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Forthcoming, 34 Revus J. of Const. Theory & Phil. of Law (2018).

Abstract

Standards which prescribe more than efficient precaution against physical harm and health injury are commonplace in American environmental, health and safety regulation. The “safe level” standard, for example, requires the elimination of all significant risks. The “feasibility” standard requires the elimination of significant risks to the extent insofar as it is possible to do so without impairing the long run survival of the activities which give rise to the risks. These standards reach back more than a generation to the founding of the Environmental Protection and Occupational Health and Safety Agencies. You might expect them to be too well-entrenched to be subject to serious dispute. Yet these standards are now routinely decried as irrational. Welfare, we are told, is the ultimate and only value and it prescribes efficient precaution. The only correct standard of safety is the standard of cost-justification and it prescribes minimizing the combined costs of preventing and paying for accidents, thereby maximizing the benefit we extract from risky activities. No matter how highly we value safety, the benefits of achieving a particular level of safety must be traded off against the costs of doing so. The rational way to trade costs off against benefits is to balance them so that we maximize net value and thereby make ourselves as well off as we can be. Taking more than efficient precaution yields less—not more—value. Preferring less value to more value is flatly irrational. Or so we are now told.

This paper argues that, in both law and ordinary moral reasoning, the avoidance of harm has priority over the provision of benefit. Harm’s moral significance is connected to our separateness and independence as persons, and with our interest in securing the conditions necessary for us to be the authors of our own lives. Harm avoidance has a justified priority but that priority is rooted in the value of autonomy, not in the value of well-being. Serious physical harms impair the pursuit of a wide range of human ends and aspirations, and deny normal human lives to those whose powers are impaired. Very few benefits, by contrast, are comparably essential conditions of effective agency. Benefit, like happiness, is mostly for each of us to pursue as best we can. In the domains to which they apply, the safety and feasibility standards are plausible expressions of the priority of avoiding harm. They rest on defensible judgments of value. Whereas cost-benefit analysis supposes that everything is fungible at some ratio of exchange, these standards assert that the gains to be won from the imposition of some risk to health and safety are not worth the candle. Only some gains and some values are important enough to justify the imposition of “significant risk” of devastating physical injury. The feasibility standard, for examples, supposes that the long-run flourishing of various activities is important enough to justify the imposition of significant risks of harm. The judgment here is not one of cost and benefit, but of comparable value.

Disciplines

Administrative Law | Environmental Law | Health Law and Policy | Jurisprudence | Law | Law and Philosophy | Legal Remedies | Torts

Date of this Version

11-2-2018

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