This comment by Olga Milanese is related to the situation in Italy, where it is common to talk about the pandemic in terms of the "Maximum Precaution Principle." This term is not much used elsewhere, but similar concepts are expressed in different forms in other countries, for example stating that no level other than zero is acceptable in regards to the pandemic (see, e.g. this exchange). Unfortunately, the consequence is that other problems are neglected. Here, Olga Milanese writes some interesting considerations from her viewpoint of a lawyer about the "principle of precaution." These considerations apply not only to the pandemic, but to many facets of the situation as it is nowadays. Facing multiple existential threats, from climate change to resource depletion, the human tendency, now as in past history, is to select one as "the" threat, and convey all the efforts on it, without realizing that some of the perceived "solutions" may do more harm than good.
By Olga Milanese
First of all, there is no principle of "maximum" precaution,
but of precaution ... and that's it!
The difference is fundamental.
This principle contemplates the need to adopt protection and prevention measures even when it is not absolutely certain that a particular phenomenon is harmful, but there is a SCIENTIFICALLY RELIABLE doubt that it could be.
This means that the legislator and the public administrations, in the exercise of their discretionary powers, must act cautiously when there is a potential risk. In these cases, we speak of "technical discretion", since the choices are made as a result of an evaluation based on the knowledge and the means provided by the various sciences. Even in the common conception, precautionary action is "justified only when there has been identification of the potentially negative effects (risks) based on scientific, serious, objective and available data, as well as a rigorously logical reasoning and, nevertheless, a 'wide scientific uncertainty about the "extent" of the aforementioned risk ".
It is, therefore, true that the precautionary principle operates where there is no scientific certainty about the damage and when the delay of interventions could lead to an aggravation of the potential damage, but it is equally true that its statement can NOT translate into the possibility of listening and acting upon any kind of story or rumor, and this for many reasons.
First of all, precisely because it must be considered that precautionary measures are NOT adopted, by their nature, on the assumption of absolute certainties, but on the basis of hypotheses and probabilities. Secondly, for the no less important consideration that the aforementioned measures are destined to involve a certain current or future, often high, sacrifice of other values, rights, or principles.
To remedy this immanent conflict, a balance of interests must be used which results in the need of PROPORTION between the degree of probability and severity of the risks and the degree of incisiveness of the precautions to be taken on the freedoms or antagonistic rights. This should already make it clear why a precautionary plan that contemplates the cancellation of any activity (school, work, health in the broad sense of the term, etc.) due to a danger that is not immediate and not based on a deep-rooted scientific CERTAINTY, is intended to violate the application conditions of the same precaution.
But that is not all! Failure to respect the proportion and balance of interests leads to an infringement of the REASONABLE principle, for which the public action MUST comply with the canons of OPERATIONAL RATIONALITY and AVOID ARBITRARY AND IRRATIONAL DECISIONS.
This latest principle is of primary importance in the democratic management of a country, since the values of equality, impartiality and good performance of administrative activity converge in it, so much so that its violation configures the vice of EXCESS OF POWER!
Wanting to be less technical, we could say that one thing is to establish the need to take a series of precautions when handling an unknown device whose power and harmfulness we have no scientific data about. It is quite another thing to decide that we do not even want to try to defuse the device, choosing to paralyze the life of an entire community to avoid the risk that someone could, by chance, approach it.
The first conduct constitutes the correct application of the precautionary principle, as understood by our legal system and in EU law; the second is an arbitrary distortion of that principle, originating from a single cursed insidious adjective ("maximum") thrown there next to the word precaution. That became fashionable at the beginning of the pandemic in order to legitimize the denial of the right to education, the right to work, the right to a fair remuneration, the right to social equality, the right to health care made up of all-round care and assistance, in short, the right to the protection of human dignity, in every area in which his personality takes place.
A single word, pulled out of the drawer of politics, has brought about the "mutation" of a principle that arose to guarantee citizens in a pretext to free state administrators from the burden of studying thoughtful solutions, but above all from the weight of the responsibilities of a any decision or choice.
Olga Milanese is a civil lawyer. She deals mainly with aspects related to the protection of rights in the business, family and in relation to medical and professional responsibility, as well as the issue of the protection of human rights
