Abstract
How cautious should regulators be? A standard answer is consequentialist: regulators should be just cautious enough to maximize expected social value. This paper charts the prospects of a nonconsequentialist - and more precautionary - alternative. More specifically, it argues that a contractualism focused on ex ante consent can motivate the following regulatory criterion: regulators should permit a socially beneficial risky activity only if no one can be expected to be made worse off by it. Broadly speaking, there are two strategies regulators can use to help risky activities satisfy this criterion: regulators can mandate strict safety standards that protect those who would otherwise stand to lose, and they can require that some of the benefits of the activity be redirected to them. In developing these themes, the paper aims to provide a theoretical grounding for those who oppose using risk-cost-benefit analysis as the primary regulatory standard, and in particular, for advocates of the precautionary principle.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Available at http://www.sehn.org/wing.html
The contemporary locus classicus is Scanlon (1998).
Sunstein (2003) takes this to be a damning objection to the Precautionary Principle. And given that the Wingspread version of the principle reads ‘When an activity raises threats of harm to human health or the environment, precautionary measures should be taken…’ his charge has some initial credibility.
We thus have a contractualist justification of one of the central tenets of the Wingspread Statement on the Precautionary Principle: “The process of applying the Precautionary Principle must be open, informed and democratic and must include potentially affected parties.”
This is Elizabeth Ashford’s conclusion. In her words, “for many … activities, not all of those who face the remote risk of being killed by the activity could have expected to benefit from it. Forgoing all activities of [this] kind could significantly impoverish agents’ lives. However, as long as their lives would still be well worth living, then the cost to each of them of the extensive burden of avoiding the risk would be less than the cost to another individual of actually being killed by the activity. Therefore, measures which reduced the extremely remote risk of death to a few individuals would be justified even if they severely impoverished the lives of millions.” (2003), pp. 299–300. The problem is also discussed in Lenman (2008) and Fried (2012).
Some merits of such a system are discussed in Lin (2005)
In the rare cases in which people who stand to gain nothing at all from an activity are exposed to risks of near instantaneous death, benefits delivered after the loss is suffered will not be able to make the expected value positive, for obvious reasons. There direct ex ante transfers may be necessary to legitimize the risk imposition.
Reeves (2014) gives a broadly Rawlsian argument for holding companies strictly liable for harms generated by especially risky activities, even retroactively.
Strand (1983) and Lin (2005) lay out further barriers to recouping damages for environmental injury in ex post tort systems.
New Zealand has instituted just such a scheme as an alternative to tort law for accidental harms.
This alternative is inspired by Tideman and Plassmann (2010).
Caney (2012) develops a similar point in the context of climate policy.
References
Ashford E (2003) The demandingness of Scanlon’s contractualism. Ethics 113:273–302
Caney S (2012) Just emissions. Philos Public Aff 40(4):255–300
Executive Order 12291, 46 FR 13193, February 17, 1981
Executive Order 12866, 58 FR 51735, September 30, 1993
Executive Order 13562, 76 FR 3821, January 18, 2011
Fletcher GP (1972) Fairness and utility in tort theory. Harv Law Rev 85(3):537–573
Fried BH (2012) Can contractualism save us from aggregation? J Ethics 16:39–66
Hansson SO (2013) The ethics of risk: ethical analysis in an uncertain world. Palgrave MacMillan, New York
Lenman J (2008) Contractualism and risk imposition. Polit Philos Econ 7:99–122
Lin, AC (2005) Beyond tort: compensating victims of environmental toxic injury. South Calif Law Rev 78: 1439–1528
Office of Information and Regulatory Affairs (1996) Economic Analysis of Federal Regulations Under Executive Order 12866. Available at: http://www.whitehouse.gov/omb/inforeg_riaguide#iii
Reeves A (2014) Foreseeability and strict liability in torts: a moral analysis of liability for environmental injury. Unpublished manuscript on file with author
Scanlon TM (1998) What we owe to each other. Harvard University Press, Cambridge
Scanlon TM (2013) Reply to Zofia Stemplowska. J Moral Philos 10(4):508–514
Strand P (1983) The inapplicability of traditional tort analysis to environmental risks. Stanf Law Review 35:575–619
Sunstein C (2003) Beyond the precautionary principle. Univ Pennsylvania Law Rev 151:1003–1058
Tideman TN, Plassmann F (2010) Pricing externalities. Eur J Polit Econ 26:176–184
Acknowledgments
I would like to thank my colleagues Anja Karnein and Anthony Reeves, as well as two anonymous referees, for their helpful comments on earlier drafts of this article.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Morgan-Knapp, C. Nonconsequentialist Precaution. Ethic Theory Moral Prac 18, 785–797 (2015). https://doi.org/10.1007/s10677-014-9552-6
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10677-014-9552-6