It is a generally recognized fact that law and legal procedures lag far behind any type of social change. This is true even in matters of change in social custom, religion, and habits of the people. But it seems to be far more marked when one approaches the problem of picking up scientific developments and transposing them to be used as tools in legal and governmental procedures. The reasons for the failure of the legal system immediately to adopt scientific innovations are numerous. Many of them are found in the nature of the legal system itself. Its ancient origins, written statutes and constitutions, judicial reliance upon precedent, the doctrine of stare decisis and the habit of a free legal profession to be largely occupied in the profitable business of defending the status quo, all constitute brakes on any sudden change. The machinery for change which is provided by most governments, the system of legislative law, is also not very well calculated to pick up innovations from the field of science. In America, at least, the legislature is not provided with facilities for acting on change in the law such as ministers of justice or research organizations. It depends for its information on interested pressure groups and donated time of public spirited citizens or do-gooders.
The separation of governmental functions which is supposed to be one of the basic tenets of government in this country also stands in the way of progress. Our separation of powers in the national government plus our division into states, cities, counties and myriads of local units all are likely to retard the bringing of new information into the law. When there is added to all of this the complete reliance on the democratic process which assumes that desired change will arise from an informed public and, when considered in the light of the fact that scientific data is known only to a few people and is so complicated as to be beyond the reach of the masses at large, it might be expected that it is not only difficult, but almost impossible to bring the information from the new and rapidly growing scientific revolution back into our conservative forms of government and law.
Frederick K. Beutel,
The Lag between Scientific Discoveries and Legal Procedures,
33 Neb. L. Rev. 1
Available at: http://digitalcommons.unl.edu/nlr/vol33/iss1/3