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Reflections on Science, Technology and Risk Regulation in Pope Francis’ Encyclical Letter Laudato Si’

Published online by Cambridge University Press:  20 January 2017

Alessandro Spina
Alessandro Spina*
Affiliation:
European Medicines Agency
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Extract

The scientific dimension of risk regulation is obvious. It is accepted that a measure banning a pesticide is to be based on toxicology studies and in particular on the data proving harmful effects for human health or the environment. A more subtle determinant of risk regulation is the ethical dimension of the decisions adopted to control the social risks emerging from new technologies. It is in this context that a document such as the Encyclical letter Laudato Si, on care of the common home of Pope Francis could offer important reflections on how public policy on science and technology could be enriched by including an ethical perspective. The Laudato Si encyclical letter has been accompanied by wide public attention, spurred on by both the huge popularity of Pope Francis and the announced choice of devoting, for the first time in the history of the Catholic Church, an entire document to environmental issues.

Type
Articles
Information
European Journal of Risk Regulation , Volume 6 , Issue 4 , December 2015 , pp. 579 - 585
Copyright
Copyright © Cambridge University Press 2015

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References

1 Pope Francis, Laudato Si, on care for our common home, Encyclical Letter given in Rome on 24 May 2015 english version available at http://w2.vatican.va/content/francesco/en/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si.html (last accessed 25 November 2015).

2 Wagner, W. J., Unlocking Catholic Social Doctrine: Narrative as Key, in 7 Journal of Social Catholic Thought Vol. 2 (2010) at p. 307 Google Scholar.

3 http://newsroom.unfccc.int/unfccc-newsroom/pope-francis-releases-encyclical-on-climate-and-environment/ (last accessed on the 22 November 2015).

4 It is noteworthy that, for example, the encyclical letter has become part of the syllabus of graduate courses of Environmental Law or Science and Technology: http://sciencepolicy.colorado.edu/students/envs_5100/syllabus_fall2015.pdf (last accessed on the 22 November 2015).

5 J.C. Nagle, Pope Francis, Environmental Anthropologist, in 28 Regent University Law Review, (forthcoming, 2016).

6 Jayabalan, K., The Catholic Social Encyclical Tradition, in Catholic Social Teaching and the Market Economy, edited by Booth, P., St.Pauls Publishing: London (2014) at p. 58 Google Scholar.

7 The principles enunciated in these documents form the ordinary magisterium of the Catholic Church which presents matters of faith and morals authoritatively. Encyclical letters must be distinguished from other instruments that such as apostolic exhortations, apostolic letters that the Pope can adopt but are generally more concerned with particular aspects of internal Church governance. However, it must be recalled that the apostolic exhortation Evangelii Gaudium issued by Pope Francis in November 2013 dealt with many social issues (economic inequality, peace).

8 This is not a new feature of encyclical letters. Dramatically, the Pope highlights the urgency of the global environmental deterioration by recalling that a similar stance to address not only Catholic but ‘ all men and women of good will’ was taken by Pope John XXIII during the Cold War with he encyclical letter Pacem in Terris LS (3). He explains ‘I urgently appeal then for a new dialogue about how we are shaping the future of our planet. We need a conversation that includes everyone, since the environmental challenge we are undergoing, and its human roots, concern and affects us all’ LS (14).

9 P. Brown, The Cult of the Saints, its Rise and Function in Latin Christianity, Univ. of Chicago Press (1982)

10 http://www.pewresearch.org/fact-tank/2015/06/09/a-look-at-popes-and-their-encyclicals/ (last accessed 22 August 2015).

11 The principle of ‘subsidiarity’ belonging to the Catholic social doctrine, affirms that matters ought to be decided by the smallest, lowest, and least authority. This principle, familiar to EU law scholars, has been used to govern the exercise of powers within the EU between central and national level: Cfr.: Article 5(3) and Protocol 2 of the TEU.

12 In the first introductory paragraphs of the encyclical letter (LS 3-6), the Pope refers to the teaching of his predecessors on the issue contained in official addresses or in other encyclical letters, in particular in Pope Benedict XVI's Caritas in Veritate. There is a Catholic social doctrine towards environmental issues which has been thoroughly surveyed in L. A. Silecchia, Environmental Ethics from the Perspectives of NEPA and Catholic Social Teaching: Ecological Guidance for the 21st Century, in 28 William and Mary Environmental Law and Policy Review, (2004) pp. 659-798.

13 As there will be numerous quotations from the text of the encyclical letter throughout this paper, references will be made by the acronym LS followed by the relative numbered paragraphs.

14 ‘ Human creativity cannot be suppressed. If an artist cannot be stopped from using his or her creativity, neither should those who possess particular gifts for the advancement of science and technology be prevented from using their God-given talents for the service of others.rsquo; ( LS 131).

15 With regard to climate change and the technologies that could ameliorate this problem: ‘Worldwide there is minimal access to clean and renewable energy. There is still a need to develop adequate storage technologies. Some countries have made considerable progress although it is far from constituting a significant proportion. Investments have also been made in means of production and transportation that consume less energy and require fewer raw materials, as well as in methods of construction and renovating buildings which improve their energy efficiency.’ (LS 26).

16 A notable application can be seen in certain environmental impact assessments that govern public decision-making with opaque and incomplete assessments of the risks which for the short-term gains and the private interests involved can actually make it easy to rubber-stamp authorisations or conceal information; the Pope wishes that the environmental impact assessment of a project should be part of the process ‘from the beginning’ and should be ‘carried out in a way that is interdisciplinary, transparent and free of all economic and political pressure’ cfr. LS 183

17 ‘ To seek only a technical remedy to each environmental problem which comes up is to separate what is in reality interconnected and to mask the true and the deepest problems of the global system.’ LS 111. In other parts of the encyclical it has been pointed out that in ever more polluted and dirty urban spaces, green and ‘ecological’ areas are created whose access is however limited to privileged few (LS 45) or the example of the increasing use of air-conditioning (LS 55).

18 ‘It is difficult to make a general judgement about genetic modification (GM), whether vegetable or animal, medical or agricultural, since these vary greatly among themselves and call for specific considerations. The risks involved are not always due to the techniques used, but rather to their improper or excessive application. Genetic mutations, in fact, have often been, and continue to be, caused by nature itself. Nor are mutations caused by human intervention a modern phenomenon. The domestication of animals, the crossbreeding of species and other older and universally accepted practices can be mentioned as examples. We need but recall that scientific developments in GM cereals began with the observation of natural bacteria which spontaneously modified plant genomes. In nature, however, this process is slow and cannot be compared to the fast pace induced by contemporary technological advances, even when the latter build upon several centuries of scientific progress.’ (LS 133) and ‘Although no conclusive proof exists that GM cereals may be harmful to human beings, and in some regions their use has brought about economic growth which has helped to resolve problems, there remain a number of significant difficulties which should not be underestimated. In many places, following the introduction of these crops, productive land is concentrated in the hands of a few owners due to “the progressive disappearance of small producers, who, as a consequence of the loss of the exploited lands, are obliged to withdraw from direct production”. The most vulnerable of these become temporary labourers, and many rural workers end up moving to poverty-stricken urban areas. The expansion of these crops has the effect of destroying the complex network of ecosystems, diminishing the diversity of production and affecting regional economies, now and in the future. In various countries, we see an expansion of oligopolies for the production of cereals and other products needed for their cultivation.[…] (LS 134).

19 ‘Today the analysis of environmental problems cannot be separated from the analysis of human, family, work-related and urban contexts, nor from how individuals relate to themselves, which leads in turn to how they relate to others and to the environment’ (LS 141).

20 For a more positive view of legal institutions and the role of law within the encyclical letter, and a survey of the many passages of the encyclical in which the Pope praises various legal instruments adopted at international, national and local level, see: L.A. Silecchia, “Social Love” as a Vision for Environmental Law: Laudato Si’ and the Rule of Law (forthcoming in Liberty Univ. Law Review, 2016) an earlier draft on file with the author.

21 The shortcoming of positive law as the authoritative mechanism to guide human behaviour has a long-standing place in Catholic tradition (in particular in the writings of Augustine and Aquinas’ Summa Theologiae). This can be traced to the superiority of natural law, as opposed to positive or human-made law, for it refers to the existence of an authority based on justice and moral values to guide the actions of man. Cfr. Finnis, J., Natural Rights and Natural Law, Oxford: Oxford University Press, 1980 Google Scholar. Brennan, P. M., Human Law and Natural Law in the Catholic Tradition: Authoritative Guides to the Good Life, in Piderit, J. and Morey, M. (eds.) Teaching the Tradition: A Disciplinary Approach to the Catholic Intellectual Tradition, Oxford: Oxford University Press, 2011 Google Scholar. However, in the Laudato Si the view that ‘laws’ are not considered sufficient to solve societal and environmental problems seems not only grounded on an intrinsic moral limitation of positive law but rather stems from the defective capacity that laws have in changing human behaviour in a way to transform meaningfully or reform an environmentally-degrading lifestyle, or to produce exactly those results that we intended them to produce and not unintended similar – or worse- problems. ..

22 ‘Moreover, what takes place in any one area can have a direct or indirect influence on other areas. Thus, for example, drug use in affluent societies creates a continual and growing demand for products imported from poorer regions, where behaviour is corrupted, lives are destroyed, and the environment continues to deteriorate.’ (LS 142)

23 ‘Education in environmental responsibility can encourage ways of acting which directly and significantly affect the world around us, such as avoiding the use of plastic and paper, reducing water consumption, separating refuse, cooking only what can reasonably be consumed, showing care for other living beings, using public transport or car-pooling, planting trees, turning off unnecessary lights, or any number of other practices.’ (LS 211)

24 ‘We have to accept that technological products are not neutral, for they create a framework which ends up conditioning lifestyles and shaping social possibilities along the lines dictated by the interests of certain powerful groups. Decisions which may seem purely instrumental are in reality decisions about the kind of society we want to build.’ (LS 107)

25 This theory is firmly rooted into Science and Technology Studies, however it was considered provocative in the seminal scholarly contribution of 1980 written by Langdon Winner : L. Winner, Do Artifacts have Politics in Vol. 109 Dedalus, N 1(1980) Cambridge: MIT Press.

26 One exception is represented by ‘technology-forcing regulation’, a model by which regulators impose to regulatees the requirement to comply with standards, that could be achieved through technology that is unspecified or not yet developed for widespread commercial application. Cfr.: B. La Pierre, Technology-forcing and federal environmental protection statutes, in 62 Iowa Law Rev. (1977) 771 or A. Nentjes, F. de Vries, D. Wiersma, Technologyforcing through environmental regulation, in Vol. 23 Eur. Jour. of Political Economy (2007) 903. A recent typology of regulatory policy is to introduce ‘regulation by design’. This is aimed at introducing a specific regulatory purpose in the functioning of technological products, for example ‘digital rights management’ tools in order to prevent unauthorised copies of digital data: see Yeung, K., Towards an understanding of Regulation by Design in Regulating Technology, edited by Brownsword, R. and Yeung, K., 79–94. Portland, Oregon: Hart Publishing, 2008 Google Scholar.

27 ‘Furthermore, when media and the digital world become omnipresent, their influence can stop people from learning how to live wisely, to think deeply and to love generously. In this context, the great sages of the past run the risk of going unheard amid the noise and distractions of an information overload. Efforts need to be made to help these media become sources of new cultural progress for humanity and not a threat to our deepest riches. True wisdom, as the fruit of self-examination, dialogue and generous encounter between persons, is not acquired by a mere accumulation of data which eventually leads to overload and confusion, a sort of mental pollution.’ (LS 47). Similarly, the encyclical letter puts great emphasis to the ‘consumerist’ lifestyle, which is actively promoted by economic interests and generates, with its throwaway culture, vast amount of waste and pollution.

28 Pasquale, F., Black Box Society. The Secret Algorithms that Control Money and Information. Harvard University Press, 2015 CrossRefGoogle Scholar; Tufekci, Z., Algorithmic harms beyond Facebook and Google: Emergent challenges of computational agency, in Vol. 13 Colorado Technology Law Journal, 2015 p. 203 Google Scholar

29 For example, this trend is already visible in the field of digital regulation: an independent supervisory authority, the European Data Protection Supervisor, has recently put forward the development of an ethical dimension to data protection regulation, in particular in light of the fact that in the current digital environment, adherence to law might not always be considered enough in order to protect fundamental values such as dignity and privacy of individuals: See Opinion 4/2015 “Towards a new digital ethics” available at https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2015/15-09-11_Data_Ethics_EN.pdf (last accessed 25 November 2015).

30 This echoes the emergence of policy initiatives which leverage on the insights of behavioural sciences in order to steer or influence behaviour in order to further the public interest. Those techniques which aim at bringing about the desired behaviour without introducing formal legal rules are defined ‘nudges’ from the bestselling book by Richard Thaler and Cass Sunstein: Thaler, R. – Sunstein, C., Nudge. Improving decisions about health, wealth and happiness. London: Penguin Books, 2008 Google Scholar. Policymakers around the world are now trying to operationalise the findings of behavioural science into concrete regulatory measures. Obviously these techniques are particularly appealing for regulating life-style: Alemanno, A., Nudging healthier life-style: informing the noncommunicable diseases agenda with behavioural insights, in Regulating life-style risks, edited by Alemanno-A.Garde, A., Cambridge: Cambridge University Press (2015)Google Scholar.