The history of precaution

A little while back Noga Morag-Levine posted on "The History of Precaution" over at RegBlog. Her work on the topic is a good example of how historical research can help make sense of current legal and policy issues, in this case the proper understanding of the much hyped and much maligned "precautionary principle".  As Morag-Levine explains,

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.

Morag-Levine thinks otherwise:

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.

Read more here.