Regulating Risk through Private Law

Law in the Risk Society, ed. by Ubaldus de Vries and John Fanning, Hague: Eleven International Publishing, 2017

The main claim in this contribution is that major problems of the present risk-based regulating polices are caused by the fact that they are built upon questionable and uninformed theoretical assumptions on risk. In their approach to the problems of the nature of risk and its proper regulation, these policies seem to ignore what has been said on these issues in social theory over the past decades, particularly since the publication of Ulrich Beck’s renowned Risikogesselschaft in 1986. Thus, in this contribution, I explore how Beck’s ideas, together with a follow-up discussion in current sociology, may contribute to making such regulatory policies theoretically more robust, pragmatically more efficient, and politically more acceptable. One can point our two aspects in which Beck’s theory of risk society and social reflexivity may be particularly useful in that respect, and which the existing official programmes of risk regulation are surprisingly lacking. The first point is the very notion of risk: what is risk and how it is defined? The second point refers to the question about suitable strategies for responding to various kinds of risk. As I shall explain, a reaction to risk may occur at different institutional levels (at both the global and local level), and with varying attitudes (precautionary – proactive). In both these aspects, current risk regulating policies are grounded in beliefs that may be said to be (potentially) highly disputable, yet that are hardly (actually) disputed. Beck’s theory, together with sociological debates it inspired, may inspire such a discussion. As a theoretical enterprise, it will not directly provide principles of how to choose a proper regulatory strategy, but it may deliver a reliable analytical framework, indicating the existing alternatives in this field.

European Journal of Risk Regulation, 2018

Journal of European Tort Law, 2016

This paper examines economic effects of the law in shifting risk bearing in our society. Shifts in risk-bearing have an impact upon the efficient allocation of resources, income distribution and economic growth. Particular attention is given to risk spillovers or externalities that are sanctioned by law. Some of the possible consequences of such spillovers for economic efficiency are discussed using the Kaldor-Hicks criterion. Examples are given in which the law encourages excessive risk spillovers from an efficiency point of view. It is also pointed out that in a few cases the law may lead to an excessive reduction in risk-taking from a social point of view. It is observed that the legal practice of compensating for actual damages sustained rather than for the risks of damages, involves least expected cost to parties creating the risk. On the question of product-liability, it is noted that strict liability is becoming more common. While on efficiency grounds a case can be made out for strict liability in special circumstances, the efficiency arguments for it do not appear to be strong. Arguments in favour of strict product liability seem to rest more heavily on income distribution implications. Two income distributional arguments in favour of strict product-liability are outlined.

2007

The paper argues that the last few decades have witnessed changes in how citizens are viewed in the UK and that these changes have implications for security risk governance. The paper identifies a shift from contract to tort law, and a related shift from a contract model of citizens to a tort model of citizens, or from a view of citizens as robust, rational risk-takers to vulnerable persons at risk. My discussion of law involves socio-legal ideal-types, nevertheless, these ideals inform presumptions underpinning individual laws and policies and their interpretation. The paper begins by discussing the contractual model of the citizen as robust rational risk-taker and its influence on the interpretation of tort law. Second the paper discusses the expansion of tort and consumer protection, and the evolving view the citizen as vulnerable victim. Third the paper discusses the implications of a tort culture of risk aversion for security strategies. Contractual character of modern law and ...

Stanford Law Review, 2010

British Journal of Criminology, 2016

Economy and Society, 2006

Osgoode Hall Law Journal, 2006

EMBO reports, 2004