Eyes Wide Shut: On Risk, Rule of Law and Precaution

Authors

  • Lyana Francot-Timmermans,

    1. Department of Legal Theory, Faculty of Law, Utrecht University, The Netherlands
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  • Ubaldus De Vries

    1. Department of Legal Theory, Faculty of Law, Utrecht University, The Netherlands
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    • * This article is an expanded version of a paper presented at the Third Biennial Conference of the Standing Group on Regulatory Governance of the European Consortium for Political Research and the Regulation Network, 17–19 June, 2010 at University College, Dublin, Ireland. That paper is based on a longer essay written for a Utrecht University project on legality (“The Eclipse of Legality in Europe”) and published as De Vries and Francot-Timmermans 2011, 11). This article extends the topic to cover other aspects of the rule of law (in addition to legality).

Abstract

The rule of law offers legal certainty, laying down boundaries to the state's playing field. The precautionary approach stipulates that the absence of scientific certainty is no reason not to act to prevent harm. Here, uncertainty frames action. The precautionary approach potentially expands the state's playing field, and this expansion might well undermine the precepts of the rule of law. The certainty-uncertainty axis exposes a tension between the rule of law and the precautionary approach in what Ulrich Beck has termed the world risk society in second modernity. It is this tension that is the focus of analysis in this article.

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