Law and Sustainability: The Basics

Dr Liz Fisher, Fellow and Lecturer in Law, Corpus Christi College and Law Faculty, University of Oxford

The story of the sociology, the engineering, and the law student

• Each holding part of the sustainability puzzle

• The need for a transdisciplinary and integrated discourse: – ‘a transcendent

language, a meta-language in which the terms of all the participants are, or can be, expressed’ (McDonell)

The relationship between is and ought (true and good)

4.

Outline1. Understanding the Role of Law in

Sustainability

2. Two Challengesa) Law and the many definitions of risk

b) Law and the is and the ought

3. An Examples: Defining Risk Assessment in the World Trade Organisation

4. Two Conclusions

1. Understanding the Role of Law in Sustainability

The Role of Law• Constituting new public and private institutions • Creating frameworks for co-ordinated public and

private action (regulatory regimes)• Defining what is and is not acceptable behaviour • Creating sanctions and penalties• Providing forums for the resolution of disputes • Sub-national, national, supranational,

international, levels

Understanding Law

Incorrect Understandings• Law as an instrument• Law as an obstruction• Law as irrelevant Correct Understandings • Law has its own culture and its own logic (Geertz,

1993, Nelken, 1995)• Law is a discourse with its own language• Laws are malleable and ambiguous• Law as framing, constituting and limiting based on

what is and what should be (Fisher, 2007)

2. Two Challenges and Two Conclusions

a) Law and the many definitions of risk

b) Law and the is and the ought

Risk: A Concept With Many Definitions

Royal Society, 1992• Risk: ‘a combination of the probability, or frequency, of

occurrence of a defined hazard and the magnitude of the consequences of the occurrence’

• Social scientists: risk not an objective concept - focusing on risk management and risk perception

Exam Question: What is a risk? • This is a Risk

Importance of Context for Defining Risk • Disciplines • Function of defining risk • Institutional culture for defining risk

Relevance to Law

‘The concept of risk emerges as a key idea for modern times because of its use as a forensic resource’ (Douglas, 1992)

• relevance to criminal law disputes over culpability – ‘recklessness’ ‘guilt’

• relevance to ‘private law’ disputes over liability for past harm – ‘fault’

• relevance to regulating future harms and threats – sustainability

Reasons for Variations in Legal Definitions

• Concept serving different purposes in different contexts

• Differences in legal culture

• Differences in requirements of evidence– How much?– What nature?

• Disputes over the applicable definition in a particular context

Conclusion 1

It makes no sense to talk to lawyers of ‘risk’ as if it only meant one thing. Risk can mean many different things depending on the discipline, the culture, and the legal and institutional context.

BUT The variations are not just concerned with what is but also what should be

b) Law and the Is and the Ought • Central role for

administration in sustainability

• Administrative law about constituting, limiting and holding decision-makers to account on the basis of what is and ought to be the role of ‘good’ public administration.

• ‘reasonable’ based on what is and ought to be

• Administrative Law – the law of public administration

4.

The Precautionary Principle Where there are threats of serious or irreversible damage,

lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (Principle 15, UNCED)

Controversial • Legal definition • Legal status (principle, approach, policy)• LegitimacyContext: the state • Debates over the precautionary principle are debates

over the legitimacy of public administration (Fisher, 2007, Fisher & Harding, 2006)

• Debates over state action in the international arena

Debates Over the Precautionary Principle and Public Administration

Pro the Principle• Problems and uncertainty

as complex• Need for

discretionary/flexible administration

• Deliberative administration • Broad legal mandates,

emphasis on reasoning

Anti the principle• Problems/uncertainty

manageable • Need to control

administrative discretion • Instrumental administration • Narrow legal mandates,

emphasis on analysis

The Differences

• NOT about science v. values

• Two different ways of understanding what is and should be the role and nature of public administration

• Two different ways of understanding what is reasonable and acceptable action

• Two different ways of understanding what is arbitrary action

Conclusion 2

Debate about ‘the law’ in sustainability is debate about what is and what should be and encompasses debate about what is true and what is good.

So how does this work in practice?

Well………it all depends……………..

3. Example: Defining Risk Assessment in the World Trade

Organisation Sanitary and Phyto Sanitary Agreement

The Legal Framework

Article 5.1 Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.

Annex A.4………. evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs.

The EC – Hormones Dispute – Different Interpretations of Risk

Assessment (Fisher, 2007)

Dispute Settlement Panel • Focus on risk assessment/risk

management divide • Concept of ‘potential’ replaced

by ‘probability’• Risk assessment ‘a scientific

process aimed at establishing the scientific basis’ - focus on available scientific evidence

• ‘Based on’ - matching scientific conclusions in the risk assessment to the regulatory measure

Appellate Body • The Panel’s understanding too

restrictive• Quantitative requirement not

required• ‘Systematic, disciplined and

objective inquiry’ but not limited to risk ascertainable in a scientific laboratory

• Needs to be a ‘rational relationship’ but the risk assessment does not need to come to a monolithic conclusion and doesn’t need to coincide with the measure

The Differences

• Differences in risk assessment

• Differences in what risk is – A probability x consequence v.

a ‘threat’

• Differences in what should be the role of public administration – Quantifying the risk v. making

qualitative decisions in circumstances of scientific uncertainty

4.

4. Conclusion: Two Statements

• It makes no sense to talk to lawyers of ‘risk’ as if it only meant one thing. Risk can mean many different things depending on the discipline, the culture, and the legal and institutional context.

• Debate about ‘the law’ in sustainability is debate about what is and what should be and encompasses debate about what is true and what is good