Sessar Porto Problems criminology has with criminal law

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140; Luhmann 1989, 37). Science too will not let its autonomy of defining truth be questioned
by any other system or field as the standards of scientific operations derive from science itself
(Kaplan 1964, 6).
This somewhat complex theoretical construction regarding the inherent gap between science
and politics is best illustrated by a statement of the Canadian political scientist Michael Ignatieff.
Though at first a supporter of the war in Iraq, Ignatieff later came to regret his initial
stand: "I have learned that a rational political judgment is something different to a rational
judgment in the intellectual life" (Süddeutsche Zeitung, August 8, 2007, 7). The significance
of this phrase lies in the incompatibility of political rationality and scientific rationality, not in
the distinction between rationality and irrationality which can be the problem within each of
the respective systems. An old statement of the French philosopher Gaston Bachelard supports
this view; he noted that compatibility cannot exist between the scientific mind and the
legal mind (cited in Bourdieu 2003, 97).
4. The epistemological issue.
The difficulty of communication between the systems does not mean that they operate in a
manner disconnected from another. On the contrary, they “are not sealed off from their environments
[the society and the other social systems; K.S.] but experience changes therein as
perturbations or disturbances which affect their own operation; and … in reacting to changes
in their environment, they do so in terms of their own rules for reducing the complexity of
that environment and thus environmental influences are always mediated through the system’s
own procedures” (Jessop 1990, 358). What does this mean for the relationship between criminology
and criminal law? Concerning the more general relationship between science, law and
politics, Luhmann is very clear: “Politics and law seek advice from science, but there can be
no talk of scientific decision making. This concerns not only the rejection of ‘unusable’ knowledge
by other functions systems but also a specific increase of claims and caution on the part
of science itself” (Luhmann 1998, 88).
However, a distinction must be made between facts and truths. The law cannot avoid facts
should "the legal conditional program dictate that certain facts, which may be determined with
the aid of scientific knowledge, lead to corresponding conclusions. But facts! Not truths!"
(Luhmann 1998, 130), sometimes not even recommendations grounded on facts; for example,
the German Council of Economic Advisers Act of 1963 explicitly forbids recommendations
on the part of the advisers with regard to politico-economic or socio-political measures (section
2).
Even scientifically gained and politically or legally needed facts are not always feasible for
internal systems goals. One reason could be the minor quality of social scientific knowledge
such as unclear objectives, poor research designs or methodological weaknesses. The basic
problem however lies in the epistemological limitations of the social sciences. The pursuit of
truth by means of empirical investigations is endless as empirical results and their interpretations
are of a preliminary nature thus providing the foundation for the next hypotheses; even
the most exact descriptions or predictions are only approximate, and a perfect correspondence
with observation would be suspicious rather than satisfying (Kaplan 1964, 215). Social sciences
including criminology must therefore be open to new options of experiencing the world,
based on different views or better methods; after all, the world has moved on in the meantime.
The point is that such an “epistemological modesty” is turned against the social sciences by
those who, equipped with the belief in absolute certainties, search for reasons to repel disquieting
findings.
This then might turn out to be the genuine explanation for the recurrent reluctance of criminal
policy or criminal law to adopt criminological outcomes.