The History of Precaution

The distinctiveness of European from American regulatory cultures or traditions is a matter of longstanding controversy. Two recent books The Politics of Precaution by David Vogel- and The Reality of Precaution, edited by Jonathan Wiener with several others have made notable contributions to this debate. Both books argue that regulatory cultures or traditions are incapable of explaining current differences between American and European approaches to precaution, which they define as regulatory stringency. For Wiener, this conclusion derives from the inconsistency of patterns of stringency between the United States and Europe. Vogel argues that while the stringency of current European environmental regulation indeed exceeds that of its U.S. counterpart, the split is unstable and opened relatively recently. In combination, the books aspire to put to rest an entire family of historical-institutional explanations for cross-national regulatory differences in the transatlantic context and beyond. This essay draws from legal history to argue for an alternative position: legal traditions and their associated administrative-law principles are highly relevant to current transatlantic conflicts over precaution. The paper's starting point is the distinction between two separate meanings of the precautionary principle, the first prescriptive, and the second permissive. In its prescriptive sense the precautionary principle urges regulators to take stringent mitigation measures in the face of scientifically uncertain risks. In its permissive sense, the principle authorizes the state to regulate when the relevant harms are scientifically uncertain. Conflicts over permissive precaution thus inherently reflect divergent views of the scope of the state's autonomy in the regulation of risk. These disparate views correspond closely, in turn, with relevant differences between the administrative-law traditions respectively associated with Anglo-American common law and Continental civil law.