Laws of Fear: Beyond the Precautionary Principle
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00585_4.x |
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
Cass Sunstein,Laws of Fear: Beyond the Precautionary Principle,Cambridge:
Cambridge University Press, 2005, xii þ234pp, hb d40.00, pb d15.9 9.
The regulation of environmental andpublic health risks has been one of the most
contentious areas of public action in the last severaldecades.This is not surprising
as standard setting in this area raises issues of legitimate state action, and in parti-
cular legitimate administrative action, mainly due tothe fact it involves the exer-
cise of expert discretion on issues of how communities wish to live. A key
principle in environmental and public health risk regulation has been the precau-
tionary principle ^ a principle that broadly states that where there are environ-
mental and public health risks, lack of full scienti¢c certainty should not be used
as a reason fori naction. Inother words,the principle is concernedwith regulating
the reasons for a decision and the basis for action.The principle has been widely
implemented in a number ofjurisdictions and plays an important role in interna-
tional environmental law. Needless to say,the principle has given rise to an exten-
sive body of policy, case law, legislation and sometimes impassioned commentary.
In light ofall this it is not surprising that CassSunstein, one of the most proli¢c
public law scholars writing on risk regulation in the last decade, has written a
book on the precautionary principle.The Laws of Fear grew out of the Seeley Lec-
tures thatSunstein gave at Cambridge University in May 2004, andis intended to
be accessible to a fairly broad audience. However, Sunstein has been writing on
US risk regulation for well over a decade, and one would expectthis book to be a
carefullyargued analysis of the principle. Unfortunately, it is not.
Beforeturning to mycriticisms, however, it is useful togive a briefoverviewof
Sunstein’s arguments. In the ¢rst half of the book Sunstein analyses the precau-
tionary principle and what he sees as associated problems of risk regulation. He
argues that the principle has a spectrum of de¢nitions ranging from ‘weak’ to
‘strong’ versions. He mainly discusses the latter and he de¢nes such a‘strong’ver-
sion of the principle as dictating that ‘regulation is required whenever there is a
possible risk to healt h,s afety, or the environment, even if the supporting evide nce
remains speculative and even if the economic costs are high’ (p 24). Heargues that
this principle is problematic for two reasons. First, the principle is impossible to
applybecause all regulatory actioncreates risks (pp 26^9). Secondly, theonly way
to solve this problem of decision-making paralysis is for decision-makers to be
selective about the risks that they wish to reduce (p 34), but individuals are not
good atdoing this owing to,among other things,their use of heuristics (Chapter
2), their neglectof probability (Chapter 3)and the ampli¢cationof risk due to the
operation of social cascades and group polarisation (Chapter 4). In other words,
the risks that regulators chose to regulate are invariably based on‘irrational’rather
than‘rational’choices (p 105).
In the second section of the book Sunstein puts forward what he describes as
solutions to these problems. Chapter 5 sets out a number of principles that could
legitimately operate in relation to risk. Thus he argues for the validityof an Anti-
Catastrophe Principle (a n application of a maxi min principle) which would
require regulators to identify worst case scenarios and choose an approach that
eliminates the worst of these.This is said to be narrower than the precautionary
principle because it would only operate in cases of catastrophe (p 114). Sunstein
Reviews
288 rThe Modern LawReview Limited 2006
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