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John Paterson

Systems theory characterizes the most complex problems confronting environmental law as essentially fractured among a variety of functional communicative systems. Taking this insight seriously, however, reveals that the most advanced tools of environmental law, such as the principle of precaution, must also be understood as similarly fractured. Noting the controversy that surrounds the principle, this chapter sets out to discover whether the disagreements may best be understood as arising from different system-specific constructions and whether such a finding might help to favour constructions which leave open its potential for rational decision making rather than those which essentially mistake it for other principles. This endeavour in turn calls for a methodological approach which can be efficiently deployed in an appropriate setting in order to tease out different system-specific constructions. Critical discourse analysis is proposed and applied in the reading of a key court judgement relating to the implementation of the principle in the context of a regulatory decision. The compatibility of critical discourse analysis with systems theory is addressed, with the suggestion being made that this can be achieved by understanding the latter as in essence the critique of critique. The hope is expressed that the chapter’s findings encourage others to consider the advantages that may be gained from understanding complex environmental law problems in terms of systems theory and specifically with the assistance of critical discourse analysis.

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Preben H. Lindøe, Michael Baram and John Paterson