Abstract
The COVID-19 pandemic was one of the most disruptive public health crises in recent history. A striking difficulty in responding to COVID-19 and to many other kinds of risks and dangers is the insufficiency of information and the lack of consensus concerning various factual and evaluative aspects of both the risks and dangers themselves and the measures adopted to address them. To address this matter, the so-called “precautionary principle” has been advocated. Yet, many scholars and authorities have contested the precautionary principle on various grounds, refusing to accept its normative force and legal status.
Prompted by the COVID-19 pandemic, this study was first undertaken to understand how public authorities respond to diseases and to a broad range of risks, dangers, and crises under conditions of uncertainty, including scientific uncertainty. This requires studying the principles that govern responses to diseases, risks, dangers, and crises. Insofar as the precautionary principle purports to address risks and dangers under uncertainty, this Thesis examines whether, and in what sense, it is relevant not only to public health but also to the broader management of risks and dangers under conditions of uncertainty. It then addresses questions about the precautionary principle, namely, whether precaution is conceptually coherent, normatively defensible, and jurisprudentially more general than its orthodox presentation suggests.
This Thesis adopts four complementary methods:
(i) a comparative-historical method is used to identify general principles;
(ii) a conceptual-functional method is used to determine whether divergent formulations of precaution nevertheless share a common rationale and practical role;
(iii) a normative method is used to assess whether the principle and its applications are ethically justified;
(iv) a jurisdictional case-study analysis is used to examine how precaution is articulated and applied across selected legal systems, and how local value hierarchies shape its expression and application. Five common law jurisdictions (the United Kingdom, Australia, Canada, New Zealand, and the United States), four continental jurisdictions (Germany, the European Union, Italy, and France), Vietnam (a socialist jurisdiction), and the international legal system are studied.
The Thesis concludes:
(i) The idea of taking precautions in response to various scenarios related to risks and dangers can be traced in different ways through the thought of Confucius, Mencius, and Aristotle, and through earlier forms of political practice. Belonging to a rationale for, and a rationality of, governance, it constitutes an institutional morality that predates the articulation of the precautionary principle in environmental law, and that later articulation cannot serve as definitive proof that the precautionary principle is confined exclusively to environmental law.
(ii) The precautionary principle is best understood teleologically as “in dubio pro salus”—it is the principle that advises, justifies, and, where appropriate, requires public actors to take measures in preparation for, and in response to, risks and dangers for the sake of well-being in a morally integrated and harmonised sense.
(iii) The precautionary principle is a fundamental principle of governance because governance characteristically operates under conditions of uncertainty and must address risks and dangers through institutional arrangements, including law and the state’s apparatus; the principle thus responds to a structural and recurrent condition of governance and serves a foundational purpose of political association, and therefore bears across regulatory domains.
(iv) Yet only a moderate form of the precautionary principle is ethically and legally justified; hard forms should be rejected.
(v) Although the expression of precaution varies across jurisdictions in light of different legal traditions and value hierarchies, those variations do not negate the underlying unity or general validity of the principle, because the unifying point is the shared structural problem of governing under uncertainty. Conversely, the precautionary principle, as a deep rationality and morality of governance, operates to secure the goods that human associations and polities hold to be important.
(vi) Because law is one institutional form through which governance is organised, a fundamental principle of governance can inform legal principle and doctrine without being identical to a directly enforceable rule. Across the jurisdictions studied, precaution is juridically specified through, inter alia, preparatory obligations, the rule against hindsight review, and principles governing judicial treatment of scientific uncertainty. Accordingly, the understandings and practices of certain systems concerning the precautionary principle should be reconsidered, corrected where necessary, and improved.