Edited by Hans-W. Micklitz and Takis Tridimas
Chapter 3: The social epistemology of risk observation and management – modern law and the transformation of its cognitive infrastructure
This chapter ventures to demonstrate the existence of a much more intense inter-relationship between the law and the cognitive system of society than was previously assumed. ‘Facts and norms’ are not as clearly separated as the established mode of self-observation of the legal system maintains. The autonomy of the legal system which emerged in the late 19th century is dependent on the emergence of a new knowledge base of society, ‘experience’, which draws on a continuous practical processing of knowledge derived from the production systems that served non-local markets. The law draws on this process via a bridging concept, ‘danger’, which transfers knowledge into public decision-making procedures and allows for its integration into normative judgement. The chapter tries to explain the rise of the continental version of positivism as a self-description of the legal system on the continent, isolated from the transformation of society’s knowledge system. It also seeks to demonstrate the interest taken by the state in the stabilisation and generalisation of knowledge which could be used for both private and public purposes of governance. An overview of a new type of group-based knowledge is given which relies upon rules of probability which imposed order on and allowed for recognition of patterns in phenomena which hitherto had been regarded as subject to blind chance.
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