Law, Uncertainty and emerging Technologies: Towards a Constructive Implementationof the Precautionary Principle in the Case of Nanotechnologies

Abstract

The paper deals with the impact of nanotechnologies on the view of legal regulation and moves from the idea that emerging technologies offer an excellent perspective from which to analyze the shift from government to governance, that typically occurs nowadays. Nanotechnologies affect many legal domains, including environmental protection, consumer protection, medical law, occupational health and safety, privacy and civil liberties, intellectual property rights, and patent law. Three main issues are addressed in the paper: (1) the applicability to nanotechnologies products and processes of the law already in force for other purposes; (2) the meaning, role and limits of the precautionary principle; (3) the role of soft law in the governance of nanotechnologies. In the paper, a constructive meaning of the precautionary principle is embraced; it is maintained that such meaning can only be clarified through the implementation of the principle; self-regulation and soft law are thought of as a form of regulation suitable, if properly joined with hard law, to implement the precautionary principle and to manage the uncertainty arising from emerging technologies.