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Record ID
Date of creation
2012-05-03 19:06 UTC (dina.abdelhakim@cbd.int)
Date of last update
2012-05-07 19:38 UTC (andrew.bowers@cbd.int)
Date of publication
2012-05-07 19:38 UTC (andrew.bowers@cbd.int)

General Information
Beyond the precautionary principle (Public Law and Legal Theory Working Paper No. 38)
Cass R. Sunstein
Author’s contact information
Harvard Law School
1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States

Phone: 617-496-2291
Email: csunstei@law.harvard.edu
  • English
Publication date
Summary, abstract or table of contents

The precautionary principle has been highly  influential in legal systems all over the world. In its strongest and most distinctive forms, the principle imposes a burden of proof on those who create potential risks, and it requires regulation of activities even if it cannot be shown that those activities are likely to produce significant harms. Taken in this strong form, the precautionary principle should be rejected, not because it leads in bad directions, but because it leads in no directions at all. The principle is literally paralyzing- forbidding inaction, stringent regulation, and everything in between. The reason is that in the relevant cases, every step, including inaction, creates a risk to health, the environment, or both. This point raises a further puzzle. Why is the precautionary principle widely seen to  offer real guidance? The answer lies in identifiable cognitive mechanisms emphasized by behavioral economists. In many cases, loss aversion plays a large role, accompanied by a false belief that nature is benign. Sometimes the availability heuristic is at work. Probability neglect plays a role as well. Most often, those who use the precautionary principle fall victim to what might be called "system neglect," which involves a failure to attend to the systemic effects of regulation. Examples are given from numerous areas, involving arsenic regulation, global warming and the Kyoto Protocol, nuclear power, pharmaceutical regulation, cloning, pesticide regulation, and genetic modification of food. The salutary moral and political goals of the precautionary principle should be promoted through other, more effective methods.
Thematic areas
Background material to the “Guidance on risk assessment of living modified organisms”
Is this document is recommend as background material for the “Guidance on Risk Assessment of Living Modified Organisms”
Section(s) of the “Guidance on Risk Assessment of Living Modified Organisms” this background material is relevant
Additional Information
Type of resource
  • Report / Review / Fact sheet / Notes
Publisher and its location
University of Chicago
49 Page PDF
Public Law and Legal Theory Working Papers
Keywords and any other relevant information
Keywords: burden of proof, behavioral economics

Citation: U Chicago Law & Economics, Olin Working Paper No. 149; U of Chicago, Public Law Working Paper No. 38.
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