裁判所における「科学」

法学研究者の立場から

抄録

　This paper presents a review of the literatures on “science in a court” focusing on the following points: 1) How should the judicial decision be made, once the scientific knowledge, which is the basis of an act reviewed in the court, has changed? 2) If the scientific knowledge is lacking in the judges, they may seek a written statement of the scientists or the expert witnesses. They, however, might not be able to understand what is written or testified in turn: the dilemma of the scientific trial. How can they overcome that? 3) Firstly, administrative law scholars argue that the judges should not try to review whether the administrative judgment on safety of a nuclear reactor is right or not. However, they ought to concentrate only on a review of the rationality of the administrative process. 4) Secondly, in any case, it would be necessary to improve scientific literacy of the judges. 5) Thirdly, when scientific opinions are divided, judges should not rush to conclude on the basis of one-sided opinion. In many cases the judgments can be given on legal issues before deciding the right scientific opinion. 6) Finally, it is often appropriate to discuss the treatment of new technologies and those potential risks not at the court but at the social schemes such as ADR or Consensus Conference.