Precautionary Maybe, but What's the Principle? The Precautionary Principle, the Regulation of Risk, and the Public Domain

AuthorMike Feintuck
DOIhttp://doi.org/10.1111/j.1467-6478.2005.00329.x
Publication Date01 Sep 2005
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 3, SEPTEMBER 2005
ISSN: 0263-323X, pp. 371±98
Precautionary Maybe, but What's the Principle?
The Precautionary Principle, the Regulation of Risk,
and the Public Domain
Mike Feintuck*
The `precautionary principle', originating in the field of environmental
protection but now widely applied, is a major point for discussion in
the regulation of risk. Though promising proactive and pre-emptive
intervention to prevent potentially irreversible harm, its precise
meaning remains somewhat unclear. Legal systems tend to view it as
procedural rather than substantive, and debates abound regarding its
`stronger' or `weaker' versions and, indeed, the very concept of `risk'.
It is also necessary to discuss how the principle operates in varying
administrative and constitutional contexts but the key task is to clarify
the principle's fundamental value base. If its essentially collective
orientation is highlighted, it may better ensure that democratic and
non-pecuniary interests are given due prominence in regulatory
contexts otherwise dominated by economic interests and technological
imperatives, and it may then play an important role in reasserting the
values of the public domain in the face of powerful private interests.
INTRODUCTION
Over the last twenty years, `the precautionary principle' has become
increasingly widely discussed and applied in contexts which now extend far
beyond its origins in environmental regulation. In its preference for proactive
and pre-emptive action, as opposed to ex post facto responses, it offers an
instinctively attractive approach to the prevention of potentially irreversible
371
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*The Law School, University of Hull, Hull HU6 7RX, England
m.j.feintuck@hull.ac.uk
Thanks are extended to Kirsten McConnachie for her assistance in the later stages of
production of this article. The author also gratefully acknowledges the detailed and
helpful comments provided by the Journal's reviewers, while accepting sole
responsibility for all remaining weaknesses and defects.
harm. In addition, it is argued here, it may have some, largely latent,
potential to serve as a legitimate means for public intervention in pursuit of
collective interests beyond the economic in the face of an increasing
dominance of market forces both locally and globally. In this sense, the
precautionary principle may take on a democratic and constitutional sig-
nificance beyond its immediate impact in any specific field. However,
though now a prominent and familiar concept in the law and literature of
regulation of risk, significant questions remain as regards its meaning and
effectiveness.
This article will offer, in section 2, a brief overview of the concept's
development, before considering in section 3 some major lines of current
debate and doubt as regards its application, which may prove an obstacle to it
being perceived as legitimate. Three key issues will be identified: debate
over the principle's application in `stronger' or `weaker' forms; the
principle's contextual aspects; and, its relationship with the inherently
problematic concepts of `uncertainty' and `risk'.
It will become apparent that the precautionary principle currently tends to
be applied as a procedural rather than substantive device, and it will be
suggested that the principle's potential utility, as an aspect and reassertion of
the public domain in the face of private economic interests, will not be
fulfilled unless substantive content and value-orientation is established. The
conclusions to be drawn from these discussions in section 4 will be that the
principle is only likely to have a significant impact, and problems over
justiciability satisfactorily resolved,
1
in contexts where the range of interests
with which it is intended to engage are clearly elaborated, and where
authoritative agreement has been reached as regards the identification of a
clear hierarchy for such competing interests.
However, despite problems with the precautionary principle's current
application, and problems of definition, both in relation to the principle itself
and the concept of risk, it will be argued that the principle still has the
potential to fulfil an important role both in relation to the specific fields in
which it is applied and more broadly still. This broader role derives from the
precautionary principle's intimate, though often implicit, connection with
collective, democratic interests and the public domain, which it may serve to
reassert in the face of increasingly dominant private interests. While the
global political discourse is increasingly premised on a neo-liberal vision
which may have the effect of foreclosing debate involving social values, the
precautionary principle appears to have the potential to provide a forum in
which a more holistic view of the liberal democratic settlement may be
taken, incorporating collective interests and values as well as those of capital
and liberal-individualism. As Sagoff argues, it is perfectly possible to
recognize legitimate economic interests while also taking into proper
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1See E. Fisher, `Is the Precautiona ry Principle Justiciable' (2001) 13 J. of
Environmental Law 315.
ßCardiff University Law School 2005

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