Abstract
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Proportionality, as a fundamental principle governing public interventions in all modern democracies, could be defined as a multi-stage procedure for testing whether public intervention, often involving interference with the rights and freedoms, is sufficiently justified (Engle 2002; Moeller 2012, Alexy 2014). Principle of proportionality became much more than just a technical rule of designing public interventions or judicial decision-making, but a foundation of democratic constitutionalism structured around idea of cautious, restrained and carefully balanced interference of the state into rights, freedoms, markets. It corresponded well with the neoliberal vision of the state, advocating for less expansive state and creating more hurdles to public interventions. As a regulatory strategy, it is clearly linked with the deregulation agenda, expansion of regulatory impact assessment and more recent popularity of behavioral interventions, promoted as an alternative to classical regulation. All these techniques and approaches illustrate distrust into expansive public intervention, perceiving it as last resort and raising the bar for any interventionist initiatives.
Our paper does not proclaim the end of the hegemony of proportionality, but strives to capture the potential shift in the styles of public interventions, namely the emergence of precautionary principle as a dominant rule of interventions, at least in some areas. In contrast with proportionality, precautionary approach favors proactive, pre-emptive and often more profound public interventions (Feintuck 2005). According to popular conception of the precautionary principle, uncertainty and absence of strong evidence justifying intervention should not be used as a reason for postponing or abstaining from actions (Godard 2006). We consider to what extent this approach might become (or is becoming) the leading strategy of interventions tackling massive global challenges, such as pandemics, climate change or economic inequalities. The catastrophic, even apocalyptic, discourse on necessity of radical changes in economic and social life to prevent environmental, health-related or economic catastrophes, appears to create demand for precautionary-based interventions. In contrast, proportionality might be seen as a relict of old era of global stability and optimism, offering perfect technology for incremental fine-tuning of policies within narrow spectrum of possible interventions, leaving no room for radical shifts and drastic measures.
COVID-19 global pandemic has already provided multiple examples of practical applications of the precautionary principle. Strict lockdowns, travel bans or contact tracing measures largely failed to pass rigorous proportionality test, considering deficits in knowledge about effectiveness of these measures and necessity of rapid actions. They clearly relied on the precautionary approach that in the epidemiological context require swift and aggressive intervention when faced with a new public health risk of uncertain proportions (Baral et al. 2020). The question arises, whether this large-scale demonstration of precautionary principle will encourage political decision-makers to follow similar approach while tackling our potentially catastrophic challenges, in particular related to climate change.
Our contribution combines insights from legal theory, constitutionalism, regulatory and public policy studies, concentrating particularly on: 1) Clarifying the difference between proportionality and precautionary-based public interventions; 2) Identifying the policy areas and policy challenges where precautionary approach gain particular prominence; 3) Exploring the potential conflicts between precautionary approach and the underpinnings of democratic constitutionalism and the rule of law; 4) Searching for legal formula for reconciliation of the precautionary approach with proportionality principle.
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