The History of Precaution

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An analysis of legal traditions provides insight into transnational regulatory relations.

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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.

forest.jpgAgainst 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. Used prescriptively, the precautionary principle urges regulators to take stringent, risk-averse measures in response to scientifically uncertain risks.  Used permissively, the principle authorizes the state to regulate even in the face of scientific uncertainty.  In this fashion, the principle is said to act as both a sword and a shield. Understood as a permissive rather than prescriptive rule, the principle can be restated as a requirement of judicial deference towards regulatory measures irrespective of the strength of the evidence linking the regulated activities to distinct harms.
In fact, the permissive meaning is the one that has figured most prominently in recent transatlantic regulatory tensions, as these have for the most part focused on the scope of regulatory discretion, rather than any obligation to regulate.  This is best evident in the context of international trade disputes, the primary arena of American-European regulatory conflict today.  Both before the World Trade Organization and the European courts, the EU invoked the precautionary principle in support of its authority to regulate notwithstanding scientific uncertainty.  Such trade conflicts revolve as such around the choice between divergent conceptions of regulatory autonomy, or models of “administrative constitutionalism,” in Elizabeth Fisher’s terminology.
These disparate views of regulatory autonomy correspond closely to the divergent administrative law traditions of continental and Anglo-American law.   Debate over health and safety regulation in both Britain and the US during the 19th Century revolved around competing models of administration—the first termed “nuisance,” the second “police.”
The nuisance model of administration gave judges a final say on the reasonableness of public-health interventions, in alignment with common law constitutional principles.  The police model (drawing from the tradition of continental, civil law regulatory institutions) presumed the existence of autonomous regulatory discretion in the exercise of sovereign prerogative.  These models delineated the scope of the state’s authority to regulate uncertain health and safety risks and the courts’ oversight function over regulatory interventions of this type.
Within the context of this 19th-century conflict, the relevance of legal traditions was self-evident.  And as Roscoe Pound’s writings made amply clear, common law principles shaped the evolution of American administrative law during the early- and mid-20th century. In similar fashion, the contemporary American preference for judicial oversight over the regulation of scientifically uncertain health risks, both in the domestic and international arenas, is consistent and continuous with the common law’s longstanding reliance on judicial regulation via nuisance law.
By contrast, the precautionary principle, when construed as a requirement for deference, all but restates the basis of continental public law: the sovereign’s regulatory prerogative, and the state’s consequently unqualified authority to protect public health and safety.  Viewed historically, differences in legal traditions are integral to both Europeans’ affinity toward the precautionary principle (in accord with the police model) and Americans’ skepticism about it (in accord with the nuisance model).   American social science has largely lost track of the historical argument.
The claim that common-law principles of judicial supremacy remain a forceful influence within American regulatory policy is distinct from any assessment of the desirability of this influence. Neither does the insight that current disputes are the contemporary incarnations of this historical division suggest that Americans are somehow united in monolithic support for the judicialized administrative models associated with common law, or that continental-modeled institutions have failed at times to find substantial foothold in American regulatory practices (or vice versa).
Jonathan Weiner aptly highlights the prevalence and significance of “hybridization” between European and American regulatory institutions as a consequence of “substantial exchange or borrowing of ideas across the Atlantic.”  The phenomenon is not novel in any sense; for centuries, public health and environmental regulation has evolved through intra-European and transatlantic learning and adaptation, and this process will likely accelerate into the future.  But the evolution of environmental regulation in the US and Europe also attests to the tenacity and continuing influence of divergent conceptions of administrative constitutionalism under the respective common law and civil law paradigms. We cannot make sense of transatlantic regulatory relations in isolation of this history.
Noga Morag-Levine

Noga Morag-Levine is Professor of Law and George Roumell Faculty Scholar at Michigan State University College of Law.