Risk Society and Environmental Law

The Precautionary Principle in Environmental Law

Abstract

The purpose of this paper is to research Risk Society from the perspective of Environmental Law. Concretely. I took up the Precautionary Principle that has been introduced into Environmental Law both internationally and domestically. I would like to mention two points regarding the future of this principle. First, which paradigm should be used under this principle, the Rational-Instrumental (RI) model or the Deliberative-Constitutive (DC) model? The RI model has a presupposition that technological risks are objective, quantifiable, and the scientific uncertainty can be minimized to a manageable extent. However, the cases that don't fit this presupposition are those that this principle should be applied to. Therefore, in scientifically uncertain cases, basically the DC model should be used. On the other hand, in order to avoid giving the administration too much discretion, the Principle of Proportionality should be applied and the Cost Benefit Analysis should be considered. Second, should this Precautionary Principle be applied to fields other than the environment and food, such as terrorism or war? If this principle is extended to other fields, its meaning will greatly change. In the fields of the environment and food, this principle has the benefit of protecting human life and health while causing the partial loss of business freedom. This principle would not cause the violation of the fundamental rights of people's physical and mental health. In the field of terrorism or war. when this principle is applied, a precautionary war will cause the violation of those fundamental rights. Thus, cases in the field of the environment and food are distinctly different from those in other fields when this principle is applied. In other words, to extend the applicable scope of this principle beyond the fields of the environment and food will conflict with liberalism. When the principle is extended, its character will be structurally different from that applied only in the fields of the environment and food.