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Dr Mark Flear draws on his recently published work in the Journal of Law and the Biosciences (2021) in calling for further law-led engagement with concepts and ideas such as 'Imaginaries' which are used in Science and Technology Studies.
My most recent use of insights from STS is found in a special issue on ‘Law, Biomedical Technoscience and Imaginaries’ (Journal of Law and the Biosciences, co-edited with Richard Ashcroft). There, deploying the concept of imaginaries, we argue for further law-led engagement with concepts and ideas popular in STS and cognate disciplines. The special issue also provides a first step in a new project that seeks to facilitate further dialogue between law and STS.
‘Imaginaries’ is a relatively novel concept within legal, sociolegal and regulatory studies scholarship. As summarised in our guest editorial to the special issue, several disciplines deploy imaginaries. Beckert, working within economics, formulates imaginaries as ‘imagined futures’. Jasanoff and Kim, within STS, use a slightly different iteration, sociotechnical imaginaries, or ‘collectively imagined forms of social life and social order reflected in the design and fulfilment of nation-specific scientific and/or technological projects’ (at 120). Conceptions of imaginaries underscore the co-production of scientific knowledge and society, including law. As McNeil and colleagues explain, the concept ‘seems to offer new ways to investigate the relationships among science, technology, and society’ (at 435).
Within sociolegal studies, Riles’ work resonates with imaginaries by exploring how legal technicality includes the ‘hopes, ambitions, fantasies and day-dreams of armies of legal engineers’ (at 975). The concept of imaginaries thus chimes with a core concern for those working in legal, sociolegal and regulatory studies, and by extension, directs attention towards developing further dialogue between them and STS. There is a need, stressed in the work of Riles, Valverde, Cowan and Wincott, for law-led dialogue. This is particularly important given the way in which other disciplines may colonise legal territory, perhaps crowding out or sidelining law-led contributions and concerns. Latour, a key contributor to STS, makes this very point in his observation that law competes with other ‘modes of existence’.
The special issue as a whole speaks to the fruitfulness of such law-led work. To draw upon my own contribution by way of illustration: I examine the International Council on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH), and discuss how expectations (strong beliefs about what can occur) and an imaginary flow from its mission, ‘harmonisation for better health’. The expectations and imaginary support focus on technological development in ICH standards, and generate public legitimation of these standards, the ICH, and the regulators and laws that reference the standards and make them de facto binding. This technological framing also limits the boundaries of responsibility and accountability to the production of safe, quality, and effective pharmaceuticals, and individual ethical conduct to achieve it.
In doing so, the expectations and imaginary marginalise wider social justice issues that weigh on individuals, communities, and even states, particularly those affecting the global South. They do so by engendering a distortion of attention and resources toward the management of consequences with technological fixes i.e. treatment using pharmaceutical responses. The Covid-19 pandemic shows how this operates: the wider social conditions that cause the virus’ spread seem marginal in the midst of attempts to grapple with the health emergency. The distortion of priorities may undermine the social infrastructures needed to address all public health problems. The latter may actually be cheaper, more effective, and beneficial for preventing not only communicable diseases like Covid-19, but also non-communicable diseases.
In addition, public participation is sidelined in ICH governance. There have been notable reforms of ICH governance since it became an international association under Swiss law in 2015. Key innovations include greater transparency and an assembly with wider participation and increased say in decision-making - although the ‘key’ say remains with the Founding Regulatory Members - the European Union (EU), Japan and United States. Nevertheless, these innovations compare unfavourably with, for instance, those in the European Medicines Agency, which has done a lot to collaborate with its own publics, seeing it as enhancing transparency; improving the quality, safety, and efficacy of pharmaceuticals; including wider social justice issues; and further bolstering legitimation. It is with this in mind, and drawing on STS, that I argue public participation in the ICH could be improved. This would supplement reliance on the current main technique of legitimation, communication of expectations and transparency to demonstrate that practices are in accordance with them.
Overall, the ICH case study and the wider special issue provide glimpses into how engagement with the concept of imaginaries, drawn from STS in particular, helps to open up space for fresh examination of key issues in law. Since the ontological, epistemological and methodological commitments of much STS scholarship are drawn from the social sciences, and thus focus on describing phenomena, the normative, prescriptive and solution-oriented discussions so central to law tend to be quite limited in STS, despite some notable exceptions. The case study and special issue indicate how law-led dialogue with STS scholars could help move them towards providing solutions to the problems revealed using the very concepts with which they have tended to be associated.