making, and as reliable advocates of emancipatory objectives—years of hope and
glory were to come, so it seemed.
But, how far did the influence of the social sciences in West Germany really
reach? What role did social sciences actually play in political agenda setting and
decision making? What did politicians and the public expect of them? How did
social scientists themselves define their role, and how did they adapt to growing
expectations and demands? A closer examination of these issues reveals, contrary
to promising declarations, that the social sciences did not have a significant im-
pact on the legislative process and its output. However, this assessment of the in-
fluence of social scientific expertise changes remarkably when we adopt a less re-
strictive definition of institutional change, incorporating the production and dis-
tribution of knowledge, and its transfer from the field of science to the sphere of
politics.
The following is a case study of the influence of social scientific expertise on
political decision making and change. I have pursued this case study mainly
from a historical perspective. The presented history is not organized chronologi-
cally, but rather like concentric circles. First, the role that social sciences and so-
cial scientific experts played in the political process during the 1960s will be dis-
cussed. Then, I will extend the theoretical focus by adopting a more encompass-
ing conception of “institution” and “institutional change.” Next, I will give an
overview of the (ideas of) modernization of German society and government
after the war and how the social sciences helped in this development. With this
background, it will be possible to address the question of how social scientists ac-
tually influenced political and administrative structures and processes.
Institutionalized Contacts Between Social Scientists and

the German Government in the 1960s
Great hopes often tend to be disappointed, and this is probably also true for the
relationship between politics and social sciences after 1969, if we look at the in-
stitutionalized contacts between them. Without any doubt, there was significant
support of the social sciences in terms of funding. According to an annual report
by the Federal Ministry for Science and Technology (Bundesministerium für For-
The Integration of Social Science Expertise Into the Political Process 49
schung und Technologie [BMFT]; 1975, p. 81), state expenditure supporting so-
cial scientific research almost tripled from 1969 to 1974 while expenditure for
all branches of science (research and development) was only doubled. Not only
was there financial support, but also attempts at close cooperation. Expert advice
from the social sciences was sought in nearly all aspects of the planning program:
Social scientists provided models for decision making, social data, and the
knowledge to interpret them; and they were consulted in questions of changes in
the institutional structure of the German political system.
These contacts were institutionalized in a number of ways. Most important,
in this context, were the group developing a strategy for administrative reform
(Projektgruppe Regierungs- und Verwaltungsreform), dating back to 1967 and the
days of the Grand Coalition,1 and the Commission for Investigating Social and
Economic Change (Kommission für wirtschaftlichen und sozialen Wandel), estab-
lished in 1971. Both Commissions consisted of a number of experts—from the
social sciences, economics, law, and from the administration—as well as repre-
sentatives of both sides of industry, trade unions, and employers’ organizations.
The purpose of the Commission for Investigating Economic and Social Change
was described as follows: It had to give a report on all problems resulting from
technological, economic, and social change with regard to the further develop-
ment of social policy in the widest sense of the word (Gesellschaftspolitik) and it
was expected to give advice pertaining to the chances of further promoting tech-
nical and social change and shaping it in correspondence with the interest of the
citizens—a very demanding job indeed for the Commission (Kommission für
wirtschaftlichen und sozialen Wandel) headed by sociologist Karl-Martin Bolte. It
ended its work five years later, delivering its final report (Kommission für
wirtschaftlichen und sozialen Wandel, 1977) and some 140 working papers on a
variety of specific problems. Some of the results found their way into the legisla-
tion process or were taken into account when a ministry had to make a decision.
But, on the whole, the impact of this Commission probably did not live up to
the expectations with which its members had started their investigations. The
same is true for the Project Group for the Governmental and Administration Re-
form (Projektgruppe Regierungs- und Verwaltungsreform), which was, in some re-
spects, more successful, but the work of which was stopped by 1972. The Project
Group had to investigate the organizational framework for decision making, par-
ticularly on the levels of the ministerial organization and the administrative ma-
chinery of the Federal Republic. It had to make proposals as to which improve-
ments were to be made to make the system more rational and efficient. As its
1
The coalition of Christian Democratic Union (CDU), the Christian Social Union (CSU, the
Bavarian partner of the CDU), and Social Democrats (SPD) came into power in 1966 after the fall
of Chancellor Ludwig Erhard. It was the first time, in the history of the Federal Republic, that the
SPD participated in the Federal Government. The Grand Coalition under Chancellor Kurt Georg
Kiesinger was faced with a number of severe problems (economic crisis 1966–1967, student riots
and social protest 1967–1968). This coalition was succeeded in 1969 by the coalition of SPD and
Liberal Democrats (FDP).
50 Gabriele Metzler
final report has never been published (for the main aspects of the report see
Mayntz & Scharpf, 1973) and has not yet been declassified by the Federal
Archives (Bundesarchiv), it is difficult to assess the impact of the Project Group
in historically adequate terms. However, all the indications in the historical
sources available are that hardly any of its suggestions were put into effect by the
government (Katzenstein, 1987, p. 260).
Thus, if anyone had hoped to shape a new, social-scientific basis of politics,
these hopes had apparently been in vain. What had begun as very promising in-
deed, ended only a few years later in confusion, annoyance, disappointment, or
misunderstanding. The great project of all-embracing political and social reform
did not produce the results that had been desired and expected. At least four
reasons for this failure are very evident:
First, some contemporary sociological investigations indicate that social sci-
entists and administrative elite hardly ever found much common ground for dis-
cussing the issues of reform; they often even did not speak the same language
(Bruder, 1980). Second, planning, as a political option on a social-scientific
basis, had lost most of its appeal by the early 1970s because a severe economic
crisis reduced the material basis of that kind of policy—to put it in very simple
terms: Reforms often cost money, and money from public funds became a scarce
resource in the 1970s. Third, planning, which implied a certain degree of central
coordination, was also a constant source of friction within the German Federal
System and in the relations between the Federal Ministries. Finally, problems of
legitimation arose out of the implicit contradictions of the planning program it-
self that were articulated particularly by the New Left. This alliance of radical
students, sections of the peace movement, as well as early feminist and ecology
groups, with intellectuals of varied backgrounds and orientations, reached the
peak of its influence in the late 1960s. The New Left was strongly influenced by
a revival of Marxist thought. Although there was a great variety of political ideas
circulating in these movements, they found some common ground on the basis
of two ideas: “participatory democracy” and radical criticism of what they called
“the system.” Interestingly enough, in some respect, the strongest criticism of the
political aims and reform strategies of the government did not come from the
opposition in parliament, but rather from the Left outside the representative
body of the Federal Republic of Germany (Bundestag). It would be inconsistent,
they argued, to preach about individual freedom and social emancipation, to
talk about the extension of democratic structures (mehr Demokratie wagen),
while at the same time, by planning, prescribe the way to that freedom
(Naschold, 1972, p. 27f.). Thus, the scope of reforms, however important they
may have been, remained limited, as did the impact of social sciences on genuine
political decisions.
In the very center of this story of failure, as it has been presented here, was the
question of legitimation. How could the influence of social scientists on political
decision making and goal defining be legitimized within the framework of a
democratic, parliamentary political system? That was one of the most important
questions that arose in connection with the growing political relevance of the so-
cial sciences, and it was, by the late 1960s, not even a new one, as Habermas has
shown (Habermas, 1963). Indeed, the question of legitimation was dominant
from the very beginning of the cooperation between science and politics.
Legitimation was at the center of the discussions on political consulting by
social scientists when the Council of Experts for the Evaluation of Aggregative
Economic Developments (Sachverständigenrat zur Begutachtung der gesamt-
wirtschaftlichen Entwicklung [SVR]), was established in 1963. The Council con-
sisted of five members, all of them experts in economics, most of them university
professors. Compared to the American Council of Economic Advisors, the SVR
had, at the time of its founding, much less direct influence on the course of eco-
nomic policy (Wallich, 1968). It was not allowed to make any explicit policy rec-
ommendations; the task of its members was to analyze prospective developments
and to present alternative scenarios. Of course, when they gave their annual re-
ports, which the government had to respond to within a certain period, the SVR
economists, without a doubt, made implicit policy recommendations. The posi-
tion of the SVR became stronger after the representative body of the Federal
Republic of Germany (Bundestag) passed the Stability and Growth Act in 1967,
which was to become a powerful instrument in the medium-term planning of
economic and fiscal policies. The basis of its legitimation, however, remained
very small. While the members of the American Council of Economic Advisors
were inside advisors to the President, acting from within the institutional frame-
work of government, the SVR was always a body of outside expert advisors, not a
formal part of the German political system. Therefore, the growing influence of
the SVR was regarded by some of the leading German legal experts as inconsis-
tent with both the parliamentary system and Cabinet responsibility (Böcken-
förde, 1964, p. 256f.). Thus, it was difficult to reconcile expert advice from out-
side the political system, particularly in an institutionalized form, with the rules
of parliamentary government. This is especially true if experts were not only ap-
pointed as internal consultants, but if they also had the right to publish their
advice and to inform the public about their findings, as was the case with the
SVR.
The political process in Germany was (and still is) very much dominated by
thinking in terms of the law. This was also reflected in the predominance of law
graduates in the ranks of the German administrative and political elite. Al-
though the so-called “legal monopoly” (Juristenmonopol)was getting weaker dur-
ing the 1960s, the study of law was still considered to be the best qualification
for any prospective member of the administration, especially for the higher ranks
of the civil service that opened their doors to graduates from other faculties, such
as social sciences, only very reluctantly. Generally speaking, social scientists were
not able to infiltrate the state bureaucracy in significant numbers; they were
most likely to succeed in doing so in the departments dealing with social policy.
But, there were very few of them working in the ministries concerned with the
issues of general organization, such as the Ministry of the Interior.
As a preliminary result, it may be said that the influence of social scientists
on the change of political institutions was very limited when seen from a strictly
52 Gabriele Metzler
legal perspective. Their advice was sought, but not very often put into practical
effect, while the legitimacy of that advice was always debated. Even in the late
1960s and early 1970s, the golden years of planning euphoria, the intended “so-
cial scientification” of the political process did not fully develop. At this point,
we must ask if social sciences had any influence at all on institutional change.
Extending the Focus: Institutions as Authoritative Resources

The concept of an “institution” may be defined in a number of ways. In its
most immediate sense it may denote a material, legal entity; one might think of
a federal ministry as an example. The concept, as it is used here, is inspired by
Anthony Giddens’ “theory of structuration” (Giddens, 1984). According to
Giddens, social systems exhibit structural properties, allowing social practices
“to exist across varying spans of time and space” and lending them “systemic
form” (p. 17). Those practices with the greatest extension in time and space are
defined as “institutions.” Institutions contain a set of rules and resources and
exist over a considerable period of time. Resources may be described as alloca-
tive or authoritative; the former type refers to material features of the environ-
ment, means of production, or produced goods, the latter, among other ele-
ments, to the organization of life chances. In the present context, it is useful to
extend the meaning of authoritative resources to include knowledge about so-
cial systems, modes of reproduction of social systems, and social change. Insti-
tutional change may, then, be understood as the result of changes in resources
and corresponding changes in social practices.
This understanding of “institutions” and “institutional change” offers the op-
portunity to overcome the more narrow legalistic perspective that is deeply
rooted in West German political culture. It also allows us to extend our analytic
framework: Rather than focusing solely on the question to what extent the social
sciences had an immediate influence on government and legislature, research can
also focus on the impact of social scientific knowledge on societal and political
change and, thus, also on the informal and less direct impact of the social sci-
ences. With this extended focus, the analysis of the influence of social sciences
on institutional change may lead to a different assessment.
Extending the Focus: Modernity in Post-War Germany

Political systems and their decision-making agencies are not static entities. At
any given time, their outlook depends on various factors, ranging from the input
of specific social interest groups to ideas of how the political process might be
best organized, to political philosophy and, thus, questions concerning the role
of “the State.” In the present context, social and technological change and the
altering role of the state provide the decisive coordinates for the analysis of West
Germany’s political system.
After the Second World War, West Germany, as were nearly all other coun-
tries that had been involved in the war, was facing a number of severe political,
economic, and social problems. These resulted not only from the immense war
damages, but also from a process of fundamental change that had started in the
1920s and that, in the 1950s, reached new levels of intensity and social signifi-
cance. The change of allocative resources brought about by West Germany’s
rapid economic and social reconstruction, the economic miracle (Wirtschafts-
wunder) manifested itself as a modernization of the agrarian sector, as the in-
creasing mechanization and rationalization of industrial production, and as an
expanding services sector, also undergoing rationalization and modernization.
These developments not only affected the structure of the working population,
but also led to significant changes in the character and organization of work and
in the required professional qualifications.
The experience of this technical progress and of the accompanying changes
in the structure of industrial society posed new challenges for politics and the
state, not only in West Germany, but in all industrial nations after the war. What
made the West German case different from other Western European countries
was the predominance of specific German traditions of political philosophy and
discourse on technology, both traditions being closely interwoven with one an-
other. There was, on the one hand, the German way of thinking about the state,
in the 1950s still embedded in the realm of metaphysics. On the other hand,
there were very specific ways of thinking about technical progress, reaching back
to the 1920s: While some were regarding technical progress very skeptically in
general, others were generally approving it, but at the same time, combining
their acceptance of modern technology with very authoritarian political ideals,
thereby, rejecting Enlightenment reason and the political ideas of the French
Revolution. This attitude has been adequately termed “reactionary modernism”
(Herf, 1984). Having these powerful traditions in the background, it was very
difficult to construct a concept of a democratic modernity, based on modern
technology, to reconcile the notion of technical progress with the idea of individ-
ual freedom and to adapt institutions to social change. Moreover, the complete
absence of any democratic tradition of political planning in Germany and the as-
sociation of planning with either Hitler’s four-year plan or the Socialist planned
economy in East Germany—both were condemned in the name of antitotalitar-
ianism—made it absolutely impossible in West Germany, in the 1950s, even to
think about planning as an instrument for promoting social change. At the same
time, no one was thinking of making use of new technologies in the political
process (e.g., data processing), thereby, modernizing the political apparatus on
the basis of technical advance.
A powerful reason for the inertia, in this respect, may be found in the dis-
course on technology. At a first glance, this discourse was, in the 1950s, still very
similar to that of the 1920s. The idea that modern technology would bring
about dangers to the “soul of man” was still dominant, corresponding with a
very conservative cultural setting in general. However, there was one significant
difference between the 1950s and the 1920s: After the war, notions of “reaction-
54 Gabriele Metzler
ary modernism” collapsed completely, due to the shocking experiences that Na-
tional Socialism—as the once desired practical expression of a marriage between
modern technology and authoritarian politics—had presented to radical Conser-
vatives (Muller, 1987). By the early 1960s, a generally positive evaluation of
technology had caught on; an increasing number of people were convinced that
technological progress would bring about an increase in prosperity for all citizens
and would solve all problems of the future.
Indeed, there are a number of further indicators that a decisive change in at-
titude toward technology, society, and politics in general was taking place by the
turn of the 1950s to the 1960s. First, there was a change in the perception of the
relationship between present time and future. It seems that West German society
and politics discovered the future as a period that did not just descend upon
people like immutable fate, but that could be formed and shaped according to
social priorities (Metzler, 1999). Talking about the “end of post-war time,” as
did Chancellor Ludwig Erhard (Erhard, 1965), or speaking of the “second in-
dustrial revolution,” as did West Germany’s Social Democrats (Brandt, 1957),
indicate that change of perception. Also, the means for shaping that future were
expected, among others, to be provided for by the social sciences. This change of
perspective, the orientation toward the future, was a common feature in nearly
all post-war industrial societies; indeed, the construction of the concept of a mal-
leable future may even be considered as a project constituting a common Euro-
pean “identity” (Schmidt-Gernig, 1998).
Second, the debate among intellectuals about the “end of ideology” (Aron,
1957; Bell, 1960; Waxman, 1968) helped to ease the ideological tensions of the
Cold War and opened new fields for political ideas. Third, and most important,
in the context of the influence of the social sciences on the political transitions in
West Germany after World War II, there was a change in authoritative resources:
in knowledge on the extent and impact of technical and social change, and the
interpretation of political opportunities resulting from these changes.
From the early 1960s, the state—which means government and administra-
tion—took up the challenge of technical and social change. The question of
which forms of political and administrative organization were most appropriate
and effective became one of the main issues of domestic policy. Conjured up
with this was the question of which role the state was to play, what kinds of po-
litical options existed, and on what assumptions politics, in a very general sense,
was based.
Turning from the early to the late 1960s, the answer to these questions can be
easily seen. From 1966 and, as described above, especially from 1969 onward,
the state was to play a very active role. Politics was perceived as an instrument to
control, steer, and even bring about social change. Political planning became
very fashionable since a strong belief in the possibility of rational, “social-scien-
tificized” political processes was associated with it. Rationality and the applica-
tion of scientific methods to the political process were thought by those in
power—and by large parts of the German public—to be the best antidote to stu-
dent riots, growing political extremism, and increasing complexity of the politi-
cal decision-making process. Although social scientific methods and ways of

thinking did not penetrate the process of political decision making very much,
as discussed above, the question still is why social scientists had increased oppor-
tunities during the 1960s to promote their ideas, and why, for some years at
least, attempts to treat politics as a “science” were made at all. This question is es-
pecially relevant as we seek to explain the fundamental changes in political style,
methods, and goals that made the 1960s in West Germany so different from the
1950s. To explain this change, we have to return to the 1950s once again.
Social Sciences and the Modernization of the West

German Political Discourse
Social change affects political organization. The relationship between society and
its political structures is not just one-dimensional, meaning that society is not
just “organized” and controlled by politics. Usually, political structures and basic
concepts are adapted to social change to meet the changing needs of and de-
mands from society. Expert knowledge and its diffusion provided the link be-
tween these two developments (social and political change), as the analysis of the
modernization of West German political discourse will show: Knowledge on the
impact of technical and social change, that was produced by the social sciences,
was the decisive element in this process.
The predominant feature of the public discourse on technological progress,
in the 1950s, was skepticism. The mass society (Vermassung) as a corollary was
the political-cultural catchword of the day, the meaning of which extended well
into the sphere of politics. Cultural, as well as political conservatism was the an-
swer to it. It was seen as a political task to save man from the bad consequences
of social and technological change by strengthening traditional values, that is,
family values and the notion of “community,” in the sense of the genuine Ger-
man distinction between the community (Gemeinschaft) and the society (Gesell-
schaft). While, on the one hand, new technical developments and industrial
change were promoted by the government for economic reasons, attempts were
made, on the other hand, by Chancellor Konrad Adenauer and his administra-
tion to prevent all the negative influences on the soul of the individual that these
changes were considered to bring about. The aim of government and adminis-
tration was to preserve, in as many respects as possible, a traditional order that
would serve as a lighthouse for a society having lost its sense of direction. For
that reason, there was no need to make a major change in the basic assumptions
built into the political system, or to try to make political decisions on a scientific
basis, as the Brandt Government was to claim a decade later. The following anec-
dote may help to illustrate this point: When asked as Minister of Trade and
Commerce whether he would consult economists and social scientists, Ludwig
Erhard answered that he, being a scientist himself, would not have to consult
others.
56 Gabriele Metzler
There was a remarkable change in that perspective by the early 1960s. When
he was elected Federal Chancellor in 1963, the same Ludwig Erhard declared, in
his inaugural speech, that it would be equally desirable and necessary to obtain
the opinion of those who were, as he put it, professionally concerned with the
development of modern industrial society, and to take their advice into account
when it came to political decision making. The first step toward institutionaliz-
ing these contacts, between politics and science, was the establishment of the
SVR in 1963.
But, the influence of social sciences made itself felt in other respects also. So-
cial sciences contributed to institutional change—in the sense of a change in
knowledge about society and perception of technological and social develop-
ments—because they became the dominant elements in the discourse of indus-
trial society. That was the result of two developments: First, as already men-
tioned, there was an increasing openness of society with respect to the future;
second, there was a change in the social sciences themselves, especially in sociol-
ogy, but also in the political sciences and economics. Sociology, however, was the
most important contributor to institutional change.
The development of German sociology as a science after the Second World
War is itself a very complex story. I will restrict myself here to naming just a few
features of that development: Sociology, as well as other sciences, lost most of its
German traditions and underwent a process of “Americanization” after 1945
(Plé, 1990; Weyer, 1984). Some results of that internal change were the de-
crease of its historical-philosophical orientation, the growing number of empir-
ical studies, and the birth of a number of specialized fields of sociological re-
search, the so-called “Bindestrich-Soziologien” (e.g., industrial sociology, sociol-
ogy of organizations). The rise of industrial sociology, in particular, had an
enormous impact on the scientific and public discourse in society and societal
change. The first studies in industrial sociology were published in the late 1950s
by Heinrich Popitz and Hans Paul Bahrdt (Popitz, Bahrdt et al., 1957a, 1957b),
Helmut Schelsky (1957), Renate Mayntz (1958, 1963), and others, and were
concerned with the impact of technology on industrial work, as well as with
bureaucracy and the organization of office work. All these studies highlighted
the dynamics of the technological and industrial change that was going on, and
they showed that de-individualization (Vermassung) was not the dangerous out-
come of the change that had always been painted as a black picture. In proving
this on an empirical basis, they produced a set of knowledge and interpretation
that was to shape authoritative resources and, thereby, bring about institutional
change.
The political implications became obvious very soon. One of the most pro-
nounced theses in the context of the new sociology and the role of experts in
modern society was pursued by Schelsky. With his thesis of the “technical State”
(Schelsky, 1961), Schelsky argued that the decision-making power of politicians,
of government and administration, was merely fiction; in reality, they would be
substituted by the rule of the inherent pressures (Sachzwang). The state would,
at some point in this development, completely lose its function; technology and
state would melt together, and the state would finally die, making room for the
rule of technocrats.
Although Schelsky’s thesis was provocative, the effect, in reality, was just the
opposite. The state in Germany did not die, but became, from the beginning of
the 1960s, ever more active; as shown with a look at the Brandt Government, it
was to play a crucial role in bringing about and controlling social change. To
cope with the inherent pressures of technological advance and social change and
to preserve the state as an actor in the political process, the government tried to
adopt new techniques of administration and sought to integrate experts from
the social sciences into the decision-making process. This reflected the above-
mentioned change in authoritative resources. There was an increase in authori-
tative resources especially with regard to correlations between economics and
society. Also, since the acknowledgement of social change had caught on, it led
to a “social scientification” of politics, and a closer contact between social sci-
ences and politics.
This point merits some closer attention because it brings another branch of
the sciences into view: economics. The prestige of the social sciences during the
1960s owed more than a little to developments in economics. Theorists work-
ing in this field provided frameworks for rational decision making in economic
policy and developed prognostic models for future economic performance
(Giersch & Borchardt, 1962). Economists also helped to destroy the “taboo” of
planning that had paralyzed German politics in the 1950s; in a number of con-
ferences that gained strong public attention, they discussed the possibility—and
even necessity—of economic programming and planning (e.g., Bergedorfer
Gesprächskreis, 1964; List Gesellschaft & Plitzko, 1964; Verein für Socialpoli-
tik, 1967). Keynesian approaches became more and more attractive, stressing
the active part the state has to play in the economic process, especially when it
comes to market failure and economic downswing, as was the case in West Ger-
many in 1966. The state then, according to Keynesian theory, had to play a very
special role in fostering material welfare and growth. Although Keynesianism
never really dominated the mainstream of West German economic thought (for
Keynesianism in Germany see Backhaus, 1988; Heu, 1998), some of Keynes’
advocates took over very important positions in economic decision making,
notably Karl Schiller, the German Minister for Trade and Commerce (and for
some time also of Finance) from 1966 to 1972. Thus, the idea of “politics as a
science,” as an instrument to control and steer social change, found its concom-
itant in the economic sphere in the conception of the global steering (Global-
steuerung) of the economy. In both fields, the state was to be the key actor.
Therefore, the state did not just die as a “technical State,” but rather made the
shaping of technical, economic, and social change its own and very special task
that was to be managed with the help of experts and reconciled with the basic
ideas of democracy.
58 Gabriele Metzler
“Social Scientification” of West German Politics: Channels of Influence

Beginning in the 1960s, social scientists dominated the public discourse on tech-
nological progress and industrial society. They delivered the frameworks of inter-
pretation that influenced political thought and political debates. From time to
time, they were consulted by the government as expert advisors, sociologists, and
political scientists mainly after 1969, economists already a few years earlier as,
for instance, in the SVR or in the Advisory Council to the Ministry of Trade and
Commerce. Given that these institutionalized contacts between scientists and
government were not very successful in terms of influence on political decision
making, the question remains: How did expert knowledge find its way into the
political process? To answer this question, we need to refocus our attention on
the academic socialization of politicians and civil servants, and especially on the
vocational training for civil servants. This is a much neglected issue and has not,
to my knowledge, been thoroughly investigated in its historical context.
Although the so-called “Juristenmonopol” (referring to the “monopoly” of law
students entering political careers) was not challenged by social scientists, they
were able to influence the thinking of civil servants by familiarizing them with
social scientific thought. The German Post-Graduate School of Administrative
Sciences (Hochschule für Verwaltungswissenschaften) at Speyer, where a significant
number of civil servants from the states (Länder) were sent for vocational train-
ing, consistently offered courses and lectures in sociology; in the 1950s they were
given by Arnold Gehlen, later, for a short time, by Niklas Luhmann, then by
Renate Mayntz. Besides attending the Post-Graduate School (Hochschule) in
Speyer, higher civil servants of the Federal (Bund) and state (Länder) govern-
ments were trained at “summer schools,” the so-called “university weeks” (Hoch-
schulwochen). Some of the programs that I found of these seminars read like the
table of contents in a book by Schelsky. Schelsky—like a number of his col-
leagues—actively participated in the “university weeks” (Hochschulwochen), for
instance, lecturing on “Changes in the social structure in the 20th century,”
“The role of family in modern society” (Verwaltungs-Hochschulwochen, 1955),
and “Sociological research on urban development” (Verwaltungs-Hochschul-
wochen, 1956).
Attempts to create a modern institution for the vocational training of civil
servants culminated in 1969 in the founding of the Federal Academy of Public
Administration (Bundesakademie für Öffentliche Verwaltung). The courses that
were offered at the Academy were based on the latest social scientific concepts of
administration and were informed by modern management techniques (Bundes-
akademie für Öffentliche Verwaltung, 1974). In this way, social scientists helped
to shape the way civil servants saw themselves, and the ideas about the organiza-
tion and tasks of administration, and thus, influenced their bureaucratic style.
Paradoxically, one may be inclined to say, these forms of further training for civil
servants (Beamtenfortbildung) seems to have had a greater impact on political de-
cision making than institutionalized expert advice, as in the Project Group (Pro-
jektgruppe Regierungs- und Verwaltungsreform) or the Commission for Investigat-
ing Economic and Social Change (Kommisson für wirtschaftlichen und sozialen
Wandel).
Conclusion
When it comes to the question of scientific influence upon political decision
making, West Germany was a latecomer. In France, for example, the state met
the challenges posed by technological and social change immediately after the
war by embarking on a course of planning. La planification was based on scien-
tific concepts, not only from the social sciences, but also from mathematics and
engineering with which the French administrative elite were made familiar at
one of the Grandes Écoles, notably the École Nationale d’Administration
(ENA). Thus, in France the distance from social scientific knowledge to practical
application was much shorter than in West Germany, where planning as a polit-
ical option reached its peak only at a time when the French were already in-
volved in a process of revision.
The impact of the social sciences on West Germany’s political order and its
institutions was near to insignificant when seen from a strictly legal and consti-
tutional point of view. In a long-term perspective, the organizational (i.e., minis-
terial) framework of decision making only underwent some minor changes at-
tributable to social scientific expertise. To assess the impact of the social sciences
adequately, “institutions” have to be defined as systems of social practices and
knowledge about society, thus, as allocative and authoritative resources. From
this perspective, the influence of the social sciences, and notably of sociology,
was considerable.
From the late 1950s the social sciences dominated the public discourse on
technological change and on the future of industrial society. While undergoing a
process of fundamental change themselves, the social sciences, especially sociol-
ogy, destroyed traditional perceptions of technology and contributed to bringing
about a more pragmatic image of the State. Having liberated the thinking about
the state from its metaphysical connotations, government and administration
could define a more active role for the state, a role that, such was at least the un-
derlying idea, would reconcile social and technological changes with individual
freedom. At the same time, however, it was still perceived to be one of the most
prominent tasks of the state to save the individual from the bad consequences of
these changes by means of social policy. Thinking in terms of the welfare state
(Sozialstaat), it is still a characteristic of Germany’s political order and provides a
splendid example of the “path dependency” of political developments (for a dis-
cussion of this concept and an example of social policy see Conrad, 1998).
Often, the channels of influence that social scientific knowledge traveled to
reach the members of the political and administrative elite were based on per-
sonal relationships between and informal networks of politicians and scientists.
There are hardly any written documents about these relationships and networks,
which makes it difficult to reconstruct them within a framework of historical
60 Gabriele Metzler
analysis. Moreover, and this is especially true for the late 1960s, the borderline
between political decision makers and social scientists became more and more
permeable. Therefore, it is necessary to analyze the educational backgrounds of
the political and administrative elite thoroughly and to investigate the way they
saw themselves.
The observation of the failure of the planning program, in the early 1970s,
leads to the hypothesis that the history of modernization and “social scientifica-
tion” of West German politics is, in certain respects, a history of semantic mod-
ernization (for the concept of semantic modernization see Luhmann, 1991). It
must be the object of further, more thorough analysis to prove if the political
and administrative elite actually just used the language of the social sciences to
legitimize political decisions and, by doing so, give these decisions—and them-
selves—a more modern image. In this sense, one could argue that it was mainly
their “symbolic usefulness” that made the social sciences so attractive, from the
politicians’ point of view, because the sciences could be used for “endorsing and
dignifying preexisting and predetermined political purposes” (Stehr, 1996,
1.11). If modernization really took place only on the semantic level, this would
provide a further explanatory element with regard to the nearly complete break-
down of all planning ambitions by 1972–1973: Planning, from this perspective,
never really took root very deeply in the soil of government and administration
and may be characterized as symbolic politics.
But, how was it possible for the social sciences to become a source of legiti-
mation in the political process? To answer this question, we have to take into ac-
count the belief in the feasibility of all-embracing political and social reforms, in
the possibility of steering economic processes and, thereby, guaranteeing perma-
nent economic growth. The belief in this possibility was prevalent in the 1960s;
it was, as such, deeply rooted in the trust in the capacity of the social sciences.
Political decisions based on social scientific advice were considered to be rational
decisions, and only rational decisions would guarantee that there would be no
predominance of any single social group in the decision-making process, but
rather, that all interests involved would be taken into account. Therefore, it was
argued, that only rational decisions (based on social scientific expertise) are dem-
ocratic decisions.
But, how did the social scientists legitimize themselves as expert advisors,
both in the political process and within their own peer group? What motivated
them to provide expert knowledge? It may be presumed that not all of them had
genuine political motivations although there is a tradition of reform policy in the
German social sciences, notably in sociology. Many of the social scientists, who
acted as consultants to government and administration, were driven by their sci-
entific interests and ignored (or tried to ignore) the political implications of their
work (on this problem see Mayntz, 1977). These questions suggest we should
think about the relationship between social scientists as expert advisors, and the
political as well as administrative elite, in terms of supply and demand: both sides
offering and seeking something (information, knowledge, funding, or even legit-
imation). However, these market-style exchange relations, themselves, need to be
legitimized, as the sharp criticism from within the ranks of scientists in the 1970s
indicates: Helmut Schelsky, for example, condemned, with very strong words,
that intellectuals (especially social scientists) would monopolize new means of
power and control, and establish themselves as the new elite. As he saw it, social
scientists were about to become a class of meaning-producers whose authority
would be based on their insider knowledge (Herrschaftswissen). New forms of
domination would consequently emerge that would be based on instruction,
care, and planning (Belehrung, Betreuung, Beplanung) (Schelsky, 1975).
These polemic theses by Schelsky bring to the fore a central issue regarding
social scientists as experts and political advisors: legitimation. Questions of moti-
vation and legitimation, arise not only in the context of this research project, but
are relevant with respect to the role of the experts in modern—and demo-
cratic—societies in general.
References
Aron, R. (1957). The opium of the intellectual. New York: Doubleday.
Backhaus, J. (1988). Die “Allgemeine Theorie”: Reaktionen deutscher Volkswirte. In H. Hage-
mann & O. Steiger (Eds.), Keynes’ General Theory nach fünfzig Jahren (pp. 61–81). Berlin:
Duncker & Humblot.
Bell, D. (1960). The end of ideology. London: Macmillan.
Bergedorfer Gesprächskreis. (1964). Planung in der freien Marktwirtschaft. Hamburg, Germany:
Decker.
Böckenförde, W. (1964). Die Organisationsgewalt im Bereich der Regierung. Eine Untersuchung zum
Staatsrecht der Bundesrepublik Deutschland. Berlin: Duncker & Humblot.
Brandt, L. (1957). Die zweite industrielle Revolution. Munich, Germany: Paul List Verlag.
Bruder, W. (1980). Sozialwissenschaften und Politikberatung. Zur Nutzung sozialwissenschaftlicher
Information in der Ministerialorganisation. Opladen, Germany: Westdeutscher Verlag.
Bundesakademie für Öffentliche Verwaltung. (1974). Ein Beitrag zur Verwaltungsreform. Bonn,
Germany: Bundesinnenministerium.
Bundesministerium für Forschung und Technologie (BMFT). (1975). 5. Forschungsbericht. Bonn,
Germany.
Conrad, C. (1998). Alterssicherung. In H. G. Hockerts (Ed.), Drei Wege deutscher Sozialstaatlich-
keit. NS-Diktatur, Bundesrepublik und DDR im Vergleich (pp. 101–116). Munich, Germany:
Oldenbourg.
Erhard, L. (1965). Regierungserklärung. In Verhandlungen des Deutschen Bundestages, 5. Wahlperi-
ode. Stenographische Berichte (Vol. 60, pp. 17–33). Bonn, Germany.
Giddens, A. (1984). The constitution of society. Outline of the theory of structuration. Berkeley, CA:
University of California Press.
Giersch, H., & Borchardt, K. (Eds.). (1962). Diagnose und Prognose als wirtschaftswissenschaftliche
Methodenprobleme. Verhandlungen der Tagung des Vereins für Socialpolitik in Garmisch-Parten-
kirchen 25.–28. September 1961. Berlin: Duncker & Humblot.
Habermas, J. (1963). Verwissenschaftlichte Politik und öffentliche Meinung. (Reprinted) In
J. Habermas, Technik und Wissenschaft als “Ideologie” (pp. 120–145). Frankfurt a.M, Ger-
many.: Suhrkamp.
Herf, J. (1984). Reactionary modernism. Technology, culture, and politics in Weimar and the Third
Reich. Cambridge, UK: Cambridge University Press.
Heu, E. (1998). Kontinuität und Diskontinuität in der Nationalökonomie nach dem 2. Weltkrieg:
Ordoliberalismus versus Keynesianismus. In K. Acham et al. (Eds.), Erkenntnisgewinne,
62 Gabriele Metzler
Erkenntnisverluste. Kontinuitäten und Diskontinuitäten in den Wirtschafts-, Rechts- und Sozialwis-

senschaften zwischen den 20er und 50er Jahren (pp. 331–355). Stuttgart, Germany: Steiner.
Katzenstein, P. J. (1987). Policy and politics in West Germany. The growth of a semisovereign state.
Philadelphia, PA: Temple University Press.
Kommission für wirtschaftlichen und sozialen Wandel. (1977). Wirtschaftlicher und sozialer Wandel
in der Bundesrepublik Deutschland. Gutachten der Kommission für wirtschaftlichen und sozialen
Wandel. Göttingen, Germany: Verlag Otto Schwartz.
List Gesellschaft & Plitzko, A. (Eds.), (1964). Planung ohne Planwirtschaft. Frankfurter Gespräch
der List Gesellschaft, 7.–9. Juni 1963. Basel, Switzerland: Kyklos; Tübingen, Germany: Mohr
(Siebeck).
Luhmann, N. (1991). Das Moderne der modernen Gesellschaft, In W. Zapf (Ed.), Die Moderni-
sierung moderner Gesellschaften. Verhandlungen des 25. Deutschen Soziologentages in Frankfurt
am Main 1990 (pp. 87–108). Frankfurt a.M, Germany.: Campus.
Mayntz, R. (1958). Die soziale Organisation des Industriebetriebs. Stuttgart, Germany: Enke.
Mayntz, R. (1963). Soziologie der Organisation, Reinbek, Germany: Rowohlt.
Mayntz, R. (1977). Sociology, value-freedom, and the problems of political counseling. In
C. Weiss (Ed.), Using social research in public policy-making (pp. 55–65). Lexington, MA.:
Lexington Books.
Mayntz, R., & Scharpf, F. (Eds.). (1973). Planungsorganisation. Die Diskussion um die Reform von
Regierung und Verwaltung des Bundes. Munich, Germany: Piper.
Metzler, G. (1999). Die Entdeckung der Zukunft. Gelebt, gezählt, erinnert: Ist die Zeit zu fassen?
Damals, 12, 8–11.
Muller, J. Z. (1987). The other god that failed. Hans Freyer and the deradicalization of German con-
servatism. Princeton, NJ: Princeton University Press.
Naschold, F. (1972). Gesellschaftsreform und politische Planung. Österreichische Zeitschrift für
Politikwissenschaft 1, 5–34.
Plé, B. (1990). Wissenschaft und säkulare Mission. “Amerikanische Sozialwissenschaft” im politischen
Sendungsbewußtsein der USA und im geistigen Aufbau der Bundesrepublik Deutschland. Stutt-
gart, Germany: Klett-Cotta.
Popitz, H., Bahrdt, H. P., et al. (1957a). Das Gesellschaftsbild des Arbeiters. Soziologische Unter-
suchungen in der Hüttenindustrie. Tübingen, Germany: Mohr (Siebeck).
Popitz, H., Bahrdt, H. P., et al. (1957b). Technik und Industriearbeit. Soziologische Untersuchungen
in der Hüttenindustrie. Tübingen, Germany: Mohr (Siebeck).
Schelsky, H. (1957). Die sozialen Folgen der Automatisierung. Düsseldorf, Germany: Diederichs.
Schelsky, H. (1961). Demokratischer Staat und moderne Technik. Atomzeitalter, 5, 99–102.
Schelsky, H. (1975). Die Arbeit tun die anderen. Klassenkampf und Priesterherrschaft der Intellektu-
ellen. Opladen, Germany: Westdeutscher Verlag.
Schmidt-Gernig, A. (1998). Die gesellschaftliche Konstruktion der Zukunft.
Westeuropäische Zukunftsforschung und Gesellschaftsplanung zwischen 1950 und 1980.
Welt Trends, 6, 63–84.
Stehr, N. (1996). The salt of social science. Sociological Research Online, 1(1). Available: http://
www.socresonline.org.uk/1/1/stehr.html
Verein für Socialpolitik. (1967). Rationale Wirtschaftspolitik und Planung in der Wirtschaft von
heute. Verhandlungen auf der Tagung des Vereins für Socialpolitik in Hannover 1966. Berlin:
Duncker & Humblot.
Verwaltungs-Hochschulwochen. (1955). Staat, Mensch und Gesellschaft. Programm der VIII.
Verwaltungs-Hochschulwochen in Bad Meinberg, 14.–28.10.1955. Hauptstaatsarchiv
Düsseldorf, NW 110 No. 924.
Verwaltungs-Hochschulwochen. (1956). Stadt und Dorf heute. Programm der IX. Verwaltungs-
Hochschulwochen in Bad Meinberg, 16.–30.10.1956. Hauptstaatsarchiv Düsseldorf, NW 110
No. 932.
Wallich, H. C. (1968). The American Council of Economic Advisors and the German
Sachverständigenrat. A study in the economics of advice. Quarterly Journal of Economics, 82,
349–379.
Waxman, C. (Ed.). (1968). The end of ideology debate. New York: Funk & Wagnalls.
Weyer, J. (1984). Westdeutsche Soziologie 1945–1960. Deutsche Kontinuitäten und nordamerika-
nischer Einfluß. Berlin: Duncker & Humblot.
Chapter 4
Socialist Legal Experts: A New Profession?1
Ute Schneider
TU Darmstadt, Department of History, Schloss, 64283 Darmstadt, Germany
schneider@pg.tu-darmstadt.de
The German state has played a much stronger and more central role in the train-
ing, recruitment, and control of its lawyers than the British or American state. In
contrast to their Anglo-American colleagues, German lawyers have had the priv-
ilege and the burden of the so-called Juristenmonopol since the 19th century, in-
herited from the age in which most lawyers were employed by the state as civil
servants. This means that they need a final university examination and a second
examination after two years of articling. Even though since the late 19th century
most of the trained lawyers have not been able to find a position in the civil ser-
vice for a variety of reasons and have had to establish themselves as free solicitors
or in similar professions, the Juristenmonopol has not been revoked. For this rea-
son, Rottleuthner calls the German lawyers a “spurious profession,” and Jarausch
talks about “unfree professions” (Jarausch, 1990; Rottleuthner, 1988).
The professionalization of lawyers as well as their place in the elites of admin-
istration and government have been a continuing research topic in the social sci-
ences. Starting in the 19th century, the history of this successful professionaliza-
tion involved the so-called Juristenmonopol, that is, lawyers’ privileged access to
positions in civil service, the self-recruiting mechanisms of the profession, as well
as a commitment to delineate oneself from other professional groups. Often,
studies focus on the two dictatorships, National Socialism and the German
Democratic Republic (GDR). Whereas research on National Socialism in the
late 1960s was dominated by the idea that politically conformist elites were oust-
ing the previous legal elite, more recent research has shown the decisive role,
function, and continuity of German lawyers in justice and administration.
Nonetheless, state policy was directed at de-professionalizing this group, ques-
tioning its self-image, knowledge, and ethics (Dahrendorf, 1965; Ruck, 1996;
Siegrist, 1996).
Research on the second German dictatorship in this century is still in its in-
fancy. At the moment most inquiries emphasize, above all, the process of politi-
1
I owe a very special thank to Tom Saunders, who made very stimulating comments and
helped me to negotiate with the obstacles of the English language.
65
66 Ute Schneider
cization and de-professionalization. The struggle against “class law” and the den-
igration of elites, who were always under suspicion of being prone to bourgeois
ways of thinking, was a main topic in political discourse and communist policy.
A central aspect and often propagated goal in the Soviet Zone, and later GDR,
was to link the intended fundamental changes in political and social structures
with a replacement of “old elite” legal professionals.
The policy of de-nazification and recruitment of a new elite that started in
the Soviet Zone immediately after the war resulted in the training of so-called
Volksrichter (people’s judges) and Volksstaatsanwälte (people’s prosecutors), an in-
stitutional shift intensively discussed among contemporaries and historians.
These judges and prosecutors were quickly trained legal functionaries without an
academic background. Party membership in the Communist Party of Germany
(Kommunistische Partei Deutschlands [KPD]) and, from 1946, in the Socialist
Unity Party of Germany (Sozialistische Einheitspartei Deutschlands [SED]) was
more important than a professional training (Amos, 1996; Deutscher Bundes-
tag, 1995; Bundesministerium der Justiz, 1994; Schröder, 1999; Wentker,
1997).
A closer look at the replacement of the old elite, pompously propagated by
the GDR, demonstrates that it was by no means as extensive as claimed with re-
gard to the legal profession. Even the GDR could not do without the expertise
of academically qualified personnel, and it only gradually freed its legal system
from middle-class traditions and ties to the 19th century. In addition, even the
GDR needed such expertise to transform its traditional legal system into a so-
cialist one. A generation of legal experts, German lawyers trained in the German
Civil Code (Bürgerliches Gesetzbuch [BGB]), continued to occupy key positions
in the Ministry of Justice of the GDR. Being in leading positions, they used the
law and legislation to influence and regulate politics and society, always, of
course, in accordance with the political guidelines. These experts codified the
new socialist norms, which affected the society as a whole, while they equally
kept up the standards of their own profession. They used their competence to
counter tendencies of de-professionalization in the early years of the Soviet Zone
and GDR, insisting on consistent standards and expert knowledge. They not
only applied these to their own profession, but they also contributed to social re-
search more broadly (the Verwissenschaftlichung) and, especially, to the establish-
ment of sociology in the GDR. At the same time, they did not remain un-
touched by the political changes and their own efforts to transform the legal sys-
tem into a socialist one. The results became obvious when the new generation of
socialist legal experts gained more influence in legislation and other areas of po-
litical importance. Some of the older lawyers struggled to keep up with these ex-
perts, but at the end of the 1960s they had to recognize that the era of their in-
fluence was over.
This process will be presented in the following pages with a case study. All re-
sults are limited to the Central Administration of Justice, the later GDR Minis-
try of Justice, its staff, and to those related personnel delegated to lawmaking.
The thesis will focus on the new codification of family law, which took place be-
Socialist Legal Experts: A New Profession? 67
tween 1946 and 1966. This law aimed to create norms, first to stabilize post-war
society, and then to form a basis for future reorganization necessary for a socialist
society. The political and economic needs of the post-war period made it a ne-
cessity to give protonatalism (i.e., state support for families in order to increase
birth rate) as well as female employment a central place in family law in East
Germany (Grandke, 1995; Jarausch, 1999). The Ministry of Justice and its ex-
perts, thus, acquired a key role, since it was up to them to create the conditions
for the intended changes in society. Family law offered them the opportunity to
make deep incursions into society.
First, I shall go briefly into the legal policy of the Soviet Military Administra-
tion (Sowjetische Militäradministration Deutschlands [SMAD]) in the period im-
mediately after the war, and second, I will deal with the composition of the com-
mittee that dealt with the codification of a new family law. In discussing the
working processes within the committee and the role technical terminology
played for the lawyers, I would like to clarify their insistence on professional
knowledge. Although professional knowledge was one demand, socialism was
the other. Their work was dedicated to the project of socialism and the develop-
ment of a socialist legal system. That was by no means an easy task, and conflicts
arose over important legal questions, especially with the younger generation of
socialist lawyers. One fundamental area of dissent, presented in this chapter, illu-
minates very clearly the deficiencies of the first generation and the different po-
litical attitudes of both age groups concerning individual rights and society.
In the GDR, it was always a political demand to integrate different political
organizations and the people into the lawmaking process. But, sometimes it was
not easy for the committee to obtain the needed expertise, or empirical data,
since there was no established discipline of sociology in the GDR until the end
of the 1960s. The relationship between the committee’s needs and work, the es-
tablishment of sociological research, and the institutionalization of family law as
a legal discipline, all important aspects of the process of Verwissenschaftlichung,
therefore, require inclusion in this discussion.
The Legal and Personnel Policy of the Soviet Military

Administration
Criticism of justice was an old tradition under the Social Democrats and Com-
munists. Lack of security before the law and the high proportion of lawyers in-
volved in the National Socialist perversion of law strengthened, among exile and
opposition groups, the recognition that after the end of the war a reform of jus-
tice was urgently required. In spite of various proposals, reform of the law was
not a priority among the Communists. There were a number of reasons for this,
the most important of which was certainly that traditionally very few lawyers
were Communists and that few among them—and this seems much more im-
portant—had been able to find their way into a legal position before 1933. In
68 Ute Schneider
addition, in the period immediately after the war Communists preferred to sit in
the critical positions of power and consequently preferred other positions of re-
sponsibility. For that reason, non-party, Liberal, Christian Democratic, and also
Social Democratic lawyers predominated in the Ministry of Justice (Amos,
1996; Hoefs, 1999).
The official responsible for the German Central Administration for Justice
(Deutsche Zentrale Justizverwaltung) set up in 1945, later the Ministry of Justice,
was Eugen Schiffer, who was already 85 years old. Until 1933 he had been a
member of the German Democratic Party (Deutsche Demokratische Partei) and
had not only full legal qualifications, but also the necessary political experience,
since he had already held the office of Minister of Justice from 1919 to 1920.
His staff policy and employment measures led to conflict from the very begin-
ning with his deputy, who had no legal training (Amos, 1996; Bundesarchiv
Berlin [BArchB], DP 1 VA 1, p. 293).
Schiffer had seemed a good choice as the head of the Central Administration
because in the 1920s he had spoken up for legal reform and for law to be made
more accessible for the population. However, as far as the conceptions of family
and family law were concerned, he warned against an appreciation and emula-
tion of Russian law. For the Communists in the Central Office, Party headquar-
ters (Zentralsekretariat [ZS]) Schiffer’s suggestions soon came to be regarded as
“retrograde in character.” According to them, his demand for the independence
of the judiciary and other guarantees of a constitutional state tended in the same
direction, “namely to afford an isolated caste of judges a privileged and dominat-
ing position.” Schiffer refused to budge from his commitment to an indepen-
dent judiciary, “to protect democracy against injustice and lawlessness.” More-
over, he continued to demand professional judges and justice in general, and an
important role for justice in the state:
It is in the interest of the survival of justice not to permit itself to be alienated
from important sectors of the state and from the people. I cannot consider al-
lowing our good, old justice with its ancient principles and academic training
to be driven out of the legal system and I cannot consider permitting the old
professional judges with their academic training to be replaced by “Volksrich-
ter.” On the contrary, I wish to strengthen and deepen the professional train-
ing of the professional judges. I do not intend to let the “Volksrichter” replace
the professional judges, but supplement them. (BArchB, DP 1 VA 7844,
p. 20; BArchB, DP 1 VA 6592, p. 26f.; Ramm, 1984; Schiffer, 1928)
This was a clear statement and Schiffer tried to uphold it. Professional compe-
tence and with it professionalism were central criteria to obtain a job under
Schiffer, even if the Soviet Military Administration had the final word about the
appointment. Almost all leading officials were fully trained lawyers. Among the
total number of staff, almost 60, there were as many as 22 fully trained lawyers:
19 men and—surprisingly—3 women. All of them had been born between 1860
and 1911. The majority had studied in the time of the Empire or the Weimar
Republic. They had served as lawyers in different capacities before 1933. Con-
sidering the period of National Socialism, we can divide them into four different
categories: a small group of those who had not compromised themselves under
the Nazis but remained in their positions, a second small group of Eastern emi-
grants, the larger group of Western emigrants, and those who had somehow sur-
vived persecution in Germany (Amos, 1996; BArchB, DP 1 VA 1, pp. 62–196;
Schneider, 1999).
From the Traditional to the Socialist Legal Expert

After the war, and partly as a consequence of it, women’s legal and societal status
was debated in all zones. Demands for modernization were accompanied by
those for changes in family law, which had been on the agenda of democratic
lawyers since the Weimar Republic. Whereas the discussion about central as-
pects, such as equal rights, was postponed in the Western Zones and the later
Federal Republic of Germany until the 1950s, the GDR went ahead with reform
in the form of individual laws and then a new codification. Demands for equal
opportunities in marriage and family, questions of adoption, divorce, and, very
important in the post-war context, the question of illegitimate children were
taken up (Douma, 1994; Heinemann, 1999; Moeller, 1997; Müller-List, 1996;
Schneider, 2000).
The Committee for Family Law

Several groups discussed these questions concerning emancipation and women’s
status in society, family, and law independently of each other after the war.
Among the groups who strove for new socio-political solutions, the female orga-
nizations—such as the Democratic Women’s Union of Germany (Demokra-
tischer Frauenbund Deutschlands [DFD]), but also a study group of female law-
yers—were particularly prominent (BArchB, DP 1 VA 6633, p. 168; BArchB,
DP 1 VA 7354). These individual efforts were combined in 1949 after the
Council of the People (Volksrat) gave the Ministry of Justice the task of reform-
ing family legislation (BArchB, DP 1 VA 8002; BArchB, DP 1 VA 8038;
BArchB, DP 1 SE 1126; Eberhardt, 1995; Schneider, 2000).
Besides these public groups, there also existed a similar discussion group,
originating from within the Ministry, debating problems of family law with a
few intimate members of the staff. In 1949, the Ministry of Justice, commis-
sioned by the Council of the People, brought these different attempts together.
It created the Committee for Family Law, which functioned through several sub-
committees. Each of them dealt with one specific subject, for example, the law
of inheritance. The composition of the sub-committees remained more or less
unchanged during the years of their existence. The Committee consisted of
members of staff of the Ministry of Justice and lawyers from the universities. At
the beginning of the 1960s, the number of delegates representing various sec-
70 Ute Schneider
tions of society was raised for political reasons and, in the 1950s, younger law-
yers were integrated into the Body of the Committee. The members of the older
generation had enjoyed a traditional German legal training. Although they had
studied under different conditions the younger members were still well ac-
quainted with the German Civil Code (BGB), for it remained partly in force
until the passing of the Civil Code of the GDR (Zivilgesetzbuch [ZGB]) in 1976
(Göhring & Dost, 1995).
Unfortunately, there is not enough space here to introduce the individual
members in detail. For that reason, I would like to name some and concentrate
on a few interesting representatives. Hilde Benjamin (1902–1989), Minister of
Justice, was chairman of the Committee, and in addition, was responsible for the
recruitment of new legal experts (BArchB, DP 1 VA 7842, p. 302; Brentzel,
1997; Feth, 1997). Ernst Melsheimer (1897–1960) was another member of the
Committee. In 1949 he became Chief Public Prosecutor of the GDR. He had
worked for the Ministry of Justice since 1921 and had been a member of the So-
cial Democratic Party since 1928. In 1937 he had been demoted to the post of a
Supreme Court Judge (Kammergerichtsrat). Consequently, he was one of the very
few lawyers with a “clean” past, which meant that he could continue his career in
the GDR after de-nazification (BArchB, DC 20/7881, p. 1ff).
One of the most important and long-serving members of the Committee was
Hans Nathan, who deserves to be introduced in more detail. Nathan, born in
1900, descended from a family of Jewish lawyers in Görlitz. He studied law in
Berlin, Marburg, Munich, and Breslau, and gained his doctorate in 1921. After
his studies, Nathan worked as solicitor in his father’s office in Görlitz between
1925 and 1933. A former member of a student corporation, he described him-
self as politically “disinterested.” However, relatives recruited him for the Ger-
man Democratic Party. The racial policy of the National Socialists forced him to
leave for Czechoslovakia in 1933. From there, he emigrated to England in 1939.
After a period of internment, Nathan earned his living with various jobs in
Manchester. It was in Manchester that he worked for the first time in his life in a
factory, where he joined the Communist Party. In 1946, Nathan returned to the
Soviet Zone. He got a job in the Department of Justice after a talk with Mels-
heimer and Benjamin. His career was typical of many people, not only lawyers,
who survived exile in the West. He lost his job in 1952 as a result of the purges
of the early 1950s that shook most Eastern countries with the aim of exposing
supposed Western spies. Nathan was quite lucky, under the circumstances, and
became main editor of the legal journal Neue Justiz (New Justice). Nathan him-
self would have preferred to remain in the administration. Looking back, he
characterized his time in the Ministry as his “most fruitful and creative period.”
Shortly after changing jobs, he was appointed Professor of Civil Law at the
Humboldt University in Berlin and became very active in legal education. He
was Dean from 1954 to 1961, and Head of the Institute for Invention and
Patent Law (Institut für Erfindungs- und Urheberrecht) from 1963 until he re-
tired. All these years he remained an active member of several legislative commit-
tees. He died highly decorated and honored in 1971 (BArchB, DP 1 VA 821;
BArchB, DP 1 VA 8232; Stiftung Archive der Parteien und Massenorganisa-

tionen der DDR im Bundesarchiv [SAPMO-BArchB] DY 30/IV 2/V 1036;
SAPMO-BArchB, DY 30/IV 2/4/134; SAPMO-BArchB, DY 55/v 278/3/176;
SAPMO-BArchB, DY 30/IV 2/4/ 92; interviews [all made by the author] with
Erich Buchholz, 17 April 1998; Karl-Heinz Eberhardt, 8 August 1997; Sabine
Nathan, 27 June 1997).
Nathan had attributes that many would have regarded as typical of a German
lawyer. Academically Nathan “had above average legal knowledge in the field of
bourgeois legislation,” a qualification that Karl Polak (1905–1963) (Baumgartner
& Hebig, 1996), one of the leading lawyers in the GDR, had bestowed upon
him in 1946. He was regarded as a “good and many-sided lawyer” with long
practical experience in all areas of jurisprudence, had experienced “a broadening
of his horizon during emigration,” and was in addition “very keen on work.”
Colleagues had a high opinion of him and agreed that he was “a so-called legal
expert.” According to other sources, this reached the point that “when judges
read a statement of Dr. Nathan, who with his articles is regarded as an authority
in legal practice, they do not diverge from his point of view” (SAPMO-BArchB,
DY 30/IV 2/V 1036).
Politically, this high level of professionalism and professional competence was
viewed with some suspicion:
He is inclined to put his professional work in the Ministry of Justice in the
forefront and, as a result, his political and social work falls behind. The result
of an overestimation of his professional legal competence is an insufficient
solidarity with the Party. He always aims to employ only academically quali-
fied lawyers in his department. (SAPMO-BArchB, DY 30/IV 2/V 1036)
This judgment openly criticizes Nathans legal professionalism, which had appar-
endy survived both the cadre system and nomenclature. Nathan—and this
makes him prototypical for us—was a decisive factor in the recruitment of
legally trained young talent not only for the Committee for Family Law but also
for many other important positions.
If one looks at the younger generation born around 1930 who were in the
Ministry of Justice and the legislative Committee for Family Law, it emerges
that the decisive people were recruited by Nathan. These were lawyers who stud-
ied at the beginning of the 1950s in the GDR, a period when the German Civil
Code (BGB) was still authoritative in the GDR, and when students were still be-
ing taught by lawyers with a clean record, such as Nathan, even though the po-
litical approach toward the universities was strengthened and early reforms had
already started in 1947 (Jessen, 1999; interview with Anita Grandke, 26 June
1997). Among them was even a female people’s judge (Volksrichterin), which
does appear to have contravened the principles of recruitment. Closer examina-
tion makes it clear, however, that her training as people’s judge was only the con-
clusion of a legal career that had begun in the Weimar Republic (BArchB, DP 1
VA 1925; BArchB, DP 1 SE 3360; interview with Linda Ansorg, 31 July 1996).
The existence of such a network, recruited for professional competence and the
72 Ute Schneider
accompanying habitus and behavior, is very interesting given the cadre system as
the basis for recruitment. Qualifications and patronage as well as political relia-
bility were obviously important criteria for recruitment to the Ministry of Jus-
tice and its different lawmaking committees. This rule applied for Schiffer as
well as for his successors and did not contravene the communist idea of cadres.
It guaranteed a professional continuity in this special field of civil service even in
the GDR. For that reason, the older generation of lawyers were not different
from their predecessors and most colleagues in the West. Also, interestingly
enough, the recruitment policy for civil servants in the Ministry of Justice in the
early GDR followed German tradition, demanding professionalism and political
reliability to the governing regime.
The lawyers, who were members of the Committee, especially those of the
older generation, were all generalists. Owing to their former jobs as solicitors,
they were well acquainted with all parts of civil law. Family law constituted only
a small section of this, but it played, and still plays, a more important role in the
solicitor’s practice than in his training. The members of the Committee, how-
ever, were sufficiently familiar with the German Civil Code (BGB) and its ra-
tionales. For that reason, nobody doubted their expertise. They also had already
proved their qualifications in other contexts before their cooption onto the
Committee.
But, the members of the Committee also knew their professional limits.
These limits existed especially in those parts of the law that came into force be-
cause of economic transformation in the GDR. One important element of this
process was the restructuring of the agricultural sector with the introduction of
collectivization and the emergence of collective farms (Landwirtschaftliche
Produktionsgenossenschaft [LPG]) (Bauerkämper, 1994). These changes not only
heavily affected economic and social structures, but also had profound legal
consequences. The competence of the Committee’s members did not really ex-
tend to these new parts of the law, which, to a certain extent, were established
parallel to, and in close connection with, the discussion of the new codification.
Therefore, changes were prescribed by individual laws (Einzelverordnungen) in
the agricultural sector until the late 1950s. The legal framework for the agricul-
tural sector was set down by law as late as 1959 and 1982, but this is outside the
period we are discussing here. (This is not the place to discuss the development
of agricultural and LPG law and the arguments it provoked. For details see
Heuer, 1995; Schönfeldt, 1997; Steding, 1995.)
With regard to family law, questions of equal rights for the female farmers,
property, and laws of inheritance proved especially challenging for the lawyers.
Often, they were at a complete loss. For example, there emerged a striking con-
tradiction between equal rights set down in the constitution and, thereby, appli-
cable to family law, and the principle of indivisibility of the properties of those
who first received title to land on the new expropriated land (Neubauern). Fam-
ily law should have standardized equal rights for women, but the principle of in-
divisibility discriminated against the collective farmer’s wife because she did not
have access to the land. The wife of a long-established farmer, by contrast, had a
claim on any marital wealth in the case of divorce. These contradictions were de-
bated from the very beginning of the family law’s codification. But, there were
no experts for land law, because both the entire land reform and its legal coun-
terpart were in the process of lawmaking. For that reason, the relevant ministries
discussed these questions at the beginning of the 1950s. They could not find a
solution, because some were afraid of interfering with the system of land reform.
Therefore, they declared themselves in favor of maintaining a legal inequality.
The Ministry of Justice, by contrast, defended the principle of equal rights
(BArchB, DP 1 VA 8038, p. 143ff.). It was not until the late 1950s that the
Committee could call in an expert on land law. Rainer Arlt (1928–1997) be-
longed to the younger generation of lawyers and had studied law in the GDR
and Soviet Union. Beginning in 1957 he taught collective farm and land law as a
professor of the German Academy for State and Law (Deutsche Akademie für
Staat und Recht [DASR]) in Potsdam (Baumgartner & Hebig, 1996). His knowl-
edge of land law and the situation in different types of collective farms finally
helped the Committee to find a solution to the problem. It prescribed joint
ownership of property between husband and wife in the Family Law (Familien-
gesetzbuch [FGB]), and awarded both the power of disposal (Familiengesetzbuch,
1965, §§39–40). However, the problem of equal rights of the new female farm-
ers was not satisfactorily solved. This became evident when the Ministry of Jus-
tice, in cooperation with Arlt and other experts, drafted an “argumentation for
the discussion of the FGB plan with members of LPGs.” These discussions were
an integral part of the process of codification, because “laws of the people”
meant not only participation of the population in the Committee, but also the
participation of a selected public through talks and discussions (Schneider,
2000). Finally, there was no choice but to deal with the problem of equal rights
for the female collective farmers. The advice was that “full equal rights were only
realizable when she became a member of an LPG herself” (Archive of the Uni-
versity of Potsdam, AS 6476; SAPMO-BArchB, DY 34, 4295).
The example of the LPGs is of importance because it marks the transition of
the civil law of the German Civil Code (BGB) to the “socialist law” of the Family
Law (FGB). This did not happen without difficulties, traces of which can be
found in examples taken from the process by which the Family Law (FGB)
emerged. That process witnessed particularly heavy conflicts along generational
lines. One of the oldest Committee members, Nathan, summed up his experi-
ences in a legally and politically important meeting in February 1960. Respond-
ing to the accusation of a younger colleague that Nathan passed on traditional,
non-socialist law, he set his argument in the context of the principle of criticism
and self-criticism. This principle was one of the most important for the political
development and function of the cadres within the leadership of Communist
parties, aiming to discipline members in a kind of ritual (Schroeder & Wilke,
1997).
A generation gap distinguishes the old cadres, the handful of elderly scholars,
those who were educated before 1945 and generally hold leading positions in
74 Ute Schneider
the university faculties and who have fallen behind. There is no doubt that
this group—for which I, as its eldest member, think I can speak—has not
kept pace. Criticism on this point is fully justified, for the facts are plain. It is
also no surprise. For the older comrades who in part, like me, became bour-
geois lawyers and then practiced for years, who studied civil law, it is particu-
larly difficult to abandon accustomed paths. It is not a case of malicious in-
tent, but simply how difficult it is, how much beyond one’s ability, to aban-
don the old. As long as it was only a matter of making our law more
democratic, as in the first eight to ten years, we stood at the forefront, partici-
pated with others and did what we could. Now, when it’s a matter of creating
socialist law, we cannot keep up. (BArchB, DY 30/IV 2/2.110/3)
Professional Standards and the Process of Scientification

Lawyers are known for their technical terminology. In contrast to other profes-
sions, they have always been criticized for their use of specific vocabulary, which
laymen are often at a loss to understand. This criticism manifested itself in the
demand for people’s justice (Volksjustiz), which meant law comprehensible to the
people and administered by judges not of the middle, but the working class.
This demand is almost as old as the legal profession itself (Luhmann, 1987;
Neumann, 1992; Weber, 1964). It was a favorite demand of socialism and so it
follows that GDR rulers repeatedly insisted on a legal system that was “close” to
the people. Comprehensible laws, they said, were characteristic of “socialist law.”
The lawyers themselves supported their demand by openly insisting on doing
away with “legal German.” This may have meant undermining their own posi-
tion and function, but many lawyers feared accusations of bourgeois formalism
due to their technical terminology. Consequently, they worked out all new co-
dices in cooperation with workers, taken from several areas of production. In ad-
dition, they took up suggestions from the public. But, it proved impossible “to
turn the law into a reader” (interview with Erich Buchholz, 17 April 1998).
Thus, linguistic simplification was restricted to modifications that did not
change the sense of legal requirements. Some legal expressions, though not un-
derstandable to the laity, would not permit changes without altering their mean-
ing. Here, in their very own domain, lawyers fended off all political attacks. At
the same time, they tried to introduce easier or more appropriate terms in all
areas they found politically relevant and/or legally less important. However, the
Committee did not unanimously agree on the use of certain ideological terms
within legal documents. One example is the preamble of the Family Law (FGB),
which was corrected after the 12th Party Conference. One member suggested
extending the first paragraph with the statement that “Family Law supports the
development of the means of production.” Heinrich Toeplitz, President of the
High Court and experienced Member of the Committee, “warned against for-
mulations which call people means of production in the law.” His opinion car-
ried a great deal of weight, and the “means of production” did not replace hu-
man beings in the Family Law (FGB) (BArchB, DP 1 VA 1925; Familien-

gesetzbuch, 1965).
This example demonstrates how technical terminology remained one dis-
tinctive characteristic of the lawyers and a characteristic of their profession-
alism, even in the GDR. Despite all political concessions, lawyers were not pre-
pared to give up practiced and established linguistic standards of their profes-
sion. They were not willing to replace them with arbitrary, unclear expressions.
With these standards in mind, they asserted themselves, though not without
difficulties, against pompous propaganda and political rulers who relied on
their legal expertise.
The GDR’s foreign and domestic policy and situation always directly influ-
enced the work of the Committee. Its several drafts are like a seismograph, show-
ing contemporary political and social tremors. The building of the Wall in 1961,
for example, enabled the enforced resumption of the Committee’s work, because
preservation of uniform German law was no longer the order of the day. But,
daily life in the GDR and the GDR’s academic disciplines highlighted the Com-
mittee’s limits more often than these big events. This applied especially to the
lack of sociology, in general, and family sociology, in particular.
This is not the place to discuss in detail the difficult relations between Marx-
ist ideology and sociology. However, one should remember that this discipline
lost its status as an independent science and, in addition, was under the verdict
of “bourgeois” in the GDR after 1948. Only the 10th Party Conference of the
Soviet Communist Party in 1956 created the conditions for the rebirth of the
discipline. But, at the beginning, it was a slow and unorganized process (Steiner,
1992).
Kurt Braunreuther (1913–1975) was one of the founding fathers of sociology
in the GDR. During the 1950s, he taught at the Department of Political Econ-
omy, part of the Faculty of Economics, at Humboldt University in Berlin. After
founding the Research Division of Sociology in the year 1961, he became Head
of the Research Group Sociology and Society (Soziologie und Gesellschaft). In ad-
dition, Braunreuther contributed to the establishment of the discipline in several
other functions (Sparschuh & Koch, 1997).
The connection between the incorporation of sociology into the academic
system of the GDR and a need for socio-political analyses is evident in the case
of the Committee for Family Law. Whereas in the 1950s the Committee always
relied on statistics drawn up by the Ministry itself, from 1962 onward members
repeatedly demanded sociological studies of the family. It was mainly the
younger generation who drew constant attention to this deficit. Their com-
plaints had a concrete cause. The Committee struck an impasse on one of the
important questions of family law. The question dealt with the problem of sepa-
ration or community of goods and property (Gütertrennung oder Gütergemein-
schaft) in marriage. The opinion of lawyers was divided on generational lines.
The older generation, such as Benjamin and Nathan, had already occupied
themselves with this question after the war. In 1948, after intensive discussions,
they declared themselves in favor of the so-called Errungenschafts- oder Zuge-
76 Ute Schneider
winngemeinschaft (separate property with equal division of property acquired

after marriage). Their debates resulted in a rejection of the originally favored sep-
aration of property (Gütertrennung). The basis of their decision was the idea that
marriage was founded on use and increase of property by husband and wife,
each enjoying equal rights to do so. Strict separation of property they con-
demned to be bourgeois, a very negative verdict, and non-socialist. Separation
should be permitted only at a wife and husband’s express wish. The first draft of
the Family Law followed the aforementioned principle. When it was discussed
publicly and nationwide in the GDR in 1954, women in particular protested
against the Errungenschaftsgemeinschaft. They noticed that in the case of a di-
vorce it did not necessarily mean material compensation for them (Archive of
the University of Potsdam, AS 6476; BArchB, DP 1 VA 1925; BArchB, DP 1
VA 7198, p. 181, p. 365; BArchB, DP 1 SE 1126).
A Marriage Law, passed in 1955 instead of the Family Law, provided no obli-
gation for either partner to provide financial support in the case of a divorce. In
reality this usually disadvantaged the wife, because she was not materially com-
pensated for the time she had spent bringing up the children. Such a legislative
decision was due to the economic situation and problems of the GDR at the end
of the 1940s and in the early 1950s. After the construction of the Wall in 1961
the economic situation improved slightly. Also, at this time, a new generation
gained more influence in all occupations, just as in the Committee for Family
Law.
These younger members opened a debate on property again and spoke vehe-
mently in favor of joined property. Their main intention was to prevent injustice
by an equal, in certain cases even unequal, distribution of the property in the
case of divorce. A dispute broke out over this question in the Committee and
elsewhere, focusing on the ideological understanding of marriage and equal
rights. The main supporter of joint property was Anita Grandke. Born in 1932,
she had studied law at Humboldt University in Berlin between 1950 and 1954.
Appointed to the Committee by Nathan’s recommendation, she was a member
from the late 1950s. Grandke defended the principle of joint property ardently
as an achievement of socialism and an expression of “socialist law.” But, she
could not convince the older members of the Committee and was, as a conse-
quence, even prevented from publishing her dissertation on that subject (Archive
of the University of Potsdam, AS 6476). Neither the following private discus-
sions, nor the calculation of conflicts about property as the result of divorce, nor
notarial contracts and the regulation of property law in other socialist lands, pro-
duced clear results. Finally, it was decided to consult empirical data concerning
the financial condition of married couples in the GDR (BArchB, DP 1 VA 8150;
interview with Karl-Heinz Eberhardt, 8 August 1997; Interview with Anita
Grandke, 26 June 1997).
On this occasion, the lack of academic sociology became obvious. Since the
discipline was incorporated in the Institute for Political Economy, empirical so-
cial science was in its infancy. There were no empirical data to enable the Minis-
try of Justice as well as the Committee to come to a decision. Again, the Com-
mittee itself was forced to carry out a survey. But, at the same time the Ministry
of Justice contacted Kurt Braunreuther. They asked him to instruct one of his
staff in the methods and results of social science research. The Ministry consid-
ered cooperation to be of mutual use and, in contrast to former times, even the
party leadership supported scientific exchange. At last, this kind of cooperation
was in perfect accordance with the official party policy of reforming the educa-
tional system and increasing scholarly activity in all fields (BArchB, DP 1 VA
6838; Meuschel, 1992; Weber, 1999). The Ministry of Justice made full use of
all these new possibilities and techniques to obtain reliable surveys. Its staff con-
ducted an opinion poll in several nationally owned companies concerning the
relations of property. The result was only surprising to the older members of the
Committee, because, with the sole exception of the farmers, the majority of par-
ticipants in this poll practiced the model of joint property. Consequently, the
idea of the younger members of the Committee finally found acceptance in the
Familiengesetzbuch. However, it also seems significant that the Committee’s con-
ception of the status quo, in property law, revealed some traditional legal ideas in
the ever-repeated demand to reflect social relations, instead of creating arbitrary
norms. In this context, the general tendencies of Verwissenschaftlichung and the
establishment of sociology forced the Committee to fall back on external experts’
reports, and to consult on important questions that had previously been handled
internally. At the same time, with its specific questions, the Committee pro-
moted the further establishment and differentiation of sociology. Furthermore,
almost every scientific statement concerning family law emphasized the necessity
of a sustained sociology of the family (Archive of the University of Potsdam, AS
6476; Benjamin, 1965). Finally, this process influenced the institutionalization
of family law itself.
Family law still today does not constitute an independent area of law at Ger-
man universities. Instead, as part of civil law, it is dealt with by experts in civil
law. At first, the GDR passed on this tradition, also. But, within the context of
the already mentioned new generation and the shift of the ideological focus to-
ward education after the 6th Party Conference in 1963, the GDR drew new at-
tention to the family as part of society. In contrast to the previous period, the
significance of the family, at least as an important institution of socialization,
was now fully recognized. Surveys proved a close connection between children’s
success at school and the background and situation of their family at home
(Archive of the University of Potsdam, AS 6476). These discoveries and the new
political situation of the GDR after the construction of the Wall, which made
German legal traditions and common features less relevant, again placed the
project of a new family law on the agenda. The reason for this is obvious: Family
law regulates not only the relations between families and the state, but also the
relations among family members. This was the important and crucial point, be-
cause it opened a possibility for the state to intervene in the family and create the
conditions for education reform as a further step toward socialism as the basis of
society. In fact, the GDR followed the already adopted course to use family law
as an instrument of the state’s social policy and requirements of social regulation.
78 Ute Schneider
Without any public notice the Committee and Ministry worked on this project
continuously from 1954. The passing of the Code of Family Law, which came
into force on 1 April 1966, was one stage on this path. Experts had, as already
mentioned, realized the necessity of a sociology of the family and constantly de-
manded its establishment. In their opinion, a sociology of the family should not
restrict itself to legal aspects, but should constitute a “complex science” of the
family and acquire its own intellectual and institutional identity in the univer-
sity. For this purpose, it was also necessary to establish family law as one inde-
pendent branch of the legal system. Its codification as a separate branch, not ac-
cording to German tradition within the civil law, had already created the basis
for such a research center. The establishment of a new Chair for Social Law of
the Family (Familiensozialrecht) at the Humboldt University in Berlin soon fol-
lowed in accordance with the intention of the state. Anita Grandke, member of
the Committee and expert on family law in the GDR, was holder of the Chair
until emeritus status was conferred on her in 1995. Her status as an Emeritus
Professor meant the end of a Chair dedicated specifically to family law, because
with German unification the former GDR returned to the traditional German
legal system and its established university structures.
Conclusion
This case study concentrated on one aspect of law and society in the GDR be-
tween 1945 and 1966, namely, the Committee on Family Law. A look at the
decisive members of this Committee demonstrated that the consistently pur-
sued, thorough-going exchange of the elites did happen in the GDR after 1945.
But, this applied only for the personnel and not for the profession. A generation
of lawyers trained in the Empire (Kaiserreich) or the Weimar Republic took over
in the Ministry of Justice and the universities. They were politically marked,
with few exceptions, by their first-hand experiences with the National Socialists.
Even cases, such as Benjamin and Nathan, the most prominent members of the
Committee, reveal that Communist lawyers did not abandon their professional
ethos with the establishment of the new regime. They held onto their profes-
sional standards, including their professional identity. Through their example
and recruitment policy, they passed it on to the younger generation.
In contrast to them, this second generation acquired its professional qualifi-
cations after the war. Even if they still were taught by the older generation, the
fundamental differences between the two groups became obvious when they
were occupied with questions of law and its codification. In addition, there were
class differences, the younger generation being steeped in socialism and Marxist
ideology. Political activities and demands were part of their life at least since their
student days. Whereas the first generation of GDR lawyers was mainly con-
cerned with the stabilization of the new regime and society after the war, the sec-
ond generation headed toward “socialist law.” The older generation had increas-
ing difficulties keeping up, and the younger generation accused them of being
“stuck on the road,” from traditional legal expertise, to socialist conceptions of

law.
This process influenced academic research not only in law, but also in other
disciplines, since even socialist lawyers sometimes needed help from other ex-
perts. The main discipline to benefit from this process was sociology, which for
ideological reasons was still in its infancy in the early 1960s. The lawyers’ de-
mand for empirical data on family life in the GDR became one important impe-
tus for development of the discipline. Finally, family law not only contributed to
the process of Verwissenschaftlichung in the GDR, but it was also subject to it. Its
differentiation from civil law resulted in the establishment of a new professional
identity: the expert in family law.
References
Archive of the University of Potsdam: AS 6476.
Bundesarchiv Berlin (BArchB): Ministerium der Justiz (DP 1): VA 1, VA 7844, VA 6592, VA
6633, VA 7198, VA 7354, VA 8002, VA 8038, VA 7842, VA 8150, VA 821, VA 8232, VA
1925, VA 6838, SE 1126, SE 3360. Ministerrat (DC 20): 7881.
Stiftung Archive der Parteien und Massenorganisationen der DDR im Bundesarchiv (SAPMO-
BArchB): Sozialistische Einheitspartei Deutschlands: DY 30/IV 2/V 1036; DY 30/IV 2/4/
134; DY 30/IV 2/4/ 92; DY 30/ IV 2/2.110/3.
Freier Deutscher Gewerkschaftsbund: DY 34, 4295.
Vereinigung der Verfolgten des Naziregimes: DY 55/v 278/3/176.
Interviews [all made by the author] with Linda Ansorg, 31 July 1996; Erich Buchholz, 17 April
1998; Karl-Heinz Eberhardt, 8 August 1997; Anita Grandke, 26 June 1997; Sabine Nathan,
27 June 1997.
Amos, H. (1996). Justizverwaltung in der SBZ/DDR. Personalpolitik 1945 bis Anfang der 50er Jahre.
Cologne, Germany: Böhlau.
Bauerkämper, A. (1994). Von der Bodenreform zur Kollektivierung. Zum Wandel der ländlichen
Gesellschaft in der Sowjetischen Besatzungszone Deutschlands und der DDR 1945–1952. In
H. Kälble, J. Kocka, & H. Zwahr (Eds.), Sozialgeschichte der DDR (pp. 119–143). Stuttgart,
Germany: Klett-Cotta.
Baumgartner, G., & Hebig, D. (Eds.). (1996). Biographisches Handbuch der SBZ/DDR 1945–
1990. Munich, Germany: Saur.
Benjamin, H. (1965). Das Grundgesetz der Familie im Sozialismus. In Kanzlei des Staatsrates der
DDR (Ed.), Ein glückliches Familienleben—Anliegen des Familiengesetzbuches der DDR (pp.
13–35). East Berlin, GDR: Staatsdruckerei.
Brentzel, M. (1997). Die Machtfrau. Hilde Benjamin 1902–1989. Berlin, Germany: Ch. Links.
Bundesministerium der Justiz (Ed.). (1994). Im Namen des Volkes? Über die Justiz im Staat der
SED. Wissenschaftlicher Begleitband. Leipzig, Germany: Forum.
Dahrendorf, R. (1965). Gesellschaft und Demokratie in Deutschland. Munich, Germany: dtv-
Taschenbuch.
Deutscher Bundestag. (1995). Materialien der Enquete Kommission “Aufarbeitung von Geschichte
und Folgen der SED-Diktatur in Deutschland” (12. Wahlperiode des Deutschen Bundestages).
Frankfurt a.M., Germany: Suhrkamp (IV, Recht, Justiz und Polizei im SED-Staat).
Douma, E. (1994). Die Entwicklung des Familiengesetzbuches der DDR 1945–1966: Frauen und
Familienpolitik im Spannungsfeld zwischen theoretischer Grundlage und realexistenter
wirtschaftlicher Situation. Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, 111, 592–620.
80 Ute Schneider
Eberhardt, K.-H. (1995). Die Bedeutung der Volksratverfassung vom 7. Oktober 1949 für die
Entwicklung des Familienrechts der DDR. In T. Ramm & A. Grandke (Eds.), Deutsche Wie-
dervereinigung (pp. 183–223). Cologne, Germany: Carl Heymanns.
Familiengesetzbuch der Deutschen Demokratischen Republik vom 20. Dezember 1965. East Berlin, GDR.
Feth, A. (1997). Hilde Benjamin—Eine Biographie. Berlin, Germany: Berlin Verlag.
Göhring, J., & Dost, A. (1995). Zivilrecht. In U.-J. Heuer (Ed.), Die Rechtsordnung der DDR (pp.
475–516). Baden-Baden, Germany: Nomos.
Grandke, A. (1995). Familienrecht. In U.-J. Heuer (Ed.), Die Rechtsordnung der DDR (pp. 173–
210). Baden-Baden, Germany: Nomos.
Heinemann, E. D. (1999). What difference does a husband make? Women and marital status in Nazi
and Postwar Germany. Berkeley, CA: University of California Press.
Heuer, K. (1995). Bodenrecht. In U.-J. Heuer (Ed.), Die Rechtsordnung der DDR (pp. 147–172).
Hoefs, B. (1999). Kaderpolitik des Ministeriums der Justiz 1945–60. In R. Schröder (Ed.), Zivil-
rechtskultur der DDR (pp. 145–178). Berlin, Germany: Duncker & Humblot.
Jarausch, K. H. (1990). The unfree professions. German lawyers, teachers and engineers 1900–1950.
Oxford, UK: Oxford University Press.
Jarausch, K. H. (1999). Care and coercion: The GDR as welfare dictatorship. In K. H. Jarausch
(Ed.), Dictatorship as experience. Towards a socio-cultural history of the GDR (pp. 47–72). New
York: Berghahn.
Jessen, R. (1999). Akademische Elite und kommunistische Diktatur. Die ostdeutsche Hoch-
schullehrerschaft in der Ulbricht Ära. Göttingen, Germany: Vandenhoeck & Ruprecht.
Luhmann, N. (1987). Rechtssoziologie. Opladen, Germany: Westdeutscher Verlag.
Meuschel, S. (1992). Legitimation und Parteiherrschaft in der DDR. Frankfurt a.M., Germany:
Suhrkamp.
Moeller, R. G. (1997). Geschützte Mütter. Frauen und Familien in der westdeutschen Nachkriegspoli-
tik. Munich, Germany: dtv.
Müller-List, G. (Reviser). (1996). Gleichberechtigung als Verfassungsauftrag. Eine Dokumentation
zur Entstehung des Gleichberechtigungsgesetzes vom 18. Juni 1957. Düsseldorf, Germany:
Droste.
Neumann, U. (1992). Juristische Fachsprache und Umgangssprache. In G. Grewendorf (Ed.),
Rechtskultur als Sprachkultur (pp. 110–121). Frankfurt a.M., Germany: Suhrkamp.
Ramm, T. (1984). Das nationalsozialistische Familien- und Jugendrecht. Heidelberg, Germany:
Decker & Müller.
Rottleuthner, H. (1988). Die gebrochene Bürgerlichkeit einer Scheinprofession. Zur Situation der
deutschen Richterschaft zu Beginn des 20. Jahrhunderts. In H. Siegrist (Ed.), Bürgerliche
Berufe (pp. 145–173). Göttingen, Germany: Vandenhoeck & Ruprecht.
Ruck, M. (1996). Korpsgeist und Staatsbewußtsein. Beamte im deutschen Südwesten 1928 bis 1972.
Munich, Germany: Oldenbourg.
Schiffer, E. (1928). Die Deutsche Justiz. Grundzüge einer durchgreifenden Reform. Berlin, Germany:
Otto Liebmann.
Schneider, U. (1999). Der deutsche Einheitsjurist in der frühen DDR. Elitenbildung beim Aufbau
des Sozialismus. Archiv für Sozialgeschichte, 39, 235–264.
Schneider, U. (2000). Das Familienrecht der DDR. In H. Timmermann (Ed.), Die DDR—Recht
und Justiz als politisches Instrument (pp. 61–80). Berlin, Germany: Duncker & Humblot.
Schönfeldt, H.-A. (1997). Zur Entwicklung von Recht und Rechtswissenschaft in der Deutschen
Demokratischen Republik. In H. Mohnhaupt & H.-A. Schönfeldt (Eds.), Normdurchsetzung
in Osteuropäischen Nachkriegsgesellschaften (1944–1989). Sowjetische Besatzungszone in Deutsch-
land—Deutsche Demokratische Republik (1945–1960) (Vol. 1, pp. 109–120). Frankfurt a.M.,
Germany: Vittorio Klostermann.
Schröder, R. (Ed.). (1999). Zivilrechtskultur der DDR. Berlin, Germany: Duncker & Humblot.
Schroeder, K., & Wilke, M. (1997). Kritik und Selbstkritik. In R. Eppelmann, H. Möller,
G. Nooke, & D. Wilms (Eds.), Lexikon des DDR-Sozialismus (Vol. 1, pp. 486–487). Pader-
born, Germany: Schöningh.
Siegrist, H. (1996). Advokat, Bürger und Staat. Sozialgeschichte der Rechtsanwälte in Deutschland
(18.–20. Jahrhundert). Frankfurt a.M., Germany: Vittorio Klostermann.
Sparschuh, V., & Koch, U. (Eds.). (1997). Sozialismus und Soziologie. Die Gründergeneration der
DDR-Soziologie. Versuch einer Konturierung. Opladen, Germany: Westdeutscher Verlag.
Steding, R. (1995). Agrarrecht. In U.-J. Heuer (Ed.), Die Rechtsordnung der DDR (pp. 75–94).
Steiner, H. (1992). Soziologie und empirische Sozialforschung in der Nachkriegsperiode Deutsch-
lands. In D. Jaufmann, E. Kistler, K. Meier, & K.-H. Strech (Eds.), Empirische Sozialforschung
im vereinten Deutschland. Bestandsaufnahme und Perspektiven (pp. 145–154). Frankfurt a.M.,
Germany: Campus.
Weber, H. (1999). Geschichte der DDR. Munich, Germany: dtv.
Weber, M. (1964). Wirtschaft und Gesellschaft. Grundriss der Verstehenden Soziologie. Cologne, Ger-
many: Kiepenheuer & Witsch.
Wentker, H. (Ed.). (1997). Volksrichter in der SBZ/DDR 1945–1952. Eine Dokumentation.
Munich, Germany: Oldenbourg.
Section 2
Who Is Called Upon as Expert?
The chapters in this second section address the question of who is considered an
expert. On that issue, Christoph Antons’ chapter leads us into the intricate
world of copyright protection of traditional artwork. In Australia the courts have
heard Aboriginees as well as anthropologists as witnesses in copyright cases con-
cerned with Aboriginal art. Should Aboriginal elders be considered expert wit-
nesses on customary law in such cases? This is a question that has posed a con-
tinuing challenge for the Australian legal system.
Experts are expected to tailor their reports to their clients’ needs. Scientifically
trained experts are not always in the best position to fulfil these expectations.
Michael Hau presents us with a surprising case in which an entire profession,
physicians during the Weimar Republic, felt the need to tailor not merely their
knowledge, but also their professional “personality” to fit the image of a more
humane expert. Challenged by the natural therapy movement, which offered an
alternative understanding of healing and the healer, leading physicians of the
time were led to defend the empathetic abilities of the outstanding physician.
Jean-Paul Brodeur’s chapter puts forth the strong and unsettling claim that
expertise that is strongly grounded in scientific knowledge is unwanted in crimi-
nal justice. Often, such strong expertise cannot be tailored to fit into standard
legal, policing, and therapeutic procedures. Instead, Brodeur describes how
much weaker forms of expertise have been established in many areas related to
the application of criminal law. He also presents us with a case in which the re-
sistance of a judiciary and legal community to adopt sentencing guidelines based
on empirical databases, presented in expert systems, led to the complete demise
of such efforts. Brodeur, a criminologist, served as the director of research for a
commission of experts advising the Canadian government on how to establish
new sentencing guidelines—a case of strong expertise that failed in particular
ways. Brodeur is in a good position to tell us why.
The final chapter in this section presents us with a case in which historical ex-
pertise has made its entrance into a research arena that is traditionally populated
by natural scientists and engineers: The control of air pollution. This is a prob-
lem with a scientific, technological, and political history, involving many histor-
ical individuals. Matthias Heymann’s chapter makes the point that the study of
this complex history contributes to the science of air pollution control.
83
Chapter 5
Folklore Protection in Australia: Who Is Expert in
Aboriginal Tradition?
Christoph Antons1
Centre for Asia Pacific Social Transformation Studies, University of Wollongong, Australia
cantons@uow.edu.au
In October 1998, an article appeared in Australia’s national daily newspaper The

Australian, entitled “German snub to Aboriginal work” (The Australian, October
9, 1998, p. 19). The article reported the disappointment and anger of a Mel-
bourne art dealer and gallery owner, who had proposed to display a collection of
Aboriginal art at the Cologne art fair and was rejected for the second time in
three years. No reason was given for the rejection this time, but, the rejection of
the first application was based on the argument that this kind of art was tribal or
primitive. Only a few decades ago, this opinion would probably have been
shared by many Australians.
This chapter deals with the role of experts in the assessment of cultural ex-
pressions of indigenous people in Australia for the purposes of copyright protec-
tion. The difficulties to gather evidence for copyright violations of Aboriginal
motifs and designs have come from the secret and sacred character of the tradi-
tional part of Aboriginal art. Not only does much of traditional art make use of
religious symbolism, but it also often establishes a connection to the ancestral
land by depicting the tracks and sites of ancestral spirits. In cases of alleged copy-
right violations involving Aboriginal art, the courts have, therefore, been forced
to rely on expert witnesses drawn from the ranks of anthropologists and from
the Aboriginal communities concerned. Since under the Australian law of evi-
dence, only experts are allowed to express opinions based on generalizations
from earlier research, Aboriginal evidence about their own customary law was
previously often excluded as mere “hearsay.” In recent years, the courts have
tried to avoid this paradoxical state of affairs by trying to match anthropological
expert evidence and the evidence of Aboriginal artists and community elders
without interpreting the rules of evidence too narrowly. A survey of these ap-
proaches will then be followed by some comparative observations drawn from
experiences in Indonesia. Before turning to the legal approaches chosen in these
1
The author is currently a Queen Elizabeth II Fellow of the Australian Research Council and
would like to acknowledge the support of the Australian Research Council for this research.
85
86 Christoph Antons
two countries and the involvement of experts, however, a brief outline of the po-
litical and social background of the discussion seems necessary.
From “terra nullius” to “Indigenous Cultural and Intellectual

Property”
Aboriginal Australians were only granted the right to vote in 1962,2 and they
were included in the census only following a referendum and an amendment to
the constitution in 1967 (Law Reform Commission, 1986, p. 22). It took until
1992, however, for Australian courts to review the so-called doctrine of terra nul-
lius (see Mabo and Others v. Queensland [No. 2], 1992, 175 CLR 1). In colonial
times, the terra nullius doctrine had provided for the complete reception of Eng-
lish law and for the disregard for Aboriginal customary law, because the land was
regarded as uninhabited (terra nullius) or at least inhabited by people without
settled laws or customs (Bourke & Cox, 1998, p. 59; Parkinson, 1994, pp. 126–
129). After a first exploration of the Eastern coast of Australia, James Cook de-
scribed the Aborigines as having “no fix’d habitation but move on from place to
place like Wild Beasts in search of food” (Castles, 1982, p. 22). Consequently,
he followed official instructions to take possession of the land as a first discovery
rather than treating it as a conquest. Henceforth, all land was vested in the Brit-
ish Crown and attempts at concluding individual treaties were declared void
(Castles, 1982, pp. 20–31).
The attitude of Australians toward Aboriginal cultural expressions slowly be-
gan to change during the 20th century, a development that has been aptly char-
acterized as having led “from the non-original to the ab-original” (Sherman,
1994). Formerly frequently classified as “ethnographic objects,” Aboriginal art
works have increasingly been recognized as fine art and as an international suc-
cess story for Australia in this category (Alberts & Anderson, 1998, pp. 254–
257; Chanock, 1996, pp. iii–iv; Davies, 1996, p. 2; Gray, 1996, p. 30). At the
same time, government policies regarding Aboriginals changed from assimila-
tionist approaches to a support of self-management and self-determination (Law
Reform Commission, 1986, pp. 18–23).
During the 1980s and 1990s, Australians also developed a new and different
understanding of Australia’s position in the world. Links to “Mother England,”
by now a member of the European Union (EU), continued to weaken and by
the early 1990s, Japan and Korea were Australia’s most important trading part-
ners. The, then, Labour government began to place the country firmly into the
context of the Asia-Pacific region. This, in turn, required the correction of Aus-
tralia’s negative image in Asia due to the former “White Australia Policy,” which
restricted immigration to people of European descent. Many Asians regard the
2
Section 3(5) Commonwealth Electoral Act (1962), see the Law Reform Commission (1986,
p. 22).
Folklore Protection in Australia: Who Is Expert in Aboriginal Tradition? 87
extent of integration of Australian Aboriginals as an indicator of Australia’s

change of attitude.
The, by now, famous Mabo decision of the Australian High Court of 1992 that
finally put an end to the terra nullius doctrine concerned the recognition of Ab-
original customary rights to land (Bourke & Cox, 1998, pp. 65–69). There is a
further field of law, however, in which a strong conflict between Aboriginal cus-
tomary law and Australian state law is perceived: the field of intellectual property
rights. Intellectual property rights are discussed in relation to two areas of tradi-
tional Aboriginal knowledge: artistic expressions and traditional medical knowl-
edge about the healing effects of plants and natural substances, which has recently
become of interest to biotechnology companies (McKeough & Stewart, 1997,
p. 10f.). Because of their traditional character and the lack of an individual creator
of the material, it is difficult to bring both areas under the umbrella of intellectual
property protection. Intellectual property rights that have been under discussion to
protect this material are further drawn from different areas of intellectual property
law, such as trade mark, design, patent, and copyright law. The debate about legal
protection, thus, involves much more than is usually connoted by folklore with its
relationship to copyright principles. It also involves knowledge about plants and
other genetic resources and their healing effects, which is turned into “industrial
property” once it is used by pharmaceutical and biotechnology companies. Aborig-
inal communities nowadays prefer, therefore, to speak of indigenous cultural and
intellectual property rights (Janke, 1997, p. 24). They claim the recognition of
these rights as a new field of intellectual property and its protection under specific
legislation (Janke, 1998). For the purposes of this chapter, I will leave aside the de-
bate about traditional knowledge and genetic resources and concentrate on indige-
nous people’s artistic expressions and the difficulties in protecting them.
Most traditional Australian artwork relates to an Aboriginal dreaming, The
dreaming can be roughly explained as both the Aboriginals’ creation myth and
their local religion. The term “dreaming” is a translation into English of one of
the expressions used by Aboriginals to refer, in their different local languages, to
a complex of mystical stories about the creative period of their ancestral beings
and the origin of the area they are inhabiting (Berndt & Berndt, 1996, p. 229f.;
Edwards, 1998, p. 79f.; Stanner, 1965, p. 214f.; Swain, 1993, pp. 20–22). It is
important to remember that the Aboriginals were originally nomadic people
who would wander around in a particular part of the Australian continent that
they regarded as their tribal area (Blainey, 1983, p. 27f.; Bourke, 1998, p. 220).
In a similar way, their mystical characters and spirits would wander around this
country and occasionally become transformed into a sacred site (e.g., a rock, a
tree; Edwards, 1998, p. 80f.) or inhabit a particular artefact (Berndt & Berndt,
1996, p. 429). Because the spirits can, therefore, inhabit an artist’s work (and in
fact a lot of artwork was originally made for that purpose), traditional Aboriginal
artists are the mediators between the human and spiritual worlds (Berndt &
Berndt, 1998, p. 24).
As such a mediator, the traditional Aboriginal artist is confined to the use of
particular symbols, colors, and designs in representing the spirits and the tribal
88 Christoph Antons
area. Moreover, in picturing the landscape, the artist is only allowed to refer to
the stretch of land inhabited by the artist’s community (Berndt & Berndt, 1996,
p. 411, p. 444; Berndt & Berndt, 1998, pp. 25–32, pp. 36–40). Particularly in
central Australia, paintings of land were often fairly accurate depictions of a par-
ticular area from a bird’s-eye perspective with rivers, waterholes, and the tracks of
the wandering spirits. If someone familiar with Aboriginal art flies over central
Australia, they will immediately see that what appears as tracks, waterholes,
trees, and shrubs in the art will look like dots from above. These depictions of
land with the symbols and colors of the artist’s tribe were then also quasi claims
of ownership of this stretch of land in the eyes of fellow Aboriginals (Alberts &
Anderson, 1998, p. 253; Berndt & Berndt, 1998, pp. 25–28; Isaacs, 1984, pp.
12–15).
How Copyright Protection of Aboriginal Art Challenges the

Australian Legal System
At the core of all copyright acts lies the principle of originality. With respect to
this principle, copyright lawyers usually distinguish between the Continental-
European understanding, which is centered on the author and requires a certain
level of originality (German courts and literature speak here of Gestaltungshöhe),
and the Anglo-American concept, which is more utilitarian and requires merely
that the work not be a mere copy and that it leads to socially useful material
(Dreier & Karnell, 1991; Ricketson, 1991). While most indigenous artwork
would actually have little difficulty fulfilling the requirements of at least the
Anglo-American concept of originality, it is often due to mass production of cer-
tain designs and motifs, for a growing market of tourists and overseas buyers,
that this material has become classified as “folklore” with insufficient originality
for copyright protection. It has been argued that many folkloristic items are too
restricted in the choice of their motifs and the materials used to show original in-
put from their makers and to qualify for copyright protection (Ellinson, 1994,
p. 332f.; Puri, 1995, p. 313f.; Wambugu Githaiga, 1998, p. 4f.; Weiner, 1987,
p. 69f.). Whereas this might be true for many of the boomerangs or didgeridoos
mass-produced for tourist shops, it should be clear from my earlier outline of
Aboriginal art that the same cannot be said for traditional Aboriginal artworks.
Of course, as mentioned above, the traditional artist would be confined by the
features of the surrounding landscape and the colors and symbols used in the
area. Apart from the motifs, the artist is additionally confined by what is avail-
able for painting and sculpting in the natural surrounding: rocks and wood for
sculptures and clay, charcoal and manganese to make paint in different tones of
red, white, yellow, and black (Berndt & Berndt, 1996, p. 409f.). However, what
Aboriginal artists create with these means and within the confinements of so-
cially acceptable motifs is, in fact, highly original. Their artistic freedom is fur-
ther accentuated through the personal alliance of the artists with particular spir-
its and their symbols (Ellinson, 1994, p. 331). To a certain degree, it is possible
to draw the analogy to an anonymous medieval European painter or sculptor
who confined himself to Christian religious motifs and symbols, but neverthe-
less, created masterpieces that show the style and approach of the same individ-
ual in different manifestations. Although copyright protects only individual ex-
pressions and not the underlying ideas, there will in most cases be sufficient indi-
vidual expression involved even in the mere reproduction of pre-existing motifs
or designs (Davies, 1996, p. 3f.; Milpurrurru & Ors v. Indofurn Pty. Ltd. & Ors,
1995, AIPC, pp. 91–116; Puri, 1995, pp. 311–314).
So, it is actually not so much the originality that is making it difficult to ap-
ply copyright principles to this material but rather the social and religious signif-
icance of Aboriginal artwork. This is in conflict with the Western understanding
of artwork as a commodity originally owned by the artist who can sell it, display
it, reproduce it, or allow others to reproduce it by granting them licenses. Where
an Aboriginal artwork uses motifs and symbols that are regarded by the artist’s
community as secret and sacred, the Aboriginal artist is, under customary law,
not in a position to deal with his work freely, and he depends on an authoriza-
tion by his community to do all those acts that would be a natural part of copy-
right in the Western sense. These conflicting approaches to the protection of ar-
tistic expressions became clearly apparent in the case of Yumbulul v. Reserve Bank
of Australia, 1991 (21 IPR 481). In this case, an unauthorized reproduction of a
totemic Morning Star Pole could not be prevented, because the court acknowl-
edged a valid licensing agreement between the individual artist and his agency
(Blakeney, 1995, p. 442).
Everything said so far applies, however, only to “traditional” Aboriginal art
with religious motifs. Of course, these traditions are not static; they have evolved
over time and adapted new materials and forms of expression (Caruana, 1993, p.
11, p. 14; Gray, 1996). What has, nevertheless, remained as an essential feature
of this art is its religious symbolism.3 But, there is also a “modern” version of Ab-
original art, meant to meet the rising demand for this kind of art in Australian
cities and overseas, to express political objectives, or both. In this category be-
longs not only artwork that avoids religious motifs and symbols,4 but also the
work of so-called “urban Aboriginals,”5 who depict contemporary Australian
landscapes and themes by using Aboriginal means of expression (Berndt &
Berndt, 1998, pp. 126–145).
3
As explained by Caruana (1993, p. 11): “The adoption of new technologies and materials
such as canvas and synthetic paints has led to the creation of new art forms which often comple-
ment, rather than replace, existing ones.” See also Alberts and Anderson (1998, p. 255).
4
Traditionally, motifs without a mythical or ritual character also existed, but were compara-
tively rare (see Berndt & Berndt, 1996, p. 413).
5
The term is used to refer to the social milieu of these Aboriginals. Aboriginals use different
terms in their local languages to refer to themselves (Caruana, 1993, p. 179). As to estimates of
the number of “traditionally oriented” Aboriginals and the difficulties with such a definition, see
Ellinson (1994, p. 328f.).
90 Christoph Antons
Although there has been intense discussion in Australia about appropriate

protection for the more traditionally orientated version of Aboriginal artwork
(and suggestions for solutions ranging from copyright principles to national her-
itage legislation to a sui generis regulation; Ellinson, 1994; Puri, 1993, 1995),
very little has been done to put the various proposals into practice and into a co-
herent piece of legislation. After decades of discussion, the Copyright Act is,
therefore, still the only legislation that Aboriginal artists can turn to for protec-
tion. A few recent cases involved the Aboriginal artists Johnny Bulun Bulun and
George Milpurrurru, whose designs and motifs were reproduced without author-
ization on T-shirts, among other things, and on towels and carpets made in Viet-
nam (John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., 1998, 1082 FCA;
Milpurrurru & Ors v. Indofurn Pty. Ltd. & Ors, 1995). Cases such as these are
usually decided in the Australian Federal Court, which has jurisdiction to hear
cases dealing with federal legislation, including intellectual property legislation.
The judge is then confronted with two issues: Firstly, to determine to what ex-
tent evidence about indigenous customs and traditions can be used within the
Australian legal system and secondly, how to establish this evidence. The latter
question obviously leads to the problem of the identification of someone with
the necessary expertise to testify in these matters.
The first question as to the position of customary law as part of the Austra-
lian legal system has been effectively answered by the above-mentioned decision
of the High Court in Mabo and Others v. Queensland (1992). While the decision
recognized that Aboriginal customary laws have survived the colonization of
Australia and may be recognized by the common law, this remains true only as
long as such a recognition does not (in the words of Justice Brennan) “fracture a
skeletal principle of our legal system” (Mabo and Others v. Queensland, 1992,
[No. 2] p. 18; see also the detailed discussion in Chesterman, 1998, pp. 76–84).
In subsequent decisions (and most recently in the case of John Bulun Bulun &
Anor v. R. & T. Textiles Pty. Ltd.), it was held that the distinction between real
property and intellectual property, and between the respective common law and
statutory institutions these property rights are based upon, is such a “skeletal
principle” of the Australian legal system (John Bulun Bulun & Anor v. R. & T.
Textiles Pty. Ltd., p. 13). Consequently, the courts rejected claims by Aboriginal
artists that the native title in land recognized in Mabo extended further to intel-
lectual property, such as copyright, because in Aboriginal customary law artistic
expressions were not separated from the right to land. The courts acknowledged
that such customary rights to the ownership of artistic works might exist, but
they refused to acknowledge that such rights could become binding upon non-
Aboriginals, because the notion of copyright for the whole of Australia would be
exclusively regulated by the Copyright Act of 1968 (John Bulun Bulun & Anor v.
R. & T. Textiles Pty. Ltd., p. 14).
In spite of this renewed rejection of the notion of a separate customary-based
indigenous copyright, the Aboriginal community was, nevertheless, able to
claim an important partial success for their customary rights in the decision of
John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., 3 September 1998. Justice
von Doussa of the Federal Court concluded in this case that the individual Ab-
original artist alone, as the author of a work of art, was entitled to hold the copy-
right to this work. In an important further finding, the judge concluded, how-
ever (p. 18f.), that this copyright was impressed with a fiduciary obligation that
the artist owed to his community to preserve the religious and ritual significance
of the work. A fiduciary relationship is a concept of the law of equity that im-
poses particular stringent duties on the so-called fiduciary to respect the interests
of another person, because they are in a position to affect the interests of that
other person in a detrimental way (Meagher, Gummow, & Lehane, 1992,
p. 130). Traditional examples of such fiduciary relationships are the relationships
between trustees and beneficiaries, solicitors and clients, directors and compa-
nies, stock brokers and clients, and between partners in a partnership (Evans,
1996, pp. 100–107; Parkinson, 1996, pp. 326–331). The Canadian courts were
the first courts in the Commonwealth to make use of this equitable concept for
indigenous affairs and they developed the notion of a fiduciary relationship be-
tween the Canadian state and its indigenous population (R. v. Sparrow, 1990, 70
DLR [4th] 385, cited in Parkinson, 1996, p. 360). Although this approach has
not yet been followed in Australia,6 the decision of the Federal Court has now
introduced the concept to regulate the relationship between indigenous people,
namely between the indigenous artists and their community.
Aboriginals as Witnesses
To decide whether such a fiduciary obligation is owed by the indigenous artist to
respect the ritual knowledge incorporated in a work, the Federal Court now also
has to decide on the religious significance of the work for a particular tribal com-
munity. However, since most of these symbols are secret and sacred, the court
has often no other choice than to rely on the expertise of community elders and
the artists themselves to explain the significance of the work. In the case of John
Bulun Bulun v. R. & T. Textiles Pty. Ltd., the main evidence came from an affida-
vit of Mr. Bulun Bulun himself and of two senior persons of his community, the
Ganalbingu people in Eastern Arnhem land in the Northern Territory. The case
concerned a painting of a waterhole that had been reproduced on textile without
authorization by the defendant. Mr. Bulun Bulun stated in his affidavit that this
waterhole was the main totemic well for his lineage of the Ganalbingu people; it
was the source from which their creator ancestor had emerged. This creator an-
cestor created not only the natural landscape of the area, but also the designs and
elements for the artwork. The artwork was, therefore, part of the Madayin (cor-
pus of ritual knowledge) that was associated with the land and an unauthorized
reproduction would mean a severe disturbance of the natural order. Mr. Bulun
Bulun further distinguished between certain usage (such as the reproduction in
6
See the critical remarks of Parkinson (1996, p. 361), as to a similar approach in the minority
opinion of J. Toohey in Mabo v. Queensland (No. 2).
92 Christoph Antons
an art book), for which he was generally authorized by his people, and other
usage (such as the one in question), for which he would have to consult widely
with the traditional owners under customary law (John Bulun Bulun & Anor v.
R. & T. Textiles Pty. Ltd., pp. 7–9).
Mr. Bulun Bulun’s evidence was confirmed by Mr. Milpurrurru, a senior
Ganalbingu and himself a well-known artist who represented the Ganalbingu
people and their claim to the artwork, and by Mr. Ashley, who was in a position
of a so-called Djungayi to Mr. Bulun Bulun. Mr. Ashley stated that his role could
be approximately described as that of a manager or a policeman. A better de-
scription would perhaps be that of a traditional custodian. Mr. Ashley himself
described his obligations as follows (p. 9):
(…) amongst a Djungayi’s responsibilities is the obligation to ensure that the
owners of certain land, and Madayin associated with that land, are dealt with
in accordance with Yolngu7 custom, law, and tradition. A Djungayi some-
times might have to issue a warning or advice to a traditional Aboriginal
owner on the way certain land, or the Madayin associated with the land, is
used. A Djungayi has an important role to play in maintaining the integrity
of the land and Madayin,
Djungayi learn the paintings of the land that they manage. They produce
paintings of the Madayin for ceremony and for sale where appropriate (…).
More senior Djungayi should be consulted about important decisions con-
cerning their “mothers” country and its Madayin. For example, during the
preparation of this case, I needed to be consulted and be present when Mr.
Bulun Bulun gave statements to our lawyer. I did most of the talking as it is
more appropriate for a Djungayi to speak openly about land and Madayin. I
also had to be consulted when Mr. Bulun Bulun wished to take our lawyer to
Djulibinyamurr.8
(…) My rights as Djungayi of Djulibinyamurr include the right to pro-
duce paintings related to that place, and the right to be consulted by Mr.
Bulun Bulun on the use of Djulibinyamurr and the Madayin related to it. I
am able to speak about the law and the custom of the Ganalbingu people, in
particular that associated with Djulibinyamurr because of my position as Mr.
Bulun Bulun’s Djungayi.
It becomes evident, from this statement, how carefully such ritual knowledge is
guarded by the traditional custodians of an Aboriginal community. In most
cases, it is, therefore, unavoidable that the most important witnesses are people
who have an important stake in the claim as a member of the community
whose customs they describe (as to a similar situation with regards to land
rights see Neate, 1989, p. 190). The knowledge of experts outside this commu-
7
Yolngu is the term that Aboriginal people of the central Arnhem land in the Northern Terri-
tory use to refer to themselves. Traditional rights to designs and ritual symbols are, here, shared by
the different clans of the area (Caruana, 1993, p. 47).
8
Djulibinyamurr is the name of the waterhole in the local language.
nity, about the ritual significance of symbols, is necessarily limited. However, a

1986 report of the Law Reform Commission on the recognition of Aboriginal
customary laws identified mainly two problem areas with regard to Aboriginal
witnesses, if the courts insist on a strict application of the common law rules of
evidence. The first problem is the “rule against hearsay,” which excludes testi-
monies that are not based on direct personal experience (Law Reform Commis-
sion, 1986, p. 475f.). However, to a certain degree, all evidence regarding cus-
tomary law, even if provided by “insiders,” will always involve generalizations
from personal observations to the more general custom and these generaliza-
tions will also be based on information received from others. In the leading case
of Milirrpum v. Nabalco Pty. Ltd. (1971, 17 FLR 141), the judge partly circum-
vented this problem by greatly extending the scope of what to regard as ques-
tions of fact. Since a person’s beliefs and perceptions, at a particular time, would
essentially be questions of fact, an Aboriginal person could, within certain lim-
its, give evidence as to the beliefs and perceptions of their community. In the
words of Justice Blackburn:
No difficulty arose in the reception of the oral testimony of the Aboriginals as
to their religious beliefs, their manner of life, their relationship to other Ab-
originals, their clan organization and so forth, provided, first, that the witness
spoke from his own recollection and experience, and secondly, that he did
not touch on the question of the clan relationship to particular land or the
rules relating thereto. No question of hearsay is at this stage involved; what is
in question is only the personal experience and the recollection of individu-
als. (Milirrpum v. Nabalco Pty. Ltd., p. 153, cited in Law Reform Commis-
sion, 1986, p. 476)
Nevertheless, the exclusion of generalizations on customary rules, in particular
circumstances in this judgment, could still preclude much Aboriginal evidence
on customary law. In this particular case, the judge was able to prevent this con-
sequence by using an exception to the rule against hearsay that allows testimonies
on declarations of deceased persons in matters of public and general rights (Law
Reform Commission, 1986, p. 476f.). More generalizations would be possible
under a further exception to the rule against hearsay (Heydon, 1996, p. 1021f.)
if the Aboriginal person could give evidence as an expert witness. This would also
allow the courts to overcome the second related problem, which is the distinction
between facts and opinion. Only expert witnesses may be called upon to express
an opinion based on generalizations from earlier research carried out by others or
by expert witnesses themselves (Heydon, 1996, p. 795). However, in Milirrpum
v. Nabalco Pty, Ltd,, the Federal Court refused to regard Aboriginal clan leaders as
experts in the customary laws of their own clan, and Justice Blackburn spoke of
“two kinds of witnesses, namely, Aboriginals (…) and expert witnesses” (cited in
Neate, 1989, p. 192). This could be based on the earlier assumption in other
cases that expert evidence relates to “an organized branch of knowledge in which
the witness is an expert” (Clark v. Ryan, 1960, 103 CLR 486, p. 50lf. and
p. 508, cited in Heydon, 1996, p. 791f.). “Organized branches of knowledge”
94 Christoph Antons
are further defined as “those, in which those who are trained or experienced share
generally accepted principles and techniques.” Apparently, in the eyes of the Fed-
eral Court in Milirrpum v. Nabalco Pty. Ltd., Aboriginal elders did not fit such a
technical and scientific definition.
The Law Reform Commission has criticized the result in Milirrpum v.
Nabalco Pty. Ltd., as odd and difficult to justify (Law Reform Commission,
1986, p. 474f.; see also the critical observations by Harris regarding the Hind-
marsh Island case, 1996). The Law Reform Commission has, therefore, sug-
gested that the rules of evidence, with regard to customary law, should be relaxed
and the hearsay rule disregarded in particular “where the person giving the evi-
dence has special knowledge of the customary laws of the community in relation
to that matter” or “would be likely to have such knowledge or experience if such
laws existed.” Federal and state legislation regarding land rights has gone a step
further. The Aboriginal Land Rights Commissioner, established by legislation
for the Northern Territory, for example, conducts an administrative inquiry and
is only bound by the rules of natural justice and not by the specific rules of evi-
dence. Consequently, Practice Direction 25 (1979) of the first Commissioner,
Justice Toohey, stated the following:
There will be no strict adherence to the ordinary rules of evidence. In partic-
ular, as a general proposition, hearsay evidence will be admitted, the weight
to be attached to it to be a matter for submission and determination. Rele-
vancy will be the controlling test for the admissibility of evidence. (cited in
Law Reform Commission, 1986, p. 465; Neate, 1989, p. 191)
Despite the generally positive experience with this informal process (Neate,
1989) and similar solutions in countries, such as Papua New Guinea, the Law
Reform Commission has so far shied away from recommending a general exclu-
sion of the rules of evidence with regard to customary law. The Law Reform
Commission concluded instead:
Excluding the law of evidence would have the disadvantage of leaving argu-
ments about admissibility unstructured, and depriving the courts of the assis-
tance which satisfactory rules might give. Only if the existing rules, however
modified to assist with proof of Aboriginal customary laws, can be shown to
be wholly unsuitable for present purposes, would their wholesale exclusion be
appropriate. (Law Reform Commission, 1986, p. 467f.)
In the intellectual property cases mentioned, judges have given considerable
weight to the evidence of the Aboriginal artists and custodians without inter-
preting the rules of evidence too strictly. In doing so, the courts often, appar-
ently, applied the approach in Milirrpum v. Nabalco Pty. Ltd. to include ques-
tions of belief and personal perception as matters of fact, or argue that the rules
can be relaxed because the issues involve questions of public policy (John Bulun
Bulun & Anor v. R. & T. Textiles Pty. Ltd., p. 11). It has also been observed
more generally, however, that the case law in this area is characterized by laxity
and non-observance of the rules (Justice Muirhead in R. v. William Davey, un-
reported, Federal Court of Australia [13 November 1980], cited in Law Re-
form Commission, 1986, p. 470; as to similar complaints by Canadian judges
see Keon-Cohen, 1993, p. 190). On a more positive note, the Law Reform
Commission regards the law of Australia as moving in the right direction. The
Commission points in particular to the decision in Napaluma v. Baker (1982,
29 SASR 192, 194), in which the qualification of an expert witness was based
on “habit and experience,” provided that the nature and depth of the experi-
ence was more thoroughly scrutinized than usual (Law Reform Commission,
1986, p. 470f., p. 474). Even further, Keon-Cohen has argued that as a result
of the Mabo decision, the distinction made in Milirrpum should no longer ap-
ply where native title is at stake and the courts should, therefore, rely on a yet-
to-develop head of admissibility of “traditional evidence” (Keon-Cohen, 1993,
pp. 192–197). However, even if such “traditional evidence” came to be ac-
cepted as a separate category, this would not solve the problem in cases where
customary rules need to be proved as a basis for rights other than native title,
such as, for example, in cases related to copyright.
Anthropologists as Expert Witnesses

In practice, the approach of the courts in land rights disputes, as in other cases,
has been to combine evidence from the Aboriginal community involved with
expert opinions. Usually, the detailed Aboriginal evidence is heard first before
an anthropologist or an expert in Aboriginal art (Davies, 1996, p. 7) puts the
issue into a more general context (Davies, 1996, p. 7; Neate, 1989, p. 192). In
Mr. Bulun Bulun’s case, two anthropology professors from James Cook Univer-
sity in North Queensland and from University College London were heard to
confirm the importance of inherited designs as part of the sacred Madayin of the
peoples of Arnhem land. Anthropologists have played a vital role in cases in-
volving proof of Aboriginal customary laws. In general, their evidence is seen as
complementing the Aboriginal testimony, and their opinion is welcomed as
providing a different angle on the problem than the lawyer’s view would allow.
Nevertheless, anthropologists are in a difficult position when asked to testify in
such cases: They have to communicate with lawyers, on the one hand, and with
the Aboriginal community, on the other. Statements by different Aboriginal
Land Commissioners under the Aboriginal Land Rights Act, 1976 (Cth)
(Northern Territory), although generally praising the anthropologists’ contribu-
tion to the fact-finding process, reveal also a certain reserve. Justice Toohey, for
example, pointed out in the Utopia Land Claim the limits of the role of anthro-
pologists in the judicial process:
The Land Rights Act is not an exercise in anthropology. Anthropologists are
the recorders of material and their capacity to collate it, aid in its presentation
to a hearing, and comment upon it has proved invaluable. The views of an-
thropologists concerning the language of the Act, especially where the statute
96 Christoph Antons
uses terms having a reasonably understood meaning in anthropology, are of

great assistance and I have relied upon them in earlier hearings. But, in the
end, what has to be done is to determine the meaning of the words used in
the Act, construe the definition accordingly, and then apply it to the material
presented (…). (Law Reform Commission, 1986, p. 466)
A few years later, Justice Maurice partly contradicted this statement by saying
that “these inquiries are very much exercises in anthropology,” but
acknowledged that this was so “despite the problems that lawyers might have in
coming to terms with the language and ideas of anthropologists” (Warumungu
Land Claim, 1 October 1985, cited in Neate, 1989, p. 239). The same judge
also expressed concern about a potential bias of anthropologists because of an
over-reliance on preferred informants and a close relationship with the re-
searched community. Neate (1989, p. 246) has added that anthropologists must
be concerned about maintaining their relationship with a community for future
research. Similar allegations of bias were made from both sides in the Hind-
marsh Island case, which according to Harris (1996, p. 123) resulted in a “rift
within the anthropological fraternity in South Australia.”
Anthropologists, on the other hand, were also often dissatisfied with their
roles. Professor Ronald Berndt, for example, warned his colleagues not to fall
“into the trap of over-simplifying data for legal consumption.” He further de-
scribed the relationship between lawyers and anthropologist expert witnesses as
follows:
As far as legal practitioners are concerned (…) “anthropological” data retain
their significance, for reasons that are obvious: Because, from the viewpoint
of legal practitioners, collecting such material is both costly and time-con-
suming and because “reliable” (valid) information depends on adequate com-
municative channels and on the establishment and maintenance of friendly
social relations. In a sense, and perhaps being deliberately a little unfair, one
could say that the legal practitioners regard anthropologists, when they do
not consider them to be obstructive, as being “raw” material; or, to put it
more kindly, as a kind of resource. To follow Levi-Strauss, legal practitioners,
in contrast, are “cooked”—they have the final say, irrespective of anthropo-
logical opinion and irrespective of Aboriginal views. (Berndt, 1981, cited in
Neate, 1989, p. 284)
This echoes similar concerns expressed earlier by Bohannan (1957, 1969) based
on his research experiences in Africa (Neate, 1989, p. 285) on the differences in
mental framework and concepts of lawyers and anthropologists, respectively.
Dogmatically, expert evidence from anthropologists encounters similar diffi-
culties with the rule against hearsay as the evidence provided by Aboriginals. Be-
cause of their status as experts, anthropologists would be able to express an opin-
ion and, therefore, have fewer difficulties in making generalizations based on
their observations. Nevertheless, by its very nature, anthropological evidence and
research contains much that is based on hearsay. Again, anthropological expert
evidence would be difficult if the rule against hearsay was strictly applied. Aus-
tralian courts have, therefore, come to distinguish between the inadmissible
mere repetition of hearsay and the admissible expression of an opinion that is
based in part on hearsay (Law Reform Commission, 1986, p. 473). This distinc-
tion was again summarized by Justice Blackburn in Milirrpum v. Nabalco Pty.
Ltd. in the following way:
I do not think it is correct to apply the hearsay rule so as to exclude evidence
from an anthropologist in the form of a proposition of anthropology—a con-
clusion which has significance in that field of discourse. It could not be con-
tended—and was not—that the anthropologists could be allowed to give evi-
dence in the form: Mr. Munggurrawuy told me that this was Gumatj land.
But, in my opinion, it is permissible for an anthropologist to give evidence in
the form: “I have studied the social organization of these Aboriginals. This
study includes observing their behavior; talking to them; reading the pub-
lished work of other experts; and, applying principles of analysis and verifica-
tion which are accepted as valid in the general field of anthropology. I express
the opinion as an expert that proposition X is true of their organization.” In
my opinion, such evidence is not rendered inadmissible by the fact that it is
based partly on statements made to the expert by the Aboriginals. (p. 151, as
cited in Law Reform Commission, 1986, p. 473)
In the remainder of this judgment, Justice Blackburn also blurred the distinction
between “fact” and “opinion”:
The expert is an expert observer, and his special skill enables him to select,
and state, the “facts” which are relevant and significant, and reject, and omit
to mention, those which are not. The process of selection involves the appli-
cation of an unexpressed opinion. Moreover, he states the “facts” in special-
ized terms which imply generalizations accepted as valid within his field of
knowledge (…). In this broad sense, everything that an expert says within his
own field of expert knowledge is a matter of opinion, including his account
of the “facts.” (p. 161, cited in Neate, 1989, p. 241)
As a consequence, the question is no longer whether the expert evidence is ad-
missible, but how much weight should be given to it. As the High Court later
pointed out, this depends on the number of statements based on hearsay and on
whether they are confirmed by other evidence:
Statements made to an expert witness are admissible if they are the founda-
tion, or part of the foundation, of the expert opinion to which he testifies,
but (…) if such statements, being hearsay, are not confirmed in evidence, the
expert testimony based on them is of little or no value. (Gordon v. R., 1982,
41 ALR 64, cited in Law Reform Commission, 1986, p. 472)
The Federal Court has, thus, recently advanced an approach to copyright claims
of Aboriginal artists that views Aboriginal artists as fiduciaries of their communi-
ties where they make use of secret and sacred symbols. If this approach is further
98 Christoph Antons
applied, expert evidence, such as this, will need to be consulted to decide

whether Aboriginal artists have acted within the limits of their authorization by
their community when producing an artwork. But, such evidence will also be-
come relevant to decide on the use of traditional Aboriginal symbols and designs
by urban Aboriginals with little relationship to their respective communities and
on the use of Aboriginal symbols by outsiders. A recent example here is the con-
troversy about a book by Martha Sykes. Dr. Sykes is a renown feminist and aca-
demic of partly Afro-American descent. Her book described her difficult child-
hood in growing up as a colored person in Northern Queensland. Shortly after
the publication of her book, Dr. Sykes was accused by members of the Aborigi-
nal community of her home town of falsely creating the impression of being of
Aboriginal descent and of having used the totemic snake symbol of that Aborigi-
nal community in an unauthorized manner.
Australia’s Approach in Comparison: Folklore Protection in

Indonesia
In crossing the Timor Sea we encounter similar problems with the cultural ex-
pressions of ethnic minorities in Indonesia, where the government has opted for
a different solution. This is not surprising in view of the fact that Indonesia, as a
civil law country, does not have available flexible equitable doctrines, such as
fiduciary relationships that are typical for common law jurisdictions as in Aus-
tralia. In addition, the British colonial tradition of absorbing different custom-
ary laws, under the umbrella of the common law, makes it easier to solve prob-
lems on the cutting edge of state and customary law than the Dutch colonial sys-
tem of a fairly strict separation of different races and their laws. The choice of
Indonesia for a comparison demands some explanation. Firstly, Indonesia and
Australia are both societies with a large number of different ethnic communities.
As in Australia, artwork of tribal communities, such as the Asmat or Dayak and
of the various people from different regions of the vast archipelago that makes
up Indonesia, are to be found in most tourist shops. Secondly, and perhaps more
importantly, the religious and social significance of the artwork of many Indone-
sian population groups is, in many ways, similar to that of the different Austra-
lian Aboriginal communities.
This similarity is no coincidence. Recent research into the precolonial con-
tacts between Asian people and Australian Aboriginals has shown that these
contacts were more extensive and better developed than previously thought.
There are, of course, those theories that assume an Aboriginal migration from
Southeast Asia to Australia in prehistoric times when the sea gap between Aus-
tralia and the Indonesian islands was not yet as wide (Berndt & Berndt, 1996,
pp. 2–4). But, there is also sufficient historical evidence for many of these con-
tacts. The mythology of Aboriginal people in the Kimberley region in north-
western Australia refers to an ancestor’s homeland that seems to be the Indone-
sian island of Timor (Swain, 1993, p. 213f.). Buginese traders from the southern
part of the island of Sulawesi have visited the north coast of Australia at least
since the early 18th century (Swain, 1993, p. 159f.), possibly even as far back as
the 15th century (Berndt & Berndt, 1996, p. 17). These contacts left their mark
in the Aboriginal languages of the area, which contain quite a few Indonesian
words, but also in the local culture (Berndt & Berndt, 1996, p. 19). As in Ab-
original Australian art, traditional Indonesian handicraft, such as the Javanese
dagger, the kris, or the gamelan, a musical instrument, often have a spiritual con-
notation. Indonesians speak of artefacts that punya isi (have a content). The con-
tent referred to is a spiritual energy that inhabits the item (Koentjaraningrat,
1985, pp. 343–345) in a similar way as in Aboriginal art.
It seems, however, that there are also many important differences in this re-
spect between much of Indonesian artwork, on the one hand, and Aboriginal
art, on the other. First of all, Koentjaraningrat has pointed out, for the example
of Javanese puppet plays, that only a decreasing percentage of Javanese look at
the symbolism of the wayang puppets as a form of religion (Koentjaraningrat,
1985, p. 286f.). Secondly, at least on the densely populated island of Java, cere-
monies seem to play a much larger role for religious symbolism than artworks or
handicrafts. The main item used for protective magic on Java is the kris, but
there are also other items, such as jewellery, amulets, and magic stones (Koentja-
raningrat, 1985, p. 415). Again, unlike traditional art in Australia, the spiritual
power of these items does not need any protection against outsiders. It is usually
activated only through a ritual and only in relationship to a particular person.
Consequently, there is no problem in producing the same items without such a
spiritual energy for the tourist market.
Apparently inspired by the Tunis Model Copyright Law for Developing
Countries, which was drafted by the World Intellectual Property Organisation
(WIPO) and UNESCO in 1976, the Indonesian government chose to protect
traditional artwork in Article 10 of the Indonesian Copyright Act of 1982. Arti-
cle 10 protects so-called “products of popular culture” and mentions as examples
stories, fairy tales, legends, chronicles, songs, handicrafts, choreographies,
dances, calligraphies, and “other works of art.” According to Article 10 (2) (b),
the state exercises the copyright with regard to these works “vis-a-vis foreign
countries.” The last part of the provision was added as a compromise solution,
because in Indonesia’s multiethnic society, a complete exercise of the copyright
by the state would be regarded by ethnic groups, in the different provinces, as an
appropriation of the copyright by the central government in Jakarta. The current
interpretation of the provision is, therefore, that the state is restricted in the exer-
cise of its rights to foreigners, whereas local communities remain entitled to use
their material (Rosidi, 1984, p. 79f.; Simorangkir, 1982, p. 136).
The provision obviously creates a range of problems, the most prominent of
which is the creation of what was called in the WIPO/UNESCO draft law a
“competent authority” to decide on the way these rights are exercised (Weiner,
1987, pp. 76–78). Article 10 (5) refers to administrative decrees that will regu-
late the details of the exercise of the copyright by the state. Perhaps not surpris-
100 Christoph Antons
ingly, these administrative decrees still need to be implemented 16 years after the
Copyright Act came into force. Without a “competent authority,” currently no
one is able to distinguish between traditional and modern art or between indi-
vidualist expressions of a particular motif and “folklore,” and there is also no
body to decide on the distribution of royalties. In the racially volatile climate in
Indonesia at the moment, the issue will also be very difficult to address. If a
“competent authority” such as a “Folklore Commission” needs to be created,
how should it be staffed? Who would be authorized to decide on the artistic
quality and use of traditional artwork stemming from the different provinces?
Every attempt at further centralization of decision-making powers in Jakarta is
currently likely to encounter resistance in the provinces. In view of these diffi-
culties, the Indonesian Folklore Protection Provisions will probably remain un-
implemented for the time being.
Conclusion
Australia and Indonesia are both countries with a multiethnic population. In
both countries, policies of the central government with regard to ethnic minori-
ties attract much attention. Due to a renewed interest in the cultural expressions
of such ethnic minorities and the technological progress that greatly facilitates
copying, the protection of such cultural expressions has become an important
issue in this context. Here, the two countries have chosen vastly different ap-
proaches. Indonesia interprets the necessity to protect folklore largely as yet an-
other variant of the North-South conflict and seeks to collect appropriate remu-
neration for Indonesian art from foreigners. Folklore and art are interpreted as
part of a national culture and the approach is a centralized one. Under the cur-
rent legislation, experts would play a crucial role in deciding potential conflicts
of interests between different Indonesian parties. However, the legislation itself
provides little guidance as to the administrative details, and the necessary imple-
menting provisions are still awaited.
In Australia, on the other hand, the courts have already debated some of
these issues at great length. While the federal court recently rejected separate in-
digenous copyright, customary law has, nevertheless, been introduced via equi-
table doctrines to define the boundaries of artistic expression when religious
symbols are used. For proof of these customary rules, the courts once again turn
to experts. “Experts” were earlier defined in a Western sense as scientific experts
and distinguished from members of the Aboriginal community. More recently,
the courts have avoided clarifying the status of Aboriginal witnesses, but have
given, in many cases, considerable weight to their evidence. However, such evi-
dence from community members needs to be complemented by expert evidence
provided by anthropologists, art historians, and the like. In the same way, expert
evidence will be of little value if it is not confirmed by the testimony of commu-
nity members. The courts look for complementary statements. Because of the
different restrictions stemming from the rules of evidence, such complementary
evidence will most often be achieved with testimony from community elders as
to details, and from expert opinion as to the general context of this evidence.
References
Alberts, F., & Anderson, C. (1998). Art: Interpreting reality. In C. Bourke, E. Bourke, &
B. Edwards (Eds.), Aboriginal Australia: An introductory reader in Aboriginal studies (2nd ed.,
pp. 245–258). St. Lucia, Australia: University of Queensland Press.
Berndt, R. M. (1981). Long view: Some personal comments on land rights. AIAS Newsletter, 16,
5–20.
Berndt, R. M., & Berndt, C. H. (1996). The world of the first Australians—Aboriginal traditional
life: Past and present. Canberra, Australia: Aboriginal Studies Press.
Berndt, R. M., & Berndt, C. H. (with Stanton, J. E.), (1998). Aboriginal Australian art. Sydney,
Australia: New Holland.
Blainey, G. (1983). Triumph of the nomads. Sydney, Australia: Sun.
Blakeney, M. (1995). Protecting expressions of Australian Aboriginal folklore under copyright law.
European Intellectual Property Review, 9, 442–445.
Bohannan, P. (1957). Justice and judgment among the Tiv of Nigeria. London, UK: Oxford Univer-
sity Press.
Bohannan, P. (1969). Ethnography and comparison in legal anthropology. In L. Nader (Ed.), Law
in culture and society (pp. 401–418). Berkeley, CA: University of California Press.
Bourke, C. (1998). Economics: Independence or welfare. In C. Bourke, E. Bourke, & B. Edwards
(Eds.), Aboriginal Australia: An introductory reader in Aboriginal studies (2nd ed., pp. 219–
244). St. Lucia, Australia: University of Queensland Press.
Bourke, C., & Cox, H. (1998). Two laws: One land. In C. Bourke, E. Bourke, & B. Edwards
(Eds.), Aboriginal Australia: An introductory reader in Aboriginal studies (2nd ed., pp. 56–76).
St. Lucia, Australia: University of Queensland Press.
Caruana, W. (1993). Aboriginal art. London, UK: Thames and Hudson.
Castles, A. (1982). An Australian legal history. Sydney, Australia: The Law Book Company.
Chanock, M. (1996). Introduction. In M. Chanock & C. Simpson (Eds.), Law and cultural heri-
tage [Special issue]. Law in Context, 14(2), I–X.
Chesterman, S. (1998). Skeletal legal principles: The concept of law in Australian land rights juris-
prudence. Journal of Legal Pluralism, 40, 61–88.
Davies, T. (1996). Aboriginal cultural property? In M. Chanock & C. Simpson (Eds.), Law and
cultural heritage [Special issue]. Law in Context, 14(2), 1–28.
Dreier, T., & Karnell, G. (1991). Originality of the copyrighted work. In Association Littéraire et
Artistique Internationale (Ed.), Congrès de la Mer Egée II (pp. 153–166). Paris: Association
Littéraire et Artistique Internationale.
Edwards, B. (1998). Living the dreaming. In C. Bourke, E. Bourke, & B. Edwards (Eds.), Aborigi-
nal Australia: An introductory reader in Aboriginal studies (2nd ed., pp. 77–99). St. Lucia, Aus-
tralia: University of Queensland Press.
Ellinson, D. A. (1994). Unauthorised reproduction of traditional Aboriginal art. UNSW Law Jour-
nal, 17(2), 327–344.
Evans, M. (1996). Outline of equity and trusts (3rd ed.). Sydney, Australia: Butterworths.
German snub to Aboriginal work. (1998, October 9). The Australian, p. 19.
Gray, S. (1996). Squatting in red dust: Non-Aboriginal law’s construction of the “traditional” Ab-
original artist. In M. Chanock & C. Simpson (Eds.), Law and cultural heritage [Special issue].
Law in Context, 14(2), 29–43.
Harris, M. (1996). The narrative of law in the Hindmarsh Island royal commission. In
M. Chanock & C. Simpson (Eds.), Law and cultural heritage [Special issue]. Law in Context,
14(2), 115–139.
Heydon, J. D. (1996). Cross on evidence (5th Australian ed.). Sydney, Australia: Butterworths.
102 Christoph Antons
Isaacs, J. (1984). Australia’s living heritage: Arts of the dreaming. Sydney, Australia: Lansdowne.
Janke, T. (1997). Our culture, our future; Proposals for the recognition and protection of indigenous
cultural and intellectual property. Sydney, Australia: Australian Institute of Aboriginal and
Torres Strait Islander Studies.
Janke, T. (1998). Our culture, our future: Report on Australian indigenous cultural and intellectual
property rights. Sydney, Australia: Michael Frankel & Company.
Keon-Cohen, B. A. (1993). Some problems of proof: The admissibility of traditional evidence. In
M. A. Stephenson & S. Ratnapala (Eds.), Mabo: A judicial revolution (pp. 185–202). St. Lucia,
Australia: University of Queensland Press.
Koentjaraningrat. (1985). Javanese culture. Singapore: Oxford University Press.
Law Reform Commission. (1986). The recognition of Aboriginal customary laws (Report No. 31,
Vol. 1). Canberra, Australia: Australian Government Publishing Service.
McKeough, J., & Stewart, A. (1997). Intellectual property in Australia (2nd ed.). Sydney, Australia:
Butterworths.
Meagher, R. P., Gummow, W. M. C., & Lehane, J. R. F. (1992). Equity: Doctrines and remedies.
Sydney, Australia: Butterworths.
Neate, G. (1989). Aboriginal land rights law in the Northern Territory (Vol. 1). Chippendale, NSW,
Australia: Alternative Publishing Co-operative Ltd.
Parkinson, P. (1994). Tradition and change in Australian law. Sydney, Australia: Law Book Com-
pany.
Parkinson, P. (Ed.). (1996). The principles of equity Sydney, Australia: LBC Information Services.
Puri, K. (1993). Copyright protection for Australian Aborigines in the light of Mabo. In M. A.
Stephenson & S. Ratnapala (Eds.), Mabo: A judicial revolution (pp. 132–164). St. Lucia, Aus-
tralia: University of Queensland Press.
Puri, K. (1995). Cultural ownership and intellectual property rights post-Mabo: Putting ideas into
action. Intellectual Property Journal, 9,293–347.
Ricketson, S. (1991). The concept of originality in Anglo-Australian law. In Association Littéraire
et Artistique Internationale (Ed.), Congrès de la Mer Egée II (pp. 183–201). Paris: Association
Littéraire et Artistique Internationale
Rosidi, A. (1984). Undang-Undang Hak Cipta 1982; Pandangan Seorang Awam. Jakarta, Indone-
sia: Penerbit Djambatan.
Sherman, B. (1994). From the non-original to the Ab-original. In B. Sherman & A. Strowel
(Eds.), Of authors and origins: Essays on copyright law (pp.11–130). Oxford, UK: Clarendon
Press.
Simorangkir, J. C. T. (1982). Undang-Undang Hak Cipta 1982 (UHC 1982). Jakarta, Indonesia:
Penerbit Djambatan.
Stanner, W. E. H. (1965). Religion, totemism and symbolism. In R. M. Berndt & C. H. Berndt
(Eds.), Aboriginal man in Australia: Essays in honour of Professor A. P. Elkin. Sydney, Australia:
Angus and Robertson.
Swain, T. (1993). A place for strangers: Towards a history of Australian Aboriginal being. Cambridge,
UK: Cambridge University Press.
Wambugu Githaiga, J. (1998). Intellectual property law and the protection of indigenous folklore
and knowledge. E Law—Murdoch University Electronic Journal of Law, 5(2) [On-line serial].
Weiner, J. G. (1987). Protection of folklore: A political and legal challenge. International Review of
Industrial Property and Copyright Law, 18(1), 56–92.
Cases Cited
Clark v. Ryan, 103 CLR 486 (1960).
Gordon v. R., 41 ALR 64 (1982).
John Bulun Bulun & Anor v. R. & T. Textiles Pty. Ltd., 1082 FCA (1998).
Mabo and Others v. Queensland (No. 2), 175 CLR 1 F.C. 92/104 (1992).
Milirrpum v. Nabalco Pty. Ltd., 17 FLR 141 (1971).

Milpurrurrn & Ors v. Indofurn Pty. Ltd. & Ors, AIPC 91-116 (1995).
Napaluma v. Baker, 29 SASR 192 (1982).
R. v. Sparrow, 70 DLR (4th) 385 (1990).
Yumbulul v. Reserve Bank of Australia, 21 IPR 481 (1991).
Chapter 6
The Humane Expert: The Crisis of Modern
Medicine During the Weimar Republic
Michael Hau
School of Historical Studies, Monash University, Melbourne, Australia
michael.hau@arts.monash.edu.au
Modern experts base their professional competence and authority on specialized,

technical knowledge acquired in the course of a long and rigid theoretical and
practical training. Specialized training and knowledge is not only a precondition
for access to modern professions, it is also crucial for the legitimization of profes-
sions in relation to a lay public that relies on their services. Personal or human
characteristics are not usually considered important aspects of modern expertise;
indeed, it seems that the very concept of modern expertise is based on the notion
of a standardization of professional services that, at least in theory, could be pro-
vided by any individual mastering the knowledge and skills required to gain ac-
cess to a profession.
This impersonal portrait of the modern expert is not generally adequate. An
instructive case in this respect is the reaction of German orthodox physicians
(Schulmediziner) to challenges that where posed to their professional authority
during the Weimar Republic. Legitimacy in the eyes of a professional peer group
and in the eyes of the lay public may differ. While access to modern professions
may, indeed, be solely based on the mastery of specialized skills and knowledge,
the legitimacy of professionals in the eyes of a lay public may also be based on
the personal characteristics and reputation of individual professionals that tran-
scend mastery of professional skills in the narrow sense.
During the Weimar years physicians saw their professional autonomy threat-
ened for several reasons. The market for medical services was saturated because
of the rising number of university-trained physicians. The number of registered
physicians in Germany grew from about 34,000 in 1913 to about 52,500 in
1932, and the rising number of medical students from the middle of the 1920s
onward reinforced physicians’ fears about an oversupply of doctors and declining
incomes (Kater, 1986, pp. 49–58; Wolff, 1997, pp. 124–130). Such a crisis was
not unique to the medical profession; other professionals, be they lawyers, teach-
ers, or engineers, also faced similar prospects that, along with the traumatic ex-
perience of inflation in 1923, contributed significantly to the gloomy mood
among the German educated middle classes (Jarausch, 1989; Weisbrod, 1996).
105
106 Michael Hau
Physicians further blamed the increasing power of the legal health insurance sys-
tem over the allocation of resources for restricting their professional autonomy
in a tight market for medical services (Hubenstorf, 1993).
In the eyes of contemporary physicians there was also a growing number of
alternative practitioners, which further exacerbated their economic condition.
This led to a lot of soul searching among members of the medical profession.
While modern medicine had increased the technical competence of physicians,
some of them conceded that modern medicine had also alienated them from
their patients. The practice of medicine, they claimed, could not be reduced to
the mastery of scientific knowledge. There was more to a physician than just
technical skills. To gain the respect and trust of their patients, modern phy-
sicians also had to have strong personal characteristics. They had to become
empathic experts and outstanding healer personalities who tried to understand
their patients as individual human beings. In making such claims Weimar physi-
cians appropriated the discourse of the natural therapy movement that had chal-
lenged the authority of the orthodox profession even before the war.
In this chapter I first outline Weimar physicians’ attitudes toward alternative
medical practitioners. Being concerned about the legitimacy and reputation of
their profession, physicians saw the propaganda by supporters of alternative
medical practices as a serious challenge. Then I address the physicians’ responses
to this situation and the call for a new form of expertise that would renew the
legitimacy of the orthodox medical profession among the lay public. The final
section presents how representatives of alternative medicine assessed the new
rhetoric of orthodox physicians professing the importance of empathy and per-
sonal understanding as integral aspects of modern medical practice.
Modern Medical Practice and the Challenge of

Alternative Medicine
In the early 1920s the physician Carl Ludwig Schleich looked back at the rapid
development of modern medicine during his long and successful career. Like
many of his colleagues in the 1920s, he was particularly concerned about the
consequences of modern medical practice being based on the laboratory and
technological innovations:
The general aesculap of the laboratory is replacing the physician like a pil-
grim moving through the country from home to home. The factory slowly
takes the place of the pharmacy and the knowledge of an Ehrlich, of a
Wassermann, might overthrow the entire jumble of personal diagnostics.
Blood tests enlighten us like x-rays; test tubes and microscopes make diag-
noses far removed from the patient. (...) Science moves in this direction with
a great momentum; Ehrlich was the army commander and Wassermann will
be the great leader of the campaign. The physician, however, who might be-
come suspicious because of the spectre of an impersonal medicine, has one
The Humane Expert 107
thing in his experienced, humane, consoling hand, which neither the labora-
tory, nor a chemical reaction, nor a theory of toxins can deprive him of: This
is the soul of the suffering. The more medicine becomes general and univer-
sal, the more the physician has to become ethical, cultivated, and high-
minded. The more science is striving toward the generalization of therapies,
monopolies, and specialization, the more [the physician] is pushed into his
quiet chamber, where confession, consolation, and mediation between souls
dispense their relief. (Schleich, 1948, p. 308f.)1
Schleich tried to reassure himself and his colleagues that modern medical tech-
nology would not alter the core of medical practice by undermining the trust be-
tween physicians and their patients. Such fears would become exacerbated dur-
ing the “crisis of medicine” in the 1920s, when both physicians and their
patients had lost confidence in the potential of modern laboratory medicine
(Bothe, 1991, pp. 16–37; Klasen, 1984). For German physicians, the “crisis of
medicine” was, in part, a crisis of legitimacy in relation to their patients and the
lay public in general. Physicians attributed this crisis to the growth of alternative
health movements, especially a proliferation of new medical sects and the success
of new miracle healers in the 1920s. Therefore, they searched for new means to
establish their cultural and scientific authority as therapeutic experts.
In lectures, articles, books, and hygienic exhibitions aimed at a popular audi-
ence, physicians conceded that the analytical and reductionist methodology of
scientific medicine had often neglected patients as human beings. Modern med-
icine had distanced physicians from their patients and, to overcome this dis-
tance, the physician had to become an empathic healer, a humane expert. In ad-
dition to medical expertise, physicians had to develop qualifications that tran-
scended their expertise as experts trained in the natural sciences. According to
propagators of the ideal of the humane expert, physicians who faced the alienat-
ing prospects of modern medicine had to become outstanding healer personali-
ties to win the trust of the lay public and their patients. Historians who have
examined the professionalization of German physicians have argued that the
expert authority of modern German physicians was based on specialized knowl-
edge that was accessible only on the basis of a long, expensive, and theoretically
based education. The theoretical knowledge of modern physicians became the
main basis of their expertise, which was independent of, and unaffected by, their
personal character or reputation (Huerkamp, 1990; Lachmund & Stollberg,
1995, p. 208f.; McClelland, 1997).
During the 1920s, however, German physicians argued that specialized train-
ing in the natural sciences was a necessary, yet insufficient basis for the therapeu-
tic practice of the modern physician. The physician, some argued, had to be
more than just a scientist or technician who serviced the bodies of his patients.
As is evident from the vocabulary used by Carl Ludwig Schleich, medical practi-
tioners also had to fulfil the role of priests who listened to the confessions of
1
All translations by M. H.
108 Michael Hau
their patients and consoled them. Other Weimar physicians argued, it was tech-
nical competence and outstanding personal characteristics that made the dif-
ference between a mediocre physician and a charismatic healer personality who
had the trust of his patients. For some of them such characteristics were in-
variably tied to gender, since they believed that only men could develop such an
outstanding personal charisma (Kretschmer, 1929b, p. 125–128; Liek, 1927,
p. 102f.).
Since the newly created image of the physician as a humane expert was in
part a re-legitimization strategy for modern scientific medicine, Weimar physi-
cians tried to change the ways in which the regular medical profession related to
alternative health movements, whose organizations had already drawn a huge
membership before World War I. By 1913, the natural therapy movement had
grown to a mass movement with a membership of almost 150,000. Supporters
of natural therapies rejected the use of “artificial” drugs and advocated, instead,
the reactivating of the self-healing powers of the human organism through a
healthy lifestyle, hydrotherapy, and sun and air bathing. They denounced the
therapies of regular medicine as schematic and demanded that physicians and
natural therapists treat their patients holistically, since every patient had a differ-
ent physical, spiritual, and mental constitution (Huerkamp, 1986; Krabbe,
1974; Regin, 1995, p. 27ff., p. 48ff., p. 102ff.; Stollberg, 1988).
In the 1920s, however, regular physicians saw their professional authority not
only threatened by the natural therapy movement but also by a revival of home-
opathy and new medical fads such as “biochemistry.” The immense popularity
of “biochemistry” was a relatively short-lived phenomenon of the 1920s. Draw-
ing on the theories of the physician Wilhelm Schüßler, “biochemists” attributed
all diseases to an unbalanced supply in the body of 11 basic nutritional mineral
salts. The flourishing of such medical fads was a symptom of the fragmentation
of the medical market of the Weimar years in which various medical sects com-
peted with natural therapy and orthodox medicine (Dörter, 1991; Jütte, 1996;
Wuttke-Groneberg, 1982). To counter such challenges university-trained physi-
cians increasingly appropriated elements of the discourse of alternative health
movements. The renowned surgeon August Bier demanded that regular medi-
cine become more open to outsider methods such as homeopathy. He argued for
a less interventionist approach in surgery and claimed that homeopathy and nat-
ural therapy were important means to reactivate the self-healing powers of the
human organism (Bier, 1926, p. 8ff., p. 30ff.).
Demands that physicians should take the spiritual-physical unity and the in-
dividual constitutions of their patients into account when making therapeutic
prescriptions also became quite frequent among prominent representatives of
the orthodox medical profession (Bier, 1926, p. 9; Grote, 1921, pp. 31–34;
Krehl, 1929, p. 33ff.). However, it remains unclear whether the rhetoric stress-
ing holistic approaches and the need to take the individuality of each patient
into consideration entailed any tangible changes in regular medical practice. It is
also not clear, one should add, what such a rhetoric entailed for the actual prac-
tices of the natural therapy movement and other brands of alternative medicine.
That there might be a discrepancy between high-sounding proclamations and

actual practices seems to be sometimes forgotten in the literature on the natural
therapy movement (Regin, 1995, pp. 447–459).
A good example of the re-legitimization strategy of the orthodox medical
profession were the activities of the physician Otto Neustätter, the Chair of the
Society for the Fight against Quackery (Deutsche Gesellschaft zur Bekämpfung des
Kurpfuschertums) from 1913 onward. Before World War I, Neustätter had been
among the most enthusiastic fighters against the propaganda and therapeutic
practices of the natural therapy movement (Neustätter, 1904; Regin, 1995,
p. 443). After the war, however, people such as Neustätter reconsidered their
confrontational strategies. They propagated “defense through education” instead
of frontal attacks by professional organizations of doctors on supporters of alter-
native medicine (Bundesarchiv Berlin [BArchB], R 1501, No. 9371, p. 20ff.).
Neustätter increasingly acknowledged the misgivings of the lay public about or-
thodox medicine and he was willing to concede to lay people, organized in natu-
ral therapy associations, having an important role in popular hygienic education,
if they did not challenge the therapeutic monopoly of orthodox physicians. He
now even considered admitting natural therapy associations to the State Com-
mittees for Hygienic People’s Education (Landesausschüsse für hygienische Volks-
belehrung) and the Reich Committee for Hygienic People’s Education (Reichs-
ausschuss für hygienische Volksbelehrung) because he believed that the integration
of these natural therapy associations would increase the credibility and legiti-
macy of the orthodox medical profession among the lay public (BArchB,
R 1501, No. 9370, pp. 253–258, pp. 313–320).
These National and State Committees were founded to aid in the restoration
of the “health of the nation” (Volksgesundheit) after the lost war. Their purpose
was to promote and coordinate hygienic education efforts by health officials,
health insurance agencies, physicians’ organizations, and welfare organizations.
Neustätter himself chaired the Saxon and the National Committee. The most
notable action of the Reichsausschuss was the Reich Health Week (Reichsgesund-
heitswoche) in 1926, at the request of the Ministry of the Interior. During this
National Hygienic Propaganda Week, lectures by physicians, hygienic exhibi-
tions, and educational movies, as well as other events with hygienic propaganda,
were organized on the local and state levels in cooperation with the State Com-
mittees for Hygienic People’s Education and municipal and county physicians
(BArchB, R 1501, No. 9374, pp. 360–380; BArchB, R 1501, No. 9411,
p. 106f.; BArchB, R 1501, No. 9412, p. 11).
Even though Neustätter and his supporters (among them Karl Alexander, who
had written one of the most aggressive attacks on the natural therapy movement
two decades earlier; Alexander, 1899) had distinguished themselves as crusaders
against natural therapists, Neustätter’s suggestion to tame the natural therapy as-
sociations by integrating them found a mixed reaction among orthodox physi-
cians. Ultimately his plans were doomed, because the German League of Physi-
cians’ Associations (Deutscher Ärztevereinsbund), the professional association of
orthodox physicians, refused to cooperate in any way with natural therapy associ-
110 Michael Hau
ations. Its representative, Herzau, successfully resisted acceptance of natural ther-

apy associations in the Reich and State Committees, because such a cooperation
would give the supporters of natural therapy added legitimacy (BArchB, R 1501,
No. 9370, p. 194, p. 202ff.; BArchB, R 1501, No. 9371, p. 26ff., pp. 64–69).
However, Neustätter’s plans were symptomatic of a trend within orthodox medi-
cine to appropriate the discourse of alternative medicine by acknowledging the
shortcomings of mechanistic approaches within orthodox medicine.
As Friedrich Martius, a leading professor for clinical medicine, explained in
1921, it was essential for the orthodox medical profession not to alienate the
moderate sectors of the natural therapy movement. Martius argued that the sci-
entific medicine of the late 19th century, with its chemical-physical materialism,
had contributed to a deep antagonism between scientific medicine and the “bio-
logical feelings” of the people. By acknowledging the fact that therapies could
not always be derived completely from chemical and physical principles, and by
emphasizing the importance of “pure experience in the biological sense,” Martius
hoped it would be possible to end the alienation between scientific medicine and
the natural therapy movement without compromising the professional authority
of physicians (BArchB, R 1501, No. 9371, p. 6).
The Humane Expert: Re-casting the Patient-Healer

Relationship
This “pure experience in the biological sense” that Martius talked about was one
of the characteristics of the humane expert, of the “physician as a human being.”
Reform-minded university-trained physicians criticized the approaches of classi-
cal modern scientific medicine as exemplified by modern laboratory medicine,
which supposedly treated human beings like machines. They argued that physi-
cians had to be more than mechanics or technicians who simply repaired the
malfunctions of the human body. The modern physician’s expertise still was to
be based on technical skills and scientific knowledge. However, personal charac-
teristics, not directly related to specialized knowledge and practical skills, were
central to a new type of physician representing an outstanding healer personality,
who could build personal and individual relationships with his patients.
Some physicians demanded holistic approaches that acknowledged the indi-
viduality of each patient as well as the physical-spiritual unity of patients. The
internist and immunologist Hans Much, for example, argued that results from
laboratory research and animal experimentation could not become the basis for
therapeutic decisions. Since every patient was different, and since every patient
had a unique individual constitution, it was necessary to tailor therapies to indi-
vidual patients (Much, 1928, pp. 22–55, 1932, pp. 92–104; Wirtz, 1991). This
was, of course, nothing new. What was new was that orthodox physicians of the
Weimar era appropriated the rhetoric of the natural therapy movement, whose
representatives had maintained, for a long time, that university-trained physi-
cians treated their patients schematically and did not take their individuality
into account. Much claimed further that a great physician needed outstanding
personal characteristics in addition to his technical expertise. Such a physician
had to grasp intuitively the entire personality of a sick individual in their healthy
state. According to Much, this was only possible as a great synthesis that at-
tempted to comprehend the totality of the constitutional habitus (Gesamthabi-
tus) of a patient. Such a synthesis was only possible for the endowed and gifted
“artist physician” (Much, 1928, p. 50).
Because Weimar physicians argued that it was the humanity of the physician
that made him a superior healer, they maintained that it was necessary to ground
medicine not exclusively on the methodology of the natural sciences. Instead,
medicine as a natural science had to be supplemented with the methodology of
the humanities. To be sure, a thorough training in the methodologies of the nat-
ural sciences was considered a crucial foundation for the expertise of the modern
physician. But, intuition and empathy were important for physicians also. Med-
icine was perceived as an art, and the intuitive gaze of the physician had to syn-
thesize countless symptoms and characteristics of individual patients to capture
the constitutional essence and individuality of every single patient. Such invoca-
tions of the intuitive gaze of the physician, implying an analogy between medi-
cine and art, became one of the hallmarks of the constitutional medicine of the
period, even though their validity was not uncontested within the profession
(Hau, 2000; Kretschmer, 1929a, pp. 2–7; Mathes, 1924–1929, pp. 8–12;
Trienes, 1989; Vacha, 1985).
Orthodox physicians claimed unique intuitive abilities that made it possible
for them to develop a natural empathy for the sick and their surroundings. In do-
ing so, they responded to the concerns of their patients, who feared becoming
passive objects of scientific experts who did not take them seriously as full human
beings. The physician Erwin Liek (Kater, 1990), who published several bestsell-
ers on the crisis of the medical profession, argued that it was necessary for physi-
cians of the future to grasp the sick individual in their entirety and establish a re-
lationship of trust between themselves and their patients. Therefore, a physician
could not be a remote scientist in a university laboratory. According to Liek, the
physician, as a humane healer, had to understand intuitively the entire human
being. However, the relationship between physician and patients was not to be a
symmetrical one. Liek argued that confidence in the physician had to be based
on faith and trust in the physician’s expertise, because it was expertise shrouded
in secrecy and mystery that instilled trust in the art of the practitioner (Liek,
1930, pp. 189–205). Liek’s advice tried to reestablish the trust in the competence
of orthodox medicine. But, the renewed legitimacy of the medical profession was
no longer to be based exclusively on specialized expertise in the methodology of
the natural sciences. Instead, it had to be supplemented by the personal authority
of the physician and a humanistic methodology that was based on empathy
(Liek, 1929, pp. 177–179).
These attempts by physicians to find a new basis for the legitimacy of mod-
ern medicine become especially obvious when we look at those occasions when
112 Michael Hau
physicians addressed a popular audience. In 1926 the famous surgeon and med-
ical professor Ferdinand Sauerbruch had the opportunity to speak to a large lay
audience during the GeSoLei in Düsseldorf, the largest hygienic fair in Germany
in the inter-war years with more than 7 million visitors. The acronym GeSoLei
stood for Gesundheit (health), Sozialfürsorge (welfare), and Leibesübungen (physi-
cal exercise) and the goal of this exhibition, as of the other great hygienic exhibi-
tions of the period, was to educate the general public on issues of personal and
social hygiene (Weindling, 1989, p. 413ff.). Like Liek, Ferdinand Sauerbruch
tried to show sympathy for the apprehensions of patients, who were alienated
from modern medicine. Sauerbruch distinguished between the “art of healing”
and mere natural science, and he maintained that each time the natural sciences
had reached a high point, medicine as a healing art had suffered. He argued that
there was no such thing as medical science; there was only a medical art and the
physician’s intuition was the most important instrument of this art.
Physicians such as Sauerbruch lamented that modern physicians were incapa-
ble of giving thorough clinical examinations, but instead wasted their time with
so-called scientific examinations. Medicine, Sauerbruch claimed, was a “highly
personal art” and exceptional healers would base their art on their subjective feel-
ings and personal experience. Because of their humanity, the physicians were su-
perior to modern technology. The physicians’ empathy made them the “greatest
and most accurate physical apparatus that existed”; therefore, intuition, as an
improved human instinct, was decisive for the task of the physician, who had to
grasp life in a subjective manner (BArchB, R 86, No. 885).
For Erwin Liek, the model of such an outstanding healer personality was
Otto von Bismarck’s personal physician Ernst Schweninger, who had treated the
obese and neurasthenic German Chancellor with natural therapies (Radkau,
1998, p. 60ff.). Because of his criticisms of modern scientific medicine,
Schweninger had already been a model physician for the natural therapy move-
ment during the Empire. Liek, on the other hand, was impressed by the charis-
matic Schweninger, who achieved what no one else had achieved before: to make
the Iron Chancellor submit to his authority. He quoted Bismarck as saying: “I
was the one who treated my previous physicians (there were about a hundred of
them, among them the best names); he (Schweninger) is the first one who treats
me” (Liek, 1933, p. 128).
Sauerbruch and Liek were not the only physicians who stressed the empathic
abilities of outstanding physicians. Karl Jaspers, a former psychiatrist who taught
philosophy and psychology in Heidelberg, did the same in his work on General
psychopathology (Ash, 1995, p. 289). While many contemporary physicians
might have genuinely believed in the need to supplement technical expertise
with empathy, such claims also tried to establish an alternative source of author-
ity for modern physicians. The expertise of the physician was not to be based
solely on the machine, in this case the laboratory and technology. Instead, expe-
riential immediacy, empathy, and the human touch were supposed to “build a
bridge from soul to soul” (Liek, 1930, p. 192) between a physician and his
patients, who resented becoming passive objects of soulless scientific experts.
The emphasis on the humanity of the physicians, as opposed to the physician

as a technician, is also evident in the great hygiene exhibitions in Dresden in
1930 and 1931, which were organized by the German Hygiene Museum in
Dresden. The core of these exhibitions was the exhibition “Man” (Der Mensch).
The goal was to educate the general public on the basic functions of the human
body and the principles of modern medicine. Martin Vogel and Roderich von
Engelhardt, who edited and wrote parts of the reader for the exhibition, argued
that it was necessary for medical practitioners to understand humans in their
constitutional and physical individuality through the intuitive gaze of the physi-
cian (Vogel, 1930, p. IVf.). They expressed, here, a variation on a contemporary
popular discourse marked by a preference for intuition and experiential immedi-
acy over experiment and alienating fragmentation (Ash, 1991).
Vogel and von Engelhardt rejected the mechanical world view that saw dis-
ease as a phenomenon of functional disturbances of specific organs and of patho-
logical changes in specific tissues. Their argument was reminiscent of Johann
Wolfgang von Goethe’s criticism of Newton as the representative of a mechanis-
tic world view in his Theory of colors. Medicine was, in their view, more than a
natural science, belonging to the humanities, and as a justification of this posi-
tion, they pointed to some of the epistemological principles developed by
Goethe (Höpfner, 1990). Physicians, von Engelhardt argued, could only under-
stand natural phenomena from “inside” (Vogel, 1930, p. 2f.). In other words,
the humanity of the physician as part of the living world was the key to their un-
derstanding of other living organisms.
Physicians, the exhibition reader claimed, had to be empathic, they had to
intuitively grasp the orderly and purposeful organization of an organism in its
meaning (Sinnzusammenhang). This was not something that could be done with
a dissecting knife or a microscope. Classical mechanistic natural science was re-
garded necessary, but to fall short of revealing the most important aspects of
truth. In examining the physiology or the anatomy of parts of the human body,
one had to understand the body as a whole and see individual organs in their de-
pendency on the whole (Vogel, 1930, pp. 3–7, pp. 256–259). This was not the
epistemological principle of exact science, but rather an artistic, intuitive ap-
proach to understanding nature that was based on the assumption of the episte-
mological superiority of cultivation (Bildung) as a privileged means to unlock the
secrets of nature through intuition.
The disillusionment of Weimar physicians with the principles of classical,
mechanistic science and medicine is striking. This disillusionment can not exclu-
sively be attributed to the desire of physicians to gain ground on the medical
market by appropriating the holistic rhetoric of the natural therapy movement.
The rhetoric concerning the humane physician, who took his patients seriously
in their individuality, was not always a cynical professional strategy. Some of
their self-doubts on the diagnostic and therapeutic possibilities of a medical sci-
ence, based exclusively on the natural sciences, were genuine.
But, many Weimar physicians attributed the popularity of alternative health
movements to popular unease about a modern medicine that seemed to rely
114 Michael Hau
Figure 1. The physician of the future supervising heart beat, blood pressure,
breathing, and body temperature of the patients at a distance.
increasingly on technology and the laboratory. They were very worried about the
public image of modern medicine, which seemed to increase the emotional dis-
tance between physicians and their patients. In the popular press this emotional
distance was sometimes represented as geographical distance. An illustrated arti-
cle in the Berliner Illustrierte Zeitung on the future of modern medicine is a case
in point. This article claimed that modern technology would make it possible for
the physician to supervise the health of his patients even if the patients were on a
different continent, because diagnostic signs, such as heart rate or blood pres-
sure, would be electronically transmitted to the physician in his office. There
they would be monitored by machines, and based on the results, the physician
would then give his therapeutic prescriptions (Kahn, 1925). According to such
visions of modernity, the physician was a technician, a servant of the medical
technology of the future (see Figure 1).
It would, however, be a mistake not to acknowledge the ambiguity of such

utopian visions. In the 1920s such visions of technological feasibility also carried
considerable promise for contemporaries. Especially after the immediate post-
war crisis and the hyper inflation of 1923, there was growing optimism among
the public that Germany had finally overcome the adversity of the war years, and
that science and modern technology held the promise of the reconstruction of
the shattered nation. The GeSoLei as the great hygiene exhibition of the 1920s
was conceived in such a technocratic vein also. According to its organizers, the
GeSoLei was supposed to demonstrate ways in which the health of the nation
and its productivity could be raised through the improvement of the health of
individuals. In this respect, the GeSoLei reflected the concern with economic ef-
ficiency, rationalization, and Frederick W. Taylor’s ideas of scientific manage-
ment in public debates about the German economy, an aspect of the so-called
Americanism of the Weimar years, which sought technocratic solutions for social
as well as for economic problems.
During the stabilization years of the Weimar period, popular imagination was
captivated by the utopian promises heralded by the achievements of American
civilization, and it is in this context that visions of physicians as servants of medi-
cal technology have to be understood (Nolan, 1994; Peukert, 1993, pp. 178–
184). However, contemporaries perceived rationalization and mechanization
somewhat ambiguously: It was a promise of progress as well as alienation. Such
ambivalent attitudes toward technology were, for example, reflected in the dis-
cussions of contemporary engineers who felt the need to stress the spiritual as-
pects of technology to counter charges that modern technology would lead to an
alienating, soulless world (Hård, 1998, pp. 40–45). The journalist Adolf Halfeld
condemned the dehumanizing aspects of what he denounced as Americanism.
He saw a “future society where card files, measurements, soul analyses, and brain
tests take over the role of fate for the standardized individual without rights
imprisoning them in this or that chamber of the immense social machinery”
(Halfeld, 1928, p. 155).
Liek was not surprisingly among those who rejected Utopian visions of modern,
technological medicine also, because they estranged patients from their healers:
The future physician of the magazines? The man in the big machine house,
who makes a diagnosis without seeing his patients—the wired results suffice,
who treats the patient without seeing him? No, our ideal physician looks dif-
ferent: The physician must be a man who combines knowledge with kind-
ness, and will with understanding patience. (Liek, 1931, p. 30)
According to Liek, the ideal physician not only had to be a scholar, technician,
physicist, and chemist, but he also had to be a philosopher, priest, and connois-
seur of human nature. Appropriating the rhetoric of natural therapists, Liek ad-
vocated a gende reactivating of the natural healing powers of the organism. The
ideal physician was, in his view, not only well trained in the sciences and the
newest medical technology, but he also had to be an educator and a leader of
broken and tired souls (Liek, 1931, p. 30).
116 Michael Hau
The empathic physician had to learn how to bridge the distance between
patient and healer by establishing a personal rapport without compromising the
physicians authority and expertise. Indeed, in the view of some Weimar physi-
cians, it was the emotional distance that undercut the expert authority of the
physician and such authority could only be restored if the physician became a
humane expert, and an empathic healer.
The Berlin physician Alfred Goldscheider demanded, in the most prestigious
German medical journal, the Deutsche Medizinische Wochenschrift, that physi-
cians had to take the subjective experience of their suffering patients into ac-
count instead of dismissing these subjective experiences as irrelevant. He main-
tained that there was a gap between science and the subjective experience of ill-
ness and that this experiential gap was exploited by “quacks” who, in contrast to
orthodox physicians, tried to relate to the personal experience of the sick. For
the sick, according to Goldscheider, their immediate experience and perception
of their illness was the disease. Patients would, thus, form an “auto-plastic image
of the disease” (autoplastisches Krankheitsbild), as Goldscheider called it, which
was partially based on the patient’s subjective experience of pain, nausea, emo-
tions, weakness, listlessness (Unlustgefühle), and so on. In addition, ideas that
the patient had about their own illness, along with what they read or heard from
other people, or from physicians or “quacks,” would shape that patient’s subjec-
tive perception of his illnesses.
The auto-plastic image of the disease was full of errors and had nothing to do
with objective reality. For Goldscheider, the logical inconsistency of these percep-
tions was sometimes truly amazing. Nevertheless, they had to be taken seriously
by physicians because the auto-plastic experience was easily influenced and ma-
nipulated by alternative practitioners who could only relate to the subjective ex-
perience of the patient. Medical sectarians would celebrate their greatest triumphs
by treating the whole complex of the subjective image of the disease (Krankheits-
vorstellungskomplex) without treating the underlying reality of the disease. This
was dangerous for patients because, very often, opportunities of timely treatment
were missed. For this state of affairs, scientific medicine had to take blame as well,
because the auto-plastic image of the disease was not taken into account in the
training of physicians, and it was left to the talent and skillfulness of individual
practitioners to develop the empathic qualities that enabled the physician to relate
to his patients (Goldscheider, 1927, p. 289ff.). Medical historians have repeatedly
drawn attention to the diverging discourses of scientific medicine and the lay
public. They have usually seen the development of these separate discourses as a
source of the expert authority of the modern physician, especially since medical
technology (the stethoscope, the laboratory, x-rays) opened up a new discursive
field for orthodox practitioners. This gave physicians privileged access to hidden
diagnostic signs that made it more difficult for lay people to challenge the inter-
pretations of physicians at the bedside (Lachmund, 1997, p. 235ff., pp. 247–260;
Lachmund & Stollberg, 1995, p. 208f., pp. 217–223; Reiser, 1977).
In the view of Weimar physicians, however, the divergence of lay and profes-
sional discourses created a distance between patients and doctors that undercut
public trust in scientific medicine. Therefore, it was wrong, in Goldscheider’s

view, to rely exclusively on modern technology, on the laboratory, and on x-rays.
These could not replace a thorough personal examination of patients, let alone
replace the comforting encouragement of patients through the physician (Gold-
scheider, 1927, p. 331). According to Liek, the physician had to be the friend
and counselor of the patient (Liek, 1932, p. 112), and this companionship be-
came the basis for a renewed trust of patients in their physicians. In this respect,
a thorough examination of the patient and verbal encouragement took on some
ritualistic significance. It was not so much important what the physician said, or
whether a thorough examination was necessary from a strict medical point of
view. The fact that the physician took their time, listened, and showed no haste
in the examination and treatment of their patients, was to convey a sense of care
and empathy. In Goldscheider’s and Liek’s view, patients desired nothing more
than paternalistic guidance.
In contrast to physicians participating in hygiene exhibitions, Liek and Gold-
scheider were skeptical about the benefits of popular hygienic education. They
thought it would encourage “a dangerous half-knowledge” (gefährliches Halb-
wissen) that might pose a challenge to the authority of physicians apart from en-
couraging hypochondriacs. The more mysterious the work of the physician, the
greater their authority, as long as they could convey their empathy. In Gold-
scheider’s and Liek’s view, it was necessary that the distance between physicians
and the lay public, and their diverging languages and interpretations of diseases,
remained intact as the source of the expert authority of the physician, but it
would be supplemented by the humane qualities of the physician as the source
of empathy (Goldscheider, 1927, p. 332f., p. 377; Liek, 1932, p. 124ff., 1933,
p. 174).
Liek went even further. In his view, the physician had to become a priest with
a magical aura. Since suggestion played an important part in the healing process,
the physician would compromise his efficiency if he shared his secrets with his
patients. This was something that orthodox physicians could learn from alterna-
tive practitioners, who gained the trust of their patients by shrouding their ex-
pertise in mystery (Liek, 1930, p. 202). For Liek, the efficiency of the physician
lay in his charisma sustained by the mythical belief of his patients in a physicians
privileged access to knowledge. Popular hygienic education tended to undercut
such naive, yet wholesome, beliefs in the physician’s power and infallibility and
deprived the practicing physician of his efficiency.
The Alternative Response

The question remains whether the lay public was impressed by the new rhetoric
of representatives of the orthodox medical profession and its emphasis on the
outstanding, empathic healer personality: The humane expert, who treated his
patients by taking their individuality into account and who did not simply treat
diseases, but human beings as a whole. The reaction to Sauerbruch’s presentation
118 Michael Hau
at the GeSoLei, which I cited above, gives us some answers. The observer of the
Reich Health Office at the GeSoLei, who had followed Sauerbruch’s presenta-
tion, reported to his superiors somewhat laconically: “It is self-evident that the
presentation which culminated in the beautiful words ‘Being a physician means
being a servant to man’ (Arzt sein ist Dienst am Menschen) triggered tremendous
applause” (BArchB, R 86, No. 885).
Among supporters of alternative health movements, the promised reorienta-
tion of modern scientific medicine was also received quite positively. An author
in the leading homeopathic journal, the Leipziger Populäre Zeitschrift für Homö-
opathie, lauded Liek’s criticism of the practices of the orthodox medical profes-
sion (Schmid, 1989, p. 116). In the case of the natural therapy movement the
positive reception was mixed with apprehensions. Leaders of the natural therapy
movement welcomed the new reform mindedness and the humanization of the
traditional medical profession. Physicians such as Bier, Liek, Sauerbruch, and
Much were cited as examples of an encouraging new trend within scientific med-
icine, especially since these physicians tried to integrate natural therapies into
their therapeutic arsenal (Kapferer, 1927; Mummert, 1927). But, at the same
time, supporters of natural therapy were worried that the rhetoric concerning a
reformed medicine would undercut the support of the natural therapy move-
ment among the lay public. In the Naturarzt, the official organ of the national
League of Natural Living and Therapy Associations (Deutscher Bund der Vereine
für naturgemäße Lebens- und Heilweise), Paul Schirrmacher hoped that the new
emphasis in popular hygienic education within scientific medicine was not de-
signed to “take the wind out of the sails of the natural therapy movement”
(Schirrmacher, 1926, p. 89).
Throughout the 1920s, there were also voices among the natural therapy
movement that expressed fears that natural therapy would lose its distinctiveness
on the medical market, especially since orthodox physicians increasingly inte-
grated natural therapies into their own therapeutic arsenal. The naturopathic
physician Erwin Silber claimed, in 1929, that the adoption of natural therapies
by the orthodox medical profession was a superficial concession by the medical
establishment to mislead the public. Orthodox medicine tried to misrepresent
natural therapy as an achievement of the orthodox medical profession and never
mentioned the important contributions that the alternative health movement
had made to the development of such therapies. In reality, Silber claimed, ortho-
dox medical practice had changed very little. There was still an overwhelming
emphasis on drugs and operations and the natural therapy movement had still
an important mission in fighting the materialistic-mechanistic spirit of modern
medicine (Silber, 1929).
Defenders of natural therapy, thus, clearly saw the danger inherent in the
holistic discourse within scientific medicine. Natural therapy was in danger of
losing its distinctiveness on the medical market of the Weimar era because or-
thodox medicine tried to absorb some of the contemporary discontent with the
technological and mechanistic aspects of a “scientized” medicine. As early as
1921, the 12th Federal Assembly of the German League of Natural Living and
Therapy Associations, therefore, adopted a resolution that tried to alert the pub-
lic to the fundamental differences between therapy as propagated by natural
therapists and natural therapies offered by orthodox medicine. According to this
resolution, the latter was a compromise doctrine diluting the great heritage of
the natural therapy movement with orthodox therapies and the dispensing of
drugs. Furthermore, orthodox physicians were inexperienced in activating the
natural healing powers of the organism, the claimed forte of the experienced
naturopathic (implying empathic) physicians (Anonymous, 1921).
The humane expert, the outstanding healer, who took the individuality of his
patients into account, had been among the long-standing demands of German
health reform movements. This is evident not only in the holistic rhetoric of
supporters of natural therapy, but also in their propagandistic denunciations of
human experimentation within scientific medicine. However, when orthodox
physicians made such demands they were considered suspect, attempting to give
a discredited medical science a new legitimacy.
Conclusion
During the Weimar Republic orthodox physicians tried to develop discursive
strategies to address the crisis of legitimacy of modern scientific medicine. The
long university training of physicians in the sciences, as well as contemporary
technological visions of modern medical practices, provided important symbolic
resources for physicians who wanted to convince the lay public of their compe-
tence as modern experts. However, such modern images of medical practice were
a double-edged sword, because they also implied an emotional distancing be-
tween practitioners and patients, which neither patients nor physicians found
appealing. From the point of view of some contemporary physicians, the solu-
tion to this dilemma was a new form of expertise that combined the impersonal
authority of the modern expert with the personal authority of the outstanding
healer personality. This was an attempt to construct a new form of expertise in
order to cope with the contradictions of modern society: On the one hand,
images of scientific and technical competence create utopian hopes of technolog-
ical feasibility, on the other hand, these same images provoke fears of an alienat-
ing, impersonal society.
Acknowledgment
Thanks to Jens Lachmund for his critical comments and suggestions.
120 Michael Hau
References
Bundesarchiv Berlin (BArchB)
R 86, No. 885; R 1501, No. 9370, No. 9371, No. 9374, No.9411, No. 9412.
Alexander, C. (1899). Wahre und falsche Heilkunde. Ein Wort der Aufklärung über den Wert der wis-
senschaftlichen Medizin gegenüber der Gemeingefährlichkeit der Kurpfuscherei. Berlin: Reimer.
Anonymous. (1921). Zwölfte Bundesversammlung des Deutschen Bundes. Naturarzt, 49, 105–
109.
Ash, M. G. (1995). Gestalt psychology in German culture, 1890–1967. Holism and the quest for ob-
jectivity. Cambridge, UK: Cambridge University Press.
Ash, M. G. (1991). Gestalt psychology in Weimar culture. History of the Human Sciences, 4, 395–
415.
Bier, A. (1926). Wie sollen wir uns zur Homöopathie stellen? (10th ed.). Munich, Germany:
Lehmann.
Bothe, D. (1991). Neue Deutsche Heilkunde 1933–1945. Husum, Germany: Matthiesen (Abhand-
lungen zur Geschichte der Medizin und der Naturwissenschaften, No, 62).
Dörter, M. (1991). Die Naturheilbewegung in Deutschland zur Zeit der Weimarer Republik. Unpub-
lished doctoral dissertation, Leipzig, Germany.
Goldscheider, A. (1927). Das Wesen des Kurpfuschettums und der ärzlichen Wissenschaft. Deut-
sche Medizinische Wochenschrift, 53, 289f., 331ff., and 376f.
Grote, L. R. (1921). Grundlagen ärztlicher Betrachtung. Einführung in begriffliche und konstitutions-
pathologische Fragen der Klinik für Studierende und Ärzte. Berlin: Springer.
Halfeld, A. (1928), Amerika und der Amerikanismus. Kritische Betrachtungen eines Deutschen und
Europäers (2nd ed.). Jena, Germany: Eugen Diederichs.
Hård, M. (1998). German regulation: The integration of modern technology into national cul-
ture. In M. Hård (Ed.), The intellectual appropriation of technology: Discourses on modernity,
1900–1939 (pp. 33–67). Cambridge, MA: MIT Press.
Hau, M. (2000). The holistic gaze in German medicine, 1890–1930. Bulletin of the History of
Medicine, 74, 495–524.
Höpfner, F. (1990). Wissenschaft wider die Zeit. Goethes Farbenlehre aus rezeptionsgeschichtlicher
Sicht. Heidelberg, Germany: Winter.
Hubenstorf, M. (1993). Von der “freien Arztwahl” zur Reichsärzteordnung. Ärztliche Standespoli-
tik zwischen Liberalismus und Nationalsozialismus. In J. Bleker & N. Jachertz (Eds.), Medizin
im “Dritten Reich”(2nd ed., pp. 43–53). Cologne, Germany: Dt. Ärzte-Verlag.
Huerkamp, C. (1986). Medizinische Lebensreform im späten 19. Jahrhundert. Die
Naturheilkunde als Protest gegen die naturwissenschaftliche Universitätsmedizin. Vierteljah–
resschrift für Sozial-und Wirtschaftsgeschichte, 73, 158–182.
Huerkamp, C. (1990). The making of the modern medical profession, 1800–1914: Prussian doc-
tors in the nineteenth century. In G. Cocks & K. Jarausch (Eds.), German professions, 1800–
1950 (pp. 66–84). New York: Oxford University Press.
Jarausch, K. H. (1989). Die Krise des deutschen Bildungsbürgertums im ersten Drittel des
zwanzigsten Jahrhunderts. In J. Kocka (Ed.), Bildungsbürgertum im 19. Jahrhundert: Teil IV.
Politischer Einfluß und gesellschaftliche Formation (pp. 180–205). Stuttgart, Germany: Klett-
Cotta.
Jütte, R. (1996). Geschichte der alternativen Medizin. Von der Volksmedizin zu den unkonventio-
nellen Therapien von heute. Munich, Germany: C. H. Becks.
Kahn, F. (1925). Der Arzt det Zukunft. Berliner Illustrierte Zeitung, 35, 733–736.
Kapferer, Dr. med. (1927). Eine Wandlung in der Medizin. Naturarzt, 55, 164–165.
Kater, M. (1986). Physicians in crisis at the end of the Weimar Republic. In P. Stachura (Ed.), Un-
employment and the great depression in Weimar Germany (pp. 49–77). London: St. Martin’s
Press.
Kater, M. (1990). Die Medizin im nationalsozialistischen Deutschland und Erwin Liek. Geschichte
und Gesellschaft, 16, 440–463.
Klasen, E.-M. (1984). Die Diskussion über eine Krise der Medizin in Deutschland zwischen 1925
und 1935. Unpublished doctoral dissertation, Mainz, Germany.
Krabbe, W. R. (1974). Gesellschaftsveränderung durch Lebensreform. Strukturmerkmale einer sozial-
reformerischen Bewegung im Deutschland der Industrialisierungsperiode. Göttingen, Germany:
Vandenhoek & Ruprecht.
Krehl, L. von. (1929). Krankheitsform und Persönlichkeit. Leipzig, Germany: Thieme.
Kretschmer, E. (1929a). Körperbau und Charakter. Untersuchungen zum Konstitutionsproblem und
zur Lehre von den Temperamenten (7th and 8th ed.). Berlin: Julius Springer.
Kretschmer, E. (1929b). Geniale Menschen. Berlin: Julius Springer.
Lachmund, J. (1997). Der abgehorchte Körper. Zur historischen Soziologie der medizinischen Untersu-
chung. Opladen, Germany: Westdeutscher Verlag.
Lachmund, J., & Stollberg, G. (1995). Patientenwelten. Krankheit und Medizin vom späten 18. bis
zum frühen 20. Jahrhundert. Opladen, Germany: Westdeutscher Verlag.
Liek, E. (1927). Der Arzt und seine Sendung (2nd ed.). Munich, Germany: Lehmann.
Liek, E. (1929). Irrwege der Chirurgie. Munich, Germany: Lehmann.
Liek, E. (1930). Das Wunder in der Heilkunde. Munich, Germany: Lehmann.
Liek, E. (1931). Die zukünftige Entwicklung der Heilkunde. Stuttgart, Germany: Fr. Frommanns.
Liek, E. (1932). Krebsverbreitung, Krebsbekämpfung, Krebsverhütung. Munich, Germany: Lehmann.
Liek, E. (1933). Die Welt des Arztes. Aus 30 Jahren Praxis. Dresden, Germany: Reissner.
Mathes, P. (1924–1929). Die Konstitutionstypen des Weibes, insbesondere der intersexuelle
Typus. In J. Halban & L. Seitz (Eds.), Biologie und Pathologie des Weibes. Ein Handbuch der
Frauenheilkunde und Geburtshilfe (Vol. III, pp. 1–122). Berlin: Urban & Schwarzenberg.
McClelland, C. E. (1997). Modern German doctors. A failure of professionalization? In M. Berg
& G. Cocks (Eds.), Medicine and modernity. Public health and medical care in Nineteenth- and
Twentieth-Century Germany (chap. 4). Cambridge, UK: Cambridge University Press.
Much, H. (1928). Das Wesen der Heilkunst. Grundlagen einer Philosophie der Medizin. Darmstadt,
Germany: Reichl.
Much, H. (1932). Arzt und Mensch. Das Lebensbuch eines Forschers und Helfers. Dresden, Ger-
many: Reissner.
Mummert, O. (1927). Naturheilkunde oder Medizin. Naturarzt, 55, p. 134.
Neustätter, O. (1904). Die sogenannte Naturheilkunde. In W. Back (Ed.), Das Kurpfuschertum
und seine Bekämpfung (pp. 45–90). Straßburg: Back.
Nolan, M. (1994). Visions of modernity. American business and the modernization of Germany. New
York: Oxford University Press.
Peukert, D. (1993). The Weimar Republic. The crisis of classical modernity. New York: Hill &
Wang.
Radkau, J. (1998). Das Zeitalter der Nervosität. Deutschland zwischen Bismarck und Hitler. Munich,
Germany: Carl Hanser.
Regin, C. (1995). Selbsthilfe und Gesundheitspolitik. Die Naturheilbewegung im Kaiserreich, 1889
bis 1914. Stuttgart, Germany: Franz Steiner.
Reiser, S. (1977). Medicine and the reign of technology. Cambridge, UK: Cambridge University
Press.
Schirrmacher, P (1926). Reichsgesundheitswoche. Naturarzt, 54, p. 89.
Schleich, C. L. (1948). Besonnte Vergangenheit. Lebenserinnerungen 1859–1919. Stuttgart, Ger-
many: Rowohlt.
Schmid, W. (1989). Die Bedeutung Erwin Liek’s für das Selbstverständnis der Medizin in der Weimarer
Republik und Nationalsozialismus. Unpublished doctoral dissertation, Friedrich Alexander Uni-
versity, Erlangen-Nuremberg, Germany.
Silber, E. (1929). Wie weit ist der Naturheilgedanke in die medizinische Klinik eingedrungen?
Naturarzt, 57, 341–245.
Stollberg, G. (1988). Die Naturheilvereine im deutschen Kaiserreich. Archiv für Sozialgeschichte,
28, 287–305.
Trienes, R, (1989). Type concept revisited. A survey of German idealistic morphology in the first
half of the twentieth century. History and Philosophy of the Life Sciences, 11, 23–42.
122 Michael Hau
Vacha, J. (1985). German constitutional doctrine in the 1920s and 1930s and pitfalls of the con-
temporary conception of normality in biology and medicine. Journal of Medicine and Philoso-
phy, 10, 339–367.
Vogel, M. (Ed.). (1930). Der Mensch. Vom Werden und Wesen des menschlichen Organismus. Leipzig,
Germany: Barth.
Weindling, P. (1989). Health, race and German politics between national unification and Nazism,
1870–1945. Cambridge, UK: Cambridge University Press.
Weisbrod, B. (1996). The crisis of bourgeois society in interwar Germany. In R. Bessel (Ed.),
Fascist Italy and Nazi Germany. Comparisons and contrasts (pp. 23–39). Cambridge, UK: Cam-
bridge University Press.
Wirtz, R. (1991). Leben und Werk des Hamburger Arztes, Forschers und Schriftstellers Hans Much
unter besonderer Berücksichtigung seiner medizintheoretischen Schriften. Unpublished doctoral
dissertation, Aachen, Germany.
Wolff, E. (1997). Mehr als nur materielle Interessen: Die organisierte Ärzteschaft im Ersten Welt-
krieg und in der Weimarer Republik In R. Jütte (Ed.), Geschichte der deutschen Ärzteschaft. Or-
ganisierte Berufs- und Gesundheitspolitik im 19. und 20. Jahrhundert (pp. 97–142). Cologne,
Germany: Dt. Ärzte-Verlag.
Wuttke-Groneberg, W. (1982). “Kraft im Schlagen—Kraft im Ertragen!” Medizinische Reformbe-
wegung und Krise der Schulmedizin in der Weimarer Republik. In H. Cancik (Ed.), Religions-
una Geistesgeschichte der Weimarer Republik (pp. 289–300). Düsseldorf, Germany: Patmos.
Chapter 7
Expertise Not Wanted:
The Case of the Criminal Law
Jean-Paul Brodeur
International Center for Comparative Criminology, Université de Montréal (Québec), Canada
brodeuj@cicc.umontreal.ca
My examination of the research literature on expertise in its relation with law

has led me to believe that the development of an integrated and comprehensive
theory of expertise in law is problematic. Expert risk assessment in toxic tort, or
in damage to the environment cases, may be a process so different from the pre-
diction of behavior in criminal cases that the search for common features may
be a relatively fruitless endeavor. This is not to say that no common features ap-
ply to all expertise. With the exception of lawyers writing on expert testimony,
most of the research undertaken on expertise and the criminal law is done by
outsiders, that is, by persons who are not themselves involved in transactions
between science and the criminal law. This external standpoint is particularly
striking in respect to public commissions appointed by governments to study
problems or events that have shocked public opinion, and to develop policies to
remedy these problematic situations. Excepting the work of Sherman (1978)
and of Johnson (1985) in the USA and my own work in Canada (Brodeur,
1984), most of these commissions have been scrutinized from the outside.1
In my years of practice both as a teacher and a consultant in criminology, I
was fortunate enough to get an inside view on what was occurring in different
fields where scientific expertise meets the criminal law in Canada (i.e., I was a
member in various capacities of more than 16 Commissions of Inquiry and pol-
icymaking bodies). Instead of presenting abstract proposals on expertise in crim-
inal law, I intend to draw on my previous experience and research to develop the
main lessons that I have learned, and to indicate what are the trends that I have
identified in the relationship between expertise and the criminal law.
This chapter focuses almost exclusively on scientific expertise in relation to
the criminal law. This presentation is divided into five parts. First, I will discuss
1
Lawrence Sherman has studied the Knapp Commission on police corruption in New York.
Loch Johnson was part of the staff of the US Senate Church Committee which studied the covert
operations of the CIA. Brodeur (1984) is a study of the working of several commissions that inves-
tigated police corruption in Québec.
123
124 Jean-Paul Brodeur
the work of professionals who are not individually sought as expert consultants;
they apply their professional expertise on a routine basis in various fields. Sec-
ond, I will present the results of Ph.D. research undertaken under my super-
vision on expert witnesses in Canada. Third, I will give the results of an evalua-
tion, that I performed, of a project that tried to introduce the use of expert sys-
tems and computerized sentencing data banks in the courtroom. In the fourth
part of this chapter, I shall discuss the role of such bodies as public inquiries
and study commissions in the formation and reform of criminal law. This dis-
cussion will finally be followed by an assessment of the work of these public
commissions.
The common thread that runs through the five parts of my chapter is the fol-
lowing: I shall argue that when expertise plays an actual role in criminal justice,
it is in its less knowledgeable and weakest sense; when expertise is strongly
grounded in scientific knowledge, it is then either viewed with great circumspec-
tion or altogether rejected from the criminal law.
Experts: In the Weak and in the Strong Sense

Before scanning these different domains of expertise within the criminal law, I
shall discuss two preliminary topics. The first, is the general meaning of the
word “expert”; the second, is its significance in the field of criminal law. In dis-
cussing the general meaning of expertise, my aim is not to provide a definition,
but to draw a distinction between the weak sense and the strong sense of exper-
tise. Etymologically speaking the word “expert” comes from the Latin expertus,
which means “he who has been proven” (to be able at something). Hence, one
needs a recognized qualification to be acknowledged as an expert. This qualifica-
tion can be conceived in general, or in specific terms. What most generally qual-
ifies someone as an expert is the possession of scientific knowledge on a particular
subject. In William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., its land-
mark judgment on the admissibility of expert evidence in court, the US
Supreme Court exclusively stressed this criterion, at the expense of “technical or
other specialized knowledge” to which Rule 702 of the Federal Rules of Evidence
also applies.2 This general qualification is necessary for a person to be acknowl-
2
In this crucial judgment, the US Supreme Court has developed a set of criteria that qualify a
particular form of knowledge as scientific. These criteria draw heavily on the work of the philoso-
phers of science Karl Popper and Carl Hempel. They are: (1) testability or falsifiability; (2) subjec-
tion to peer review; (3) the known or potential rate of error; (4) the general acceptance of a theory in
the scientific community. Chief Justice Rehnquist and Justice Stevens dissented from the majority
ruling, Justice Rehnquist stressing that the ruling did not address the issues raised by forms of
knowledge other than scientific (technical and other specialized knowledge). The ruling actually
raises many difficulties, particularly in view of the application of its first criterion of scientificity—
testability. This criterion may direly constrain the admissibility of psychiatric testimony. See William
Daubert et al. v. Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786 (1993). This judgment is repro-
duced in Appendix B of Foster and Huber (1997). For a comment, see Saltzburg (1993).
Expertise Not Wanted: The Case of the Criminal Law 125
edged as an expert, but it may not be sufficient. In addition to the possession of

scientific knowledge, one may also need a specific qualification to be an ac-
knowledged authority in a scientific field. With respect to this additional criteria,
expertise is embedded within a hierarchical structure. The ranking of an expert
by the courts may not coincide with the ranking of this person in the scientific
community. As Jasanoff perceptively noted: “in the commodity market of exper-
tise, persuasiveness, more than raw scientific credentials, determines a witness’s
worth” (Jasanoff, 1995, p. 49). Many scientists are, thus, reluctant to participate
in adversarial proceedings, where an expert is recruited by one of the parties and
is expected to testify convincingly on its behalf. Whatever may be the source of
this ranking, it cannot be denied that a person is truly qualified as an expert by
the weight of authority that is carried by their word. Hence, I propose to distin-
guish between experts in the weak and in the strong sense of the word. In the
weak sense, experts are professionals with a higher education in a scientific dis-
cipline and appreciable experience, who perform their speciality within a field of
occupation. In the strong sense, experts are qualified scientists whose voices carry
a measure of authority in a given field of knowledge. This distinction may not be
equally relevant in all fields of expertise, although, as I shall immediately show, it
must be made in order to account for the disparity of expertise in the field of
criminal justice. This distinction is also useful in drawing attention to the fact
that expertise is rather more of a relation than of a thing. In other words, one is
acknowledged as an expert according to one’s position in the hierarchy of com-
petitors, rather than according to one’s worth. The amount of qualification
needed to move up in a hierarchy varies greatly from one field to the other; it is
directly proportional to the availability of scientific knowledge in a given
domain. Where there is a wealth of knowledge, one must be uniquely qualified
to be acknowledged as an expert. In young fields of knowledge, such as criminol-
ogy, one needs little qualification to percolate to the top.
Experts in Criminal Law

I will now briefly address the meaning of expertise in criminal law. What I just
stated about criminology, which is one of the social sciences, may not apply to
the field of criminal law. There are fields that are germane to scientific expertise
and some that are less so. For instance, the domains over which roam the two
US agencies studied by Jasanoff (1990)—the Environmental Protection Agency
(EPA) and the Food and Drug Administration (FDA)—are dependent upon sci-
entific expertise in a very crucial sense: Ecology and food and drug testing are to
a significant extent constructions of science (see also the natural science exam-
ples discussed by Salter & Slaco, 1982). Scientific expertise cannot, then, be per-
ceived as an intrusion by the EPA or the FDA, as they depend upon it, although
it may be viewed, thus, by food or drug manufacturers or by logging companies.
The situation is markedly different in criminal law, where the field is already oc-
cupied—and has been for time immemorial—by persons who have good reason
to perceive themselves as experts. Judges, lawyers, and legal scholars have a justi-
fied claim to legal expertise, although they may not be called scientists. Conse-
quently, what happens in a criminal law forum is a meeting of different kinds of
expertise. Such a meeting may proceed smoothly; it may also develop into a con-
frontation. Conflicts can easily arise because criminal law expertise and scientific
expertise belong to two different traditions. Particularly in common law coun-
tries, where the mere codification of the legal rules is viewed with suspicion,
criminal law tradition focuses on the individual case, and the discussion of legal
precedents often takes the form of a tedious casuistry hostile to statistical reason-
ing. In contrast, not only does science aim to be a set of valid and consistent gen-
eralizations, but scientific experts often take a holistic approach to problem solv-
ing, which does not play well with legal experts whose approach is incremental.3
Fields of Weak Expertise

The title of this section refers to the distinction, made above, between experts in
the weak sense and in the strong sense. The activities that I shall now discuss are
pursued by experts in the weak sense. These fields of weak expertise are many
and I will discuss only the most important of them. For lack of space, I will not
discuss the role of the natural sciences in the production of criminal law evi-
dence (e.g., ballistics, DNA fingerprinting, etc.). Despite the prestige of the nat-
ural sciences, this kind of evidence is far from being unassailable.
Policing
What is characteristic of the police is that its repeated claims to expertise are not
met in the reality of their daily operations. These claims are not only made by
the police. One of Canada’s foremost scholars in police sociology has recently
developed a new paradigm of policing, where police are defined as “knowledge
workers,” who broker their expertise in risk assessment to a variety of institu-
tions (e.g., insurance companies; see Ericson & Hagerty, 1997; Stehr, 1994;
Stehr & Ericson, 1992). This paradigm may point the way toward the future.
However, it is in dire contrast with the present reality of policing. Police profes-
sional culture confuses knowledge with intelligence collected through covert
sources; when this misunderstanding is dispelled, the police become reluctant to
3
Experts tend to be intolerant of anyone else’s technical jargon. In his dissident opinion in
William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., Chief Justice Rehnquist wrote in exem-
plary judicial fashion: “I defer to no one in my confidence in Federal Judges; but I am at a loss to
know what is meant when it is stated that the scientific status of a theory depends on its ‘falsifiabil-
ity,’ and I suspect some of them will be, too.” (Foster & Huber, 1997, p. 289, Appendix B) Con-
versely, scientific experts may be at a loss to fathom what is meant by legalese jargon, some of
which is even still in Latin. Bridging the islands on which these contentious experts live is always
precarious.
seek expertise for its scientific sake. Knowledge work and expertise imply a cer-
tain amount of paperwork, which police are already overburdened with. With
the exception of elite forces, such as the Federal Bureau of Investigation (FBI) or
the Bundeskriminalamt (BKA), police education is generally much beneath the
college level, although it is now increasingly demanded that police investigators
should at least obtain university degree.4 Police training is traditional and mili-
taristic and it fails to impart the skills necessary for policing the information age,
particularly with respect to communication skills. Although police have invested
vast sums of money in buying information technology, Peter Manning has
shown that they were either not proficient in the use of such technology, or used
it to further the own organizational ends, rather than external service goals, such
as the provision of more security to citizens (Manning, 1988, p. 241f., 1992,
pp. 388–391). The situation is much the same in relation to the hyped field of
criminal profiling, where police do not yet have the training to take advantage of
the expert systems provided to them (Jackson & Bekerian, 1997). Other areas
where policing expertise is wanted are crime prevention, economic crime, trans-
national organized crime, and crowd control, to say nothing about “policing the
Internet.” What is sure, however, is that the police will have to obtain the neces-
sary expertise to meet its future challenges, or they will be superseded by the pri-
vate security sector.
The Prediction of Deviant Behavior

I previously stated that the issue of scientific expertise, in relation to the crimi-
nal law, was not as thoroughly researched as other topics. There is one exception
to this assertion; it is the issue of the prediction of behavior, which is the subject
of an abundant research literature. This issue divides into two basic questions,
which are the prediction of the future behavior of accused and convicted offend-
ers and the prediction of the decisions of criminal justice functionaries. Although
there is a growing body of research on the second question, which has gained in
prominence because of the great administrative stress under which criminal jus-
tice personnel are now operating, it is the first question that has been the focus
of most of the research and that I shall address. Because of its scope, the research
literature on the prediction of deviant behavior cannot be summarized and I
shall limit myself to a few key points immediately related to the question of
expertise.
4
This conclusion was also reached by a senatorial study in the Land of Hamburg, Germany
(See Bericht des Senats über Absichten und Umsetzungen der Empfehlungen des Parlamentarischen Un-
tersuchungsausschusses “Hamburger Polizei,” Hamburg, Mitteilung des Senats an die Bürgerschaft,
Drucksache 15/75/14, 03.06.97).
Prediction in Theory
As it was stressed in Gottfredson and Gottfredson (1980), the entire operation
of the criminal justice rests on predictions of behavior. The main points where
choices are made on the basis of predictions are the decision to put an offender
in preventive custody while awaiting their trial, the sentencing decision, and the
decision to release a prison inmate on parole. All these decisions bear on the
question of whether or not to incarcerate an offender. In one of the last compre-
hensive reviews of the accuracy of the prediction of behavior, Gottfredson con-
cluded that the present ability to predict the behavior of offenders, or the deci-
sions of criminal justice professionals, was modest and that predictions of deci-
sions were more accurate than predictions of behavior (Gottfredson, 1987; more
generally see the papers in Gottfredson & Tonry, 1987). This increasing modesty
is indicated by the shift from selective to categorical incapacitation. In their in-
fluential report, Greenwood and Abrahamse (1982) believed that they had
found a way to identify potential recidivists and advocated their incapacitation
through longer sentences of custody. This belief that high-risk offenders could
be identified on an individual basis was short lived, and prediction was geared to
the identification of categories or classes of offenders who presented a higher risk
of recidivism (e.g., offenders convicted of robbery present a higher risk than of-
fenders convicted of manslaughter; von Hirsch, 1985; von Hirsch & Gott-
fredson, 1984). Thus, was prediction coupled with classification? This coupling
can be seen as a progressive or as a regressive development. An offender’s classifi-
cation for risk may be interpreted nondeterministically as one factor to be con-
sidered among others in the deliberation of their fate, this factor being consid-
ered in conjunction with others to produce the final disposition. For instance,
Leblanc (1983) showed that the single most important determinant for the reha-
bilitation of young offenders was their involvement in a stable emotional rela-
tionship with a partner, after being released. The network of outside support, for
an offender, could then offset or mitigate their classification in a category of
high-risk offenders. On the other hand, categorical incapacitation can have di-
sastrous effects, if it is viewed as deterministically as was selective incapacitation.
In this latter case, instead of automatically incapacitating individuals selected as
bad risks, whole categories of offenders might be seen as requiring longer periods
of incarceration for the protection of society.
There is, in Canada, a persistent tradition of predictive research, which at-
tempts to “revalidate” prediction instruments developed in the early 1970s
(Bonta, Harman, Hann, & Cormier, 1996; Gendreau, Little, & Goggin, 1996).
These instruments fare reasonably well on their prediction of general recidivism,
establishing at least a positive correlation between a high score on the predictive
instrument and any kind of reoffense; they are weaker on their prediction of vio-
lent reoffense in the broad sense (e.g., robbery, where the degree of violence used
is the object of a discretionary definition); they generate a high percentage of
“false positives” (people who do not validate the prediction) when violent reof-
fense is narrowly defined. Crucially, these predictive instruments are scales com-
posed of static items (e.g., the age of admission into a custodial facility), which
provide no guidance on how to supervise an offender, once they have been re-
leased (Hanson & Harris, 1998).
Despite these reservations about the ability to predict offender behavior, the
criminal justice system’s craving for predictions of offender behavior remains as
strong as ever. In the USA, mercenary psychiatrists testify on whether an of-
fender is redeemable or not in cases involving capital punishment.5 The Ameri-
can Psychiatrist Association (APA) submitted a brief in this regard to the US
Supreme Court. It stated that “the APA’s best estimate is that two out of three
predictions of long-term future violence made by psychiatrists are wrong.”6 Nev-
ertheless, the US Supreme Court ruled twice that such psychiatric testimony on
whether a person was, or was not an unredeemable sociopath, was legally admis-
sible as evidence.
There is also a new trend in behavior prediction that is turning into a grow-
ing industry. It is now believed that potential violent and/or repeat offenders
can be identified at a very young age—during the preschool years—and that the
earlier we intervene to modify the behavior of these “high-risk children” the
more chances we have of being successful (Tremblay & Craig, 1995, p. 167
[age: prebirth to 17 years], p. 184 [age: 3–5], p. 215 [age: prenatal/early infancy
project], p. 224 [in conclusion: “From a policy perspective, it does appear that
money invested in early (e.g. preschool) prevention efforts with at-risk families
will give greater pay-off than money invested in later (e.g. adolescence) preven-
tion efforts with the same at-risk families.”]).
This situation is a paradigm case of the imbalance between actual knowledge
and the “will to know”—or, to paraphrase Nietzsche, der Wille zum Wissen—
which has been expounded by Michel Foucault (1975, 1976). The criminal law
only has regard for “proof beyond reasonable doubt” and despite the limitations
of knowledge, it has no use for the suspension of belief that characterizes the sci-
entific attitude. Its perspective is akin to the decisionism developed by Carl
Schmitt (1990, 1993) in political theory.
Prediction in Practice
In North America, the bulk of offender behavior prediction is performed by
nonexperts who rely on their intuition and experience and by experts in the
weak sense of the word. Among nonexperts—except with regard to their experi-
ence—are judges, who monopolize the decision to release an offender on bail, or
to put them in preventive custody. The decision to grant parole to an offender is
also taken, to a great extent, by persons who possess no scientific expertise (few
experts sit on parole boards, where one finds a number of political appointees,
5
In the USA, at least 30 persons were executed on the basis of a diagnosis of “irredeemable so-
ciopathy” by a psychiatrist named Grigson, who was known by defense lawyers as the prosecutor’s
hit man or the killer psychiatrist (Robitscher, 1980, p. 199f.), quoted in Poirier (1998, p. 366).
6
Quoted in Barefoot v. Estelle, 463 US 880, 103 S. Ct. 3383 (1983), at 3408. Also see Estelle v.
Smith, 451 US 454, 101 S. Ct. 1866 (1981). These references are given in Poirier (1998, p. 365,
fn. 269 and 270).
ex-police persons and members of the public). When experts intervene, they rely
on outdated predictive instruments, which have not been revalidated for periods
exceeding ten years (Bonta et al., 1996).
The experts are mainly drawn from the ranks of probation officers. Probation
officers are professionals who supervise offenders enjoying the various forms of
conditional freedom (bail, probation, suspended custodial sentences, parole) and
who have the responsibility to write pre-sentence reports for the sentencing
judge. In many US jurisdictions, such reports are mandatory for sentencing of-
fenders convicted of a serious criminal charge. In Canada, they are presented at
the request of the sentencing judge. The expertise of probation officers varies
greatly from one jurisdiction to another. In many cases, their greatest claim to
expertise lies in their experience with offenders; in the best of cases, they have an
undergraduate university degree in criminology, psychology, or a related field.
Although probation officers have a general claim to qualify as experts through
their scientific education and professional experience, they conduct risk assess-
ments of offenders on a routine basis and, with few exceptions, they are not sin-
gled out as individuals whose opinions are uniquely authoritative. Pre-sentence
reports show considerable variation in their quality, and probation officers enjoy
a fair deal of latitude in the choice of their predictive methods, as they are gener-
ally not constrained by scientific standards of procedure. On the few occasions
when the opinion of probation officers is challenged in open court, they testify
as experts in the weak sense of the word in contrast to their challengers, who are
recruited on the basis of their individual reputations (this does not imply, how-
ever, that their opinion will not prevail with the court).
Double Jeopardy
Predictions of offender behavior may be scientifically unbiased in their content,
but their legal use is heavily tilted against the reintegration of the offender into
society. For example, it is generally recognized that the majority of murderers
present a low risk of reoffense. However, since criminal justice jointly follows
utilitarian and retributivist goals, what the offender may gain under a utilitarian
predictive rationale, they will lose under the orientation of the criminal law to-
ward retribution. This implies that instead of releasing a murderer with a very
low-risk assessment, the criminal law will feel obligated to incarcerate this person
for an extended period of time for the purposes of punishment (in countries
where capital punishment is still applied, this person may be executed). In other
words, the expert’s assessment has a much higher probability of being followed if
it identifies the offender as a bad risk rather than a good one (in this latter case,
other reasons can be found to justify long-term incarceration). This repressive
bias in the use that is made of their expertise deters many experts from being in-
volved with the criminal law.
Therapy
I cannot leave the subject of weak expertise without mentioning the fact that
the criminal law—particularly its correctional arm—has traditionally provided
a harbor for therapeutic practices that pretended to be supported by expertise,
but that were both inefficient and abusive of human rights (Brodeur, 1994). To-
day, there is one correctional institute in Québec, l’Institut Pinel, that claims to
have discovered a new method for treating sex offenders. This therapy is admin-
istered by experts calling themselves “phallometricians” and is predicated on the
common-sense belief that sex offenders lack self-control. The treatment pro-
ceeds in this way. The subject of the therapy is seated in a chair surrounded by
several monitors and his penis and other parts of his body are fixed with electri-
cal sensors. The subject is then shown sexually arousing pictures and various
measurements are made with respect to his erection (speed of arousal, duration,
flow of blood, etc.). The subject must learn to look at these pictures and main-
tain minimum arousal, thus, showing progress in self-control. Although this
form of therapy would seem to both laypersons and specialists as a cut from the
movie “A Clockwork Orange,” sex offenders are regularly sent to this institute
for treatment and the phallometricians publish their findings in scholarly jour-
nals. A feature on this treatment was shown on national television in Canada
and did not generate any significant feelings of disapproval. It may well be that
phallometrics rest, in part, on valid scientific assumptions. However, we only
have to refer to Freeman’s ice-pick lobotomies (Smith & Kiloh, 1974) to be re-
minded that there have been gross abuses of human rights perpetrated in pris-
ons and mental institutions under the guise of therapy. Hence, we should be ex-
tremely cautious when we tread within these confines.
To sum up, in policing, there is a gap between the expertise and technology
presently available and the practical competence and willingness needed to apply
them. In corrections, the situation is the reverse. With respect to the prediction
of behavior, demands are pressed upon scientists, who cannot meet them in the
present state of knowledge. Actually, meeting these demands is left to practition-
ers who routinely apply prediction instruments while ignoring their limitations.
In the worst cases, they abuse their powers to experiment with so-called thera-
pies that would make scientific experts shudder.
Expert Witnesses and the Criminal Law

The part played by expert witnesses, in the law, has been increasing ever since
the beginning of the 20th century. Jasanoff (1995, p. 43) quotes figures to the ef-
fect that 60% of the cases in a Massachusetts Superior Court relied on one kind
of specialized testimony. This figure, it must be remembered, refers to all cases
and not only to criminal law cases. The situation, as we shall see, is markedly dif-
ferent with respect to the criminal law.
Research Findings
To understand the research results that I will present, two things must be borne
in mind. The Anglo-Saxon legal procedure is said to be adversarial, both in civil
and in criminal law. In contrast to the Continental civil procedure, which is used
in Germany and other countries of Europe, it is the lawyers representing the par-
ties in conflict who play the prominent role in investigating the facts. Although
judges may summon experts, as is generally the case in Germany, it is mostly at
the behest of the contending parties that expert witnesses testify in court. As was
noted by Langbein in an article justly entitled The German advantage in civil pro-
cedure, the adversarial procedure is always at risk of distorting the evidence and
experts cannot avoid appearing to be partial, since they are testifying at the re-
quest of one party against the other (Johnston, 1987; Langbein, 1985, p. 823).
Second, it is of the utmost importance to stress that trials are rare events in the
Anglo-Saxon criminal law tradition, because of the process of plea bargaining. In
the USA and Canada, defendants are enticed to plead guilty to reduce charges,
to unburden the courts, and to spare the state the costs of a trial.7 In the USA,
plea bargaining results in pleas of guilty and the avoidance of a trial in more than
90% of the cases; in Canadian urban jurisdiction, the figure is at least 70%. This
drastic reduction of the number of trials in criminal law also drastically reduces
the number of cases where expert witnesses testify, because it is generally within
the context of a trial that experts appear in court.
The perception of the role of experts in criminal trials is undermined by what
I shall call the O. J. Simpson Syndrome. According to the mythology generated
by highly “mediatized” cases, expert witnesses are pitted by the defense against
the prosecution and ultimately win the day because rich defendants can afford
the best experts. This may occur in a few “affaires célèbres, ”but this perception is
very far from the actual working of the criminal courts in North America.
To support this, I will present the main findings of Robert Poirier, who for
his Ph.D. Dissertation studied the role of expert witnesses in the criminal divi-
sion of the Québec Court in the district of Montréal (this court processes the
highest volumes of criminal cases in the province of Québec). I was the super-
visor of this thesis and will present my own interpretation of his findings.
The research examined a random selection of 10% of the court cases pro-
cessed every fifth year from 1960 to 1990. In all, more than 10,000 cases were
analyzed; Poirier retained 7,557 in the sample and, of these, 815 involved the
testimony of expert witnesses. In 1960, 4% of all cases involved expert testi-
mony; this figure had increased to 12% in 1975 and remained at this level
through the following years. The proportion of cases where expert witnesses tes-
7
In many US jurisdictions, defendants who plead guilty are given the choice of the judge who
will impose a sentence upon them. They are threatened with having to appear before judges
known for their severity if they plead not guilty, thereby, running the risk of being found guilty as
the result of their trial. Upon conviction, they then receive a heavy sentence, compared to the one
that they might have negotiated by pleading guilty.
tified was multiplied by three between 1960 and 1975, the use of alcohol tests
accounting in great part for this increase. The figure of 12% of the cases involv-
ing expert testimony is deceptive. As we have seen, only 30% of all cases go to
trial, approximately 70% of all defendants pleading guilty. Since experts mostly
testify in the course of a trial, the percentage of 12% of all criminal cases means
that experts testified in 36% of the cases that resulted in an actual trial.8
Here now is a glance at Poirier’s mam findings:
Expert witnesses testified in 815 cases. In 28% of the cases, their testimony was
made in relation to the person accused or convicted of a criminal charge and
in 72% they testified in relation to some material fact relevant for the case.
In 91% of the cases, where an expert testified on the presumed or convicted
offender, the expert was a psychiatrist. They were a psychologist in 7% of the
remaining cases, and belonged to one of the social sciences—including criminol-
ogy—in only 2% of the cases. An overwhelming 98% of these cases involved
testimony on the mental or emotional state of the presumed or convicted of-
fender.
For these offender cases, the expert was to assess the aptitude of the defendant
to stand trial or whether he could comprehend the proceedings in 56% of the in-
stances. It was the prosecutors or the judges themselves who had recourse to
such expertise; the defense almost never requested expertise on this question
(only in 4 cases out of 111). Surprisingly, psychiatric expertise on the offender’s
responsibility for his behavior was requested in only 8% of the cases.
These findings deserve comment. The discrepancy, between the use of psychiat-
ric expertise to determine whether an accused can stand trial (56% of testimo-
nies by psychiatrists) and to determine whether the accused was responsible for
his behavior at the time of the offense (only 8% of these testimonies), is unex-
pected. One would expect that the type of questions raised on the ability of a
presumed offender to stand trial would also be asked in respect to their responsi-
bility for an offense. A possible explanation for this discrepancy is that these dif-
ferent kinds of expertise are not requested by the same party. The responsibility of
the offender is rarely questioned by the defense because of the risk of having
them declared insane and committed to a mental institution for an indetermi-
nate period of time (more on this later). However, the prosecution or the judge
are not committed to the defendant’s interest; consequently, they are much less
reluctant to ask whether this person is fit to stand trial and to have them com-
mitted to a psychiatric institution, if the answer to this question is negative.
Knowing the consequences of such an opinion, psychiatrists are reluctant to de-
8 Expert witnesses may also appear at the sentencing hearing, which occurs regardless of
whether there was a trial. In Poirier’s sample, experts testified at a sentencing hearing in 92 cases.
Although the appearance of an expert at the stage of the sentencing hearing does not necessarily
mean that the defendant pleaded guilty and that there was no preceding trial, the figure of one-
third of the trials involving expert witnesses might be slightly lower. This would be due to the fact
that at least some experts may have testified at a sentencing hearing that was not preceded by a
trial.
clare an accused unfit to stand trial and their intervention often results in mak-
ing the offender fit for punishment. The public perception of the psychiatrist
who spares the offender a sentence of imprisonment by denying their criminal
responsibility is not borne out by the facts. Actually, there is evidence that psy-
chiatrists may be more punitive than is usually believed (Menzies, 1985, 1989).
In the cases where expertise is not requested on the person of the offender,
but on the material facts of the case, the expert witness usually possesses tech-
nical rather than scientific expertise, with the exception of doctors practicing
forensic medicine and biologists. Experts testify on the result of various kinds
of tests: writing tests in the case of fraud, alcohol and drugs, ballistic, suspect
identification, chemical identification of various substances and explosives,
and financial accounting. Experts who testify on the results of alcohol and
drug tests have the title of “court toxicologists”; their training varies greatly,
as does their level of scientific education. A higher level of expertise is now re-
quired in the case of DNA fingerprinting and other biological identification
tests (Freckelton, 1990; Robertson, Ross, & Burgoyne, 1990).
For the period examined, the experts most frequently called to testify were practi-
tioners of forensic medicine and persons in charge of alcohol and various chemical
tests (the evidence for alcohol tests is often presented in writing).
The behavior of the defense and of the prosecution is quite different with re-
spect to the criminal charges involved in Poirier’s sample of 815 cases (theft,
break and enter, murder and manslaughter, sexual assault, assault and threats,
fraud, drunken driving, arson, a variety of minor offenses). With the excep-
tion of sexual assault, for which the defense requested expert testimony in
39% of the cases, the defense’s rate of demands for expertise is under 18% for all
other offenses (on average, 11%). The prosecution’s rate is much higher, ranging
from a high of 98% of the drunken driving offenses to an average of 58% for all
offenses,
Needless to say, the prosecution makes a much larger use of expert witnesses
than does the defense. All types of expertise being considered, 75% of expert testi-
monies are made on behalf of the prosecution, 9% on behalf of the defense, and
the rest on the request of the judge or a source impossible to identify. How-
ever, if one only considers the most frequent category of expertise, the one bearing
on the facts of the case, rather than on the psychological profile of the of-
fender, the proportion of the requests for expertise by the defense and the judge re-
spectively falls to 4% and 3%, whereas the prosecution’s requests account for 93%
of the total.
Finally, when the defense presented expert testimony, it was to support the
imposition of lighter punishment at the stage of the sentencing hearing. Gen-
erally speaking, the prosecution presented expert testimony at the level of the trial
to get a conviction and the defense at the stage of the sentencing hearings. Psychi-
atric expertise was equally likely to be requested by the defense (24% of re-
quests) and the prosecution (23%), with a higher likelihood to be requested
by the judge to decide the ability of the defendant to stand trial.
Outcomes
Three conclusions follow from this research. The overwhelming conclusion is
that expert testimony is presented on behalf of the prosecution. This conclusion is
confirmed by a more recent assessment by a Québec Crown Prosecutor. He as-
serts that most of the prosecution expertise is not even requested by the Crown
Prosecutor, but by the police as a matter of routine (Legault, 1995, p. 43f.). This
imbalance is largely rooted in economics. Most of the material expertise, re-
quested by the prosecution, is provided free of charge, the experts being criminal
justice functionaries. In the event that the defense would be willing to pay for
this expertise, it has little relevance for exculpating the defendant. Being pro-
duced for the State Prosecutor, it is geared for the proof of guilt. As for the kind
of experts who enjoy the favor of the defense—psychiatrists—their fees are gen-
erally very high and cannot be afforded by the average defendant. Jasanoff
(1995, p. 46) cites the case of a Manhattan psychiatrist and neurologist who
earned as much as US$ 200,000 in 1983 from his work as an expert witness and
legal consultant.
Second, it also appears that when the defense has recourse to expert psychiat-
ric testimony, it uses it against the most vulnerable of crime victims, that is, vic-
tims of sexual assault. The fairly high percentage of the use of psychiatrists by
the defense in such cases (39%) is also indicative of the economic status of the
accused.
Finally, a great number of the special witnesses testifying on behalf of the
prosecution would only qualify to me as experts in the weak sense of the word.
In the last 20 years, not fewer than three persons—Donald Marshall, David
Milgaard, and Guy-Paul Morin—were wrongfully convicted of first-degree mur-
der and officially cleared by the court, after having spent many years in prison.
The public inquiries conducted into the circumstances of their convictions
stressed the role of so-called expert witnesses as afflicted, as were the police, by
tunnel vision. In all fairness, however, it must be stated that the last lingering
doubts on the guilt of two of these wrongfully convicted offenders were finally
dispelled by DNA testing, that is, by an expert procedure.
A Replay of Weak Expertise

There is one postscript that must be added to the rise of experts in the weak
sense, who rely mostly on technical knowledge derived from their experience.
Until 1997, the evidence of at least two psychiatrists was required for having an
offender declared as “a dangerous offender” in Canada, thus, making this of-
fender liable to imprisonment for an indeterminate amount of time (Canada,
Criminal Code, 1996, and preceding, s. 755[1]). This was changed drastically by
Bill C-55 (Canada, Statutes of Canada, 1997). The law now states that the
court indeterminately jail an offender for whom it is of the opinion that there
are reasonable grounds to believe that this offender might be found to be a
dangerous or a long-term offender. The court’s opinion is to be based on an as-

sessment submitted by the person “directed” by the court to be the custodian of
the offender and “who can perform an assessment, or can have an assessment
performed by experts” (Canada, Criminal Code, 1998, s. 752.1). Not only can a
person be declared to be a dangerous or long-term offender upon the assessment
of just one person, thus, making these persons liable either to indeterminate sen-
tencing or long-term supervision in the community, but the qualification of the
person performing the assessment is not specified beyond the fact that it is the
person to whom the offender is “directed” by the court and “who can perform an
assessment.” To have a person declared as a dangerous or a long-term offender
one now needs only one assessor and that person need not even be a psychiatrist.
This again testifies to the rise of the expert in the weak sense of the word, which
we have been describing.
To sum up, most experts testify for the prosecution and they display weak ex-
pertise prone at times to tunnel vision. When strong expertise is needed to de-
cide whether an offender will be jailed for an indeterminate period of time, the
law dispenses with experts as much as it can.
Expert Systems and the Criminal Law

There is a third area where expertise has numerous interfaces with the law. This
area is known under the general designation of information technology and the
law, to borrow the title of the reference bibliography published by the Istituto
per la documentazione guiridica (1992) of the National Research Council of
Italy. The scope of this bibliography—two volumes totaling 475 pages—indi-
cates the magnitude and vitality of the field. In addition to computerized data-
bases and automated legal reference systems, the field comprises of jurimetrics,
automated analyses of legal texts (Martino, Natali, & Binozzi, 1986), expert
systems in law (Lovegrove, 1989; Martino, 1992; Susskind, 1987, 1993,
1996), and other applications of artificial intelligence in law (Gray, 1997). An
expert system is a computer program that has a knowledge base, an inference
engine, and interfaces for obtaining specific information; its goal is to provide a
reasoned answer to a specific problem (e.g., what kind of sentence to impose
upon an offender in a given set of circumstances). Although there were at-
tempts, in Canada, to develop expert systems in criminal law, particularly
within the field of sentencing, all such systems addressed very narrow problems
and were used only by researchers on an exploratory basis. None is presently
used by the criminal courts, nor has been.
Empirically Based Sentencing Guidelines

There were, in Canada, two projects that would fall under the heading of infor-
mation technology and the criminal law, that were developed beyond the experi-
mental stage. One was articulated by Professor A. N. Doob of the University of

Toronto (Doob & Park, 1987) and the other by Professor John Hogarth and his
colleagues of the Legal Information Systems and Technologies Foundation
(LIST), initially harbored by the University of British Columbia (Franson, 1985;
this project is fully described in Brodeur, 1990). Both projects were similar in
their conception and can be described as descriptive and empirically based sen-
tencing guidelines intended for judges.9 Such guidelines are submitted to sen-
tencing judges as a remedy against unwarranted disparity, perceived as a funda-
mental problem in US and Canadian criminal courts. Sentencing disparity is
unwarranted when two offenders, charged of the same offense committed in
similar circumstances, receive markedly different sanctions (e.g., one is given a
fine, and the other a period of imprisonment). Empirically based descriptive
guidelines take the form of a sentencing database that describes sentencing prac-
tice, that is, what kinds of sanctions are imposed on offenders for all offenses on
which data can be collected. These guidelines are based on the assumption that
sentencing disparity is caused by the fact that sentencing judges work in the rela-
tive isolation of their courtrooms and are unaware of the tariffs that their col-
leagues impose for a given offense. It is then believed that once provided with
this information, judges will adjust to the sentencing trends thus revealed, and
that sentencing disparity will be reduced.
Two Promising Projects: Hogarth and Doob

The project developed by Professor John Hogarth—the Sentencing Data System
(SDS)—is an excellent illustration of this approach. It was heavily subsidized by
the Canadian Department of Justice, and I was asked by the Ministry to provide
an assessment of its value and use by the legal community. The SDS was com-
posed of five computerized files, its heart consisting of File 1. This file contained
approximately 70,000 sentences imposed by various criminal courts in British
Columbia and was updated biannually. It provided statistical information on the
range of trial sentences for particular offenses and offenders and allowed the user
to display information in the form of either graphs, tables of dispositions, or on-
line summaries of individual cases. It incorporated 129 offenses from all penal
statutes in Canadian law. The user of the database was able to specify the search
criteria in terms of the offense, age, and sex of the offender, and the existence or
otherwise of a criminal record. File 2 displayed concise summaries of over 1,600
Court of Appeal decisions. File 3 reported the state of jurisprudence in respect to
a large series of mitigating and aggravating factors in sentencing. File 4 was an
electronic textbook on sentencing law and File 5 contained a fully detailed direc-
tory of all correctional institutions and offender counseling programs in the
province.
9
For a detailed presentation of such guidelines, see Chapter 11 of the Report of the Canadian
Sentencing Commission (Canada, 1987).
I went into some detail in my description of this sentencing database to show

that it did have the potential to usefully assist the sentencing judges and eventu-
ally to reduce unwarranted disparity. The same is true of Professor Doob’s data-
base, which ranged over sentences imposed by Canadian Provincial Courts and
Courts of Appeal in five different provinces. Yet, both of these projects are now
defunct and there are no indications that similar projects are being developed.
The Demise of These Projects

What happened? First, the legal culture in sentencing is underpinned by an un-
shakeable belief that every case is unique and requires an individualized ap-
proach. This belief defeats the idea of relying on sentencing trends, as displayed
by a computer, for disposing of cases. It is shared by both judges and lawyers, al-
though they know that because of the volume of criminal cases there is no time
for any kind of individual treatment in the overwhelming majority of cases. Ac-
cording to the interviews that I conducted with judges, prosecutors, and defense
attorneys, the average sentencing hearing lasts between 5 and 15 minutes. This
lack of time, due to the volume of cases, impedes individualized sentencing. It
also drastically reduces the appeal of a computerized sentencing database that
rests precisely in the speed with which a database can display the sentencing
trends in thousands of cases. Yet, it still takes a few minutes to consult the most
high-performing and user-friendly database. However small the time may have
been, lawyers saw no purpose in investing it for computer searches, because the
frantic pace of the sentencing hearings would not allow them any occasion to
present what they had learned to the court.
Second, the independence of the judiciary is the defining principle of the
magistrates’ ethos. Not only is this principle applied collectively, thus, implying
that as a group magistrates maintain a distance between themselves and any out-
side influence, but it also has a strong impact on individual magistrates. As
Hogarth and Doob eventually found out, judges are very individualistic and are
not particularly interested in learning the sentencing practices of their col-
leagues, unless of course they belong to a higher court and may break their own
decisions on appeal.
Finally, the legal community has a keen sense of its corporate interest, which
binds all of its members over and above their differences. All judges remember
that they were once lawyers. Therefore, when it was contemplated to provide
them with personal computers storing sentencing data, they were very reluctant
to monopolize a tool to which Crown Prosecutors and defense counsels were to
have limited access. More importantly, perhaps, judges insist on being influ-
enced in their sentencing decisions by members of their kind, that is, by lawyers.
Lawyers may present expert witnesses, but through cross-examination, they re-
main master of the game. It was feared by the judiciary that outsiders would
have unmediated access to them through what was displayed on computer
screens, thus, undermining the monopoly of the legal profession over court out-
comes. In other words, the computer database was perceived by judges as an un-
wanted surrogate of statisticians and social scientists directly intruding into their
chambers.
Epilogue
When Professor Doob finally convinced himself that judges were not really in-
terested in learning what they were mutually doing through the sentencing data-
base that he was developing for them, he terminated his project. Upon learning
the same lesson, Professor Hogarth attempted to recycle his project for the bene-
fit of practicing lawyers. For reasons that were expressed above, this recycling did
not succeed.
When reviewing the literature of artificial intelligence and the law (e.g.,
Susskind, 1987, 1993, 2000), one is struck by the optimism that pervades it.
The exponential growth of legal information technology in all of its aspects is
repeatedly predicted and its impact on the law is foreseen to be massive. With
respect to the criminal law, I cannot share this optimism. Systemic sentencing
expertise, constructed with the assistance of information technology, is yet sim-
ply unwanted in Canada. What is presently happening in the field of criminal
justice is more regressive than progressive, as I will now try to show.
Scientific Expertise and Policymaking

I have, so far, addressed the role of experts in the application of the criminal
law. I will now review their contribution to policymaking and, more particu-
larly, to the formation and the reform of the criminal law. In this regard, Pub-
lic Commissions of Inquiry, the word being at this point understood in its
broadest sense, have traditionally played an important role in governance, and
in the making of policy and law in Anglo-Saxon and British Commonwealth
countries. According to The Canadian encyclopedia, the Commission on En-
closures appointed by the English King Henry VIII in 1517 may be the dis-
tant forerunner of the Canadian Royal Commissions of Inquiry. In an often
quoted article entitled Government by commission, the US sociologist Daniel
Bell argued that by consulting the public these Commissions provided a
forum for open discussion of government policies and were, thus, an alterna-
tive to the Seraglio, where “decisions are taken in secluded rooms by small
groups of men” (Bell, 1966, p. 9). This positive assessment contrasts with
Sheila Jasanoff’s view of scientific advisory committees as forming a relatively
independent “fifth branch of government” (Jasanoff, 1990).10 I will first de-
10
Jasanoff’s book The fifth branch. Science advisors as policymakers is not about Public Com-
missions as such, but focuses on the scientific advisory committees of two US Federal Regulatory
Agencies, the Environmental Protection Agency and the Food and Drug Administration (Jasanoff,
1990, p. vii). However, since Public Commissions are heavily staffed with scientific researchers and
act in an advisory capacity toward government bodies, her view of the scientific advisory commit-
tees that she studied also applies mutatis mutandis to Commissions of Inquiry.
scribe the various public commissions and then proceed to an assessment of

their impact.
Public Commissions of Inquiry

As I previously stated, Public Commissions of Inquiry play an important role in
respect to governance in Anglo-Saxon countries.11 Such Commissions bear dif-
ferent designations in various English-speaking countries—“Royal Commis-
sions” in the United Kingdom, “Presidential Commissions” in the USA, “Com-
missions of Inquiry” in Canada12—but they share common institutional fea-
tures.13 I shall adopt the designation used in my own country—Canada—to
refer to these bodies.
Commissions of Inquiry are appointed by law, at the request of the govern-
ment. The role of the executive branch in the appointment of Presidential Com-
missions is greater in the USA than in “Westminster style” democracies.14 They
share the following features: (a) They are headed by one or several Commission-
ers, who generally are not chosen on the basis of their knowledge of the issues to
be addressed, but on the basis of political affiliation, prestige, and representation
in relation to the different constituencies having a stake in the issue(s) to be ad-
dressed by the Commission. In the best of cases, the Commissioners are ap-
pointed for their reputed good judgment. In Canada, the Chairperson of a
Commission of Inquiry is habitually a member of the judiciary; (b) they have a
research staff, appointed for the duration of the Commission, and they also hire
consultants, usually from the scientific community; (c) they consult the public
through an elaborate process (public hearings, hearings held in camera, public
11
In his study of US Presidential Commissions, Frank Popper quotes an excerpt from US
Supreme Court Justice Felix Frankfurter’s book The public and its government. Justice Frankfurter as-
serts that “the history of British democracy might, in considerable measure, be written in terms of
the history of successive Royal Commissions” (quoted in Popper, 1970, p. 51).
12
For reasons which are not altogether clear, a significant number of the Canadian Commis-
sions of Inquiry are also called “Royal Commissions.” The former Law Reform Commission of
Canada has recommended that the term “Royal Commission” be dropped. Some 147 Commis-
sions out of the more than 450 Federal Commissions of Inquiry were, thus, designated as “Royal
Commissions” (National Archives of Canada [NAC], 1990; see the introduction to Vol. 1, p. ix).
13
Frank Popper devotes a chapter of his study of US Presidential Commissions to a compari-
son between these Commissions and the British Royal Commissions. His conclusion is that “the
resemblances between Presidential and Royal Commissions are clearly superficial,” the British
Royal Commissions being seen by him in a much more favorable light than the highly politicized
Presidential Commissions (Popper, 1970, p. 55). I believe that the institutional or formal resem-
blances between these Commissions are undeniable. Furthermore, these Commissions tend to be
viewed much more critically within the countries where they are respectively appointed, than else-
where. For instance, Canadians have a vague view of their own Royal Commissions.
14
The separation between the executive and the legislative branches of government is much
greater in the USA than in most other democracies, no member of the US Executive Branch being
seated in Congress. In Canada, as in the United Kingdom, all Government Ministers are also, as a
rule, Members of Parliament.
and private submissions in writing); (d) depending on whether the Commission

is appointed to investigate wrongdoing, it is staffed by practicing lawyers acting
as prosecutors during public or in camera hearings. There is one last feature,
however, that varies from country to country. It is the degree of independence
that a commission enjoys in relation to the authority establishing it. According
to commentators of Presidential Commissions, these Commissions may not be
as immune from interference from the Chief Executive as British and Canadian
Commissions are from their governments (Lehman, 1968; Popper, 1970;
Wilson, 1967).
Having described the features shared by Commissions of Inquiry in common
law countries, I will now talk more specifically of the Canadian Commissions of
Inquiry. However, what I have to say does not uniquely refer to the Canadian in-
stitutions; it also applies, when properly put in context, to other countries that
use such commissions.
Frequency
Federal Commissions of Inquiry are usually established under the Inquiries Act
(Canada, 1985, Revised Statutes of Canada, c. I–11, s. 2). According to an inven-
tory published by the National Archives of Canada (NAC, 1990, Vol. I, p. x),
there were over 450 Commissions of Inquiry appointed in Canada under Part 1
of the Inquiries Act, since the birth of the Canadian Confederation in 1867. This
figure increases to 1,500 when we take into account the Commissions estab-
lished by the various departments of the government under Part II of this Act.
There are, in Canada, no fewer than 47 Statutes that provide for formal investi-
gations and make reference to the Inquiries Act. Furthermore, since public in-
quiries can also be appointed at the provincial and municipal levels, we end up
with a very significant number of commissions (more than 2,000). I shall add
that the word “commission” is used here as a generic term that also refers to
legally appointed bodies, such as government committees, task forces, or work-
ing groups.
Classification
Needless to say, not all of these commissions investigated matters related to the
criminal law. Commissions can be classified according to their function and to
their object. With regard to function, commissions can be divided into policy
inquiries, which study a particular issue, and investigative inquiries, which in-
quire into an event, generally one that shocked public opinion (Brodeur, 1984,
pp. 15–19; d’Ombrain, 1997, p. 88; Schwartz, 1997). Policy inquiries may be
proactive, that is, appointed before a problem reaches the dimension of a crisis
demanding immediate action; investigative inquiries are by definition reactive
and are established after the occurrence of a problematic event. Of late, most
commissions have fallen in-between this division: They investigate a major scan-
dal—for example, the blood supply contamination by the HIV virus—with a
view of making recommendations to prevent the reoccurrence of such a situa-
tion. Although there were non-investigative inquiries appointed before the
1920s, the issues examined by these inquiries were mainly local and were too
narrow to be called policy inquiries. With regard to their objectives, NAC
(1990, Vol. I, pp. xiii–xiv) classified commissions into four categories, which
overlap in several respects: (a) inquiries investigating either major disasters and
disturbances or a crisis affecting a ministry; (b) inquiries on conflict situations
and on social or cultural issues; (c) inquiries that examine aspects of the econ-
omy; (d) inquiries investigating some aspect of the public service, irregularities
in specific government departments, or charges against officials in a department.
Inquiries with a criminal justice interface can fall into all categories except the
third one (any inquiry into a crisis or a conflict situation may have criminal law
implications). Distinguishing, when it is possible, between policy and investiga-
tive inquiries, Figure 1 presents the average number of inquiries established per
year by each Federal Administration—identified by the name of the Prime Min-
ister—since 1867. Three things stand out clearly: First, the number of commis-
sions has declined drastically since its peak under the Borden Administration
(1896–1911); second, the policy inquiries were more numerous than the investi-
gations from 1920 to the early 1980s; third, the policy inquiries have now disap-
peared, the last one having been appointed by Prime Minister Mulroney. After a
peak under the Johnson Administration, there was a parallel decline in the num-
ber of Presidential Commissions appointed in the USA, all Presidential Com-
missions being policy inquiries (Popper, 1970, Appendix 1).
Legal Powers
The legal powers of the commissions are fairly extensive. Commissioners are
empowered to subpoena witnesses, take evidence under oath, and requisition
documents. The way in which these powers are applied is particularly impor-
tant. Commissions can use the threat of imprisonment to force witnesses to tes-
tify, even when their testimony is self-incriminating.15 Second, commissions
have used their power to requisition documents in a very extensive way, particu-
larly when they are investigating secretive agencies, such as security and intelli-
gence services. The one indisputable benefit of Commissions of Inquiry has
been the declassification of masses of documents that would otherwise have re-
mained secret.
15
In Canada, the witnesses are offered what is called the “protection of the law.” It means that
no part of their testimony before the commission can be used in criminal proceedings against
them, although, very paradoxically, the commission may recommend, on the basis of its findings,
that criminal charges be laid against some of its witnesses. In this case, their testimony before the
commission is not admissible as evidence at their trial In the USA, commissions investigating
wrongdoing can grant immunity to a witness even if it was not asked for and can jail that person
until they agree to testify. Such practices have given Commissions of Inquiry a mixed reputation in
relation to the respect of human rights.
Duration and Costs

Canadian Commissions of Inquiry are not permanent bodies. They conduct
their proceedings, however, over a lengthy period of time. Using a representative
sampling of commissions (d’Ombrain, 1997, p. 97), I found that policy inqui-
ries lasted on average 3.25 years, the investigative inquiries lasting a shorter aver-
age of 1.66 years. The longest policy inquiry lasted nearly 7 years, while the
shortest one lasted for 8 months. Generally speaking, Canadian Policy Inquiries
take a significantly longer time than US Presidential Commissions to fulfil their
mandate. This longevity of policy commissions can have serious adverse effects:
Many commissions are appointed by a political administration that, by the time
the commission is ready to hand in its report, has changed. Since Commission-
ers are political appointees, they lose all their clout with the new government
and their report is shelved, regardless of the amount of time, money, and work
that went into producing it.
There is too much variation in the costs of a commission for the average cost
to be meaningful. The most expensive policy inquiry cost nearly 60 million
Canadian dollars, while the lowest cost was below 100,000 dollars. The last pol-
icy commission that was appointed—the Dussault/Erasmus Commission on
Aboriginal people (1991–1996)—is the costliest commission in Canadian his-
tory. It was appointed by a “Tory” government and reported under a Liberal one.
Despite the impressive amount of work and wisdom that went into its making,
the Commission’s Report was shelved in the days following its reception. This
does not bode well for future policy commissions.
Staffing
As I previously stated, commissions are headed by commissioners chosen largely
from the legal community on the basis of political affiliation. They are also
staffed by researchers. It has infrequently happened that academics have been ap-
pointed as Commissioners, the need for representation from the academic com-
munity being then viewed as a relevant issue. In my experience, the research staff
plays a key role. First, it conducts the research to be provided as support for the
commissioners’ recommendations. To all practical purposes, the research staff
defines the options from which the recommendations are going to be selected by
the Commissioners at their meetings. Second, it provides the initial drafts of the
commission’s report, which are reviewed with varying degrees of implication by
the Commissioners, In a few cases, the Commissioners may properly be said to
be the authors of the report; in a greater number of cases, the research staff is the
real author, the guidance provided by the Commissioner(s) being perfunctory.
The important point is that, in most cases, commission reports are a blend of re-
search, political expediency, and individual commissioners’ intuition. An impor-
tant point should be made, however, in respect to the quality of the research un-
dertaken in the context of Commissions of Inquiry. Although, these Commis-
sions are usually staffed with dedicated personnel, the research greatly varies in
quality. A large proportion of the research is performed by outside consultants,
who belong to universities or the private sector. Unless academics are guaranteed
that their research will be independently published under their own name, thus
being subjected to peer review, there is a significant proportion of them who take
a mercenary perspective and produce work well below standards. For example,
when I was Director of Research for the Canadian Sentencing Commission, I
had to deal with academics merely resubmitting their own formerly published
work and even plagiarizing the work of others. Studies conducted by private
consulting firms also vary greatly in their quality: in some instances, the larger
the firm, the lower the quality of research, which was entrusted to persons who
would not even have qualified as research assistants in a university. This is not to
say that the research published in the context of the proceedings of Commis-
sions of Inquiry Jacks quality, which it generally does not. However, it reinforces
Jasanoff’s point on the contingency of knowledge and on the difference between
regulatory and research science (Jasanoff, 1990, p. 12 and p. 80, Table 4.1; the
pioneering work on the contingency of knowledge is by Knorr-Cetina, 1981,
p. 49 and p. 152).
Permanent Commissions
The Law Reform Commission of Canada (LRCC) was a proactive Policy Com-
mission operating between 1971 and 1992. During this period, it tabled 33 re-
ports before Parliament and also issued 63 working papers. The LRCC had an
excellent internal research staff and sponsored studies by external consultants
known for their expertise. The review process of each study undertaken by, or for
the LRCC was very thorough, every document being reviewed by peers and go-
ing through several stages of writing before its publication. The reports and
working papers published by the LRCC were, then, of superior quality. The
LRCC enjoyed a great international reputation and its publications were widely
circulated. It was abolished in 1992 by the “Tory” government, in the context of
drastic budgetary cuts, but was reinstated as the Law Commission of Canada
(LCC) in 1997, following a promise made by the Liberal party during its win-
ning electoral campaign. However, the mandate of the LCC is much narrower
than that of the LRCC and its profile has been, until now, so low that hardly any
Canadian outside a small circle, within the legal community, knows that it exists
at all. To my knowledge, it has not yet issued any report.
Commissions on Aspects of the Criminal Law and Criminal Justice

Needless to say, only a small fraction of the 2,000 or so commissions that were
established since 1867 examined aspects of the criminal law. As we have stated,
any commission that investigated crisis or conflict situations had potential rami-
fications in the criminal law. I did not attempt to assess the number of these
commissions. Limiting my count to the most important commissions, I come
up with the following results: Three important commissions were established be-
fore the confederation and some 31 after the confederation; to this sum, we may
add approximately 14 provincial inquiries, for a grand total of 48 commissions,
without taking into account municipal commissions. The work of the LRCC,
which was a permanent commission, had to be taken into account, because of its
importance.
The Assessment of the Impact of the Criminal Justice Commissions
Within the confines of this chapter, I cannot proceed to an assessment of all the
commissions that I have identified as having a connection with the criminal law.
I shall proceed in the following way. First, the only criteria that I am going to ap-
ply is whether a particular commission has succeeded in generating legislation in
line with its recommendations. Even this apparently simple criterion is difficult
to apply, since there may be 20 years separating the publication of a commis-
sion’s report and the enactment of a Bill of Law that is loosely connected to the
commission’s recommendations. It is, in these cases, difficult to assess with any
precision what the Bill in question actually owes to the recommendations of the
Commission that issued its report 20 years before the legislation was enacted.
I will try to avoid such methodological difficulties by focusing on cases where
they do not significantly arise. I propose to perform four kinds of assessments.
Two of these assessments will be systemic; the third, will focus on a commission
that succeeded in generating legislation; the last, on a commission that utterly
failed in this regard. After submitting these assessments, I will try to identify fac-
tors that account for success and factors that may explain failure.
The Work of the Law Reform Commission of Canada: A Systemic

Assessment
The words “systemic assessment” need not intimidate us in the case of the
LRCC. The plain fact is that it failed to generate any kind of legislation during
its 17 years of operation, despite the consistent excellence of its work. To be fair,
it came very close, on one occasion, to generating law. Unfortunately, the Bill
sponsored by the LRCC died on the order paper and the government that was
committed to passing it was not reelected. Although there were many references
to the reports and working papers of the LRCC in Canadian jurisprudence—the
Supreme Court of Canada often referred to it—its failure to spur any legislative
reform was an important factor in its demise in 1992. The other factor was that
the LRCC had been specifically requested in 1991 by the Minister of Justice to
examine how to reform criminal justice in respect to the Aboriginal and what we
call in Canada the visible minorities, the term “visibility” referring to the color of
the skin. Despite strong signals from the Ministry that it was not prepared to
condone the establishment of an independent system of Aboriginal justice com-
pletely under the responsibility of First Nations people, the LRCC concluded
that this was the most promising direction for reform. The reluctance to meet
the Ministry’s expectations may have played a role in the abolition of the Com-
mission, although it is difficult to assess how significant it was.16
The Issue of Incarceration: A Recurrent Assessment

In this second case, it is also relatively easy to perform a systemic assessment. In
its 1987 report, the Canadian Sentencing Commission (CSC) quoted the posi-
tion of the 16 most important bodies (1831–1983: Federal Commissions, Pro-
vincial Commissions, Government Statements) that had previously studied in-
carceration (CSC, 1987). There is not one of these bodies that is not critical of
the effects of incarceration, which hardens criminals rather that deters them
from reoffending. Again, there is not one commission that does not advocate
that incarceration should be used with more restraint. This was also the position
taken by the CSC, which presented a comprehensive package of recommenda-
tions to reform the criminal law to restrain the use of incarceration. The CSC
was no more successful than the appointed bodies that preceded it in moving the
government to take legislative action to reduce imprisonment.
The situation is more dramatic in the USA, where incarceration has reached
unprecedented proportions (the incarceration rate tops 600 persons per 100,000
adults; at least 1.7 million adults are in prison; together with Canada, the USA
admits more youths to custody than any other Western democracy, the USA jail-
ing its youths for longer terms than Canada). Yet the Report of the President’s
Commission on Law Enforcement and Administration of Justice (1967) had
stated with respect to juveniles, that “detention pending court determination
(...) must be based on clearly articulated standards and reduced to a minimum”
(p. 293); it had also advocated, with regard to adult corrections, that
(...) the wholesale strengthening of community treatment of offenders, and
much greater commitment of resources to their rehabilitation, are the main
lines where action is needed to make correctional treatment more effective in
reducing recidivism (p. 297).
These pronouncements were echoed in the reports of the National Advisory
Commission on Criminal Justice Standards and Goals, which diagnosed “insti-
tution-oriented corrections” as a failure and accordingly stated:
The Commission believes that the most hopeful move toward effective cor-
rections is to continue and strengthen the trend away from confining people
in institutions and toward supervising them in the community. (US Depart-
ment of Justice, 1973, p. 48f.)
None of these pronouncements—nor many more that were to be made by US
state commissions—resulted in action curbing the exponential growth of incar-
ceration in the USA.
16
I was personally involved in the process of follow-up to the Minister’s special reference in re-
lation to the access to justice of Aboriginal and visible minorities. The Minister’s displeasure at the
course for reforming Aboriginal justice advocated by the LRCC was then common knowledge.
The McDonald Inquiry: A Partial Success Story

The McDonald Commission conducted, in Canada, an investigation into alle-
gations of wrongdoing by the Royal Canadian Mounted Police (RCMP) Secu-
rity Service. At the time of the investigation, the Canadian Security Service was
nested within the RCMP, our national police force. The McDonald Inquiry was
established in 1978 and its several reports were issued in 1981. Its main recom-
mendation was to abolish the RCMP and create a civilian security intelligence
service that would be stripped of the legal powers granted to police organiza-
tions, most notably the RCMP (Canada, 1981a, 1981b), This recommendation
was finally applied in 1984 through the enactment of the Canadian Security In-
telligence Service Act, but not without a major struggle against the government’s
obvious intent to thwart the main thrust of the McDonald Report recommenda-
tions, which aimed to reduce the powers vested in the new civilian agency. The
government’s first project—Bill C–157 (Canada, House of Commons, 1983;
Bill C–157 was not made into legislation as such and numerous amendments
were introduced to develop a new Bill: See Canada, Senate, 1983)—was seen as
such a perversion of the recommendations of the McDonald Commission by
public opinion that it had to appoint a Senate Committee to amend its initial
project (Canada, Senate, 1983). The Canadian Security Intelligence Service
(CSIS) was finally established in 1984 upon the recommendations of the Senate
Committee. A great number of the McDonald Report recommendations were
discarded with the creation of the CSIS. The House Special Committee ap-
pointed in 1989 to review the CSIS Act tried to reactivate the spirit of the
McDonald Commission, but to no avail (Canada, House of Commons, 1990).
With the exception of a very few recommendations, all of the 117 proposals of
this Committee were rejected by the Ministry of the Solicitor General, which is
answerable to the CSIS in Parliament (Canada, Solicitor General, 1991).17 Al-
though the framework developed for security intelligence by the McDonald In-
quiry was applied only in part, the gist of its recommendations resulted never-
theless in the CSIS Act, which did not betray the spirit of the McDonald Inquiry,
due in great part to the intervention of the Special Senate Committee.
Winning Factors
In the case of investigative inquiries, such as McDonald’s, where policymaking is

less important than identifying personal and collective responsibilities, the qual-
ity of expertise only plays an indirect role in explaining why a commission suc-
ceeds in generating law and, ultimately, in accomplishing reform. In the adver-
sarial context of Investigative Commissions, is nonetheless the aggressive law-
yers, rather than the experts who are the major players. Here is a list of factors
that foster success.
17
Sources from the House Special Committee estimate that “two and one-half” of all its rec-
ommendations were retained by the Ministry of the Solicitor General.
Public Opinion Support

The overwhelming factor for success is the support of public opinion, which
crucially depends on media visibility and a positive attitude from the press.
Some of the most successful commissions have been, such as the McDonald
Commission, investigative bodies appointed to conduct an inquiry into a scan-
dal that deeply shocked the public. Holding public hearings with star witnesses
keeps these commissions in the public eye and nurtures the support of the pub-
lic. Another recent commission, which succeeded in achieving significant re-
forms, investigated the very emotional question of the transfusion of blood
tainted by the HIV virus. The interest of the public and of the press, on this
issue, never wavered and many of the Commission’s recommendations were
finally implemented.
The Weight of Past and Concurrent Inquiries

When the McDonald Commission was appointed in 1978, the RCMP Security
Service had previously been the object of two investigative inquiries (Canada,
1966, 1969a). The 1969 Mackenzie Inquiry had already recommended the re-
placement of the RCMP Security Service by a civilian agency. More crucially,
two provinces had appointed Commissions of Inquiry into RCMP Security Ser-
vice abuses; these Commissions ran parallel to the McDonald Inquiry. In the
province of Québec, where most of the RCMP abuses had taken place, the pro-
vincial government appointed its own inquiry a few months before the federal
government finally did so, in order not to be upstaged by a province (Québec,
1981).18 In Ontario, the RCMP Security Service was under investigation for
having recruited doctors as informants and using their patients’ medical records
(Ontario, 1980). Hence, by the time the McDonald Inquiry started its own in-
vestigation, the RCMP Security Service was already under siege. It had been for-
merly investigated twice, one of the previous inquiries having recommended its
abolition. Furthermore, it was under the very determined scrutiny of two pro-
vincial commissions. In other words, the time was overripe for reform. The reoc-
currence of a problem previously investigated plays a significant role in the
building up of a commission’s ultimate impact.
Linkages
Because of the fact that one previous commission had recommended the replace-
ment of the RCMP Security Service by a civilian agency, this idea was already
circulating and was gaining acceptance, since the RCMP Security Service was
again in deep trouble. According to my own interviews, the McDonald Com-
mission tried to prepare the minds of the government officials for its recommen-
dation to abolish the RCMP Security Service, which was thoroughly discredited
when its report was made public. Some members of the McDonald staff had also
attempted to build a constituency within the RCMP for its replacement by a
18
I was the Director of Research for this Québec Commission, headed by lawyer Jean F.
Keable (Québec, 1981).
civilian agency, which would be staffed, during its beginnings, by ex-members of

the RCMP Security Service. These attempts by the McDonald Commission, to
break away from a commission’s traditional isolation and to initiate some form
of negotiation with the persons to be affected by their recommendations, proved
a major factor in its success. As we shall immediately see, the CSC paid a crip-
pling price for having failed to break its way out of its insularity.
The Canadian Sentencing Commission: An Almost Complete Failure

Having been the Research Director for the CSC and responsible for the writing
of its report, I naturally took a keen interest in monitoring the implementation
of its recommendations. The CSC report presented 91 recommendations mainly
designed to remedy disparity in sentencing and to restrain the use of incarcera-
tion through the development of sentencing guidelines. The sentencing guide-
lines were grounded in a consistent declaration of the goals and principles of sen-
tencing. The Commission also reviewed the maximum and minimum penalties
for all the offenses in the Canadian Criminal Code and related statutes. It rec-
ommended the abolition of all mandatory minimum penalties and the reduction
of all standing maxima.
The only legislation that was distantly related to the CSC’s recommendations
was a Statement of the Goals and Principles of Sentencing that was enacted in
1995—Bill C–41 (Canada, Statutes of Canada, 1995)—that is, eight years after
the publication of the CSC’s report in 1987. The Statement blends all possible
goals that sentencing could be following and is at odds with the one proposed by
the CSC, which emphasized the need for consistency in the Statement of the
Goals and Principles of Sentencing. The sole measure embedded in Bill C–41 to
restrain the use of incarceration, which was never contemplated by the CSC, is
an oxymoron: a conditional sentence of incarceration to be served in the com-
munity, that is, a non-custodial sentence of incarceration. Such a contradiction in
terms can only add to the confusion of an already aggressively puzzled public.
Bill C–41 was not the only legislation that was passed between 1987 and to-
day. Brodeur (1999) shows that there has been sustained legislative activity since
the publication of the CSC’s report up to today. Here is a non-exhaustive list of
the amendments to the criminal law:
Legislation increasing maximum penalties for individual offenses
Bill C–15 (S.C. 1987): increased penalties for sexual offenses.
Bill C–128 (S.C. 1993, c. 46): increased penalties for child pornography.
Bill C–53 (S.C. 1994, c. 44): life sentences for arson.
Bill C–28 (S.C. 1997, c. 16): new offense: sexual tourism.
Bill C–27 (S.C. 1997, c. 16): new offense: aggravated procuring; (procuring
juveniles for prostitution); minimum penalty of 5 years of incarceration.
Structural legislation
Bill C–61 (S.C. 1988, c. 5) on the Proceeds of Crime (the Canadian equiv-
alent of the US RICO Legislation): creation of a new offense.
Correctional and Conditional Release Act (S.C. 1992, c. 21): restraints on

conditional release.
Bill C–37 (S.C. 1995, c. 19): increase of maxima for young offenders and
facilitation of their deferment before adult courts.
Bill C–68, Firearms Act (S.C. 1995, c. 39): minimum penalty of 4 years of
incarceration for crimes perpetrated with a firearm.
Bill C–8 (S.C. 1996, c. 19) consolidation of drug offenses with a presump-
tive sentencing guideline favoring incarceration.
Bill C–55 (S.C. 1997, c. 17): facilitation of indeterminate confinement for
high-risk offenders.
Bill C–95 (S.C. 1997, c. 23): new offense: criminal organization offense;
miscellaneous dispositions on organized crime.
There is not one of these developments that does not run counter to the CSC’s
recommendations. More particularly, the return to minimum penalties, the fa-
cilitation of indeterminate sentencing, and the development of a sentencing pre-
sumptive guideline in favor of incarceration all directly contradict both the letter
and the spirit of the recommendations of the CSC. Furthermore, there is not
one of these legal developments that was ushered by scientific expertise.19 How
and why did this happen?
Losing Factors
In contrast with the McDonald and Krever inquiries, the Archambault Commis-
sion or CSC was a policy commission. It could even be argued that it was the
paradigm case of the policy commission. Although it met with selected individu-
als in camera, it held no public hearings and had no media profile whatsoever. Its
report was received as a thoughtful piece of work in academic circles and is still
highly regarded and used in university teaching.20 As we already noted, it was
devoid of effects in practice. There are many reasons for this lack of effects, and I
shall only discuss those that go beyond this particular case.
19
In 1993, Philip Heymann came to the University of Toronto, where he lectured. I was then
on sabbatical at the Centre of Criminology of this university. Mr. Heymann had just resigned from
the US Department of Justice, where he was the highest-ranking civil servant and second only to
the Attorney General, Janet Reno. No longer bound by government solidarity, Mr. Heymann was
highly critical of the “two strikes and you’re out” legislation that was then being passed at the fed-
eral level and in many of the states. Basically, such legislation stipulates that an offender is to be
jailed for life upon their third conviction for a type of offense specified in the law (e.g., robbery).
During a question period, I asked Mr. Heymann if research had played any part in the develop-
ment of such legislation. He answered that it had played no role at all, these laws being essentially
instigated by political advisors and lobbyists who relied on public opinion polls.
20
Parts of the Report were reprinted in readers on sentencing (e.g., von Hirsch & Ashworth,
1992).
Politicization
There are many ways for an inquiry to become politicized. The most common
one is to have the political authority that established it try to prescribe its orien-
tations. To my knowledge, this never occurred during the proceedings of the
CSC. Politicization took another form. The CSC was created at the end of the
mandate of the Liberal Party, which then formed the government. With the ex-
ception of one academic, all of its nine Commissioners were associated in one
way or another with the Liberal Party, which had appointed them. Unfortu-
nately, the Liberals lost the next election and the Commission had to report to a
“Tory” Minister of Justice. Although the Minister never hindered the Commis-
sion’s proceedings, he remained aloof and never showed any commitment to the
work of the Commission. After having tabled the Commission’s Report very dis-
creetly in parliament, the Minister’s first decision was to appoint a House Com-
mittee headed by a Member of Parliament from his own party—David
Daubney—to review once again all the issues on which the CSC had reported.
Because of the lengthy periods of time taken by Canadian commissions to fulfil
their mandate, the CSC was far from the only one to have been appointed by
one government and to report under another. Two of the most recent and costly
inquiries—the Dussault/Erasmus Inquiry on the plight of Aboriginal peoples
and the Létourneau Inquiry on the deployment of the Canadian Airborne Regi-
ment in Somalia—were appointed by a “Tory” government and reported under
the Liberals. Both reports were shelved despite the considerable efforts that went
into writing them.
No Linkage
The CSC’s recommendations were bound to be resisted by powerful groups. It
recommended curtailing the discretion of the sentencing magistrates by submit-
ting them to the application of sentencing guidelines. It also proposed the aboli-
tion of full parole, thus, threatening the powerful bureaucracy of paroling
authorities and parole officers.21 The Commission compounded these difficul-
ties by utterly neglecting to establish any kind of working relationship with the
professional groups that would be affected by its recommendations. The first
Chairman of the Commission was so obsessed by the defense of its indepen-
dence that he refused all offers by government publications to advertise the
Commission’s call for submissions from parties having a stake in its mandate.
The Commission worked in a vacuum and its recommendations also fell in a
vacuum. The CSC is the paradigm case of a Commission that presented its book
to the Minister and then severed any future relationship with the political
authorities that held power over the application of the report’s recommenda-
tions. This severance of all links between a commission and the government is
usually lethal to the Commission’s report, as its implementation is left to the
21
The Commission did not oppose all forms of early release and even recommended that per-
sons convicted of murder apply for early release after serving a period of 15 years, rather than the
25 years that was mandatory at the time.
bureaucratic machinery of government, which abhors change. No innovative re-

form can spring from these quarters. For instance, the officers of the Ministry of
Justice decided to hold a seminar to study the CSC’s recommendations and their
implications; the person chosen by the Ministry to organize the seminar was the
ex-Chairman of the Parole Board, which, following the CSC’s recommenda-
tions, was to be abolished.
Collision With Public Opinion Polls

When the CSC was created in 1984 by the Liberal government, the public did
not yet suffer from “compassion fatigue” and was still sensitive to the need to use
incarceration with restraint. Capital punishment had been abolished and re-
placed by life imprisonment, with a possibility of being released on mandatory
supervision after a period of 25 years in prison. When the CSC issued its report
in 1987, both the government’s and the public’s mood had moved toward more
intolerance. Unfortunately, the moment of the report’s release coincided with
the campaign to reinstate the death penalty in Canada. To hold a free vote in
parliament to reestablish the death penalty had been one of the much touted
promises of the “Tories” during the election campaign. When the CSC’s report
came out, it was criticized even by the Liberals. Its recommendation to shorten
the mandatory period of incarceration of convicted murderers was perceived as
throwing oil into the fire, thus, inciting the Members of Parliament to vote in
favor of the reinstatement of the death penalty. As it actually happened, the poll-
sters had misread public opinion as usual, and when they realized that, the
Members of Parliament voted against the reestablishment of the death penalty.
Nevertheless, this coincidence between the publication of the CSC’s report and
the rekindling of the debate on capital punishment helped to push the report
further into the shadows. It also raises two important issues. The first issue is the
ever-increasing importance of pollsters and spin-doctors in the framing of the
public debate. The second, is whether experts should accommodate their mes-
sage and try to preempt the often devastating effects of public opinion polls.
Zeitgeist
There is, however, much more involved in the failure of the CSC than public
opinion polls. Paradoxically, some early commissions that were appointed before
we had begun to talk about the advent of the age of information or of the age of
knowledge were, at least in part, successful in generating reforms within Cana-
dian criminal justice (Canada, 1956, 1969b; Québec, 1968). It now seems that
the dramatic shift of the public mood toward intolerance, which we have been
experiencing since the mid-1980s, is now neutralizing any emancipatory effects
of the knowledge work performed by the latest commissions. This change of the
Zeitgeist has been variously interpreted. It was branded in North America as the
coming of age of the “politics of resentment.” Whatever its interpretation, it im-
plies a severance of the bond of civic solidarity that, not so long ago, still linked
the convicted offenders with the convicting society.
Concluding Remarks
After reviewing the role of expertise both in the application and the generation
of the criminal law in Canada and other Anglo-Saxon countries, I come to three
conclusions. First, technical expertise applied on a routine basis by low-ranking
professionals is playing an increasing role in criminal justice, at the expense of
scientific and research expertise. These professionals are integrated in the regular
staff of the criminal justice system and they individually attend to its daily oper-
ations. The truth of this first observation can be verified on a massive scale in the
field of private security, where devices, such as lie detectors, which produce as-
sessments not admissible as evidence in court, are routinely used. Second, the
growth of individual expertise, of the kind that I just described, has largely out-
paced the development of team expertise, such as was found in policymaking
commissions and other bodies devoted to the study of criminal justice problems.
Not only are policy commissions on the wane, but government agencies are re-
ducing their research departments, when not getting rid of them altogether.
Finally, Habermas develops the concept of an “emancipatory cognitive interest”
(Habermas, 1972, p. 198), in which the mature (mündig) pursuit of knowledge
for its own sake coincides with its investment in the self-formation of the human
species (p. 197f. and p. 210). As I read him, Habermas establishes a key connec-
tion between knowledge and freedom (or self-realization) through the notion of
emancipation. Expressed in this terminology, my third conclusion is that exper-
tise no longer serves an emancipatory interest in the field of criminal justice, as it
is essentially used to pursue security, viewed as a set of limitations imposed upon
the freedom of others. Taken together, my three conclusions would point to the
emergence of what could be called techno-managerialism in the field of criminal
justice.
At the end of this chapter, I would like to state something about what I be-
lieve to be the present predicament. One hears constantly that we have entered
into the information age (Castells, 1996, 1997, 1998), the knowledge society
(Stehr, 1994), or the millennium of intelligence. Although I basically agree with
these descriptions, I would like to introduce a caveat, to which I shall give the
name of the “Berkeley Syndrome.” Bishop George Berkeley is, with John Locke
and David Hume, one of the three great British empiricist philosophers of the
18th century. His name is forever associated with the enigmatic dictum “esse est
percipi, ”which is translated as “to be is to be perceived.” I will take this dictum at
its face value and avoid being embroiled in its much debated significance.
It seems to me that the world we live in, with respect to criminal justice, is
not the world as it is known, but the world as it is perceived. The crucial differ-
ence between a world of knowledge and a world of perception is the following:
The world is known according to scientific rules of construction that break with
common sense or, to borrow an expression from Edmund Husserl, with the Le-
benswelt (the world as concretely experienced in actual life) . Although the ideal
of truth is never achieved under these rules, and even if this ideal loses some of
its significance under a view of science that is radically constructivist, epistemic
validity is at least pursued. However, the world is now increasingly perceived

within a sphere of pretended common sense or perverted Lebenswelt that has lost
all immediacy and that is, in great part, under the spell of what we call in North
America spin-doctors, who manipulate common sense and manufacture percep-
tions. Within this overheated sphere of conflicting and flicking perceptions, all
scientific expertise dissolves like wax over fire. It has repeatedly been my experi-
ence, over the last decade, that in North America policymaking in the field of
criminal justice has been much more influenced by the policymakers’ beliefs on
how the world is perceived and acted out by “the majority,” whether it be silent,
vocal, moral, or otherwise, than by what we actually know about this world. The
next years may witness the rise to prominence of a relatively new type of expert:
not the expert on how things are, nor the expert on how things are known, but
the expert on how they are perceived and mythologized for political ends.
References
Bell, D. (1966, Spring). Government by commission. The Public Interest, 3, 3–9.
Bericht des Senats über Absichten und Umsetzungen der Empfehlungen des Parlamentarischen
Untersuchungsausschusses “Hamburger Polizei,” Hamburg, Mitteilung des Senats an die
Bürgerschaft (Drucksache 15/75/14, 03.06.97).
Bonta, J., Harman, W. G., Hann, R. G., & Cormier, R. B. (1996). The prediction of recidivism
among federally sentenced offenders: A re-validation of the SIR scale. Canadian Journal of
Criminology, 38(1), 61–79.
Brodeur, J.-P. (1984). La délinquance de l’ordre. Montréal, Canada: Hurtubise HMH.
Brodeur, J.-P. (1990, June). Computers and the law. UBC sentencing database. Final report. Ottawa,
Canada: Department of Justice.
Brodeur, J.-P. (1994). La criminologie entre savoir et pouvoir. In Science ou Justice? Les savants,
l’ordre et la loi. Paris: Éditions Autrement (Série Mutations/Sciences en Société No. 145).
Brodeur, J.-P. (1999). Sentencing reform. Ten years after the Canadian Sentencing Commission.
In J. V Roberts and D. P. Cole (Eds.), Making sense of sentencing (pp. 332–348). Toronto,
Canada: University of Toronto Press.
Canada. (1956). Report of a committee appointed to inquire into the principles and procedures followed
in the remission service of the Department of Justice of Canada (The Fauteux Report). Ottawa,
Canada: Queen’s Printer and Controller of Stationery.
Canada. (1966). Report of the Commission of Inquiry into complaints formulated by George Victor Spen-
cer (The D.C. Wells Report). Ottawa, Canada: Queen’s Printer and Controller of Stationery.
Canada. (1969a). Abridged report of the Royal Commission on Security (The Mackenzie Report).
Ottawa, Canada: Queen’s Printer and Controller of Stationery.
Canada. (1969b). Report of the Canadian Committee on Corrections. Toward unity: Criminal justice
and corrections. Ottawa, Canada: Queen’s Printer and Controller of Stationery.
Canada. (1981a). Second report of the Commission of Inquiry concerning certain activities of the Royal
Canadian Mounted Police: Freedom and security under the law (The Second McDonald Report,
Vols. I & II). Ottawa, Canada: Minister of Supply and Services.
Canada. (1981b). Third report of the Commission of Inquiry concerning certain activities of the Royal
Mounted Police (The Third McDonald Report). Ottawa, Canada: Minister of Supply and Ser-
vices.
Canada (1985). Revised Statutes of Canada, c. I–11, s, 2. Ottawa, Canada: Minister of Justice.
Canada. (1987). Sentencing reform: A Canadian approach. Report of the Canadian Sentencing Com-
mission. Ottwa, Canada: Ministry of Supply and Services.
Canada, Criminal Code. (1996). Anglais et Français. Montréal, Canada: Wilson et Lafleur.
Canada, Criminal Code. (1998). Anglais et Françis. Montréal, Canada: Wilson et Lafleur.
Canada, House of Commons. (1995). Bill C–41. Ottawa, Canada: House of Commons.
Canada, House of Commons. (1983). Bill C–157. Ottawa, Canada: House of Commons.
Canada, House of Commons. (1990). In flux but not in crisis. A report of the House of Commons
Special Committee on the review of the Canadian Security Intelligence Service Act and the Security
Offenses Act. Ottawa, Canada: Canadian Government Publishing Centre, Supply and Services
Canada.
Canada, Senate. (1983). Delicate balance: A security intelligence service in a democratic society. Report
of the Special Committee of the Senate on the Canadian Security Intelligence Service. Ottawa,
Canada: Minister of Supply and Services.
Canada, Solicitor General. (1991). On course: National security for the 1990s. Ottawa, Canada:
Minister of Supply and Services.
Canada, Statutes of Canada. (1997). Bill C–55, c. 17. Ottawa, Canada: Minister of Justice.
Canada, Statutes of Canada. (1995). Bill C–41, c. 22. Ottawa, Canada: Minister of Justice.
Castells, M. (1996). The rise of network society. The information age: Economy, society and culture
(Vol. 1). Oxford, UK: Blackwell Publishers.
Castells, M. (1997). The power of identity. The information age: Economy, society and culture (Vol. 2).
Oxford, UK: Blackwell Publishers.
Castells, M. (1998). End of millennium. The information age: Economy, society and culture (Vol. 3).
Oxford, UK: Blackwell Publishers.
CSC—Canadian Sentencing Commission. (1987). Sentencing reform: A Canadian approach.
Report of the Canadian Sentencing Commission. Ottawa, Canada: Minister of Supply and Ser-
vices.
d’Ombrain, N. (1997). Public inquiries in Canada, Canadian Public Administration, 40(1), 86–
107.
Doob, A. N., & Park, N. W. (1987). Computerized sentencing information for judges: An aid to
the sentencing process. Criminal Law Quarterly, 30(1), 54–72.
Ericson, R. V., & Hagerty, K. D. (1997). Policing the risk society. Toronto, Canada: University of
Toronto Press.
Foster, K. R., & Huber, P. W. (1997). Judging science. Scientific knowledge and the federal courts.
London, UK: MIT Press.
Foucault, M. (1975). Surveiller et punir. Paris: Gallimard.
Foucault, M. (1976). La volonté de savoir. Paris: Gallimard.
Franson, R. T. (1985). The centre for the study of computers and the law. Canadian Computer Law
Reporter, 3(2), 31–39.
Freckelton, I. (1990). DNA profiling: A legal perspective. In J. Robertson, A. M. Ross, & L. A.
Burgoyne (Eds.), DNA in forensic science (pp. 156–158). New York: Ellis Harwood.
Gendreau, P., Little, T., & Goggin, C. (1996). A meta-analysis of the predictors of adult offender
recidivism: What works! Criminology, 34, 575–607.
Gottfredson, D. M. (1987). Prediction and classification in criminal justice decision making. In
D. M. Gottfredson & M. Tonry (Eds.), Prediction and classification. Criminal justice decision
making: Crime and justice. A review of research (Vol. 9, pp. 1–21). Chicago, IL: The University
of Chicago Press.
Gottfredson, D. M., & Tonry, M. (Eds.). (1987). Prediction and classification. Criminal justice deci-
sion making: Crime and justice. A review of research (Vol. 9). Chicago, IL: The University of
Chicago Press.
Gottfredson, M., & Gottfredson, D. M. (1980). Decision-making in criminal justice. Cambridge,
MA: Ballinger.
Gray, P. N. (1997). Artificial legal intelligence. Aldershot, UK: Dartmouth.
Greenwood, P. W., & Abrahamse, A. (1982). Selective incapacitation. Santa Monica, CA: The
Rand Corporation.
Habermas, J. (1972). Knowledge and human interests (J. J. Shapiro, Trans.). Boston, MA: Beacon
Press. (Original work published 1968)
Hanson, R. K., & Harris, A. (1998). Dynamic predictors of sexual recidivism (User Report 1998-01).
Ottawa, Canada: Solicitor General of Canada.
Hirsch, A. von. (1985). Past or future crimes—Deservedness and dangerousness in the sentencing of
criminals. New Brunswick, NJ: Rutgers University Press.
Hirsch, A. von, & Ashworth, A. (1992). Principled sentencing. Boston, MA: Northeastern Univer-
sity Press.
Hirsch, A. von, & Gottfredson, D. M. (1984). Selective incapacitarion: Some queries about re-
search design and equity. New York University Review of Law and Social Change, 12, 11–51.
Istituto per la documentazione guiridica, Consiglio Nazionale delle Ricerce. (1992). Information
technology and the law: An international bibliography (2 vols.). The Hague, The Netherlands:
Martinus Nijhoff.
Jackson, J. L., & Bekerian, D. A. (1997). Offender profiling: Theory, research and practice. New
York: Wiley.
Jasanoff, S. (1990). The fifth branch. Science advisers as policymakers. Cambridge, MA: Harvard
University Press.
Jasanoff, S. (1995). Science at the bar: Law science and technology in America. A twentieth century
fund book. Cambridge, MA: Harvard University Press.
Johnson, L. K. (1985). A season of inquiry: The senate intelligence investigation. Lexington, KY: The
University Press of Kentucky.
Johnston, P. L. (1987). Court-appointed scientific expert witnesses: Unfettering expertise. High
Technology Law Journal, 2(2), 249–279.
Knorr-Cetina, K. D. (1981). The manufacture of knowledge. An essay on the constructivist and con-
textual nature of science. Oxford, UK: Pergamon Press.
Langbein, J. H. (1985). The German advantage in civil procedure. The University of Chicago Law
Review, 52(4), 823–832.
Leblanc, M. (1983). Boscoville: La rééducation évaluée. Montréal, Canada: Hurtubise HMH.
Legault, F. (1995). La preuve d’expert: Aspects pratique. Point de vue de la poursuite. In Septième
journée d’étude de l’association des avocats de la défense de Montréal (pp. 43–61). Cowansville,
Canada: Les Éditions Yvon Blais.
Lehman, W. (1968, May), Crime, the public and the crime commission: A critical review of the
challenge of crime in a free society. The Michigan Law Review, 66, 1487–1540.
Lovegrove, A. (1989). Judicial decision making, sentencing policy, and numerical guidance. Berlin,
Germany: Springer.
Manning, P. K. (1988). Symbolic communication. Signifying calls and the police response. Cambridge,
MA: MIT Press.
Manning, P. K. (1992). Information technologies and the police. In M. Tonry & N. Morris (Eds.),
Modern policing, crime and justice. A review of research (Vol. 15, pp. 349–398). Chicago: The
University of Chicago Press.
Martino, A. A. (Ed.). (1992). Expert systems in law. Amsterdam, The Netherlands: North-Holland.
Martino, A. A., Natali, F. C., & Binozzi, S. (Eds.). (1986). Automated analysis of legal texts. Amster-
dam, The Netherlands: North-Holland.
Menzies, R. J. (1985). Doing violence: Psychiatric discretion and the prediction of dangerousness. Un-
published doctoral dissertation, University of Toronto, Canada.
Menzies, R. J. (1989). Survival of the sanest. Toronto, Canada: Toronto University Press.
NAC—National Archives of Canada, Government Archives Division. (1990). Records of federal
royal commissions (2 vols.). Ottawa, Canada: Minister of Supply and Services Canada.
Ontario. (1980). Report of the Commission of Inquiry into the confidentiality of health information
(The first Krever Report). Toronto, Canada: Queen’s Printer for Ontario.
Poirier, R. (1998). Expertise scientifique et justice pénale: Une étude socio-criminologique sur le fonc-
tionnement des tribunaux. Thèse présentée et acceptée pour l’obtention d’un diplôme de doctorat le
27 février 1998. Montréal, Canada: Université de Montréal, disponible au Centre de docu-
mentation de l’École de criminologie de l’Université de Montréal.
Popper, F. (1970). The president’s commissions. New York: Twentieth Century Fund.
President’s Commission on Law Enforcement and the Administration of Justice. (1967). Report:
The challenge of crime in a free society. Washington, DC: US Government Printing Office.
Québec. (1968). La société face au crime. Rapport de la commission d’enquête sur l’administration de
la justice en matière criminelle et pénale au Québec. Québec, Canada: Gouvernement du
Québec, Éditeur officiel du Québec.
Québec. (1981). Rapport de la commission d’enquête sur des opérations policières en territoire Qué-
bécois (The Keable Report). Québec, Canada: Ministère des Communications.
Robertson, J., Ross, A. M., & Burgoyne, L. A. (Eds.). (1990). DNA in forensic science. New York:
Ellis Harwood.
Robitscher, J. (1980). The powers of psychiatry. Boston, MA: Houghton Mifflin.
Salter, L., & Slaco, D. (1982). Les enquêtes publiques au Canada. Ottawa, Canada: Conseil des sci-
ences du Canada (Étude de documentation No. 47).
Saltzburg, S. (1993). Judicial control of scientific evidence: The implications of DAUBERT.
Framework of the issues. Scientific Evidence Review, Monograph No. 2, 7–16. (Ed. by Standing
Committee on Scientific Evidence Section of Science and Technology, American Bar Associa-
tion)
Schmitt, C. (1990). Du politique: “Légalité et légitimité; et autres essais”. Puiseaux, France: Pardès,
Schmitt, C. (1993). Théorie de la constitution (L. Deroche, Trans.). Paris, France: Presses Universi-
taires de France.
Schwartz, B. (1997). Public inquiries. Canadian Public Administration, 40(1), 72–85.
Sherman, L. W. (1978). Scandal and reform: Controlling police corruption. Berkeley, CA: University
of California Press.
Smith, J. S., & Kiloh, L. G. (1974), Psychosurgery and society. Oxford: Pergamon Press.
Stehr, N. (1994). Knowledge society. London, UK: Sage.
Stehr, N., & Ericson, R. V. (Eds.). (1992). The culture of power and knowledge: Inquiries into con-
temporary society. Berlin, Germany: de Gruyter.
Susskind, R. E. (1987). Expert systems in law Oxford, UK: Clarendon Press.
Susskind, R. E. (1993). Essays on law and artificial intelligence. Oslo, Norway: Tano.
Susskind, R. E. (1996). The future of law. Oxford, UK: Clarendon Press.
Susskind, R. E. (2000). Transforming the law. Essays on technology, justice and the legal market. New
York: Oxford University Press.
Tremblay, R. E., & Craig, W. M. (1995). Developmental crime prevention. In M. Tonry & D. P.
Farrington (Eds.), Building a safer society. Strategic approaches to crime prevention, crime and jus-
tice. A review of justice (Vol. 19). Chicago: The University of Chicago Press.
US Department of Justice. (1973). Executive summary—Reports of the National Advisory Commis-
sion on Criminal Justice Standards and Goals. Washington, DC: Law Enforcement Assistance
Administration.
Wilson, J. Q. (1967). A reader’s guide to the crime commission reports. The Public Interest, Fall
1967 (4), 64–82.
Cases Cited
Barefoot v. Estelle, 463 US 880, 103 S. Ct. 3383 (1983).
Estelle v. Smith, 451 US 454, 101 S. Ct. 1866 (1981).
William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786 (1993).
Chapter 8
Air Pollution Control: Who Are the Experts?
Matthias Heymann
Munich Center for the History of Science and Technology
c/o Deutsches Museum, 80306 Munich, Germany
matthias.heymann@mzwtg.mwn.de
In July 1998, the Scientific Steering Committee of EUROTRAC, the largest

European research project on tropospheric air pollution problems, made an un-
usual decision. Its members, all of them renowned atmospheric scientists, ac-
cepted a historical project on air pollution as a subproject. EUROTRAC was es-
tablished in 1986 to support the scientific understanding of emissions, trans-
port, chemical transformation, and deposition of atmospheric pollutants. It has
the explicit goal to improve the scientific basis for political decisions related to
air pollution problems. In 1990, EUROTRAC included 14 coordinated sub-
projects dealing with laboratory and field experiments, computer simulation
projects, and measurement techniques. These subprojects involved more than
200 individual scientific projects and more than 500 scientists, mostly physicists,
chemists, and meteorologists from 17 European countries (Isaksen, 1991, p. 16).
In 1996, a second phase started (EUROTRAC-2). The historical project Tropo-
spheric Air Pollution Problems and Air Pollution Abatement in Europe since 1945
(TRAP45) became the 12th subproject of EUROTRAC-2; its purpose was to
investigate historical perspectives of air pollution and air pollution control in
post-war Europe. In particular, its goals were to analyze roots and causes of air
pollution problems in Europe, to support the integration of information and
knowledge on air pollution, and to improve the identification of shortcomings
or neglected problems regarding air pollution control (Heymann, 1998; for fur-
ther details see http://www.gsf.de/eurotrac/index_subprojects.html).
It appears somewhat surprising to include historical research in an atmos-
pheric science research project. Air pollution research has traditionally been a
field dominated by experts from the technical and natural sciences. Is there any
need for historical expertise to support atmospheric sciences and air pollution
control policy? What are the historical questions that need to be answered and
what can historians (and, more generally, social scientists) contribute? There is
general agreement that scientific expertise is needed for future air pollution con-
trol. But, it is less clear what kind of knowledge and expertise is needed.
Scientific experts have struggled to help control air pollution. They have been
involved in all major steps of problem analysis and in the formation of air pollu-
159
160 Matthias Heymann
tion control policies (Jasanoff, 1990; Salter, 1988; Wolf, 1986). But, in spite of
several decades of environmental research and environmental policy and despite
an enormous growth of scientific knowledge and environmental legislation, air
pollution problems remain among the most important environmental concerns
in Europe. Emissions of sulfur and nitrogen oxides, volatile organic compounds
(VOCs), and carbon monoxide still cause problems of acid formation, photo-ox-
idant pollution (e.g., ozone), and eutrophication (by the deposition of nutrients
in ecosystems). Emissions of chlorofluorocarbons (CFCs) and other compounds
threaten the ozone layer in the stratosphere. Also, emissions of carbon dioxide,
methane, and other pollutants may cause global warming. There is common
agreement that there is still a lack of perspectives for comprehensive solutions to
these problems (Grant, 1999; Schneider, 1998).
In this chapter, I argue that air pollution has been perceived mainly as a tech-
nological problem, to be delegated to technical experts, such as engineers. Only
recently, and with much reluctance, has it become clear that the problem is not
only technological, but involves experts outside the technical domain, such as
economists, social scientists, and even historians (Miller & Edwards, 2001; Stehr
& von Storch, 1999). Despite the spreading of this insight, the need for social
and historical research on air pollution control has rarely been recognized.
When Air Pollution Became a Problem

Air pollution is not a new problem. It has received growing attention, particu-
larly since the 19th century, when a strong rise in coal combustion as well as in
other industrial processes caused extreme local and regional air pollution with
dramatic effects on vegetation and health (Andersen, 1996; Brimblecombe,
1987; Brüggemeier, 1996). Large quantities of smoke and sulfur emissions
heavily affected the local environment. Most attention in the 19th and early
20th century focused on smoke pollution, though the deleterious effects of sul-
furic acid, formed from sulfur emissions, was known by the mid-19th century.
The construction of high stacks became the most important measure to relieve
local pollution. Due to growing coal consumption and growing industrial activ-
ity, however, pollution problems continued, increased, and affected ever larger
regions. More effective abatement approaches remained elusive. In 1927, a com-
mission on smoke pollution in the Ruhr area summarized the “deplorable result
(...) that yet no means exist to remove, from the smoke gases, the sulfuric acid
which is so harmful to plants. (...) The fight against smoke damages, which is an
especially important goal, has to be considered hopeless for the time being.”
(Spelsberg, 1984, p. 159; translation M. H.). Little change occurred until World
War II.
After the war, dust and sulfur dioxide concentrations reached intoler-
able levels in industrial and densely populated regions such as the Ruhr area. Pol-
lution problems caused increased political attention and motivated the introduc-
tion of air pollution control measures, mainly the construction of higher stacks
Air Pollution Control 161
Figure 1. Estimated costs of environmental pollution in Germany in the early

1980s according to the German Federal Environmental Agency (Umweltbundesamt,
cited in Wicke, 1986).
and the installation of dust filters in the stacks’ large emission sources. In the fol-
lowing years, industrial stacks reached a height of up to 300 m; thus, large
share of pollutants was transported away over great distances (Prittwitz, 1984).
These measures proved very successful. By the 1960s, atmospheric dust and sul-
fur concentrations in the Ruhr area were reduced significantly, though sulfur
emissions still increased. It took two more decades before large emission sources,
such as power plants, were legally forced to install desulfurization equipment.
This measure also proved extremely successful. Sulfur emissions were reduced
sharply within a few years in Germany, and in many other countries in Western
Europe, in the USA, in Canada, and in Japan (Organisation for Economic Co-
operation and Development [OECD], 1991; United Nations Environment Pro-
gram [UNEP], 1993). In the Ruhr area, the average concentration of fell
from approximately in 1964, to approximately in 1980,
and in 1988 (Brüggemeier & Rommelspacher, 1992, p. 69). Emis-
sions of nitrogen and VOCs, in contrast, kept rising until the late 1980s and
stagnated in the 1990s. Most experts believe that emission levels of these com-
pounds are still far too high in many regions (United Nations Economic Com-
mission for Europe [UNECE], 1995a, 1996).
Despite several decades of environmental research and environmental policy,
dying forests and acidified lakes, health hazards and crop losses, material degrada-
tion and building damage caused by air pollution are still ubiquitous throughout
Europe. Air pollution remains one of the most troublesome environmental prob-
lems in the European Union (EU). Air pollution in Germany is believed to cause
greater monetary damage than any other environmental problem (Figure 1).
Problem Solving With Technology

Anthropogenic air pollution is caused by technical processes and has been con-
sidered mainly a technical problem. Since the 19th century, air quality control
efforts have focused on technical means, such as high stacks, improved combus-
tion techniques, and filter technologies (Brimblecombe, 1987). By approxi-
mately 1850, as many as 146 patents in England and 43 patents in France had
been granted for smokeless combustion devices. At that time, smoke emissions
were understood to be caused by incomplete burning. More efficient burning
processes were sought both to save coal resources and avoid emissions. In
Autumn 1881, an international exhibition of smokeless combustion devices
took place in London. In May 1890, the Association of German Engineers
(Verein Deutscher Ingenieure [VDI]) announced an award of 4,000 German
marks for combustion techniques that would work as smoke-free as possible.
Only two suggestions were submitted, neither of which was deemed worthy to
receive the award (Spelsberg, 1984, p. 90ff.). All efforts to provide better com-
bustion techniques remained insufficient to control air pollution. Smoke-free
combustion proved impossible.
High stacks appeared to be the best compromise to reconcile the conflicting
interests of the industry and of the local population (Uekötter, 1996). In the late
19th century, municipalities in Germany usually required a stack height of 20 m
for industrial establishments in urban areas (Brüggemeier, 1996, p. 112f.). Last-
ing disputes on the effects of air pollution were raised in the case of the metal-
lurgical works around the Saxonian town of Freiberg. In the 1840s, the govern-
ment of Saxony funded comprehensive scientific investigations by Stöckhardt in
Tharandt near Freiberg. These investigations confirmed the deleterious effects of
the polluted air. As restrictions of production were to be avoided, in 1860, a
60 m stack was built. Twenty-nine years later, in 1889, a new 140 m stack was
erected, which remained the highest stack in Europe for several decades. Yet,
complaints about nuisances, health effects, and vegetation damage continued.
Instead of providing lasting relief, the use of high stacks rather increased the size
of the areas affected by air pollution (Andersen, 1996; Andersen, Ott, &
Schramm, 1986; Brüggemeier, 1996, p. 161ff.). Numerous experiments with
additional devices, such as condensation chambers, subterranean canal systems
to divert smoke, or improved ovens, had been performed in Freiberg, but no
measure proved successful enough to effectively reduce the emissions (Brügge-
meier, 1996, p. 192).
Prior to World War I, electric dust filters with an efficiency of 98% were
available but very expensive to apply (Brüggemeier, 1996, p. 214). Likewise, the
removal of sulfur was a matter of research. In 1933, the London Battersea power
station was equipped with a sulfur washing device that needed 35 tons of water
from the Thames for 1 ton of burned coal. It proved costly and inefficient and
was abandoned soon after (Wey, 1982, p. 192f.). After World War II, when pol-
lution levels reached new dimensions, filter and desulfurization technologies be-
came an important feature of air quality control policy. While efforts grew rap-
idly in the post-war period, approaches and strategies essentially did not change.
High-stack policies became professionalized, and stack heights quickly increased.
Since the 1980s, legal measures have forced the application of filter technologies
such as desulfurization and denitrification techniques to reduce sulfur and nitro-
gen emissions of large power plants. Elsewhere, the catalytic converter, along
with more efficient engine technologies, became the major hope to control vehi-
cle emissions.
Polluted Air and Messy Regulations

In the 19th century, the conflict between the economic goal of industrial growth
and the objective of a healthy and clean environment emerged. Usually, eco-
nomic goals had priority and limited the effect of air quality control measures
and legislation. In the United Kingdom, the “early smoke abatement clauses
failed to work partly because administrators tended to be sympathetic to the
needs of industry” (Brimblecombe, 1995, p. 4; see also Ashby & Anderson,
1981). For Germany, Gilhaus described an industry-friendly policy of the cen-
tral government in Berlin, which often corrected decisions of local administra-
tions with stronger interest in environmental protection. “As a result, environ-
mental standards were continually reduced” (Gilhaus, 1995, p. 316; see also
Brüggemeier, 1996, p. 124). The protection of neighborhoods, vegetation, and
material goods largely shifted from governmental responsibility to a matter of
civil law. Victims of air pollution now had to file legal suits against industrial es-
tablishments causing emissions. The accusing party was obliged to provide clear
evidence that polluted air caused the observed damages and that a causal relation
of emissions and damages existed. Usually, such evidence was impossible to pro-
vide. As a consequence, traditional neighborhood rights were “abolished in al-
most all German states by legislation,” as a contemporary stated (Brüggemeier,
1996, p. 148).
A reconciliation of economic and environmental goals seemed impossible.
Legislators rather adopted soft approaches to environmental regulation intended
both to protect industrial development and avoid intolerable levels of environ-
mental pollution (Prittwitz, 1984, p. 50ff.). Such regulations involved indefinite
legal terms that implied a flexibility of interpretation and transferred the respon-
sibility of solving conflicting interests from the governments to local administra-
tions and courts (Wolf, 1986). In Germany, a gradual increase of emissions was
legitimized by allowing industrial establishments to pollute the air according to
common local conditions (Ortsüblichkeit). As air pollution had quickly become a
common local condition in many regions, an increase of air pollution appeared
legally justified. Local administrations had to grant permits for the construction
of industrial establishments. They could demand technical requirements such as

high stacks in order to guarantee a minimum protection in the affected neigh-
borhood. Once a permit was granted, it guaranteed continuous protection of the
industrial establishment.
Legal requirements of emission control according to the state of technology
(Stand der Technik) and according to economic reasonableness (wirtschaftliche
Zumutbarkeit) created problems of interpretation. Local administrations had to
resolve the conflicting interests of industrial promotion and environmental pro-
tection and decide on tolerable levels of air pollution. The lack of precision of
legal terms produced considerable uncertainties. The actual implementation of
regulations varied from region to region, as several case studies have shown
(Brüggemeier, 1996; Gilhaus, 1995; Uekötter, 1996, 2001). Mitigation of air pol-
lution remained difficult and very much dependent on personal competence and
engagement in local administrations. Local administrations, however, were usually
not adequately equipped with manpower and expertise to provide for (more effec-
tive) air pollution control (Gilhaus, 1995, p. 399). Common consensus until the
1970s became the protection of industrial growth with an attempt to soften its
impact on air pollution by a high-stack policy. Air quality control policy largely
narrowed to the formulation of technical rules and regulations such as the Ger-
man Technical Regulations for Air Quality (Technische Anleitung Luft [TA Luft]).
A major step to broaden air quality control policy in Germany was the Air
Quality Protection Law of 1974 (Bundesimmissionsschutzgesetz). This law turned
air quality control from a peripheral matter of industrial code to a central obliga-
tion of the government providing the legislator with far more opportunities for
legal intervention. The law was received with considerable enthusiasm by com-
mentators, because it included a fundamental conceptual change from a policy
of technical regulation to a policy of precaution and environmental protection.
The law obliged the administrations to take action in cases of high pollution lev-
els (Müller, 1986, p. 186ff.; Wolf, 1986, p. 161ff.). The impact of the law re-
mained very limited in the first years. As Mayntz (1978) explained, the limited
impact was due to implementation problems. Responsible authorities lacked per-
sonnel, expertise, and technical information and equipment to monitor air pol-
lution. Furthermore, due to limited resources the authorities had to fear involve-
ment in legal cases. Mayntz concluded that these conditions “nearly compelled
(the authorities) to avoid conflicts and limit administrative costs” (p. 53). Never-
theless, after considerable political struggles the Regulation of Large Burners
(Großfeuerungsanlagenverordnung) was finally launched in 1983 and compelled
large power plants to install desulfurization and denitrification equipment.
With the increased interest in environmental protection since the 1970s,
Germany witnessed a rapid expansion of environmental policy and legislation.
In the 1980s, environmental legislation had become a highly complex and rather
disparate matter due to the increased number of national and international regu-
lations and norms. In the mid-1980s, German environmental legislation had
adopted about 1,350 different norms related to pollution control. This set of
norms has been described as a “messy collection of highly different and specific
regulations” (Sammelsurium höchst unterschiedlicher Spezialregelungen) and as a

“chaos of norms” (Normenwirrwarr). (Wolf, 1986, p. 19, p. 186). A unified and
consistently structured environmental legislation has not yet been achieved
(Kloepfer, 1994).
Under Control?
As early as the 19th century, damages caused by air pollution motivated system-
atic research on the roots of air pollution and the effects on vegetation and
health. An early example is Stöckhard’s work, which indicated a causal relation
between air pollution and health damages in the area of Freiberg, a causal rela-
tion of air pollution and damages that could be established with scientific evi-
dence. Experiments suggested that even low levels of sulfur concentration caused
damages and health problems. But, no agreement could be reached on effective
environmental protection measures, because industrial production goals had po-
litical priority (Brüggemeier, 1996, p. 193ff.).
What impact did this, and other early scientific studies, have on air quality
control? The answers to this question differ considerably. According to Spelsberg
(1984, p. 38f.), research efforts related to air pollution remained a limited and
rather insignificant political force in air pollution control. They contributed
little to making air pollution problems a matter of public and political debate.
Gilhaus emphasized that more effective air pollution prevention was hampered
by “strong institutional shortcomings and a lack of personnel in the field of sci-
entific research and consultancy” (Gilhaus, 1995, p. 399). Authorities lacked
measurement technology and scientific competence. The amount and quality of
air quality measurements remained poor and reduced the credibility and politi-
cal impact of scientific results (p. 131ff.).
The historian Uekötter (1996) investigated urban air pollution in Berlin,
Stuttgart, and Bremen in the late 19th and early 20th century. Based on an
analysis of contemporary technical literature, he considered a technical solution
of smoke pollution possible at that time. In his interpretation, air pollution con-
trol was an organizational, not a technical problem. “The bottle-neck (of an ef-
fective strategy against smoke pollution) was the coordination and organization
of an adequate abatement strategy.” It mainly lacked a “constructive dialogue” of
technical and legal experts and a clear responsibility for smoke reduction. Air
pollution became a ubiquitous and growing problem, because no political group
or authority existed that would have been willing, and able, to establish adequate
organizational conditions for air pollution control (p. 13ff.).
From case studies of 19th century industrial air pollution in Germany, Italy,
and Belgium, Stolberg (1994) drew the conclusion that scientific experts began
to play an important role, not for the abatement of air pollution, but for legiti-
mizing industrialization and creating acceptance for its negative impacts. Ac-
cording to Stolberg, the question of tolerable pollution levels could not be
answered with scientific rigor, but had to be based on value decisions. Whereas
statements and recommendations from scientists carried authority, environmen-

tal interests and arguments of the local population often remained unheard. As a
result, scientists helped “to make the pollution of air and water acceptable as an
indispensable consequence of striving for progress, prosperity, and labor”
(p. 304). A similar tendency of professionalization of expertise and a shift of po-
litical influence was observed in the 20th century. According to Wey (1982), the
investigation and discussion of air pollution problems shifted from political or
public institutions to scientific conference rooms. The problem of air pollution
was gradually transformed from a matter of public interest and debate to a
matter of expert discourse. As a result, two different approaches to environmen-
tal protection existed and remained separated: conservation of nature and tech-
nology-oriented environmental protection. These strategies never became linked
and integrated into a consistent concept of pollution control (p. 13ff.).
Stolberg, Wey, and Wolf described a de-politicization of pollution control in
the 19th and 20th century that lasted until the 1970s. Developments since the
1970s, on the other hand, have been interpreted as a re-politicization of pollu-
tion control (Müller, 1986, p. 56ff.; Wolf, 1986, p. 161ff.). With the rise of the
environmental movement, political interest in environmental matters increased.
While scientific expertise apparently contributed to a de-politicization of pollu-
tion control up to the 1970s, the re-politicization of environmental matters did
not reduce its importance. Quite to the contrary, investments in policy-oriented
research grew considerably. Scientific expertise became a matter of great public
and political interest.
Research After 1945: Who Are the Experts?

Growing air pollution problems fostered an extraordinary growth of air pollu-
tion research in post-war Europe. Knowledge about air pollution was largely in-
sufficient in the 1950s. Data on emissions and emission sources were incomplete
and unreliable (only for the largest sources did any data exist), little information
on atmospheric transport processes was available, and what was known lacked
details about the effects of air pollution (e.g., critical levels of pollutant concen-
trations). Concepts for comprehensive control strategies did not exist. The
growth of research on air pollution since the 1950s is mirrored by a rising flood
of scientific publications. In the 1950s, the number of publications on air pollu-
tion world-wide jumped from about 160 annually in the pre-war years to more
than 800 (Halliday, 1964, p. 3). The atmospheric scientist Stern counted about
3,600 scientific publications on air pollution in the first half of the 20th century
compared to about 60,000 publications in the period 1952–1976 (Stern, 1977,
p. 1022; see Figure 2). Research efforts for atmospheric and climate research,
funded by the German federal and state governments, grew by almost 29%
annually, from 6.2 million DM in 1979 to 168 million DM in 1992 (Bundes-
ministerium für Forschung und Technologie [BMFT], 1990, p. 347; Wissen-
schaftsrat, 1994, p. 138).
Figure 2. Number of scientific publications on air pollution (based on counts

published in Halliday, 1964; Spelsberg, 1984; Stern, 1977).
Not surprisingly, post-war research efforts and scientific expertise on air

pollution remained characterized by a technology orientation. The VDI estab-
lished a commission for air quality control in 1957. The VDI Commission be-
came the leading institution of expertise for clean air policy. It set up numerous
working groups in four major fields of research (Spiegelberg, 1984, p. 47ff.):
(1) origin and emission of dust and gases (700 experts in 75 working groups in
1983); (2) transport and deposition of dust and gases (24 working groups in
1983); (3) effects on human health, animals, vegetation, and material goods
(approx. 170 experts in 37 working groups); and (4) measurement technolo-
gies and technological problems (450 experts in 50 working groups). Experts
in the VDI Commission came from industry (48.2%), universities and research
institutes (23.8%), from governmental authorities (16.6%), and other institu-
tions. The professional background was mainly engineering, physics, or chem-
istry (76.2%), and to a minor degree medical sciences, biology, forestry, and so
forth (14.5%). Economists, legal scientists, and social scientists played only a
marginal role (Wolf, 1986, p. 147f.). The VDI Commission worked out tech-
nical regulations supportive of legal air quality control measures. An example is
the technical regulation for the construction of high stacks that was set forth in
1964 (Technische Anleitung Luft, 1964). It described the application of sophis-
ticated calculation techniques for the determination of the required minimum
height of stacks (Prittwitz, 1984, p. 71f.).
Figure 3. Number of research projects on air pollution funded by the German

Federal Environmental Agency (Umweltbundesamt) in engineering, the natural,
and the social sciences (calculated from project listings of the German Federal
Environmental Agency).
In the period 1974–1995, approximately 64% of all projects on air pollution

problems funded by the German Federal Environmental Agency were in engi-
neering, approximately 34% in the natural sciences, and only approximately
1.5% in the social sciences (Figure 3). In the technical and natural sciences air
pollution research reached a high degree of complexity, organization, and inter-
nationalization beginning in the 1970s. In 1978 the European Monitoring and
Evaluation Program (EMEP) was established by the UNECE. Hence, consider-
able research efforts flowed directly into policy-related negotiations (UNECE,
1995b). In 1988 the EUROTRAC program started to work and provided the
strongest European network of research in atmospheric sciences on tropospheric
air pollution.
The extent of research efforts and the degree of organization and internation-
alization in social research on tropospheric air pollution remained far lower. The
acidification problem raised considerable interest of social scientists in the 1980s
(Jänicke, 1990; Knoepfel & Weidner, 1983; Mayntz, 1978; Regens & Rycroft,
1988; Weidner, 1986; Wetstone & Rosencrantz, 1983). Most of these contribu-
tions focused on problems of policy implementation and international coopera-
tion. In the 1990s, the number of contributions from the social sciences on
problems related to tropospheric air pollution strongly declined. The interest
rather shifted to topics related to the problem of climate change (van der Sluijs,
1997). In 1996, the German government launched a new comprehensive re-
search program on tropospheric air pollution problems. As one of four key
actions of the program socio-economic research on tropospheric air pollution
had been planned. This part of the program, however, was never realized.
Supplementing Technology: Effect and Incentive Control

In the past years different air quality control strategies have been distinguished.
Various European countries, among them Germany, Austria, Switzerland, and
Sweden, applied emission reduction strategies based on the best available tech-
nology. These technology-based approaches allowed rather quick reductions of
emissions in important sectors. Environmental regulation forced the use of emis-
sion reduction technology such as desulfurization techniques in power plants or
the catalytic converter in motor vehicles. Technology-based approaches have the
advantage of a potentially quick implementation, because they do not require a
great deal of additional research (Heymann, Trukenmüller, & Friedrich, 1993).
Implementation of technological abatement measures has, in the past, rather
been a problem of institutional structures and political interest and power than a
problem of scientific understanding and evidence (Boehmer-Christiansen &
Skea, 1991; Mayntz, 1978; Uekötter, 2001; Wolf, 1986).
In recent years, however, scientists have objected that technology-based ap-
proaches are inefficient, because investments in air quality control based on best
available technology do not necessarily lead to a maximum reduction of environ-
mental damages. The investment in best technology to reduce emissions in a
particular sector may prove extremely expensive and less effective than invest-
ments of a comparable order of magnitude in other regions or sectors. This
problem becomes especially obvious in the international context. Investments in
Germany, dedicated to the further reduction of atmospheric acidification, are
likely to be much less effective than investments of the same order of magnitude
in Poland or the Czech Republic, which still use much older and less efficient
technology. The international context of air pollution has proved to be of partic-
ular importance, because large shares of total national emissions in Europe are
exported to other countries (Sandnes & Styve, 1992).
To recover from the shortcomings of technology-based approaches, from the
late 1980s scientists have suggested effects-based abatement strategies (Grennfelt,
Hov, & Derwent, 1994). Effects-based reduction strategies have the goal of im-
proving the cost effectiveness of air pollution control (best results with least
costs). As emission reduction measures cause considerable expense, it was be-
lieved to be a matter of great importance to provide knowledge on which atmos-
pheric pollutants to reduce, and to what degree to reduce them, in order to
achieve maximum environmental improvements. Effects-based strategies seek a
maximum reduction of deleterious effects caused by atmospheric pollution,
which may mean different emission reduction rates in different sectors and re-
gions and not necessarily maximum emission reduction in all sectors and re-
gions. These strategies, ideally, require full knowledge of the causal chain of
emissions and subsequent damages, that is, the causal relation of emissions,
atmospheric transport, deposition of pollutants, effects, and damages caused by
these pollutants, and the monetary value of these damages. Atmospheric scien-
tists in EUROTRAC and many other projects have focused on investigating the
relation between emissions and effects with the help of computer-based atmos-
pheric simulation models (source-receptor modeling). Based on knowledge of

actual emissions, meteorological parameters, atmospheric chemistry and deposi-
tion behavior, source-receptor relationships have been calculated. Based on such
calculations, the positive impact of potential emission reduction measures can be
investigated. This approach is called Integrated Assessment Modeling (LAM). It
implies, however, very complex and costly efforts in itself. Furthermore, it still
involves fundamental uncertainties (Heymann, 2000; van der Sluijs, 1997).
Effects-based emission reduction strategies have been applied in the frame-
work of the Convention on Long Range Transboundary Air Pollution (UN-
ECE, 1995b). The Second Protocol on Sulfur Emission Reduction, which was
signed in 1994, obliges the member states to reduce sulfur emissions according
to the damages they cause. Currently, there still is a large gap between actual
sulfur deposition in Europe and maximum deposition levels without negative
impacts on the environment (critical load). The agreement in the second sulfur
protocol demands member states to reduce this gap by 60% (60% gap closure)
by 2010. Due to different sensitivity of ecosystems, countries such as Spain and
Greece have to reduce their sulfur emissions by 35% and 4%, respectively, rela-
tive to emissions in 1980, while Germany, Sweden, and the United Kingdom
have to realize a reduction of sulfur emissions by 80% (ApSimon, Pearce, &
Özdemiroglu, 1997, p. 5).
Another area of research dedicated to air pollution control is environmental
economics. Economists have suggested substituting an environmental policy
that is based on a large number of individual regulations by the introduction of
new economic incentive systems compatible with environmental goals. Such in-
centive systems could include economic instruments such as environmental
taxes, for example, taxes on energy use or on emissions, or the purchase of
tradable emission permits, which allow the owner to release a particular amount
of emissions into the environment. The additional costs caused by environmen-
tal taxes, or by the purchase of emission permits, set an economic incentive to re-
duce emissions, if emission reduction measures (or energy saving measures)
could be expected to be cheaper. Strategies based on economic incentives have
the goal of shifting environmental control from regulative policy to market
mechanisms and, thus, relieving governmental authorities from preparing, im-
plementing, and controlling a huge set of environmental regulations and norms,
and relieving the industry from coping with hundreds of different regulations.
Yet, economic instruments remained, hitherto, marginal in European environ-
mental policy (Frey & Schneider, 1996; OECD, 1994).
Signs of Discomfort
Politicians, scientists, and environmentalists generally agree on the need for re-
search on air pollution. Recently, signs of discomfort regarding the quality and
applicability of scientific results for environmental policy have been notable. One
example is related to the EUROTRAC project. At the EUROTRAC Symposium
in 1990, the responsible official of the German Ministry of Research and Tech-
nology, Bernhard Rami, expressed some disappointment in his opening address.
He emphasized that “at some time the need will be very clear to tell the public
what EUROTRAC has done and what its exact contributions to solving the
pressing problems of air pollution are” (Rami, 1991). Two years later, reviewers of
EUROTRAC concluded at the EUROTRAC Symposium in 1992, that “very
limited progress toward this objective” had been made (Hardy & Muirhead,
1993). EUROTRAC scientific research projects and researchers had produced
the impression that purely scientific interests dominated. The EUROTRAC
Steering Committee received the message with great attention. As a response, it
set up a new subproject called the Application Project, to be carried out by a few
of the most prominent atmospheric scientists in EUROTRAC. The project
members had the task of synthesizing EUROTRAC research results, drawing
political recommendations from these results, and presenting them in a form to
be understood by environmental politicians (Borrell, Builtjes, Grennfelt, & Hov,
1997). In EUROTRAC-2 a different strategy has been adopted to provide for an
adequate science-policy relation from the beginning. Parallel to EUROTRAC re-
search projects, an Environmental Assessment Group has been established, in
which leading EUROTRAC and other atmospheric scientists and representatives
of environmental authorities continually review and communicate progress in
EUROTRAC.
Signs of discomfort have also been notable with regard to research results in
environmental economics. Former German Minister of the Environment, Klaus
Töpfer, considered research efforts inadequate:
Scientists have engaged in quibbling over abstract and theoretical models
under ideal conditions far removed from reality. Recommendations of con-
trol instruments (...) consequently relied on isolated analyses of economic
and ecological efficiency under model conditions. The examination of these
hypotheses under real conditions and the elaboration of detailed recommen-
dations for political action remained an exception. The irritation in the field
of politics caused by this deficit did not contribute to improving the political
weight of economic instruments in administrative frameworks. (...) In the
end, all such political initiatives came to nothing. (Töpfer, 1989)
Similarly, Frey and Schneider (1996) came to the assessment that the potential
of economic incentives in environmental policy has been overrated and, by the
same token, the problems that come with the implementation of such economic
measures have been underrated for constitutional democracies.
Perceptions of Air Pollution: A Technocratic Prejudice?

In recent years, the limits of technical approaches to fighting air pollution have
become apparent. This is especially true for the emissions of mobile sources,
which is still “one of the more pressing and intractable problems” (Grant, 1999,
p. 1). “Many air pollution problems persist because much progress in countering
these problems is nullified by economic growth and especially growth in traffic.”
(De Boer, 1998, p. 4) “Technological improvements are not adequate to offset
growth trends,” van Egmond concluded (van Egmond, 1998, p. 45). In a com-
prehensive evaluation of environmental research in Germany, the German Sci-
ence Council (Wissenschaftsrat) criticized the continuing dominance of “end-of-
pipe technologies” to mitigate environmental problems, which do not affect or
change emission processes, but attempt to reduce emissions after they have been
produced (Knoepfel & Weidner, 1983; Wissenschaftsrat, 1994, p. 30).
Why have technology-oriented approaches been so enormously attractive?
Why did social research on air pollution lack continuity and integration? At first
glance, the reason may simply be attributed to the nature of the problem. Air
pollution causes complex problems to be answered by technical and natural sci-
ences. Still, the German Science Council raised concern on the low representa-
tion of humanities and social sciences in environmental research which, hith-
erto, appeared to be of “minor importance” (Wissenschaftsrat, 1994, p. 8).
A factor of great importance may have been the availability and choice of
measures and indicators to describe the state of pollution. As long as smoke and
sulfur concentrations were the leading (or even the only) indicators and investi-
gations focused on urban and industrial regions, other pollution phenomena re-
mained out of sight. Air pollution appeared to be a local problem of dust and
sulfur. In this view, high stacks appeared fully sufficient to improve air quality,
while emissions still increased. Just as important may have been the lack of gen-
erally accepted indicators describing the effects of air pollution. Health effects of
air pollution could rarely be proved, and complaints about nuisances and rather
diffuse feelings of unhealthiness, due to air pollution, were not taken very seri-
ously. It was well-known that even low concentrations of sulfur in the atmos-
phere were likely to affect ecosystems. But, this part of the problem appeared
marginal and was largely neglected until the late 1960s. The discovery of prob-
lems such as dying fish populations in acidified Scandinavian lakes (in the mid-
1960s), high ozone pollution levels in Europe (in the mid-1970s), dying forests
in Germany (in the early 1980s), stratospheric ozone depletion (in the mid-
1980s), and global warming (in the late 1980s) consequently appeared like sci-
entific sensations with strong repercussions in the public and in politics. These
problems had been predicted or analyzed long before, but had appeared mar-
ginal and received little attention (Brimblecombe, 1995). But, scientific, politi-
cal, and public perception of these events strongly changed. The development of
effects-based abatement strategies in recent years may be considered a result of
these shifts of perception.
Communication Among Experts in Different Fields

In recent decades, the EU has witnessed a fundamental shift in air pollution
from primary pollution problems (sulfur and dust) to secondary pollution prob-
lems (photo-oxidants). This change reflects a change in economic structures,

technologies, lifestyles, and social institutions. While primary air pollution can
be regarded as solved, to a large degree, in the EU, secondary pollution problems
still are far from being solved. The shift of fuel use from coal to oil, and the shift
of major emitting sources from large coal burners such as power plants to scat-
tered small sources such as vehicles, pose new problems for air quality control.
Sulfur emissions could effectively be reduced by mitigating emissions of a com-
parably small number of large sources (mainly power plants) with the help of ad-
ditional technical equipment. These measures by-and-large did not affect indus-
trial activity, economic growth, or consumer habits and lifestyles (but still caused
considerable political struggles).
In the case of nitrogen and volatile organic compounds the effective reduc-
tion of emissions appears much more difficult. Emissions are caused by a large
number of diverse and scattered sources and technology-oriented remedies such
as the use of catalytic converters in cars or fuel-saving motor technologies seem
to be insufficient, because they are partly compensated by the growth of car size
and mileage. Traditional control strategies, thus, appear to be of limited impact.
More effective control strategies, in the future, may prove to require deeper in-
terventions into economy and society, such as a reduction of emission activities,
for example, the reduction of motor vehicle use. For instance, measures such as a
rise in fuel prices or the introduction of ecological tax systems have been
suggested and enacted in Germany. Future efforts to solve air pollution problems
may require political, economic, and social processes in parallel with technical
measures.
Another challenge that deserves attention is the relation of science and poli-
tics. The production and the transfer of appropriate knowledge does not seem to
be a simple matter. Organizational problems such as those Uekötter (1996,
2001) described in historical case studies are also to be observed in current re-
search and control efforts. They raise the question of what institutions are re-
quired to enable and improve the flow of information and mutual communica-
tion, as well as to define future research needs and strategies. Problems of ex-
change and communication not only affect the relation of science and politics,
but also exist between different fields of research:
A deficit of dialogue in German environmental research is obvious both in-
side different fields of the natural, technical and social sciences, but most of
all between these big domains of science. This deficit impairs the achieve-
ments of environmental research and hampers especially the conception and
implementation of strategies and measures of environmental protection.
(Wissenschaftsrat, 1994, p. 8)
Currently, the research agenda appears to divide into economists researching
economic control strategies, atmospheric scientists focusing on tools for effects-
based control strategies, and technologists working on abatement technology.
How do such strategic options fit together? Are there any perspectives of integra-
tion and combination? It appears to be a very difficult task for decision makers
to make their selection from a large pool of different strategic options, which are
developed and evaluated in completely different scientific communities that
have no notable overlap and apparently do not communicate intensively (Grant,
1999; Haas, Keohane, & Levy, 1993; The Social Learning Project at Harvard,
see Clark, 2001).
Is There a Role for Historical Expertise?

Why has problem management and control failed in spite of enormous scientific
and political efforts? To what degree is it a failure of problem perception, of sci-
entific problem understanding, or of environmental politics and legislation?
How was the relation between science and politics institutionalized? What are
the problems and perspectives for future air quality control?
Those addressing future air quality control should be aware of experiences
and limitations of past efforts. To answer the questions raised above is a genuine
task of historical research, particularly of environmental historians. Historical re-
search will not be a means to find comprehensive solutions to air pollution prob-
lems. Still, it can contribute to air pollution management by improving our un-
derstanding of the problem. Historians have the task of reviewing the percep-
tions and approaches in atmospheric sciences and environmental policy of the
past years, and highlighting the strengths and the problems of past develop-
ments. Regional conditions, political structures, economic interests, and institu-
tional settings as well as ways of understanding, beliefs, convictions, and ideolo-
gies contribute to problem development, problem understanding, and problem
management in manifold ways. It is the strength of historical research to dive
into the depth of historical processes (which may be processes of a very recent
past) and reassess the multitude of factors and causal relations.
Historical expertise can contribute to identifying problems, improving the
understanding of problems, and providing recommendations for policymaking.
Such expertise may include recommendations related to questions, such as how
air pollution problems changed in past years and what this may mean for the
need of future research efforts, or what problems of knowledge integration and
scientific expertise existed and how these may be overcome in the future. The
TRAP45 project, mentioned in the introduction, is a small step in this direction.
The acceptance of TRAP45 as a EUROTRAC subproject indicates an awareness
of the interdisciplinary nature of the air pollution problem. The development of
the project, however, gives a pessimistic outlook. While the goals of TRAP45
have been appreciated by the scientific community, its tasks could not be ful-
filled in full scale by 2002 due to a lack of support by national and international
funding agencies.
References
Andersen, A. (1996). Historische Technikfolgenabschätzung am Beispiel der Metallhütten und
Chemieindustrie 1850–1930. Zeitschrift für Unternehmensgeschichte (Supplement 90). Stutt-
gart, Germany: Steiner.
Andersen, A., Ott, R., & Schramm, E. (1986). Der Freiberger Hüttenrauch 1849–1865. Um-
weltauswirkung, ihre Wahrnehmung und Verarbeitung. Technikgeschichte, 53,169–200.
ApSimon, H., Pearce, D., & Özdemiroglu, E. (1997). Acid rain in Europe: Counting the cost.
London: Earthscan.
Ashby, E., & Anderson, M. (1981). The politics of clean air. Oxford, UK: Clarendon Press.
Boehmer-Christiansen, S., & Skea, J. (1991). Acid politics: Environmental and energy policies in
Britain and Germany. London: Belhaven Press.
Borrell, P., Builtjes, R, Grennfelt, P., & Hov, Ø. (Eds.). (1997). Photo-oxidants, acidification and
tools: Policy applications of EUROTRAC results (The report of the EUROTRAC Application
Project). Berlin: Springer.
Brimblecombe, R (1987). The big smoke. London: Methuen.
Brimblecombe, P. (1995). History of air pollution. In B. S. Hanwant (Ed.), Composition, chemistry,
and climate of the atmosphere (pp. 1–18). New york: Van Nostrand Reinhold.
Brüggemeier, F. J. (1996). Das unendliche Meer der Lüfte. Luftverschmutzung, Industrialisierung und
Risikodebatten im 19. Jahrhundert. Essen, Germany; Klartext.
Brüggemeier, F. J., & Rommelspacher, T. (1992). Blauer Himmel über der Ruhr: Geschichte der Um-
welt im Ruhrgebiet 1840–1990. Essen, Germany; Klartext.
Bundesministerium für Forschung und Technologie (BMFT) (Ed.). (1990). Faktenbericht 1990
zum Bundesbericht Forschung. Bonn, Germany.
Clark, W. C. (2001). Learning to manage global environmental risks. (Vol 1: A comparative history
of social responses to climate change; Vol. 2: A functional analysis of social responses to climate
change, ozone depletion, and acid rain). Cambridge, MA: Cambridge University Press.
De Boer, M, (1998). Facing the air pollution agenda for the 21st century. In T. Schneider (Ed.),
Air pollution in the 21st century: Priority issues and policy (pp. 3–8). Amsterdam: Elsevier.
Egmond, N. D. van. (1998). Historical perspective and future outlook. In T. Schneider (Ed.), Air
pollution in the 21st century: Priority issues and policy (pp. 35–46). Amsterdam: Elsevier.
Frey, B., & Schneider, F. (1996). Warum wird die Umweltökonomik kaum angewendet? Linz, Aus-
tria; Universität Linz, Institut für Volkswirtschaftslehre (Working paper 9617).
Gilhaus, U. (1995). “Schmerzenskinder der Industrie.” Umweltverschmutzung, Umweltpolitik und so-
zialer Protest im Industriezeitalter in Westfalen 1845–1914. Paderborn, Germany: Schöningh.
Grant, W. (Ed.). (1999). The politics of improving urban air quality. Cheltenham, UK: Elgar.
Grennfelt, P., Hov, Ø., & Derwent, R. G. (1994). Second generation abatement strategies for
and VOC. Ambio, 23, 425–433.
Haas, P., Keohane, R. O., & Levy, M. A. (1993). Institutions for the earth: Sources of international
environmental protection. Cambridge, MA: MIT Press.
Halliday, E. C. (1964), Zur Geschichte der Luftverunreinigung. In World Health Organization
(Ed.), Die Verunreinigung der Luft. Ursachen, Wirkungen, Gegenmaßnahmen (pp. 1–31). Wein-
heim, Germany: Verlag Chemie.
Hardy, D., & Muirhead, K. (1993). EUROTRAC review: Presentation by the reviewing firm. In
P. M. Borrell, P. Borrell, T. Cvitas. & W. Seiler (Eds.), Photo oxidants: Precursors and products.
Proceedings of EUROTRAC Symposium ’92 (pp. 9–13). The Hague, The Netherlands: SPB
Academic.
Heymann, M. (1998), Tropospheric air pollution problems and air pollution abatement in Europe
since 1945. In P. M. Borrell & P. Borrell (Eds.), Transport and chemical transformation in the tropo-
sphere: Proceedings of EUROTRAC Symposium ’98 (pp. 418–422). Southampton, UK: WIT Press.
Heymann, M. (2000). Perceptions of uncertainty: A problem in atmospheric modelling? In
P. Brimblecombe (Ed.), TRAP45 Annual Report, 1998 (pp. 12–18). Munich, Germany:
EUROTRAC-2 International Scientific Secretariat.
Heymann, M., Trukenmüller, A., & Friedrich, R. (1993). Development prospects of emission inven-
tories and atmospheric transport and chemistry models. Results of the DEMO-project. Stuttgart,
Germany: Institut für Energiewirtschaft und Rationelle Energieanwendung.
Isaksen, I. S. A. (1991). The EUROTRAC Project. In P. Borrell, P. M. Borrell, &: W. Seiler (Eds.),
Transport and transformation of pollutants in the troposphere: Proceedings of the EUROTRAC
Symposium ’90 (pp. 15–16). The Hague, The Netherlands: SPB Academic.
Jänicke, M. (1990). Erfolgsbedingungen von Umweltpolitik im internationalen Vergleich:
Zeitschrift für Umweltpolitik und Umweltrecht, 13, 213–232.
Jasanoff, S. (1990). The fifth branch. Science advisers as policymakers. Cambridge MA: Harvard Uni-
versity Press.
Kloepfer, M. (1994). Zur Geschichte des deutschen Umweltrechts. Berlin: Duncker & Humblot.
Knoepfel, P., & Weidner, H. (1983). Die Durchsetzbarkeit planerischer Ziele auf dem Gebiet
der Luftreinhaltung aus Sicht der Politikwissenschaft. Zeitschrift für Umweltpolitik, 4(2),
87–115.
Mayntz, R. (Ed.). (1978). Vollzugsprobleme der Umweltpolitik. Empirische Untersuchung der Imple-
mentation von Gesetzen im Bereich der Luftreinhaltung und des Gewässerschutzes. Stuttgart, Ger-
many: Kohlhammer.
Miller, C, & Edwards, P. N. (Eds.). (2001). Changing the atmosphere. Expert knowledge and envi-
ronmental governance. Cambridge, MA: MIT Press.
Müller, E. (1986). Innenwelt der Umweltpolitik, Sozialliberale Umweltpolitik—(Ohn)Macht durch
Organisation? Opladen, Germany: Westdeutscher Verlag.
Organisation for Economic Co-operation and Development (OECD). (1991). The state of the en-
vironment. Paris: OECD.
Organisation for Economic Co-operation and Development (OECD). (1994). Project and policy
appraisal: Integrating economics and environment. Paris: OECD.
Prittwitz, V. von. (1984). Umweltaußenpolitik. Grenzüberschreitende Luftverschmutzung in Europa.
Frankfurt a.M., Germany: Campus.
Rami, B. (1991). Opening address. In P. Borrell, P. M. Borrell, & W. Seiler (Eds.), Transport and
transformation of pollutants in the troposphere: Proceedings of the EUROTRAC Symposium ’90
(pp. 5–6). The Hague, The Netherlands: SPB Academic.
Regens, J. L., & Rycroft, R. W. (1988). The acid rain controversy. Pittsburgh, PA; University of
Pittsburgh Press.
Salter, L. (1988). Mandated science: Science and scientists in the making of standards. Dordrecht, The
Netherlands: Kluwer.
Sandnes, H., & Styve, H. (1992). Calculated budgets for airborne acidifying components in Europe
(EMEP MSC-W Report 1–92). Blindern, Norway: EMEP MSC-W.
Schneider, T. (Ed,). (1998). Air pollution in the 21st century: Priority issues and policy. Amsterdam:
Elsevier.
Sluijs, J. P. van der. (1997). Anchoring amid uncertainty. On the management of uncertainties in risk
assessment of anthropogenic climate change. Unpublished doctoral dissertation, University of
Utrecht, The Netherlands.
Spelsberg, G. (1984). Rauchplage. Hundert Jahresaurer Regen. Aachen, Germany: Alano.
Spiegelberg, F. (1984). Reinhaltung der Luft im Wandel der Zeit. Düsseldorf, Germany: VDI.
Stehr, N., & Storch, H. von (1999). Klima, Wetter, Mensch. Munich, Germany; Beck.
Stern, A. C. (1977). Problem areas in writing a “history of air pollution.” In H. M. Englund &
W.T. Beery, Proceedings of the Fourth International Clean Air Congress (pp. 1021–1025).
Tokyo: Toppan.
Stolberg, M. (1994). Ein Recht auf saubere Luft? Umweltkonflikte am Beginn des Industriezeitalters.
Erlangen, Germany: Fischer.
Technische Anleitung Luft. (1964). Technische Anleitung zur Reinhaltung der Luft. Allgemeine Ver-
waltungsvorschriften über genehmigungsbedürftige Anlagen nach §16 der Gewerbeordnung
vom 8.9.1964 (Gesetzliches Mitteilungsblatt S. 433).
Töpfer, K. (1989). Zur Funktion von Abgaben in der Umweltpolitik. Vortrag gehalten anlässlich
der Jahresversammlung der Gesellschaft zur Förderung der Finanzwissenschaftlichen For-
schung e.V. Cologne, Germany: Finanzwissenschaftliches Forschungsinstitut an der Univer-

sität Köln.
Uekötter, F. (1996). Die Rauchfrage. Das erste komplexe Luftverschmutzungsproblem in Deutschland
und seine Bekämpfung 1880–1914. Thesis of state examination, University of Bielefeld, Ger-
many,
Uekötter, F. (2001). Von der Rauchplage zur ökologischen Revolution. Eine politische Geschichte der
Luftverschmutzung in Deutschland und den Vereinigten Staaten von Amerika 1880–1970. Ph.D.
Thesis, University of Bielefeld, Germany.
United Nations Economic Commission for Europe (UNECE). (1995a). Effects and control of long
range transboundary air pollution. Report prepared within the framework of the Convention on
Long Range Transboundary Air Pollution. Geneva, Switzerland: United Nations.
United Nations Economic Commission for Europe (UNECE). (1995b), Strategies and policies for
air pollution abatement. Review prepared under the Convention on Long-range Transboundary
Air Pollution. Geneva, Switzerland: United Nations.
United Nations Economic Commission for Europe (UNECE). (1996). Manual on methodologies
and criteria for mapping critical loads, levels and geographical areas where they are exceeded. UN-
ECE Convention on Long-Range Transboundary Air Pollution (2nd rev. version). Berlin: Federal
Environmental Agency.
United Nations Environment Program (UNEP). (1993). In M. K. Tolba (Ed.), The world environ-
ment: 1972–1992. Two decades of challenge. London: Chapman & Hall.
Weidner, H. (1986). Air pollution control strategies and policies in the F. R. Germany. Berlin: sigma,
Wetstone, G., & Rosencrantz, A. (1983). Acid rain in Europe and North America: National responses
to an international problem. Washington, DC: Environmental Law Institute.
Wey, K.-G. (1982), Umweltpolitik in Deutschland. Kurze Geschichte des Umweltschutzes in Deutsch-
land seit 1900. Opladen, Germany: Westdeutscher Verlag.
Wicke, L. (1986). Die ökologischen Milliarden: Das kostet die zerstörte Umwelt—so können wir sie
retten. Munich, Germany: Kösel.
Wissenschaftsrat. (1994). Stellungnahme zur Umweltforschung in Deutschland (Vol. 1). Cologne,
Germany: Author.
Wolf, R. (1986). Der Stand der Technik. Geschichte, Strukturelemente und Funktion der Verrecht-
lichung technischer Risiken am Beispiel des Immissionsschutzes. Opladen, Germany; Westdeut-
scher Verlag.
Section 3
Experts, Redefined
The chapters in this third section seek to redefine the expert by rethinking the
expert’s task, and the expert’s legitimacy to make certain judgments, and by con-
sidering the history of the modern expert. Andreas Føllesdal is interested in eth-
ics consultancy, in particular the role of philosophers as ethics consultants to
committees that need to address sensitive issues in medicine, research, and other
policy areas. Is the philosopher in a position to counsel such committees on
morality and good reasoning? Føllesdal’s answer presents the philosopher in the
role of a coach to the committee, offering skills rather than moral authority.
Fenna Poletiek and Carel Stolker question the traditional procedure of as-
signing monetary compensation to victims who were harmed by a liable third
person. Who decides the worth of an arm or a leg, or the appropriate compensa-
tion for a whiplash, or the loss of smell? The authors propose to break with tradi-
tion, where judges use a list of previous judgments by the courts, and suggest
allowing “the person on the street” to specify the appropriate relative amounts of
compensation. With such an empirical approach the social scientist enters the
legal arena not as an expert witness, but as an expert on how to measure and rep-
resent people’s judgments.
Although the term “expert” derives from Latin, its modern designation for
someone whose specialized knowledge and skills are called upon is rather recent.
As Achim Landwehr argues, however, the modern expert had a precedent: the
commissioner in the early modern period. Landwehr refers to the 16th century
Venetian commissioners who were sent out by the state when problems arose
within the extensive Venetian territory on the Italian mainland. These commis-
sioners were more or less educated patricians, but not experts with specialized
knowledge. Such knowledge was rather acquired in the course of their assign-
ment. Commissions are put into place by an authority as a response to a special
problem or situation. In response, commissions produce reports and, thereby, es-
tablish a truth. This was the case with the Venitian Sindici and continues to be
the case with commissions in the present-day.
179
Chapter 9
The Philosopher as Coach1
Andreas Føllesdal
Department of Philosophy, University of Oslo, Norway
andreas.follesdal@filosofi.uio.no
Philosophers are regularly called upon to assist in deliberation about ethical mat-
ters. Committees are established at the European Union (EU) level, as well as by
domestic governments and at the institutional level, to address sensitive issues in
medicine, research, and other policy areas. Such committees are often designed
to include an ethics expert, or an ethics consultant, on the assumption that phi-
losophers have something to offer. But, what is it that philosophers can offer
such committees?
To be sure, ethics consultancy is nothing new: The very first ethics consult-
ants may have been the sophists of ancient Greece. However, from Socrates on-
wards, philosophers have also reflected on the moral appropriateness of offering
their services to governments and individuals in power. Socrates denounced the
sophists roundly: No one should make a living by selling arguments as tools of
manipulation. Recent critics voice more modest concerns:
Philosophy is most true to itself as a critical rather than as an immediate con-
structive force and as a discipline based in the academy rather than mired in
the political fray. (Weisbard, 1987, p. 783)
What is called for is the exercise of philosophical talents in the service of
alternative ways of influencing public policy, outside of establishment-
organized, officially sanctioned bodies that can do little—and usually intend
even less—to change the status quo. (Momeyer, 1990, p. 402)
Undoubtedly, the philosopher can serve a valuable role as outside critic. The
plight of Socrates, and more recently the tragic slaying of Ignacio Ellacuria,
Francisco Peccorini Letona, and other philosophers and theologians in El
1
I am grateful for comments and criticism from audiences at the European Business Ethics
Network (EBEN) Conference, and at the Center for Medical Ethics, University of Oslo; also from
Michael Davis, Kai Dramer, Birgitta Forsman, Dagfinn Føllesdal, Reidun Førde, Rune Giske, Ola
Hole, Peter Kemp, Ragnar Lie, Sigmund Loland, Per Sandberg, Robert Strickwerda, Knut Erik
Tranøy, and Ken Winston.
181
182 Andreas Føllesdal
Salvador and Guatemala, remind us that “the persecution visited upon them is a
strange testimony to their influence” (Camacho, 1993).
But, can philosophers also serve a legitimate role as counsels of morality and
reasoning within institutions, as “inside” consultants to committees? I argue that
such services are consistent with the doing of philosophy, and consistent with
other philosophers serving honorably and credibly as social critics. This chapter
proceeds in three steps. I first identify the subject matter of this exploration: phi-
losophers as consultants to committees, as contrasted with their role as members
of committees or as consultants to individuals. I then present an account of phi-
losophers’ expertise—the special competence they provide—and compare it to
some alternative accounts. I defend an account of the philosopher coaching the
committee toward reflective equilibrium of their considered judgments on the
issue at hand. In light of this conception of the role of philosopher-consultants, I
discuss some of their obligations.
My concern is with philosophers engaged as consultants to committees,
working groups, and commissions on moral matters. Committees often have,
and should have, expectations about the services provided by philosophers.
However, these expectations should be accurate, and they are too important to
leave to the committees themselves (Crosthwaite, 1995, p. 369). Hence, we seek
a public account of the role and responsibilities of philosophers serving as con-
sultants. The assumption of publicity is important for the practice, making
future committees aware of the professed expertise, function, and responsibilities
of the philosopher.
Several points of clarification are appropriate. I shall use the term “philos-
ophers” broadly, to include those who claim to be philosophers, often with train-
ing from a philosophy department or its equivalent, but they need not be phi-
losophers based in the academy. The committee, working group, or commis-
sion—“committee” for short—has a mandate of some practical importance, for
example, in assessing or recommending institutions or policies. However, it has
no formal political power on its own.
The role of such committees within democratic decision making is not
merely to aggregate votes, but to provide somewhat better opportunities for
reasoning than allowed by the flurry of day-to-day party politics (Kamm, 1990,
p. 351). The committee, thus, offers room for practical, public deliberation on
issues, therefore, determining what it regards as best reasons. We may expect
discussions and reflection to be somewhat more complex in committee discus-
sions than in the general public debate, though there are still constraints on
complexity due to the public nature of the tasks. Even though the composition
of the committee often reflects various constituencies, committee members are
usually not required to act as representatives of such groups. The philosopher-
consultants do hot serve as full members of the committee. Instead, they con-
tribute their expertise at the request of the committee.
The Philosopher as Coach 183
What Is a Philosopher Good for?

What is the contribution of philosophers as consultants to a committee? This
question is fundamental for delineating the mutual expectations and respon-
sibilities of the committee and the philosopher. What special qualifications do
philosophers have that render their services useful for a committee—and ulti-
mately for society at large? In her book The elimination of morality, Ann Maclean
put the challenge succinctly: “How does an education in philosophy make one
better at answering moral questions than someone who lacks such an educa-
tion?” (Maclean, 1993, p. 3).
I shall suggest that philosophers’ training makes them skilled at moral reason-
ing. They can coach a committee, helping to clarify and improve its moral rea-
soning. The philosopher is trained in arguing ethical values, seeking to increase
coherence and system to the various moral concerns voiced in the committee. To
further this goal, the philosopher offers distinctions, interpretations, and rela-
tionships between various judgments so that they appear as defensible premises
and conclusions as parts of a theory. But, first consider competing accounts of
what philosophers may contribute.
We may assume that committees are intended to promote important values
in a democracy, and that the philosopher takes on some responsibilities within
such a valuable social scheme. If this is not true, we should indeed be worried
(Kamm, 1990, p. 354). But, what is the philosopher’s unique contribution?
Further the Good Society?

Surely, the philosophers’ special strength is not that they make the world a better
place. Graduate schools in philosophy do not exclude applicants on the basis of
their moral commitments, and philosophers’ training is not in exhortation or
aimed directly at the moral improvement of themselves or others. They are not
trained to maximize well-being in the world. Moreover, there is no reason to be-
lieve that ordinary members of an appointed committee are less honorably moti-
vated, or less equipped to pursue the common good as they see fit.
Provide Touchstones of Truth?

One response might be that philosophers provide commissions with the truth
on moral matters. That is, the professional philosopher provides the correct
moral theory, either by offering a blueprint of how the world should look, or by
offering the correct fundamental principles of morality, whence all moral truth
flows.
Philosophers have spent much time reflecting on the good life and the just
society, and they might, therefore, be expected to hold more well-thought-out
and systematic views than others (Singer, 1972, p. 117). However, these views
will certainly be contested and controversial—just as are most other such views
in a democracy. Should consultants be permitted—and requested—to pursue
their own particular and contested values when serving a committee?
Such claims often meet with suspicion. If moral philosophy yields truth, why
aren’t all moral philosophers nice people? More to the point, this view is at odds
with philosophers’ practice: There is profound and prevalent disagreement
among philosophers precisely about what morality requires. So, there is no
unique philosophical view of right action or the good society that the philoso-
pher brings to bear.
Will Kymlicka, for instance, has suggested that the goal of arriving at the true
ethical theory may be inconsistent with the democratic mandate of a committee;
the members of a committee will—and should—disagree:
The fact that Commissioners disagree is not just an unlucky accident. Citi-
zens generally have different views on these issues, and Commissioners are
chosen to represent different viewpoints. Hence they are supposed to come
up with recommendations that, so far as possible, are acceptable to a variety
of ethical perspectives. Government Commissions are instruments within the
system of representative democracy. Like elected representatives in par-
liament, Commissions are intended to be representative of the general com-
munity (...) increased room for persuasion and flexibility cannot, and is not
intended to, displace the need for recommendations that are acceptable to a
wide range of viewpoints. The adoption of a particular ethical theory, there-
fore, is not only unrealistic, it defeats the purpose of the Commission.
(Kymlicka, 1993, p. 8)
Kymlicka’s conclusions may be correct, but the argument is flawed. The goal of
arriving at one shared theory of morality does not violate the democratic man-
date of a committee for three reasons.
When committees are directly charged by politicians with making decisions,
democratic accountability is not lost. Democracy is not more at stake if the
committee reaches a unanimous decision by convincing all representatives,
than if it decides by majority vote or by the Chair’s dictum. The function of
representatives of different constituents is to voice reasoned concerns, rather
than to represent constituents in decision making. There is, for instance,
often no attempt at providing proportional representation of different groups
in such committees.
Groups within democracies often disagree strongly, but such disagreements
do not always rest on different moral theories.
Several philosophical theories are explicitly constructed as responses to a
pluralism of competing, yet not unreasonable moral views. They may provide
views on what social institutions should allow and prohibit, which are more
acceptable than more controversial moral views.
However, there are more troubling objections to the view that philosophy pro-
vides truth. Ann Maclean rejects a particular version of “pure” utilitarianism,
which she holds to be typical of modern bioethics—at least in the United King-
dom. She argues, convincingly, that this particular kind of moral theory is im-
plausible, since it holds that:
(...) it is philosophical enquiry which must provide, sanction or underwrite
the set of rational principles from which moral judgments should be de-
duced. The source of the philosopher’s special expertise in moral matters is
his knowledge of these principles; it is this which gives his pronouncements
upon moral issues an authority to which the pronouncements of others can
lay no claim. (Maclean, 1993, p. 5)
This pure theory of morality is foundational in the following sense. It seeks to
justify moral judgments on particular cases by deduction from a more general
moral principle—in this case the principle of utility—whence moral authority
flows. This principle needs no further justification and overrides competing
moral intuitions on individual cases. The role of moral philosophers is to estab-
lish the deductive connections between particular cases, mid-level principles,
and the foundational principle of utility.
Maclean criticizes this account of moral knowledge. She also notes that phi-
losophers cannot know, with certainty, what is “implicitly” meant by “the value
of life,” or about what a decision “implies” (p. 32). Rational verdicts based on
such principles are still the philosophers’ own moral opinions (p. 189).
Let us agree with Maclean that the moral expertise of philosophical training
does not consist in knowledge of the correct moral principles. However, the ti-
tle of Maclean’s book, The elimination of morality, misleads: She has not argued
convincingly for the elimination of morality, nor against the existence of moral
expertise. Her criticism of moral theories in general (and that of van Willigen-
burg, 1991, pp. 186–191) fail for several reasons. First, there are more plausible
versions of utilitarianism than the one she criticizes; second, many bioethi-
cists—and other ethicists—are not utilitarians; and third, Maclean fallaciously
assumes that utilitarians must accept Mill’s account of the role of moral theory
(Maclean, 1993, p. 10). There are more plausible accounts of justification in
ethics, consistent with a wide range of moral theories, utilitarian and otherwise.
Eliminating this form of utilitarianism eliminates neither claims to moral ex-
pertise, utilitarianism, bioethics, nor morality. Major traditions in moral phi-
losophy, including Aristotelian and contractualist theories, stand wrongly ac-
cused.
Philosophers are not particularly well prepared to promote the good directly,
and they cannot claim to know moral truths. The philosophers’ training helps
identify the form of “moral expertise” they can contribute.
Foster Coherence of Moral Views in Reflective Equilibrium?

Moral philosophers are typically trained both in the history of philosophy and in
argumentative skills. They provide and assess arguments and objections and de-
tect inconsistencies in arguments and among moral judgments.
Rorty criticizes today’s professional philosophers for a cynical view of philos-

ophy’s past, “treating the great dead philosopher as sources of hypotheses or in-
structive examples of conceptual confusion” (Rorty, 1982, p. 65). I suggest, con-
trary to Rorty, that the skilled philosopher also turns to earlier writers for in-
sights, ideals, and distinctions that are valuable for the issues at hand—based on
charitable interpretations of past thinkers.
Philosophy, thus, draws on the past for creative insights and perspectives, in
order to make sense of our own moral views. Philosophy is concerned with creat-
ing connection and order, and adjusting moral judgments into a coherent frame-
work of premises and conclusions—that is, a theory. One important role of such
a theory is to provide unity, coherence, and understanding among our conflicting
judgments, as an aid to reach reasoned agreement on common ground. Increased
coherence and consistency among moral intuitions is one of the main contribu-
tions of moral philosophy. Philosophers take part in theory construction, for in-
stance, by showing how “mid-level principles” of autonomy and beneficence can
be spelled out to be rendered consistent with each other and with the concern for
persons and, thereby, be justifiable, and how we may conceive, and deal with, re-
maining disagreements in defensible ways.
The philosopher, thus, contributes to the process of gaining “reflective equi-
librium” among our moral judgments, among principles, ideals, and moral judg-
ments on particular cases. This method seeks to establish a consistent web of
moral judgments in a particular field, often with the practical aim of throwing
more light on questions we as yet have not passed judgments on, or where we are
in disagreement with each other and where such disagreements matter.
It is an equilibrium because at last our principles and judgments coincide;
and it is reflective since we know to what principles our judgment conform
and the premises of their derivation. (Rawls, 1971, p. 20)
This task is not to generate principles by deriving them from higher, more gen-
eral premises: Neither confidence nor justification must trickle down from above
(Kymlicka, 1993, p. 13; Williams, 1985). Rather: “Justification is a matter of
mutual support of many considerations, of everything fitting together into one
coherent view.” (Rawls, 1971, p. 579)
For a committee faced with resolving a practical issue, increased reflective
equilibrium may not require complete agreement on all points, but rather suffi-
cient, overlapping consensus to secure common ground regarding the particular
issue. Sometimes, complete agreement on the premises for our various views
may be unfeasible and unnecessary. Describing the discussion prior to the 1948
UN Declaration on Human Rights, Maritain noted that:
Where it is a question of rational interpretation and justification of specula-
tion or theory, the problem of human rights involves the whole structure of
moral and metaphysical (or anti-metaphysical) convictions held by each of
us. So long as minds are not united in faith or philosophy, there will be
mutual conflicts between interpretations and justifications. In the field of
practical conclusions, on the other hand, agreement on a joint declaration is

possible, given an approach pragmatic rather than theoretical, and coopera-
tion in the comparison, recasting and fixing of formulae, to make them ac-
ceptable to both parties as points of convergence in practice, however op-
posed the theoretical viewpoints.
(…) It is not reasonably possible to hope for more than the convergence
in practice in the enumeration of articles jointly agreed. The reconciling of
theories and a philosophic synthesis in the true sense are only conceivable
after an immense amount of investigation and elucidation of fundamentals,
requiring a high degree of insight, a new systematization and authoritative
correction of a number of errors and confusions of thought (...). (Maritain,
1949, p. 11f.)
The Philosopher as a Moral Coach

How does moral reasoning proceed toward reflective equilibrium? We start with
our moral views and commitments at various levels of generality—including
such general and vague ideals as freedom, equality, equal worth, and solidarity.
We seek conclusions to our puzzles by hitherto unnoticed arguments, adjusting
the moral judgments as we go, in light of these new connections. But, more
needs to be said to illustrate this process.
Moral reasoning has both a constructive and a negative role, both of which
are required in order to identify the philosopher’s contribution. The negative
role is the modest one of ensuring consistency:
Moral philosophers should attempt to ensure that the Commission’s argu-
ments are clear and consistent. (…) philosophers should focus on identifying
conceptual confusions or logical inconsistencies within the Commission’s ar-
guments, without seeking to influence its choice of the underlying theory.
(Kymlicka, 1993, p. 2)
Philosophers serve as argument inspectors, checking arguments for soundness—
or at least validity, that is, that the arguments are logically correct, though not
necessarily with true premises. Kymlicka claims that this is too modest a contri-
bution, since valid arguments may be morally unsatisfactory. However, assisting
in argument improvement will often serve to weed out some—though not all—
outrageous immoral views.
Moral reasoning also has a positive, creative role, stemming partly from the
philosopher’s familiarity with the history of moral philosophy—of Kantian, util-
itarian, and Aristotelian views and their heirs.
But, what is the use of moral philosophy for analyzing public policy? It is un-
realistic to expect a committee to endure a graduate seminar on the various theo-
ries, and this aspiration is inappropriate: The focus on theories is not likely to
foster agreement on the issues, for two reasons, states Kymlicka: (1) Knowledge
of the theories will be insufficient. No particular theory—utilitarianism or con-

tractarianism—will answer the practical questions; each theory “just provides a
framework within which to ask them” (Kymlicka, 1993, p. 8); (2) “The fact that
these theories have maintained adherents for centuries suggests that they are not
obviously illogical.” (p. 6) Hence, a theoretical concern will not resolve the dis-
agreements.
However, Kymlicka’s objections do not support the hypothesis that informa-
tion on moral theories is of no help. First, on many practical issues, all moral
theories, currently entertained, may yield the same or similar answers, or pro-
vide similar frameworks. Any moral theory will seek to identify affected parties,
for instance, while many unreflective views typically ignore certain unintended
effects. So, where there is no framework, any normative framework is an im-
provement—even though philosophers do not agree on the precise content of
the preferred comprehensive moral theory. Second, the substantive discussions
and disagreements among theories have actually changed over time, partly due
to improved arguments and theories. Consider, for instance, views condoning
slavery, or the subjection of women.
This account of moral reasoning is, generally, in accordance with Maclean’s
own view. The philosopher’s role is to provide clarification, helping people de-
cide what answers to the moral questions they themselves are prepared to ac-
cept (Maclean, 1993, p. 202f.). However, Maclean denies that there is only one
unique, rational answer to moral issues: There is always more than one such
answer. I submit, however, that some positions on a particular issue will be
ruled out once we try to connect them to other moral judgments—consider,
for instance, whether to conduct harmful experiments on prisoners in concen-
tration camps.
The view I have presented may seem to conflict with Kymlicka’s account
(Kymlicka, 1993, pp. 11–13). Denying that “taking morality seriously requires
taking moral philosophy seriously,” he claims that what matters, instead, is to
take people seriously, in two distinctly nonphilosophical ways: (1) to identify af-
fected parties; (2) to identify “mid-level” principles, for example, of requiring in-
formed consent, respect for human life, and equality, that “are consistent with,
and indeed help spell out, the belief that each person matters in and of herself”
(Kymlicka, 1993, p. 13).
These two tasks are indeed important, and what is needed is often compas-
sion and forethought (Momeyer, 1990, p. 404). But, I submit that these tasks,
in fact, require moral reasoning of the kind I have sketched above. The ques-
tions of who is affected in morally relevant ways, and how one should measure
and weigh the effects of alternative actions and policies, raise profoundly philo-
sophical issues (Cohen, 1989). To be sure, there is seldom a practical need for a
thorough, comprehensive, or complete theory, or to reach complete agreement
on one particular moral theory. Nevertheless, it is often necessary to develop
parts of a systematic perspective. Sometimes, it suffices to identify various mid-
level principles as expressing equal human worth. But, even this requires philo-
sophical reflection when specifying ideals and principles of equal worth, free-
dom, and the like. However, such specification does not assume that the phi-
losopher “sees” what was meant all along, unbeknownst to others at the time
(Maclean, 1993, p. 32). Rather, the philosopher engages in creative reconstruc-
tion, interpretation, explication, and specification of concepts and principles
(Kymlicka, 1993, p. 26, n. 38; Quine, 1960, pp. 257–262; Richardson, 1990).
As commonly used, these principles are not adequately grounded in a uni-
fied theory, but only serve as a checklist (Clouser & Gert, 1990, p. 233; van
Willigenburg, 1991, p. 184). Unresolved conflicts among these mid-level prin-
ciples sometimes force us to develop further coherence and unity among vague
principles, such as “autonomy and beneficence.” When Beauchamp claims that
the principle of beneficence is a “fundamental” principle (Beauchamp, 1984),
he should not be taken to hold that such principles need not, or can not, them-
selves be justified or adjusted in the light of other considerations. What is
needed is a systematic encompassing account to settle the conflicts between
mid-level or “fundamental” principles. We must determine the scope of applica-
tion of various rules and principles, and determine the relative order and weight
of moral considerations. Philosophers seek to bring various moral consider-
ations to bear, for instance, by asking which interests are secured or promoted
by institutional mechanisms, such as informed consent, in order to determine
when such procedures are appropriate, or less relevant, as compared to other in-
stitutional mechanisms.
In the account I have sketched, moral philosophers serve a valuable func-
tion by assisting in the process of gaining reflective equilibrium among moral
judgments. Philosophers draw on their training and knowledge in asking sensi-
ble questions and constructing sound arguments, specifications, distinctions,
and fragments of theories. Such skills of creating order and structure among
our moral judgments are taught in philosophy departments, and such skills
amount to expertise of a certain kind. Acting as a consultant to committees, we
may expect the philosopher to contribute to the deliberation of the committee,
honing the use of reason in ethics and moral reflection, aimed at solving the
practical problems—though not necessarily offering or generating the correct
moral theory. I suggest that the philosopher is fruitfully regarded as taking on
the role of coach to a committee.
In sports, the role of the coach is to enable the athletes to achieve a high level
of excellence at their sport, increasing their responsibility for their own results
(Giske, 1993; Harre, 1982; Heinemann, 1983, p. 64).
Philosopher-consultants focus on the public reasoning of the committee.
Philosophers should be expected to arrest weaknesses and flaws in the argu-
ments, identify worrisome premises and consequences, offer their own consid-
ered, argued judgment as to improvements and the favored conclusions, and
present further arguments and reasonable positions (Ackerman, 1989; Momeyer,
1990, p. 403; van Willigenburg, 1991, p. 2f.).
Are such skills properly called “moral expertise”? This is an important ques-
tion if we are concerned with determining whether philosopher-consultants are a
profession, since professions are often taken to command esoteric expertise
(Hughes, 1963). Philosophers’ skills might be labeled “moral expertise” insofar

as the subject matter of their training is moral judgments. However, this label
may be misconstrued as claiming that ethicists are particularly worthy people,
whose judgments are particularly trustworthy.
I am inclined not to regard the philosophers’ skills as moral expertise. The
quality of the philosophers’ recommendations does not rest on their authority
or on trusting their character, but rather on the quality of arguments that the
philosopher has to offer. Referring to philosophers as moral experts is likely to
confuse insofar as they—unlike certain other experts—do not claim to com-
mand a decision procedure, but only certain skills (Crosthwaite, 1995, p. 369;
Kamm, 1990, p. 352). Moreover, this kind of expertise is not exclusionary, in
contrast to other relationships between expert and client. The aim of the philos-
opher-consultants is to transfer knowledge and skills to the client, not to use
their expert skills on the client’s behalf. The philosopher’s role is, thus, to in-
crease the rationality of the committee, by improving the committee’s ability to
decide what to believe and to weigh reasons for action—in accordance with its
own canons of rationality (Scanlon, 1972, p. 215). The client cannot transfer its
decision-making responsibility onto the philosopher. The task of the philoso-
pher is, instead, to improve the decision-making ability of the committee itself
(Caplan, 1989, p. 77; van Willigenburg, 1991, pp. 24–27).
What Are the Responsibilities of the Philosopher Coach?

We turn now to consider the moral responsibilities of philosophers serving as ed-
ucators to committees in the sense I have developed. Several issues have been
raised by other writers, and I shall sketch responses to these in turn.
It is appropriate to reflect on the responsibilities of philosophers in the con-
sulting role. Is it true of them, as Brock claims, that:
When philosophers move into the policy domain, they must shift their
primary commitment from knowledge and truth to the policy consequences
of what they do. And if they are not prepared to do this, why did they enter
the policy domain? What are they doing there? (Brock, 1987, p. 787)
The role of philosophers as advisors to committees is different, in several ways,
from that of other advisors, and from that of philosopher members of commit-
tees. Thus, reflection is appropriate, but the conclusions are not clear. Let me
start with defending the view that there are limits to philosophers’ responsibility
for the consequences of their advice. In contrast, consider Dennis Thompson,
who appears to lay down strict act consequentialist requirements:
An advisor is responsible for the consequences of decisions based on his ad-
vice insofar as he could reasonably be expected to foresee that they would fol-
low from his advice. Finally, although the requirements of role can create a
prima facie excuse, an advisor is responsible for any foreseeable harm his role-
bound advice causes when that harm is greater than the harm that would re-
sult from breaching the requirements of his role. (Thompson, 1983, p. 288)
The publicly acknowledged role of the coach reduces the philosophers responsi-
bilities for the policy results. The philosopher, unlike many professionals, does
not make decisions or resolve issues on behalf of others. The philosopher is not
generally responsible for the reports, recommendations, and so forth made by
the committee. This is because the committee is always free to accept or reject
the suggestions offered by consultants—be they philosophers or other expert
counsels. The philosopher-consultant should, thus, not be held responsible if the
committee adopts views contrary to what the philosopher considers a philosoph-
ically more favored position.
We must, of course, acknowledge that the interventions of a philosopher
causes large conceptual and moral shifts, so that the committee members come
to think differently about their experiences. In such a situation, one’s views are
often malleable, and one’s ability to reason impaired. Nevertheless, the specific
contribution of philosophers is to bolster the rationality of the committee itself.
Independent committee members evaluate the policy alternatives and the advice,
and their decision breaks the chain of responsibility of the advisor for the causal
results:
A person who acts on reasons he has acquired from another’s act of expres-
sion acts on what he has come to believe and has judged to be a sufficient
basis for action. The contribution to the genesis of his action made by the
act of expression is, so to speak, superseded by the agents own judgment.
(Scanlon, 1972, p. 212)
What is at stake here is the allocation of authority to regulate provision of infor-
mation and arguments in light of expected benefit or harm. It is difficult to de-
fend the view that the philosopher-consultant should generally be entrusted
with this authority. First, the ability of philosophers to forecast such conse-
quences is clearly limited. Moreover, this power makes the committee vulnerable
to manipulation by the philosopher. As part of a public practice, this authority
of philosophers will, hence, tend to remove the demand for such services. Insofar
as this creates worse deliberations in committees, we should be wary of such a re-
quirement regulating the practice.
In particular cases, then, philosophers should not adjust their advice in light
of their perceptions of potential harms. However, this is not to say that philoso-
phers should be prepared to take on any project, or that they must always hide
their own views from the committee they serve. We now turn to consider some
of these issues.
Responsibilities of Taking on Projects

Commissions may have illegitimate tasks and mandates that raise dire issues of
complicity in clearly immoral acts. It is, indeed, always necessary for the consult-
ant to consider “precisely how such bodies are constituted, what they are charged
with doing, and whether these are reasonable things to attempt” (Momeyer,
1990, p. 406). Considered judgment is necessary and unavoidable if we do not
wish to become accomplices to wrongdoing. However, we should discount some
of the objections presented against joining the arenas of practical deliberation as
consultants.
Criticism may be of two kinds: either that the philosopher has nothing to
contribute as a consultant, or that the role as consultant threatens the integrity
of philosophers. Neither criticism renders the philosopher’s contribution irre-
sponsible or irrelevant.
First, some critics argue that philosophers have nothing to offer committees
dealing with practical issues. I shall suggest that these criticisms are misplaced.
Moral philosophy is sometimes said to ignore the complex relationships between
individuals’ behavior and social institutions.
Often a principal concern is with what might be called institutional architec-
ture—the creation of institutional mechanisms designed to guard against and
minimize the different sorts of abuse that are apt to disrupt any attempt to
translate theory into practice in the complex, messy, and imperfect real
world.
(…) It is all part of the “art of the possible” for which lawyers are trained.
I detect no comparable proclivity within the discipline of philosophy. (Weis-
bard, 1987, p. 781)
Weisbard is correct in pointing out that institutional design is not a part of the
philosophers’ training. However, political philosophy is typically carried out
with these complexities in mind, insisting that individual ethics and issues of in-
stitutional justice must be treated as separate, though related subjects of reflec-
tion.
Perhaps most interestingly, some critics object to the usefulness of philoso-
phers because of their ideal perspective. The philosophers’ utopian society is un-
attainable from here, uninhabitable by normal people, and certainly out of reach
for a committee with a constrained mandate. Some even go so far as to state that
moral truth emerges from compromise and conflict:
A more coherentist or pragmatic theory of truth with respect to public policy
would see truth as emerging from the process in which conflicting interests
and perceptions struggle for resolution. What this outcome will be cannot be
known in advance; hence what should be done, what should count as truth,
what public policy should be, cannot be determined in detachment, through
abstract principle, or by solitary thinkers. On some such theory of truth as
this, compromise of views, interests, even values, is not incompatible with
the search for what ought to be and what is true. Compromise is essential.
(…) Truth will not, in a democratic process, be determined by conformity to
abstract principle. Rather, it will emerge from the process whereby contend-
ing forces (of both reason and self-interest) encounter one another. Standards
of fairness in the representation of divergent interests must be met, but when
they are, and the process works, whatever results are arrived at will be the cor-
rect ones. (Momeyer, 1990, p. 404)
In response, I grant that much moral and political philosophy has focused on
what the ideal person and society should be like—in part, of course, because of
the strategic potential of ideals (Broad, 1916; McPherson, 1982, p. 76). How-
ever, philosophers have, historically, also been concerned with “non-ideal” top-
ics: How to act under the constraints of aggressive war, rebellion, revolution, and
civil disobedience. There are important and substantive moral issues belonging
to non-ideal circumstances, where the philosophers’ training and contribution
are relevant. Note, that this view of the relationship between moral theory and
the discussions of committees does not commit us to the different and more
problematic view of Momeyer on moral truth. Momeyer holds that an actual de-
liberative and bargaining process, under certain procedural constraints, is both
necessary and sufficient, not only to identify, but also to constitute the correct
outcome. The view I have presented takes no stand on any of these further
claims.
Second, does the role of a consultant threaten the integrity of philosophers?
One important role of philosophy is clearly to provide a critical view of the
status quo, for instance, by offering an ideal or criteria by which to identify and
measure the flaws of present circumstances. Political committees, on the other
hand, are bound. They are without the political possibilities of creating the best
arrangements from scratch. They easily become remedial; moreover, they be-
come agents of compromise and political manipulation. By serving as a con-
sultant to committees, philosophers risk their integrity, both as individuals and
as a group. Their responsibilities “make their independence and critical stance
immediately suspect” (Wikler, 1982, p. 12).
In response, we must agree that the philosopher-consultants clearly cannot
maintain a completely detached or independent stand, insofar as they must ac-
cept the agenda of the committee. But, why is this loss to be grieved? First, it
might be thought that the philosophical profession may have something at stake:
One possible result of the increasing participation of philosophers in the
public policy arena may be the emergence of adversary philosophers for hire.
(…) I am not certain that this is a development that the discipline of philos-
ophy, or the public, should welcome. (Weisbard, 1987, p. 785)
Weisbard raises an important point, but we cannot assess the risks without a
careful account of both the current public image of philosophers and the public
assessment of philosopher-consultants. I submit, that defining clear expectations
and responsibilities is one fruitful step to avoid conflating general philosophical
studies with the activities of philosophy consultants, and to avoid conflating the
responsibility of public intellectuals with the particular obligations an individual
philosopher may legitimately take on as a consultant. Second, there is a real and
present danger that philosophers lend legitimacy to a project as “a hired pen,
wielding grand language for its theoretical and sanctifying power in service of
the employer” (Wikler, 1982, p. 12). However, this risk is reduced insofar as the
acknowledged role of the philosopher is not to offer legitimacy, but rather the
more limited one of increasing the rationality of the committee. This risk is fur-
ther reduced by exploring and expressing, clearly, the grounds and limits of loy-
alty of a philosopher-consultant toward the committee.
Such a code of conduct should address the dilemmas that arise with philoso-
phers who have contributed to documents they find seriously flawed. Generally,
it seems that silence, on the philosophers’ part, is a reasonable expectation, as it
would be for most professional consultants. The philosopher may have gained
access to confidential information and insight in internal disagreements among
members. This information may make it apparent to the philosopher that the re-
sults of the committee are not due to arguments and reasoned deliberation, but
instead, to the wielding of extraneous power—political, economic, or personal.
However, the philosopher has gained access to this information on an assump-
tion of confidentiality. This shared understanding generally requires that the
philosopher does not reveal such disagreement or the sources of disagreement.
The philosopher should, thus, generally refrain from public criticism of the con-
clusions of such committees to diminish the threat and real danger of revealing
confidential information. Moreover, as an “insider” to the committee, the phi-
losopher is given an opportunity to express opinions in advance and has a chance
to argue the case to the members of the committee entrusted with public and
political power.
What shall philosophers do if they find themselves strongly opposed to the
conclusions drawn by the committee on philosophical grounds? The philoso-
pher’s own integrity may appear to be at stake, and concern for one’s professional
reputation would seem to require that the philosopher is permitted to indicate
serious flaws in reasoning or to claim that the committee ignored crucial impli-
cations. A member of the committee could include a dissenting opinion. How-
ever, a consultant does not have such means available. I suggest that insofar as it
is publicly known that the philosopher-consultant is required to keep confi-
dences and maintain loyal opposition, the philosopher’s own silence on particu-
lar matters cannot be regarded as acquiescence in the arguments or the results. It
falls on other philosophers—“outsiders” to the committee—to criticize the argu-
ments and conclusions, taking due note of the fact that the consultant may not
have sanctioned the conclusions. A further step for the philosopher-consultants
may be to insist that their names be removed from any documents and public
discussions pertaining to the committee. This measure will help prevent a phi-
losopher’s name or title from being misinterpreted by the public as an endorse-
ment or sanction of the results by the consultant or by the philosophical com-
munity at large.
Not Remain Constrained by the Politically Feasible

Should the philosopher-consultants only provide philosophical perspectives that
are congruent with current policies and the agenda set before the committee? I
suggest not.
Some claim that radical proposals within a committee are counterproductive
or that they are undemocratic. The role of the philosopher-consultant should
not be that of the reformer. However, there seems to be little reason to require
the consultant to refrain from radical arguments that challenge the presupposi-
tions of the committee. First of all, the philosopher will be acutely aware that as
a consultant one is there by invitation based upon trust (van Willigenburg,
1991, p. 35). A consultant will feel constrained by this relationship—which, of
course, underscores the legitimate and important role of outsider critics and re-
formers.
A consultant may offer radical criticism—but these comments must still, to
have any effect, appeal to the judgments and views of committee members or of
the public at large, with the intention of exploring and improving on such com-
mitments (Kamm, 1990, p. 358; van Willigenburg, 1991, pp. 35–39). Short-
term political acceptability may be a prudent consideration for the committee it-
self when deciding on what to recommend, but there is little need for consult-
ants to feel so constrained in the perspectives they offer as contributions to the
deliberative process. Indeed, philosophers may provide creativity and foresight
on the sensitive questions and issues that will come up later if current policies are
left to unfold by themselves:
The proposal may thus end up being prophetic. The underlying reality may
be that the questions and queries which led to it are bound to come to his-
torical surface sooner or later. Disruptive proposals (...) may be one of the
best contributions philosophy can make to societal life. In the long run they
are more valuable than less rigorous policy positions that politically may fit
more smoothly into the current public discussion or the dominant moral
culture of the health professions. In bioethics public policy, as elsewhere,
philosophers should follow their own bests professional lights as long as they
involve others in the fundamental issues. We should not let a dim political
prospect chill what may be their most constructive and distinctive involve-
ment in public policy. (Menzel, 1990, p. 423)
Point out Flaws of Moral Reasoning

While the committee is deliberating, the philosopher has a clear responsibility
for training the members to achieve a better reflective equilibrium among their
moral judgments. The philosopher is expected to point out important implica-
tions of various arguments, for example, when it is clear that current public pol-
icy runs counter to the assumptions made by the committee. This task is often
central if committee members are to achieve more consistent views. But, some-
times this task can create dilemmas.
There is a risk in pointing out flaws: Less sound arguments may triumph,
due to manipulation among the members, extraneous interests, or confusion
(Brock, 1987, p. 789). Indeed, there is a danger that the commission may pay
less attention to moral considerations when they become aware that there is
philosophical disagreement (Weisbard, 1987, p. 781). I suggest that the concep-
tion of a philosopher as a coach helps address this issue. The aim is to increase
the committee’s ability to reason and argue, and this concern may legitimately
lead the philosopher to hold back some of the philosophical complexities—as is
often done when teaching (Davis, 1991, p. 269). Thus, difficult cases arise
when moral reasoning raises complex issues without yielding satisfactory resolu-
tions. The role of educator does not require that the philosopher attempts to
clarify all errors, particularly not if these errors are so subtle that the remarks are
likely to confuse the committee even further (Kymlicka, 1993, p. 23). The aim
of the commission is practical recommendations, not a philosophical treatise
with maximal validity and consistency. It is, therefore, beyond the philosophers’
role, as educator, to identify and address such topics when they cannot expect
the committee to gain increased coherence as a result. Philosophical complexi-
ties should not be introduced for their own sake, but rather only when there is a
reasonable expectation of improved moral reasoning as a result.
Not Always Seek Common Ground

Disagreement within the committee is sometimes regarded as particularly trou-
bling. In discussing the Warnock Committee on embryo research, Abram and
Wolf note that:
(...) a commission such as this one has only the power of persuasion. A
group performing ethical analysis with no coercive powers, cannot be persua-
sive without internal agreement. Unlike a court or legislature, which is struc-
tured to have effect as long as a majority agrees, a commission requires agree-
ment that is as close to unanimity as possible, to have any effect at all. With-
out such virtual unanimity, the commission members simply voice possible
arguments; with it, the commission can persuade.
The commission method thus forces the commissioners to find areas of
common accord. (Abram & Wolf, 1984, p. 629; quoted in Benjamin, 1990,
p. 377)
Philosophical considerations often serve to identify points of agreement and pin-
point issues of disagreement so that misunderstandings and empirical issues can
be resolved. However, the philosopher may also threaten the apparent agreement
among committee members. Weisbard describes a situation in which the phrase
“justice demands” was regarded as too simplistic a way to put complex argu-
ments. As a result: “Unprepared to win for the wrong reasons, we were forced to
concede defeat in defending what we considered the right ones.” (Weisbard,
1987, p. 784)
However, we should note that even when apparent agreement is due to im-
proper reasoning, it is not clear that the coach must arrest these flaws. The ability
of the committee to reason is not always improved by identifying all flaws—par-

ticularly if flaws will simply be used strategically.
Furthermore, often disagreement among committee members should not be
regretted. Sometimes reflection reveals deep-seated disagreement among com-
mittee members, or among citizens at large, on central issues. For the philoso-
pher to bring this disagreement out seems quite unobjectionable: Many such
conflicts will emerge sooner or later, and committee discussions offer a better
arena for reflection and resolution than the alternatives.
Concerning the Warnock Committee, Benjamin notes that their responsibil-
ity toward Parliament required that they “speak with one voice on whatever rec-
ommendation was put forth. For each to go his or her separate way, issuing a
series of individual opinions would be to admit failure of the collective project.”
(Benjamin, 1990, p. 384) On some issues, failure may be appropriate: A com-
mittee may sometimes properly report that no compromise seems likely, and
that the issue should, instead, be decided with concern for all sides, or by normal
majoritarian political procedures. Moreover, the role of committees within a
democracy generally does not seem to require that conflicts and disagreements
among members of the committee be suppressed in a report—and it seems even
less plausible to require the consultant to refrain from introducing and fostering
reasoned disagreement among the committee members. It is often of great pub-
lic and political importance to know that the recommendations of a committee,
even when unanimous, are the result of compromise, rather than the result of
general agreement. The philosopher’s role is sometimes to assist committee
members in observing how compromise, among different opinions and views,
may be the morally appropriate solution, given the need for a unanimous recom-
mendation for political decision, but the responsibility may also be to “raise fur-
ther questions about when, for example, one should seek or endorse compro-
mise, and when a particular compromise would be worse than no policy at all, or
place intolerable strains on integrity” (Benjamin, 1990, p. 387).
Conclusion
I have suggested that philosophers can serve a valuable and legitimate role as con-
sultants to committees. Such philosophers can be conceived of as coaches, further-
ing the committee’s ability to reason about the important practical issues at hand.
The general role of a coach involves pointing out flaws in reasoning, teasing out
implications and overarching principles. This includes pointing out important
solutions and alternatives that are excluded by current politics or from the man-
date of the committee. Insofar as the philosopher overlooks major flaws in the ar-
guments being considered, or ignores alternative, important points of view, this
must be regarded as a weakness in the services provided. As a coach, the philoso-
pher’s role is, in part, to identify weak arguments and dubious assumptions, at
least those that are of some consequence in the discussions. This task is consistent
with, and indeed requires, that other philosophers serve as social critics.
References
Abram, M. B., & Wolf, S. (1984). Public involvement in medical ethics. New England Journal of
Medicine, 310, 627–632.
Ackerman, T. F. (1989). Moral problems, moral inquiry, and consultation in clinical ethics. In
B. Hoffmaster, B. Freedman, & G. Fraser (Eds.), Clinical ethics: Theory and practice(pp. 141–
159). Clifton, NJ: Humana Press.
Beauchamp, T. (1984). On eliminating the distinction between applied ethics and ethical theory.
Monist, 67, 514–531.
Benjamin, M. (1990, August). Philosophical integrity and policy development in bioethics. Jour-
nal of Medicine and Philosophy, 15, 375–390,
Broad, C. D. (1916). On the function of false hypotheses in ethics. International Journal of Ethics,
26, 377–397.
Brock, D. W. (1987, July). Truth or consequences: The role of philosophers in policy-making.
Ethics, 97, 786–791.
Camacho, L. (1993, December). Philosophical responsibilities in Central America. Paper presented
at the meeting of the American Philosophical Association, Atlanta, GA.
Caplan, A. L. (1989). Moral experts and moral expertise: Do either exist? In B. Hoffmaster,
B. Freedman, & G. Fraser (Eds.), Clinical ethics: Theory and practice (pp. 59–87). Clifton, NJ:
Humana Press.
Clouser, K. D., & Gert, B. (1990). A critique of principlism. Journal of Medicine and Philosophy,
15(2), 219–236.
Cohen, G. A, (1989). On the currency of egalitarian justice. Ethics, 99, 906–944.
Crosthwaite, J. (1995). Moral expertise: A problem in the professional ethics of professional ethi-
cists. Bioethics, 9(5), 361–379.
Davis, M. (1991). On teaching cloistered virtue: The ethics of teaching students to avoid moral
risks. Teaching Philosophy, 14(5), 259–276.
Giske, R. (1993). The role of the coach before, during and after competitions, Oslo, Norway: Norwe-
gian University for Sports and Physical Education.
Harre, D. (1982). Trainingslehre. Berlin: Sportsverlag Berlin.
Heinemann, K. (1983). Einführung in die Soziologie des Sports (2nd ed.). Schorndorf, Germany:
Karl Hofmann.
Hughes, E. C. (1963, Fall). Professions. Daedelus, 92, 655–668.
Kamm, F. (1990). The philosopher as insider and outsider. Journal of Medicine and Philosophy, 15,
347–374.
Kymlicka, W. (1993). Moral philosophy and public policy: The case of NRTs (New Reproductive
Technologies). Bioethics, 7(1), 1–26.
Maclean, A. (1993). The elimination of morality: Reflections on utilitarianism and bioethics. London,
UK: Routledge.
Maritain, J. (1949). Introduction. In UNESCO (Ed.) Human rights: Comments and interpreta-
tions. Report from a UNESCO Symposium (pp. 11–12). London, UK: Allan Wingate.
McPherson, M. S. (1982). Imperfect democracy and the moral responsibilities of policy advisers.
In D. Callahan & B. Jennings (Eds.), Ethics, the social sciences, and policy analysis (pp. 69–81).
New York: Plenum.
Menzel, P. T. (1990, August). Public philosophy: Distinction without authority. Journal of Medi-
cine and Philosophy, 15, 411–424.
Momeyer, R. W. (1990, August). Philosophers and the public policy process: Inside, outside, or
nowhere at all? Journal of Medicine and Philosophy, 15, 391–410.
Quine, W. V. O. (1960). Word and object. Cambridge, MA: MIT Press.
Rawls, J. (1971). A theory of justice. Cambridge, MA: Harvard University Press.
Richardson, H. (1990, Fall). Specifying norms as a way to resolve concrete ethical problems. Phi-
losophy and Public Affairs, 19, 279–310.
Rorty, R. (1982). Professionalized philosophy and transcendentalist culture. In R. Rorty (Ed.),
Consequences of pragmatism: Essays 1972–1980 (pp. 60–71). Minneapolis, MN: University of
Minnesota Press,
Scanlon, T. M. (1972). A theory of freedom of expression. Philosophy and Public Affairs, 1(2),
204–226.
Singer, P. (1972). The moral expert. Analysis, 32, 115–117.
Thompson, D. F. (1983). Ascribing responsibility to advisers in government. Ethics, 93(3),
546–560.
Weisbard, A. J. (1987, July). The role of philosophers in the public policy process: A view from the
president’s commision. Ethics, 97, 776–785.
Wikler, D. (1982, June). Ethicists, critics, and expertise. Hastings Center Report, 12–13.
Williams, B. (1985). Ethics and the limits of philosophy, Cambridge, MA: Harvard University Press.
Willigenburg, T. van. (1991). Inside the ethical expert. Kampen, The Netherlands: Kok Pharos.
Chapter 10
Who Decides the Worth of an Arm and a Leg?
Assessing the Monetary Value of Nonmonetary
Damage
Fenna H. Poletiek and Carel J. J. M. Stolker

Cognitive Psychology and Meijers Institute of Legal Studies, Leiden University, The Netherlands
poletiek@fsw.leidenuniv.nl
c.j.j.m.stolker@law.leidenuniv.nl
Nonpecuniary damage is the legal term for both some non-economic loss and
the monetary compensation of this loss. The term sounds like a paradox. Indeed,
it unifies, on the one hand, hard material value, and on the other, an emotion
impossible to quantify: suffering. In spite of this philosophical argument, how-
ever, the paradox has to be solved in at least one practical context: the assign-
ment of monetary compensation to victims harmed by a liable third person. The
question is: How much has, and will, the victim suffer(ed) and, accordingly, how
much money should they obtain to “repair” the damage? This judgment requires
that grief be expressed in a monetary value. But, how can this translation of grief
be made in monetary terms? Also, who is qualified to make this assessment?
That is, who is taken as the expert in the present practice, and who should be
considered so, in this legal procedure?
The analysis of this problem proceeds in three parts: First, we question what
the legal concept of “nonpecuniary damage” is, and what the implications for
making this assessment are. We will show that the assessment consists of two dif-
ferent aspects, which we will call subjective and objective aspects. Second, we
question who is the expert, and for which aspect of the assessment? In this sec-
tion, we present some data comparing the assessment by courts and laypersons
on the severity of injuries. Third, we present arguments for a standardization of
this assessment, and discuss the debates on such a standardization, considering,
from a sociological point of view, the role and interests of the actors involved.
Our study focuses on the Dutch law and the situation in the Netherlands. How-
ever, the problem of translating victims’ suffering into a quantified amount of
damage, to be paid by a liable party, exists in most Western societies. Conse-
quently, our analysis may be generalized, to some extent, beyond the country’s
frontiers.
201
202 Fenna H. Poletiek and Carel J. J. M. Stolker
The Legal Philosophy of Nonpecuniary Damages

The Article 6:106 of the New Dutch Civil Code (19921) reads:
The victim has the right to fairly determined reparation of harm other than
economic damage:
a. if the person liable had the intention to inflict such non-economic harm;
b. if the victim has suffered physical injury, injury in honor or reputation, or
if this person has been otherwise afflicted.
However, this text reveals a few intentions the legislature had about nonpecuni-
ary damages. Although nonpecuniary damages can be awarded in a large num-
ber of cases (mentioned above under b.), we focus on the cases in which the vic-
tim has suffered physical injury. First, it is meant as reparation of harm. In other
words, these damages should compensate for something that is lost. This implies
that the amount of damages, somehow, should be in accordance with the
amount of what is lost. Second, the damages, being reparation of harm, are not
intended to punish the person liable for the harm. This clearly contrasts with the
idea of “punitive damages” which exists in some common law systems. However,
the damages vary as a function of the degree of liability of the wrongdoer. As the
act was less intentional, the damages decrease (Dutch Civil Code, Article 6:982).
A third idea behind the regulation of nonpecuniary damages in the Dutch law is
that, as a principle, they cannot be assigned to relatives of a victim if the event
has led to the death of the victim. Indeed, since these damages are meant to
compensate the victim, allowing them to “buy new pleasure” to replace the lost
one, other persons than the victim cannot, in principle, use these damages to
assuage the inflicted harm (Stolker, 1990). This implication, however, is highly
debated (Lindenbergh, 1998). Indeed, occasionally, the harm might not inflict
the victim himself, but the relatives. This is so when the victim dies or stays in
coma. In the following, we will come back to this debate. Fourth, the judge, as
Article 6:106 of the Dutch Civil Code3 reads, who has to determine the amount
of nonpecuniary loss, is given no more concrete instructions than that they
should determine this amount in a “fair” way. But, what is fair? To answer this
question, we first deal with the question of who is qualified to determine the
seriousness of injuries.
1
Nieuw Nederlands Burgerlijk Wetboek—New Netherlands Civil Code, translation in Eng-
lish and French by P. P. C. Haanappel & Ejan Mackaay, Kluwer Law and Taxation Publishers,
Deventer/Boston 1990.
2
See footnote 1.
3
See footnote 1.
Who Decides the Worth of an Arm and a Leg? 203
Who Is Expert for Assessing Nonpecuniary Damages?

The law states that the assessment should be equitable. Moreover, in Article 6:97
of the Dutch Civil Code,4 it grants the judge the freedom to “estimate these
damages when no precise calculation can be made.” But, what considerations
should play a role in this estimation? On the one hand, there is the suffering.
The Dutch Supreme Court ruled in the famous “AIDS Judgment” (19925), a
case in which a patient was infected with the HIV virus due to a medical error,
that compensation of nonpecuniary damages should be related to the “kind,
duration, and intensity of the pain, suffering, or loss of joy in life.” This judg-
ment again reflects the concept that nonpecuniary damages aim at compensating
for personal suffering. On the other hand, the legal practice is that courts base
the assessment of the damages on the kind and intensity of the injury, rather
than on the actual pain experienced by the individual victim, which can be two
completely different assessments, as we will see below. To assess the “intensity” of
an injury, courts apply a list of injuries, categorized with regard to their serious-
ness, in categories varying from mild to extremely severe.
This “list” is constructed on the basis of case law; a compilation of hundreds
of judgments on nonpecuniary damages from all Dutch courts, the so-called
ANWB list (composed by the Dutch Motorists Association [ANWB]). In turn,
this database of past amounts assigned has become the informal standard to
courts for determining damages in future cases. How did this “list” derive? Be-
fore the “list” existed, courts decided in each case on the basis of their estimation
of the victim’s suffering. From 1957 onward, decisions on nonpecuniary dam-
ages were systematically registered by the ANWB and, importantly, categorized
and ranked according to injury. The result is a hierarchy of groups of injuries and
corresponding monetary amounts, reflecting the average damages assigned in
cases in which a particular injury was suffered. In sum, the seriousness of in-
juries, as estimated and inferred from past judgments, now predominantly deter-
mines the practice of the assessment of nonpecuniary damages by courts, rather
than individual suffering aspects.
Interestingly, those two factors (personal suffering and injury) can conflict.
Indeed, focusing on the intensity of pain implies that the subjective individual
experience is taken as the ground for the “loss” that should be compensated. We,
therefore, will call the victim-related factor the “subjective aspect.” By contrast,
taking the injury as the standard implies that the objective observable result of
the event is to be compensated. Accordingly, the injury-related aspect will be
called the “objective aspect.” Consider, as an example, two victims from different
accidents, resulting with the same injury: an amputated leg. According to the
courts’ actual practice, in which the injury is taken as the relevant factor, those
two people should obtain the same amount of damages. The subjectively felt
pain, however, may vary greatly between victims, depending on the unique indi-
4
See footnote 1.
5
HR 8 July 1992, Nederlandse Jurisprudentie 1992, 714.
vidual and the event. This uniqueness can derive from numerous circumstances,
for example, relating to personal characteristics, such as age, sex, and profession,
but also from the attitude of the actor regarding the event. The implication of
this is that if their suffering is different, the amount of damages should be, too.
Summarizing, the objective factor satisfies the fairness principle in justice that
people with the same injury should be compensated equally. The subjective fac-
tor satisfies the adequacy principle that the damages should reflect, adequately,
the actual amount of subjective lost joy.
How do courts come to terms with this contradiction? In the argumentation
preceding the final decision on the damages in court or in settlement, the subjec-
tive aspects of the suffering are often highly emphasized, especially by the vic-
tims’ lawyers. Particular individual circumstances and feelings are argued to in-
teract and add up to the injury itself, increasing the victim’s suffering. However,
research has shown that judges do not allow their judgments to be influenced
much by these arguments. They generally adhere to the “list.” It has been shown
in a statistical analysis of court decisions (Ferwerda, 1987; Vollbehr, 1989) that
the final decision on the amount of damages is hardly influenced by subjective
circumstances of the victim. The objective factor “seriousness of the injury”
almost fully determines the variance of the judgments.
The fact that the estimations of damages by courts barely take into account
subjective particularities of the suffering may have two reasons: First, some of
these circumstances are very difficult to assess because they require the valuation
of some very personal feelings. Second, what are the reasonable subjective cir-
cumstances to take into account? In the literature, many factors have been ad-
vanced (Stolker & Poletiek, 1998), among which are income and social position
of the victim. But, authors disagree as to which individual characteristics are rel-
evant for assessing the damages (Lindenbergh, 1998). The third reason may be
that courts just do not know how these characteristics should affect their judg-
ment. For example, is a high income a reason for increasing or rather lowering
the damages? Should it be assumed that rich persons suffer less or more than
poor persons?
The objective factor, the severity of the injury, has to be assessed in a different
way than the subjective factor. The injury itself can often be determined by a
diagnosis from a medical expert. However, the problem is to determine its “in-
tensity” (seriousness) compared to other injuries. Vollbehr (1989), Pieters and
van Busschbach (1989), and Stolker and Poletiek (1998) point at the arbitrary
character of the “seriousness categorization” of the injuries on the ANWB list.
This database reflects what courts consider about the seriousness of injuries, both
relatively (one injury as compared to the others) and absolutely (each injury is
supposed to correspond to a certain amount of loss in the joy of life, monetarily
expressed). This raises the question as to who is the expert in assessing the rela-
tive and absolute severity of health damages. We consider three possibilities: first,
the court. This is the point of view taken implicitly by our legal system, because
this is the practice. The courts base their decisions on the “list,” which in turn is
a compilation of court judgments. However, apart from making an accurate esti-
mation of the damages, courts might have other concerns. For example, courts
may tend to keep the seriousness low in order to avoid case laws with huge mon-
etary amounts on the basis of which new victims might base new claims. Also,
their estimations on the seriousness of injuries might be affected by factors, such
as social status, which is generally above average for judges. Notice, that these
considerations only apply to non-jury systems. Second, the victims themselves
might be considered as the expert in determining how serious the injury is, abso-
lutely as well as relatively, in comparison to other injuries. However, the victims
are influenced by other subjective factors, which might bias their estimation. For
example, the very fact that the victims can claim monetary compensation might
bias their perception of the seriousness of the injury. The third possible expert is
the possible victim, being the civilian to whom this legislation applies. We believe
that they are the experts on whose judgment the estimation of the seriousness of
injuries should be based, in order to be most in accordance with the legislation.
Indeed, possible victims are expected to be least prone to maximize or minimize
the estimated seriousness of injuries, for strategic reasons. Thus, the standard on
which the court bases its estimation of seriousness of injuries should reflect the
feelings of “the person on the street” (being the possible victim) about relative
and absolute seriousness of injuries.
In the study we present below, we further investigated this point of view by
comparing the courts’ (ANWB list) and civilians’ estimations on the seriousness
of their injuries. Such a test of the “list” has never been performed, although dif-
ferences in the estimations courts and people use might have serious financial
implications for victims, depending on whose expertise is used as a basis.
Comparing the Courts’ Estimations With Laypersons’

Estimations
The problem of the assessment of the seriousness of injuries can be formulated
in psychological terms, such as how to measure utilities of health states. In the
field of medical decision making, this is an elaborate research program. Indeed,
cost effectiveness analyses of medical interventions require that the patients’ ex-
perienced health states be quantified, in order to compare the costs of interven-
tions with their benefits in terms of experienced quality of life (Bakker & van der
Linden, 1995).
The methods applied to measure utilities of health states can also be used in
the context of the legal assessment of nonpecuniary damages. We will first inves-
tigate the relative utilities of injuries (ranking) by laypersons, which can be
directly compared with the courts’ standard. Next, we estimate the absolute utili-
ties of the injuries. These utilities can be compared with the actual average
amounts of nonpecuniary damages assigned by courts in the past, as they figure
in the standard “list.” We also measured the utilities of a number of events for
which no nonpecuniary damages can legally be claimed. These are the cases in
which a relative (e.g., child, partner) has died due to some event for which a
third person is liable (Article 6:108 of the Dutch Civil Code6) and cases in
which the victim is in permanent coma. The latter cases are not explicitly ex-
cluded from the right of nonpecuniary damages by the law, but they are gener-
ally interpreted to be so by legal experts (Stolker, 1990). Since these cases (death
of relative, permanent coma of victim) are the topic of a lively public discussion,
we investigated them in our study.
The Ranking of Injuries

Ninety-one persons participated in this study on a voluntary basis. The partici-
pants completed a questionnaire with 19 descriptions of injuries. The injuries
were a selection of those mentioned in the ANWB list, plus 3. These are “the
death of one’s child,” the “death of one’s partner,” and “being in permanent
coma.” Participants were requested to rate the impact these injuries would have
on their quality of life, on a scale varying from 0 (no influence on my quality of
6
See footnote 1.
life) to 9 (my quality of life would be as much affected as by death). The rating
scores were analyzed by means of the Thurstone Method. With this method,
not only the ranking of the injuries of all participants can be calculated, but also
the “distances” between the injuries on the criterion “influence on quality of
life” can be inferred. This is obtained by calculating a z-score for each injury.
This z-score becomes negative when severe, and positive when not. In Table 1,
the ranking of the injuries by participants and the corresponding Thurstone
Scores are displayed.
The standard “list” is represented as a ranking with discrete categories. The
injuries belonging to one category share the same position in the ranking. The
ranking globally matches the courts’ ranking. There are some differences, how-
ever. In order to compare the continuous participants’ ranking with the courts’
categorization, a difference between the two “lists” was defined as significant
when two injuries, ranked in a certain order by participants, were inversely as-
signed to two courts’ categories. First, participants rate loss of taste to be less
severe than a severe whiplash, the courts hold the reverse. Another difference ex-
ists with regard to a “scar in the face.” According to the courts, this should cause
less suffering than the amputation of the middle finger. However, according to
the participants, the inverse is true. With regard to loss of taste and smell, there
is also disagreement between the courts and the respondents. These two injuries
are estimated as less painful than a large scar on the face, a light or severe whip-
lash, and one-sided deafness, whereas the courts put loss of taste or smell in a
more severe category than these. Finally, it can be seen that the three events not
“repairable” by damages according to the law, are considered most serious by lay-
people, placing them at the bottom of the ranking in Table 2. Loosing one’s
partner, one’s child, and being in permanent coma are felt as the most painful
events that can happen.
How can these differences be explained? We suggest some tentative explana-
tions. First, whiplashes can affect victims in many ways. They can cause various
somatic as well as psychological effects, which are difficult to diagnose. In addi-
tion, this injury has obtained much attention from the media, precisely because
of its poorly explained and sometimes dramatic effects on victims. Courts might
estimate the impact of such “soft” injuries lower than people do. Inversely, loss of
taste or smell are injuries that are possibly not well imaginable by people because
they are not very frequent, and, therefore, are estimated low. Courts, however,
have been faced more frequently with these injuries and estimate their seriousness
higher on the basis of life reports from victims. Scars that are visible do not affect
one’s physical health, but possibly one’s identity and self-image. Apparently, such
an injury is more important for people than courts believe. The same argument
might apply to whiplashes: Courts might think of these psychological effects as
fuzzy and, therefore, underestimate their seriousness. With regard to the ratings
of the events, which are not compensable by damages, we return to them below.
Apart from the ranking of injuries, we compared the absolute monetary
amounts associated to these injuries by both groups. For this, we used the “Will-
ingness-to-Pay” (WTP) Method. With this method, the psychological value of a
“good” or a “loss” can be measured. It is frequently used in medical decision

making for measuring the utilities of health states (O’Brien & Viramontes,
1994). It proceeds as follows: People are asked how much they would be willing
to pay to be entirely cured from injury or illness. Their answer expresses the esti-
mated amount of suffering in monetary terms. In the present study, we asked the
respondents to give their WTP value for two injuries only: the one they rated as
the least severe and the one they rated as the most severe. The mean least severe
WTP score and the mean most severe WTP score were taken as the extreme val-
ues of the utilities accorded to the average least and most severe injuries. The
WTP amounts for the remaining injuries were obtained by interpolation. The
intervals between the injuries were calculated on the basis of the Thurstone
scores obtained in the ranking. Thus, the distances between the injuries, calcu-
lated with the Thurstone scores, were reflected in the estimated WTP scores.
These scores are displayed in Table 2, together with the mean damages awarded
by the courts for each category of injuries. The amounts in Dutch guilders, were
converted to Euro.
As can be seen in Table 2, the average WTP scores resulting from this inter-
polation are higher than the damages. The differences between the two “lists” in-
dicate that courts associate less compensation with the injuries than civilians
would estimate to be necessary, given their seriousness. The differences especially
increase when the injuries are more severe. In the highest category, courts assign
an amount of 50.000 Euro or higher. However, this amount is only about half
the amount people assign on average to the most severe injuries.
A few remarks must be made with regard to the WTP Method. First, the re-
sponses are sensitive to income position. Indeed, people with a higher income
position may be willing (because capable) to spend more money for cure than
people with a lower income position, for the same suffering. In our sample, dif-
ferent income positions are represented, and the WTP scores are averaged.
Therefore, we chose to report the raw WTP scores. A second problem is that
quite a few participants (40) gave no specific amount as a response, but answered
“millions” or “everything I have” when asked to rate the “most severe injury or
event.” Those responses were excluded from the calculations in Table 2. We re-
turn to this in the next section.
The main conclusions from the present comparison of courts’ with lay-
people’s opinions on injuries are firstly that both rankings and absolute estima-
tions of the seriousness of injuries differ on a number of items. Thus, consider-
ing civilian rather than courts as the experts makes a difference. The values of
the severity of injuries expressed monetarily are, on average, almost twice as high
as the average damages from courts. Second, events not compensable by dam-
ages, such as the loss of a partner or a child and being in a permanent coma, be-
long to the most painful experiences people can imagine: They correspond to
what people conceive as the greatest loss of quality of life. This reveals the most
striking incompatibility between the courts attitude, on the one hand, and lay-
person’s attitude, on the other, toward the seriousness of injuries. We discuss this
difference more in detail below.
Although courts do not even consider compensation for pain caused by dam-
ages to relatives, this pain is the most severe people can imagine. The law text on
nonpecuniary damages assumes that the victim of the event, for which a third
person is legally liable, is the one that should be compensated for the pain felt, so
that they can “buy” back the lost joy of life. Since a dead person cannot benefit
in such a manner from compensation, those victims are excluded from the right
to damages, as follows in Article 6:108 of the Dutch Civil Code.7 In the same
line of argument, it has been proposed that people in permanent coma (or their
relatives) should not be compensated either (Stolker, 1990). However, our study
shows that the suffering caused to a relative by the death or coma of their partner
or child, is one of the most severe ones. The suffering being so intense, it seems
reasonable to compensate it somehow. Another argument in favor of damages
for surviving relatives is the Supreme Court’s AIDS judgment8 on nonpecuniary
7
See footnote 1.
8
See footnote 5.
damages. It rules that the suffering, its intensity, and duration are the entities to
be compensated. In this statement, the court emphasizes that the suffering,
rather than the victim as a person, should be indemnified. In sum, in line with
the adequacy principle, according to which the amount of pain inflicted is what
should be compensated, it is arguable that relatives, if they suffer the pain ensu-
ing from the event having caused the death or coma of the victim, should be en-
titled to obtain some damages. This is in contrast with the adequacy principle
underlying the law.
Recently, however, in a so-called “nervous shock case,” the Dutch Supreme
Court authorized the recovery of both pecuniary and nonpecuniary damages by
a close relative of a victim of a tort in certain situations.9 The claimant relative
must either observe the tort or be confronted immediately thereafter with the
suffering or death of the close relative. In addition, a serious mental injury (the
court uses the words “recognized psychiatric damage”) on the part of the ob-
server claimant is a prerequisite and, therefore, the court in the case dismissed
the claim as far as “only” affective damage (bereavement damages—misery, grief,
sorrow) was concerned. Compensating mere affective damage would, indeed, be
in conflict with the general principle underlying the law on nonpecuniary dam-
ages (Levine & Stolker, 2001).
A final remark must be made with regard to these cases. We observed that it
was particularly difficult for people to quantify suffering when the suffering was
extremely severe. This was expressed in the answers to the WTP question with
regard to the death of a partner or child. To our surprise, many respondents gave
unlimited answers, such as: “everything I have.” Damages are more difficult to
express monetarily as the loss of joy of life is more extreme. Allowing for com-
pensation in these cases again raises the problem: How much should this be? The
full discussion of this problem is beyond the scope of this study. But, a possible
solution might be to fix a symbolic amount for these cases, meeting the need for
some recognition of the inflicted pain without trying to fully compensate it
materially.
Standardized Assessment: What Are the Advantages and

for Whom?
Resuming the previous arguments and findings, we propose that the assessment
of nonpecuniary damages is the combination of two aspects. First, an objective
aspect on the severity of the injury and, second, a subjective aspect which is the
actual individual suffering. These aspects are to be assessed and combined, re-
sulting in an amount of compensation. Although this assessment has, in the
past, been fully assigned to the competence of the courts, we have argued that
the assessment of the objective part should be based on the opinion of civilians.
9
Hoge Raad 22 February 2002, Rechtspraak van de Week 2002, 48.
We showed that transferring this expert role from the court to the civilians
makes a reasonable difference.
The present perspective on the assessment of nonpecuniary damages and the
expertise question, furthermore, raises the question as to how this judgment pro-
cess might be carried out in practice. The two contrasting answers to this ques-
tion are, first, a standardized procedure and, second, individual judgments of
each case. The second method is the current practice in the Netherlands. The
severity of the injury, as well as the individual suffering, are weighted and esti-
mated in each individual case by the court and combined to one final monetary
amount. Interestingly, in the past, a few attempts were carried out to allow the
assessment of nonpecuniary damages to be defined by some kind of standardized
procedure. For example, in 1984, the Dutch Association of Insurers proposed a
“formula” for calculating the damages. It is a very simple algorithm calculating
the damages on the basis of the duration of therapy and recovery, the extent to
which the person is disabled (which are rather injury-related “objective” factors,
as we called them), and the victim’s age (which is victim-related and, therefore,
subjective). All these factors were quite easy to assess and were actually assessed
by the court. The formula, however, has hardly been applied in practice. The
algorithm was considered to be too simple and the amounts it generated too low
and quite arbitrary. In sum, it was seen as equally arbitrary as just using the
“list.”
However, surprisingly, the criticism that this standardized procedure re-
ceived was not directed at the parameters of the formula, but primarily at the
very fact of standardizing the assessment. The criticism came from legal experts,
especially lawyers, attacking the procedure on the grounds of prohibiting proper
allowance for numerous subjective circumstances of the individual victim. In
fact, it is in the lawyer’s interest to leave some untransparency regarding the
damages. This allows the lawyers, within the margins of this opacity, to plead
for maximization of the damages, on the basis of the unique situation and char-
acteristics of their client and the situation. Insurers, however, are interested in
predictability. Indeed, they are almost always the party who actually awards the
compensation. In order to calculate their premiums, they are required to per-
form accurate cost predictions. This is obviously more simplified when the para-
meters of the decision procedure are known, bearing in mind that it was the in-
surers who first proposed the “formula.”
Finally, what are the consequences of standardization for the victims? The
law exists as a regulation for the victims’ right to fair compensation. On the one
hand, victims, as a group, benefit from a transparent standardized procedure,
where standardization increases fairness. On the other hand, it has been sug-
gested that this procedure can also be applied against the individual interests of
victims. Their unique circumstances are, then, presumably dismissed. However,
there are also a few arguments in favor of a standardized approach for the indi-
vidual. Firstly, as we mentioned above, courts in practice seldom take into ac-
count subjective factors, but base their judgment mainly on the severity of the
injury, apparently in spite of the subject-based pleas from lawyers. Thus, a stan-
dardized procedure, in which a fixed weight would be given to objective and

subjective factors, might provide an improved, rather than a detrimental guaran-
tee that subjective aspects affecting the experienced pain are taken into account.
Secondly, however, subjective circumstances can also be applied against the indi-
viduals’ interest. Consider a right-handed illustrator having their left-hand para-
lyzed. Since this injury does not impede their professional work, the damages
might be lowered precisely due to their unique characteristics. In a procedure as
the one sketched above, the individual and subjectively felt pain, on the one
hand, and the objective severity of the injury, on the other, can be balanced sim-
ilarly for all victims, allowing acceptable subjective elements to perform a role.
Another advantage of leaving the assessment of emotional damages to an “expert
procedure” is that it is intelligible and transparent to individuals, increasing its
acceptability (van den Bos, Lind, & Wilke, 2001).
In conclusion, standardizing the assessment of nonpecuniary damages might
be a reasonable way to translate suffering into monetary compensation. In such a
procedure the relative weight of the objective and subjective assessment, can be
calculated. However, expert roles should be adequately attributed, as we argued.
Expertise for estimating the subjective factors should be provided by the victim,
and expertise for estimating the severity of the injury should be produced by the
possible victims, who actually are all civilian concerned by the legal system. In
our view, such a model allows for the difficult task of assessing nonpecuniary
damages to be performed in accordance with the intentions of the legislation.
Authors’ Note
We thank Mark van Oostrum, Richard Tijink and Willem van der Kloot for
their assistance in carrying out the empirical study and analyzing the data.
References
Bakker, C., & van der Linden, S. (1995). Health related utility measurement: An introduction.
The Journal of Rheumatology, 22, 1197–1199.
Ferwerda, M. P. (1987). Statistische analyse van smartegelduitspraken [Statistical analysis of non-
pecuniary damages judgments]. Verkeersrecht, 5, 122–124.
Levine, D. I., & Stolker, C. J. J. M. (2001). Compensating for psychiatric damage after disasters;
A plea for a multifactor approach. In E. R. Muller & C. J. J. M. Stolker (Eds.), Ramp en recht
(pp. 127–148). The Hague: Boom Juridische Uitgevers.
Lindenbergh, S. D. (1998). Smartengeld [Nonpecuniary damages]. Deventer, The Netherlands:
Kluwer.
Stolker, C. J. J. M. (1990). The unconscious plaintiff: Consciousness as a prerequisite for compen-
sation of non-pecuniary loss. The International and Comparative Law Quarterly, 39, 82–100.
Stolker, C. J. J. M., & Poletiek, F. H. (1998). Smartengeld—Wat zijn we eigenlijk aan het doen?
Naar een juridische en psychologische evaluatie [Toward a legal and psychological evaluation
of nonpecuniary damages]. In F. Stadermann et al. (Ed.), Bewijs en letselschade (pp. 71–86).
Lelystad, The Netherlands: Koninklijke Vermande.
O’Brien, B., & Viramontes, J. L. (1994). Willingness to pay: A valid and reliable measure of health
state preference? Medical Decision Making, 14, 289–297.
Pieters, J. A., & Busschbach, J. J. van. (1989). Een empirisch onderzoek naar de vaststelling van
smartengeld in geval van letsel [An empirical investigation into the assessment of damages in
case of injury]. Verkeersrecht, 6, 141–146.
van den Bos, K., Lind, E. A., & Wilke, H. A. M. (2001). The psychology of procedural and dis-
tributive justice viewed from the perspective of fairness heuristic theory. In R. Cropanzano
(Ed.), Justice in the workplace: From theory to practice (pp. 49–66). Mahwah, NJ: Erlbaum.
Vollbehr, W. (1989). Smartegeld en willekeur [Nonpecuniary damages and arbitrariness]. Ver-
keersrecht, 6, 146–150.
Chapter 11
The Expert in a Historical Context: The Case of
Venetian Politics
Achim Landwehr
Faculty of Philosophy, Heinrich Heine University of Düsseldorf, Germany
landwehr@phil-fak.uni-duesseldorf.de
In his book on the Mediterranean Sea as a historical area, the French historian
Fernand Braudel included a chapter on Venice up to the end of the Republic in
1797. He was obviously fascinated by the “most serene republic” (Serenissima).
Among the many aspects of Venetian politics, he mentioned the cinque savii alla
mercanzia, literally the five wise men in matters of trade. Interestingly, however,
Braudel did not use this literal translation, but rather employed the more loosely
translated phrase five experts in matters of trade (Braudel, 1987, p. 169).
This raises an important historical question. Braudel intentionally designated
these men as experts. But, is it possible to speak of “experts” in the early modern
period? Also, to ask if there were experts from approximately 1500 onward at all
is made more complicated by the difficulty of defining experts in general. To pre-
vent disappointment, I have to admit that I will not be able to give satisfactory
answers to all of these questions. Rather, I will concentrate, in this article, on the
problem of experts in the early modern period with reference to one special in-
stitution, the syndics of the Venetian mainland (Sindici in Terraferma). First, I
will discuss the problem of early modern experts on a larger scale before turning
to commissioners as a form of early modern experts and their role as power/
knowledge forms. The results of this discussion will lead into a case study of the
syndics of the Venetian mainland as early modern experts.
What Is an Expert?
To answer the question “what is an expert?” appears, at first glance, not to be the
most difficult task. An expert is a person who is skilled or one who possesses spe-
cialized knowledge (Brint, 1994; Savage, 1996). An illustration of this usage
comes from an announcement posted on the internet for the Max Planck So-
ciety’s Schloeßmann Seminar on “The Expert in Modern Societies”:
The Max Planck Society promotes interdisciplinary research in selected areas
of the sciences. For this purpose, a 3-day seminar will be organized every year
215
216 Achim Landwehr
in memory of Dr. Ernst-Rudolf Schloeßmann (...). Leading experts in the

field are invited to present their views, and young scientists are encouraged to
develop research proposals and present them as part of the seminar.1
Thus, the topic of this particular seminar leads to the, in a sense, self-referential
situation in which experts are gathered to discuss the role of experts—a research
project in itself.
But, apart from this broad definition of the expert, etymologically deriving
from the Latin adjective expertus, meaning to be skilled in something, it is hardly
possible to give further, generally accepted specifications. The prevailing defini-
tions of the expert are far from being consistent. As overviews of several discus-
sions in the social sciences show, experts are either defined as being skilled in spe-
cialized fields of knowledge, as having an overall picture of a subject area, or as
being generalists (Kleimann, 1996, p. 185f.).
Historians, however, are in the habit of posing every question historically and
of historicizing every concept. From this perspective the question “what is an ex-
pert?” becomes even more intricate—but, as a consequence, all the more inter-
esting. Seen from the historical point of view, the expert in today’s sense is a
quite young phenomenon, appearing linguistically on the scene about 1800. Be-
fore the 19th century, the word expert is difficult, if not impossible to trace. The
Oxford English Dictionary records the first entry of expert as a person whose spe-
cial knowledge causes them to be regarded as an authority in the year 1825
(Simpson, 1989, p. 566). In the German language, the word Experte also appears
only in the 19th century (Brockhaus, 1968, p. 826). In Zedler’s encyclopedia,
the most important work of that type in the German-speaking countries before
1800, there is no entry for the term Experte at all (Zedler, 1734).
Linguistically, the concept is rarely found throughout the early modern
period prior to 1800, let alone in medieval times. Hence, a justification seems to
be necessary: How is it possible to talk about experts in the early modern period
if the designation did not exist? Does the absence of the term mean that there
were no experts? I suggest following Braudel in this respect by not taking terms
such as savii too literally. To illuminate how the concept developed and how this
group came to be distinguished by the designation expert, it is necessary to study
those who had specialized knowledge and were mentioned under different desig-
nations in the historical sources. Then, the term commissioner suggests itself im-
mediately.
Commissioners
The importance of commissioners, in the early modern period, can hardly be over-
stated. The period between the late 15th and the early 19th century is—among
many other aspects—characterized by the growth of administrations in the
1 URL: http://www.communication.mpg.de/inhalt.htm.
The Expert in a Historical Context 217
European countries. Because the embryonic administrations of this period were

unable to execute all their organizational charges, commissioners were appointed
in many fields of the early modern state.
Jean Bodin, the important French theorist of the sovereignty of the early
modern state, described this institution theoretically as early as 1583. He gave a
definition of the commissioner in his Les six livres de la République:
Le commissaire est la personne publique qui a charge extraordinaire limitée par
simple commission [the commissioner is an official who has an extraordinary
charge and who is limited only by his commission]. (Bodin, 1583, p. 372)
According to his definition, there are two major differences between a commis-
sioner and a common official. The commissioner has an extraordinary instruc-
tion and is not bound by any laws; he is responsible only to the sovereign. By
contrast, a common official has to follow the rules prescribed by the position
that bind them to the laws (Bodin, 1583, pp. 372–392). This distinction is cru-
cial, because it signifies, for the first time, the commissioner as a separate institu-
tion—an institution that has to be filled with persons who possess the resources
of knowledge, experience, and authority to accomplish the relevant tasks.
In England, the term commissioner appeared in the 15th century in reference
to officials charged by Royal Commission or Warrant with specified duties
(Simpson, 1989, p. 558). In the same sense, the designation commissaire ap-
peared in France as early as the mid-l4th century (Dictionnaire, 1898, p. 134),
while the German Kommissar or Commissarius raised its head in the 1420s
(Deutsches Rechtswörterbuch, 1974–1983, p. 1186f.; Moraw, 1983, p. 52).
There are famous historical examples of commissioners and commissions. A
very early one is the Domesday Book, commissioned by William the Conqueror
as a survey of wealth, population, and cultivation in England following the Nor-
man conquest (Galbraith, 1974; Holt, 1987). Commissions also played an im-
portant role during the Inquisition when groups and persons were investigated
who were thought to adhere to the wrong religion (Bennassar, 1979; Bethen-
court, 1995), and the Poor Law Commission in the United Kingdom in the
early 19th century, which developed the early British Social Welfare Legislation
(Humphreys, 1995; Rose, 1971).
But, the everyday work of a commissioner in early modern Europe between
the 16th and the 18th century was not as spectacular as these examples might in-
dicate. As the German historian Otto Hintze (1981) showed in his essay on the
Commissarius, the roots of this type of expert mainly laid in the fields of warfare
and finance (Hoke, 1978). In Prussia and France, the commissioners had special
functions in the supply of armies and in the administration of conquered areas.
The Prussian Commissioner of War (Kriegskommissarius) was responsible for or-
ganizational duties within the army, while the French legal officials of the army
(intendants de justice ou d’armée) received personal closed letters (lettres closes)
from the king, which described their wide-ranging military and civil compe-
tences (Fischer & Lundgreen, 1975, pp. 499–509; Hintze, 1981, p. 78f., p. 84).
It was typical for these and for other commissioners of that period to be respon-
218 Achim Landwehr
sible only to their sovereign. Apart from these military officials, there were also
the officials responsible for petitions (maîtres de requêtes) in France, commission-
ers who were sent to the provinces occasionally as the eyes and ears of the king.
They controlled the local officials, protocolled complaints from the subjects, and
made reports to the government (Mousnier, 1970).
But, is it possible to describe these commissioners as experts? Perhaps not in
the modern sense of the word. These commissioners were educated (if they had
an academic education at all) as generalists in broadly defined fields of knowl-
edge and with almost no specialization. But, the practice of their work more or
less forced them to become experts. Early modern states (Blänkner, 1992; Rein-
hard, 1996, 1999) were faced with a rising complexity and had to react with in-
creasing differentiation (Luhmann, 1997, Vol. 2, pp. 595-618). More and more
tasks had to be taken over by these states and, for that reason, personnel had to
be recruited that was able to specialize in the relevant fields—that was able to be-
come experts (Fischer & Lundgreen, 1975).
Therefore, the early modern period is of special interest for the question of
defining the expert. It is—as in many other areas—a period of transition from
medieval to modern times, and has been described as a “pattern book of the
modern age” (Schulze, 1993, p. 4). Because of changing demands, generalists
had to become specialists in certain spheres. In the struggle for power, the Euro-
pean states were especially in need of military and economic expertise:
When it was clear that a strong economy meant everything in the interna-
tional competition for power, one might have concluded that principles of
science and technology would have to be applied to practical fields hitherto
merely guided by tradition; that the Enlightenment necessary for this devel-
opment might be achieved by education; that education might be the only
promising means for a latecoming nation if it wanted to imitate the fore-
runner. These circumstances gave birth to (...) the fonctionnaire, the techni-
cal expert who never belonged exclusively to the public service but gradually
began to play a significant role in private enterprise. This kind of technical
personnel is functionally defined by its expert knowledge which it usually
gets by education, at least in the case of France and Prussia. (Fischer & Lund-
green, 1975, p. 545f.)
In 1727, Prussia established the first Chairs for Cameral Science (Kameralistik)
in universities, to transmit specialized knowledge in economics, statistics, and
technology (Unruh, 1983). Of greater importance were the learned societies
outside the universities, such as the French Academy of Science, which was es-
tablished in 1666. This event transformed a private gathering of scientists into a
royal institution of regularly employed and salaried scientists. The interest of the
French monarchy was
(…) to have an advisory council of scientific experts; to draw on their knowl-
edge and research in order to improve navigation, warfare, architecture, engi-
neering; to have the economic policy assisted by systematic application of sci-
ence to industry and by diffusion of technological knowledge (Fischer &

Lundgreen, 1975).
This development can also be illustrated by the example of the Venetian admin-
istration. Even a cursory look at the structure of the Venetian Constitution re-
veals its enormous complexity (Archivio di Stato di Venezia, 1994; Maranini,
1974). Dozens of offices were responsible for different tasks. Every time a new
problem arose, a new institution was set up to address it. The result was a system
of overlapping responsibilities intended to ensure that every institution would be
controlled by another one. Kretschmayr (1920, p. 78) described this as a system
of mistrust, but it is also the result of a permanent process of differentiation.
Commissioners as Power/Knowledge Forms

If we accept the proposition that commissioners were an important type of ex-
pert in the early modern state, the question remains how this perception can be
examined empirically: Is it possible to trace the development of the early modern
expert up to his “linguistic birth,” at approximately 1800? Traditionally, histori-
cal research has concentrated on the political and administrative functions of
commissioners and/or on their social and economic position. These aspects are
undoubtedly important and cannot be excluded. However, I would like to make
a case for a research perspective that focuses on commissions as forms of power
and as producers of knowledge and truth. To understand the processes, by which
control was established over people, it is also necessary to study the production
of the respective discourses. Central questions, thus, emerge: How were dis-
courses produced, how were they established as truth, and how were they bound
to certain institutions and mechanisms of power?2
Discourses develop within a social context and are characterized by the in-
volvement of institutions of power. They are produced in a permanent social and
political struggle. If one of the involved institutions is able to dominate the dis-
cussion, to establish its significations in the discursive process, its version of the
truth prevails (Bourdieu, 1986/87, p. 847; Dinges, 1994; Frank, 1988; Poster,
1997, pp. 134–152). Thus, it is important to carry the analysis of discourses be-
yond the analysis of changes in word meaning, to the issues of how, by whom,
and for what ends these changes were produced. The study of commissions
offers the opportunity to study discursive processes from a historical perspective.
Quite generally, commissions go through four phases (Ashforth, 1990):
2 In the preface to the German edition of the first volume of The history of sexuality, Foucault
(1992) wrote: “It is the problem that dominated almost all of my books: how was the production
of discourses in the societies of the Occident connected with different mechanisms and institutions
of power and how were the discourses (at least for a certain period of time) charged with a value of
truth.” (p. 8; translated by A.L.)
220 Achim Landwehr
(1) The first phase of a commission is always marked by a problem, or a ques-

tion, that can be named. With the establishment of a commission a discur-
sive process begins.
(2) The second, investigative phase is highly dependent on the particular task set
before the commission. In the most general sense, the commission addresses
itself to a continuing process of communication with “the society” to find
out more, or at least something, about “the problem.”
(3) In the third, persuasive phase, usually a lot of ink is spilled with the produc-
tion of a commission report. The purpose of the report is to persuade the
government to take a particular course of action.
(4) In the fourth and final phase, the historical phase, the commission report has
ceased to be an active instrument of policymaking. Instead, the report be-
comes part of history and enters the dialogue with historians; thus, the dis-
course proceeds.
From this theoretical perspective for the analysis of commissions, societal prob-
lems are solved through the collective action of experts charged by the state.
Commissions are the mediators between “the state” and “society”; they enter
dialogues with both of them; they listen to society and speak to the state. The re-
sult of this activity is the report that produces knowledge and creates truth. (It is
no accident that the name of one of the best known commissions of our day is
the Commission of Truth and Reconciliation, South Africa.) The products of
these numerous quests are stored in the archives and the memory banks of the
state, whence they can be drawn to write history.
The Syndics of the Venetian Mainland: Sindici in Terraferma

In the archives all over Europe, there are innumerable sources referring to the
work of commissioners of the early modern period. The particular case that I
have taken up is that of the syndics of the Italian states, as mentioned in Jean
Bodin’s Les six livres de la République of 1583. This reference testifies that the
syndics were an important and well-known form of commission in early mod-
ern Europe. Since medieval times the syndics (Sindici or Sindacatori), as an in-
stitution, had been widely used by the Italian cities (Crescenzi, 1981). Their
function was to control the heads of an administration after they completed
their term of office. To serve this function, Genoa had the Supremi Sindacatori
(Ferrante, 1995), Florence the Soprassindaci (Masi, 1930), Naples the syndicatus
(Rovito, 1981), and Sicily and Piedmont the Sindacatori (Balani, 1981; Sciuti
Russi, 1981). Bodin especially referred to the cases of the Republics of Genoa
and Venice. One of the many institutions the Venetian administrative system
produced was the syndics who were charged as commissioners every five years
to investigate irregularities and abuses of the local administration (Bodin, 1583,
p. 380; Dudan, 1935). These Venetian commissioners were, in fact, dispatched
regularly and were occupied with almost every problem of the organization of
an early modern state. They represented the attempt to govern the Terraferma,
the extensive Venetian territory on the Italian mainland. Among others, the
Terraferma comprised of the cities of Udine, Padova, Vicenza, Verona, Brescia,
and Bergamo.
The commissions that were dispatched, whenever certain problems arose in
the Terraferma, consisted of patricians of the Venetian society. The possible rea-
sons for sending out the syndics of the Venetian mainland included, for
instance, the regulation of rivers, the building of roads and bridges, the investi-
gation into social conflicts, the examination of complaints about the local ad-
ministration, military matters, appeals in legal cases, or the organization of de-
fense reactions to the plague. But, most of these commissions dealt with eco-
nomic and financial questions, with peasants who occupied land, with
difficulties of levying taxes, or with the increase of prices (Borelli, Lanaro, &
Vecchiato, 1982; Cozzi, 1982, pp. 174–216; Cozzi, Knapton, & Scarabello,
1992, pp. 465–470; Tagliaferri, 1981a; Varanini, 1992). Corresponding to their
different charges, they appeared under several designations, among them syn-
dics (Sindici), inquisitors (Inquisitori), inspectors (Provveditori), judges (Auditori
Nuovi) (Lopez, 1980), or combinations of these (Knapton, 1988). Early mod-
ern discussions emphasize that finances are at the heart of politics (pecunia ner-
vus rerum) (Bonney, 1995; de Maddalena & Kellenbenz, 1984; Knapton, 1989;
Stolleis, 1983). The general importance of financial issues for the early modern
state also make them central for the understanding and study of commissions.
The syndics offer an example of the four phases introduced earlier: A com-
mission of syndics came into existence on the occasion of a problem. This prob-
lem was usually identified, as such, by the state. To solve the problem, the state
brought a group of experts together. Because the syndics of the Venetian main-
land were always members of the Venetian patriciate, their qualities as experts
were not mainly based on their specialized knowledge, but first of all on their so-
cial status.
Problems and Investigations

One could enumerate an exhaustive list of specific reasons for setting up a com-
mission of syndics, but it was always one specific problem, a problem that could
be named, that lead to the establishment of a commission—as if this special
problem could be separated from other aspects of social, political, economic, or
cultural life. This naming of the problem—a problem that might not have ex-
isted before in the minds of the people—is the beginning of a discourse. Also, in
the progress of this discourse, the syndics produced knowledge and created truth
by several means of communication, of which the commission and its experts
were the center (Corrigan & Sayer, 1985, pp. 124–127).
Syndics were able to produce truth and knowledge because of their authority
(Becker & Clark, 2001). This authority was based on two aspects. Firstly, syn-
dics were authorized, by the government, to conduct investigations on behalf of
the government. Secondly, they were empowered to speak authoritatively on
particular subjects by virtue of their expertise. On the grounds of this authority,
the commissioners found the truth.
222 Achim Landwehr
The second, investigative phase was determined by the center-periphery re-

lationship between Venice and the Terraferma. The cities of the Terraferma had a
separate economic and social background; they had their own traditions and
their own perceptions of right and wrong. Therefore, it is important to look at
who was able to control or influence the discourse during a commission. Did the
Venetian center dominate the territory or were the subject cities powerful
enough to raise their own voices?
The society of the Terraferma to which the syndics turned was a relatively
complex one. It was far from being a uniform subject population. When the syn-
dics arrived in cities such as Brescia, Treviso, Padova, or Udine, they first met the
so-called Rettori, the Venetian officials installed in the cities of the Terraferma.
Their time in office was strictly limited, and to monitor their work was one of
the main functions of the syndics. The Rettori were responsible for political,
legal, financial, and military matters. Thus, between the Venetian center and the
periphery of the Terraferma, and between the commissioners and the local socie-
ties, various channels of communication evolved during this second phase
(Tagliaferri, 1981b).
Because the group of syndics never consisted of more than three or four
Venetian patricians, and because of their relatively short time in office, they de-
pended heavily on the local elite in the cities (Grubb, 1988). These local elite
played no major political role in the Venetian territory—all the important posi-
tions here were dominated by the Venetian patriciate—but the government of
Venice could not renounce the local elite entirely because of their great local
power in the Terraferma.
The communication between Venice and the Terraferma was not solely dom-
inated by the respective elite, but included the local population. The inhabit-
ants of the cities were explicitly asked by the syndics to produce complaints
against the administration (Cozzi, 1982, pp. 189–191). The population of the
mainland always had the possibility to address themselves in any matter to the
Venetian center, and they were regularly asked by the commissioners on abuses
and irregularities in the administration. Thus, the so-called subjects were an im-
portant political factor.
These four groups, the syndics, the Rettori, the local elite, and the local popu-
lation circumscribe a societal “field-of-force.” Inside this field, streams of power
and communication flowed between the participants of the commission (Le
Goff, 1971; Lüdtke, 1991). Thus, one should not concentrate on the commis-
sion as an institution, but as a field of interaction determined by relations of
power, by coalition and opposition, and by cooperation and conflict.
In respect to the investigative phase, it is also important to pay attention to
the form of the commission. Nowadays, many commissions are criticized be-
cause of their time-wasting clumsiness in this working phase, and their ineffi-
ciency in delivering results—a criticism that can also be found in the 16th or
17th centuries. A commission of syndics frequently needed years to finish its
mission (Knapton, 1988, p. 47), but this criticism misses the point. For the pro-
ceedings were not just useless modes of investigation of experts, but also perfor-
mances that served to authorize the commission itself and the results it would
produce. Commissions, in general, draw upon the authority of experts to
present the state of truth. Also, this truth is the result of a dialogue between the
state and the society, the local population and the officials, the citizens and the
magistrates, and the different institutions of the administration with the com-
missioners as mediators between them (Ferrante, 1995, p. 293).
Throughout the existence of a commission of syndics, the production of
truth and knowledge appeared in the commonplace form of oral interrogations.
Oral evidence was the most significant aspect of a commission’s investigative
procedure. This part of the multilateral dialogue was of great importance for the
production of truth and one of the most controversial ones. The practice of re-
cording verbatim oral testimony served in transforming the mercurial nature of
the spoken word into the permanent certitude of the written word.
Reports and Archives

The core of the third, persuasive phase is the production of the Commission Re-
port—a report that, nowadays, is often published, but in the early modern
period was usually only presented to the government. In this phase, the report
became an authoritative statement relating to questions of political action, and
entered a dialogue with the government. The experts of the commission at-
tempted to persuade the government of their results. However, it was not only
the syndics who tried to influence the Venetian center. All the groups involved in
the work of the commission actively attempted to have their version of the truth
become the only truth. This phase ended as concrete decisions were made—or
not made—on the basis of the report.
A more recent case might serve to illustrate the importance of commission re-
ports and their ways of establishing a certain view of a political or social situation
as the truth: On October 29, 1998, the South African Commission of Truth and
Reconciliation delivered its report. The former President of South Africa, F. W.
de Klerk, attempted to prevent the publication of the report by going to court
(The Guardian, October 26, 1998), but he was not alone. The African National
Congress (ANC) also tried to stop the report, only a few hours before its release,
by applying to the South African High Court (The Guardian, October 30,
1998). Both de Klerk and the ANC were informed by the Commission that they
were found guilty of human rights abuse. In response to the report, the ANC
stated: “Some of the gross inaccuracies contained in the report will now, unfor-
tunately, become part of South Africa’s history.” Also, the Deputy President of
South Africa, Thabo Mbeki, stated of the Commission: “They are wrong, wrong
and misguided,” while Archbishop Desmond Tutu described the report as “a tri-
umph for truth and humanity” (The Guardian, October 30, 1998). Foreign ob-
servers generally welcomed the report, but criticized that the truth amounted to
little more than the media had already disclosed. The Commission failed to un-
cover more details about the South African military and about assassinations
carried out abroad. The Zulu leader Chief Buthelezi had not been called to ac-
224 Achim Landwehr
count because of the Commission’s fear of reigniting the violence that threatened
to destroy the country’s political settlement (The Guardian, October 26, 1998).
Truth obviously is a very difficult business.
A historical case study of the early modern period dealt with the additional
difficulty that many sources were lost or have been destroyed over the centuries.
How is it possible, then, to reconstruct, a few hundred years later, the various at-
tempts of the aforementioned groups to establish their answers to a particular
problem? How is it possible to integrate the different voices in the truth-
producing process? Turning to the attempts to persuade the central administra-
tion of Venice of the truth, another important aspect of the center-periphery sit-
uation shows itself. Because of the geographical distance between Venice and the
cities of the Terraferma, everybody involved in the work of the syndics had to
bridge space and time. Therefore, everything of importance had to be written
down. As a result, the persuasive phase was not solely dominated by the reports
of the syndics to the Venetian administration, but also by other forms of written
evidence. The Rettori had to write reports for the Venetian senate on their time
in office (Relazioni, 1973-1979), and the local elite, such as the local popula-
tion, always had the possibility to address complaints, petitions, and supplica-
tions directly to the government.
In short, there are several sources by which the discourse on central concep-
tions such as good governance (buon governo) (Penuti, 1984), legality, or justice
can be reconstructed. Also finally, the last piece of the persuasive phase also exists
in written form, the final decision of the Venetian center establishing the one
and only version of the truth,
Once the reports, letters, petitions, and other written evidence are stored in
the archives they become part of the historical phase of the discourse. Archives
are not only buildings where enormous amounts of paper are collected, but are
also the memory bank of the state (Ashforth, 1990, p. 9). In the archives, every-
body can have a look at the facts, everybody can find out what had happened, and
the true story can be reconstructed. The archives provide the material for the con-
tinuing construction of the world and for the production of truth. A famous ex-
ample of such an archival dialogue is Friedrich Engels’ Condition of the working-
class in England from 1844 (Engels, 1962), which drew heavily on the English
Poor Law Reports of the 1820s. Also, to mention another example, the South
African Commission of Truth and Reconciliation sold its archives on the Com-
mission’s official homepage. Under the heading “Own your own slice of history,”
the Commission’s website was offered on CD-ROM, including the report of the
Commission, interviews, public debates, audio recordings, and a photo gallery.3
3 URL: http://www.truth.org.za.
Discontinuities
Undoubtedly, each historical investigation, on the production of truth in past
societies, will become deeply involved in the discourse on truth. Of course, it
would be naive to think that it is possible to find out the truth on the question of
how other people produced the truth. Does this then mean that the work will be
absorbed by the truth of the past, by the archival material documenting the one
and only truth, and trying to eliminate other versions? Indeed, this would be the
danger if the project was based on the thought of the continuity of history. But,
it is important to emphasize the discontinuities in the ways societies constructed
their world and produced truth. By marking these distinctions between different
times and societies, our own present becomes less self-evident and possibilities of
change become visible. Understanding that past societies produced their view of
the world contradicts every regime of one truth, the larger implication being that
there is no definite and final system of ideas (Scott, 1997).
The tensions and conflicts evolving around the Venetian syndics give an im-
pression of this discontinuity. The picture presented by historians often leaves
aside the other voices in this process, and the formation of opposition and the for-
mulation of alternatives. The result looks like a natural evolution to the knowl-
edge society of experts we probably live in. Omitting contingency, it is possible
to announce the end of history—a proclamation that had been made more than
once already. But, a closer look teaches that history is not that simple. Thus, the
example of the Venetian syndics can show not only how different groups in the
early modern society created the truth, but also that regulations and limits were
changeable in the past and that they are changeable in the present—even if it
might look as if a commission of historians is necessary to write such a history of
commissioners.
Acknowledgments
I would like to thank Ela Eakin and David M. Luebke for their invaluable assis-
tance on this article.
References
Archivio di Stato di Venezia. (1994). Archivio di Stato di Venezia. Guida generale degli Archivi di
State italiani, 4, 857–1148.
Ashforth, A. (1990). Reckoning schemes of legitimation: On commissions of inquiry as power/
knowledge forms. Journal of Historical Sociology, 3,1–22.
Balani, O. (1981). Ricerche per una storia della burocrazia piemontese nel settecento. L’educazione
giuridica: IV. Il pubblico funzionario: Modelli storici e comparativi: Vol. 1. Profili storici. La
tradizione italiana (pp. 593–639). Perugia, Italy: Università degli Studi di Perugia.
Becker, P., & Clark, W. (2001). Little tools of knowledge. Historical essays on academic and and
bureaucratic practices. Ann Arbor, MI: University of Michigan Press.
226 Achim Landwehr
Bennassar, B. (1979). L’inquisition espagnole XVe–XIXe siècle. Paris: Hachette.

Bethencourt, F. (1995). L’inquisition à l’époque moderne. Espagne, Italie, Portugal XVe-XIXe siècle.
Paris: Fayard.
Blänkner, R. (1992). “Absolutismus” und “frühmoderner Staat.” Probleme und Perspektiven dec For-
schung. In R. Vierhaus et al. (Ed.), Frühe Neuzeit—Frühe Moderne? Forschungen zur Vielschich-
tigkeit von Übergangsprozessen (pp. 48–74). Göttingen, Germany: Vandenhoeck & Ruprecht.
Bodin, J. (1583). Les six livres de la République. Paris. (Reprinted 1961, Aalen: Scientia)
Bonney, R. (1995). Economic systems and state finance. Oxford, UK: Clarendon Press.
Borelli, G,, Lanaro, P., & Vecchiato, F. (1982). Il sistema fiscale veneto. Problemi e aspetti XV–XVIII
secolo. Verona, Italy: Libreria Universitaria.
Bourdieu, P. (1986/87). The force of law: Toward a sociology of the juridical field. Hastings Law
Journal, 38, 805–853.
Braudel, F. (1987). Venedig. In F. Braudel, G. Duby, & M. Aymard (Eds.), Die Welt des Mittel-
meeres. Zur Geschichte und Geographie kultureller Lebensformen (Transl. Markus Jacob) (pp. 145-
170). Frankfurt a.M., Germany: Fischer.
Brint, S. (1994). In an age of experts. The changing role of professionals in politics and public life.
Princeton, NJ: Princeton University Press.
Brockhaus. (1968). Brockhaus Enzyklopädie (Vol. 5). Wiesbaden, Germany: Brockhaus.
Corrigan, P., & Sayer, D. (1985). The great arch. English state formation as cultural revolution. Oxford,
UK: Blackwell.
Cozzi, G. (1982). Repubblica di Venezia e Stati italiani. Politica e giustizia dal secolo XVI al secolo
XVIII. Torino, Italy: Einaudi.
Cozzi, G., Knapton, M., & Scarabello, G. (1992). La Repubblica di Venezia nell’età moderna
(Vol. 1). Torino, Italy: UTET.
Crescenzi, V. (1981). Il sindacato degli ufficiali nei comuni italiani. In L’educazione giuridica: IV. Il
pubblico funzionario: modelli storici e comparativi: Vol. 1. Profili storici. La tradizione italiana
(pp. 383–529). Perugia, Italy: Università degli Studi di Perugia.
Deutsches Rechtswörterbuch. (1974–1983). Deutsches Rechtswörterbuch. Wörterbuch der älteren
deutschen Rechtssprache (Vol. 7). Weimar, Germany: Böhlau.
Dictionnaire. (1898). Dictionnaire de l’ancienne languefrançaise (Vol. 9). Paris: Vieweg, (Reprinted
1965, Vaduz: Scientific Periodicals Establishment)
Dinges, M. (1994). The reception of Michel Foucault’s ideas on social discipline, mental asylums,
hospitals and the medical profession in German historiography. In C. Jones & R, Porter
(Eds.), Reassessing Foucault: Power, medicine and the body (pp. 181–212). London: Routledge.
Dudan, B. (1935). Sindicato d’oltremare e di Terraferma. Contributo alla storia di una magistratura e
del processo sindicale nella Repubblica Veneta. Rome: Società Editrice del Foro Italiano.
Engels, F. (1962). Die Lage der arbeitenden Klasse in England. In K. Marx & F. Engels, Werke
(Vol. 2, pp. 225–506). Berlin: Dierz.
Ferrante, R. (1995). La difesa della legalità. I sindacatori della Repubblica di Genova. Torino, Italy:
Giappichelli.
Fischer, W., & Lundgreen, P. (1975). The recruitment and training of administrative and technical
personnel. In C. Tilly (Ed.), The formation of national states in western Europe (pp. 456–561).
Princeton, NJ: Princeton University Press.
Foucault, M. (1992). Sexualität und Wahrheit: Vol. 1. Der Wille zum Wissen. Frankfurt a.M., Ger-
many: Suhrkamp.
Frank, M. (1988). Zum Diskursbegriff bei Michel Foucault. In J. Fohrmann & H. Müller (Eds.),
Diskurstheorien und Literaturwissenschaft (pp. 25–44). Frankfurt a.M., Germany: Suhrkamp.
Galbraith, V. H. (1974). Domesday book. Its place in administrative history. Oxford, UK: Clarendon
Press.
Grubb, J. S. (1988). Firstborn of Venice. Vicenza in the early Renaissance state. Baltimore, MD:
Johns Hopkins University Press.
Hintze, O. (1981). Der Commissarius und seine Bedeutung in der allgemeinen Verwaltungsge-
schichte. Eine vergleichende Studie. In O. Hintze (Ed.), Beamtentum und Bürokratie (pp. 78–
112). Göttingen, Germany: Vandenhoeck & Ruprecht.
Hoke, R. (1978). Kommissar. In Handwörterbuch zur deutschen Rechtsgeschichte (Vol. 2, pp. 974–
979). Berlin: Schmidt.
Holt, J. C, (1987). Domesday studies. Woodbridge, UK: Boydell Press.
Humphreys, R. (1995). Sin, organized charity and the Poor Law in Victorian England. New York:
St. Mastins Press.
Kleimann, B. (1996). Das Dilemma mit den Experten—Ein Expertendilemma? Literatutbericht.
In H.-U. Nennen & D. Garbe (Eds.), Das Expertendilemma: Zur Rolle wissenschaftlicher
Gutachter in der öffentlichen Meinungsbildung (pp. 183–215). Berlin: Springer.
Knapton, M. (1988). Le istinizioni centrali per l’amministrazione ed il controllo della Terraferma.
In G. Ortalli et al. (Eds.), Venezia e le istituzioni di Terraferma (pp. 35–56). Bergamo, Italy:
Comune di Bergamo.
Knapton, M. (1989). Il Sistema fiscale nello stato di Terraferma, secoli XIV–XVIII. Cenni generali.
In M. Knapton et al. (Eds.), Venezia e la Terraferma, Economia e società (pp. 9–30). Bergamo,
Italy: Comune di Bergamo.
Kretschmayr, H. (1920). Geschichte von Venedig: Vol. 2. Die Blüte. Gotha, Germany: Perthes. (Re-
printed 1964, Aalen: Scientia)
Le Goff, J. (1971). Is politics still the backbone of history? Daedalus, 100, 1–19.
Lopez, C. C. (1980). Gli Auditori Nuovi e il dominio di Terraferma. In G. Cozzi (Ed.), Stato, società
e giustizia nella Repubblica Veneta (sec. XV–XVIII) (pp. 259–316). Rome: Jouvence.
Lüdtke, A. (Ed.). (1991). Herrschaft als soziale Praxis. Historische und historisch-anthropologische
Studien. Göttingen, Germany: Vandenhoeck & Ruprechr.
Luhmann, N. (1997). Die Gesellschaft der Gesellschaft (2 vols.). Frankfurt a.M., Germany: Suhr-
kamp.
Maddalena, A. de, & Kellenbenz, H. (Eds.). (1984). Finanze e ragion di Stato in Italia e Germania
nella prima età moderna. Bologna, Italy: Il Mulino.
Maranini, G. (1974). La costituzione di Venezia: Vol 2. Dopo la serrata del Maggior Consiglio.
Firenze, Italy: La Nuova Italia.
Masi, G. (1930). Il sindacato delle magistrature comunali net sec. XIV (con speciale riferimento a
Firenze). Rome: Sampaolesi.
Moraw, E (1983). Die königliche Verwaltung im einzelnen. In K. G. A. Jeserich, H. Pohl, & G.-C.
von Unruh (Eds.), Deutsche Verwaltungsgeschichte (Vol. 1, pp. 31–53). Stuttgart, Germany:
Deutsche Verlagsanstalt.
Mousnier, R, (1970). État et commissaire. Recherches sur la création des intendants des provinces
(1634–1648). In R. Mousnier, La plume, la faucille et le marteau. Institutions et société en France
du Moyen Age à la Révolution (pp. 179–199). Paris: Presses Universitaires de France.
Penuti, C. (1984). Il principe e le comunità soggette: Il regime fiscale dalle “pattuizioni” al “buon-
governo.” In A. de Maddalena & H. Kellenbenz (Eds.), Finanze e ragion di Stato in Italia e
Germania nella prima età moderna (pp. 89–100). Bologna, Italy: Il Mulino.
Poster, M. (1997). Cultural history and postmodernity. Disciplinary readings and challenges. New
York: Columbia University Press.
Reinhard, W. (1996). Power elites and state-building. Oxford, UK: Clarendon Press.
Reinhard, W. (1999). Geschichte der Staatsgewalt, Eine vergleichende Verfassungsgeschichte Europas
von den Anfängen bis zur Gegenwart. Munich, Germany: C. H. Beck.
Relazioni. (1973–1979). Relazioni dei Rettori veneti in Terraferma (14 vols.). Milano, Italy: Giuffrè.
Rose, M. E, (1971). The English Poor Law 1780–1930. Newton Abbot, UK: David & Charles.
Rovito, P. L. (1981). Il Syndicatus Officialium nel Regno di Napoli. Aspetti e problemi dell’irre-
sponsabilità magistratuale nell’età moderna. In L’educazione giuridica. IV: Il pubblico funzio-
nario: modelli storici e comparativi: Vol 1. Profili storici. La tradizione italiana (pp. 531–575).
Perugia, Italy: Università degli Studi di Perugia.
Savage, G. (1996). The social construction of expertise. The English civil service and its influence,
1919–1939. Pittsburgh, PA: University of Pittsburgh Press.
Schulze, W. (1993). “Von den großen Anfängen des neuen Welttheaters.” Entwicklung, neuere
Ansätze und Aufgaben der Frühneuzeitforschung. Geschichte in Wissenschaft und Unterricht,
44, 3–18.
228 Achim Landwehr
Sciuti Russi, V. (1981). Visita e sindacato nella Sicilia spagnola. In L’educazione giuridica: IV. Il
pubblico funzionario: modelli storici e comparativi: Vol. 1. Profili storici. La tradizione italiana
(pp. 577–592). Perugia, Italy: Università degli Studi di Perugia.
Scott, J. W. (1997), Nach der Geschichte? WerkstattGeschichte, 17, 5–23.
Simpson, J. A. (1989). The Oxford English Dictionary (Vol. 3). Oxford, UK: Clarendon Press.
Stolleis, M. (1983). Pecunia nervus rerum. Zur Staatsfinanzierung in der frühen Neuzeit. Frankfurt
a.M., Germany: Klostermann.
Tagliaferri, A. (1981a). Venezia e la Terraferma. Attraverso le relazioni dei Rettori. Milano, Italy:
Giuffrè.
Tagliaferri, A. (1981b). Ordinamento amministrativo dello stato di Terraferma. In A. Tagliaferri
(Ed.), Venezia e la Terraferma. Attraverso le relazioni dei Rettori (pp. 15–43). Milano, Italy:
Giuffrè.
Unruh, G.-C. von. (1983). Polizei, Polizeiwissenschaft und Kameralistik. In K. G. A. Jeserich,
H. Pohl, & G.-C. von Unruh (Eds.), Deutsche Verwaltungsgeschichte (Vol. 1, pp. 388–427).
Stuttgart, Germany: Deutsche Verlagsanstalt.
Varanini, G. M. (1992). Comuni cittadini e stato regionale. Ricerche sulla Terraferma veneta nel
Quattrocento. Verona, Italy. Libreria Universitaria.
Zedler, J. H. (1734). Grosses vollständiges Universal Lexicon (Vol. 8). Halle, Germany: Zedler. (Re-
printed 1994, Graz: Akademische Drucks- und Verlagsanstalt)
Section 4
Innovative Representations
The chapters in this fourth section are about experts’ use and development of
particular representational means, such as maps, mathematical representations,
and models. These chapters are also about innovation, about the design of repre-
sentational means and their application. The first chapter in this section, by Jens
Lachmund, deals with the especially versatile representation of maps and the
modern expertise of bio-ecology. Starting in the 1970s biologists in West Ger-
many and Berlin carried out fieldwork in various German cities in order to assess
urban nature and habitats. Initially, these projects contributed to nature preser-
vation efforts, but they became increasingly intertwined with city administration
and planning. Lachmund shows how cartographic strategies, and the design of
the respective maps, shaped the categorization of nature in the city and led to a
new kind of biological expert.
Interpreting medical test results is an activity with consequences. This makes
it all the more important that physicians understand the statistical information
that medical tests provide and that patients comprehend what is communicated
to them about the meaning of a test result. Ulrich Hoffrage and Gerd Gigerenzer
describe an extended project in which they and their collaborators have tested
and educated physicians, AIDS counselors, and medical students with the goal to
improve these experts’, and aspiring experts’, statistical reasoning. With regard to
diagnostic inference, these authors provide a surprisingly simple remedy for a
widespread ailment that has been described, depending on severity, as ranging
from unease with numbers to innumeracy. The prescription for this often self-
diagnosed condition could not be clearer: When faced with probabilities, trans-
late into natural frequencies. Related to this, in the chapter by Samuel Lindsey,
which confronts us with the exceedingly demanding issue of statistical evidence
in the courtroom, natural frequencies seem to affect verdicts in favor of acquittal.
When brought in, experts carry a certain amount of authority. Experts are
recognized as authorities because of their knowledge and skill and because of
their association with particular institutions. In the final chapter of this section
Kurz-Milcke argues that authority and expertise are related in representations. In
this analysis, experts appear as highly trained observers of the authority of repre-
sentations in their field of expertise. The chapters in this book are about histori-
cal individuals and their relationships, among them are particular experts, partic-
ular political systems, particular educational institutions, particular commis-
sions, but also particular representations, and interestingly, particular notions of
authority.
229
Chapter 12
Mapping Urban Nature: Bio-Ecological Expertise
and Urban Planning
Jens Lachmund
Department of Technology and Society Studies, University of Maastricht, The Netherlands
J. Lachmund@TSS.unimaas.nl
Urban planning is one of the fields in which environmental sciences have

gained social and political importance during the last decades. Newly emerging
issues, such as the protection of species, habitats, soils, water, etc., and more
generally the issue of “sustainable development,” have not only extended the
agenda of urban planning, but have also led to the involvement of scientific ex-
perts, other than traditional urban planning professionals. Biologists, landscape
ecologists, climatologists, pedologists, and other environmental scientists are
now frequently called on as advisors in urban planning affairs. At the same
time, the ecology of the city has evolved as a distinct interdisciplinary research
field that is closely related to environmental planning matters. In Germany, eco-
logical surveys of cities have become one of the most prominent means by
which urban environmental expertise has taken shape.1 Particularly, from the
mid-1970s onward, in most cities of the Federal Republic of Germany (FRG),
so-called biotope mapping (Biotopkartierung) was carried out for local munici-
palities. These were comprehensive surveys of plants, animals, and their habitat
structures that were considered a basis for nature-promotion measures and
more ecological ways of planning in towns. The introduction of official urban
biotope mapping was closely linked to the political career of nature promotion
in the cities of the Western part of Germany. After unification, however, similar
programs were also issued in the cities of the former German Democratic Re-
public (GDR).
This chapter is about the rise of bio-ecological surveying in German town
planning. It uses the history of these surveys as an empirical example to shed
light on the broader issue of environmental expertise in contemporary societies.
In contrast, however, to many studies that have dealt with the professionaliza-
tion of certain groups of experts (Abbott, 1988) or the role of expert advisors in
policy decision-making processes (Jasanoff, 1990), this chapter addresses the
1 On the rise of urban nature conservation in the Anglo-American context see Bunce (1994)
for UK and Graham and Keil (1997) for Canada (Toronto).
231
232 Jens Lachmund
specific forms of representation by which environmental knowledge took shape

in these surveys. It will focus particularly on the role played by the map as a
means of producing and organizing environmental knowledge. Although bio-
ecological surveys also encompass representations, such as lists, statistical tabula-
tions, and textual descriptions, they are first and foremost mapping projects.
Maps appear frequently throughout the surveys’ reports and display various the-
matic aspects of the cities’ ecologies. Maps are also one of the forms in which the
results of the surveys have been circulated among various institutions and have
taken on administrative meaning in urban planning processes. More recently,
bio-ecological maps have also become integrated into geo-information systems
(GIS) and other forms of digital cartography that are increasingly being used in
municipal administration and planning institutions.
Maps and other forms of scientific representation are not merely neutral
means of visualizing pre-existing features of reality. As, for example, Brian Harley
(1989) or Dennis Wood (1992) have shown, maps are conventional construc-
tions that are actively involved in the shaping of the phenomena they reveal.
Much more in the wake of recent social studies of science, David Turnbull
(1996) has argued that the history of cartography should be considered as the
production of historically specific, but translocally standardized “knowledge
spaces.” Various recent historical studies on issues, such as nation building
(Gugerli, 1998; Helgerson, 1986; Matless, 1997), territories of legislation
(Blomley, 1991), regionalism (Matless, 1991), and bio-geography (Camerini,
1993a, 1993b) have also often touched on the constitutive role of maps in the
shaping of knowledge and space. Such a view on the constructive power of maps
also underlies this chapter. On the one hand, it focuses on the material form of
the map and the related practices of producing, circulating, and interpreting
these maps. On the other hand, this is also a study of the construction of a new
epistemic and political order of urban space. The environment, biotopes, or
what is often called “urban nature” (Kowarik, 1992) will not be considered ob-
jects waiting to be discovered by an alert observer. Rather, it will be shown how
these entities were shaped visually and conceptually by these representational
practices, and how they were, in a certain way, brought into existence by map-
ping projects. In other words, the bio-ecological survey as a new form of envi-
ronmental expertise, and the biotope as a new feature of the urban environment,
were “co-constructed” (Callon & Latour, 1992; Clarke & Fujimura, 1992) by
the same techno-administrative scientific project.
The Emergence of Urban-Ecological Expertise

As already mentioned above, the rise of bio-ecological mapping, as with urban
bio-ecological research in general, was closely related to a newly emerging inter-
est in nature promotion in the city. Until the 1960s the city was mostly consid-
ered a purely artificial environment that was neither of systematic interest for the
biological field sciences, nor deserving of any conservational concerns. Tradi-
Mapping Urban Nature: Bio-Ecological Expertise and Urban Planning 233
tional nature conservation has tended to concentrate on the countryside, creat-

ing nature reserves and protecting rare species and disappearing habitats. More
conventional forms of urban gardening, on the other hand, evolved much more
from aesthetic, hygienic, and social policy considerations than as a means of
nature promotion (Milchert, 1980). In the 1970s, however, environmental sci-
entists from different backgrounds joined in some sort of “discourse coalition”
(Hayer, 1995) with local policymakers, citizen groups, and other institutions
that called for ecological planning and landscape promotion in towns. This co-
alition not only fit well into a context of broadening concerns on environmental
issues in Germany, but also linked up with some international activities, such as
UNESCO’s “Man and the Biosphere Program” (since 1971) and Agenda 21
(since 1992) (Sukopp, 1990, 1994). One of the basic tenets of this newly emerg-
ing discourse was that cities were not just devoid of nature. In contrast, they
were considered specific habitats or biotopes which hosted various species, often
even more species than did rural landscapes. On the other hand, however, it was
also argued that nature in the city was endangered by intensifying urban devel-
opment and that, therefore, measures should be taken to integrate nature pro-
motion systematically into the planning process. It was argued that nature in the
city was to be preserved not only for its own sake, but also to create better condi-
tions of life for urban citizens (Auhagen & Sukopp, 1983; Brunner, Duhme,
Mück, Patsch, & Wenisch, 1979; Sukopp, 1973). Regular contact with natural
environments was considered a demand from city dwellers and even a prerequi-
site for the healthy development of children. Equally important, the existence of
nature in the city was also considered as a means to strengthen other compo-
nents of the urban ecosystem, such as the quality of the air, soil, or water supply.
Although, by and large, similar arguments were also to be found in earlier
urbanistic writings on urban green or garden cities, this new discourse on urban
nature was couched in distinguishably bio-ecological terms. In particular, the
term “biotope,” which in German biology denotes a topographical area in which
specific biological populations live (Dahl, 1908) and which is roughly equivalent
to the English “habitat,” since the 1970s has become a political catchword that
has penetrated deeply into public consciousness.
Nature promotion in the city also emerged in various new regulations and
planning strategies that also increasingly drew upon a conception of nature as a
biotope. The creation of nature reserves remained an indispensable aspect of
these efforts. However, most of the issued regulations were indicative of a new
outlook on urban planning aimed at making biotope management part of the
ordinary planning process. This new outlook was characterized by greater flexi-
bility, making use of various strategies such as renaturalizing biotopes considered
potentially worthy, creating viable networks of inner-city biotopes, or maintain-
ing a stable amount of “wasteland biotopes” on differing sites throughout the
city. In 1976, a new German Nature Conservation Law was issued that obliged
planning authorities to develop comprehensive “landscape plans” in addition to
pre-existing forms of urban planning. Furthermore, the law included an “en-
croachment regulation” (Eingriffi-/Ausgleichsregelung). Accordingly, every plan-
234 Jens Lachmund
ning project that bore a negative impact either on the ecological balance of that
area or on the aesthetic character of the landscape had to be compensated for, for
example, by creating equally worthy biotopes elsewhere in the town. Although
the determination of equivalences between negative impacts and adequate com-
pensations remained a contentious issue, this regulation became one of the most
effective links between urban planning and the political regulation of biotopes.
In 1990, environmental assessment procedures also became obligatory for vari-
ous planning projects, which added further weight to biotope preservation in
urbanism.
From its onset, bio-ecological surveying has been an important backdrop to
this discourse. In the post-war period, inner-urban areas with ruins and rubble
from the Second World War bombardment had already attracted the interest of
some botanists who investigated them systematically and established that these
places were biologically worthy environments (Engel, 1949; Pfeiffer, 1954;
Scholz, 1956). These places that were originally associated with death and de-
struction took on, in these studies, a rather positive meaning of life and growth.
Although they were not yet related to any explicit planning ambitions, these
studies were, nevertheless, important points of reference for the ensuing “claims-
making activities” (Hannigan, 1995) of biologists and landscape ecologists on
urban issues. Issues of planning figured more prominently in a number of stud-
ies from the early 1970s that explored parts of cities or even entire cities
(Kienast, 1978; Kunick, 1974) from a botanical, vegetational, or faunistic angle.
However, it was only around 1980, when official surveying programs, such as
biotope mapping, were issued on the municipal administrative level, where these
specialists can be said to have exerted some institutional jurisdiction on planning.
Biotope Mapping: Selective Versus Comprehensive

Methods
Urban biotope mapping grew from two different research contexts, and the ap-
proaches developed in these contexts differed considerably in their aims and
methodological designs. One approach originated in the Department of Land-
scape Ecology in the Technical University of Munich, which was situated in
Freising-Weihenstephan, a small town on the outskirts of Munich. It was here,
in 1973, that an early mapping survey of “worthy biotopes” in the countryside
was carried out, commissioned by the Bavarian government (Kaule, Schaller, &
Schober, 1979). This survey was later followed by countryside biotope-mapping
projects in other states of Germany. Between 1978 and 1979, the Weihen-
stephan lecturer Friedrich Duhme and a group of students from a newly created
course of studies in “landscape promotion” carried out the first biotope-mapping
survey that focused on a city: nearby Munich (Duhme et al., 1983; Kreissn,
1978). Mostly, this survey followed the tack taken by the biotope mapping of
the countryside. Particularly, both studies were primarily aimed at identifying
the so-called “worthy” areas that were to be protected, enhanced, or at least

looked after when interventions in their neighborhood were planned. This
meant that these studies were not topographically comprehensive. The larger
part of the city was not considered to consist of biotopes and, therefore, not sys-
tematically investigated. The survey was undertaken in close relationship with
the Bavarian Nature Protection Agency (Bayerisches Landesamt für Naturschutz),
which, from 1981 onward, gave financial support to Bavarian cities for biotope-
mapping projects that drew on a similar approach.
A second approach to urban biotope mapping was developed by the biolo-
gist Herbert Sukopp and his collaborators at the Institute for Ecology at the
Technical University of Berlin (Arbeitsgruppe Artenschutzprogramm, Berlin,
1984). The lack of accessible countryside surrounding the politically isolated
Western part of Berlin had always been a pragmatic reason for biologists to
choose inner-urban areas as sites for botanical or faunistic fieldwork. In contrast
to the Munich group, Sukopp and his collaborators were, thus, able to draw
upon a rich local tradition of floristic, vegetational, and, partly, faunistic sur-
veys. In a series of biotope-mapping surveys of Berlin that they carried out be-
tween 1978 and 1983 they did not restrict scrutiny to certain parts of the city
which were supposed to be of special interest for conservation. In contrast, they
aimed at a topographically comprehensive survey of the flora, vegetation, and
some fauna of the Western part of Berlin. In addition to contributing to a more
comprehensive approach to the ecological planning of the city, comprehensive
surveying, it was argued, was needed to determine the ecological value of single
biotopes in the city. As it was first conducted in three pilot studies of the district
of Kreuzberg (Asmus, Martens, & Scharfenberg, 1982/1983; Kunick, 1979;
Martens & Scharfenberg, 1982/1983), comprehensive surveying turned out to
be too time-consuming to be carried out over the whole city. Alternatively,
therefore, a method was developed that later was called the “representative-com-
prehensive.” This meant that only different types of sample areas were investi-
gated intensively and the results were extrapolated to similar parts of the city
(Arbeitsgruppe Artenschutzprogramm, Berlin, 1984, p. 78). This attempt to
survey cities comprehensively, or at least representationally, was also pursued in
biotope-mapping projects of other cities that were carried out by researchers
affiliated with the Sukopp group either during or after the Berlin project.2
As early as 1978 initiatives were taken to establish a committee to coordinate
the burgeoning activities of urban biotope mapping all over the FRG. This
Working Group for Biotope Mapping in Developed Areas (Arbeitsgemeinschaft
Biotopkartierung im besiedelten Bereich) met annually and comprised of environ-
mental scientists and representatives of nature protection agencies at federal and
state levels and from local municipalities. From its first meeting in 1979, it was
led by Herbert Sukopp. Although researchers from Weihenstephan and adminis-
trative personnel from Bavaria also participated in these meetings, in the long
2
For example, the city surveys of Cologne (Kunick, 1983), Rüsselsheim (Asmus, Kunick,
Maas, Markstein, & Schneider, 1981), Stuttgart (Kunick, 1983), and Hamburg (Trepl, 1984).
236 Jens Lachmund
run, the group took positions that were much more in line with the Berlin
project. The Bavarian type of “selective mapping” was not overtly rejected. How-
ever, the Working Group quite explicitly declared its preferences for comprehen-
sive mapping (Sukopp, Kunick, & Schneider, 1979). When in 1987 the Work-
ing Group issued its “basic program” (Arbeitsgruppe Biotopkartierung im be-
siedelten Bereich, 1986), which stipulated standards for conducting biotope-
mapping projects, it called for “representative-comprehensive” mapping as the
regular surveying method. This was also the case when, in 1992, a renewed and
more complex version of that basic program was issued (Schulte, Sukopp, &
Werner, 1993). It turned out that local surveying projects throughout Germany
only partly obeyed the rules stipulated by the Working Group and, thus, re-
mained rather diverse with respect to their methodological design. The principle
of “representative-comprehensive” mapping, however, became widely accepted
as a standard method for urban ecological surveys in German cities, with the
only exception being Bavaria.
The Cartographic Ordering of the Urban Environment

To understand the role of urban ecological experts in urban planning we have to
look in detail at the form of cartographic knowledge they created. Biotope map-
ping, either comprehensive or selective, drew upon a rich variety of cartographic
strategies, These strategies consisted of specific visual conventions of displaying
features of the urban environment as well as related practices of observation,
data analysis, and knowledge transmission. The mapping strategies were neither
mutually exclusive approaches, nor part of a comprehensive pattern. Often, they
coexisted within the same survey or, as will be shown for the use of maps in field-
work, were closely linked to specific sequences of the mapping process. In the re-
mainder of this chapter I will examine, in detail, four important cartographic
strategies of biotope mapping. I will argue that it was through these strategies
that the urban environment took shape as an object of ecological expertise and
that, accordingly, different mapping strategies created different, albeit mutually
reinforcing, versions of the urban environment. These cartographic strategies
were: the ordering of the city as a site of ecological fieldwork, the depiction of
patterns of species’ distribution, the zoning of the city as “biotope types”
(Biotoptyp), and the visual display of ecological evaluations of urban spaces.
Ordering the Field

Bio-ecological maps of the city emerged from the spatial practice of fieldwork
and were, themselves, reflexively involved in the social constitution of that
practice. Fieldwork in urban biotope-mapping projects included more passive
forms of observation of plants, animals, and other, mostly visual, features of the
environment as well as collecting botanical specimen and hunting animals. It,
furthermore, involved the interpretation of pre-existing maps and, particularly,

aerial photographs, and even interviews with local naturalists. In addition to
the map-standardized site-record sheets, in which sample areas were described
in botanical and faunistic detail, there were basic forms of graphical fixation of
these observations.
Although many of these fieldwork practices have a long
tradition in biological and landscape-ecological research,
performing that fieldwork within the city was something
completely new. In carrying out their fieldwork observa-
tion, biologists now acted as participants in urban life,
which had its own rules. Walking outside regular path-
ways and taking notes aroused suspicions of passersby and
also of dogs. Access to private property had to be nego-
tiated with landlords and was sometimes refused. Biolo-
gists, themselves, also had to realign their thoughts to the
urban environment as being a realm worthy of scrutiny
and, therefore, they had to develop some specific skills of
observation. This new research environment was at odds
with deeply entrenched habits of fieldwork and the re-
lated ideal of working “in nature.” Observations in field-
work usually were elaborated interactively between the
survey projects’ participants. Often, workshop meetings
were held to compile provisional results and to debate
practical research problems. Furthermore, from time to
time, participants also met in the field to elaborate com-
mon ways of handling fieldwork problems.
Maps were of crucial importance in the process of field-
work. Firstly, the inscription of visible signatures on the
map was one of the most important ways in which field
observations were transformed into reliable data. Only
part of this work was done directly in the field. Informa-
tion was usually first gathered by filling in site-record
sheets that were later transcribed into cartographic signa-
tures. Secondly, from the beginning, maps were reflex-
ively involved in the constitution of the field and the so-
cial organization of fieldwork Not only did fieldworkers,
Figure 1. Sampling
like most ordinary people, draw on maps for orientation
areas in the city of
within the city, but the division of the city on different
Hamburg (Trepl,
sheets of maps also served as a criterion for the social di-
1984, p. 39).
vision of expert labor within surveying projects (Kreissn,
1978). Furthermore, sample areas that were to be scruti-
nized systematically were first chosen and delineated graphically on the map,
often based on aerial photo interpretation. They were numbered on the map
and also further typified by letters or other signatures (Figure 1). Sometimes,
geometrical features of the map served to create either a schematic sampling
238 Jens Lachmund
grid that covered the whole city, or a transect that traversed the city at its center
(Kunick, 1984). In other surveys, sample areas were delineated according to
topographical features, such as streets or blocks of buildings that could easily be
identified in the field (Asmus, Martens, & Scharfenberg, 1982/1983; Kreissn,
1978; Kunick, 1983).
The reliance on existing maps produced important consequences for what
was representable on the map and what was not. It was the official maps of the
state’s surveying councils, mostly in a scale of 1:5,000, that were used in the sur-
veys as a mapping resource. Such a scale limited the possible depiction of details
which, therefore, were sometimes represented in non-scalar signatures, or addi-
tional non-cartographic forms of representation. Furthermore, the official maps
were based on a specific projection system, the Gauss-Krüger projection. Ac-
cordingly, the surface of the earth is represented as a right-angled grid that is at-
tached to a nearby meridian. This form of projection is considered absolutely
faithful regarding angles and of only minor planimetry distortion. Since the ex-
istence of various other possible forms of cartographic projection and even map-
ping practices that explicitly violate geodetic standards of objectivity, taking this
tack was, itself, a convention that bore its specific representational selectivity.
Basing biotope maps on a standard cartographic system of reference of adminis-
trative cartography, however, made these maps comparable with other maps and
plans of the city and, thus, served to articulate them with the wider network of
administrative practices.
Depicting Distributions
A second cartographic strategy in bio-ecological surveying was the visual con-
struction of distribution patterns of certain categories of plants, plant commu-
nities, or animal populations. Distribution maps (Figure 2) were already being
widely used for the large-scale floristic mapping of Germany since 1973
(Haeupler & Schönfelder, 1988), before they entered urban bio-ecological sur-
veying. The items to be mapped were first registered on record sheets or marked
on predefined lists during fieldwork. During further steps of transcriptions they
were then transformed either into statistical tabulations or into cartographic
representations. On these distribution maps’ predefined spatial units, such as
the squares of a geometrical grid or single block units, the abundance of items
was represented by points. Mostly, the items’ presence was only noted qualita-
tively. On some maps, however, variations in the size of the points were used to
display some further quantitative information.
These maps produced a visual order that would have been impossible to dis-
play by drawing on lists and statistical tabulations alone. The points on the maps
created synoptic patterns of certain species’ “distributions” and linked them visu-
ally to the topographical features of the city. Both the species’ populations, as
well as the city, were mutually redefined during this process of representation.
On the one hand, the grid of the map divided the city into biotopes in which a
Figure 2. Maps of the city of Muenster showing the distribution of urbano-

philious, urbanoneutral, and urbanophobic plants.
certain species was supposed to occur and in areas in which it was not. This dif-
ference was of some moral significance for preservation purposes and it became
of direct, technical importance for the design of species protection measures
(Kunick, 1984). Furthermore, distribution patterns were also considered as dis-
playing wider ecological conditions of the city (Kunick, 1984). Even before the
rise of biotope mapping, it was quite common to study the air quality of urban
regions by mapping the distribution of lichen. On the other hand, these maps
also created the phenomenon of inner-urban “distribution” as a new feature of
species’ populations. This is explicitly conceptualized in the distinction of the
species of plants, such as “urbanophil,” “urbanophob,” and “urbanoneutral,”
which is now common in urban bio-ecology (Wittig, Diesing, & Gödde, 1985;
see Figure 2).
It should be noted that the construction of distribution maps was a highly
selective process. The surveys were expert reports that were to be submitted in a
limited time period. Thus, areas under consideration could usually only be vis-
ited once. What could be easily observed on such visits depended highly on the
vegetation period, or the classificatory skill of the surveyor. In particular, the
presence of animals was often difficult to observe and, accordingly, there has
always been some bias given to floristic and vegetational observation at the ex-
pense of faunistic (Arbeitsgruppe Biotopkartierung im besiedelten Bereich,
1986). Specific emphasis was also given to the mapping of species that were con-
sidered endangered, or as “indicator species” (Ellenberg, 1974) which were sup-
posed to reveal other ecological features of the city, such as the humidity or soil
composition (Kunick, 1980).
Zoning the City

A third cartographic strategy was the use of maps as a means of ecological zoning
of the city (Figure 3). These maps differ from distribution maps in that they dis-
240 Jens Lachmund
Figure 3. Biotope-type map of Berlin (West) (Senator für Stadtentwicklung

und Umweltschutz, Berlin, 1984, p. 38).
play information of a much higher level of generalization, synthesized in the

concept of a biotope type. Points are not the most important signatures of these
maps, but rather fractured mosaics displayed by hachures or colors.
There is a long history in urban planning and geography of zoning the city’s
land-use patterns.3 The city has often been divided into units, such as residential
areas, industrial areas, traffic areas, open spaces, urban wastelands, and so forth.
The zoning of landscapes has also been common in vegetational and landscape-
ecological surveys, in Germany, since the 1940s and 1950s, when mapping of
“natural regions” (naturräumliche Gliederung) and of “potential natural vegeta-
tion” (potentielle natürliche Vegetation) began (Buchwald & Engelhardt, 1968).

These, however, were projects that totally neglected cities.
There were some attempts to draw upon the latter methods in earlier surveys
of the city. Some authors also drew upon phytosociology4 to develop a classifica-
tion of urban regions according to prevailing plant “societations” (Hard & Otto,
1985; Kienast, 1978). It was the notion of the biotope type, however, that be-
came the master concept: to integrate bio-ecological data of different sorts, and a
device for urban zoning that was much more in line with traditional land-use
classification. The notion of the biotope type was first created in the context of
the earliest biotope-mapping projects in Weihenstephan (Kaule et al., 1979). It
was a classification only of those regions that was considered ecologically worthy.
This was also the way in which the term was adopted in the Bavarian urban bio-
ecological surveys. Many areas of the city that in conventional land-use planning
would have simply been put under the residual category of “wasteland” were
now neatly classified according to landscape-ecological criteria. The areas be-
came redefined, for example, as “tall perennial communities,” “primary vegeta-
tions,” “wet meadows,” or “dry meadows.”
As these examples show, biotope types were categorized primarily according
to the forms of vegetation that prevailed in these areas. Although the terminol-
ogy was partly inspired from phytosociology, biotope categories aimed at a classi-
fication of ecologically, homogenous regions and not, as in phytosociology, at
least in its Continental European outlook, on the formal delineation of pure
types of plant communities. Another feature of the Bavarian approach is that it
made a categorical difference between biotope types and land-use types, the
former being associated with “nature” and the latter with the more artificial parts
of the town.
In the surveys of the Berlin group and later in the basic program of the
Working Group the concept of “biotope type” became closely related to the
notion of “land use,” although the latter took on a more bio-ecological mean-
ing. In the 1950s, the intensity of human influence (Jalas, 1955), had already
been used to classify areas and vegetation types of agriculture and forestry. In a
3
In Germany, the concept of zoning can be traced back to the late 19th century and the so-
called Zonenplanung (Fehl & Rodriguez-Lores, 1982). The cartographic representation of zones
(criminality, income, etc.) was also part of Charles Booth’s late 19th century survey of London
(Bulmer, Bales, & Sklar, 1991). During the time of National Socialism, Gottfried Feder in an in-
fluential textbook on urban planning (Feder, 1939) called for systematic zoning of the city as a
basis for what he considered a more rational method of planning.
4
Generally speaking, phytosociology is the study of the association of plants into specific units
of vegetation. In Continental Europe, a phytosociological approach has been dominant that was
based on the model of classical plant taxonomy. This approach was developed in the 1920s by the
Swiss botanist Josias Braun-Blanquet, the Director of the first Phytosociological Research Station
at Montpellier (Sigma). In Germany, the Sigma-approach has been further developed by Reinhold
Tüxen, Director of the Empire’s Institute for Vegetation Mapping (Zentralstelle für Vegetations-
kartierung) set up in 1932 in Stolzenau, Weser. On the history of phytosociology and on the differ-
ences between continental (“Sigmatist”) phytosocioiogy and North-American plant ecology see
Nicolson (1989).
242 Jens Lachmund
similar way, researchers of the Berlin group argued, from the early 1970s, that
the intensity and form of land use should be considered the most important fac-
tor determining wildlife in towns (Kunick, 1982; Sukopp, 1973). Sukopp
(1973) constructed a schematic outline of the city in concentric zones in which
specific forms of land uses were correlated with their ecological character. In a
1974 thesis of Sukopp’s former student Wolfram Kunick (1982), the Western
part of Berlin was divided into five “regions of common flora” that were conso-
nant with a roughly differentiated pattern of development.
When the Berlin biotope-mapping survey changed from its earlier compre-
hensive method to the representative-comprehensive method, sampling areas
were considered as being representative of those urban land-use types of which
they formed a part (Arbeitsgruppe Artenschutzprogramm, Berlin, 1984). These
land-use types were considered, both methodically and conceptually, as ecologi-
cally, homogenous, biotope types which hosted very particular populations and
vegetation types. Although partly drawing upon vegetational criteria, this classi-
fication was primarily based on urbanistic land-use categories. The city of Berlin
was divided into 57 types of biotopes. These included areas considered to have
only relatively minor human influence as well as areas considered to have been
extremely anthropogenically molded, such as the “biotopes of construction
sites,” “biotopes of railway tracks,” or the “biotopes of blocks of flats of 5–6
floors, from the 1890s” (Arbeitsgruppe Artenschutzprogramm, Berlin, 1984).
For each of these categories, bio-ecological data were assembled and displayed
separately. This data, in turn, served to define what the biotope types meant in
terms of detailed bio-ecological inventories, and also to introduce more subtle
divisions into the classification scheme.
The classification of biotope types became the hallmark of representative-
comprehensive mapping. The delineation of categories, however, remained a
matter of constant debate and different methods were proposed on how to define
them adequately. The basic programs of the Working Group, for example, devel-
oped standard schemes for the classification of land use (1986) or biotope types
(1992), on which future mapping projects were to be based. In a study on the
city of Bochum (Schulte, 1985), one author proposed a quantitative method for
translating distribution maps of various plants and some other ecological data
into comprehensive zone maps. More recently, researchers at Weihenstephan de-
veloped a method of classifying “urban structure types” that was also based on
the computational analysis of ecological data (Duhme & Pauleit, 1992).
As in the case of distribution maps, maps of zones also created new meanings
of the city, but they did this differently. Whereas distribution maps created new
spatial patterns and related them visually to the anthropogenic structure of the
city, zoning maps melded both aspects on the same visual plane. They not only
revealed that there was some form of nature in the city and how, exactly, it was
distributed, but moreover, they displayed the city as a hybrid spatial order in
which spontaneous biological processes and various forms of human influence
were closely interwoven. Areas depicted on the map were never purely natural or
purely cultural; there was instead a continuous gradation between these poles.
This was, as we have already seen, a concept that also characterized a new dis-
course on nature promotion in the city in general. On the maps of urban bio-
ecological zones this concept took on visual meaning.
Furthermore, zoning maps fit well into the rationality of urban planning
and, thus, helped to strengthen the impact of environmental expertise. Zoning
created homogenous parcels of territories that were planimetrically circum-
scribed and were easy to articulate, with more administrative forms of zoning of
the city as well as with the distribution of private property. Providing informa-
tion that fitted into the routine of the administrative authorities was considered
a major criterion for the choice of mapping practices, with zone maps being
considered more suitable for this purpose than distribution maps (Jedicke,
1994, p. 140; Lahl & Haemisch, 1990, p. 488). Comprehensive geo-informa-
tion systems, of which biotope maps constitute one layer, homologous to vari-
ous other political and administrative regional orders of the town, are at present
the most advanced example of this articulation.
Evaluating Space
A fourth cartographic strategy is the use of maps as a display of ecological judg-
ments. In a sense, all the mapping practices considered so far imply certain judg-
ments of the sites that they display. Particularly in the case of selective mapping,
every map of the biotopes is also a display of their ecological evaluation. In com-
prehensive-representative surveying, however, special “maps of biotope evalua-
tion” were also produced (Arbeitsgruppe Artenschutzprogramm, Berlin, 1984;
Reidl, 1989; see Figure 4). They were closely related to biotope zoning maps on
which they were also technically based.
Judgmental maps were the result of further acts of synthesizing and generaliz-
ing information. In contrast to selective mapping, which centered only on areas
that were considered valuable beforehand, these maps relied on the results of a
comprehensive or comprehensive-representative mapping of all sites of a town.
During a subsequent process, the ecological value of each of these areas was stip-
ulated according to a system of three or more classes that were then displayed on
the map by the use of different hachures or colors. Such a system of formal eval-
uation was first developed in the Berlin project (Arbeitsgruppe Artenschutzpro-
gramm, Berlin, 1984, Sect. I, p. 99ff.). The procedure of evaluation remained
unsetded for most of the period under consideration, but in 1992 the Working
Group agreed upon a standard model. Generally speaking, these systems of eval-
uation consisted of a step-by-step judgment of biotopes according to formal
criteria, such as the intensity of land use, the degree of soil sealing, biological di-
versity, the position in the town, or the frequency of a certain biotope type in the
town under investigation.
Judgmental maps may be considered a first step toward the transformation of
biotope-mapping survey results into administrative or planning strategies. They
do not only display what sorts of biotopes exist in the city, but they, further-
244 Jens Lachmund
Figure 4. Map showing the value of biotopes, biotope-mapping of Berlin

(West) (Senator für Stadtentwicklung und Umweltschutz, Berlin, 1984, p. 45).
more, give explicit hints to where they have to be preserved, where they have to
be developed, and which are the ecologically indigent quarters of the city. By
visualizing evaluations of inner-urban areas, these maps contributed to the pro-
duction of new “spatial images” (Shields, 1991): They attributed new meanings
to places that were sometimes in direct conflict with the deeply entrenched
spatial images held by most of the city dwellers. For example, neatly cultured
lawns were considered relatively poor places in bio-ecological surveys. On the
other hand, wastelands, often considered most ugly by city-dwellers, were held
to be of superior value because they often displayed a rich diversity of species.
Conclusion
Since early modernity, it has been common to treat nature and the city as a pair
of opposites. Nature was primarily associated with the countryside, whilst the
city was seen as something of an epitome of the artificial. At the same time, the
history of urbanism has been full of attempts to dissolve this difference, or at
least to remedy its most extreme consequences, for example, by building garden
cities or creating inner-urban open spaces. Recent concern over inner-urban
biotopes might, thus, be related to a long-lasting tradition. However, biotope
mapping was not merely a new means of bringing more nature into the city.
Rather, it was the meaning of urban and of nature themselves that was recreated
in this process. Until approximately 20 years ago, such a thing as a biotope in the
city never existed. It was by the visual depiction on the map that the urban
biotope emerged as a scientific and political phenomenon. A fuzzy world of
streets, trees, and buildings became transformed into synoptic patterns that re-
vealed new objects and relationships of urban phenomena. On the map, phe-
nomena were geometrically circumscribed and consistent with the classificatory
order of bio-ecological discourse. Moreover, the maps created a cognitive order
that also met the criteria of administrative procedures of standardization and
documentary evidence.
In the emerging city of biotopes, the natural and artificial lose their former
oppositional meaning. The city becomes naturalized as nature becomes urban-
ized. By categorizing and delineating urban places, according to the bio-ecologi-
cal criteria, the maps visually inscribe “naturalness” on the urban space. They
represent a grid of ontological and moral meanings that differs from both the
“cognitive maps” of urban dwellers and the “concept city,” as de Certeau (1988)
has called it, of traditional urban planners. Nature, on the other hand, is no
longer associated with relatively untouched landscapes, or transhistorically stable
biological traits. As “urban nature” it becomes an expression of the complexities
and histories of human activities in which it has been molded. Urban biotope
mapping, thus, is a good example of the way in which new forms of expertise
shape the categories by which we perceive our world.
Acknowledgments
I would like to thank the ecologists and planning officials who donated their
time and provided material that is analyzed in this chapter. I am also grateful to
the various people who commented on earlier versions: the participants of the
Joint conference of the Society for the Social Studies of Science and Environ-
mental Studies Association of Canada, Halifax, October 28, 1998, the Schloeß-
mann Seminar on “The Expert in Modern Societies,” Berlin, November 26-28,
1998, and, particularly, my former colleagues at the Max-Planck-Institute of the
History of Science, Berlin.
246 Jens Lachmund
References
Abbott, A. (1988). The system of professions. An essay on the division of expert labor. Chicago: The
University of Chicago Press.
Arbeitsgruppe Artenschutzprogramm, Berlin. (1984). Grundlagen für das Artenschutzprogramm
Berlin (Vol. I). Berlin: Technical University Berlin.
Arbeitsgruppe Biotopkartierung im besiedelten Bereich. (1986). Flächendeckende Biotopkar-
tierung im besiedelten Bereich als Grundlage einer ökologisch bzw. am Naturschutz orientier-
ten Planung. Grundprogramm für die Bestandsaufnahme und Gliederung des besiedelten Be-
reichs und dessen Randzonen. Natur und Landschaft, 61(10), 371–388.
Asmus, U., Kunick, W., Maas, I., Markstein, B., & Schneider, C. (1981). Biotopkartierung der
Stadt Rüsselsheim. Unpublished manuscript.
Asmus, U., Martens, C., & Scharfenberg, E. (1982/1983). Biotopkartierung Berlin (West): II.
Kreuzberg-Süd. Berlin: Technical University Berlin, Institute for Ecology.
Auhagen, A., & Sukopp, H. (1983). Ziel, Begründungen und Methoden des Naturschutzes der
Stadtentwicklungspolitik von Berlin. Natur und Landschaft, 58(1), 9–15.
Blomley, N. K. (1991). Law, space, and the geographies of power. New York: Guilford Press.
Brunner, M., Duhme, F., Mück, H., Patsch, J., &Wenisch, E. (1979). Kartierung erhaltenswerter
Lebensräume in der Stadt, Das Gartenamt, 28, 72–78.
Buchwald, K., & Engelhardt, W. (1968). Handbuch für Landschaftspflege und Naturschutz. Schutz,
Pflege und Entwicklung unserer Wirtschafts- und Erholungslandschaften auf ökologischer Grund-
lage (Vol. 1). Munich, Germany: BLV.
Bulmer, M., Bales, K., & Sklar, K. K. (Eds.). (1991). The social survey in historical perspective
1880–1940. Cambridge, UK: Cambridge University Press.
Bunce, M. (1994). The countryside ideal. Anglo-American images of landscape. London: Routledge.
Callon, M., & Latout, B. (1992), Don’t throw the baby out with the bath school! [A reply to
Collins and Yearley]. In A. Pickering (Ed.), Science as culture and practice (pp. 343–368).
Chicago: The University of Chicago Press.
Camerini, J. R. (1993a). Evolution, biogeography, and maps. An early history of Wallace’s line.
Isis, 84(4), 700–727.
Camerini, J. (1993b). Wallace in the field. Osiris, 11, 44–65.
Certeau, M. de. (1988). Kunst des Handelns. Berlin: Merve.
Clarke, A., & Fujimura, J. H. (1992). What tools? Which job? Why right? In A. Clarke &
J. Fujimura (Eds.), The right tools for the job (pp. 3–44). Princeton, NJ: Princeton University
Press.
Dahl, F. (1908). Grundsätze und Grundbegriffe der biozönotischen Forschung. Zoologischer An-
zeiger, 33, 349–353.
Duhme, F., & Pauleit, S. (1992). Strukturtypenkartierung als Instrument der räumlich-integrativen
Analyse und Bewertung der Umweltbedingungen in München. Munich, Germany: Technical
University of Munich-Weihenstephan, Chair for Landscape Ecology.
Duhme, F., et al. (1983). Kartierung schutzwürdiger Lebensräume in München. Munich, Germany:
Technical University of Munich-Weihenstephan.
Ellenbetg, H. (1974). Zeigerwerte der Gefäßpflanzen Mitteleuropas. Scripta Geobotanica, 9, 1–97.
Engel, H. (1949). Die Trümmerpflanzen von Münster. Natur und Heimat, 9(2), 1–15.
Feder, G. (1939). Die neue Stadt. Versuch der Begründung einer neuen Stadtplanungskunst aus der so-
zialen Struktur der Bevölkerung. Berlin: Springer.
Fehl, G., & Rodriguez-Lores, J. (1982). Aufstieg und Fall der Zonenplanung. Städtebauliches In-
strumentarium und stadträumliche Ordnungsvorstellungen zwischen 1870 und 1905. Stadt-
bauwelt, 443–450.
Graham, J., & Keil, R. (1997). Natürlich städtisch: Stadtumwelten nach dem Fordismus. Prokla,
27(4), 567–589.
Gugerli, D. (1998). Politics on the topographer’s table: The Helvetic triangulation of cartography,
politics, and representation. In T. Lenoir (Ed.), Inscribing science. Scientific texts and the materi-
ality of communication (pp. 91–118). Stanford, CA: Stanford University Press.
Haeupler, H., & Schönfelder, P (1988). Atlas der Farn- und Bütenpflanzen der Bundesrepublik
Deutschland. Stuttgart, Germany: Ulmer.
Hannigan, J. A. (1995). Environmental sociology. London: Routledge.
Hard, G., & Otto, G. (1985). Die vegetationsgeographische Gliederung einer Stadt. Ein Versuch
auf der Ebene statistisch-administrativer Raumeinheiten. Erdkunde, 39, 296–306.
Harley, B. (1989). Deconstructing the map. Cartographica, 26(2), 1–20.
Hayer, M. (1995). The politics of environmental discourse: Ecological modernization and the policy
process. Oxford, UK: Clarendon Press.
Helgerson, R. (1986). The land speaks: Cartography, chorography, and subversion in renaissance
England. Representations, 16, 51–85.
Jalas, J. (1955). Hemerobe und hemerochore Pflanzenarten. Ein terminologischer Reformversuch.
Acta Soc pro Fauna Flora Fenn, 72(11), 1–15.
Jasanoff, S. (1990). The fifth branch: Science advisors as policy-makers. Cambridge, MA: Harvard
University Press.
Jedicke, E. (1994). Biotopschutz in der Gemeinde. Radebeul, Germany: Neumann.
Kaule, G., Schaller, J., & Schober, H.-M. (1979). Schutzwürdige Biotope in Bayern. Auswertung der
Kartierung. Außeralpine Naturräume. Munich, Germany: Environmental Protection Agency of
Bavaria.
Kienast, D. (1978). Die spontane Vegetation der Stadt Kassel in Abhängigkeit von bau- und stadt-
strukturellen Quartierstypen (Vol. 10). Kassel, Germany: GHK Kassel.
Kowarik, I. (1992). Stadtnatur—Annäherung an die “wahre” Natur der Stadt. In J. Gill (Ed.),
Ansprüche an Freiflächen im urbanen Raum (pp. 63-81). Mainz, Germany: Stadt Mainz.
Kreissn, D. (1978). Kartierung erhaltenswerter Lebensräume in der Stadt. Unpublished diploma
thesis, Technical University of Munich, Freising.
Kunick, W. (1974). Veränderungen von Flora und Vegetation einer Großstadt, dargestellt am Beispiel
von Berlin (West). Berlin: Technical University Berlin.
Kunick, W. (1979). Stadtbiotopkartierung Berlin. Berlin: Technical University Berlin, Institute for
Ecology, Ecosystem Studies, and Vegetation Studies.
Kunick, W. (1980). Pflanzen, die bei der Kartierung von Stadtgebieten besonders berücksichtigt
werden sollten. Garten + Landschaft, 7, 577–580.
Kunick, W. (1982). Zonierung des Stadtgebietes von Berlin West—Ergebnisse floristischer Untersu-
chungen (Vol. 14). Berlin: Technical University Berlin.
Kunick, W. (1983). Köln, landschaftsökologische Grundlagen: Teil 3. Biotopkartierung. Cologne,
Germany: Grünflächenamt.
Kunick, W. (1984). Verbreitungskarten von Wildpflanzen als Bestandteil der Stadtbiotopkartie-
rung, dargestellt am Beispiel Köln. Verhandlungen der Gesellschaft für Ökologie 1982, XII, 268–
275.
Kunick, W., Kuoni, M., & Maas, I. (1983). Pilotstudie Stadtbiotopkartierung Stuttgart (Vol. 36).
Karlsruhe, Germany: Environmental Protection Agency of Baden-Württemberg.
Lahl, U., & Haemisch, M. (1990). Naturschutz in der Kommunalpolitik—Drei Standbeine not-
wendig. Natur und Landschaft, 65(10), 484–490.
Martens, C., & Scharfenberg, E. (1982/83). Stadtbiotopkartierung Berlin (West). Vegetations-
kundliche Untersuchungen der Parkanlagen Volkspark Hasenheide, Park am Buschkrug. Berlin:
Technical University Berlin, Institute for Ecology, Ecosystem Studies and Vegetation Studies.
Matless, D. (1991). Regional surveys and local knowledges: The geographical imagination in
Britain, 1918–39. Transactions of the British Geographer’s National Institute, 17, 464–480.
Matless, D. (1997). Moral geographies of English landscape. Landscape Research, 22(2), 141–155.
Milchert, J. (1980). 200 Jahre städtische Grünflächenpolitik. Garten + Landschaft, 9, 703–716.
Nicolson, M. (1989). National styles, divergent classifications: A comparative case study from the
history of French and American plant ecology. Knowledge and Society: Studies in the Sociology of
Science Past and Present, 8,139–186.
Pfeiffer, H. (1954). Pflanzliche Gesellschaftsbildung auf dem Trümmerschutt ausgebombter
Städte. Vegetatio, 7, 301–320.
248 Jens Lachmund
Reidl, K. (1989). Floristische und vegetationskundliche Untersuchungen als Grundlagen für den Arten-
und Biotopschutz in der Stadt. Dargestellt am Beispiel Essen. Unpublished doctoral dissertation,
Gesamthochschule Essen, Germany,
Scholz, H. (1956). Die Ruderalvegetation Berlins. Unpublished doctoral dissertation, Free Univer-
sity Berlin.
Schulte, W. (1985). Modell einer stadtökologischen Raumgliederung auf der Grundlage der
Florenanalyse und Florenbewertung. Natur und Landschaft, 60(3), 103–108.
Schulte, W., Sukopp, H., & Werner, P. (1993). Flächendeckende Biotopkartierung im besiedelten
Bereich als Grundlage einer am Naturschutz orientierten Planung. Programm für die Be-
standsaufnahme, Gliederung und Bewertung des besiedelten Bereichs und dessen Randzonen
(Arbeitsgruppe Methodik der Biotopkartierung im besiedelten Bereich). Natur und Land-
schaft, 68(10), 491–525.
Senator für Stadtentwicklung und Umweltschutz, Berlin (1984). Landschaftsprogramm—Arten-
schutzprogramm, Berlin (p. 38f., p. 45). Berlin: Stadt Berlin.
Shields, R. (1991). Places on the margin. Alternative geographies of modernity. London: Routledge.
Sukopp, H. (1973). Die Großstadt als Gegenstand ökologischer Forschung. Schriften zur Verbrei-
tung naturwissenschaftlicher Kenntnisse, 113, 90–140.
Sukopp, H. (1990). Ökologische Grundlagen für die Stadtplanung und Stadterneuerung. In H. J.
Conert (Ed.), Ergebnisse der 10. Sitzung der Arbeitsgruppe “Biotopkartierung im besiedelten Be-
reich”(pp. 7–22). Frankfurt a.M., Germany: Courier des Forschungs-Instituts Senckenberg.
Sukopp, H. (1994). Stadtökologie in nationaler und internationaler Perspektive. In Landes-
hauptstadt Erfurt (Ed.), Biotopkartierung im besiedelten Bereich. 15. Jahrestagung der Arbeits-
gruppe der Landesanstalten und -ämter und des Bundesamtes für Naturschutz 15.–17. September
1994 in Erfurt (pp. 8–14). Erfurt, Germany: Stadt Erfurt.
Sukopp, H., Kunick, W., & Schneider, C. (1979). Biotopkartierung in der Stadt. Ergebnisse der
ersten Sitzung der Arbeitsgruppe Biotopkartierung im besiedelten Bereich. Natur und Land-
schaft, 54(3), 66–68.
Trepl, L. (1984). Stadtbiotopkartierung Hamburg—Ergebnisse der Beispielkartierung. In Um-
weltamt Hamburg (Ed.), 14. Ökologie-Forum 1984. Biotop- und Artenkartierung im besiedelten
Bereich und deren Umsetzung im Biotopschutzprogramm (pp. 31–45). Hamburg, Germany:
Stadt Hamburg.
Turnbull, D. (1996), Cartography and science in early modern Europe: Mapping the construction
of knowledge spaces. Imago Mundi, 48, 5–24.
Wittig, R., Diesing, D., & Gödde, M. (1985). Urbanophob—Urbanoneutral—Urbanophil. Das
Verhalten der Arten gegenüber dem Lebensraum Stadt. Flora, 177, 265–282.
Wood, D. (1992). The power of maps. London: Routledge.
Chapter 13
How to Improve the Diagnostic Inferences of
Medical Experts
Ulrich Hoffrage and Gerd Gigerenzer

Center for Adaptive Behavior and Cognition
Max Planck Institute for Human Development, Berlin, Germany
hoffrage@mpib-berlin.mpg.de
Women are generally informed that mammography screening reduces the risk of
dying from breast cancer by 25%. Does that mean that from 100 women who
participate in screening, 25 lives will be saved? Although many people believe
this to be the case, the conclusion is not justified. This figure means that from
1,000 women who participate in screening, 3 will die from breast cancer within
10 years, whereas from 1,000 women who do not participate, 4 will die. The dif-
ference between 4 and 3 is the 25% “relative risk reduction.” Expressed as an
“absolute risk reduction,” however, this means that the benefit is 1 in 1,000, that
is, 0.1%. Cancer organizations and health departments continue to inform
women of the relative risk reduction, which gives a higher number—25% as
compared to 0.1%—and makes the benefit of screening appear larger than if it
were represented in absolute risks.
The topic of this chapter is the representation of information on medical
risks. As the case of mammography screening illustrates, the same information
can be presented in various ways. The general point is that information always
requires representation, and the choice between alternative representations can
influence the patients’ willingness to participate in screening, or more generally,
patients’ understanding of risks and choices of medical treatments. The ideal of
“informed consent” can only be achieved if the patient knows about the pros
and cons of a treatment, or the chances that a particular diagnosis is right or
wrong. However, in order to communicate such uncertainties to the patients,
the physician has to first understand statistical information and its implications.
This requirement sharply contrasts with the fact that physicians are rarely trained
in risk communication, and some still think that medicine can dispense with sta-
tistics and psychology. Such reluctance may also explain why previous research
observed that a majority of physicians do not use relevant statistical information
properly in diagnostic inference. Casscells, Schoenberger, and Grayboys (1978),
for instance, asked 60 house officers, students, and physicians at the Harvard
Medical School to estimate the probability of an unnamed disease given the fol-
lowing information:
249
250 Ulrich Hoffrage and Gerd Gigerenzer
If a test to detect a disease whose prevalence is 1/1,000 has a false positive

rate of 5 per cent, what is the chance that a person found to have a positive
result actually has the disease, assuming that you know nothing about the
person’s symptoms or signs? (p. 999)
The estimates varied wildly: from the most frequent estimate, 95% (27 out of
60), down to 2% (11 out of 60). The value of 2% is obtained by inserting the
problem information into Bayes’s rule (see below)—assuming that the sensitivity
of the test, which is not specified in the problem, is approximately 100%.
Casscells et al. (1978) concluded that
(…) in this group of students and physicians, formal decision analysis was al-
most entirely unknown and even common-sense reasoning about the inter-
pretation of laboratory data was uncommon (p. 1000).
In a seminal article on probabilistic reasoning about mammography, David
Eddy (1982) reported an informal study in which he asked an unspecified group
of physicians to estimate the probability of breast cancer given a base rate (prev-
alence) of 1%, a hit rate (sensitivity) of 79%, and a false positive rate of 9.6%.
He reported that 95 out of 100 physicians gave estimates of the posterior proba-
bility of breast cancer given a positive mammogram (the positive predictive value)
of between 70% and 80%, whereas Bayes’s rule results in a value one order of
magnitude smaller, namely, 7.7%. Eddy proposed that the majority of physi-
cians confused the sensitivity of the test with the positive predictive value. Evi-
dence of this confusion can also be found in medical textbooks and journal arti-
cles (Eddy, 1982), as well as in statistical textbooks (Gigerenzer, 1993).
In 1986, Windeler and Köbberling reported responses to a questionnaire
they had mailed to family physicians, surgeons, internists, and gynecologists in
Germany. Only 13 of the 50 respondents realized that an increase in a disease’s
prevalence implies an increase in the positive predictive value. The authors con-
cluded with this puzzling observation: Although intuitive judgment of probabil-
ities is part of every diagnostic and treatment decision, the physicians in their
study were obviously unaccustomed to estimating quantitative probabilities.
Given these demonstrations that many physicians’ reasoning does not follow the
laws of probability (see also Abernathy & Hamm, 1995; Dawes, 1988; Dowie &
Elstein, 1988), what can be done to improve diagnostic inference?
Natural Frequencies Help in Making Diagnostic Inferences

Each of the three studies summarized above presented numerical information in
the form of probabilities and percentages. The same holds for other studies in
which the conclusion was that physicians (Berwick, Fineberg, & Weinstein,
1981; Politser, 1984) and laypeople (Koehler, 1996a) have great difficulties in
making diagnostic inferences from statistical information. Whether information
is presented in probabilities, percentages, absolute frequencies, or some other
How to Improve the Diagnostic Inferences of Medical Experts 251
form is irrelevant from a mathematical viewpoint. These different representa-

tions can be mapped onto one another in a one-to-one fashion. However, they
are not equivalent from a psychological viewpoint, which is the key to our argu-
ment.
We argue that a specific class of representations, which we call natural frequen-
cies, helps laypeople and experts to make inferences the Bayesian way. We illus-
trate the difference between probabilities and natural frequencies with the diag-
nostic problem of inferring the presence of colorectal cancer (C) from a positive
result in the hemoccult test (T), a standard diagnostic test. In terms of probabili-
ties, the relevant information is a base rate for colorectal cancer p(C) = 0.3%, a
sensitivity and a false positive rate In natural
frequencies, the same information would read:
Thirty out of every 10,000 people have colorectal cancer. Of these 30 people
with colorectal cancer, 15 will have a positive hemoccult test. Of the remain-
ing 9,970 people without colorectal cancer, 300 will still have a positive
hemoccult test.
Natural frequencies are absolute frequencies as encoded through direct expe-
rience and have not been normalized with respect to the base rates of disease and
non-disease (Gigerenzer & Hoffrage, 1995, 1999). They are to be distinguished
from probabilities, percentages, relative frequencies, and other representations
where the underlying natural frequencies have been normalized with respect to
these base rates.1
Why should natural frequencies facilitate diagnostic inferences? There are
two related arguments. The first is computational. Bayesian computations are
simpler when the information is represented in natural frequencies rather than
in probabilities, percentages, or relative frequencies (Christensen-Szalanski &
Bushyhead, 1981; Kleiter, 1994). For instance, when the information concern-
ing colorectal cancer is represented in probabilities, applying a cognitive algo-
rithm to compute the positive predictive value, that is, the Bayesian posterior
probability, amounts to performing the following computation:
The result is 0.048. Equation 1 is Bayes’s rule for binary hypotheses (here, C
and not-C) and data (here, T). The rule is named after Thomas Bayes (1702–
1761), an English dissident minister, to whom the solution of the problem of
how to make an inference from data to hypothesis is attributed (Stigler, 1983).
1
For instance, the following representation of the colorectal cancer problem is not in terms of
natural frequencies (or frequency formats; Gigerenzer & Hoffrage, 1995, 1999), because the frequen-
cies have been normalized with respect to the base rates: a base rate of 30 out of 10,000, a sensitiv-
ity of 5,000 out of 10,000, and a false positive rate of 300 out of 10,000.
When the information is presented in natural frequencies, then the computa-

tions are much simpler:
Equation 2 is Bayes’s rule for natural frequencies, where c&t is the number of
cases with cancer and a positive test, and not-c&t is the number of cases without
cancer but with a positive test.
The second argument supplements the first. Minds appear to be tuned to
make inferences from natural frequencies rather than from probabilities and per-
centages. This argument is consistent with developmental studies indicating the
primacy of reasoning with discrete numbers over fractions, and studies of adult
humans and animals indicating the ability to monitor frequency information in
natural environments in fairly accurate and automatic ways (e.g., Gallistel &
Gelman, 1992; Jonides & Jones, 1992; Real, 1991; Sedlmeier, Hertwig, &
Gigerenzer, 1998). For most of their existence, humans and animals have made
inferences from information encoded sequentially through direct experience,
and natural frequencies are the final tally of such a process. Mathematical proba-
bility emerged only in the mid-17th century (Daston, 1988), and not until the
aftermath of the French Revolution—when the metric system was adopted—do
percentages appear to have become common representations, mainly for taxes
and interests, and only very recently for risk and uncertainty (Gigerenzer et al.,
1989). Thus, one might speculate that minds have evolved to deal with natural
frequencies rather than with probabilities.
Probabilities can be represented in what Gigerenzer and Hoffrage (1995)
called the standard menu and the short menu. The standard menu is illustrated
above; the short menu presents p(C&T) and p(T). Both lead to the same re-
sult. Similarly, natural frequencies can be expressed in both a standard and a
short menu (see Appendix for all four versions of the colorectal cancer problem).
To compute the Bayesian solution for probabilities, the short menu demands
fewer computations than the standard menu, whereas for natural frequencies the
computations are the same, except that in the standard menu the two com-
pounds c&t and not-c&t need to be added to determine the denominator
(Gigerenzer & Hoffrage, 1995, theoretical results 5 and 6, p. 688).
Do Natural Frequencies Improve Laypeople’s Reasoning?

Many studies have concluded that people’s judgments do not follow Bayes’s rule,
but little is known about how to help people reason the Bayesian way. We tested
whether natural frequencies improve Bayesian inference in laypeople, speci-
fically, students in various fields at the University of Salzburg (Gigerenzer &
Hoffrage, 1995). We used 15 problems, including Eddy’s mammography prob-
lem and Tversky and Kahneman’s (1982) cab problem. When the information
was presented in natural frequencies rather than in probabilities, the proportion
of Bayesian responses increased systematically for each of the 15 problems. This

advantage held whether the frequencies and probabilities were presented in the
standard menu or the short menu. The average proportions of Bayesian re-
sponses were 16% and 28% for probabilities, rising to 46% and 50% for natural
frequencies (standard and short menu, respectively). Thus, although they can be
directly inserted in Equation 2, compound probabilities as displayed in the short
menu were not as effective as natural frequencies. To conclude, natural frequen-
cies, whether presented in the standard or the short menu, improve Bayesian
reasoning without instruction.
Similarly, Cosmides and Tooby (1996) showed that natural frequencies im-
prove Bayesian inferences in the Casscells et al. (1978) problem as well. This
hypothetical medical problem is numerically simpler (the hit rate is assumed to
be 100%) than the problems in the Gigerenzer and Hoffrage (1995) study, and
Cosmides and Tooby reported that 76% of the answers were Bayesian (see also
Christensen-Szalanski & Beach, 1982).
But would medical experts also profit from natural frequencies, and do they
use them in communicating risks to their clients? The following studies with
medical students and experienced physicians provide an answer to the first ques-
tion; the final study with AIDS counselors addresses the second question.
Do Natural Frequencies Improve Medical Students’

Diagnostic Inferences?
Participants were 87 advanced medical students of whom most had already
passed a course in biostatistics and were, on average, in their fifth year, and 9 first-
year interns. Fifty-four studied in Berlin and 42 in Heidelberg; 52 were female
and 44 were male. The average age was 25 years.
We chose four realistic diagnostic tasks and constructed four versions of each:
two in which the information was presented in probabilities (as it typically is),
and two in which the information was presented in natural frequencies. For each
of these two formats the information was presented either in the standard menu
or in the short menu. The four diagnostic tasks were to infer (a) the presence of
colorectal cancer from a positive hemoccult test, (b) the presence of breast cancer
from a positive mammogram, (c) the presence of phenylketonuria from a posi-
tive Guthrie test, and (d) the presence of ankylosing spondylitis (Bekhterev’s dis-
ease) from a positive HL-Antigen-B27 (HLA-B27) test. The information on
prevalence (base rate), sensitivity (hit rate), and false positives (false-alarm rate)
was taken from Eddy (1982), Mandel et al. (1993), Marshall (1993), Politser
(1984), and Windeler and Köbberling (1986). The four diagnostic tasks are
shown in the Appendix.
These problems were given to the participants in a questionnaire. We used a
Latin square design: Each participant worked on all problems, each in a different
version. Across all participants, the four problems and the four versions appeared
Figure 1. Medical students’ percentage of Bayesian inferences in four diagnostic

tasks, broken down according to the four versions of each task (see Appendix for
the four versions of the colorectal cancer problem).
on each of the four pages in the questionnaire equally often. The first two prob-
lems in each questionnaire were always given in the same format, either both in
probabilities or both in natural frequencies. In addition, we systematically varied
the order of the two pieces of information in the short menu.
Participants were paid a flat fee. They worked on the questionnaire at their
own pace and in small groups of mainly three to six participants. The experi-
menter asked them to make notes, calculations, or drawings, so that we could re-
construct their reasoning. Interviews were performed after the participants com-
pleted their questionnaire.
When a participant’s estimate was within plus or minus five percentage
points (or the equivalent in frequencies) of the Bayesian estimate, and the notes
and interview indicated that the estimate was arrived at by Bayesian reasoning
(or a shortcut thereof; see Gigerenzer & Hoffrage, 1995) rather than by guessing
or other means, then we classified the response as a “Bayesian inference.” Figure
1 shows the percentages of Bayesian inferences for the four diagnostic tasks (the
results for the standard menu have already been published in Hoffrage, Lindsey,
Hertwig, & Gigerenzer, 2000). For each problem, probabilities in the standard
menu made it most difficult for the medical students to reason the Bayesian way.
When the standard menu was used with natural frequencies, the performance
increased from 18% to 57%. For the short menu, the differences were smaller,
from 50% to 68%. This interaction is consistent with the theoretical result men-
tioned above—that the beneficial effect of the short menu is larger for probabili-
ties than for natural frequencies. To summarize, medical students showed signs
of “innumeracy” (Paulos, 1988) similar to those of laypeople when the informa-
tion was in terms of probabilities (standard menu), but their reasoning improved
more than laypeople’s when the frequency representations (or probabilities in the
short menu) were used.
Do Natural Frequencies Improve Physicians’ Diagnostic

Inferences?
As important as this result is for improving medical students’ “insight,” one might
suspect that it will not generalize to experienced physicians who treat real patients.
We asked 51 physicians to participate in the following study (Gigerenzer, 1996;
Hoffrage & Gigerenzer, 1998). Three physicians did not give numerical estimates,
either because they generally rejected statistical information as meaningless for
medical diagnosis, or because they stated that they were unable to think in num-
bers. The remaining 48 physicians had practiced for an average of 14 years
(ranging from 1 month to 32 years) and had a mean age of 42 years (ranging
from 26 to 59). They worked either in Munich or Düsseldorf; 18 were female
and 30 were male. Eighteen worked in university hospitals, 16 in private or pub-
lic hospitals, and 14 in private practice. The sample included internists, gynecol-
ogists, dermatologists, and radiologists, among others. The physicians’ status
ranged from directors of clinics to physicians commencing their careers.
The interviewer visited the physicians individually at their institutions or pri-
vate offices and, in a few cases, in their homes. She first informed the physician
about our interest in studying diagnostic inference and established a relaxed per-
sonal rapport. Each physician was then given the same four diagnostic tasks as in
the previous study. Each problem was printed on a sheet of paper, followed by a
separate blank sheet. The interviewer asked the physician to use the empty sheet
to make notes, calculations, or drawings so that we could later reconstruct his or
her reasoning. After the physician completed the four tasks, the interviewer re-
viewed the physician’s notes. If it could not be discerned how the estimate was
achieved in each task, the physician was asked for clarification.
Given the limited free time of practicing physicians, we only used the stand-
ard menu. In two diagnostic tasks, the information was presented in probabili-
ties, in the other two in natural frequencies. We systematically varied which
tasks were in which format and which format was presented first with the con-
straint that the first two tasks had the same format.
Dr. Average
To give the reader a better understanding of the test situation and the results, we
first describe the results for Dr. Average, who represents the “average physician”
with respect to performance on these diagnostic tasks.
Dr. Average is a 59-year-old director of a university clinic who is active in re-
search and teaching, a dermatologist with 32 years of professional experience.
He worked on the problems for 30 minutes and spent another 15 minutes dis-
cussing the results with the interviewer. He was visibly nervous when working
on the first two problems, which used probabilities. Initially, Dr. Average refused
to make notes; he acquiesced later, when the interviewer again requested that he
do so, but he did not let the interviewer see his notes.
Dr. Average first worked on the mammography problem in the probability
format. He calculated the probability of breast cancer after a positive mammog-
raphy to be 90%, by adding the sensitivity to the false positive rate, 80% + 10%
= 90%. Nervously, he remarked, “Oh, what nonsense. I can’t do it. You should
test my daughter; she studies medicine.”
The second problem was on ankylosing spondylitis, also in the probability
format. Dr. Average first commented that he himself had performed the HLA-
B27 test (unlike the mammography test). Then he began to draw and calculate
on his sheet of paper and remarked that the prevalence of 5% would be irrele-
vant. With some hesitation and annoyance, he estimated the probability of
ankylosing spondylitis after a positive test to be 0.46%, by multiplying the sensi-
tivity (92%) by the prevalence (5%). Apart from a calculation error by factor 10,
this is a common strategy among laypeople (Gigerenzer & Hoffrage, 1995).
The third problem was to diagnose colorectal cancer from a positive hemoc-
cult test. The information was presented in natural frequencies. Dr. Average re-
marked, “But that’s so easy,” and calculated that 15 out of 315 people with a
positive test would have colorectal cancer. This was the Bayesian answer. Unlike
in the first two diagnostic inferences, he now seemed to realize that he had found
the correct solution. His nervousness subsided.
The phenylketonuria problem in natural frequencies came last. Dr. Average
calculated that 10 out of 60 newborns with a positive Guthrie test have phenyl-
ketonuria, which again was the Bayesian answer. He said he had never advised
parents on how to interpret a positive Guthrie test, whereas he had advised
people on how to interpret a positive hemoccult test.
During the following interview, Dr. Average discussed his strategies for esti-
mating the predictive values of the tests with the interviewer, asked her to calcu-
late the estimate for the mammography problem for him, and concluded, “That
was fun.” Note that this physician’s performance was independent of whether he
had experience with the specific test or not. What made the difference was
whether the problem information was communicated in natural frequencies or
probabilities. We now report the results aggregated across all physicians.
Forty-Eight Physicians
Each of the 48 physicians made four diagnostic inferences. Thus, we have 48
estimates for each problem, and 24 estimates for each format of each problem.
To classify a strategy as Bayesian, we used the same criteria as in the previous
study. Figure 2 shows that for each diagnostic problem, the physicians reasoned
the Bayesian way more often when the information was communicated in natu-
ral frequencies than in probabilities. The effect varied between problems, but
even in the problem showing the weakest effect (phenylketonuria), the propor-
tion of Bayesian answers was twice as large. For the two cancer problems, natu-
ral frequencies increased Bayesian inferences by more than a factor of five as
compared to probabilities. Across all problems, the physicians gave the Bayesian
answer with probabilities in only 10% of the cases; with natural frequencies this
value increased to 46%.
With probabilities, physicians spent an average of 25% more time solving the
diagnostic problems than with natural frequencies. Moreover, physicians com-
mented that they were nervous, tense, and uncertain more often when working
with probabilities than with natural frequencies. They also stated that they were
less skeptical of the relevance of statistical information when it was in natural
frequencies. Physicians were conscious of their better and faster performance
with natural frequencies, as illustrated by comments such as “Now it’s different.
Figure 2. Physicians’ percentage of Bayesian inferences in the four diagnostic tasks,

broken down according to whether the information was presented in probabilities
or natural frequencies (in the standard menu only).
It’s quite easy to imagine. There is a frequency; that’s more visual” and “A first
grader could do this!”
Innumeracy
We asked the physicians how often they took statistical information into ac-
count when they interpreted the results of diagnostic tests. Twenty-six answered
“very seldom or never,” 15 answered “once in a while,” 5 said “frequently,” and
none answered “always.” Their comments suggested two reasons why physicians
used statistical information rather infrequently: the physician’s innumeracy and
the patient’s uniqueness. Several physicians perceived themselves as mathemati-
cally illiterate or suffering from a cognitive disease known as “innumeracy”
(Paulos, 1988). Six physicians explicitly remarked on their inability to deal with
numbers, stating, for instance, “But this is mathematics. I can’t do that. I’m too
stupid for this.” With natural frequencies, however, these same physicians spon-
taneously reasoned statistically (i.e., in accordance with Bayes’s rule) as often as
their peers who did not complain of innumeracy.
Innumeracy and individual uniqueness were also the reasons why three phy-
sicians refused to complete our questionnaire. A 60-year-old high-ranking physi-
cian in a government agency wanted to give up on the first problem: “I simply
can’t do that. Mathematics is not my forte.” When the interviewer encouraged
her to try again, she tried, failed again, cursed loudly, and gave up. A second
physician said: “I can’t do much with numbers. I am an intuitive being. I treat
my patients in a holistic manner and don’t use statistics.” Finally, a university
professor—an ears, nose, and throat specialist—seemed agitated and affronted
by the test and refused to give numerical estimates. “This is not the way to treat
patients. I throw all these journals [with statistical information] away immedi-
ately. One can’t make a diagnosis on such a basis. Statistical information is one
big lie.”
This last reaction reminds us of the great physiologist and arch-determinist
Claude Bernard, who ridiculed the use of statistical information in medical diag-
nosis and therapy:
A great surgeon performs operations for stone by a single method; later he
makes a statistical summary of deaths and recoveries, and he concludes from
these statistics that the mortality law for this operation is two out of five.
Well, I say that this ratio means literally nothing scientifically and gives us no
certainty in performing the next operation. (Bernard, 1865/1957, p. 137)
However, unlike Bernard, who contrasted statistics with science and its goal to
discover the deterministic laws that rule all individual cases, physicians like those
who refused to fill out our questionnaire contrast statistics not with science, but
with their own intuition and experience, which are centered on the individual
patient.
Comparing Medical Students and Physicians

Presenting the information in Bayesian inference tasks in natural frequencies
rather than in probabilities fosters insight in laypeople, advanced medical stu-
dents, and experienced physicians. This is the main result of the three studies.
The four diagnostic tasks for the medical students and the physicians were iden-
tical; therefore, we can directly compare their performance, at least for the stand-
ard menu. The medical students reasoned the Bayesian way more often than the
physicians: The difference was 8 percentage points for the probabilities and
9 percentage points for natural frequencies. The beneficial effect of natural fre-
quencies (as compared to probabilities) was approximately the same: 39 percent-
age points for the students and 36 percentage points for the physicians.
Non-Bayesian Strategies
What strategies did the students and the physicians use when they were not
reasoning according to Bayes’s rule? From their notes, numerical estimates, and
interviews, we were able to identify their strategies in 83% of the cases, using the
same criteria as in the identification of Bayesian reasoning. Table 1 lists the ma-
jor strategies, each of which was also identified for laypeople (Gigerenzer &
Hoffrage, 1995, Table 3). One important result is that strategy use was contin-
gent on the menu in which the information was displayed.
For the short menu, the most prevalent non-Bayesian strategy was joint occur-
rence, that is, to use the probability or absolute frequency of disease and positive
test. For the standard menu, a strong effect of the information format occurred.
When information was communicated in probabilities, the two most frequent
strategies relied on the sensitivity of the test and ignored the prevalence of the
disease. In 14 (18) cases, the students (physicians) simply mistook the sensitivity
for the predictive value—a well-known confusion in reasoning with probabilities
in medical, legal, and experimental contexts (e.g., Dawes, 1988; Gigerenzer,
1996). In 10 (20) cases, the students (physicians) subtracted the false positive
rate from the sensitivity, a strategy known as This strategy has been discussed
as the correct strategy for estimating the covariation between two dichotomous
variables, such as disease and symptom (McKenzie, 1994). has also been pro-
posed as a measure of evidential support (Schum, 1994) and as a model of how
people assess causal strength (Cheng & Novick, 1992). A shortcut of is the
false alarm complement, which was used in 15 of the probability versions. This
strategy does not subtract the false alarm rate from the sensitivity (which for
most diagnostic tests is close to 100%), but from 100%.
With natural frequencies, however, none of these three strategies played a
major role. The two most frequent non-Bayesian strategies ignored the sensitiv-
ity of the test and focused exclusively on one of the two base rates. In 27 cases
(12 for the students, 15 for the physicians), the diagnostic inferences were based
only on the prevalence of the disease, and in 12 cases (3 and 9) only on the base
rate of a positive test.
Thus, natural frequencies not only improved Bayesian inferences, but also
encouraged non-Bayesian strategies that rely on the base rates, and discouraged
strategies that rely solely on the sensitivity and the false positive rate. In medical
diagnostic tasks, the former [p(H) and p(D)] usually yield lower estimates than
the latter and and will, thus,
be closer to the Bayesian estimate. This is one factor that explains why, with nat-
ural frequencies, non-Bayesian strategies resulted in estimates that were closer to
the Bayesian answer than with probabilities: an average absolute discrepancy of
20 and 42 percentage points, respectively, for medical students, and 29 and 51
for physicians.
The dependency of strategies on menus and formats is one explanation for
the frequent observation that people use multiple strategies (Gigerenzer &
Hoffrage, 1995; Gigerenzer & Richter, 1990). Furthermore, probability formats
seem to generate a high inconsistency of strategy use. For instance, only 38% of
the physicians used the same strategy to solve both problems in the probability
format, whereas with natural frequencies this number increased to 70%.
Age and Statistical Education

Of all the characteristics known about the physicians, such as gender and special-
ization, only one was correlated with statistical reasoning: age. Across the two
formats, the younger physicians (aged 40 and under) reasoned the Bayesian way
in 35% of the cases, the older ones only in 21%. A similar age effect was re-
ported in a study in 1981 (Berwick et al., 1981). The physicians in our study
were aware of this difference between young and old, as illustrated by the one
physician’s comment, “You should test my daughter; she studies medicine.” In-
deed, the percentage of Bayesian inferences obtained from medical students was
37% (for the standard menu and across both formats), similar to that of the
younger physicians.
Can this age effect be attributed to a shift in university training? We asked
the participants after the experiment whether they had heard of Bayes’s rule.
Only 10% of the physicians (all among the youngest) had, compared to 40%
of the medical students. However, knowledge of Bayes’s rule turned out to be of
little assistance. The medical students who stated that they had never heard of
Bayes’s rule reasoned the Bayesian way in 47% of the cases, compared to 49%
of those who had (across all four versions). Can we at least find an effect of edu-
cation when the tasks were in probabilities and in the standard menu, which is
the format typically used to train medical students? No. The corresponding val-
ues were 17% and 19%. Some students wrote that the problem could be solved
by Bayes’s rule, but that they had forgotten it. Thus, there appears to be a shift
in education: Medical students are more likely to learn Bayes’s rule, but this
shift does not transfer into more Bayesian reasoning. We suggest that training
students in frequency representation may help to slow down the decay of what
students have learned (see below).
AIDS Counseling for Low-Risk Clients

An important application of Bayesian reasoning is in AIDS counseling for low-
risk clients. In Germany, for instance, the prevalence of HIV in heterosexual
men who are in no known risk group is approximately 0.01%, the specificity of
the HIV test (one blood sample; repeated ELISA and Western blot) approxi-
mately 99.99%, and the sensitivity approximately 99.9% (specific estimates
vary). If a counselor communicates these numbers, the client will most likely not
be able to work out his chances of having the virus if he tests positive. Most seem
to assume that a positive test means that one has the virus with practical cer-
tainty. For instance, in the early days of blood screening in Florida, 22 blood
donors (who are typically low-risk persons) were told they were HIV positive;
seven committed suicide (Stine, 1996).
How do AIDS counselors explain to their clients what a positive test means?
We studied AIDS counselors in German public health centers (Gigerenzer, Hof-
frage, & Ebert, 1998). One of us visited 20 centers as a client to take 20 HIV tests
and make use of the mandatory pre-test counseling. The counselor was asked the
relevant questions concerning the prevalence, sensitivity, specificity, and what the
chances are that the client actually has the virus if he tests positive. Not one coun-
selor communicated the risks to the client in natural frequencies. Instead, they
used probabilities and percentages, and in the majority of the counseling sessions
the information was either internally inconsistent or incorrect. For instance, one
counselor estimated the base rate at approximately 0.1% and the sensitivity and
specificity at 99.9%, and concluded that the client’s chance of having the virus if
he tests positive is also 99.9%. In fact, 15 out of 20 counselors told their low-risk
client that it is 99.9% or 100% certain that he has HIV if he tests positive.
If a counselor, however, communicates the information specified above in
natural frequencies, insight is more likely:
Think of 10,000 heterosexual men like yourself being tested. We expect that
one has the virus, and this one will, with practical certainty, test positive. Of
the remaining uninfected men, one will also test positive. Thus, we expect
that of every two men in this risk group who test positive, only one has HIV.
This is the situation you would be in if you tested positive; your chance of
having the virus would be roughly 1 to 1, or 50%.
With natural frequencies, the client can understand that there is no reason to
contemplate suicide if he tests positive. In real-world contexts such as AIDS
counseling, the difference between natural frequencies and probabilities can
make the difference between hope and despair.
Conclusion
Statistical reasoning is an indispensable part of a citizen’s education, similar to
the ability to read and write. The last few decades have witnessed much debate
on whether minds are equipped with the right or wrong rules for making judg-
ments under conditions of uncertainty. However, the ability to draw inferences
from statistical information depends not only on cognitive strategies, but also on
the format in which the numerical information is communicated. External rep-
resentation can “perform” part of the reasoning process. In our studies, natural
frequencies improved medical experts’ Bayesian reasoning in every 1 of 4 diag-
nostic problems, and laypeople’s reasoning in every 1 of 15 problems.
The relevance of natural frequencies is not limited to medical diagnosis. As
Koehler’s work (e.g., 1996b) demonstrates, the difficulty in drawing inferences
from probabilities holds for DNA experts, judges, and prosecutors as well. Never-
theless, in criminal and paternity cases, the general practice in court is to present
information in terms of probabilities or likelihood ratios (i.e., ratios of conditional
probabilities), with the consequence that jurors, judges, and sometimes the ex-
perts themselves are confused and misinterpret the evidence. The O. J. Simpson
defense team took notice of the psychological research on information representa-
tion and successfully blocked the admission of a DNA expert’s report in which the
probative value of blood matches was presented in probabilities and likelihood
ratios. The prosecution finally presented the evidence in terms of frequencies

(Koehler, 1996b). In a recent study, Hoffrage et al. (2000) demonstrated that both
law students and jurists profit from natural frequencies: The percentage of Bay-
esian inferences rose from 3% to 45% when the format of the information con-
cerning DNA fingerprinting changed from probabilities to natural frequencies.
Possibly even more important, the probability format led to a higher conviction
rate than natural frequencies (for details, see also Hertwig & Hoffrage, 2002).
Textbooks and curricula can promote statistical thinking by (a) explaining
Bayesian inference in terms of natural frequencies, and (b) teaching people how
to translate probabilities and percentages into natural frequencies. Using visual
aids, such as tree diagrams and frequency grids, Sedlmeier (1997; Sedlmeier &
Gigerenzer, 2001) designed a computerized tutorial that teaches people how to
translate probabilities into natural frequencies. Compared with a traditional tu-
torial that teaches people how to insert probabilities into Bayes’s rule (Equation
1), the immediate effect of the frequency training was approximately twice as
high. But how quickly did students forget what they had learned? (As one of the
five physicians who stated that they had heard of Bayes’s rule remarked, “We
learned such a formula. I have forgotten it.”) In a retest five weeks after the train-
ing, the median performance of the group that had received the traditional tu-
torial decreased (a median of 15% Bayesian responses), whereas the performance
of the group that had received training in how to construct frequency represen-
tations remained stable at its high level (a median of 90% Bayesian responses).
Kurzenhäuser and Hoffrage (2002) implemented both approaches in a tradi-
tional classroom tutorial with a blackboard and an overhead projector. The tu-
torial was designed for medical students, with examples taken from human
genetics. The two approaches were evaluated two months later by testing stu-
dents’ ability to correctly solve a Bayesian inference task with information repre-
sented as probabilities. While both approaches improved performance compared
to pre-test results, almost three times as many students were able to profit from
the representation training as opposed to the rule training. Teaching frequency
representations is applicable to different instructional settings and contents. It
has proven to be an effective method of teaching Bayesian reasoning that fosters
insight and reduces forgetting.
One physician wrote in a letter that
(…) participating in that study and learning its results is of great importance
to me professionally. I’m sure that from now on I will represent medical data
to myself in terms of frequencies rather than just glancing over them or being
content with some vague idea.
The results of our studies illustrate that basic research on reasoning can produce
simple and powerful methods of communicating risks that can be applied in
various public domains.
Authors’ Note
We are grateful to Maria Zumbeel who conducted the interviews with the physi-
cians. We also thank the Berlin Poison Center, Mathias Licha, Julia Nitschke,
and Anke Reimann for their assistance in collecting the data, Valerie M. Chase,
Robyn Dawes, Robert M. Hamm, Anita Todd, Angelika Weber, and Jürgen
Windeler for their assistance and comments on earlier drafts, and the Deutsche
Forschungsgemeinschaft (Ho 1847/1 and SFB 504) for financial support.
References
Abernathy, C. M., & Hamm, R. M. (1995). Surgical intuition. What it is and how to get it. Phila-
delphia, PA: Hanley & Belfus.
Bernard, C. (1957). An introduction to the study of experimental medicine (H. C. Greene, Trans.).
New York: Dover. (Original work published 1865)
Berwick, D, M., Fineberg, H. V., & Weinstein, M. C. (1981). When doctors meet numbers.
American Journal of Medicine, 71, 991–998.
Casscells, W., Schoenberger, A., & Grayboys, T. (1978). Interpretation by physicians of clinical
laboratory results. New England Journal of Medicine, 299,999–1000.
Cheng, P. W., & Novick, L. R. (1992). Covariation in natural causal induction. Psychological Re-
view 99, 365–382.
Christensen-Szalanski, J. J. J., & Beach, L. R. (1982). Experience and the base-rate fallacy. Organi-
zational Behavior and Human Performance, 29, 270–278.
Christensen-Szalanski, J. J. J., & Bushyhead, J. B. (1981). Physicians’ use of probabilistic informa-
tion in a real clinical setting. Journal of Experimental Psychology: Human Perception and Perfor-
mance, 7, 928–935.
Cosmides, L., & Tooby, J. (1996). Are humans good intuitive statisticians after all? Rethinking
some conclusions from the literature on judgment under uncertainty. Cognition, 58,1–73.
Daston, L. J. (1988). Classical probability in the Enlightenment. Princeton, NJ: Princeton Univer-
sity Press.
Dawes, R. M. (1988). Rational choice in an uncertain world. San Diego, CA: Harcourt, Brace,
Jovanovich.
Dowie, J., & Elstein, A. (1988). Professional judgment: A reader in clinical decision making. Cam-
bridge, UK: Cambridge University Press.
Eddy, D. M. (1982). Probabilistic reasoning in clinical medicine: Problems and opportunities. In
D. Kahneman, P. Slovic, & A. Tversky (Eds.), Judgment under uncertainty: Heuristics and biases
(pp. 249–267). Cambridge, UK: Cambridge University Press.
Gallistel, C. R., & Gelman, R. (1992). Preverbal and verbal counting and computation. Cognition,
44, 43–74.
Gigerenzer, G. (1993). The superego, the ego, and the id in statistical reasoning. In G. Keren &
C. Lewis (Eds.), A handbook for data analysis in the behavioral sciences: Methodological issues
(pp. 313–339). Hillsdale, NJ: Erlbaum.
Gigerenzer, G. (1996). The psychology of good judgment: Frequency formats and simple algo-
rithms. Journal of Medical Decision Making, 16, 273–280.
Gigerenzer, G., & Hoffrage, U. (1995). How to improve Bayesian reasoning without instruction:
Frequency formats. Psychological Review, 102, 684–704.
Gigerenzer, G., & Hoffrage, U. (1999). Overcoming difficulties in Bayesian reasoning: A reply to
Lewis & Keren and Mellers & McGraw. Psychological Review, 104, 425–430.
Gigerenzer, G., Hoffrage, U., & Ebert, A. (1998). AIDS counselling for low-risk clients. AIDS
Care, 10, 197–211.
Gigerenzer, G., & Richter, H. R. (1990). Context effects and their interaction with development:
Area judgments. Cognitive Development, 5, 235–264.
Gigerenzer, G., Swijtink, Z., Porter, T., Daston, L., Beatty, J., & Krüger, L. (1989). The empire of
chance: How probability changed science and everyday life. Cambridge, UK: Cambridge Univer-
sity Press.
Hertwig, R., & Hoffrage, U. (2002). Technology needs psychology: How natural frequencies fos-
ter insight in medical and legal experts. In P. Sedlmeier & T. Betsch (Eds.), Etc.: Frequency pro-
cessing and cognition (pp, 285–302). New York: Oxford University Press.
Hoffrage, U., & Gigerenzer, G. (1998). Using natural frequencies to improve diagnostic infer-
ences. Academic Medicine, 73, 538–540.
Hoffrage, U., Lindsey, S., Hertwig, R., & Gigerenzer, G. (2000). Communicating statistical infor-
mation. Science, 290, 2261–2262.
Jonides, J., & Jones, C. M. (1992). Direct coding for frequency of occurrence. Journal of Experi-
mental Psychology: Learning, Memory, and Cognition, 18, 368–378.
Kleiter, G. D. (1994). Natural sampling: Rationality without base rates. In G. H. Fischer &
D. Laming (Eds.), Contributions to mathematical psychology, psychometrics, and methodology
(pp. 375–388). New York: Springer.
Koehler, J. J. (1996a). The base rate fallacy reconsidered: Descriptive, normative and methodolog-
ical challenges. Behavioral and Brain Sciences, 19,1–53.
Koehler, J. J, (1996b). On conveying the probative value of DNA evidence: Frequencies, like-
lihood ratios, and error rates. University of Colorado Law Review, 67, 859–886.
Kurzenhäuser, S., & Hoffrage, U. (2002). Teaching Bayesian reasoning: An evaluation of a class-
room tutorial for medical students. Medical Teacher, 24, 531–536.
Mandel, J. S., Bond, J. H., Church, T. R., Snover, D. C., Bradley, G. M., Schuman, L. M., &
Ederer, F. (1993). Reducing mortality from colorectal cancer by screening for fecal occult
blood. New England Journal of Medicine, 328, 1365–1371.
Marshall, E. (1993). Search for a killer: Focus shifts from fat to hormones. Science, 259, 618–621.
McKenzie, C. R. (1994). The accuracy of intuitive judgment strategies: Covariation assessment
and Bayesian inference. Cognitive Psychology, 26, 209–239.
Paulos, J. A. (1988). Innumeracy: Mathematical illiteracy and its consequences. New York: Vintage
Books.
Politser, P. E. (1984). Explanations of statistical concepts: Can they penetrate the haze of Bayes?
Methods of Information in Medicine, 23, 99–108.
Real, L. A. (1991). Animal choice behavior and the evolution of cognitive architecture. Science,
253. 980–986.
Schum, D. A. (1994). The evidential foundations of probabilistic reasoning. New York: Wiley.
Sedlmeier, P. (1997). BasicBayes: A tutor system for simple Bayesian inference. Behavior Research
Methods, Instruments, & Computers, 29,328–336.
Sedlmeier, P., & Gigerenzer, G. (2001). Teaching Bayesian reasoning in less than two hours. Jour-
nal of Experimental Psychology: General, 130, 380–400.
Sedlmeier, P., Hertwig, R., & Gigerenzer, G. (1998). Are judgments of the positional frequencies
of letters systematically biased due to availability? Journal of Experimental Psychology: Learning,
Memory, and Cognition, 24,754–770.
Stigler, S. M. (1983). Who discovered Bayes’ theorem? American Statistician, 37, 296–325.
Stine, G. J. (1996). Acquired immune deficiency syndrome. Biological, medical, social and legal issues.
Englewood Cliffs, NJ: Prentice Hall.
Tversky, A., & Kahneman, D. (1982). Evidential impact of base rates. In D. Kahneman, P. Slovic,
& A. Tversky (Eds.), Judgment under uncertainty: Heuristics and biases (pp. 153–160). Cam-
bridge, UK: Cambridge University Press.
Windeler, J., & Köbberling, J. (1986). Empirische Untersuchung zur Einschätzung diagnostischer
Verfahren am Beispiel des Haemoccult-Tests [An empirical study of the judgments about diag-
nostic procedures using the example of the Hemoccult test]. Klinische Wochenschrift, 64,
1106–1112.
Appendix: The Four Diagnostic Problems

We present the full text for the four versions of the colorectal cancer problem.
For the other three diagnostic tasks we present only the natural frequency, stand-
ard menu version, from which the numerical information for the other three
versions can be derived.
Problem 1: Colorectal Cancer

To diagnose colorectal cancer, the hemoccult test—among others—is conducted
to detect occult blood in the stool. This test is performed not only from a certain
age onward, but also in a routine screening for early detection of colorectal can-
cer. Imagine conducting a screening using the hemoccult test in a certain region.
For symptom-free people over 50 years old who participate in screening using
the hemoccult test, the following information is available for this region:
Probabilities—Standard Menu
The probability that one of these people has colorectal cancer is 0.3%. If one of
these people has colorectal cancer, the probability is 50% that he or she will have
a positive hemoccult test. If one of these people does not have colorectal cancer,
the probability is 3% that he or she will still have a positive hemoccult test.
Imagine a person (aged over 50, no symptoms) who has a positive hemoccult
test in your screening. What is the probability that this person actually has colo-
rectal cancer? %
Probabilities—Short Menu
The probability that one of these people has colorectal cancer and a positive
hemoccult test is 0.15%. The probability that one of these people has a positive
hemoccult test is 3.15%. Imagine a person ...
Natural Frequencies—Standard Menu

Thirty out of every 10,000 people have colorectal cancer. Of these 30 people
with colorectal cancer, 15 will have a positive hemoccult test. Of the remaining
9,970 people without colorectal cancer, 300 will still have a positive hemoccult
test. Imagine a sample of people (aged over 50, no symptoms) who have positive
hemoccult tests in your screening. How many of these people actually do have
colorectal cancer? of
Natural Frequencies—Short Menu

Fifteen out of every 10,000 people have colorectal cancer and a positive hemoc-
cult test. Three hundred and fifteen out of every 10,000 people have a positive
hemoccult test. Imagine a sample …
Problem 2: Breast Cancer

To facilitate early detection of breast cancer, from a certain age onward, women
are encouraged to participate in routine screening at regular intervals, even if
they have no obvious symptoms. Imagine conducting such a breast cancer
screening using mammography in a certain geographical region. For symptom-
free women aged 40 to 50 who participate in screening using mammography,
the following information is available for this region.
Ten out of every 1,000 women have breast cancer. Of these 10 women with
breast cancer, 8 will have a positive mammogram. Of the remaining 990 women
without breast cancer, 99 will still have a positive mammogram. Imagine a sam-
ple of women (aged 40–50, no symptoms) who have positive mammograms in
your breast cancer screening. How many of these women actually do have breast
cancer? of
Problem 3: Ankylosing Spondylitis

To diagnose ankylosing spondylitis (Bekhterev’s disease), lymphocyte classifica-
tion—among other tests—is conducted: For ankylosing spondylitis patients the
HL-Antigen-B27 (HLA-B27) is frequently present, whereas healthy people have
it comparatively seldom. Of great importance is the presence of HLA-B27 for
people with nonspecific rheumatic symptoms, in which case a diagnosis of anky-
losing spondylitis will be considered. In this case, lymphocyte classification will
be used for differential diagnosis. Imagine conducting an HLA-B27 screening
using a lymphatic classification in a certain region. For people with nonspecific
rheumatic symptoms who participate in such a screening, the following infor-
mation is available for this region.
Fifty out of every 1,000 people have ankylosing spondylitis. Of these 50
people with ankylosing spondylitis, 46 will have HLA-B27. Of the remaining
950 people without ankylosing spondylitis, 76 will still have HLA-B27. Imagine
a sample of people (with nonspecific rheumatic symptoms) who have HLA-B27
in your screening. How many of these people do actually have ankylosing
spondylitis? of
Problem 4: Phenylketonuria
On the fifth day after birth, blood will be taken from all newborns in a routine
screening to test for phenylketonuria (Guthrie test). Imagine working at a
women’s clinic. The following information is available for newborns in the region
in which the clinic is situated.
Ten out of every 100,000 newborns have phenylketonuria. Of these 10 new-
borns with phenylketonuria, all 10 will have a positive Guthrie test. Of the re-
maining 99,990 newborns without phenylketonuria, 50 will still have a positive
Guthrie test. Imagine a sample of newborns being delivered at your clinic who
have a positive Guthrie test. How many of these newborns do actually have phe-
nylketonuria? of
Chapter 14
Statistical Scientific Evidence and Expertise
in the Courtroom
Samuel Lindsey
Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany
lindsey@iuscrim.mpg.de
No one will deny that the law should in some way effectively use expert
knowledge wherever it will aid in settling disputes. The only question is as to
how it can do so best. (Learned Hand, 1901, p. 40)
Expert knowledge now not only aids the law, but is a necessary and crucial part
of it. Advances of science and technology create cases in which the verdicts, and
even the facts themselves, depend on the knowledge of experts. The law then
balances on a collaboration of experts, scientists, and judges. Improving collabo-
ration, to ensure it suits the law and the society it serves is, thus, a growing con-
cern, and this chapter explores one way to make such improvements.
Whereas law relies mainly on words from natural language, science relies, in
addition, on statistics from empirical measurement. The use of statistics has a
controversial history in law, but they are often an indispensable part of scientific
evidence. Unfortunately, they are also easily and often confused. This chapter
addresses the necessary interdependence of science and law using forensic DNA
analysis as one of its most prominent examples. It begins with a discussion of the
judicial treatment of scientific evidence, followed by an elaboration of some of
the complicated aspects of that treatment. It then reviews novel empirical re-
search bearing on some of the problems judges and jurors may have with the sta-
tistical complexities of scientific evidence in general, using forensic DNA analy-
sis as a particular example.
Necessity of Collaboration
Since scientific, technical, or other specialized knowledge is often required for un-
derstanding evidence, or for determining the facts of a case, the Anglo-American
and Continental legal traditions both codify the needed collaboration between
jurists and other experts (US Federal Rules of Evidence, 702 and 706, in the
USA, StrafProzessOrdnung, §82 and §83, in Germany). Forensic DNA analysis,
for example, requires forensic experts to determine if the DNA profile of an evi-
dentiary sample matches the DNA profile of a suspected source, and the result
269
270 Samuel Lindsey
cannot be interpreted without a sophisticated statistical calculation of how fre-

quent certain genotypic features appear in a specified population. Judges them-
selves typically lack the scientific training required to evaluate these results, and
the forensic use of DNA testing illustrates how profound the interdependence of
science and law can be. The evidence provided by the expert can mean the differ-
ence between conviction and acquittal, or even life and death. Forensic DNA
analysis is just one example of the law requiring experts. Medical malpractice,
product liability, patent, and antitrust cases can also require experts. Even statu-
tory law can depend on the knowledge of experts, in formulating laws of citizen-
ship, for example, or even civil rights, in the light of new biotechnologies.
The consequences of legal and scientific collaboration confer the responsibil-
ity of ensuring that any expert analysis is accurate and appropriate. The expertise
emerging from evolving biotechnology demands all the more caution, since his-
torical embarrassments from phrenology to physiology hold harsh lessons for the
unwary (Friedman, 1910; Gould, 1983; Herschel, 1887; Waid & Orne, 1982).
Indeed, the US Supreme Court has given US judges an explicit responsibility to
make sure that expert evidence is scientifically sound. In a wake of criticism over
“junk science” in the courtroom leading to an endless “battle of experts,” judges
must now determine at the outset whether a purported expert will provide genu-
ine scientific knowledge (William Daubert et al. v. Merrell Dow Pharmaceutical,
Inc., 1993; Huber, 1991). But, as Justice Breyer acknowledged, “judges are not
scientists and do not have the scientific training that can facilitate the making of
such decisions” (General Electric Co. v. Joiner, 1997).
Nevertheless, the requirements of Daubert supersede earlier standards for ad-
mitting expert scientific knowledge as evidence. In Frye v. United States (1923),
the Court had ruled that expert knowledge was scientific if it had gained “gen-
eral acceptance in the particular field in which it belongs” (p. 1014), placing the
responsibility for its assessment with those most qualified in the scientific com-
munity. Trial judges needed little or no scientific expertise for the Frye test, al-
though determining what qualifies as a field, and general acceptance within it, is
not easy. This “general acceptance” standard has scientific experts, rather than
legal experts, determining the admissibility of evidence, and it was retained as
only one of four considerations of scientific evidence in Daubert:
(1) Ordinarily, a key question to be answered in determining whether a theory
or technique is scientific knowledge that will assist the trier of fact will be
whether it can be (and has been) tested. (…)
(2) Another pertinent consideration is whether the theory or technique has been
subjected to peer review and publication. (…)
(3) Additionally, in the case of a particular scientific technique, the court ordi-
narily should consider the known or potential rate of error, and the existence
and maintenance of standards controlling the techniques operation.
(4) Finally, “general acceptance” may still have a bearing on the inquiry.
These criteria require judges to have a more active duty as evidentiary gatekeepers,
although again, because judges are not scientists, performing that duty is not easy.
Dissenting Chief Justice Rehnquist noted in Daubert that:
Statistical Scientific Evidence and Expertise in the Courtroom 271
[The materials in this case] deal with definitions of scientific knowledge, sci-
entific method, scientific validity, and peer review—in short, matters far
afield from the expertise of judges. (…) I do not doubt that Rule 702 con-
fides to the judge some gatekeeping responsibility in deciding questions of
the admissibility of proffered expert testimony. But I do not think it imposes
on them either the obligation or the authority to become amateur scientists
in order to perform that role. (p. 2800)
Unless judges become experts themselves, in a vast variety of sciences, it is diffi-
cult to imagine how they will evaluate scientific claims.
Problem of Collaboration
This difficulty is compounded because scientists may disagree. Taking again the
example of forensic DNA analysis, scientists have disagreed about how to com-
pute various statistics required to interpret the results (National Research Coun-
cil [NRC], 1992,1997). It would be very unlikely for a suspect to share a DNA
profile with some incriminating evidence by coincidence. But just how unlikely
this is requires an estimate of how frequently specific combinations of genotypic
features (i.e., the DNA profile) occur in a specific population based upon the
modeling and sampling assumptions of population genetics. The relevant popu-
lation may be a certain racial group or, instead, it may be an artificial probability
space created by multiplying together the frequencies with which the individual
genetic features of the profile appear in a population.1
Scientific disagreement concerning the calculation of these estimates has
twice been the subject of an evaluation by the National Academy of Sciences of
the forensic application of DNA analyses (NRC, 1992, 1997). These evaluations
disagree on various points, and disagreement here, among preeminent experts,
leaves little solace to a judge reckoning with genetics and statistics. Moreover,
certain technical questions are explicitly left to the courts, such as which popula-
tion should be used for estimating a profile frequency when the racial group of a
perpetrator is unknown. Any computation of a frequency provides only an esti-
mate of how likely a DNA match would be by chance alone. Just because a
DNA match is not likely to occur by chance alone does not mean a suspect is
guilty, however, so the significance and probative value of that estimate is left to
the court.
Unfortunately, there is widespread confusion—by judges, jurors, and even
DNA experts themselves—over what this estimate means. The chance of a co-
incidental match is misinterpreted, for example, as the likelihood that an ac-
cused person is innocent. One DNA expert in the US affirmed in court that
“there would be a 1 in 5 billion chance that anyone else could have committed
1
This probability space can easily exceed the human population. For example, the estimated
frequency of President Bill Clinton’s DNA profile was 1 in 7.87 trillion Caucasians (§ I.B.1: Phys-
ical Evidence. Final Report of the Office of the Independent Counsel to the United States House
of Representatives). But, even this infinitesimal number is consistent with a chance of 1 in 1,430
that at least one person out of the 5.5 billion people on earth shares this DNA profile.
272 Samuel Lindsey
the crime” (State v. Bethune, 1991, p. 2327), and in Germany the President of
the German Society for Forensic Medicine (Deutsche Gesellschaft für Rechts-
medizin) claimed that a DNA match identifies the perpetrator with 100% cer-
tainty (“eine hundertprozentige Sicherheit, ihn zu identifizieren”)2 (see Koehler,
1993, for more extensive examples).
The statistic is also misinterpreted as the likelihood that a particular person
is, or is not, the source of the incriminating evidence. A leading German expert,
for instance, employs a likelihood ratio where it is certain that a matching defen-
dant is the source, that is, the trace came from the suspect (= 1, in the case of
matching characteristics; = 0, in the case of no matching characteristics) (Die
Spur stammt von Tatverdächtigen [= 1, falls Übereinstimmung der Merkmale; = 0,
falls keine Übereinstimmung]). On the other hand, American DNA experts have
often misinterpreted the chance of a coincidental match as the probability that
the DNA evidence could have come from anyone else other than the defendant,
leading judges to misunderstand this number similarly in their opinions as “the
probability of someone else leaving” the genetic trace (e.g., Wilson v. State,
1998).
Misinterpretations aside, the probability of finding a DNA match by chance
alone is not the only statistic bearing on a DNA analysis nor is it necessarily the
most relevant, A conditional probability for finding another person in the pop-
ulation with a particular DNA profile, given that there is at least one person
with that profile already, might be computed instead (Weir, 1999). Even so, any
statistic that reflects only the rarity of the DNA profile can be misleading be-
cause it ignores the much more likely probability of a laboratory error.
Laboratory errors do occur despite widespread expert testimony that false
positive errors are impossible (Koehler, 1993, 1996; Thompson, 1995).3 In fact,
laboratory proficiency tests reveal that the chance of a laboratory error is typi-
cally several orders of magnitude greater than the chance of a coincidental match
(Koehler, Chia, & Lindsey, 1995; NRC, 1997). The chance of a laboratory error
thus eclipses the chance of a coincidental match because the probability of a lab-
oratory error is so much larger.
A judge or juror may seem helpless in the face of such uncertainty and confu-
sion. Hence, some form of gatekeeping is crucial. But, deferring to experts is not
gatekeeping, especially if it perpetuates the sort of confusions just described,
Daubert’s third criterion requires considering the “known or potential rate of
error” of a scientific technique, and the courts, thus, have an opportunity as well
as an obligation to examine evidence bearing on that consideration.
2
Frankfurter Allgemeine Zeitung, 14 April 1998, No. 86, p. 13.
3
False positive errors misidentify a person as the source of the forensic DNA evidence al-
though that person is, in fact, not the source. But, there can also be false negative errors—failing to
identify a person as the source of the forensic DNA evidence when that person is, indeed, the
source. False positive results may potentially lead to wrongful conviction, whereas false negative re-
sults may lead to wrongful acquittal.
Communicating Statistical Evidence

The type of evidence bearing on that consideration, however, will be statistical
and potentially just as confusing as all the misstatements described above. Con-
sider, for instance, the likelihood ratio, which is often recommended to convey
the significance of a DNA match. A likelihood ratio compares the likelihood of
an event occurring under alternative binary assumptions: For instance, the prob-
ability of a DNA match assuming a suspect is the source of the evidence com-
pared to the probability of a DNA match assuming the defendant is not the
source.4
To take one famous example, in the televised trial of O. J. Simpson, there was
a likelihood ratio computed to assess “the strength of that DNA evidence E by
determining the probabilities of the evidence under the alternative hypotheses
that either: [O.J.Simpson] had contact with the Bundy scene, or [O.J.Simpson]
did not have contact with the Bundy scene” (Weir, 1995). Notice that the
strength of the DNA evidence can vary with the alternative hypotheses chosen
for computing the corresponding likelihood ratios—for it is easy to imagine
someone having contact with a crime scene without being the perpetrator of a
crime. Alternatively, genetic material at a crime scene could come from someone
who has never been there, if the evidence was planted, for example, as the de-
fense in this case had alleged (People v. Simpson, 1995).
The mathematical expression of such likelihood ratios, for any hypothesis H
and any evidence E, is simply
a ratio of the probabilities of finding the evidence E (e.g., DNA match) under the
alternative hypotheses H and (e.g., suspect either is, or is not, the source of the
evidence). In most legal proceedings involving forensic evidence, however, it is
rather the reverse of these conditional probabilities that must ultimately be de-
cided—given the evidence, what is the relative likelihood of the given hypothesis:
Bayes’s theorem bridges the inference from one ratio to the other, adjusting the
probability of the hypothesis for the advent of some piece of evidence. The re-
lative likelihood of the hypotheses, given the evidence, is known as a posterior
likelihood ratio since it is the product of the relative likelihood of the evidence,
given the alternative hypotheses and the assumed likelihood of the hypotheses
before any evidence is considered:
4
Some legal scholars have adopted this comparison as the standard of relevance, the degree to
which the probability of finding the evidence under one hypothesis differs from the probability of
finding that same evidence under another (Lempert, 1977; US Federal Rule of Evidence 401).
274 Samuel Lindsey
In natural language, these likelihood expressions are ungainly and easy to

confuse. Compare the stated relative likelihood of a DNA match assuming a cer-
tain suspect is the source of the evidence—it is one million times more likely that
the evidence would match if the suspect was the source of the evidence than if he was
not—with the stated relative likelihood of the suspect being the source of the ev-
idence assuming there is a DNA match—it is one million times more likely that
the suspect is the source of the evidence than that he is not, given this DNA match.
Such subtle differences of meaning may be difficult to discern when uttered in
court. Moreover, psychological research shows that people often confuse proba-
bilities generally, not recognizing the difference between P(E|H) and P(H|E)
and conflating conditional probabilities with conjunctive ones (see Hoffrage &
Gigerenzer, this volume).
Koehler (1996) studied the psychological impact of stating likelihood ratios
on legal outcomes directly. Mock jurors were asked to estimate the probability
that a defendant in a rape case was the source of the DNA evidence, which was
presented with likelihood-ratio statements such as the ones mentioned above.
The different expressions of the likelihood ratios altered the jurors’ probability
estimates of the defendant being the source of the DNA evidence and made a
difference in how the jurors decided the case. Conviction rates increased from
21% when the evidence was presented only with the frequency of the DNA pro-
file, to 35% and 41% when it was presented with one or the other of the stated
likelihood ratios.
These and other results show that choices about the presentation of statisti-
cal evidence can have dramatic consequences. The same evidence, presented in
different ways, can alter the outcome of a case (Koehler et al., 1995). Psycholog-
ical research over the past decade, however, has shown that certain ways of pre-
senting statistical information can alleviate confusion and improve statistical
reasoning dramatically (Gigerenzer & Hoffrage, 1995; Hoffrage & Gigerenzer,
this volume). A key distinction is between standardized probabilities and raw
frequencies. Statistics standardized into probability ratios obscure the actual
counts on which they are based, whereas laying those counts bare allows for an
intuitive understanding of what the statistics actually represent. Researchers
have documented this effect by comparing how people comprehend the same
statistical information when presented in various probability and frequency for-
mats (Gigerenzer & Hoffrage, 1995).
Statistical statements involving frequencies are mathematically equivalent to
statistical statements involving probabilities, so that the Bayesian bridge of statis-
tical inference spans both. Bayes’s theorem provides formulae to determine the
probability of some hypothesis H (e.g., the suspect is the source of the evidence)
given a certain piece of evidence E (e.g., DNA match) with regard to some spec-
ified prior probability concerning the hypothesis (e.g., the frequency of the
genetic profile in the population or the frequency of error in the laboratory).
But, Bayes’s theorem differs radically in the frequency and probability formats.
Whereas the probability format requires the equation
where conditional probabilities and base rates have to be computed and multi-
plied to find the correct answer, the frequency format requires merely separating
out the people who are potential sources from all the people who match:
Lindsey, Hertwig, and Gigerenzer (in press) investigated the effect of present-
ing the same statistical evidence in both frequency and probability formats by
asking advanced law students and law professionals to evaluate realistic court
case files5 that were closely based on actual rape cases involving DNA evidence.
Each case included the written testimony of an expert (Gutachten) who analyzed
the DNA samples. The expert reported that the base rate of the DNA profile re-
covered from the crime scene was one in a million (0.0001%) and that it
matched the DNA profile of the defendant. The expert also stated that a DNA
analysis is practically certain to find a DNA match if a person actually has a
matching DNA profile (i.e., true positive result, or the analysis’ sensitivity). In
addition, the expert stated that with this particular kind of DNA technology, the
probability of a laboratory error was approximately 1 in 100,000 (0.001%), that
is, approximately 100 of those who do not have the matching DNA profile
could be said to match in the analysis (false positive results). In light of this evi-
dence, the participants were asked to estimate the probability (1) that the sus-
pect in each case actually had the matching DNA profile in question, P(profile),
and (2) that the suspect was actually the source of the evidence, P(source). They
were then asked to render a verdict of guilty or not guilty.
A variation of the false positive error rate, which was based on laboratory pro-
ficiency tests, was also presented in another experimental condition, increasing
the probability of an error to as high as 0.3% (Koehler et al., 1995). This second
expert testimony was identical to the first except for this change in the false posi-
tive error rate. Once again, each participant was asked to answer the same two
numerical questions as before and again to render a verdict. The numerical infor-
mation provided by the expert was presented to each participant in two different
formats. One format stated all the information in probabilities (e.g., 0.1%), and
the other format stated it in frequencies (e.g., 1 out of 1,000). Figure 1 shows ex-
amples of the testimony in each format.
After evaluating one case file in either a frequency or probability format, each
participant was given a second case file with expert testimony in the format dif-
ferent from the first. They then answered the same questions as before. All par-
ticipants were randomly assigned to conditions where the different formats of
expert testimony (frequency or probability), their order (first or second), and the
details of the case were varied systematically and counterbalanced.
5
Criminal trials in Germany proceed in sealed case files (Strafakten) that document all legal
proceedings from the initial charges to the final disposition of the court.
276 Samuel Lindsey
Figure 1. Expert testimony concerning mathematically identical statistical evi-

dence expressed in two different formats.
The results showed that the same evidence had dramatically different effects
on both statistical reasoning and judicial decision making when presented in the
different formats.6 The proportion of guilty verdicts was 50% to 100% greater
in the probability format than in the frequency format, for both the law students
and the professional jurists in every condition. Figure 2 displays their overall ver-
dicts averaged across conditions.
The different formats of the statistical evidence also affected mathematical
reasoning and statistical inference. All participants had to infer the conditional
probabilities of having a DNA profile given a DNA match, and of being the
source of the evidence given a DNA match. As Figure 2 shows, there were far
more correct Bayesian answers in the frequency format than in the probability
format, in line with findings over the last decade. Only one of the students and a
few of the professionals, that is, 0% to 10% respectively, could derive the cor-
rect probabilities in the probability format. In contrast, about 40% to 50% of
the law student sample and 70% to 75% of the jurist sample spontaneously de-
rived the correct probabilities in the frequency format, as shown in Figure 3.
These results were all the more surprising because half the participants reviewed
the evidence expressed in terms of frequencies just before viewing that same evi-
dence expressed in terms of probabilities. The statistics in the two formats were
6
Given the authentic nature of the materials, the participants took the cases seriously. Most
spent approximately two hours and some two and a half hours evaluating the two case files. All re-
sults were replicated using variations in the base rate of the DNA profile (e.g., 0.001 or 0.000001),
paying participants with both a flat fee and an additional bonus for each correct Bayesian response.
These manipulations did not alter any of the results reported here.
Figure 2. Proportion of “guilty verdicts.”
Figure 3. Proportion of correct Bayesian inferences.

278 Samuel Lindsey
mathematically identical; they were not psychologically identical, however, and

not without legal consequence.
The psychological effect of presenting statistical evidence in one way rather
than another is not limited to forensic DNA analysis. Similar considerations
concerning the presentation of statistical evidence apply whenever courts must
examine such evidence. The quantitative nature of science provides a common
currency in which scientists can gather and analyze their evidence, but their evi-
dence requires special considerations in court.
The judicial gatekeeper, untrained in science, must now be able to evaluate
claims made in the name of science. Following the Continental tradition, the
court may appoint its own expert to assist monitoring the hired scientific claims
of experts on both sides (Federal Rule of Evidence 706). But, the court-ap-
pointed expert opinion may, then, have undue influence and subvert the author-
ity of the court. This chapter suggests that there are methods that can engender
the necessary collaboration between science and the law, without relying on sci-
entific experts alone, but by using psychological principles to provide insight
without expertise. A crucial first step in scientific and legal collaboration is to en-
sure that judges and scientists can understand each other since, in the end, they
are the experts who will determine what the evidence is.
References
Fienberg, S. E. (Ed.). (1989). The evolving role of statistical assessments as evidence in the courts. New
York: Springer.
Friedman, L. M. (1910). Expert testimony: Its abuse and reformation. Yale Law Journal, 19, 247–
257.
Frequency formats. Psychological Review 102,684–704.
Gould, S. J. (1983). The mismeasure of man. New York: Norton.
Hand, L. (1901). Historical and practical considerations regarding expert testimony. Harvard Law
Review 15, 40–58.
Herschel, C. (1887). Services of experts in the conduct of judicial inquiries. American Law Review,
21, 571–577.
Huber, P. W. (1991). Galileo’s revenge: Junk science in the courtroom. New York: Basic Books.
Kaye, D. H., & Koehler, J. J. (1991). Can jurors understand probabilistic evidence? Journal of the
Royal Statistical Society, 154, 75–81.
Koehler, J. J. (1993). Error and exaggeration in the presentation of DNA evidence at trial. Jurimet-
rics, 34, 21–39.
Koehler, J. J. (1996). On conveying the probative value of DNA evidence: Frequencies, likelihood
ratios, and error rates. University of Colorado Law Review, 67, 860–886.
Koehler, J. J., Chia, A., & Lindsey, S. (1995). The random match probability (RMP) in DNA evi-
dence: Irrelevant and prejudicial. Jurimetrics, 35, 201–219.
Lempert, R. O. (1977). Modelling relevance. Michigan Law Review, 75, 1021–1057.
Lindsey, S., Hertwig, R., & Gigerenzer, G. (in press). Fair representation at trial: Statistical evidence
and statistical thinking. Manuscript submitted for publication.
National Research Council (NRC). (1992). DNA technology in forensic science. Board on Biology.
Washington, DC: National Academy of Sciences.
National Research Council (NRC). (1997). The evaluation of forensic DNA evidence. Committee on
DNA forensic science: An update. Washington, DC: National Academy of Sciences.
Thompson, W.C. (1995). Subjective interpretation, laboratory error and the value of DNA evi-
dence: Three case studies. Genetica, 96, 153–168.
Waid, W. M., & Orne, M. T. (1982). The physiological detection of deception. American Scientist,
70, 402–409.
Weir, B. S. (1995). People v. Simpson: Statistical interpretation of the DNA evidence 2. Unpublished
manuscript.
Weir, B. S. (1999). Are DNA profiles unique? Statistics and Biostatistics Colloquium. University of
Virginia.
Cases Cited
Federal Rules of Evidence.
Frye v. United States, 293 F. 1013 (DC Cir.) (1923).
General Electric Co. v. Joiner, No. 96–188; 1997 US LEXIS 7503, December, 15, 1997.
People v. Simpson, No. BA 097211 Cal. Super. Ct. L.A. County (1995).
State v. Bethune, 821 SW 2d 222 (Tex. App. 1991) Trial Transcript p. 2327.
William Daubert et al. v. Merrell Dow Pharmaceutical, Inc., 509 US 579 (1993).
Wilson v. State, Ark. S. Ct. (1998).
Chapter 15
The Authority of Representations
Elke Kurz-Milcke
College of Computing, Georgia Institute of Technology, Atlanta, Georgia, USA
kurzmi@cc.gatech.edu
Experts are regarded as authorities because of their knowledge, skill, and profes-
sional credentials. Authority is often thought to refer to “an interpersonal rela-
tionship in which one person looks upon another as superior” (International En-
cyclopedia of Sociology, 1995, p. 105). In this chapter, I argue that apart from
this particular understanding of authority, namely, as a hierarchical relationship
between persons, there is another, arguably, deeper sense of authority that is rele-
vant to the study of experts. This chapter fathoms the authority of representa-
tions. I present a case study in which an expert, a mathematician, solved a calcu-
lus problem (Kurz, 1997, 1998; Kurz & Tweney, 1998). Admittedly, a case of
problem solving that is removed from issues of societal and political urgency to
the (more or less undisturbed) quietness of the office of a university professor
working out the solution to a rate-flow problem. My aim is to illustrate how the
concept of authority can contribute to our understanding of experts’ reasoning.
An Enlightenment View of Authority

What does authority mean in relation to representations? How can it foster in-
sight into reasoning processes? My analysis builds on an understanding of repre-
sentations in terms of agency. With this approach, the cognitive realm is charac-
terized in terms of the manipulation of objects, and is part and partial to human
agency; human agency involves the manipulation of objects, including material
objects, images, and symbols (Gooding, 1990; Kurz & Tweney, 1998). In the
case of mathematical problem solving, that I present below, numerals, numbers,
differentials, and equations were among the relevant objects, but also a sketch of
a physical system drawn on a piece of paper. I offer a summary presentation of
the experts’ reasoning to illustrate how mathematical representations entail spe-
cific types of agency and how they function as authorities.
An issue related to the authority of representations has been discussed in psy-
chological literature and in literary studies under the heading of The politics of
281
282 Elke Kurz-Milcke
representation (Holquist, 1983; Shapiro, 1988). In a conflict, proponents of dif-

fering positions can attempt to dominate modes of representation, and
(…) if successful, a hierarchy is formed, in which one mode of representing
the world (its objects, events, people, etc.) gains primacy over others, trans-
forming modes of representation from an array on a horizontal plane to a
ranking on a vertical plane (Mehan, 1993, p. 241).
A prime example in the history of mathematics is the development of the calcu-
lus (Bertoloni-Meli, 1993). In the 18th century, the conflict over the primacy in
the invention of the calculus was even colored by nationalism: Newtonian calcu-
lus and notation reigning, on one side, and Leibnizian calculus and notation, on
the other side of the English Channel. For a number of reasons, multiplicity of
representation has remained characteristic of the practice of calculus and analysis
to this day. Similarly, probability theory is characterized by differing and alterna-
tive representations of uncertainty and risk (Gigerenzer & Hoffrage, 1995; Hof-
frage & Gigerenzer, this volume). Related to the very important issue of how a
“ranking” of representations is formed and sustained, the authority of represen-
tations, as I conceive it, concerns the process of achieving sustainable representa-
tions.
Preceding the case study on mathematical problem solving and its analysis in
terms of agency and authority, the next sections detail the concept of authority. I
rely in this task on Hannah Arendt’s (1994) essay “What is authority?” (Was ist
Autorität?), originally published in 1957, and on Kant’s (1784/1988) Answer to
the question: “What is Enlightenment?” in particular, on an analysis of Kant’s ar-
gument by Onora O’Neill (1989).
What Is Authority?
According to Arendt (1994), authority is neither a power that relies on force, nor
one that relies on argument. Argument presumes a relationship between equals,
whereas authority denotes a relationship that is hierarchical. Because authority is
commonly associated with obedience it is often confused with a power that ap-
plies force to exert its influence. But, what then is authority? Arendt’s (1994) an-
swer takes the reader to Hellas and Rome: Authority, as known in the political
tradition of the Western world, “has existed for a very long time, but not
always,” and is “at least in its positive aspects exclusively Roman” (Arendt, 1994,
p. 170).1 Only the Romans came to distinguish authority from power for their
1
All citations from Arendt (1994) are translated by Kurz-Milcke. The essay titled Was ist
Autorität? was first published in 1957 in a collection of essays by Arendt. In the years 1956 to
1968, Arendt published five essays with this, or a similar title, two in German and three in English
(for details see Arendt, 1994, p. 403f.). The German essay that was republished in Arendt (1994) is
similar, but not a translation of the English essay What was authority? which appeared in 1958 in
Nomos: Yearbook of the American Society for Political and Legal Philosophy, 1, 81–112.
The Authority of Representations 283
political institutions. Furthermore, the Romans’ conviction to require “founding

fathers” in all matters led them to
(...) transfer their political concept of authority and tradition to the intellec-
tual world of the Greeks where they found their intellectual forefathers which
they at once turned into authorities, no less in art and poetry than in thought
and philosophizing (Arendt, 1994, p. 191).
The Greeks
Plato, as well as Aristotle, sought to legitimate political power in order to halt the
dilapidation of the Polis and to rejuvenate its political life. According to Arendt
(1994, p. 171), the Greeks’ experience with power was such that in the private
sphere the head of the household, called the despot, had complete power over its
members, family, and slaves. Outside the private sphere, power was known to
the Greeks only as either tyrannis, which meant the banishment of citizens into
the private sphere and the use of force against them, or as a command in the
context of warfare. The first case constituted an unacceptable situation in the
Greeks’ political understanding, the second was conditioned on an exceptional
situation. Therefore, neither of these cases could serve the Greeks as a model of
power within the Polis, their public, political arena, which was constituted of
despots, all of them rulers and formally equal in this capacity.
In his attempt to establish an acceptable form of political power, Plato pro-
posed a number of models, among them the relationship between the shepherd
and his herd, the ships mate and his passengers, the physician and his patient,
the master and his slave. With these models, either superior knowledge and skill
commanded obedience or the partners were thought to belong to distinct cate-
gories, human and non-human, again justifying a claim to obedience. Plato also
envisioned a model in which philosophy and, thus, the philosopher was in
power. The philosopher, he believed, is able to turn the ideas of the good and the
useful into rules and standards, even laws, and in this way “the philosopher
king” could settle human affairs, “once and for all” (p. 182). However, where
Plato saw a “rule of reason,” Aristotle recognized a “tyranny of reason.”
For Aristotle, “nature,” not philosophy, had to be the basis for a justification
of political power. His favorite model was the difference between the younger
and the older generations. By such naturally furnished differences, “nature,”
Aristotle sustained, “destined the ones to be ruled and the others to rule”
(p. 182). According to Arendt, this method of reasoning caught Aristotle in a
state of tension, even contradiction. In Aristotle’s and common Greek under-
standing, citizens were part of two ways of life, the private which guaranteed sur-
vival and the public which facilitated the “good life” (p. 183). In this under-
standing, the private life was prerequisite to the political life, and the freedom of
the political sphere commenced where the necessity of ruler and ruled ceased to
be important. Thus, Aristotle found himself in a position where, on the one
hand, he claimed that “every polity is constituted of rulers and ruled,” and, on
the other hand, that “the Polis is a collective of equals” (p. 182). Similarly, his
model of the younger versus the older generation referred to the “natural” hu-
man being, not the individual who had managed his life and wanted the “good
life” (Arendt, 1994, p. 185).
According to Arendt (p. 186), the “magnificent attempts of Greek philoso-
phy to find a concept of authority” failed because of a lack of genuinely political
experiences that would correspond to what others later would call authority. The
proposals that these philosophers put forth were based on experiences drawn
from the private sphere, prominently the Greek household and manufacturing,
that by their own standards were specifically unpolitical or rather prepolitical.
Subsequently, only the Romans were in the position to conceive political hierar-
chy in the absence of power and force and, thus, to distinguish authority from
mere power.
The Romans
In the Romans’ political understanding, the founding of Rome assumed a cen-
tral place. This founding was “holy” in the sense that “what once was founded
remained binding on all subsequent generations” (Arendt, 1994, p. 187). This
attachment and responsibility to the past was part of the Roman religion. The
term and concept of “auctoritas,” the basis for the English term “authority,” ap-
peared in connection with this combination of political and religious affairs.
Auctoritas was a derivative of the verb “augere” which means “to enlarge,” “to
augment.” What “authority, or those who administered it, continuously aug-
mented was the founding” (p. 188).
Politically, the Romans distinguished between the power of the people and
the authority of the Senate, a council of distinguished elders. This authority
showed itself in the weight carried by the Senate’s advice “which in order to be
heard required neither the form of an order, nor force” (p. 189). In religious
matters, the binding character of the auspices mirrored the binding character of
the Senate’s advice. Unlike the Greek oracle, which hinted at the future, the
Roman auspices indicated whether a decision found approval with the gods.
Thus, “the Roman gods had merely authority among the people, not really
power over them” (p. 189). For the Senate, as well as the auspices, the founding
of the city was the source of their authority. All auspices were considered to be
“derivative of this one grand sign by which the gods empowered Romulus to
found the city, to establish the Roman people, and conferred kingship on him”
(p. 189). Similarly, the elders had authority because they were closer to the an-
cestors and the sacred founding, and not, as we today would tend to think, be-
cause they had grown to be wise on the basis of their experience.
For the Romans, authority remained embedded in the past and functioned to
link every act and decision to a sacred origin. Tradition preserved the past by
“transferring from one generation to the next witness of the ancestors who had
founded the city, had borne witness of this event, and had augmented the found-
ing through the centuries by their authority” (p. 190). For that reason, Arendt
(1994, p. 191) described religion—authority—tradition as the “Roman trinity.”
Although, initially, related to a particular and binding origin, this Roman spirit
survived, not only the transformation of the Roman Republic into the Roman
Empire, but even its decline. For Arendt (1994, p. 192), this Roman spirit was
continued by the Christian Church which after the Empire’s decline had to cope
with the political and intellectual heritage of Rome. Subsequently, the Catholic
Church
(…) assimilated the deeply Roman way of thinking about political affairs to
the extent that the renaissance of Christ could become the cornerstone of a
new founding, which again provided a sacred basis on which a new human
institution of remarkable permanence was founded (p. 192).
Further,
(…) in as much as the Catholic Church assimilated Greek philosophy to its
edifice it amalgamated the Roman political concept of authority (…) with
the Greek compulsion for transcendent standards and criteria (p. 193).
According to Arendt (1994, p. 194), this particular amalgamation through tradi-
tion and authority “has asserted itself as an authority and become decisive for
everything that followed, to an extent hardly matched by anything else.”
What Is Enlightenment?
Answering the question “what is Enlightenment?” was a political exercise, in
Kant’s age. In 1783 a Protestant parish priest in Berlin published an article in
which he argued against the introduction of civil marriage, denouncing the com-
motion that had been caused in the name of Enlightenment. First, he de-
manded, that one should answer the question “what is Enlightenment?” before
one seeks to enlighten others. One of those who took up the challenge of a re-
sponse was Immanuel Kant who published his Answer to the question: “What is
Enlightenment?” in 1784. According to Kant connoisseur O’Neill (1989), this
essay is one among several shorter pieces by Kant which stood in close connec-
tion to his central critical writings, and which emphasized the political character
of his systematic philosophy.
Kant applied the German term Autorität (authority) in relation to the law,
legislature, government, the Church, the Bible, God, the concept of duty, par-
ents, and reason (Roser & Mohrs, 1992, p. 439). In this listing, the authority of
reason was probably the least self-evident concept, and Kant determined its
meaning with great care. The question of “what it would be for certain ways of
conducting thinking to have authority and to count as principles of reason” oc-
cupied Kant’s philosophy in the most crucial ways (O’Neill, 1989, p. 11). Cen-
tral to the answer was the Categorical Imperative, namely, that we should act on
principles that at the same time could qualify as guiding principles for a univer-
sal law, which according to Kant was also the supreme principle of reason.
“[R]eason,” Kant believed “has no dictatorial authority” (O’Neill, 1989,
p. 15). Rather, Kant thought reason to be reminiscent of a tribunal that judges
and deliberates. The analogy implied that the authority of reason was a “practical
and collective task, like that of constituting political authority” (O’Neill, 1989,
p. 18). Kant also explored and articulated other political metaphors in his ac-
count of reason’s authority, especially, debate and community. Debate requires
discursive order and “cannot survive the adoption of principles of destroying de-
bate” (p. 21). Analogously, “any authority that reasoning can have must be con-
stituted by those who reason; it cannot be imposed (…)” but must be “consti-
tuted in the process of self-discipline of thought and action” (p. 22f.).
Behind the close attention that Kant paid to the authority of reason stood the
perceived threat of the Tower of Babel. Human knowledge had to be produced
in the face of a plurality of possible voices or agents “who share a world but who
are short of principles for doing the sharing” (p. 20). In this situation, Kant
sensed that the most basic principles of reason
(…) must enable us to accommodate the fact of our plurality and our lack
(…) of any preestablished harmony between the modes of thought employed
by different parties to a plurality (O’Neill, 1989, p. 27).
This line of reasoning led to the Categorical Imperative, the principle of reject-
ing thought, action, or communication that is guided by principles that others
cannot adopt.
In Kant’s account, reason derived its authority from self-imposed discipline.
In its most complete, enlightened use, reason was not subject to an external
authority. Hence, in his Answer to the question: “What is Enlightenment?” (Kant,
1784/1988), Kant characterized Enlightenment as “emergence from self-incurred
immaturity,” where immaturity meant “the inability to use one’s own under-
standing without the guidance of another,” and was “self-incurred if its cause is
not lack of understanding, but lack of resolution and courage to use it without
the guidance of another” (Kant, 1784/1988, p. 54). In this famous essay, Kant
distinguished a private and a public use of reason, both being “defined in terms
of the audience whom an act of communication may reach” (O’Neill, 1989,
p. 32). Kant spoke of the private use of reason in the case of someone acting on
a commission imposed from outside and addressing a restricted audience, such
as, for example, a congregation. Communication by officials, civil servants, and
clergy signified such private use, in the Kantian sense. By contrast, communica-
tion, which did not presuppose an external authority, and which addressed “the
real public (i.e., the world at large)” Kant identified as the public use of reason
(Kant, 1784/1988, p. 57). Thus, reason’s authority was conceived in contrast to
the authority of other, “external” agents. For Kant, reason’s authority resided in
the most comprehensive forum, “the real public (i.e., the world at large),”
which had to be achieved through communication.
Not Necessarily to Be Taken Personally!

A person can have authority, speak with authority, act with authority, and be rec-
ognized as an authority. In these instances authority has a face, most often an
office, and amounts to nothing less than “an interpersonal relationship in which
one person looks upon another as superior” (International Encyclopedia of Soci-
ology, 1995, p. 105). However, there are dimensions to the concept of authority
that are not reducible to the (inter)personal. Historically, the concept of author-
ity related the Romans to the sacred founding of their city, and in its later embel-
lishment to the intellectual world of the Greeks. The authority of the Catholic
Church has related the faithful with the renaissance of Christ. Similarly, with the
authorities that Kant, a protestant, knew: the Church, the Bible, the law, legisla-
ture, government, and the concept of duty; none of which being reducible to in-
terpersonal relationships.
Often, particular names and figures are associated with impersonal agents
that carry authority, for instance, Plato and Aristotle in the case of classical
Greek heritage, the apostles in the case of the Christian Church, or Frederick the
Great in the case of government in Kant’s age. This duality of the concept
showed already in the by Arendt acclaimed beginnings in the Roman religion,
where the founding of the city was associated with the figure of Romulus and,
subsequently, became associated with the Romans’ ancestors. The more pro-
nounced duality of the concept that was known by Kant’s age I refer to as the
Enlightenment view of authority. In this view, authority can be ascribed to imper-
sonal agents. I propose to use this view of authority in relation to representa-
tions. To be precise, for representations to function as agents their authority
needs to be endorsed.
Authority and Agency of Representations

Demonstrated With a Mathematician’s Protocol
In a study of calculus-related representational practices, I asked “mathematical
experts” to solve a problem while thinking out loud (Kurz, 1997).2 The partici-
pants in this study were free to use paper and pencil, also a calculator, but no ac-
cess to reference books was permitted. I present one case of problem solving by a
2
The participants were instructed to “think out loud” while working on the problem. Their
verbal protocols were tape-recorded and, subsequently, transcribed for analysis (Kurz, 1997).
Thinking out loud is a standard technique in cognitive research (Ericsson & Simon, 1993). To ob-
tain a verbal report, participants are instructed to verbalize constantly while working on a problem,
and to tell everything they are thinking from the moment they first see the problem until they give
an answer. These verbal reports are neither retrospective accounts of problem solving, nor intro-
spective accounts for which a person would be requested to observe their thoughts and describe,
even explain them in retrospect. Rather, the instructions for thinking out loud emphasize that par-
ticipants are requested to concurrently report (not explain) their ongoing thought. Generally, this
technique gives rich protocols, which then can be used to reconstruct reasoning processes.
mathematician who was asked to solve the following problem (presented in

Brenner, 1963, p. 12):
A flask contains ten liters of water and to it is being added a salt solution that
contains 0.3 kilograms of salt per liter. This salt solution is being poured in
at a rate of two liters per minute. The solution is being thoroughly mixed
and drained off, and the mixture is drained off at the same rate so that the
flask contains ten liters at all times. How much salt is in the flask after five
minutes?
The canonical solution path leads to a differential equation, which expressed in
Leibnizian notation is:
With this equation, the variable x denotes the amount of salt in the container
and the variable t denotes time. The term to the left of the equal sign represents
how fast salt accumulates in the container. The first term on the right-hand side
specifies how fast salt enters, subtracted from it is the term that specifies how fast
salt leaves the container. Salt leaves the container at a rate of 0.2x, where the vari-
able x denotes the amount of salt in the container. In order to arrive at a numer-
ical solution of this mixture problem, the above stated differential equation has
to be integrated and then solved for the variable x, leading to the following ex-
pression, which also satisfies the condition that initially there is no salt in the
container:
The numerical solution to the problem, then, is that 1.9 kilograms of salt are in
the container after five minutes; this result is rounded to one decimal position.
Next, is a summary description of the mathematician’s solution, based on his
verbal report and on his notes during problem solving (Kurz, 1997). This young,
highly productive mathematician was a faculty member in a doctoral level math-
ematics department, his major field being analysis. He worked approximately
25 minutes on this rate-flow problem. The descriptive account of his protocol is
followed by an analysis in terms of agency and authority.
The Mathematician’s Protocol

Reading the problem statement, the mathematician thought it best “to give
[him]self a picture of the flask” (see Figure 1).3 He drew a rectangle with “an
arrow down from the top indicating salt water coming in and an arrow at the
bottom indicating water-saline solution coming out.” Next to the top arrow he
3
All citations in this section are from the transcript of the mathematician’s “think out loud”
protocol and can be found in Kurz (1997, pp. 113–119), or refer to the mathematicians hand-
written notes reprinted in this chapter as Figures 1, 2, and 3.
wrote “2 liters/minute,” the rate at which solution was poured in, and “.3 kg/
liter,” the concentration of salt solution entering the container. Next to this pic-
ture he wrote (in the verbal protocol: “x sub t”), which was “the concentra-
tion of kilograms per liter at any given time,” having the units of measurement
“kg/liter.” Then he wrote in words, “when t is zero, x naught is
what?,” “the concentration is zero kilograms per liter.” After a pause, he said he
was trying to find another time t, besides t = 0, for which he knew the salt con-
centration in the container, and that he seemed unable to find one. He con-
cluded that he “should probably use some calculus, in the sense of rates of
change.”
Figure 1. The first page of the mathematician’s handwritten notes with his
depiction of the flask showing in- and outgoing solution as arrows. Later, he tried
to use calculus, but as the vertical line indicates abandoned this approach, instead
of “an instantaneous description” he asked himself “what’s happened after one
minute?”
He announced a “new attempt at the problem.” Again using to refer to the

concentration measured in kilograms per liter, he noted “0.3 kilograms per liter
is the rate of, no!” After a deep sigh, he stated “the rate of change of salt, that’s
per liter.” He became worried: “What happens if I am not able to solve this
problem?” He thought: “I better find the x sub t [pause in the protocol], the x
sub t equals, I need what? The rate of change [pause], well, let me try this, I
wonna try to compute the derivative with respect to time, so that is d by dt of
[pause].” He reread parts of the problem statement and concluded: “Let’s try to
find dx / dt. So this would be what?” Writing down he conceded: “I
am getting myself confused with the rate of change of concentration, which I
don’t want.” He was “not seeing how to do this straight forward with calculus
either.”
Figure 2. The second page of the mathematician’s handwritten notes showing his
computations for fixed time intervals of one minute and thirty seconds. At the
end of this bookkeeping-like approach in terms of that much added and that much
deleted in a certain fixed time interval stood the “total net gain of salt” after one
minute.
He knew that he was “supposed to write down sort of a derivative,” but was
“not seeing how to do this right off the bat.” Instead, he was going to “try to write
down what’s happened, let’s say after one minute, OK? So not an instantaneous
[pause] description of the system.” In other words, “I’m just doing it in time in-
crements.” He wrote: “After 1 minute. Added 2 liters of salt water and deleted
2 liters of ‘pure’ water after 1 minute.” This was a “lie,” in his words, because
“after 30 seconds, for instance, it’s not pure water left inside, but we’ll pretend
that it is, for the time being.” Starting on a new piece of paper (see Figure 2), he
wrote: “1 minute,” and asked: “After one minute, what do I see?” He computed:
“I see, we’ve added a total of two liters, two liters per minute times, wait a
minute? Yes! Two liters per minute times one minute. Water [sic! He should have
said ‘salt’] coming in is 0.3 kilograms per liter. So, by multiplying all this out I see
0.6 kilograms, the liters cancel, the minutes cancel, I’m left with 0.6 kilograms,
OK. So I’ve added 0.6 kilograms of salt after one minute.” Given this result, he
could “see what’s happened between the first and second minute, second and
third, the third and fourth, and the fourth and fifth.” However, this procedure
would only give him “an approximate answer.” Indeed, at this stage he had only
considered the amount of incoming salt, completely leaving aside salt loss.
Instead, he wanted to “refine until nothing,” in order to “get an instantaneous
picture of what’s going on.” He asked: “What’s happened after 30 seconds? Well
let’s see, presumably I’ve added, let’s figure out how much salt.” He computed:
“Two liters per minute times 30 seconds, is half a minute, times 0.3 kilograms of
salt per liter. Multiplying all this out, I get, this cancels with what I got before,
0.3 kilograms of salt.” Although being unsure whether this approach was going
“to work,” he moved on to the interval “between 30 and 60 seconds”: “What’s
happened? I’ve only added another what? I’ve added another, in 30 seconds I had
0.3 kilograms of salt, total.” But, of course, he was “also throwing salt away,” be-
cause after 30 seconds it was a “water-saline solution.” Therefore, he wanted to
see “how much salt I’ve deleted.” He computed: “At 30 seconds the approxima-
tion says that the saline solution is 0.3 kilograms of salt total, per ten liters
[pause], is what? 0.03 kilograms of salt per liter. OK, so my pure water after
30 seconds now is approximately 0.03 kilograms of salt per liter.” He computed
that one liter of saline solution was lost in 30 seconds which led to a “total salt
loss” of 0.03 kilograms.
He felt to have lost direction: “Now I can’t remember what I’m supposed to
do, [pause] what’s happening?” Rehearsing his computations, he found that after
one minute [sic!] he had “dumped in a total of 0.3 kilograms” and “poured out
0.03 kilograms,” subtracting the latter from the former led him to a “total net
gain” of 0.29 kilograms [sic!]. This result looked “sinistrous” to him, also espe-
cially because by “the old method in one step” 0.6 kilograms had been added to
the flask. A student knocking on the door interrupted the session, he briefly
talked to the student. Returning to the task, he expressed his embarrassment for
not solving the problem readily.
Once again he rehearsed his results. For the “one minute increment” 0.6 kilo-
grams of salt had been added to the flask, then breaking “it down into two 30-
second stages” he had arrived at a result of 0.29 kilograms. He had doubts:
“What if I haven’t done that correct?” He decided to check where he had done it
“in two 30-second increments” and found that for the “total net gain of salt”
after one minute he had forgotten “to add in the original 0.3,” the amount of
salt added in the first 30 seconds. He corrected the result to be 0.59 kilograms.
He also realized that he had subtracted incorrectly and corrected his mistake to
obtain 0.57 kilograms of salt as a result.
He noticed: “The rate in is always the same.” That much said, he was able to
ask: “OK, and now the rate out, should be what?” As a response, he computed
that one liter of solution was lost in 30 seconds, and that, assuming a concentra-
tion of 0.03 kilograms of salt per liter, salt loss was approximately 0.03 kilo-
grams. Subtracting the, thus, approximated salt loss in 30 seconds from the
amount added in one minute, he arrived once more at the conclusion that “0.57
sounds good.”
Next, he abandoned his approach in time increments: “OK, I suppose I

could go and do this in—[exasperated sigh]—15-second increments to get a bet-
ter answer, but will not try to do that.” Instead, he wanted to attempt a different
approach: “So I believe, the rate of salt I am adding is a total of 0.6 kilograms
salt per minute. What is the rate, so alright, so let’s figure out the rate.” He wrote
(see Figure 3): “Rate out: 2 liters/min × x kg salt/liter = 2x kg salt/min,” and
concentration per liter of saline solution.” (Had he, at this point, defined x as the
amount of salt in the flask, very likely, in the end, he would have obtained the
correct numerical solution.) At this point, he was pleased at “coming up with the
differential equation.” He wrote: “dx / dt = .6 – 2x.”
Figure 3. The third page of the mathematician’s handwritten notes. The

mathematician computed the rate in and the rate out and with these rates developed
a differential equation and finally solved this equation.
In routine fashion, he solved this differential equation, separating variables,

integrating both sides of the equation, and solving the variable x working with
the exponential function. However, because the “rate out” was incorrect by one
decimal position, he arrived at a solution that was not meaningfully interpret-
able and which remained unsatisfactory to him. At this point, being both frus-
trated and pressed for time, he was unwilling to “debug” his solution.
Agency
When, in the beginning of his problem solving, the mathematician “gave him-
self a picture,” (see Figure 1) he implemented and manipulated a number of
different objects: Paper and pencil, lines forming a rectangle and arrows, the
arrangement of these figures on a piece of paper, digits and letters, numbers and
words, units of measurement such as liters and kilograms, rates such as concen-
tration and velocity, and variables such as t, x, and Some of these objects
were implemented and manipulated simultaneously which is a general feature
of human agency.
Reasoning requires viable forms of agency. As the mathematician was at-
tempting to generate a solution, he was striving for a computational procedure
to obtain a result, not merely a number to answer the posed question. Initially,
he found it very difficult to conceive anything that he could do to approach a
solution. He believed that he should employ “some calculus, in the sense of rates
of change,” that he “should better find the x sub t,” and that he was “supposed to
write down sort of a derivative.” But, none of these goals and concepts translated
into a procedure that enabled him to approach a solution. He even had doubts
whether he was capable to solve the problem at all. He only emerged from this
impasse by considering “doing it in time increments,” which initially translated
into the question: “What’s happened after one minute?” Then he wrote (see
Figure 1): “After 1 minute. [On a new line:] Added 2 liters of salt water [On a
new line:] and deleted 2 liters of ‘pure’ water [On a new line:] after 1 minute.”
With this spatial arrangement of his notes, he rehearsed the separation of in- and
outflow of the solution, as done previously with the arrows in his “picture of the
flask.” Subsequently, these two components of the physical process were labeled
“added” and “deleted,” as markers these labels provided structure to his notes
and representation of the physical process.
Agency constitutes its objects. In other words, what is manipulated is, at
least, partly constituted by how it is, or can be, manipulated. There was a pro-
gression of objects, ranging from added—deleted to rate in—rate out to differen-
tial equation, that the mathematician employed to capture the physical process
in a mathematical fashion. His initial computations were structured in terms of
added and deleted (see Figure 2), reminiscent of items that a bookkeeper uses:
that much added, that much deleted, resulting in a particular, in his words, “net
gain” of salt (see Figure 3). Instantiating this bookkeeper’s account he lost his
thread, he felt uncertain of what he was “supposed to do” and of how his compu-
tations related to the described physical process. Rehearsing and checking the
obtained numerical results, he regained a sense of direction, especially by affirm-
ing that “the rate in is always the same.” With this insight, he proceeded from
added and deleted to the rate in and the rate out which, in turn, allowed the tran-
sition to a differential equation. Being a mathematician, he was able to manipu-
late, transform, and solve the equation in a very skilled fashion. With the differ-
ential equation, another object emerged or rather re-emerged in his protocol,
namely, dx / dt. This object appeared as part of the differential equation, the
mathematical model of the physical process, and in this situation not as a deriva-
tive per se.
Agency can be assigned to varying sources during problem solving. For in-
stance, consider the following stream of thought in the mathematician’s proto-
col during which agency shifts from “I,” to “we,” to factors in an equation, to
“water,” and back: “After one minute, what do I see? I see, uhm, we’ve added a
total of two liters per minute times, wait a minute? Yes! Two liters per minute
times one minute. Water coming in is 0.3 kilograms per liter. So, by multiplying
all this out I see 0.6 kilograms, the liters cancel, the minutes cancel, I’m left with
0.6 kilograms, OK. So, I’ve added 0.6 kilograms of salt after one minute.” The
original problem statement, of course, is written in the passive voice: Salt solu-
tion “is being poured in,” the solution “is being thoroughly mixed,” and the
mixture “is drained off.” In this formulation, agent and agency are retracted,
with modeling (as with scientific observation and experimentation; Gooding,
1990) agent and agency need to come back in.
Because of the way in which the mathematician had inserted himself into the
description of the physical process, he experienced great difficulty in modeling
“salt loss.” What had worked well with the amount of salt added to the container
disoriented him in the case of salt loss, namely, that he, as “I,” was the agent add-
ing the salt. For instance, he stated: “So, let’s see how much salt I’ve deleted;” and
in a similar fashion: “So, I’ve dumped in a total of 0.3 kilograms and I’ve poured
out 0.03 kilograms.” However, discrete acts of “taking out” a particular amount of
salt could only approximate the amount that was lost from the container during a
particular time interval. By developing a differential equation the physical process
became represented as a mathematical model. The mathematician was very skilled
at manipulating this particular symbolic representation, the differential equation
as such, but less inclined to engage in the kind of simulative reasoning and obser-
vation that such models can support. For comparison, a theoretical physicist solv-
ing the same problem (Kurz, 1997) was primarily engaged in simulative obser-
vation and manipulation of models, symbolic and perceptual. Nersessian (1992)
has characterized this kind of mental simulation in relation to conceptual change
in science, in particular of Clerk Maxwell’s quantitative representation of the elec-
tromagnetic field, and in relation to thought experimentation.
Agency requires skill. “Refining until nothing” in order to “get an instanta-
neous picture of what’s going on” demands skill with calculus-specific agency.
Initially, the mathematician considered increments of one minute, then broke
the increment down into two 30-second increments, and finally considered 15-
second increments (see Figure 2). This approach, in terms of decreasing but fixed
time increments, combined two differing notions of limit-taking. On the one
hand, he specified fixed increments of diminishing size, which pursued endlessly
would become infinitely small, and in this way reminiscent of Leibniz’ differen-
tials, on the other hand, his limit-taking was local as is specific to the historically
more recent concept of a derivative. Local limits can be visualized as tangents to
points on a curve or, in a theoretically different way, by zooming in on a particu-
lar region of a curve; with Leibniz’ calculus, by contrast, limit-taking approxi-
mated a curve in its entirety and was, therefore, global in character (Bos, 1993).
The mathematician found himself in a position in which he had to “unpack” the
notion of limit-taking in order to move forward with his problem solution. This
“unpacking” meant that he recovered a form of agency that was calculus/analy-
sis-specific, in this case, choice of diminishing fixed time increments.4 When the
mathematician felt unable to employ calculus, or more specifically, the deriva-
tive, he nevertheless was able to recover and employ a form of calculus-specific
agency that eventually allowed him to proceed from decreasing fixed time incre-
ments, to rates of change, and to a differential equation.
Agency—Authority—Representation
Understood in a cognitive fashion, authority is but one element of a triad, which
is agency—authority—representation. These elements combine in a way that is
similar to the combination of search, space, and representation in the predominant
cognitive science characterization of problem solving; in combination they de-
lineate a particular approach to cognition.
A seemingly disparate aim from that of solving a mathematical problem is
that of showing one’s affection. Conveying one’s feelings requires agency. One
may communicate feelings verbally, or non-verbally, in either case, we can do a
large number of things to show our feelings. Consider, for instance, demonstrat-
ing one’s affection with a birthday poem. In order to create the poem the words
can be arranged in a particular fashion, they can be put into rhyme, and be
arranged in an aesthetic pattern on a piece of paper. One may arrange the words
of a well-known, pre-existing birthday song on a piece of paper, or author a son-
net, in either case, the arrangement is sought to create and, thereby, obey a pat-
tern. No matter how sophisticated or creative the product turns out to be, creat-
ing it means to allow an intended pattern to direct one’s activity (see Ippolito &
Tweney, 1995, for a related argument concerning the inception of insight). In-
tending a representation in this fashion conveys authority upon it.
The mathematician realized that a solution would require calculus, but he
still had to make such a representation in terms of calculus work. “Doing it in
time increments” worked. In other words, the approach lent itself to a computa-
tional procedure, and the agency entailed by this representation of the physical
process, namely, choice of decreasing, but fixed time increments suggested itself as
calculus-specific. The mathematician’s approach followed a particular type of
4
Choice of diminishing, but fixed increments is characteristic of Leibniz’ calculus. Choice is, in
a particular way, also built into the definition of the derivative, where it is embedded in an ex-
change of values (“Give me an [element of a defined domain] and I will return a corresponding
value such that.... [a certain inequality holds]”).
For other types of calculus-specific agency see Kurz (1997) and Kurz and Tweney (1998). For
instance, the agency characteristic of Newton’s calculus of fluxions was the transformation of a
changing quantity into the movement of a geometrical object, for instance, a moving point creat-
ing a line.
agency known from the calculus and analysis (differentials and the derivative, in
particular). In this way, he developed his solution along the lines of traditional
representations of change. The authority of these representations led him from
knowing that calculus was required to “doing it in time increments,” and even-
tually to the formulation of a differential equation.
Does agency—authority—representation afford an explanation of how a new
representation is achieved? Or, in other words, how “shifting problem represen-
tation,” that is, an insight (Kaplan & Simon, 1990), is achieved? When, at a
later stage of his problem solving, the mathematician mentioned the rate in and,
subsequently, the rate out, he was prepared to shift his representation of the
physical process to a differential equation. Computing the amounts that had
been added to the flask for the one minute and for the two 30-second incre-
ments, he noticed that the “rate in is always the same,” in other words, it is a
constant. With this rate, he introduced a new concept to his problem solving.
Initially, this object appeared as an inference from previous computations, but
soon it became an object in its own right. The mathematician developed this ob-
ject, and the complementary object that it suggested, namely, the rate out, into a
familiar structure, a differential equation. In this way, the rate in came to serve as
the connective between the old and the new representation of the physical pro-
cess. Once the object had been introduced, the potent representation of a differ-
ential equation claimed it. The mathematician was pleased at “coming up with
the differential equation,” it was his pleasure to heed the emerging representa-
tion’s authority.
The predominant cognitive science characterization of insight combines
search through with search for a problem space. Extending the theory of problem
solving (Newell & Simon, 1972) in this way, Kaplan and Simon (1990) de-
scribed the search for a new representation as the search for a problem space. In
their words, “[s]ubjects search at two levels:” (1) “When they have a particular
representation that they believe will allow them to solve the problem, subjects
search within the corresponding problem space”; (2) as attempts fail, “subjects
are forced to search the meta-level space of potential representations to find their
next approach” (p. 386f). But, because the “space of possible problem spaces is
exceedingly ill-defined, in fact, infinite,” one “has to have or obtain strong con-
straints that guide search and make it highly selective” (Kaplan & Simon, 1990,
p. 381). Possible sources of search constraints are perceptual cues in the prob-
lem, prior knowledge, and heuristics. Especially prominent among the search
constraints, in Kaplan and Simon’s study of insight, was the Notice Invariant’s
heuristic. As a “very general heuristic,” the Notice Invariant’s heuristic has the po-
tential to “facilitate insight across a wide variety of domains” (Kaplan & Simon,
1990, p. 413). In the mathematician’s protocol noticing an invariant, namely,
that the rate in is a constant stood at the beginning of a decisive re-representa-
tion of the problem. But, in what sense was the mathematician searching a prob-
lem space?
What is a problem space? With Kaplan and Simon’s account of insight “the
terms problem space and representation are used as synonyms” (p. 376). How are
representations alias problem spaces characterized? Kaplan and Simon (1990)

described the problem spaces that they determined for the problem that they
used in their research on insight, the Checkerboard problem, in terms of agency.
(The Checkerboard problem: On an 8 × 8 checkerboard, two squares on diago-
nally opposite corners are removed. The task is to determine whether the squares
of this mutilated checkerboard can be covered by dominos.) Here agency was
phrased as imparative sentences: “Try placing all dominos horizontally./ Try
placing all dominos vertically./ Try placing dominos in a spiral pattern./ Try
placing dominos in a zig-zag pattern./ Try decomposing board into smaller areas,
and cover each area” (p. 387). Or, consider the following representations which
were subsumed in the category Parity spaces: “Consider how color might help
solve the problem./ Explore why words might be on the squares” (p. 387). (In
one of their experimental conditions, instead of being colored in alternating
fashion, the squares were labeled either “bread” or “butter.” Removing diago-
nally opposite squares removes two squares of the same color, or twice either
“butter” or “bread.”)
Centrally important to the problem-solving account of insight is how switch-
ing to a different problem space is achieved, or can be facilitated. (For the
Checkerboard problem, specifically, this meant a switch to the Parity spaces. The
observation that, in the case of the mutilated checkerboard, parity of color or
corresponding attribute is not given, typically leads participants to reason to the
problem’s solution.) Kaplan and Simon (1990) proposed to specify, rigorously,
the process of switching representation and reasoning to a solution in a com-
puter simulation called SWITCH. SWITCH was provided with knowledge on
the problem (“a representation of the actual [external] checkerboard, and a
model of the typical subject’s internal representation of the board,” which typi-
cally ignored the parity of color; p. 389), inference rules and some general search
procedures, including procedures for selecting inference rules and heuristics for
shifting to a search for a new representation. Given decisive new information
(the Parity hint), the simulation was able to arrive at the correct solution of the
problem. Kaplan and Simon (1990, p. 413) found that one of the most potent
constraints in searching for a new representation is a general search heuristic
which they described as Notice Invariant (in this case, the parity of color on the
regular checkerboard).
Kaplan and Simon’s powerful heuristic is directed toward the cognitive agent
(person or machine): Notice invariant! I restate the imperative as a question
posed for the analysis of reasoning and insight: What remains invariant? Specifi-
cally, what remained invariant in the mathematician’s successive representations
of the physical process? I propose the following answers for the two major shifts
in the mathematician’s problem representation. For the first decisive switch, from
knowing that he “should probably use some calculus” (see Figure 1) to “doing it
in terms of time increments” (see Figure 2) the concept of limit taking served as a
connective link; limit taking was implied by his wish to employ calculus and was
implemented in his approach in terms of time increments. In this sense, the
calculus-specific agency of choosing decreasing, but fixed increments constituted
an “invariant” which allowed him to overcome the impasse of “not seeing how to
do this straight forward with calculus.” The second decisive switch, from “doing
it in time increments” (see Figure 2) to proposing a differential equation (see
Figure 3), was enabled by a potent object, the rate in. This object stood at the
end of his computations in terms of increments and at the beginning of his ap-
proach using a differential equation, therefore, in this sense, remained an “invari-
ant” during his switch of representations.
Kaplan and Simon (1990) proposed the Notice Invariant heuristic as a means
to constrain search for a new representation. According to the analysis that I
favor in the case of the mathematician’s protocol, cognition deals in “invari-
ants,” specifically, forms of agency and respective objects. Major changes in the
representation of the problem are well described as a process in which particular
kinds of agency and particular objects were traded from one representation to
the next. In science, many and diverse objects, such as instruments, books, rep-
resentations, images, models, as well as the skills to handle these objects, are
traded from one generation to the next and also across disciplinary boundaries
(see Galison, 1997, for an account of tradition and trading in science; also
Kurz-Milcke & Martignon, 2002). Phrased more generally, the trading of repre-
sentations and other objects is paramount to culture and science. I suggest that
apart from the trading of representations, trading among representations needs
to be considered, especially with scientists and experts’ reasoning and problem
solving.
As an explanatory concept, the trading of objects and agency among represen-
tations, invariably, leads away from a conservative interpretation of the concept
“invariant.” What is handed down, or over, is changed in the process and arrives
in altered form at its subsequent destination (Galison, 1997, p. 435). Resulting
from, and playing into this process are, for instance, different notions of the
same concept in science (e.g., the concept of limit taking, the field concept in
physics). Representations, thus, appear as composites sharing objects and forms
of agency with other representations (for the related notion of a “meaning
schema,” Nersessian, 1984). In the case of the mathematician’s protocol, transi-
tions between representations occurred along the lines of objects or forms of
agency that are well-established in mathematics, for instance, limit taking. Such
culturally, well-established “invariants,” due to their multiple meaning forming
constituents, can exert authority in ways that leads solutions and reasoning onto
something new.
Finally, the proposed shift in emphasis toward trade and authority is in line
with Kaplan and Simon’s description of problem spaces in terms of agency, but
not necessarily with their characterization of representations in terms of impera-
tive sentences. As amazing as it sounds, the authority of representations can exist
without orders, by relying on agency and objects alone.
Conclusion
Kant’s critical philosophy has been said to face the dilemma that a critique of
reason presupposes a conception of reason. On this point, it has been argued that
in Kant’s philosophy the supreme principle of reason is the Categorical Impera-
tive, a moral, not a cognitive principle, that bases the authority of reason on the
principle of only adopting sharable principles (O’Neill, 1989). A similar di-
lemma has been found to occur for the information-processing account of in-
sight where constraining search in effective ways appears to presuppose “knowing
the nature of the problem (and its solution) beforehand” (Kaplan & Simon,
1990, p. 413). In this situation, heuristics that are applicable across a wide vari-
ety of domains, such as the Notice Invariant heuristic, are “a cause of celebra-
tion.” In this chapter, the authority of representations has been described as the
achievement of turning representations into agents (of making them work) in
order to solve problems or create new objects and representations. But, how can
something exert influence if, in fact, it simultaneously has to be achieved? The an-
swer, suggested by this account of the authority of representations, is that objects
and agency are traded among representations, thereby, making aspects of repre-
sentations available before they are fully developed in a particular fashion. In a
broader perspective, this answer suggests that most cognitive achievements defy
reduction to searches through problem spaces because the concept of meta-level
search falls short of the historical and cognitive riches (see Tweney, 2001).
Arendt (1994) saw the modern distrust of everything that appears authorita-
tive reaching as far as the relationship between children and parents, and teach-
ers and students. The modern world witnessed a loss of religion, tradition, and
authority, a condition which, according to her analysis, came to threaten any one
notion of faith, past, and authority. Thus, her question in the late 1950s was:
“What kind of world has come to an end when not this or that kind of authority
in this or that part of life has been put into question, but the concept of author-
ity in general has lost its validity?” (Arendt, 1994, p. 169) I am led to ask: Has
authority, in conjunction with representation, become so prevalent and perva-
sive in our world that, for the most part, it goes unnoticed? Also, are we witness-
ing, in this pervasiveness, another turn in the history of authority? At present, we
know several calculi, many logical systems, a large number of literary genres, in-
credible numbers of stories, songs, images, and metaphors, and an ever-growing
number of instruments and devices. The representations relating to these arti-
facts are potential authorities in our attempts to solve problems and create new
things. Experts, in particular, I claim, are highly trained observers of the author-
ity of representations in their fields of expertise. Such observation is by no means
a trivial or a straightforward process. For example, Gigerenzer (1993) employed
the Freudian terminology of the superego, ego, and the id as a metaphor in his de-
scription of the dynamics of psychologists’ relationship with one of their most
prevalent methodological authorities, which is inferential statistics. The author-
ity of impersonal agents is possibly in every way—politically, emotionally, and
cognitively—as engaging as is the interpersonal kind.
Author’s Note
I thank Ryan Tweney for the invaluable advice on the original study of calculus-
related reasoning; the mathematician’s protocol is a part of this study. I appreci-
ate the mathematician’s willingness to think mathematically while being ob-
served and tape-recorded. I am grateful to the Max Planck Society, who sup-
ported me by a Schloeßmann Fellowship while working on this chapter.
References
Arendt, H. (1994). Zwischen Vergangenheit und Zukunft. Übungen im politischen Denken I (ed. by
U. Ludz). Munich, Germany: Piper.
Bertoloni-Meli, D. (1993). Equivalence and priority: Newton and Leibniz. Oxford, UK: Clarendon.
Bos, H. J. M. (1993). Lectures in the history of mathematics. Providence, RI: American Mathemati-
cal Society.
Brenner, J. L. (1963). Problems in differential equations. San Francisco: Freeman.
Ericsson, K. A., & Simon, H. A. (1993). Protocol analysis: Verbal reports as data. Cambridge, MA:
MIT Press.
Galison, P. (1997). Image and logic: A material culture of microphysics. Chicago: The University of
Chicago Press.
Gigerenzer, G. (1993). The superego, the ego, and the id in statistical reasoning. In G. Keren &
G. Lewis (Eds.), A handbook for data analysis in the behavioral sciences: Methodological issues.
Hillsdale, NJ: Erlbaum.
Frequency formats. Psychological Review, 102, 684–704.
Gooding, D. (1990). Experiment and the making of meaning: Human agency in scientific observation
and experiment. Dordrecht, The Netherlands: Kluwer.
Holquist, M. (1983). The politics of representation. Quarterly Newsletter of the Laboratory of Com-
parative Human Cognition, 5, 2–9.
International Encyclopedia of Sociology. (1995). London: Fitzroy Dearborn.
Ippolito, M. F., & Tweney, R. D. (1995). The inception of insight. In R. J. Sternberg & J. E.
Davidson (Eds.), The nature of insight (pp. 433–462). Cambridge, MA: MIT Press.
Kant, I. (1988). An answer to the question: “What is Enlightenment?” (H. B. Nisbet, Trans.) In
H. Reiss (Ed.), Kant’s political writings (pp. 54–60). Cambridge, UK: Cambridge University
Press. (original work published 1784)
Kaplan, C. A., & Simon, H. A. (1990). In search of insight. Cognitive Psychology, 22, 374–419.
Kurz, E. M. (1997). Representational practices of differential calculus: A historical-cognitive approach.
Unpublished doctoral dissertation, Department of Psychology, Bowling Green State Univer-
sity, Ohio.
Kurz, E. M. (1998). Representation, agency, and disciplinarity: Calculus experts at work. In M. A.
Gernsbacher & S. J. Derry (Eds.), Proceedings of the Twentieth Annual Meeting of the Cognitive
Science Society, University of Wisconsin, Madison (pp. 585–590). Mahwah, NJ: Erlbaum.
Kurz, E. M., & Tweney, R. D. (1998). The practice of mathematics and science: From calculus to
the clothesline problem. In M. Oaksford & N. Chater (Eds.), Rational models of cognition
(pp. 415–438). Oxford, UK: Oxford University Press.
Kurz-Milcke, E., & Martignon, L. (2002). Modeling practices and tradition. In L. Magnani &
N. Nersessian (Eds.), Model-based reasoning: Scientific discovery, technological innovation, values
(pp. 127–146). New York: Kluwer/Plenum Press.
Mehan, H. (1993). Beneath the skin and between the ears: A case study in the politics of represen-
tation. In S. Chaiklin & J. Lave (Eds.), Understanding practice: Perspectives on activity and con-
text (pp. 241–268). New York: Cambridge University Press.
Nersessian, N. J. (1984). Faraday to Einstein: Constructing meaning in scientific theories. Dordrecht,

The Netherlands: Martinus Nijhoff.
Nersessian, N. J. (1992). How do scientists think? Capturing the dynamics of conceptual change
in science. In R. N. Giere (Ed.), Cognitive models of science. Minnesota Studies in the Philoso-
phy of Science, Vol. XV Minneapolis: University of Minnesota Press.
Newell, A., & Simon, H. A. (1972). Human problem solving. Englewood Cliffs, NJ: Prentice Hall.
O’Neill, O. (1989). Constructions of reason: Explorations of Kant’s practical philosophy. Cambridge,
UK: Cambridge University Press.
Roser, A., & Mohrs, T. (Eds.). (1992). Kant Konkordanz zu den Werken Immanuel Kants (Vol. 1).
Hildesheim, Germany: Olms-Weidmann.
Shapiro, M. (1988). The politics of representation. Madison, WI: University of Wisconsin Press.
Tweney, R. D. (2001). Towards a general theory of scientific thinking. In K. Crowley, C. D.
Schunn, & T. Okada (Eds.), Designing for science: Implications from everyday, classroom, and
professional settings (pp. 141–175). Mahaw, NJ: Erlbaum.
Name Index
A Bekerian‚ D. A. 127‚ 157

Bell‚ D. 54‚ 61‚ 139‚ 155
Aberbach‚ J‚ 43f. Benjamin‚ H. 77‚ 79
Abernathy‚ C. M. 250‚ 264 Benjamin‚ M. 196–198
Abrahamse‚ A. 128‚ 156 Bennassar‚ B. 217‚ 226
Abram‚ M. B. 196‚ 198 Bergedorfer Gesprächskreis 57‚ 61
Abwassertechnische Vereinigung (ATV) 10‚ Berger‚ B. 32‚ 44
23 Berger‚ P. 32‚ 44
Ackerman‚ T. F. 189‚ 198 Berglund‚ S. 15‚ 23
Adler‚ E. 6‚ 22 Bericht des Senats über Absichten und Um-
Adorno‚ T. W. 3‚ 5‚ 22‚ 24 setzungen der Empfehlungen des Par-
Albert‚ H. 22 lamentarischen Untersuchungsausschus-
Alberts‚ F. 86‚ 88f.‚ 101 ses “Hamburger Polizei” 127‚ 155
Alexander‚ C. 109‚120 Berkeley‚ G. 154
Amos‚ H. 66‚ 68f.‚ 79 Bernard‚ C. 258‚ 264
Andersen‚ A. 160‚ 162‚ 175 Berndt‚ C. H. 87–89‚ 98‚ 99‚ 101
Anderson‚ C. 86‚ 88f.‚ 101 Berndt‚ R. M. 87–89‚ 96‚ 98f.‚ 101
Anderson‚ M. 163‚ 175 Bernstein‚ D. E. 3‚ 23
Anonymous 119f. Bertoloni-Meli‚ D. 282‚ 300
Antons‚ C. 83‚ 85 Berwick‚ D.M. 250‚ 261‚ 264
ApSimon‚ H. 170‚ 175 Bethencourt‚ F. 217‚ 226
Arbeitsgemeinschaft für Umweltfragen 6‚ 23 Bier‚ A. 108‚ 118‚ 120
Archivio di Stato di Venezia 219‚ 225 Bingham‚ F.T. 11‚ 24
Arendt‚ H. 282–285‚ 287‚ 299f. Binozzi‚ S. 136‚ 157
Aron‚ R. 54‚ 61 Blainey‚ G. 87‚ 101
Ash, M. G. 112f.‚ 120 Blakeney‚ M. 89‚ 101
Ashby‚ E. 163‚ 175 Blankenhorn‚ D. 34‚ 37‚ 41‚ 44
Ashforth‚ A. 219‚ 224f. Blänkner‚ R. 218‚ 226
Ashworth‚ A. 151‚157 Böckenförde‚W. 51‚ 61
B Bodin, J. 217‚ 220‚ 226
Boehmer-Christiansen‚ S. 169‚ 175
Backhaus, J. 57‚ 61 Bohannan‚ P. 96‚ 101
Bahrdt‚ H. P. 56‚ 62 Bond‚ J. H. 265
Baker‚ D. E. 23 Bonney‚ R. 221‚ 226
Bakker‚ C. 205‚ 212 Bonta‚ J. 128‚ 130‚ 155
Balani‚ D. 220‚ 225 Borchardt‚ K. 57‚ 61
Barth‚ H. 14‚ 23 Borelli, G. 221‚ 226
Bates‚ T. E. 23 Borrell‚ P. 171‚ 175
Bauerkämper‚ A. 72‚ 79 Bos‚H.J. M. 295‚ 300
Baumgartner‚ G. 71‚ 73‚ 79 Bosk‚ C. L. 31‚ 45
Bayerische Rück 6‚ 8‚23 Bothe‚ D. 107‚ 120
Bayme‚ S. 34‚ 44 Bourdieu‚ P. 30‚ 44‚ 219‚ 226
Beach‚ L. R. 253‚ 264 Bourke‚ C. 86f.‚ 101
Beatty‚ J. 265 Bradley‚ G. M. 265
Beauchamp, T. 189‚ 198 Brandt‚ L. 54‚ 61
Beck‚ U. 32‚ 35‚ 44 Braudel‚ F. 215f.‚ 226
Becker‚ H. S. 34‚ 44 Brenner‚ J.L. 288, 300
Becker‚ P. 221‚ 225 Brentzel‚ M. 70‚ 79
Beck-Gernsheim‚ E. 32‚ 35‚ 44 Brimblecombe‚ P. 160‚ 162f.‚ 172‚ 175
303
304 Name Index
Brint‚ S. 215‚ 226 Conrad‚ C. 59‚ 61

Broad‚ C. D. 193‚ 198 Coontz‚ S. 34‚ 45
Brock‚ D.W. 190‚ 196‚ 198 Coppock‚ R. 6‚ 8‚ 23
Brockhaus 216‚ 226 Cormier‚ R. B. 128‚ 155
Brodeur‚J.-P. 83‚ 123‚ 131‚ 137‚ 141‚ 150‚ Corrigan‚ P. 221‚ 226
155 Cosmides‚ L. 253‚ 264
Brooks‚ H. 34f.‚ 44 Cox‚ H. 86‚ 87‚ 101
Bruder‚ W. 50‚ 61 Cozzi‚ G. 221f.‚ 226
Brüggemeier‚ F. J. 160–165‚ 175 Craig‚ W. M. 129‚ 158
Bruins‚ R. J. F. 23 Crescenzi‚ V. 220‚ 226
Builtjes‚ P. 171‚ 175 Crosthwaite‚ J. 182‚ 190‚ 198
Bundesakademie für Öffentliche Verwaltung
58‚ 61 D
Bundesarchiv Berlin (BArchB) 68‚ 79‚ 109f.‚ d’Ombrain‚ N. 141‚ 144‚ 156
112‚ 118‚ 120 Dahrendorf‚ R. 22‚ 65‚ 79
Bundesministerium der Justiz 66‚ 79 Daston‚ L. 265
Bundesministerium für Familie und Senioren Daston‚ L. J. 252‚ 264
32‚ 35‚ 41‚ 45 Daubney‚ D. 152
Bundesministerium für Forschung und Tech- Davies‚T. 86‚ 89‚ 95‚ 101
nologie (BMFT) 48‚ 61‚ 166‚ 175 Davis‚ M. 181‚ 196‚ 198
Burgoyne‚ L. A. 134‚ 158 Davis‚ R. D. 15‚ 23
Bushyhead‚ J. B. 251‚ 264 Dawes‚ R. M. 250‚ 260‚ 264
Busschbach‚ J. J. van 204‚ 213 De Boer‚ M. 172‚ 175
Derlien‚ H.-U. 43f.
C Derwent‚ R. G. 169‚ 175
Camacho‚ L. 182‚198 Deutscher Bundestag 66‚ 79
Cameron‚ J. 16‚ 23 Deutsches Rechtswörterbuch 217‚ 226
Canada 137‚ 141‚ 148f.‚ 153‚ 155 Dictionnaire 217‚ 226
Canada‚ Criminal Code 135f.‚ 156 Dinges‚ M. 219‚ 226
Canada‚ House of Commons 148‚156 Doner‚ H. E. 23
Canada‚ Senate 148‚ 156 Doob‚ A. N. 137–139‚ 156
Canada‚ Solicitor General 148‚156 Dörter‚ M. 108‚ 120
Canada‚ Statutes of Canada 135‚ 150‚ 156 Dost‚ A. 70‚ 80
Canadian Sentencing Commission (CSC) Douglas‚ M. 4‚ 6f.‚ 23
147‚ 150–153‚ 156 Douma‚ E. 69‚ 79
Caplan, A. L. 190‚ 198 Dowdy‚ R. H. 23
Caruana‚ W. 89‚ 92‚ 101 Dowie, J. 250‚ 264
Casscells‚ W. 249f.‚ 253‚ 264 Dreier, T. 88‚ 101
Castells‚ M. 154‚ 156 Dudan‚ B. 220‚ 226
Castles‚ A. 86‚ 101 Durant‚ J. 8‚ 24
Chaney‚ R. L. 10f.‚ 12‚ 23f.
Chang‚ A. C. 11‚ 23f. E
Chanock‚ M. 86‚ 101 Eberhardt‚ K.-H‚ 69‚ 71‚ 76‚ 79f.
Chaudri‚ A. M. 15‚ 23 Ebert‚ A. 261‚ 264
Cheng‚ P. W. 260‚ 264 Eddy‚ D. M. 250‚ 252f.‚ 264
Chesterman‚ S. 90‚ 101 Ederer‚ F. 265
Chia‚ A. 272‚ 278 Edwards‚ B. 87‚ 101
Christensen-Szalanski‚ J. J. J. 251‚ 253‚ 264 Edwards‚ P. N. 160‚ 176
Church‚ T.R. 265 Egmond‚ N. D. van. 172‚ 175
Clark‚ W. 221‚ 225 Elias‚ N. 35‚ 45
Clark‚ W. C. 174f. Ellinson‚ D. A. 88–90‚ 101
Clouser‚ K. D. 189‚ 198 Elshtain‚ J. B. 34‚ 44
Cohen‚ G. A. 188‚ 198 Elstein‚ A. 250‚ 264
Cole‚ D. W. 23 Engels‚ F. 224‚ 226
Name Index 305
EPA—US Environmental Protection Agency Gould‚ S. J. 270‚ 278

10–13‚ 15‚ 21‚ 23 Grandke‚ A. 67‚ 71‚ 76‚ 78–80
Erhard‚ L. 49‚ 54–56‚ 61 Grant‚ W. 160‚ 171‚ 174f.
Ericson‚ R. V. 126‚ 156‚ 158 Gray‚ P. N. 136‚ 156
Ericsson‚ K. A. 287‚ 300 Gray‚ S. 86‚ 89‚ 101
Etzioni‚ A. 34‚ 37‚ 45 Grayboys, T. 249‚ 264
European Communities (EU) 14‚ 23 Greenwood‚ P. W. 128‚ 156
Evans‚ M. 91‚ 101 Grennfelt‚ P. 169‚ 171‚ 175
Griswold‚ W‚ 31‚ 36‚ 45
F Grote‚ L. R. 108‚ 120
Familiengesetzbuch der Deutschen Demo- Grubb‚ J. S. 222‚ 226
kratischen Republik vom 20. Dezember Gummow, W. M. C. 91‚ 102
1965 73‚ 75‚ 77‚ 80 Gusfield‚ J. R. 31‚ 35f.‚ 45
Ferrante‚ R. 220‚ 223‚ 226
Ferwerda‚ M. P. 204‚ 212 H
Feth‚ A. 70‚ 80 Haas‚ P. 174‚ 175
Fienberg‚ S. E. 278 Haas‚ P. M. 3‚ 4‚ 6‚ 7‚ 20‚ 22‚ 24
Fineberg‚ H. V. 250‚ 264 Habermas‚ J. 3‚ 5‚ 22‚ 24‚ 28‚ 45‚ 51‚ 61‚
Fischer‚ W‚ 217‚ 218f.‚ 226 154‚ 156
Føllesdal‚A. 179‚181 Habicht‚ H. 12‚ 24
Foster‚ K. R. 3‚ 6‚ 23‚ 124‚ 126‚ 156 Haeni, H. 15‚ 23
Foucault‚ M. 129‚ 156‚ 219‚ 226 Hagerty‚ K. D. 126‚ 156
Frank‚ M. 219‚ 226 Haigh‚ N. 14‚ 24
Franson‚ R.T. 137‚ 156 Halfeld‚ A. 115‚ 120
Freckelton‚ I. 134‚ 156 Hall‚ J.E. 15‚ 24
Frey‚ B. 170‚ 171‚ 175 Halliday‚ E. C. 166‚ 167‚ 175
Friedman‚ L. M. 270‚ 278 Hamm‚ R. M. 250‚ 264
Friedrich‚ R. 169‚ 176 Hand‚ L. 269‚ 278
Fritzsche‚ A. F. 8‚ 23 Hann‚ R. G. 128‚ 155
Hanson‚ R. K. 129‚ 157
G Hård‚ M. 115‚ 120
Galbraith, V.H. 217‚ 226 Hardy‚ D. 171‚ 175
Galison‚ P. 298‚ 300 Harman‚W.G. 128‚ 155
Gallistel‚ C. R. 252‚ 264 Harre‚ D. 189‚ 198
Garcia‚ L. D. 4f.‚ 23 Harris‚ A. 129‚ 157
Geertz‚ C. 7‚ 23 Harris‚ M. 94, 96‚ 101
Gelman‚ R. 252‚ 264 Hathaway‚ S. C. 18‚ 24
Gendreau‚ P. 128‚ 156 Hau‚ M. 83‚ 105‚ 111‚ 120
Gerlach‚ I. 27‚ 45 Hebig‚ D. 71‚ 73‚ 79
Gert‚ B. 189‚ 198 Heinemann‚ E. D. 69‚ 80
Giddens‚ A.30‚ 45‚ 52‚ 61 Heinemann‚ K. 189‚ 198
Giersch‚ H. 57‚ 61 Hempel‚ C. 124
Gigerenzer‚ G. 229‚ 249–256‚ 259–261‚ Herf, J. 53‚ 61
263–265‚ 274f.‚ 278‚ 282‚ 299f. Herschel‚ C. 270‚ 278
Gilhaus‚ U. 163–165‚ 175 Hertwig‚ R. 252‚ 254‚ 263‚ 265
Giller‚ K.E. 15‚ 23 Heu‚ E. 57‚ 61
Giske‚ R. 181‚ 189‚ 198 Heuer‚ K. 72‚ 80
Goggin‚ C. 128‚ 156 Heydon, J. D. 93‚ 101
Göhring‚ J. 70‚ 80 Heymann‚ M. 83‚ 159‚ 169f.‚ 175f.
Goldscheider‚ A. 116f.‚ 120 Heymann‚ P. 151
Goldstein‚ N. 11‚ 24 Hilgartner‚ S. 31‚ 45
Gooding‚ D. 281‚ 294‚ 300 Hinesly‚ T. D. 23
Gottfredson‚ D. M. 128‚ 156f. Hintze‚ O. 217‚ 226
Gottfredson‚ M. 128‚ 156 Hirsch‚ A.von l28‚ 151‚ 157
306 Name Index
Hitzler‚ R. 31‚ 42‚ 45 Kahn‚ F. 114‚ 120

Hoefs‚ B. 68‚ 80 Kahneman‚ D. 252‚ 265
Hoffrage‚ U. 229‚ 249‚ 251–256‚ 259–261‚ Kamm‚ F. 182f.‚ 190‚ 195‚ 198
263–265‚ 274‚ 278‚ 282‚ 300 Kant‚ I. 282‚ 285–287‚ 299f.
Hofstede‚ G. 7‚ 24 Kapferer‚ Dr. med. 118‚ 120
Hogarth‚ J. 137–139 Kaplan‚ C. A. 296–300
Hoke‚ R. 217‚ 227 Karnell‚ G. 88‚ 101
Holquist‚ M. 282‚ 300 Kater‚ M. 105‚ 111‚ 120
Holstein‚ J. A. 31‚ 36‚ 45 Katzenstein‚ P. J. 50‚ 62
Holt‚ J.C. 217‚ 227 Kaufmann‚ F.-X. 27‚ 32‚ 35‚ 41‚ 45
Höpfner‚ F. 113‚ 120 Kaye‚ D. H. 278
Horkheimer‚ M. 5‚ 24 Keable‚ J. F. 149
Hov‚ Ø. 169‚ 171‚ 175 Kellenbenz‚ H. 221‚ 227
Hubenstorf‚ M. 106‚ 120 Keohane‚ R. O. 174f.
Huber‚ P. W. 3‚ 6‚ 23‚ 124‚ 126‚ 156‚ 270‚ Keon-Cohen‚ B. A. 95‚ 102
278 Kiloh‚ L. G. 131‚ 158
Hucker‚ G. 15‚ 23 Kitsuse, J. I. 31‚ 35‚ 46
Hucker‚ T. W. G. 15‚ 24 Klasen‚ E.-M. 107‚ 121
Huerkamp‚ C. 107f.‚ 120 Kleimann‚ B. 216‚ 227
Hughes‚ E. C. 190‚ 198 Kleiter‚ G. D. 251‚ 265
Hume, D. 154 Kloepfer‚ M. 165‚ 176
Humphreys‚ R. 217‚ 227 Knapton‚ M. 221f.‚ 226f.
Husserl‚ E. 154 Knoepfel‚ P. 168‚ 172‚ 176
Knorr-Cetina‚ K. D. 145‚ 157
I Köbberling‚ J. 250‚ 253‚ 265
Inglehart‚ R. 7‚ 24 Koch‚ U. 75‚ 81
International Encyclopedia of Sociology 281‚ Koehler‚ J. J. 250‚ 262f.‚ 265‚ 272‚ 274f.‚ 278
287‚ 300 Koentjaraningrat 99‚ 102
Ippolito‚ M. F. 295‚ 300 Kommission für wirtschaftlichen und sozia-
Irwin‚ A. 3f.‚ 6‚ 8f.‚ 24 len Wandel 49‚ 62
Isaacs‚ J. 88‚ 102 Korcak‚ R. F. 23
Isaksen‚ I. S. A. 159‚ 176 Krabbe‚ W. R. 108‚ 121
Istituto per la documentazione guiridica‚ Krehl‚ L. von 108‚ 121
Consiglio Nazionale delle Ricerce 136‚ Kretschmayr‚ H. 219‚ 227
157 Kretschmer‚ E. 108‚ 111‚ 121
Krüger‚ L. 265
J Kuhn‚ T. S. 3‚ 24
Jackson‚ J. L. 127‚ 157 Kurzenhäuser‚ S. 263‚ 265
Jacobs‚ L. W. 11‚ 24 Kurz-Milcke‚ E. M. 229‚ 281f.‚ 287f.‚ 294f.‚
Jänicke‚ M. 168‚ 176 298‚ 300
Janke.T. 87‚ 102 Kymlicka, W. 184‚ 186–189‚ 196‚ 198
Jarausch‚ K. H. 65‚ 67‚ 80‚ 105‚ 120
Jasanoff‚ S. 3–9‚ 24‚ 125‚ 131‚ 135‚ 139‚ 145‚ L
157‚ 160‚ 176 L’Hermite‚ P. 14f.‚ 23f.
Jessen‚ R. 71‚ 80 Lachmund‚ J. 107‚ 116‚ 119‚ 121‚ 229
Johnson‚ L. K‚ 123‚ 157 Lanaro‚ P. 221‚ 226
Johnston‚ P. L. 132‚ 157 Landwehr, A. 179‚ 215
Jones‚ C. M. 252‚ 265 Langbein‚ J. H. 132‚ 157
Jonides‚ J. 252‚ 265 Law Reform Commission 86‚ 102
Joss‚ S. 8‚ 24 Le Goff‚ J. 222‚ 227
Jütte‚ R. 108‚ 120 Leblanc‚ M. 128‚ 157
Legault‚ F. 135‚ 157
K Lehane‚ J. R. F. 91‚ 102
Kagan‚ R. A. 6‚ 10‚ 24 Lehman‚ W. 141‚ 157
Name Index 307
Leibniz 294 Moraw‚ P. 217‚ 227
Leiss‚ L. 3‚ 25 Morse‚ D. 10–12‚ 25
Lempert‚ R. O. 273‚ 278 Mousnier‚ R. 218‚ 227
Levine‚ D. I. 210‚ 212 Moyser‚ G. 39‚ 45
Levy‚ E. 3‚ 25 Much‚ H. 110f.‚ 121
Levy‚ M. A. 174f. Muirhead‚ K. 171‚ 175
Liek‚ E. 108‚ 111f.‚ 115‚ 117f.‚ 121 Müller‚ E. 164‚ 166‚ 176
Lind‚ E. A. 212f. Muller‚ J. Z. 54‚ 62
Lindenbergh‚ S. D. 202‚ 204‚ 212 Müller-List‚ G. 69‚ 80
Lindsey‚ S. 229‚ 254‚ 265‚ 269‚ 272‚ 275‚ Mummert‚ O. 118‚ 121
278 Murswieck‚ A. 35‚ 45
List Gesellschaft 57‚ 62
Little‚ T. 128‚ 156 N
Locke‚ J. 154 Naschold‚ F. 50‚ 62
Logan‚ T. J. 9‚ 11‚ 24‚ 25 Natali‚ F. C. 136‚ 157
Lopez‚ C. C. 221‚ 227 National Archives of Canada‚ Government
Lovegrove‚ A. 136‚ 157 Archives Division (NAC) 140–142‚ 157
Lüdtke‚ A. 222‚ 227 National Research Council (NRC) 8‚ 11‚ 25‚
Luhmann‚ N. 58‚ 60‚ 62‚ 74‚ 80‚ 218‚ 227 271f.‚ 278f.
Lundgreen‚ P. 217–219‚ 226 Nave-Herz‚ R. 32‚ 35‚ 41‚ 45
Neate‚ G. 92–97‚ 102
M Nersessian‚ N. J. 294‚ 298‚ 301
Maclean‚ A. 183–185‚ 188f.‚ 198 Neumann‚ U. 74‚ 80
Maddalena‚ A. de 221‚ 227 Neustätter‚ O. 109‚ 121
Mahler‚ R. J. 11‚ 24 Newell‚ A. 296‚ 301
Mandel‚ J. S. 253‚ 265 Nolan‚ M. 115‚ 121
Manning‚ P. K. 127‚ 157 Novick‚ L. R. 260‚ 264
Maranini‚ G. 219‚ 227
Maritain, J. 186f.‚ 198 O
Marshal‚ E. 10‚ 24 O’Brien‚ B. 208‚ 213
Marshall‚ E. 253‚ 265 O’Connor‚ G. A. 11‚ 24
Martignon‚ L. 298‚ 300 O’Neill‚ O. 282‚ 285f.‚ 299‚ 301
Martino‚ A. A. 136‚ 157 O’Riordan‚ T. 4‚ 6‚ 8‚ 14‚ 16‚ 23‚ 25
Masi‚ G. 220‚ 227 Olbrechts-Tyteca‚ L. 37‚ 45
Mathes‚ P. 111‚ 121 Ontario 149‚ 157
Mayntz‚ R. 28‚ 45‚ 50‚ 56‚ 58‚ 60‚ 62‚ 164‚ Organisation for Economic Co-operation
168f.‚ 176 and Development (OECD) 161‚ 170‚
McCarthy‚ E. 4‚ 24 176
McClelland‚ C. E. 107‚ 121 Orne‚ M. T. 270‚ 279
McGrath, S. P. 10f.‚ 15f.‚ 23f. Ott‚ H. 15‚ 24
McKenzie‚ C. R. 260‚ 265 Ott‚ R. 162‚ 175
McKeough‚ J. 87‚ 102 Overcash‚ M. A. 11‚ 24
McPherson‚ M. S. 193‚ 198 Özdemiroglu‚ E. 170‚ 175
Meagher‚ R. P. 91‚ 102
Mehan‚ H. 282‚ 300 P
Menzel‚ P. T. 195‚ 198 Page‚ A. L. 9‚ 11‚ 24f.
Menzies‚ R. J. 134‚ 157 Park‚ N. W. 137‚ 156
Metzler‚ G. 1‚ 47‚ 54‚ 62 Parkinson‚ P. 86‚ 91‚ 102
Meuschel‚ S. 77‚ 80 Paulos‚ J. A. 255‚ 258‚ 265
Miller‚ C. 160‚ 176 Pearce‚ D. 170‚ 175
Miller‚ G. 31‚ 36‚ 45 Penuti‚ C. 224‚ 227
Moeller‚ R. G. 32‚ 45‚ 69‚ 80 Perelman‚ C. 37‚ 45
Mohrs‚ T. 285‚ 301 Peterson‚ J. 15‚ 25
Momeyer‚ R. W. 181‚ 188f.‚ 192f.‚ 198 Peukert‚ D. 115‚ 121
308 Name Index
Pieters‚ J. A. 204‚ 213 Rothstein‚ H. 4‚ 24

Pilot‚ H. 22 Rottleuthner‚ H. 65‚ 80
Plé‚ B. 56‚ 62 Rovito‚ P. L. 220‚ 227
Plitzko‚ A. 57‚ 62 Royal Commission on Environmental Pollu-
Poirier, R. 129‚ 132–134‚ 157 tion 4–6‚ 10‚ 25
Poletiek‚ F. H. 179‚ 201‚ 204‚ 212 Ruck‚ M. 65‚ 80
Politser‚ P. E. 250‚ 253‚ 265 Ryan‚ J. A. 9‚ 11‚ 23‚ 24f.
Popenoe‚ D. 32‚ 34‚ 37‚ 40‚ 45f. Rycroft‚ R. W. 168‚ 176
Popitz‚ H. 56‚ 62 Rygiewicz‚ P. 11‚ 24
Popper‚ F. 140–142‚ 157
Popper‚ K. 124 S
Popper‚ K. R. 22 Salter‚ L. 3‚ 6‚ 8f.‚ 25‚ 125‚ 158‚ 160‚ 176
Porter‚ T. 265 Saltzburg‚ S. 124‚ 158
Poster‚ M. 219‚ 227 Sandnes‚ H. 169‚ 176
President’s Commission on Law Enforce- Sauerbeck‚ D. R. 15‚ 23f.
ment and the Administration of Justice Savage‚ G. 215‚ 227
147‚ 158 Sayer‚ D. 221‚ 226
Prittwitz‚ V. von 161‚ 163‚ 167‚ 176 Scanlon, T. M. 190f.‚ 199
Puri‚ K. 88–90‚ 102 Scarabello‚ G. 221‚ 226
Scharpf‚ F. 50‚ 62
Q Schelsky‚ H. 56–58‚ 61f.
Québec 149‚ 153‚ 158 Schiffer‚ E. 68‚ 72‚ 80
Quine, W. V. O. 189‚ 198 Schirrmacher‚ P. 118‚ 121
Schleich‚ C. L. 107‚ 121
R Schmid‚ W. 118‚ 121
Radkau‚ J. 112‚ 121 Schmidt-Gernig‚ A. 54‚ 62
Rakel‚ H. 1‚ 3‚ 5‚ 16‚ 25 Schmitt‚ C. 129‚ 158
Rami‚ B. 171‚ 176 Schneider‚ F. 170f.‚ 175
Ramm‚ T. 68‚ 80 Schneider‚ T. 160‚ 176
Rawls‚ J. 186‚ 198 Schneider‚ U. 1‚ 65‚ 69‚ 73‚ 80
Real‚ L. A. 252‚ 265 Schoenberger‚ A. 249‚ 264
Regens‚ J. L. 168‚ 176 Schönfeldt‚ H.-A. 72‚ 80
Regin‚ C. 108f.‚ 121 Schramm‚ E. 162‚ 175
Reinhard‚ W. 218‚ 227 Schröder‚ R. 66‚ 80
Reiser‚ S. 116‚ 121 Schroeder‚ K. 73‚ 80
Relazioni 224‚ 227 Schulze, W. 218‚ 227
Renn‚ O. 4–6‚ 8‚ 10‚ 14‚ 25 Schum‚ D. A. 260‚ 265
Richardson‚ H. 189‚ 198 Schuman‚ L. M. 265
Richter‚ H. R. 260‚ 265 Schwartz‚ B. 141‚ 158
Ricketson‚ S. 88‚ 102 Sciuti Russi‚ V. 220‚ 228
Rietz‚ E. 15‚ 23 Scott‚ J. W. 225‚ 228
Robertson‚ J. 134‚ 158 Sedlmeier‚ P. 252‚ 263‚ 265
Robitscher‚ J. 129‚ 158 Shapiro‚ M. 282‚ 301
Rockman‚ B. 43f. Sherman‚ B. 86‚ 102
Rohe‚ K. 7‚ 25 Sherman‚ L. W. 123‚ 158
Rohrmann‚ B. 8‚ 25 Shrader-Frechette‚ K. S. 5‚ 25
Rommelspacher‚ T. 161‚ 175 Siegrist‚ H. 65‚ 81
Rorty‚ R. 186‚ 199 Silber‚ E. 118‚ 121
Rose‚ M. E. 217‚ 227 Simon‚ H. A. 287‚ 296–301
Rosencrantz‚ A. 168‚ 177 Simorangkir‚ J. C. T. 99‚ 102
Roser‚ A. 285‚ 301 Simpson‚ J. A. 216f.‚ 228
Rosidi‚ A. 99‚ 102 Singer‚ O. 31‚ 43‚ 46
Ross‚ A. M. 134‚ 158 Singer‚ P. 183‚ 199
Ross‚ J. S. R. 5‚ 25 Skea‚ J. 169‚ 175
Name Index 309
Skolnick‚ A. 31f.‚ 34‚ 46 V

Slaco‚ D. 125‚ 158
Smith‚ J. E. 23 Vacha‚ J. 111‚ 122
Smith‚ J. S. 131‚ 158 van den Bos‚ K. 212f.
Snover‚ D. C. 265 van der Linden‚ S. 205‚ 212
Sparschuh‚ V. 75‚ 81 van der Loo‚ H. 5‚ 25
Spector‚ M. 31‚ 35‚ 46 van der Sluijs‚ J. P. 168‚ 170‚ 176
Spelsberg‚ G. 160‚ 162‚ 165f.‚ 176 van Reijen, W. 5‚ 25
Spiegelberg‚ F. 167‚ 176 Varanini‚ G. M. 221‚ 228
Stacey‚ J. 32‚ 34‚ 37‚ 40f.‚ 46 Vecchiato‚ F. 221‚ 226
Stanner‚ W. E. H. 87‚ 102 Verein für Socialpolitik 57‚ 62
Steding‚ R. 72‚ 81 Verwaltungs-Hochschulwochen 58‚ 62
Stehr‚ N. 30‚ 44‚ 46‚ 60‚ 62‚ 126‚ 154‚ 158‚ Viramontes, J. L. 208‚ 213
160‚ 176 Vogel‚ M. 113‚ 122
Steiner‚ H. 75‚ 81
Stern‚ A. C. 166f.‚ 176
W
Stewart‚ A. 87‚ 102 Waid‚ W. M. 270‚ 279
Stigler‚ S. M. 251‚ 265 Walker‚ L. 33‚ 46
Stine‚ G. J. 261‚ 265 Wallich‚ H. C. 51‚ 62
Stolberg‚ M. 165f.‚ 176 Walter‚ W. 1‚ 27‚ 32‚ 34–36‚ 39‚ 40f.‚ 46
Stolker‚ C. J. J. M. 179‚ 201f.‚ 204‚ 206‚ Wambugu Githaiga‚ J. 88‚ 102
209f.‚ 212 Waxman‚ C. 54‚ 63
Stollberg‚ G. 107f.‚ 116‚ 121 Weaver‚ R. K. 41‚ 43‚ 46
Stolleis‚ M. 221‚ 228 Weber‚ H. 77‚ 81
Storch‚ H. von 160‚ 176 Weber‚ M. 74‚ 81
Styve‚ H. 169‚ 176 Webler‚ T. 5‚ 6‚ 25
Susskind‚ R. E. 136‚ 139‚ 158 Weidner‚ H. 168‚ 172‚ 176f.
Swain‚ T. 87‚ 99‚ 102 Weindling‚ P. 112‚ 122
Swijtink‚ Z. 265 Weiner‚ J. G. 88‚ 99‚ 102
Weinstein‚ M. C. 250‚ 264
T Weir‚ B. S. 272f.‚ 279
Tagliaferri‚ A. 221f.‚ 228 Weisbard‚ A. J. 181‚ 192f.‚ 196‚ 199
Technische Anleitung Luft 164‚ 167‚ 176 Weisbrod‚ B. 105‚ 122
Thibaut‚ J. 33‚ 46 Weiss‚ C. H. 29‚ 46
Thompson‚ D. F. 190f.‚ 199 Wentker‚ H. 66‚ 81
Thompson‚ W. C. 272‚ 279 Wetstone‚ G. 168‚ 177
Tonry, M. 128‚ 156 Wey‚ K.-G. 163‚ 166‚ 177
Tooby‚ J. 253‚ 264 Weyer, J. 56‚ 63
Töpfer‚ K. 171‚ 176 Whitehead‚ B. D. 34‚ 37f.‚ 41‚ 46
Toulmin‚ S. E. 37‚ 46 Wicke‚ L. 161‚ 177
Tremblay‚ R. E. 129‚ 158 Wiedemann‚ P. 5‚ 25
Trienes‚ R. 111‚ 121 Wikler‚ D. 193f.‚ 199
Trukenmüller‚ A. 169‚ 176 Wildavsky‚ A. 4‚ 6f.‚ 23
Tversky‚ A. 252‚ 265 Wilke‚ H. A. M. 212f.
Tweney‚ R. D. 281‚ 295‚ 299–301 Wilke‚ M. 73‚ 80
Williams‚ B. 186‚ 199
U Willigenburg‚ T. van 185‚ 189f.‚ 195‚ 199
Uekötter‚ F. 162‚ 164f.‚ 169‚ 173‚ 177 Wilson‚ J. Q. 141‚ 158
United Nations Economic Commission for Windeler‚ J. 250‚ 253‚ 264f.
Europe (UNECE) 161‚ 177 Wingens‚ M. 29‚ 46
United Nations Environment Program (UN- Wirtz‚ R. 110‚ 122
EP) 161‚ 177 Wissenschaftsrat 166‚ 172f.‚ 177
Unruh‚ G.-C. von 218‚ 228 Witter‚ E. 11‚ 24
US Department of Justice 147‚ 158 Wolf‚ R. 160‚ 163–167‚ 169‚ 177
310 Name Index
Wolf‚ S. 196‚ 198 Y

Wolff‚ E. 105‚ 122 Yearley‚ S. 4‚ 24
World Trade Organization (WTO) 5‚ 9‚ 16–
20‚ 25 Z
Wuttke-Groneberg‚ W. 108‚ 122 Zabik‚ M. J. 11‚ 24
Wynne‚ B. 4‚ 6‚ 8‚ 14‚ 25 Zedler‚ J. H. 216‚ 228
Subject Index
A civil servant 58‚ 65‚ 72‚ 151‚ 286

coach 179‚ 181‚ 183‚ 187‚ 189–191‚ 196f.
Aboriginal artist 85‚ 87–91‚ 94‚ 97f.‚ 101 codex 5‚ 17f.
adversarial 8‚ 14‚ 21‚ 24‚ 28‚ 125‚ 132‚ 148 coincidental match 271f.
adversarial model 28‚ 33–35 colorectal cancer 251–253‚ 256‚ 266
adversarial vs. inquisitorial model 41 commissioner 94f.‚ 140‚ 142‚ 144‚ 152‚ 179‚
advisor 1‚ 3f.‚ 9‚ 21df.‚ 28‚ 30‚ 34f.‚ 43‚ 51‚ 58‚ 184‚ 196‚ 215–223‚ 225
60f.‚ 139‚ 151‚ 190f.‚ 231 committee 5‚ 11–13‚ 18‚ 22‚ 34‚ 67‚ 69–78‚
agency 1‚ 10f.‚ 17‚ 21‚ 35‚ 89‚ 125‚ 139‚ 109f.‚ 123‚ 139‚ 141‚ 148‚ 152‚ 159‚
148–150‚ 168‚ 235‚ 258‚ 281f.‚ 287f.‚
171‚ 179‚ 181–184‚ 186f.‚ 189–197‚ 235
293–299 communist 66–68‚ 70‚ 72f.‚ 75‚ 78
Aid to Families with Dependent Children Communist Party of Germany 66
(AFDC) 32 comparative law 31
AIDS counselor 229‚ 253‚ 261 competence 3‚ 42‚ 66‚ 68‚71f.‚ 105f.‚ 108‚
alienation 110‚ 115 111‚ 119‚131‚ 164f.‚ 182‚ 210‚ 217
Americanism 115 computer simulation 159‚ 297
ankylosing spondylitis 253‚ 256‚ 267 confidentiality 194
anthropologist 83‚ 85‚ 95–97‚ 100 consistency 150‚ 186f.‚ 196
archive 71‚ 73‚ 76f.‚ 79‚ 140f.‚ 220‚ 223f. consultant 51‚ 60‚ 123f.‚ 135‚ 140‚ 144f.‚
authority 7‚ 20‚ 40‚ 42‚ 61‚ 71‚ 99f.‚ 105– 179‚ 181–184‚ 189–195‚ 197
108‚ 110–112‚ 116f.‚ 119‚ 125‚ 141‚ Continental tradition 33‚ 278
152‚ 165f.‚ 179, 185‚ 190f.‚ 216f.‚ 221‚ copyright
223‚ 229‚ 271‚ 278‚ 281–288‚ 295f.‚ copyright protection 83‚ 85‚ 88
298f. copyright violation 85
authorization 89–91‚ 98
criminal law 83‚ 123–127‚ 129–132‚ 136‚
B 139‚ 141f.‚ 145–147‚ 150‚ 154
criminology 123‚ 125‚ 130‚ 133‚ 151
base rate 250f.‚ 253‚ 260‚ 262‚ 275f. cultural
Bayes cultural bias theory 4‚ 7
Bayes’s rule 250–252‚ 258f.‚ 261‚ 263 cultural war 32
Bayes’s theorem 273f. customary law 83‚ 85–87‚ 89f.‚ 92–95‚ 98‚
best technology 169 100
bioethics 184f.‚ 195
biotope 232–236‚ 238‚ 240–243‚ 245 D
biotope mapping 231‚ 234–236‚ 239‚ decision 3–9‚ l lf.‚ 15f.‚ 19f.‚ 22‚ 33‚ 36‚ 43‚
245 47–50‚ 52‚ 55–60‚ 76‚ 87‚ 90–92‚ 95‚
bovine spongiform encephalopathy (BSE) 6 100‚ 110‚ 127–129‚ 137–139‚ 152‚ 159‚
breast cancer 249f.‚ 253‚ 256‚ 267 163‚ 165‚ 173‚ 182‚ 184f.‚ 190f.‚ 197‚
203–205‚ 208‚ 211‚ 223f.‚ 231‚ 250‚
C 270‚ 276‚ 284
Canadian Sentencing Commission (CSC) decisionism 129
137‚ 145‚ 147‚ 150 democracy 50, 57‚ 68‚ 140‚ 147‚ 183f.‚ 197
cartographic strategy 238f.‚ 243 Democratic Women’s Union of Germany 69
casuistry 126 discourse 1‚ 5‚ 27–29‚ 31‚ 35‚ 39–43‚ 53‚
Categorical Imperative 285f.‚ 299 55f.‚ 58f.‚ 66‚ 97‚ 106‚ 108‚ 110‚ 113‚
charisma 108‚ 112‚ 117 116‚ 118‚ 166‚ 219–222‚ 224f.‚ 233f.‚
civil 243‚ 245
civil code 66‚ 70–73‚ 202f.‚ 206‚ 209 DNA
civil law 70‚ 72–74‚ 77–79‚ 98‚ 163 DNA analysis 269–272‚ 275f.‚ 278
311
312 Subject Index
DNA expert 262, 271f. feminist 50, 98

DNA fingerprinting 126, 134, 263 fiduciary obligation 91
DNA match 271–276 folklore 85, 87f., 98, 100
DNA profile 269, 271f., 274–276 French Academy of Science 218
drugs 8f., 18, 108, 118f., 134 frequency representations 255, 263
dual model 28
G
E gatekeeping 271f.
early modern state 217–221 German Civil Code 66, 70–73
economic instruments 170f. German Federal Environmental Agency 168
economist 43, 51, 55, 57f., 160, 167, 170, globalization 4, 5, 20, 22
173 good life 183, 283f.
effects-based strategies 169 Guthrie test 253, 256, 267f.
elders 85, 91, 94, 101, 284
elite 1, 7, 39, 43, 50f., 59–61, 65f., 78, 127, H
222, 224 habitat 229, 231, 233
empathy 106, 111f., 117 Halbwissen 117
engineer 83, 105, 115, 160, 162 health 1, 4, 6, 9, 16–18, 20–22, 106–109,
Enlightenment 281f., 285–287 112-115, 118f., 160–162, 165, 167,
environmental 172, 195, 204f., 207f., 249, 261
environmental policy 19, 160f., 164, hemoccult test 251, 253, 256, 266
170f., 174 heterodoxy 30, 36
Environmental Protection Agency 10, heuristics 296f., 299
125, 139 historian 66, 100, 107, 116, 159f., 165, 174,
environmental regulation 5, 21, 163, 215–217, 220, 225
169f. historical expertise 83, 159, 174
environmental research 160f., 172f. historical individual 1, 83, 229
environmental scientist 231, 233, 235 HIV 141, 149, 203, 261f.
epistemic HIV test 261
epistemic communities 6f., 20 holistic approach 108, 110, 126
epistemic community formation 4, 6, hormone 16–18
22 hormone-raised beef 4, 9, 16f., 19
ethics 179 human rights 131, 142, 186, 223
ethics consultant 179, 181 hygienic education 109, 117f.
EUROTRAC 159, 168-171, 174
expert I
expert evidence 85, 93, 96–98, 100, incarceration 128, 130, 147, 150f., 153
124, 270 informed consent 188, 189, 249
expert system 83, 124, 127, 136 innumeracy 229, 255, 258
expert witness 83, 85, 93, 95–97, 124, inquisitorial
131–135, 138, 179 inquisitorial model 28, 34, 41–43
expertus 124, 216 inquisitorial vs. the adversarial models
33
F institution 5, 11, 22, 28, 31, 33–35, 48, 51–
false 53, 58f., 77, 90, 126, 131, 133, 137,
false positive error 272, 275 141, 147, 166f., 173, 182, 184, 192,
false positive rate 250f., 256, 260 215, 217–220, 222f., 229, 232f., 255,
families 27, 32, 35f., 38, 41, 67, 77, 129 283, 285
family Integrated Assessment Modeling 170
family debate 27f., 31–34, 37–43 intellectual property right 87
family law 66–69, 71–79 International Standards Organization (ISO)
family policy 1, 27, 31, 33 5
Family Support Act 32 internationalization 5, 168
family values 34, 55 interview 36, 39f., 71, 74, 76, 79, 138, 149,
Subject Index 313
224, 237, 254, 256, 259, 264 N

intuition 111–113, 129, 144, 185f., 258
National Socialism 54, 65, 69, 241
natural therapy 83, 106, 108–110, 112f.,
J 118f.
judge 33, 66, 68, 70f., 74, 90f., 93–96, 126,
Nazis 69
129f., 132–134, 137–139, 179, 202–
nicotine 8
205, 221, 262, 269–272, 278, 285
nuclear power 8
juror 262, 269, 271f., 274
K O
Kameralistik 218 object 37, 47, 60, 86, 111f., 128, 141, 149,
Keynesian theory 57 192, 232, 236, 245, 281f., 293, 295f.,
knowledge society 29f., 42–44, 154, 225 298f.
Office of Technology Assessment 4
L origin 9, 87, 167, 284
laboratory proficiency test 272, 275 orthodox 34f.,37f., 106, 108–111, 116–119
landscape 88f., 91, 231, 233f., 237, 240f., orthodox physician 105f., 109–111,
245 116–119
Law Reform Commission of Canada 140, orthodoxy 30, 36
145f.
lawyer 65–75, 78f., 88, 92, 95f., 105, 123, P
126, 129, 132, 138f., 141, 148f., 192, patent 70, 87, 162, 270
204, 211 patient 106–108, 110–117, 119, 149, 203,
lay public 30, 105–107, 109, 116–119 205, 229, 249, 255, 258, 267, 283
legal Personal Responsibility and Work Opportu-
legal monopoly 51 nity Reconciliation Act of 1996 (PRWO-
legal studies 28 RA)32
legal term 163, 201 personality 83, 108, 110–112, 117, 119
legitimacy 9, 20f., 52, 105–107, 109–111, phallometrician 131
119, 193f. phenylketonuria 253, 256,f., 267f.
legitimation 50f., 60f. philosopher 115, 124, 154, 179, 181–197,
liberal vs. conservative welfare state 41 283f.
likelihood ratio 262, 272–274 physician 83, 105–119, 229, 249f., 253,
255–264, 283
M planning 1, 47, 49–54, 57, 59-61, 229, 231–
Maastricht Treaty 16, 19 236, 240f., 243, 245
mammography 250, 252, 256, 267 policing 83, 126f., 131
mammography screening 249 policy 1, 6f., 9, 12f., 15, 17, 20–22, 27–29,
map 229, 232, 236–240, 242–245 31–33, 35f., 39, 41–43, 47–51, 54, 57,
Marxist 50 59f., 65–68, 70, 72, 75, 77f., 86, 94,
Marxist ideology 75, 78 129, 139, 141f., 144f., 151, 154, 159–
mathematician 281, 287f., 293–298, 300 161, 163f., 166–168, 170f., 174, 179,
mechanistic world view 113 181, 187, 190–193, 195, 197, 218, 231,
mediator 87, 220, 223 233
medical diagnosis 255, 258, 262 political affiliation 140, 144
Ministry of Justice 66–73, 76–78, 153 pollutant 9–14, 16, 159–161, 166, 169
model 7,11f., 27–35, 37, 41–43, 49, 57, 77, posterior probability 250f.
99, 112, 170f., 212, 229, 241, 243, 260, poverty 36, 38
283f., 294, 297f. precautionary principle 15f., 19, 21
modeling 170, 271, 294 prediction instrument 128, 131
modernity 48, 52f., 114, 245 probation officer 130
moral problem
moral entrepreneur 34 problem solving 126, 162, 281f.,
moral reasoning 183, 187f., 195f. 287f., 293–298
314 Subject Index
problem space 296–299 Socialist Unity Party of Germany 66

professionalization 65f., 107, 166, 231 specificity 26 1f.
property law 76f., 87 spin-doctors 153, 155
psychiatric testimony 124, 129, 135 standardization 105, 201, 211, 245
psychologist 133, 299 statistical reasoning 126, 229, 261f., 274,
public 276
Public Commissions of Inquiry 139f. stress 127
public health 1, 4, 6, 9, 16, 20f., 261 suffering 8, 107, 116, 201, 203f., 207–212,
public opinion poll 151, 153 258
surveillance 30
R syndics 215, 220–225
rape 274, 275
rationality 15, 28f., 38, 54, 190f., 194, 243 T
rationalization 53, 115 team expertise 154
reactionary modernism 53 technocracy 28, 29
regulation 3f., 8, 10, 12–16, 19–21, 76f., 90, Temporary Assistance for Need Families
163f., 167, 169, 202, 211, 221, 233f. (TANF) 33
regulatory therapeutic 17,83, 107–110, 113f., 118, 131
regulatory agencies 4, 8, 139 think tank 34, 39–41, 43
regulatory science approach 4, 22 trade 4f., 17, 20, 22, 49, 55, 57f., 87, 215,
relative risk reduction 249 298
religion 30, 87, 99, 217, 284, 287, 299 tradition 31, 33, 36f., 53, 56, 60, 66f., 72,
religious symbolism 85, 89, 99 77f., 85, 89f., 92, 98, 126, 128, 132,
representation of information 249 179, 185, 218, 222, 235, 237, 245, 269,
responsibility 32, 51, 68, 130, 133f., 146, 278, 282–285, 298f.
163, 165, 189–191, 193, 195, 197, trial of O. J. Simpson 273
270f., 284 trust 60, 106–108, 111, 117, 195
rhetoric 21, 34, 37, 39f., 106, 108, 110, 113, truth 34, 113, 154, 179, 183–185, 190,
115, 117–119 192f., 219–221, 223–225
risk 3f., 6f., 11–13, 18f., 128–130, 132f.,
151, 193f., 196, 249, 261f., 282 U
risk assessment 1, 11f., 15–19, 123, urban planning 231–234, 236, 240f., 243
126, 130 utilitarianism 184f., 188
S utilities 205, 208
utopian 115, 119, 192
safety regulations 4, 16
scientific V
scientific advisor 34f.
scientific community 38, 124f., 140, Verein Deutscher Ingenieure (VDI) 162,167
174, 270 victim 8, 135, 163, 179, 201–207, 209–212
scientific rigor 165
security 67, 127, 142, 148–150, 154 W
sensitivity 21, 170, 250f., 253, 256, 259– Weimar Republic 68f., 71, 78, 83, 105, 119
262, 275 welfare 27, 36–38, 41, 57, 109, 112, 217
sentencing welfare state 31, 35f., 41, 47, 59
Sentencing Data System (SDS) 137 world
sentencing disparity 137 World Health Organization (WHO)
sewage sludge regulation 9f., 13, 16, 19f. 18
single mothers 27,32, 36, 38f. World Trade Organization (WTO)
social scientist 35, 38, 40f., 48–51, 55, 58, 5, 9, 17, 19f.
60f., 139, 159f., 167f., 179
socialist Z
socialist law 73f., 76, 78 zoning 236, 239–243

Elke Kurz-Milcke, Gerd Gigerenzer-Experts in Science and Society (2003)

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Elke Kurz-Milcke, Gerd Gigerenzer-Experts in Science and Society (2003)

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Experts in Science

KLUWER ACADEMIC PUBLISHERS

©2004 Springer Science + Business Media, Inc.

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Created in the United States of America

Visit Springer's eBookstore at: http://www.ebooks.kluweronline.com

For none of those systems of thought without which we cannot do if we want

Name Index 303

Subject Index 311

Environmental and Public Health Standard Setting

Scientific evidence in the area of environmental and public health standard

Analysis of Expert Input to Regulatory Decision Making

Cultural Bias Theory

Because of the variety of assumptions, opinions, and interpretations included

Case Study I: Land Application of Sewage Sludge

In the USA: Experts Criticizing Experts

to assure a more representative assessment of the current situation (EPA, 1995,

Omission of organic compounds. Organic compounds were deleted from the

The Modified Rule 503. In summary, public consultation and, in particular,

In the EU: Experts Among Themselves

Summary of Case Study I

Case Study II: Hormone-Raised Beef

account risk assessment techniques developed by the relevant international

Summary of Case Study II

A Synthesis of Multiple Perspectives on Regulatory

Arbeitsgemeinschaft für Umweltfragen (Ed.). (1986). Das Umweltgespräch: Umweltstandards—

Morse, D. (1989, August). Sludge in the nineties. Civil Engineering, 47–50.

The Dual Model and the Study of Scientific Counseling

An Alternative Research Strategy

The Knowledge Society

The Construction of Social Problems

A New Approach to the Sociology of Experts

Experts and Policy Change: A Comparative Case Study

Work Opportunity Reconciliation Act of 1996 (PRWORA). Currently there are

Institutions and Strategies

Judicial Drama in the US

Bureaucratic Coordination in Germany

Methodological Issues in the Study of Experts

beddedness with respect to cultural traditions and welfare-state profiles in the

The Embeddedness of the Field

The Use of Rhetoric

means. Therefore, rhetorical analysis reveals the creative side of constructing a

The Reconstruction of Experts’ Strategies

The Interrelated Arenas and the Field of Family Debate

Definition of the Expert

Adversarial Versus Inquisitorial Model

Toward a Sociology of the Knowledge Society

Institutionalized Contacts Between Social Scientists and

Extending the Focus: Institutions as Authoritative Resources

Extending the Focus: Modernity in Post-War Germany

cal decision-making process. Although social scientific methods and ways of

Social Sciences and the Modernization of the West

“Social Scientification” of West German Politics: Channels of Influence

Erkenntnisverluste. Kontinuitäten und Diskontinuitäten in den Wirtschafts-, Rechts- und Sozialwis-

The Legal and Personnel Policy of the Soviet Military

From the Traditional to the Socialist Legal Expert

The Committee for Family Law

BArchB, DP 1 VA 8232; Stiftung Archive der Parteien und Massenorganisa-

Professional Standards and the Process of Scientification

man beings in the Family Law (FGB) (BArchB, DP 1 VA 1925; Familien-

winngemeinschaft (separate property with equal division of property acquired

“stuck on the road,” from traditional legal expertise, to socialist conceptions of

In October 1998, an article appeared in Australia’s national daily newspaper The