Taking Reasoning Seriously: The role of courts in enforcing argumentative rationality
Title: Taking Reasoning Seriously: The role of courts in enforcing argumentative rationality
Author: PASKALEV, Vesco
Series/Report no.: EUI LAW; 2012/16
The regulation of new technologies, as well as many other areas of our increasingly complex and interdependent societies, involves high uncertainty which grants broad epistemic discretion to the usually unelected regulators. This raises increasing concerns in the public law theory which traditionally requires all authoritative acts to be justified on the basis of certain principles mandated by the legislator (or in other words to be non-arbitrary). Political authorities respond to this challenge by the so-called science-based regulation however this approach in practice makes them defer to the advice of obscure and even less legitimate scientific bodies. Worse still, the courts are considered incompetent to review the scientific basis of such decisions and they fail in their duties in their own turn. In this paper I propose a way out of the latter problem, which was exemplified at least once in the well-known Pfizer case of the General Court of the EU. On my reading of the case, the Court reviewed the validity (but not the soundness) of the reasoning of the EU institutions in order to determine whether they had strayed away from the received expert advice arbitrarily. This rigorous review gives the authorities the flexibility necessary in cases of uncertainty yet it held them to a very strict standard of reasoning not to allow them to act arbitrary. Beyond the particular issue, the case shows that the traditional duty to give reasons, if taken seriously, can constrain epistemic discretion and on the other hand can allow the courts to review complex scientific issues without second guessing the political authorities.
Subject: Precautionary principle; Pfizer; non-arbitrariness; regulation; reasoning
Type of Access: openAccess