Rethinking Decisionmaking in International Environmental Law: A Process-Oriented Inquiry into Sustainable Development

Abstract:     
Drawing on insights from the social and behavioral sciences, the New Haven School of legal analysis championed by Harold Lasswell and Myres McDougal proposed a worldwide jurisprudence of human dignity. Their process-oriented jurisprudence attempted to flesh out the core values of human dignity and the processes necessary to translate those values into universal theories of authoritative decisionmaking. Of particular interest is the role they proposed for science in legal analysis. This article explores the relationship between New Haven School ideas of authoritative decision and the environmental challenges posed by sustainable development. Exploring the tensions between the malleability of sustainable development as an international principle and the precision of the multilateral environmental agreements that shape international environmental law, this article identifies how the very idea of authoritative decision is being reshaped in the context of globalization. This article suggests that some portions of the New Haven approach might help make sense of the new multiplicity of decisionmakers in the globalized arena, and might help international environmental law confront the duties owed to future generations.

Using the international debate over cost-benefit versus precautionary approaches to regulation, this article tests both the strengths and weaknesses of New Haven thinking about science, and draws the conclusion that the lessons offered for environmental problem-solving are cautionary as well as salutary. Ultimately, this article concludes that although the specific scientific matrices and analyses proposed by New Haven writings are a product of their times, many of the School's basic insights about the need for contextual, problem-oriented and multi-disciplinary analysis still ring true.

Keywords: precaution, cost-benefit, environmental, sustainable development, sustainability, risk analysis, international, GMO, biotechnology, regulatory

JEL Classifications: K19, K32, K33

Accepted Paper Series