3. ANTICIPATING FUTURE RISKS
Finally, we have reached the third role of this law in the making to anticipate. Unlike the process of responsibilization, which derives from the concept of responsibility, the process of anticipating originates from what I would call concepts “made dynamic” by the use of adjectives that introduce the idea of future – “future” generations – or the persistence in time – “sustainable” development – “long-lasting” peace. Additionally, other adjectives implicitly recall the idea of time: for instance, when we refer to “universalizable rights” or “globalizable goods”, rather than “universal” rights and “global” goods. It is no coincidence that these expressions are recent: they imply the dynamic that underlines the instability of legal systems. They seem to match the transformation of fears, which move from local to global risks, but also from natural to industrial or combined risks. The link is clear: if the human being has contributed to the creation of risks, the human being can, and must, try to prevent them. Aspiring to elaborate a theory of the anticipating processes in legal matters is undoubtedly untimely, yet it is already possible to lay the foundations, to find the instruments: these are first empirical, then axiological, and finally, formal instruments, aiming to adapt legal formalism to the uncertain, if not the unpredictable.
Empirical instruments
Anticipating future risks means combining precaution and action. The term precaution has almost become taboo because it relates to the often misinterpreted ‘precautionary principle’. It should not be understood as a principle leading to immobilism, but more as a principle inciting the development of research and evaluation methods that presuppose transparency and rigor. It is necessary to transparently define risk indicators and to use them, to rigorously ponder them, since we are moving in the context of a multiple-indicators logic: pondering must not be modified in accordance with the desired outcomes. We know that this principle, which originated within environmental law, was later adjusted to dangerous products.
In a world where the pace of innovations increases the fear of the unpredictable to come, the precautionary principle (Delmas-Marty, 2018) is perceived most of the time as a “spell-casting phrase”, designed to avert scientific or technical-scientific uncertainties. Such mistrust, this is a matter of fact, can be explained through the excessive caution of the decision-makers hiding behind the precautionary principle – the meaning of which, however, can not be taken for granted. This principle is unpopular because it bears an unfortunate name, as it is actually a process of anticipation. Such a process keeps on expanding – from the environment to health, from information technologies to biotechnologies – and it progressively hardens – from soft law recommendations to hard law sanctions. What is this about? Must everything that is technically possible be legally allowed? Or is it necessary, in order to anticipate potential risks, to set some limits on innovation and extend liability law in the name of precaution? Precaution, innovation, responsibility: so many incantatory formulas, at times contradictory, pronounced to ward off the uncertainties of a world where the speed of technological innovations takes aback jurists and policy makers. Thus, liability extends from fault to risk; later, it extends from the prevention of ascertained risk to the precaution before uncertain risk, since the latter could severely and irreversibly affect the survival of humankind, the safety of the planet and the balance of the biosphere. Before the pace of innovations, it is necessary to anticipate and, at the same time, set limits on innovation; such limits must concern both the drafting of norms and their enforcement.
In terms of norms drafting, the precautionary principle undoubtedly entails the proliferation of norms. An evolution of this kind, which can be observed starting from the 1990s, especially on a national and European level, is not only quantitative – texts and comments increasingly multiply – but also qualitative – the norms are ever more binding. Created to identify anticipatory actions with respect to the state of still unsettled knowledge, the precautionary principle applies in the first place to political governance, to increasingly take on legal value, involving the responsibility of States as much as that of experts and corporations. As for its enforcement, the principle of anticipation of risk entails to a certain extent the transfer of power to the experts, so as to evaluate the uncertainties and likelihood of risk.
To function as a regulator for the search for balance, the precautionary principle presumes a permanent assessment of risk by its severity scale – that is, its likelihood, nature, scope, and degree of irreversibility – but also the assessment of its degree of acceptability – i.e., risk tolerance. By balancing innovation and conservation, we avoid resorting to the binary logic of “all or nothing”, which limits the decision to only two possible options: to allow every innovation that is technically possible or to prohibit it when risk appears, no matter how small.
The significance of the precautionary principle changes when it is evoked with reference to the dangerousness referred to the human being instead. Precisely because of the indeterminacy of the latter, evaluation is almost impossible. The indicators according to which human beings are allegedly predetermined to recidivism, for instance, are too uncertain and vague to be scientifically tested. Resorting to precaution in this context is a catastrophe for freedoms. When an ad hoc commission issues an opinion on dangerousness, this is, in fact, an unrebuttable presumption. To a certain extent, we are all potentially dangerous and we are equally unable to prove the contrary. If we limit the precautionary principle to the natural or industrial risks, either ascertained or potential, it seems possible to combine it with legal action, yet of a new kind. This wouldn’t be a criminal, punitive measure in the classical sense. Nor a civil one, either restorative or regulatory, such as an administrative procedure. Rather, this is a measure that we might call “prospective” instead of retrospective: whether we call it “preventive” or “of preservation”, the idea behind this legal action is to express solidarity through space and time.
This raises quite a series of technical issues for the jurist. Future generations, for instance, do not hold legal personality. Who will be the holder of the action? On whom can responsibility be laid and, finally, how can we quantify future injuries and avoid transforming legal action into an oracular action? Some legal techniques do allow the indirect representation of future generations through public prosecutors or non-governmental organizations. More direct techniques exist as well: some countries have instituted an environmental ombudsman or an ombudsman for future generations (Gaillard 2011, Delmas-Marty 2020).
Representing nature in court
The direct representation process is less common because if we humanize nature, we run the risk of dehumanizing the notion of the human person. Nevertheless, the idea of directly representing nature like “legal persons” are already being represented keeps on progressing, just like, more recently, the idea of representing “future generations”. Even if we refuse the anthropomorphism that attributes rights to nature despite the absence of any reciprocity, nothing prevents us from recognizing the duty of human beings towards non-human living beings, be it animals at risk or nature, by managing their representation as victims.
Likewise, in 2017 the New Zealand Parliament recognized through a law river Whanganui as a living and indivisible entity; guardians were appointed – one representative of the State and the Maori Iwi of Whanganui – to defend its interests and legally represent it. The same year, in India, a High Court ordered that the Ganges and its tributary, river Yamuna, be accorded the status of living human entities, and the judges nominated two local personalities to be the “parents” of these ecosystems, with the assignment to protect them.
There are also issues related to the attribution of responsibility. These can be answered with the reaffirmation of the principle of solidarity, or with the affirmation – which represents a novelty for the French Constitutional Council – that “the protection of the environment, a common heritage of human beings, represents an objective of constitutional value”1Conseil constitutionnel, décision n. 2019-823 QPC du 31 janvier 2020. such as to justify, in particular, restrictions on the freedom of enterprise. Like the creation of special funds for compensation, this would be a way to express solidarity.
Finally, the assessment of prejudice resupposes the measurement of risk; in this case, it is possible to resort to the acquired skills and their instruments: the scenarios of projection into the future. Since the very notion of risk implies referring to shared values, anticipating also presupposes the use of what I would call “axiological instruments”.