Thursday, May 30, 2013

Morag-Levine on the historical roots of the precautionary principle

I had the privilege of commenting earlier this week on a paper by Noga Morag-Levine on the historical roots of the differing approaches taken to the precautionary principle. Focusing on the “permissive” version of the principle, according to which regulators should be allowed to regulate suspected risks even in the absence of proof of harm, she argues that the transatlantic debate of the last few years regarding the propriety (or legality) of the principle has deep roots in debates going back hundreds of years.
On the one hand were advocates of "police" regulation on the continental model, with administrators given broad discretion to regulate for public health and welfare; on the other adherents to a "common law ideology" according to which administrative discretion needed to be constrained by courts demanding proof of harm.

The history of this debate is something Morag-Levine has been working on for some time (see, e.g., her "Is Precautionary Regulation a Civil Law Instrument? Lessons from the History of the Alkali Act"), and her application of this history to understanding a current debate in environmental law and policy is particularly valuable.

More when the article comes out...

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