The Precautionary Approach Design Pattern

Abstract

The precautionary approach is a way to manage problems related to the uncertainty of scientific knowledge regarding potential serious harms and to enable decision-making under uncertainty with due diligence. I have developed a model of the essential structural elements of the application of the precautionary approach, particularly the precautionary principle in EU law, as a legal design pattern—a formalized presentation of the core generic features and processes of how the law successfully addresses recurring problems. The precautionary approach appears as a decision tree with weighting and balancing. It serves as an intervening rule to resolve inter-system conflicts between different action systems such as the economy, civil society, and ecological systems. It is related to other design patterns like the proportionality test, risk and impact assessment, and judicial review. Presenting the application of the precautionary approach as a legal design pattern facilitates interdisciplinary communication regarding the essential features of legally required problem-solving. Such a presentation enhances the problem-solving capacity of the application of the law beyond the legal domain, for instance, in improving digitalization efforts and enabling the integration of anticipatory quality controls of justice, legality and good governance into decision-making processes.

Impact Assessment as a Legal Design Pattern—A “Timeless Way” of Managing Future Risks?

“…The design pattern approach to can uncover the structural features of effective legal solutions, which may facilitate the digitalization and automation of law (Pöysti, 2024). Digitalization and automation of law require "technology-conscious" legal drafting, with awareness of which normative values, such as the rule of law, must shape the automated law and how to formalize them into code (Schartum, 2020; See also Zalnieriute, 2020;Pöysti, 2023).…”

“…Project-based impact assessments focus on risks that are "generally known or at least knowable" (Pöysti, 2024) and within the control the assessee, who implements the project. In contrast, regulatory impact assessments are an essential tool for risk regulation (Black, 2010;Bounds, 2010) of systemic risks (Wiener, 2010).…”

“…However, where we cannot foresee the the future impacts of technology, we should presume "the prophecy of doom" and refrain from action (Morris, 2013, p. 188), i.e. exercise the principle of precaution (Pöysti, 2024),…”

Come in and See: Translating a Design Pattern from the Courtroom into an Online Environment

“…We used design patterns as a conceptual tool that allows us to map repeating regulatory mechanisms that appear as problem solutions across legal domains. Some of the patterns build on legal principles, such as publicity or transparency, and some patterns resemble regulatory techniques, such as retaining a precautionary approach on regulatory subjects (see in this issue Pöysti, 2024).…”