October 1, 2013

The History of Precaution (Noga Morag-Levine)

New network member Noga Morag-Levine (MSU) has posted "The History of Precaution," an historical perspective on the precautionary principle in comparative US and European law, on the RegBlog at UPenn Law School.  The first several paragraphs are below and the remainder can be read at RegBlog.  We're grateful for permission to cross-post Noga's piece here.

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Transatlantic conflicts over the regulation of environmental and health and safety threats—including climate change, chemicals, and food safety concerns—have  repeatedly revolved around the international status and legitimacy of the precautionary principle, which pertains to regulation of scientifically uncertain harms.

Against this backdrop, comparative environmental scholars have recently focused their attention on whether, when, and why Europe has become more precautionary than the United States.   This inquiry has entailed a debate on the capacity of distinct American and European regulatory traditions to account for transatlantic divisions. The Reality of Precaution, by Jonathan Wiener with several co-editors, and The Politics of Precaution, by David Vogel, are among the most notable contributions to this discussion.  The two books concur that any such legal-institutional traditions are irrelevant to the question at hand.

For Wiener, this conclusion derives from the absence of consistent patterns of stringency on either side of the Atlantic.  For Vogel, it is a function of the instability and ostensible recent emergence of the current transatlantic split.  Together, it might seem these books have put to rest an entire family of historical-institutional explanations for cross-national regulatory differences in the transatlantic context and beyond.

This conclusion is limited, however, by both books’ implicit conception of the precautionary principle; for both, timing and stringency of regulation are conclusive indicators of precaution.  Yet risk aversion as reflected in regulatory timing and stringency is not the only, or most important, lens for assessing the relevance of historical legal and political institutions to European-American divisions over precaution. 

For this purpose it is essential to distinguish between two central meanings of the precautionary principle as it is discussed today—the first prescriptive, the second permissive. [continue reading here…]

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