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Hocking, Barbara Ann; Wood, Andrew --- "Risks and Legal Theory by Jenny Steele" [2004] AltLawJl 79; (2004) 29(5) Alternative Law Journal 260



Jenny Steele; Hart Publishing 2004;£12.00 softcover.

This work by Jenny Steele comes as a much needed contribution in the debate about the status of risk and risk management in the law. Indeed, the Queensland Supreme Court recently noted that a well-respected expert had been 'unable to identify a general theory of risk management which was falsifiable or verifiable even though much had been written in the field'. See McMillen v Brambles Security Services Limited [2001] QSA 271 (77). The Supreme Court's observation was made in the context of a consideration of the admissibility of expert opinion evidence offered from within the 'field' of risk management Jenny Steele's 'Risks and Legal Theory' represents a significant advancement towards the development of such a theory.

Complex, challenging and articulate, this book confronts us with the prevalence of risk in law. Issues of risk arise in almost every field of law, whether contract. tort, environmental or criminal. Yet it might be supposed that the nexus between law and risk is curiously absent from major legal treatises. This concise and clearly written book informs us, however, that ideas about risk feature far more prominently in legal theory than we might suppose. Risks and Legal Theory argues through the nature of the contact between law and risk, taking us along the way (in the words of John Gardner, the series editor) on a 'fascinating tour of theoretical issues that currently arise in various important areas of legal and social policy' (x). The author is English but the topic is of cross-jurisdictional importance, as demonstrated by the attention paid to the balancing of risk and compensation during the so-called 'insurance and public liability crisis' that led to the lpp Report and legislative attempts to rein in the alleged 'juggernaut of negligence'. Part One of the book covers four key broad perspectives on risk (as a decision-making resource, in collective technology, control and governmentality, then together with hazards). This part canvases, just to take one example, Beck's argument that the world 'has become a laboratory' (31), Ewald's argument that 'risk' is 'nothing but a term derived from the practice of insurance' (33), and O'Malley's argument that governmentality theory has often assumed that risk is a prefenred technique of governance due to its connection with enhanced efficiency (46).

Part Two (risks in legal theory some core instances) covers risks, accidents and insurance, followed by risks, outcomes and personal responsibility (canvassing the views of Honore, Ripstein and the changing boundaries between risks and outcomes), and then looks at distributive justice, focusing on insurance and the individual (including discussion of Dworkin's hypothetical insurance market). Steele notes that insurance is perhaps the 'most familiar example of risk aversion in practice' (27). Part Three deals systematically and specifically with the environment, precaution and sources of change, emphasising the importance of the precautionary principle, not only in law but for its impact on science (197). Steele highlights, in particular, the ways in which the precautionary principle provides us with a 'very important focus for philosophical reflection' (198) given that it 'suggests limits to risk assessment, which derive partly from the untested nature of contemporary risks and the absence of "experience" on which to base statistical representation of these risks' (198).

Under the influence of standards such as AS/NZS 4360 Risk Management; AS/ NZS 4801 OH&S Management Systems and AS/NZS ISO 14001 Environmental Management Systems, many of us have become used to viewing risk management as a form of business science -the sort of thing that supports profitable practice in strategic planning, change management and the formulation of impact assessments. It is comforting to think that risk can be quantified and managed in the ways that those standards suggest. Jenny Steele takes her readers a stage or two beyond that perspective and brings them to an appreciation of the jurisprudential dimensions of risk In particular, she makes them uncomfortably aware of the problematic relationships that now exist between risk and traditional theories of individual and collective responsibility. In_ doing so, she introduces her readers to a dimension of risk theory that needs to be appreciated and understood if law is ever to come to terms with the challenges presented, in an age of constant change, by uncertainty and fear.

Dr BARBARA ANN HOCKING teaches in the School of Justice Studies at QUT.

ANDREW WOOD is a lawyer with Hunt & Hunt

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