KARSTEN KLINT JENSENTHE MORAL FOUNDATION OF THE PRECAUTIONARYPRINCIPLE(Accepted June 10, 2001)ABSTRACT. The Commission’s recent interpretation of the Precautionary Principle isused as starting point for an analysis of the moral foundation of this principle. The Precau-tionary Principle is shown to have the ethical status of an amendment to a liberal principleto the effect that a state only may restrict a person’s actions in order to prevent unacceptableharm to others. The amendment allows for restrictions being justified even in cases wherethere is no conclusive scientific evidence for the risk of harmful effects.However, the liberal tradition has serious problems in determining when a risk of harmis unacceptable. Nevertheless, reasonable liberal arguments in favor of precaution can bebased on considerations of irreversible harm and general fear of harm. But it is unclearwhen these considerations can be overridden.Within the liberal framework, the Commission advocates a so-called proportionalversion of the Precautionary Principle. This should be clearly distinguished from a welfare-based approach to precaution based on risk-aversive weighing up of expected costs andbenefits. However, in the last resort, the Commission does seem to make a covert appeal tosuch considerations.KEY WORDS: harm, liberalism, proportionality, rights, risk1. INTRODUCTIONDuring the last decade, the Precautionary Principle has won acceptanceas a general principle in international law. Roughly, the principle saysthat, in the face of reasonable fear of severe harmful effects on peopleor the environment, governments may be justified in imposing measuresto prevent this harm, even in the absence of conclusive scientific evidence.However, there is no explicit statement of the principle in the legal texts,and hence the precise content and scope of the principle remains somewhatunclear. Firstly, what precisely characterize the situations in which thePrecautionary Principle can be applied? In such a situation, secondly, whatdetermines whether or not the Precautionary Principle actually should beapplied? Thirdly, which degree of precaution (or risk aversion) does thePrecautionary Principle then prescribe?Journal of Agricultural and Environmental Ethics 15: 39–55, 2002.© 2002 Kluwer Academic Publishers. Printed in the Netherlands.40 KARSTEN KLINT JENSENRecently, the Commission of the European Communities has issued a“Communication on the Precautionary Principle” (2000),1which attemptsto answer these questions. The aim of this paper is to state preciselythe Commission’s interpretation of the Precautionary Principle, and toplace this interpretation in its proper relation to ethics and risk manage-ment in general, in order to uncover the moral foundation of applying thePrecautionary Principle.2. THE LIBERAL CONTEXTThe Precautionary Principle made its appearance in the context of envi-ronmental policy. However, the Commission “considers the precautionaryprinciple is a general one which should in particular be taken into consid-eration in the fields of environmental protection and human, animal andplant health” (p. 10). “Recourse to the precautionary principle is a centralplank of Community policy” (p. 13), and the principle’s importance isinternationally recognized, not least by the WTO agreement.2According to the Commission, the issue of when and how to use thePrecautionary Principle is a matter of finding the correct balance betweentwo opposing considerations:Thus, decision makers are constantly faced with the dilemma of balancing the freedom andrights of individuals, industry and organisations with the need to reduce risk of adverseeffects to the environment, human, animal or plant health (pp. 3, 8).This balancing belongs to the context of (political) liberalism. I shouldlike to make clear, firstly, what is involved in this balancing, and secondly,where the Precautionary Principle fits in.The defining characteristic of “liberalism,” as I shall use this term,is the claim that the state should protect the rights and liberties ofindividuals. The Commission, I suggest, implicitly assume that decisionmakers should be guided by an underlying liberal principle to somethinglike the following effect:The “Liberal Principle”: the only reason for which persons may be restricted in theiractions by the use of coercion is to prevent unacceptable harm to entities worthy ofprotection.1Page numbers below refers to this text, unless otherwise noted.2The Commission goes through the legal foundation for the Precautionary Principlewithin the Community and in international law, cf. pp. 9–13 and Annex I–II.THE MORAL FOUNDATION OF THE PRECAUTIONARY PRINCIPLE 41Accordingly, a person may not, against his own will, be restricted in hisactions with reference to his own best interests;3and neither may a personbe restricted in his actions, against his own will, in order to create benefitsto others. This contrasts with what I shall call a welfare-based approach,according to which a person sometimes also may be restricted in hisactions, against his own will, for the sake of his own best interest or forthe sake of benefits to others. I discuss this contrast in Section 5.The “Liberal Principle” is meant to ensure freedom of action forautonomous individuals (persons) only. However, the protection againstharm is extended to all humans as well as to animals, plants, and theenvironment (hence the term “entities worthy of protection”). I add thequalification “unacceptable,” because not all harms should necessarily beavoided from a liberal point of view. For instance, certain religious orsexual behaviors might seriously offend others and thus harm them. Butthese are clearly not the harms the liberal tradition wanted to protectagainst – quite to the contrary, the tradition wanted to protect a person’sright to freedom of religious or sexual orientation. If some harms areacceptable, then of course the liberal principle only protects against “unac-ceptable” harm. I shall have to leave it to intuition how exactly the linebetween them is to be drawn.Balancing is needed in judging what is an acceptable level of protec-tion for the entities worthy of protection that does not interfere more thannecessary with a person’s rights and liberties. If entities worthy of protec-tion are entitled to not being exposed to risks of harm (as the Commissionclearly seems to imply), then the balancing is extended to cover
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