Who is less responsible: a jaywalker in London or one in Paris?

Risk and Legal Theory
February 11, 2005

Within legal decision-making, the concept of risk has become somewhat paradoxically a source of security. It may allow judges to legitimate their decisions on the basis of its absence or existence - the criterion for making care orders in child-abuse cases is, for example, the existence of a "risk of significant harm". In negligence cases, the issue of whether the risk, meaning the probability of future loss, was or was not reasonably foreseeable becomes a basis for establishing liability.

Moreover, risk helps the courts to quantify the, in essence, unknowable in a range of issues, through the device of experts' calculations on the probability of past and future loss. It also helps to endow their decisions with an aura of objectivity and scientific respectability, making a link between individual outcomes and preferences on the one hand and objective or universal standards for responsibility on the other.

On the more abstract level of liberal legal theory, ideas related to risk and decision-making are applied, according to Jenny Steele, "to determine answers to some of its questions about responsibility, equality and justice".

Much of the legal debate revolves around the issues of how to reconcile the demands of an administratively practical system with those of justice and the moral imperative of attributing responsibility for acts that cause loss. Steele provides a detailed account of the costs and benefits of the different schemes that legal scholars have devised to meet these competing demands.

Responsibility for risks may be organised in very different ways - judicial determination of responsibility, strict liability, and no-fault insurance being the most obvious. If a pedestrian runs out in front of your car in London, not only might you escape having to pay for his or her injuries; you might even be able to recover compensation from him for the damage to your car. If the same event takes place on a Paris street, you will have to pay, even if there was nothing you could have done to avoid the accident.

None of this, at first glance, has any obvious connection with theories of risk that have been developed recently by sociologists such as Ulrich Beck, Niklas Luhmann and Anthony Giddens, with which Steele opens her book. By the end of her monograph, however, she has succeeded in convincing us that the concept of "risk" works very well in bringing together a range of disparate contemporary issues of concern to lawyers, moral philosophers, sociologists, political scientists, economists and environmentalists.

What is questionable, however, is whether the term has transformed its meaning more than once on the journey. In other words, are these different disciplines talking about the same thing when they refer to risk? As might be expected, it is the fraught question of individual responsibility and legal liability that taxes such eminent legal minds as Ronald Dworkin, Tony Honore, John Simon and Jules Coleman. Should the intentions of the individual play any part in determining liability? Should the amount paid to victims depend on the wealth of the perpetrator? Should people be free to choose whether they buy insurance or are there some risks for which everyone should be obliged to take out cover? Steele summarises and discusses intelligently and eloquently all contributions to the debate, identifying their strengths and weaknesses. However, again, these issues often seem far removed from social theorists' analyses of risk with which she starts her book. The only link between the legal theorists and the risk theorists that seems to work well is that between Dworkin's egalitarian liberalism and Giddens' social democratic vision of the Third Way in that both "represent positive readings of personal responsibility and personal risk management". "Both employ similar imagery of a bundle of resources" and give the individual responsibility for planning their use during his or her lifetime.

Yet it is significant that what enables Steele to bring Dworkin and Giddens together is that Giddens is strangely confident that, despite growing awareness of future uncertainty, it is possible to plan successfully for the future, while Dworkin does not even begin to recognise the existence of any global insecurity but puts his faith in the socially benign influence of centralised state institutions over individual behaviour. It is their optimism in the efficiency and flexibility of social institutions that joins them rather than any shared understanding of the concept of risk.

For her final example of legal theories' treatment of risk, Steele tackles environmental regulation. Her opening line - "The environmental context has been a particularly testing ground for 'risk'" - could go down as one of the understatements of the century and, to her credit, she goes on to relate the sorry tale of the progressive disillusionment with rational decision-making based on expert predictions, such as "quantitative risk assessment". She also considers the procedural approach of "constitutional liberalism" and supporters of Jurgen Habermas's notion of "communicative action". Clearly there is democratic deficit in relying on unaccountable experts, which could theoretically be remedied by public debate through which shared values would emerge. Nevertheless, as Steele points out, there are serious questions to be asked about whose values and interests will be permitted in such a debate and doubts as to whether any consensus or "public values" would emerge from such an exercise given the diversity of interests involved. While deliberative processes could democratise and so legitimate any subsequent decision, they would also make decisions far more difficult to achieve. Moreover, there is nothing to suggest that such "democratised" decisions would be any more effective in preventing environmental catastrophe than those emerging from existing political and legal systems, at present engaged in an elaborate game of catch-up with events in the environment that they were unable to predict.

Michael King is professor of law, Brunel University.

Risk and Legal Theory

Author - Jenny Steele Hart
Publisher - Hart
Pages - 228
Price - £26.00 and £12.00
ISBN - 1 84113 089 3 and 090 7

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