Review: Laws of Fear: Beyond the Precautionary Principle

I expected more of this book. The initial chapters are pretty bad, not very scientific or rigorous in the argumentation. The later chapters were much more interesting, leading to a total rating of mediocre.


I do not venture a survey here, but it is reasonable to speculate that in actual practice, nations cannot plausibly be ranked along some continuum of precaution. Every nation is precautionary about some risks but not others, and a nation’s claim to have adopted the Precautionary Principle will conceal this inevitable fact. 36 Nonetheless, the mounting importance of the principle in Europe deserves close attention, if only because the idea of precaution is playing such a large role in public debates. In fact the principle has been mentioned dozens of times in European Union courts, and it has often been a significant factor in the ultimate decision. 37 The advocate general of the European Court of Justice has stated, in a public opinion, that the Precautionary Principle applies “when no concrete threat . . . has yet been demonstrated but initial scientific findings indicate a possible risk”; 38 he has also said that the principle requires risks to be reduced “tothe lowest level reasonably imaginable.” 39 ButEuropean tribunals have yet to choose between weak and strong versions of the Precautionary Principle. Traces of both can be found in judicial opinions, and indeed there has been a high degree of vacillation in the cases. Consider some representative examples.


Nonsense. A factor analysis will do just that, given that there is a common factor of precaution. Probably there is.



In the law of consumer protection, the most obvious examples of libertarian paternalism involve “cooling-off” periods for certain decisions. 40 The essential rationale is that under the heat of the moment,consumers might make ill-considered or improvident decisions. Both bounded rationality and bounded self-control are the underlying concerns. A mandatory cooling-off period for door-to-door sales, of the sort imposed by the Federal Trade Commission in1972, 41 provides a simple illustration. Under the Commission’s rule, door-to-door sales must be accompanied by written statements informing buyers of their right to rescind purchases within three days of transactions. Some states also impose mandatory waiting periods before people may receive a divorce decree. 42 Wecould easily imagine similar restrictions on the decision to marry, and some American states have moved in this direction as well. 43 Aware that people might act impulsively or in away that they will regret, regulators do not block their choices, but ensure a period for sober reflection. Note in this regard that mandatory cooling-off periods make best sense, and tend to be imposed, when two conditions are met: (1)people are making decisions that they make infrequently and for which they therefore lack a great deal of experience, and (2)emotions are likely to be running high. These are the circumstances – of bounded rationality and bounded self-control respectively – in which consumers are especially prone to make choices that they will regret.


This is already law in Denmark with certain things, e.g. divorce. First one has to separate, and then a year later one can divorce.


Also, this is used with suicide clinics/assisted suicide, so that people dont make irrational decisions all of a sudden.



The danger of unjustified infringement is most serious when the victims of the infringement can be seen as an identifiable group that is readily separable from “us.” Stereotyping of groups significantly increases when people are in a state of fear; when people are primed to think about their own death, they are more likely to think and act in accordance with group-based stereotypes. 4 Experimental findings of this kind support the intuitive idea that when people are afraid, they are far more likely to tolerate government action that abridges the freedom of members of some “out-group.” And if this is the case, responses to social fear, in the form of infringements on liberties, will not receive the natural political checks that arise when majorities suffer as well as benefit from them. The simple idea here is that liberty-infringing action is most likely to be justified if those who support that action are also burdened by it. In that event, the political process contains a built-in protection against unjustifiable restrictions. In all cases, it follows that government needs some methods for ensuring against excessive reactions to social risks, including unjustified intrusions on civil liberties.


This behavior is entirely rational. If such situations, one has to decide quickly. Going with the average is the best practice in a situation where the decision must be made rapidly.



Formany years, Israel’s General Security Service has engaged in certain forms of physical coercion, sometimes described as torture, against suspected terrorists. According to the General Security Service, these practices occurred only in extreme cases and as a last resort, when deemed necessary to prevent terrorist activity and significant loss of life. Nonetheless, practices worthy of the name “torture” did occur, and they were not rare. Those practices were challenged before the Supreme Court of Israel on the ground that they were inconsistent with the nation’s fundamental law. The government responded that abstractions about human rights should not be permitted to overcome real-world necessities so as to ban a practice that was, in certain circumstances, genuinely essential to prevent massive deaths in an area of the world that was often subject to terrorist activity. According to the government, physical coercion was justified in these circumstances. A judicial decision to the opposite effect would be a form of unjustified activism, even hubris.


In deciding the case, the Supreme Court of Israel refused to resolve the most fundamental questions. 7 Itdeclined to say whether the practices of the security forces would be illegitimate if expressly authorized byademocratic legislature. But the Court nonetheless held that those practices were unlawful. The Court’s principal argument was that if such coercion were to be acceptable, it could not be because the General Security Service, with its narrow agenda, said so. At a minimum, the disputed practices must be endorsed by the national legislature, after a full democratic debate on the precise question. “[T]his is an issue that must be decided by the legislative branch which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed.”


It is worthwhile to pause over a central feature of this decision. Instead of resolving the fundamental issue, the Court relied on the inadequacy, from the democratic point of view, of a judgment by the General Security Service alone. To say the least, members of that organization do not represent a broad spectrum of society. It is all too likely that people who work with the General Security Service will share points of view and frames of references. When such people deliberate with one another, group polarization is likely to be at work; the participants will probably strengthen, rather than test, their existing convictions, very possibly to the detriment of human rights. A broader debate, with a greater range of views, is a necessary precondition for coercion of this sort. The Supreme Court of Israel required clear legislative authorization for this particular intrusion on liberty; it insisted that presidential action, under a vague or ambiguous law, would not be enough.


This is complete contrast to the EU judges, who often engage in legislation from the bench in their interpretation of vague statements.

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