Yaffa Epstein

Natural Science in Law: Developing Theory and Methodologies for Interdisciplinary Research in Environmental Law

Terms and concepts originating in the natural sciences permeate the law. This is especially true in “new” legal fields like environmental and medical law, but is also true in many “classic” fields such as tort law, in which, for example, scientific expertise is often needed to determine risk or fault. Differing interpretations of these terms and concepts in different disciplines affect decision making and make it difficult to ascertain whether the law is being complied with. When scientific concepts are made part of the law, reference to the natural sciences is often necessary in order to properly understand or apply the law. If judges or other decision makers misunderstand or misuse natural science, the laws’ ability to achieve legislative goals may be hindered. This project has two specific objectives. First, we will analyze science-inflected legal concepts in several environmental regimes that regulate the topics of pesticides, genetically modified organisms, and species and habitat protection. By analyzing the legal and natural scientific aspects of these concepts, we will clarify the roles of jurists and natural scientists in interpreting environmental law to help improve environmental decision making in these areas. Our second objective is to facilitate the improvement of environmental decision making more broadly by developing a method for the interdisciplinary analysis of laws that contain scientific concepts.
Final report
Aim: The aim of this project was to address difficulties interpreting scientific concepts in law and had two specific objectives. First, it sought to analyze science-inflected legal concepts in several environmental regimes that regulate pesticides, genetically modified organisms, and species and habitat protection. By analyzing the legal and natural scientific aspects of these concepts, it further aimed to clarify the roles of jurists, natural scientists and other actors in interpreting environmental law to help improve environmental decision making in these areas. Our second objective was to facilitate the improvement of environmental decision making more broadly by developing methods for the interdisciplinary analysis of law.

Implementation: To narrow our case studies, we selected three legal terms that were currently being litigated within each of the three regulatory areas. The first case study that we examined was species protection, and we had selected the term “population of a species” as used in the Habitats Directive. Because of the timing of litigation (case C-674/17), we implemented and published our analysis of this question, as well as broadened the scope to include other legal-scientific terms relevant to the case, prior to beginning this project (“The Hunting of Strictly Protected Species: The Tapiola Case and the Limits of Derogation under Article 16 of the Habitats Directive” and “When is it Legal to Hunt Strictly Protected Species in the European Union?”), and experimented using an interdisciplinary narrative approach to examine the litigation around this issue for this project, described in Result 1. In our second case study, we selected the term “emergency” as used in the context of emergency authorizations in the Pesticide Regulation, which is currently the subject of litigation (case C-162/21). For our third case study, we intended to examine the term “genetically modified organism”, but because the case interpreting this term (case C-528/16) was decided before we completed the case study, we substituted “new genomic techniques” and “organic” as used in recent European Commission studies that reacted to the earlier case. Because the goal of this project was to generate new methods for interdisciplinary collaborate on as well as to generate substantive legal-ecological analysis, we initiated new collaborations for each case study and systematically considered our interactions.

Results: The results of this project are aimed first at law scholars, then at scholars in other disciplines who work with law scholars, then at policy makers and scholars within each case study area. In this brief summary, I focus on those results aimed at legal scholars. I also note that this project was ended early due to new obligations and not all results have not been published at the time of this final report. We will continue to update our project website, https://interdisciplinaryenvironmentallaw.com/ with project publications as they appear.

Result 1: Local experts should be considered potential co-authors when local expertise contributes to scholarship, specifically legal scholarship. This may include individuals with expertise about how they have been personally impacted by the law. Authorship is a frequent sticking point in interdisciplinary collaborations because of different standards of authorship in different disciplines. In law, sole authorship remains the standard while in ecology and many other scientific disciplines, persons whose contribution to the text would be considered insufficient for co-authorship in law expect to be included as authors. Compounding this tension is the historical tendency in all disciplines towards “helicopter” or “parachute” research, in which researchers from wealthy areas extract data or resources from less wealthy areas without benefiting local researchers or communities. This practice has been recently criticized by several authors in several scientific disciplines, who have also suggested ways to include local experts as coauthors of scholarly work arising out of knowledge they provide, for example Adame’s “Meaningful collaborations can end ‘helicopter research’” (2021). There has been little analysis of helicopter research in the context of legal research, though the problem is prevalent, particularly as legal scholarship often concerns marginalized groups. We have provided one model for how more inclusive authorship can contribute to innovative legal scholarship as well as fairness towards stakeholders in our article “Non-Governmental Enforcement of EU Environmental Law: A Stakeholder Action for Wolf Protection in Finland”. In this article, the personal narrative of an individual conservation worker who spoke from a rural context was used to demonstrate how conservation law worked in the world through her experience in environmental litigation. This method of interdisciplinary collaboration, while obviously not appropriate for all types of legal research, reflects an ethical choice to include more diverse voices and to appropriately credit those voices with co-authorship.

Result 2: Conflict is a generative force that should be managed, not eliminated. Much of the research on interdisciplinary collaboration focuses on how to find shared vocabulary and tools. However, disciplinary differences do not need to be overcome in order to collaborate effectively. Instead, disagreeing effectively and testing each other’s assumptions is at least as useful for interdisciplinary collaboration as coming to an agreement, as it prevents the common problem in interdisciplinary collaboration of talking past each other rather than with each other. Tools from organizational theory, as well as diverse disciplines such as software development and cyber security, for instance hackathons and red teaming, can help facility the productivity of interdisciplinary conflict.

Result 3: Logical argumentation transcends disciplines and can provide one basis for using conflict effectively. Recent scholarship has pointed to the use of formal logic and argumentation in legal problem solving, particularly in the AI context, for example Calegari & Sartor’s “Burdens of Persuasion and Standards of Proof in Structured Argumentation” (2021). Socratic logic has been used to examine unclear concepts for millennia and can be particularly useful for examining legal-ecological concepts. An interdisciplinary method inspired by Socratic method may be summarized as follows: First, when you are working in an interdisciplinary group, be conscientious of when you are talking past each other, and when you are, stop talking. Second, identify the source the problem. Do you just need to understand how the other person is using the term, or can the term be made sense of without multidisciplinary or interdisciplinary analysis? It may be a legal-scientific term. Third, if further analysis is needed, invite your collaborator to participate in a Socratic dialogue in which you will try to refute each others’ assertions about the concept at hand. Do not enter the Socratic space without permission, people tend to resent surprise attempts to catch them in a logical fallacy. Once you’ve agreed however, formulate a hypothesis about what the term means using your own disciplinary tools. Fourth, try to sit down in a room together. The Socratic method requires the possibility for back-and-forth argumentation. Fifth, present your hypotheses. The other scientist will try to refute or falsify the hypothesis, and reformulate or nuance it using their own disciplinary tools. And finally, sixth, continue refuting and refining the hypothesis until you both consider the definition sound or fit for purpose, or, at least until you understand why you are using the term differently. When we are clear about our disciplinary disagreements, we are at least not talking past each other.

New research questions: This project has generated several new research questions. It has highlighted the importance of models in applying legal-scientific concepts and the need for research on how to integrate legal analysis and ecological modeling. We intend to address this need in a newly-launched interdisciplinary research environment with several other researchers in law and ecology. This research builds on our project results to develop legal-ecological models to model the impact of conservation laws.

As important as scientific input is for understanding legal-scientific concepts, common meanings are often more important. For example, in interpreting the term “organic” (Case C-497/17), the Court of Justice ruled that meat obtained through unstunned slaughter could not be considered organic in part because it would go against public expectations. Similarly, the EU Organic Production Regulation disallows the use of GMO in organic production as contrary to “consumers' perception of organic products”, though the inclusion of “new genomic techniques” in organic production is being considered. An important potential research question that arises is how the public forms perceptions about terms like “new genomic techniques” and organic, and how these common meanings impact how courts interpret legal-scientific terms.

Dissemination of results: We have made three public presentations of our research results. The first was at Oxford at a conservation conference, the second was at a Nordic social science conference in Lulea, and the third, during the pandemic, was an open lecture for Uppsala Forum held online. We also held a seminar for doctoral students on interdisciplinary communication at Uppsala University, and that we will continue to use in the future.

We have published two letters in Science magazine to make clear the relevance of the environmental law to a wider scientific audience in the topics examined in our case studies.
Grant administrator
Uppsala University
Reference number
SEK 3,170,000.00
RJ Projects
Law (excluding Law and Society)