Law and Risk

David Bennett is the national director of the Department of Workplace Health, Safety and Environment at the Canadian Labour Congress in Ottawa.

Law and Risk comprises five essays by different authors on the
relationship between two themes: on the one side, the determination of
the risks to society and, on the other, legal verdicts on the rules that
the public authorities put forward to address these risks. The essays
are all of high quality, reflected in the useful introductory essay by
William Leiss and Steve E. Hrudey. The essays are difficult but
rewarding.

For those acquainted with the philosophy of law and science, there will
be some very basic issues, which are assumed rather than examined in the
essays. The first is “why risk?” After all, we could regulate on the
basis of the intrinsic hazard of the item in question, rather than the
calculation of its risk to society. How has the presumption arisen that
there must be a calculation of risk rather than a mere estimate of the
hazardous properties of the item or process to be regulated?

Second, there is a good discussion of the relationship between the
precautionary principle (taking action, notwithstanding scientific
uncertainty) and the burden of proof (who has to prove safety or harm).
But there is no discussion in the essays of how the burden of proof has
evolved from something different—namely, taking action in the face of
uncertainty, an issue raised in the introduction.

Last, those who criticize risk analysis often do so in ways that do not
relate to legal decisions. For instance, regulatory decisions are often
made under laws that do not prescribe any specific regulatory decision
procedure, which is in any case concealed from public scrutiny. When the
evidence to be used in hazard evaluation is supplied by the producer of
the potential hazard, such as a pesticide or drug manufacturer (evidence
that is again concealed from the public), the well-founded suspicion is
that the calculation of risk and benefit has been systematically rigged
in favour of maximum benefit and minimal risk. Until the courts, the
government, and public advocates breach this veil of secrecy, we will
not have a very constructive debate about the relationship between law
and risk.