Perspectives and Prospects
Edited by Elizabeth Fisher, Judith Jones and René von Schomberg
Chapter 6: The Precautionary Principle and Administrative Constitutionalism: The Development of Frameworks for Applying the Precautionary Principle
1 Elizabeth Fisher and Ronnie Harding The precautionary principle is now a common feature of environmental and public health regimes in many diﬀerent jurisdictions (de Sadeleer 2002, Trouwborst 2002). The process of implementing the precautionary principle has not stopped there however, and in numerous diﬀerent jurisdictions there has been a focus on developing general frameworks for implementation. Yet while there is a burgeoning literature on the legitimacy of the precautionary principle, there has been very little critical attention given to these frameworks. This is a considerable deﬁciency in the literature when one considers that they are one of the most important means of operationalizing it. An analysis of these frameworks provides insight into the implications of applying the principle and the challenges involved in that process of application. This chapter is an introductory study of these frameworks and in it we make three points. First, policy makers and commentators need to be aware that developing these frameworks is not merely a matter of formulating practical checklists. Rather, as a framework regulates what is acceptable behaviour it will, by necessity, reﬂect and promote theories of what is a legitimate role for public administration, or in other words theories of administrative constitutionalism. Second, there is not one single theory of administrative constitutionalism that is promoted by these frameworks. So far, it can be seen that two diﬀerent theories have tended to dominate the development of frameworks for applying the precautionary principle – the deliberative-constitutive and rational-instrumental theories. These...
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