What the courts generally did in reviewing technical measures

The determination of a matter in litigation in modern system of administering justice depends on two things: (I) a finding that certain facts exist or existed; (II) an application of certain rules to such facts, whereupon a final judgment is rendered .



In order to make a factual finding, the court relies on evidence before it. The modern trial is based on the rationale ascertaining of facts and a rational application of rules, to replace the ancient modes of proof based on the intervention of the deity such as the ordeal or the battle . This tradition originated in the Enlightenment period and has been characterized in the West as the rationalist tradition . The jury or the court will determine the disputed facts by assessing the probative of the evidence before it based on the ordinary agree of knowledge and experience it owns . However, it is recognized that some technical matters may go far beyond the ordinary agree of knowledge and experience the court or the jury owns. It is thus necessary to seek the technical advice out of the court room from experts, in order for the court or the jury to understand the significance of the evidence and to make necessary inferences .


In the early time, the court overcame the technical difficulties by two means. The first method was to impanel a special jury with specific experience fitted to know the technical issues before the court . Second, the court could call skilled persons into the court to help resolve technical questions . Taylor mentioned that in the early development of English rules of evidence, experts were thought as helpers of the court, rather than expert witness brought by parties . Hand even indicated that, in an urban community, where the questions involving special skill would come up, it was a well-established practice in the fourteenth century that specially quailed people should decided those technical cases . Later, it became well-established in the interpretation of commercial instruments, and in the eighteenth century, it extended from the complex facts to points of law .


Moreover, the modern rational method of settling disputes is based on the assumption that factual questions and legal questions can be clearly ascertained and divided . In cases involving prospective analysis, it is not for the court to decide that certain facts exist or existed but to predict whether certain risks or economic effects will happen in the future. It is questioned whether the use of currently existing evidence is sufficient for the court to predict the future events or whether the court has the expertise to conduct prediction by itself. Especially, for measures coping with uncertain risks, the limit of science cannot offer the court certain answers for uncertain risks . In other words, uncertain risks are the facts which cannot be ascertained by the court on the basis of scientific evidence. In cases involving scientific issues, it is even doubtful that court can clearly divide factual questions from legal arguments when reviewing whether a ban or a restricted measure is necessary or sufficient to avoid certain risks .


Therefore, based on the practice established by the court in the past and the new challenges brought by the cases involving prospective analysis, it might be necessary to rethink the modern rational method employed by the court in deciding technical measures involving a prospective analysis of the facts . Is it still appropriate to allow the court to use its own knowledge and experience to determine the technical measures? Is it sufficient for the court to rely on expert witnesses brought by the parties to determine the technical matters? These questions would be answered in the next Chapters.