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Evolutionists have pointed out as well that imperfections and defects pervade the living world. In the human eye , for example, the visual nerve fibres in the eye converge on an area of the retina to form the optic nerve and thus create a blind spot; squids and octopuses do not have this defect. Defective design seems incompatible with an omnipotent intelligent designer. Anticipating this criticism , Paley responded that “apparent blemishes…ought to be referred to some cause, though we be ignorant of it.” Modern intelligent-design theorists have made similar assertions; according to Behe, “The argument from imperfection overlooks the possibility that the designer might have multiple motives, with engineering excellence oftentimes relegated to a secondary role.” This statement, evolutionists have responded, may have theological validity, but it destroys intelligent design as a Giuseppe Zanotti RS80069 H3Qsa
, because it provides it with an empirically impenetrable shield against predictions of how “intelligent” or “perfect” a design will be. Science tests its hypotheses by observing whether predictions derived from them are the case in the observable world. A hypothesis that cannot be tested empirically—that is, by observation or experiment—is not scientific. The implication of this line of reasoning for U.S. public schools has been recognized not only by scientists but also by nonscientists, including politicians and policy makers. The liberal U.S. senator Edward Kennedy wrote in 2002 that “intelligent design is not a genuine scientific theory and, therefore, has no place in the curriculum of our nation’s public school science classes.”

Scientists, moreover, have pointed out that not only do imperfections exist but so do dysfunctions, blunders, oddities, and cruelties prevail in the world of life. For this reason theologians and religious authors have criticized the theory of intelligent design, because it leads to conclusions about the nature of the designer at odds with the omniscience, omnipotence, and omnibenevolence that they, like Paley, identify as the attributes of the Creator. One example of a “blunder” is the human jaw, which for its size has too many teeth; the third molars, or wisdom teeth, often become impacted and need to be removed. Whereas many people would find it awkward, to say the least, to attribute to God a design that a capable human engineer would not even wish to claim, evolution gives a good account of this imperfection. As brain size increased over time in human ancestors, the Sam Edelman Clover B58r1A4S
remodeling of the skull entailed a reduction of the jaw so that the head of the fetus would continue to fit through the birth canal of the adult female. Evolution responds to an organism’s needs not by optimal design but by tinkering, as it were—by slowly modifying existing structures through natural selection. Despite the modifications to the human jaw, the woman’s birth canal remains much too narrow for easy passage of the fetal head, and many thousands of babies die during delivery as a result. Science makes this understandable as a consequence of the evolutionary enlargement of the human brain; females of other animals do not experience this difficulty.

There are a number of problems with the arguments that precontractual good faith in the CISG would improve either ex post fairness or ex ante efficiency. Ex post fairness will only be improved to the extent that domestic laws do not offer the same or even "fairer" rules. Further, the ex ante savings will not be realized if the vagueness of good-faith-based precontractual rules prevents parties from relying upon them. Thus, John Wightman argues that normative accuracy and calculability are affected differently by good faith. He generally argues that good faith is a standard, and as such, it has the benefit of ensuring outcomes comply more closely with the normative value of the law. [162] In other words, he elaborates on why outcomes are "fairer" at the ex post stage. He also points out, however, that this has negative implications for commercial parties who are trying to predict risks and liabilities, making them less calculable in advance. BaffinEllesmere DsSH8fQXbg
That is, although one might expect good faith to create more ex post fairness, it might also increase uncertainty and ex ante costs at the drafting stage. [page 286]

In summary, the expansion of precontractual liability in the CISG could produce set of tensions discernible at various stages of the contracting process:

It is difficult to assess these tensions. To begin with, theoretical costs and benefits are not easily identifiable and the practical effects of good faith duties might be unexpected or difficult to measure. For example, fully-informed markets in theory help maximize economic efficiency; thus in theory, it follows that greater precontractual information is desirable. Walking CradlesBlaire gAdf4RO
In practice, however, a disclosure rule might actually discourage the acquisition of information by the party under a duty to disclose. Paul Green Malory 4veB6b9UyI
Likewise, it could be said that laws prohibiting bad faith might encourage negotiation and trade or, conversely, have an undesirable "chilling" effect on entry into negotiations, [166] especially for complex deals due to liability fears. While one might remain skeptical about the likelihood of either effect on negotiations, a further perspective should be considered.

C. Stability v. Evolution from an Historical Perspective

It can be argued that the CISG was never intended to deal with liability arising from the negotiation stage. Historically, it was the fragile compromise of good faith as a mere interpretive tool that saved the day; this limitation should be respected. Such an extension is not mere evolution in the face of new circumstances. Unlike emails or software contracts, for example, precontractual liability was not " terra incognita ," [167] but something hotly debated and deliberately abandoned by the CISG's drafters. [168] Therefore, a precontractual expansion might be seen as overstepping the spirit of the international consensus [169] and perhaps as overriding the CISG's express terms, resulting in a possible violation of treaty obligations. [170] [page 287]

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