Principles of risk imposition and the priority of avoiding harm

Abstract

Standards which prescribe more than efficient precaution against physical harm and health injury are commonplace in American environmental, health and safety regulation. Yet these standards are now routinely decried as irrational. Welfare, we are told, is the ultimate and only value and it prescribes efficient precaution. This paper argues that, in both law and ordinary moral reasoning, the avoidance of harm has priority over the provision of benefit. Harm avoidance has a justified priority but that priority is rooted in the value of autonomy, not in the value of well-being. Serious physical harms impair the pursuit of a wide range of human ends and aspirations, and deny normal human lives to those whose powers are impaired. Only some gains and some values are important enough to justify the imposition of “significant risk” of devastating physical injury. The judgment here is not one of cost and benefit, but of comparable value.