Legally binding precautionary and prevention principles: Aspects of epistemic uncertain causation

Abstract

Abstract Legally binding precautionary principles direct societal actions through regulatory laws to prevent future catastrophic or irreversible consequences that can result from human and natural hazards. Those principles connect uncertain cause and effect to public actions and hence must be transparent, scientifically sound and, on the average, demonstrably add to societal wellbeing. Focusing on legally binding forms of precaution and prevention concerning public choices, seen as prospects, we articulate how uncertainty affects causal analyses that must satisfy their legal requirements. The common measure of uncertainty is probability, explicitly used (and framed in various guises) by the three legal systems we study: the People's Republic of China, the European Union, and the United States. Probabilities can represent different forms of uncertainty, their technical differences, but use the same calculus. They occur at the intersection of legal and scientific causation and allow abstracting, from a prospective reality via models and simulations, future catastrophic or irreversible consequences. Probabilistic causal models—e.g., frailty models, power laws, self-organizing criticalities, and scale-free regularities – link environmental and other regulatory choices to reduce exposures likely to cause adverse responses. Thus, this type of causation is the scientific basis of the EU's Precautionary Principle, its Directives and Regulations; US federal regulatory and case law, and Chinese laws regarding the prevention of hazards. We use examples that clarify and guide public policy analysts to better formalize prospective public choices to avoid ambiguities or possibly incorrect results. We find that the scientific basis necessary to the analysis of precautionary and preventive choices is invariant to the jurisdictions that use it. We conclude that precautionary choices characterized by complex causation can be qualitatively assessed through adapting nine classic epidemiological criteria.