It’s better to be safe than sorry. We all accept this as a commonsense maxim. But can it also guide public policy? Advocates of the precautionary principle think so, and argue that formalizing a more “precautionary” approach to public health and environmental protection will better safeguard human well-being and the world around us. If only it were that easy.
Simply put, the precautionary principle is not a sound basis for public policy. At the broadest level of generality, the principle is unobjectionable, but it provides no meaningful guidance to pressing policy questions. In a public policy context, “better safe than sorry” is a fairly vacuous instruction. Taken literally, the precautionary principle is either wholly arbitrary or incoherent. In its stronger formulations, the principle actually has the potential to do harm.
Efforts to operationalize the precautionary principle into public law will do little to enhance the protection of public health and the environment. The precautionary principle could even do more harm than good. Efforts to impose the principle through regulatory policy inevitably accommodate competing concerns or become a Trojan horse for other ideological crusades. When selectively applied to politically disfavored technologies and conduct, the precautionary principle is a barrier to technological development and economic growth.
It is often sound policy to adopt precautionary measures in the face of uncertain or not wholly known health and environmental risks. Many existing environmental regulations adopt such an approach. Yet a broader application of the precautionary principle is not warranted, and may actually undermine the goal its proponents claim to advance. In short, it could leave us more sorry and even less safe.
I haven’t given the precautionary principle too much thought in the health and environmental regulatory context, but it jumped out at me as directly implicating gun control policies. In the Constitutionality of Social Cost, I discuss how some view the right to keep and bear arms as if it were a nuisance, that should be abated the same way a polluting smoke stack would–by regulating it, only with concern for social cost:
Viewing the Second Amendment in Coasean terms helps toilluminate the value, or lack thereof, the Supreme Court hasassigned to this right. It is troubling to consider gun ownershipas a nuisance that can be abridged because it may result inharm. If the Second Amendment is in fact an individual constitutionalright, then it should not be treated as if it were a nuisancethat can be enjoyed only when judges think it is notdangerous. No other constitutional right is held to such a flimsystandard. As demonstrated below, a careful look at the constitutionalityof social cost in the contexts of the First, Fourth,and Fifth Amendments reveals that the courts are much lessinclined to consider the possible harm A may cause B whenconstruing whether B can limit the rights of A.
I’ll have to give some more cost to the precautionary principle.