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The Silence of the Sirens

Article  in  Law and Critique · May 1999

DOI: 10.1023/A:1008906011858

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 10 Law and Critique 2, 175-197, 1999

THE SILENCE OF THE SIRENS:

Environmental Risk And The Precautionary Principle
Andreas Philippopoulos-Mihalopoulos *

ABSTRACT

Risk is a projection of a specific temporality performed by the

observer. However, this projection is doomed to impossibility
because of the prohibiting problems of time, causality, subjectivity
and relativity of risk. The observer is left only with a castrated
projection that defies the role of science as a pedestal for the
projection and institutes negation as its driving force. This
projection is materialised within the Law in the form of the
Precautionary Principle. Risk evokes undesired dualisms, especially
the one between Idealism and Operationalism. The essay attempts to
bring the two together by extrapolating the hard appearance of the
legal system as seen through Luhmann’s autopoiesis and the need
for critical openness of a contextualised environmental law.

KEY WORDS

Autopoiesis
Causality
Luhmann
Observer
Precautionary Principle
Risk
Science
Subjectivity
Systems
Time-Space

*
School of Law, University of Westminster. I would like to thank Lindsay Farmer, Peter
Goodrich and Michael King for their patient comments on previous drafts of this paper.

1
In Book XII of the Odyssey, when Odysseus prepares himself and his crew for the
sailing of his boat in the vicinity of the island of Sirens, whose sweet song can be so
alluring that men fall in the sea and swim to them in the full knowledge that they are
going to be eaten alive by the Sirens, he chooses to command his crew to plug their
ears with wax -so as to hear neither the Sirens, nor Odysseus- and to tie him to the
central mast of the boat but leave his ears unplugged: in this way, even if he begged
them or ordered them to release him, they would not be able to succumb.

The epic encounter can be read in three ways: the first and most obvious one is to
become a first order observer, that is to become part of the story, imagine the
seductiveness of the Sirens and get upset with Odysseus who decides for the crew,
whereas he remains available to the beauty of the song but totally safe. However wise
or paternalistic, Odysseus’s decision is a wr ong way of considering his crew’s desires:
he judges before them and for them, by choosing to disregard their subjective points
of view -which would almost certainly be for the taking of the risk of being eaten
alive! This reading echoes Adorno and Horkheimer’s analysis in their Dialectic of
Enlightenment,1 where typically the crew -the labourers- must concentrate ahead and
blindly rely on the ‘seigneur’ and his oppressive role.

Two other readings of the epos, possibly more apposite to the present essay on risk,
will appear in due course without however overwriting this reading: the risk of the
Sirens will stalk this essay through its effort to show how futile is any attempt to
perceive risk. I link risk with time perception and causality, and I arrive at a bracing
impasse where clashing subjectivities battle with quixotic windmills of scientific
progress. It is there where the Precautionary Principle –which for the purpose of this
essay is the willingness to act regardless of the existence or not of conclusive
scientific evidence on the environmental effects of an activity- appears and through a
valiant negation of science, provides a pleasant bridging between the extremes of
Idealism and Operationalism!

In this attempt I selectively employ Luhmann’s autopoietic theory and in particular the
more problematic aspect of his theory, namely the closure of the systems, exactly
because it is the element that appears to be most contentious, realistic -in the sense of
a disengaged description rather than an immersed criticism- and therefore intriguing
for the purposes of environmental law.

1
T. Adorno and M. Horkheimer, Dialectic of Enlightenment, (London: Verso, 1997), 32ff

2
 I
A definition of risk would aim for the impossible. An informed definition of risk
would have to reach beyond a blunt statement such as “risk is the probability of
something negative happening” or even “the probability of something negative
happening multiplied by the severity of something”2 and establish what this probability
is (degree of probability) and what this negative effect is (how negative an effect
should be to qualify as negative, how and when it will materialise, further seemingly
connected or seemingly unconnected repercussions, etc.), in short, well into the realm
of knowledge of the specific risk and of its subsequent prevention. Any attempt to
define a risk will inevitably focus on some measurement of some aspect of either the
probability of the occurrence, or the consequences of the occurrence in terms of
seriousness and scope.3 The numerical or percentage outcomes attempt to include
both the probability behind ‘if’ and the scope of ‘what’, with all the intermediate
combinations of ‘and what if’. In other words, a definition of risk involves nothing less
than the construction of a hypothetical sentence where both ‘if A’ and ‘then B’ remain
unknown: a semantic equation where both variables are requested.

Two conceptual stages in a theoretical analysis of risk can be discerned: the first is the
perception of risk, which refers to the definition of risk (generic and partially
specific), and the second is the comprehension of risk, which should be understood as
the further definitional steps that target the pragmatic positioning4 of a risk, and will
normally be in the direction of preventing risk or remedying the materialisation of
risk, after having confronted it with cost, political stati, other risks, and other relevant
considerations -a truly ‘comprehensive’ comprehension! In thinking about these two
stages, I encounter a negation immured in the paradox of risk: any definition of risk
will, almost simultaneously, try to negate the subject-matter of definition. Our natural
fear 5 of risk (uncertainty, future, personal limitations...) makes us disregard the need
for a perception of risk, and directs us instead to risk comprehension (and thus
prevention by averting or limitation or social coercion through social acceptability).
We define risk by defining the initial steps of any method of prevention, which are the
calculation of probability and of consequences.

2
J. Stonehouse, Lecture on Environmental Risk Analysis, London: Imperial College Centre for
Environmental Technology, 13 June 1995
3
see E. Tellegen and M. Wolsink, Society and its Environment, (Amsterdam: Gordon and
Breach Science Publications, 1998), 147
4
in terms of scientific, political, scientific and social acceptance
5
for an excellent account on fear and risk see J. Maguire, The Tears Inside the Stone:
Reflections on the Ecology of Fear in S. Lash, B. Szerszynski and B. Wynne (eds.), Risk,
Environment & Modernity: Towards a New Ecology (London: Sage, 1996); for a more
psychological approach see L. Lopez, Between Hope and Fear: the Psychology of Risk, 20
Advances in Experimental Psychology, 1987; and for an impressive collection of urban-
inspired fear, see N. Elin (ed.), Architecture of Fear (New York: Princeton Architectural Press,
1997)

3
These two stages are interlaced: comprehension presupposes perception (one cannot
act upon something that one cannot define), just as perception cannot occur
independently of comprehension, because it makes use of at least some parts of
comprehension, e.g., threshold setting. Risk is exactly what we do not know: there is
little point in describing as risk something that we know is going to happen and is
going to have this and that effect. Risk is ignorance, so if we actually define risk we
kill risk.6 Hence we confront risk by circumventing it, we employ ostrichism and
superficial euphemism to bypass it, we (think we) define risk by (thinking that we are)
defying it.

This is not a theoretical problem alone: perception and comprehension resist

separation in practice too, and this becomes obvious in what Beck wr ites in a
characteristically Cassandrian way: “society is becoming a laboratory, because
everything can be checked only after it has been constructed”.7 One is never certain
about what is to happen until one lives it. We are witnessing a whole catenation of
developments: the more complex technology there is, the more risks we submit
ourselves to; the more technology autopoietically reproduces itself,8 the more these
embodied risks are autopoietically multiplied. The end result is that we experience
more risks that influence a seemingly smooth and secure picture of continuation of
the present life the way we ‘know’ it into the future. Indeed, any projection of a
present situation into the future one may perform in order to predict a risk and act
accordingly, involves the de-stabilising effect of autopoietically reproduced risks
which cannot be defined with any certainty until they have been lived through -but then,
they would have ceased being risks!

These autopoietically reproduced risks nest within technological progress: we need

more science to avert risks, but more science breeds more risks. The way out of the
cycle is negation: either negate scientific progress, or negate the particular risk-
taking. The latter negation comes -at least within the confines of environmental law- in
the form of the Precautionary Principle, a working definition of which would be “a
willingness to take action in advance of scientific proof of evidence of the need for
the proposed action”9; in other words, lack of scientific certainty should not be a
reason for not taking specific environmental action that could avert an environmental
risk. “Precaution applies to the problematic area of uncertainty, possible
irreversibility and collective environmental responsibility”10 even when no cause-

6
and not only linguistically: there will be no ‘risk’ in a de facto negative result
7
U. Beck, Risk Society: Towards a New Modernity (London: Sage, 1992), 104
8
that is self-production by means of reflexive application of already existing technology onto new
technology -and this is the essence of Autopoiesis. According to H. Maturana and F. Varela,
Autopoiesis and Cognition: the Realization of the Living (Dordecht, Holland: Reidel
Publishing, 1972) a system is autopoietic when its components produce themselves through their
organisation as a network of processes of production. Essentially, in autopoietic systems, the
reflexive qualities are not simply confined to the norms of operation but also to the constituent
elements and their organisation.
9
T. O’ Riordan & J. Cameron (eds.), Interpreting the Precautionary Principle (London:
Earthscan, 1994), p17
10
Ibid , at 24

4
effect relationship has been established between an activity and its environmental
effect.

By stating that lack of scientific certainty is not a sufficient reason to postpone

decisions on environmental matters, the Precautionary Principle is creating a link
between the acceptance of science and its simultaneous negation as a decision-making
factor. The Precautionary Principle accepts science as the outcome of past knowledge
that enables decision-makers to perceive the existence of a however undefined risk,
and negates science in that, comprehension of risk should not and cannot be based on
scientific reassurance or lack of it: it will have to address other issues, such as social
acceptability, economic viability, political interests, and possibly a redefinition of
science.

Negation trains risk, for even if one accepts risk, one is hardly ever ready to accept its
materialisation: we accept risk only in the hope that the risk we are taking will not
really happen. When we decide to take a risk we target the confined space of negation
within the risk (‘I will escape it’): underneath our reluctant ‘yes’ there lies an ever-
sonorous ‘no’. This negation, the subjective targeting of the underlying ‘no’, is what
guarantees the social acceptability of risk-taking. The absolutist negation of the
Precautionary Principle on the other hand is located a step earlier: it negates the risk-
taking itself.

II
Indulging the risk of being paradoxical, I apply reductionism in order to arrive to
contextualisation of risk. Thus, prima facie, risk can be

1. the projection of the present into the future

2. the projection of the present into a non-future
3. the projection of the non-present into the future
4. the projection of a present into the future

By present I intend a (spatially and socially) contextualised time. By future I intend a

(spatially and socially) contextualised time, but of unknown parameters: the future-
present as it may be. So, I project what I perceive as the present into the future. Thus in
1, I literally thrust the present into a futurological whirl, assuming that it is going to
land on a safe future ground; in 2, I abolish risk immanently: there is no risk, because I
know that there is no future11; in 3, I understand that some other conditions may exist
in the future that were imperceptible at present: again, risk is abolished, because I

11
If however an (intrasystemic) risk causes the disappearance of future (say, a nuclear catastrophe
of total global dimensions), then from the point of view of the environment the risk would have
existed as in 1., but from the point of view of all other systems that bear the consequences of the
catastrophe, risk would not have existed; see later in this essay for the intrasystemic nature of risk,
and also following note on Luhmann’s differentiation.

5
cannot know the existence of risk at present, so risk does not exist at present;12 and in
4, I understand that there may be other present conditions, perceptible and in parallel
with the present condition in 1., and I opt for one of them to see how it is going to
develop into my projection of the future.

Following this reduction, risk exists only in cases 1 and 4. The difference between the
two lies in the perception of ‘other’ present conditions. However, there is no
hierarchy amongst ‘the’ and ‘other’ presents, there is only a level perceptual field
where one opts either to not decide or to decide, to remain inert or to choose. So 1 is
what 4 is, but without taking into consideration the alternatives. And it is the existence
of alternatives (of ‘other’, of ‘a’ rather than ‘the’) that actuates decisions.

It is clear that the projection of a/the present is based on the present knowledge that
one has from the past: memory, in other words. And this is where the second reading
of the song of the Sirens warrants mentioning: the Sirens in Odyssey know the past,
the total past, the universe and the individual. Their song is about everything that has
ever happened in the macrocosmos and the microcosmos: the Sirens’ song applies the
vastness of knowledge to the confines of the individual desire, it shows to the sailors
that the immensity of human misery can be alluring if diluted in the oceans of the total
knowledge. The Sirens destroy memory as past knowledge of risk and re-semiologise it
as beauty of the present, convert it into liquid desire. The risk-projection of the
passing sailors is therefore mutilated, for if a projection is based on past knowledge,
and past knowledge, as sung by the Sirens, shows that there is no risk, only desire, the
projection becomes a masquerade of the past and a triumph of the present as the sole
victor.

III
The question of time arises. A deviation from the discussion of risk is required here in
order to set out the role of time and causality in the present discourse, taking in
parallel the opportunity to touch upon some of the more thorny issues of Luhmann’s
closure. Luhmann’s basic tenet with regard to time is that “everything that happens
happens simultaneously”.13 Very much along the Einsteinian lines of simultaneity,
Luhmann contends that the environment of a system exists simultaneously with the
system, and that all systems are synchronised by their very nature, which is of course
autopoietic: exactly because closed, autopoietic systems are guided solely by their
own operations, time on the operative level has no importance. Systems are being
guided reflexively by themselves, therefore by their own past: “they can gain no access
to their future. Hence, they move backwards into the future”.14 For Luhmann, the

12
however, Luhmann would say that, although there is no risk, there is danger. In Risk: A
Sociological Theory (New York: Aldine de Gruyter, 1993), Luhmann distinguishes between the
two concepts, by saying that the former is internal and the latter external, a division I revisit later in
this essay.
13
Ibid, at 34
14
Ibid, at 35

6
present is the only time existing: “in the second half of the eighteenth century (...) the
vantage point from which the totality of time could be simultaneously observed had
been eternity, and the observer had been called God. Now it was each present that
reflected on the totality of time in dividing it up between the past and the future of this
particular present, and the observer was the human being.”15 However, present, being
right on (if not ‘the’) border between past and future, is “the invisibility of time, the
unobservability of observation”, hence “the representation of simultaneity in time”.16

This last point has particular importance for risk considerations, because “like the
present, evaluation of risk can shift in the course of time, and like the present it can
reflect itself in the time horizons of the past and the future. There is no longer an
objective vantage point for correct evaluation.”17 The future can only be understood
through the present, and therefore risk too can only be understood through the present.
However, the system produces a certain temporality, through its differentiation from
its environment, simply because “temporality excludes an immediate and point-for-
point correlation between events in the system and events in the environment.
Everything cannot happen at once. Preserving the system requires time.”18 So,
temporality, or the ‘passage’ of time, exists: things can happen simultaneously but not
‘at once’: the origin of temporality, temporalization, denotes that there is no initio to
be found in the past, there is no initial event that can be reasonably assumed to have
‘produced’ the past -or the present for that matter.19 In short, there is no causality: in
Luhmann, causality has been replaced by time, or even better, by simultaneity.20

Both time and causality are prime issues in risk considerations and merit analysis,
because, although I tend to agree with Luhmann’s replacement of causality, I arrive
there from an entirely different standpoint: instead of regarding the present as the only
time existing, I propose that each present is contextualised or, in other words, system-
specific . There is no community of time, there are only space-time correlatives of
individual perceptions. This could become clearer through a metaphor employed by
Darryl Reanney21, a biologist writing on human perception of time: take an inhabitant

15
Ibid, at 40
16
Ibid, at 42. It is this ‘presentocracy’ that Drucilla Cornell in her article “The Relevance of Time
to the Relationship between the Philosophy of Limit and Systems Theory” [13 (5) Cardozo Law
Review (1992), 1579-1603], attacks with a counter-argument based on a post-modern feminist
opposition to the concept of system and from Derrida’s différance on the “not yet of the never
has been” which refers to the fact that, for Luhmann, “the future cannot begin”. However, I feel
that the critique to Luhmann’s present-centred time concept, which allegedly is based on the
modern concept of repeatability of past and future, is not accurate: Luhmann himself (supra, n.12)
states that everything can only happen once, thereby destroying the basic modern concept of time
whereby there is no difference between past and present.
17
Supra, n.12 at 42
18
N. Luhmann, The Differentiation of Society, (NY: Columbia UP, 1982), p292
19
Ibid, at 274
20
see also M. King and A. Schütz, The Ambitious Modesty of Niklas Luhmann, 21(3) Journal
of Law and Society, (1994), 261-287
21
D. Reanney, The Death of Forever: a New Future for Human Consciousness (Melbourne:
Longman, 1991)

7
of Flatland, a two -dimensional land consisting only of length and breadth, who would
have to explain a three-dimensional (that is a geometric rather than flat) U-shape tube
that cuts into flatland (something similar to a sheet of paper) in two places. A
Flatlander would see that if somebody shook one end of the U-shape tube, the other,
seemingly unconnected end, would reverberate the shaking. Likewise, a human sees
space and time as two separate things, that, in reality are ends of the same concept:
“the more limited our vision, the more we see as separate things that are really one”.22
There is nothing terribly novel about this concept: to the Newtonian three dimensions
of space, a fourth has been added by Einstein with his theory of relativity.23 What is
novel, though, is the reinstatement of the role of space within an otherwise time-
obsessed historicism24 -arguably another result of the post-modern fragmentation of
geography-, and the consequent amplification of the social dialectics to include what
Lefebvre calls “the production of space”.25

Perception of a continuum (between two ends for the Flatlander, between time and
space for the human), instead of emasculating the system-specific nature of time,
seems to reinforce it. For, the reverberation of one end at the shaking of the other is
what the Flatlander perceives, and it is also what leads the human to look for relations
between seemingly unconnected events. The individual becomes the observer and, as
Maturana and Varela -the fathers of autopoiesis- axiomatically postulate, "anything
said is said by an observer". 26 This is not dissimilar to the principles of Husserlian
phenomenology27 which typically profess that the conditions of objective knowledge
reside in the knowing subject. It is true that Husserl’s concept of time, as something
that can be perceived through consciousness, has been negated by the Heideggerian
notion of Dasein and Sein -whereby Being is closely identified with Time.28 However,
irrespective of whether there exists only‘one’ time that can be perceived, or one
Being, ubiquitous and all-encompassing, the time through which one lives, the
everyday time, -the “Lebenszeit”, if the wordplay is not too irreverent- forms part of the
way one experiences the world. The fact that time is probably one of the most popular
conventions -together with space- , aided by the existence of clocks -and the metre in
Sevres, isolated in perfect Newtonian, frictionless conditions- is momentarily
obscuring a truth behind it: that the commonly agreed upon conventions refer to the
measurement of time and space, not their nature. The understanding of time remains
veiled, exactly because it can never be objectified. This brings to mind Bohm’s
moments: “a moment cannot be precisely related to measurements of space and time,
but rather covers a somewhat vaguely defined region which is extended in space and

22
Ibid, at 23
23
not only the concept is it not novel, but it is also considered by some commentators as ‘classic’
physics; see e.g., R. Penrose, The Emperor’s New Mind (Oxford: Oxford UP, 1989)
24
see E. Soja, Postmodern Geographies: The Reassertion of Space in Critical Social Theory
(London: Verso, 1989)
25
H. Lefebvre, La Production de l’Espace (Paris: Anthropos, 1977)
26
Supra, n.8, at 9
27
see for example E. Husserl, Logical Investigations (London: International Library of
Philosophy and Scientific Method, 1970)
28
M. Heidegger, Being and Time (Oxford: Basil Blackwell, 1962)

8
has duration in time.”29 Each system is compiled by such moments, insulated from
measurement but definitely within time and space -indeed, their very own time and
space. So, each system acknowledges the measurement of time but lives through its
own, system-specific time, defined in the triple dialectic of time, space and social
being.

A final qualification of time is needed. The contextualised nature of time does not
amount to otiosity in an ever-present present. Indeed, present is not the only time
according to Prigogine and Stengers30 who reintroduce the concept of the arrow of
time by calling us to consider a rather pedestrian phenomenon: a couple of drops of
ink that fall into a glass of water. It would be very improbable for the ink particles to re-
formulate the drop of ink, after they would have dispersed in the water. This is what
Prigogine calls “irreversibility”, and it is in direct opposition to the typical Laplacian
determinism, where there is no difference between past and future, where “both are
implicit in the present state of the world (...). Both future and past are interchangeable;
there is no room for history, novelty, or creativity”.31 With irreversibility, past and
future reclaim the role they used to have before the conceptualisation of the present as
an open map where everything that has happened or is going to happen is depicted,
interchangeably and available for us to perceive.

An anticipated objection to both irreversibility and system-specificity of time would

raise the consequent impossibility of contact amongst systems. However, in
Luhmann’s theory there is no place for contact between systems. Contact is entirely
replaced by observation.32 Still, elective affinities amongst systems exist in the
manner of structural coupling.33 The key to understanding structural coupling is that a

29
D. Bohm, The Implicate Order (New York: ARK, 1980), p207. Of course Bohm, a pioneer
of quantum chaos, was using the concept in a manner relevant to his idea of implicate order; still,
the description of moments is helpful in the exemplification of fusion of time and space.
30
I. Prigogine and I. Stengers, Order out of Chaos (London: Fontana, 1985)
31
F. Capra, The Web of Life: A New Synthesis of Mind and Matter, (London: Harper Collins,
1996), p178
32
Observation is simply another way of increasing the selectivity of the system towards its
environment and therefore closure. "The states of the system are exclusively determined by its
own operations" and "the environment contributes neither operations nor structures" [N.
Luhmann, Operational Closure and Structural Coupling: the Differentiation of the Legal System,
13:5 Cardozo Law Review, 1992, 1419-1443) p1424]. Observation refers both to observation
of another system and to self-observation: "observing systems in the double sense of the English
-ing form. We ourselves may be observing systems observing observing systems" (1420: 1992).
33
Ibid, and also Social Systems, (California: Stanford UP, 1995); structural coupling is not an
undisputed concept in Luhmann’s theory, and it has indeed been hailed as the demise of
autopoiesis (see for example, R. Munch, Autopoiesis by Definition, 13:5 Cardozo Law Review ,
1992 1463-1471) probably without regard to the derivation of the concept itself that can be
traced back to the fathers of autopoiesis. Maturana H. and Varela F., inThe Tree of Knowledge:
the Biological Roots of Human Understanding, (Boston: Shambala, 1992) affirm that there are
interactions between the system and its environment which the system "classifies and sees in
accordance with its structure at every instant" (p74), and that when two systems interact in this
way, a structural coupling takes place. Regardless of my reservations concerning the validity or

9
system sees the interactions with the other system in accordance with its own
structure: structural coupling involves no contact, no intersection, no input-output,
only observation and consecutive internal, structural adaptation. What in the first
reading is perceived as an exchange of information, it soon turns out to be a translation
of environmental perturbations into the system's own code. Nothing enters the system
that does not already belong to the system. Structural coupling is simply a coupling of
structures: the structures may converge but the organisations of the systems remain
distinct.34 It is in this way only that systems can trigger structural changes to other
systems.

So, even if contact amongst systems amounts to a handicapped mutual observation,

system-specific time still poses a problem. For how could the systems couple if they
are floating in different times? How can they be synchronised? Indeed, the problem
seems to bring forth the importance of time for a combined action -say a rendez-vous:
the use of time (and I mean the conventions of its measurement) becomes painfully
apparent when one must do something in relation to something/somebody else. Still,
the truth is that neither the irreversibility of time, nor its system-specific nature
complicate the mechanism of structural coupling, and in support of this I will borrow,
perhaps a little unfairly, a point that Cornell makes in her critique of Luhmann’s
theory. While systems are self-referential, they are not self-transparent: “a biological
system can be self-referential without necessarily knowing itself to be such”.35 A
system does not necessarily realise its condition: by not having any contact with its
environment, the system cannot compare its systemic time with that of other systems
-a strong indication of the phenomenological time which lies beyond conscious
perception. And even through observation a comparison of time would simply result to
an observation on the difference of phase. In any event, one has to be reminded of a
radical change of paradigm: structural coupling is no effect of causation: “the most
important aspect of the structural-coupling concept is that it does not indicate a causal
relation and certainly not an instrumental relation, but one of simultaneity”.36

Before the analysis of causation, a brief recapitulation: if there is only system-

specific time, there can be no total present where everything happens simultaneously:
the de facto simultaneity of actions is an evolutionary happenstance; but from the
point of view of the system nothing happens except what happens within the system.
The illusionary convention of common measurement of time amongst systems results
in another manifestation of the a-temporal, of the absence of a community of time, of a
total time.

indeed the utility of the concept in question, I feel that playing along is another way of elucidating
the lack of causation.
34
If structure is "the components and relations that actually constitute a particular unity and make
its organisation real", then organisation is "the relations that must exist among the components of a
system for it to be a member of a specific class", that is to be distinguished from its environment
(Maturana and Varela, supra n.8, at 47).
35
Supra, n.32, at 1585
36
Supra, n.12, at 98

10
From this, the ensuing negation of causality should be elicited: if there is no
community of time, there can be no cause and effect between systems. “The present is
no longer interpreted as the outcome of the past, nor in relation to the future”.37 The
triggering of a change to a system B by another A will always have to swim through
their a-temporal environment: by doing so however the trigger becomes so alienated
from its original systemic source that its causal qualities fade completely. What
conventionally would be called cause and effect, now seem two unconnected events.
There is no link between the initiator of the change A and the recipient B; the
intersystemic environment instead of linking, differentiates. This does not mean,
however, that the change in the recipient system B can happen during the past of the
sender system A: for system A the change in system B is going to be observed after
the initiation; but it will have no means to communicate this chronology to system B.
Thus, it can perfectly happen that a change in B will occur in the period preceding the
change-instigating act of system A, but this chronology will be peculiar to system B
only!

In other words, the lack of community of time abolishes a common perception of

causality by limiting chronologies within the systems, but also denies the
interchangeability of past and future. Being a genuinely irreversible process, a
structural change creates two chronologies, separate for each of the two participating
systems and along the arrow of time. ”And all these different times are inscribed on the
irreversible haemorrhage of cosmos”.38 And with the abolition of causation, there is little
point in looking for the initio in any system’s past, for the past of one can be the future
of another.39 However, since measurement of time through common conventions is
widespread, one could argue that a convention will always be there to fill in the causal
gap. Everyday situations are solved via quotidian conventions: we consider the punch
as the sole cause of a blackened eye, disregarding the sensibility of the skin, the force
of the hit, the moment before the punch was thrown, the words exchanged, and so on.
In short, we make concessions to simplifications of linear, one-branch causality,
because we need to lead a comparatively unproblematic everyday routine. This way of
thinking, however useful, should not be employed liberally when one is facing
evidently more complicated problems such as environmental considerations.

Of course it would be naive to expect to abolish aeons of thinking about causality in a

few paragraphs. Our minds are creations of causal logic -“if..., then...”- our lives are
nourished by it (“don’t touch this, you’ll get burned”). What is more, causality has
always been associated with teleologism, and it is only relatively recently, after
Darwin, that our civilisation has discovered that perhaps not everything is here for a
purpose. There are strong indications of at least a need for a redefinition of causality,
for, although causality between the systems has been debilitated by the introduction of
differentiated time, there is still another area where causality can operate exactly
because of the uniformity of time in the manner of irreversibility: the area within the

37
A. Gare, Postmodernism and the Environmental Crisis (London: Routledge, 1995) p29,
my emphasis. Gare considers the loss of meaning of time as an aspect of postmodernity.
38
“Et tous ces temps s’ inscrivent dans l’ hémorragie irréversible du cosmos” (E. Morin, La
méthode: La Nature de la Nature, Paris: Seuil, 1977) p.87
39
although past and future of the same system cannot be confused

11
system. The indication of the redefined causation comes from the original source of
the concept: science. Chaos theories,40 based on quantum mechanics, blur the origins
of causality so deeply that it becomes practically impossible even to conceive a
possible cause. Edgar Morin in his seminal work “La Méthode” 41 takes a step ahead of
the paradoxical qualities of chaos: a staunch supporter of science and scientific
methods, he denounces positivism and attempts to reconcile the paradoxes of quantum
theories by the introduction of the observer. However, it soon becomes apparent that
an observer is not different from her subject: the observer is observing herself, very
much like Luhmann’s reflexivity. Morin becomes almost phenomenological,
reinstating the constant inseparability between method and object, when he contends
that classical epistemology could be included in an extended science of cognition.42

The fusion between epistemology and cognition leads Morin to the suggestion of a
paradoxical causality, itself not far from quantum concepts: a circular, recursive, auto-
générée/générative (self-generated/ generating) causality43 depicted by a closed loop
where any stage is both initial and final, both cause and effect, where linearity is
replaced by circularity, and the system becomes reflexive -even in its own attempt to
discover its origin. Recursive causation is comparable to the Luhmannian realm of
second-order observation, where one observes others observing. However, while for
Luhmann44 second-order observation opens the road for ‘objectivity’ -exactly because
of the assumed distance from the observed- I find instead that the floodgates of
subjectivity are thrust wide-open: causation exists only within the system, and in a
reflexive way where causes are linked to effects through a loop of continuous
redefinition, so as to confuse the cause with the effect. Even a second-order observer

40
from an enormous bibliography, see J. Gelick, Chaos, (London: Sphere, 1988); J. Briggs and
D. Peat, Turbulent Mirror, (New York: Harper & Row, 1989); and for an interesting
application to cities, M. Batty and P. Longley, Fractal Chaos, (London: Academic Press, 1994)
41
Supra, n.38
42
E. Morin, La méthode: La Connaissance de la Connaissance, (Paris: Seuil, 1984) p.23
43
Supra, n.38, at 258, or what Morin calls the endo-causalité, the inner causality that ‘brings
about the permanent transformation of states which are generally improbable, into states which
are locally and temporarily probable’ (p.259)
44
Supra, n.12, at 68: “The observer of a decision maker may assess the risk of the decision
differently from the decision maker himself; not least of all because he himself is not located in the
decision taking situation, is not exposed to the same pressure to decide, does not have to react as
rapidly, and, above all, does not share in the advantages of the decision to the same degree as the
decision maker himself.” While the introduction of the subjectivity of the observer seemingly
collides with the basic tenets of systems theory, the clash is as real as it is inevitable: subjectivity is
the uncontrollable effect of the consciousness of consciousness (a kind or reflexive intentionality of
consciousness) of the individual. What differentiates a system such as law from an observer is this
conscious transparency whose lack characterises the former by leaving it to its autopoietic
reproduction of structures. The clash can be seen as two epistemologically contrasting points of
view: that of the observer and that of the system. For Luhmann the points of view do not differ:
the observer is a system. In my opinion however, the simultaneity of both points of view is
unavoidable because of their reality: it is impossible to ignore the subjectivity of the observer, just
as it is naive to waive the unconscious subjectivity of the system. This of course leads to several
impasses, exemplified in section IV of this essay.

12
cannot leave herself outside the field of observation: the mere act of observation
includes, by definition, the subject, even if the observer (ego) becomes the observing
observed object (alter) in a second-order observation. The indissociability between the
observer and the observed entity renders Morin’s recursive causality the only path of
communication between the observer and the observed system. The observer in other
words is required to embrace the observed system at risk, and extract from this
circularity a radius of decision, a hallucinogenic choice, which will necessarily be the
epitome of subjectivity. Still, this is the only way to avoid the impermeability of
systemic closure.

It is this absolute closure that the Sirens institute by destroying memory. The Sirens’
song builds a box of infinite present, where the choice between ‘yes’ and ‘no’ is
reduced to a desert of banality. The escape from the Sirens would be the no-Sirens:
once in that box, there is no real choice. Causation becomes inescapable, time
becomes universal, binarism becomes unity, and the individual is hurled centripetally
from the ocean of decision to the island of momentum. The Sirens tolerate no
dialogue, for the listeners are destined to obey their initial choice: to choose to listen
to the Sirens means to chose to perish. The passing sailors are denied the subjective
perception of time, and are lured to a linear causality: you are born, you will die. No
risk, just certainty. No margin for projection, no haggling with alternative presents, no
bracing paradox of negation, not even a sense of claustrophobia: once inside, there is
no memory of the outside. The certainty is absolute in its abolition of the in-between:
a mythical certainty that has to be resisted because it denies the chimera of
subjectivity.

IV
This long deviation was necessary because it manifestly shows the impossibility of
projection of the/a contextualised present into the future. The vertiginous subjectivity
of time and causality virtually insulates the observer from his observed object, and at
the same time brings them together in a narcissistic embrace: the observer, when
attempting to project a/the present into the future, contemplates the existentialist
nausea: the a-temporal, the non-causal and the imperceptible conflate with the
subjective (the incommunicable), and stifle any projection. And all that because the
only entity that the observer can really contemplate is himself and his observations.
Time, causality, the nature of risk, and the nature of projection are four major areas of
any projection that are compromised by intersystemic time and recursive causality,
and therefore are going to be analysed briefly.

The first compromise refers to time. To the obvious question “whose time is the
observer going to employ in his projection?”, the obvious answer is “the observer’s”,
because there is no way that the observer can comprehend the chronology of the
totality of present. Even if he positions himself safely in the whirls of the Husserlian
epoche, with the presumed ability for an overview of the systemic plane of the
particular observation system, the observer cannot deal with the time of another
system. The observer discovers the impermeability of the observed system in its
harshest aspect: the incommunicability of the a-temporal.

13
A second compromise will be the lack of causation, and more specifically the
impossibility of causality between present and future. Even though the projection of
risk is going to start and finish within the ambit of the same system -there is going to
be no differentiation of chronologies as far as the projected system is concerned-
causality, in its assumed form of recursivity, makes any projection of present to future
simply repetitive, or at least only haphazardly coincidental. This is particularly true
about the combined effects of, say chemicals, whose properties remain largely
unknown and whose detrimental effects can multiply -or be mutually neutralised-
through unforeseeably complicated chemical reactions.

A third compromise is the nature of risk. If risk is a projection of the/a present to the
future, then the risk will perforce arise from within the system: it could not possibly
come from the environment, not because the environment is incapable of carrying
risks (especially because an environment carries systems) but because a system
cannot project extrasystemic risks. A system is confined to its own language and
everything else needs to be translated into that language to be understood by the
system. If something does not become part of the system then it cannot harm the
system; if anything can harm the system, it would have to be something from within
the system. A development which primarily takes place in the economic sphere, e.g., a
power plant, can certainly have environmental effects on the adjacent -and even not so
adjacent- environment. In this phase though there are two systems: economy and
ecology. The economic spill-over will no longer be an externality to the ecological
environment when the pollution sets in. Instead it will have been translated into the
language of, say, atmospheric pollution, with a higher level of NOx, and, although
coming directly from another system, will no longer form part of it.

Here too Luhmann applies his usual way of distinguishing (and defining) concepts: just
as a system is defined by its differentiation from its environment, risk is defined in
binary opposition to danger.45 When the potential loss can be regarded as a
consequence of a decision, it is risk. When, on the other hand, the loss has been
caused externally, “that is to say, it is attributed to the environment”,46 then it will be
danger. He justifies this logical distinction later on, when he states that “only in the
case of risk does decision making play a role. One is exposed to dangers.”47 This
division is happily along the lines of the present definition of risk as intrasystemic,
except that Luhmann’s terminology seems to give rise to a problem: how can the
system be influenced by external factors, by factors originating from its environment?
Does this amount to a rupture of its boundaries?

45
and not risk/security exactly because there can be no pure situation of security (supra, n.12, at
19-21)
46
Supra n.12, at 22
47
Ibid, at 23, brackets omitted

14
Unless it is thermodynamic,48 the concept of danger seems like a concession to a
normative openness of the system, for how else could a system be influenced by
environmental stimuli? The thermodynamic openness of the system allows energy to
circulate freely between system and environment, but could a danger be considered
only thermodynamic? As Luhmann says “one man’s risk is another man’s danger”,49
and surely a danger would require a decision somewhere else in the environment, and
decision-making is certainly more normative than thermodynamic.

The other way of facing the dyad would be something like the binarism of the code
legal/illegal, namely a watchdog on the limits of the system.50 However, this again
would presuppose a substantial conceptual shift, not unlike the one that Urlich Beck
suggested when he wrote Risk Society 51: the whole political and economic scene -
indeed the whole society- would have to be redefined on the basis of risk: risk
according to Beck, dominates the post-industrial society in a way comparable to
capital; it is the creation and distribution of risk that dominates society, thus rendering
it a “risk society”, as opposed to a society defined and ruled by capital. And although
this is marginally approximate to Luhmann’s statement that there is no such thing as a
risk-free society,52 Beck’s resemiologised society remains a more radical approach.

To avoid these complications, I prefer the concept of an intrasystemic risk: anything

that is not risk, is of no relevance to the system. If it becomes a risk (from danger), it
will be so because it will have become part of the system. Even so, however
intrasystemic a risk may be, its perception is certainly intersystemic. Informed risk
perception assumes the alignment of several systems such as science, economy,
politics, law, policy, community organisation, and so on, otherwise the projection will
be incomplete. The alignment of these systems is the only way of expanding the
decision-making potential in the manner of realisation of ‘other’ presents and
projection into the future.

And this leads me to the fourth compromise, namely projection per se. The
aforementioned alignment does not facilitate a contact between systems: the systems

48
closure refers only to the operations -or else the norms- of the system and not to its structures,
hence "Normative closure, structural openness", or a much favoured expression of both Teubner
and Luhmann, taken from Morin: “L’ouvert s’appuie sur le fermé” (the open is relying on the
closed). The systemic closure refers to the norm-making procedure; the systemic openness to the
thermodynamic considerations of the system.
49
Supra, n.12, at 109
50
the binary code contains a negative (illegal) and a positive value (legal) [N. Luhmann,
Ecological Communication, (Cambridge: Polity Press, 1989)]. This code has strictly internal
function, in the sense that if the question of whether something is legal or illegal arises, then
regardless of the outcome, this concept will belong to the legal system (Supra, n.32). However,
the binary code is not a norm; it is simply a rule of attribution and connection. Incidentally, the
system lacks any Grundnorm that would represent its unity amidst its environment. "The system
is an open-ended, ongoing concern structurally requiring itself how to allocate its positive or
negative value" (Supra, n.32 at 1428).
51
Supra, n.12
52
Ibid, throughout Chapter 1

15
remain distinct. Nevertheless, this alignment presupposes the vantage point to which
Luhmann was referring,53 which is the observer. Only the observer can perceive
intrasystemic risks and extrasystemic dangers simultaneously because, although
herself a system, she has the ability of overview. So by being able to perceive both
intrasystemic risks and extrasystemic dangers, the observer can reach informed
decisions. Simple, isn’t it?

This is a propitious moment to perform a reversal. The ‘Wagnerian’ ambitiousness of

the previous paragraph would no doubt have caused an unease in the reader, a feeling of
contentment to a well-rehearsed terminology of future achievements, a conference
jargon where everything seems to boil down to a few declarations of goodwill,
miserably deprived of any real connection with the present. In short, an idealistic
rhetoric, which in its turn poses the question of the limits of idealism: indeed, how
idealistic can one afford to be? The answer is relative: it is probably fair to say that
one can be as much an idealist as one wants, as long as this idealism does not stem
from ignorance or disregard of conditions -as long as idealism is not naiveté . At this
moment, the reader, a valiant second-order observer (namely an observer who
observes others observing) can observe the instant observer in his observations on
risks and dangers. And it is an undoubted fact that the first-order observer54 is going to
concede to a particular ‘priority’ on the perception of risks and dangers: risk will
remain intrasystemic, in the sense that the observer is focusing on specific systems
and it is through their magnifying glasses that he is to perceive dangers. Put simply,
the observer is confined by his own predetermined systems of observation. He may
disregard important facets of reality, terrific dangers that loom conspicuously in other
systems, and this is why he may be accused of idealism. However, would it not be yet
more idealistic to expect from the observer an inclusion of all conditions?

In other words, how can one deal with the idealism of absolute subjectivity on one
hand, and the need to make a social communication operate on the other? More
specifically, how can one reconcile the fluidity of subjectivity with the hard
consistency of a system such as law? Luhmann suggests expectations as a means of
formally handling people’s behaviour towards law55: law will not change as a direct
consequence of people’s expectations 56, rather the opposite will happen: the latter
naturally is a direct consequence of Luhmann’s theory of closure and the prime target

53
Supra, n.15, and indeed it may be said here that Luhmann’s analysis of Risk is particularly and
uncharacteristically focused on the observer as decision-maker and affected by decisions;
needless to say that the observer is a second-order observer: see supra, n.12, Chapter 12
54
who also likes to think that he is a second-order observer!
55
see N. Luhmann, A Sociological Theory of Law, (Boston: Routledge & Kegan Paul, 1985)
56
It is imperative to say here that this is an unpardonable simplification on both sides, but it is only
aimed as a perfunctory reminder of a constant debate between the two sides that has been more
than adequately analysed elsewhere, e.g., see the entire Vol. 13 (5) of the Cardozo Law Review,
1992; J.F. Lyotard, The Postmodern Condition: a Report on Knowledge, (transl. by G.
Bennington and B. Massumi, Manchester: Manchester UP, 1984); A. Norrie, (ed.), Closure or
Critique: New Directions in Legal Theory, (Edinburgh: Edinburgh University Press, 1993); and
indirectly in G. Teubner’s work, more specifically Law as an Autopoietic System, (London:
Blackwell, 1993).

16
of critical legal theory. This facade of law as hard, unyielding and unparticipating; the
denial of a role to the human being; the cold, positivist stare at some indifferent meta-
narratives. All these provoke the critical thought and not without good reason:
Luhmann stands for everything that post-modernity condemns. A genuine offspring of
modernity, Luhmann does not accept the use of interdisciplinarity, whereas post-
modernism employs ethics, discourse analysis, psychoanalysis, gender in its attempt
to deconstruct law57.

Environmental law exhibits a similar fragmentation, albeit on a different level.

Subjectivity and multidisciplinarity break forcefully in environmental law and creep
into the internal ruptures caused by the tension between ecocentricity and
anthropocentricity, the overshadowing presence of ethical issues in the legal
discourse, the direct interdependence with scientific findings, and its relatively new,
non-crystallised status reinforced by ‘soft law’ documents, that is non-binding legal
agreements, which however cause significant moral pressure. In short, environmental
law is a branch of law where the Luhmannian legal/illegal code proves to be
inadequate.58

An attempt at reconciliation between subjectivity and operationalism, or between

openness and closure, would point to the need for the vocabulary of the ‘in-between’.
The four compromises of risk projection manifestly show the impossibility of the
task: the observer is left incarcerated by her own subjectivity, which can be further
contemplated in its vast melancholy if one conceives the observer as a decision-
maker. The decision-maker cannot project a risk because she can never perceive and
comprehend a risk as it is for the others. The idealism of subjectivity reaches its
impasse, and the decision-maker is looking for quick, undemocratic but operable
fixes.

I read the Precautionary Principle as a way out of the impasse and an example of a
bridge between the two extremes: by accepting existing scientific findings (the
present) as a factor of perceiving risk, the Precautionary Principle introduces extra-
mural considerations into the legal system; by negating the existing scientific findings
as a factor of comprehending risk (thereby accepting that there exist non-presents),

57
However, assuming the risk of being epistemologically cheeky and impossibly circular, I would
like to point out the fact that Luhmann's legal theory of closed system is essentially based on other
disciplines' doctrines and discoveries -biology features first, but there is also systems theory,
linguistics, and sociology amongst others. Furthermore, it is not just the creation of the explanatory
theory of closed systems which is founded -albeit, admittedly, heavily reconstructed and
elaborated- on prima facie alien scholar domains but also the evolution of the theory, the adding
of novel ingredients in order to counteract impasses and criticisms, in short the whole mode of
thinking is creatively borrowed from other disciplines. Surely this should make the boundaries of
closure slightly undulate.
58
In Ecological Communication (supra, n.50), Luhmann’s environmentally focused work, Luhmann does not
sport his familiar self-confidence -a fact acknowledged also by R. Munch in Autopoiesis by Definition, (13 (5)
Cardozo Law Review, 1992, pp.1463-1472) where he points to the problems created by environmental
complexities that elude the differentiation between legal right and wrong.

17
the Precautionary Principle reacts autopoietically and re-establishes the conviction
that the solution can only come from within the system.

V
The merit of the Precautionary Principle is the paradox of the acceptance and
simultaneous negation of science as a decision-making factor: it is the self-imposition
and resolution of this paradox (by the Precautionary Principle itself) that attempts -
however much in vain- to bridge the chasm between systems so differentiated such as
science, law, policy, and the individual subject.59 The paradox can be analysed in its
constituent parts: perception of risk and acceptance of science on one hand, and
comprehension of risk and negation of science on the other. Science is present in both
parts of an analysis of risk. The acceptance of science as a past knowledge without
future reassurance on one hand for the perception of risk, and the negation of science
as a pedestal on which a decision will be relied for the comprehension of risk on the
other, manifestly show the charming schizophrenia of the Precautionary Principle.

Science is both the reason of the non-comprehension (I cannot comprehend the

effects), and the momentum of the perception (I project the present on the basis of
scientific knowledge). I know that I cannot comprehend this risk because of lack of
scientific certainty; the fact that I know (that I cannot comprehend) is based on
knowledge of the limits of science, or else in the negation of science as a ground for
projection. Exactly because I cannot define the specific risk (perception), I have to
avert it (comprehension minus perception). I perform a caducous projection, I
withdraw it almost prematurely, like a jolt in the yo-yo that stops before the whole
string has been unfolded, and I retrieve it to the safety of ignorance. Or another way of
phrasing it could be by employing a process of ‘reflexive negation’: once again, I
negate my reflexivity by reflexively referring to it and using it as a basis for my
negation, and so on ad infinitum -or else until the future.

Remarkably, the Precautionary Principle recognises the reversal of traditional

Newtonian physics. To take an example, when Principle 15 of the Rio Declaration on
Environment and Development states that “lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent environmental
degradation”, it is effectively stating two things: that there is no absolute truth (and
even if there is, we do not know it), and that this is fine! It is not unlike what Sadie
Plant 60 calls a more ‘distributed’ sense of subjectivity, whereby the individual is less
worried about ‘what’ and focuses instead on ‘how’. The idea seems directly inspired by

59
note that my aim is not to analyse autopoietically the relation between law and science but only
to consider the precautionary principle as one possible ‘bridge’ between the two. However, for a
possible analysis of the interdependence between the two systems see G. Teubner, How the Law
Thinks: a Constructivist Epistemology of Law, (23 (5) Law and Society Review, 1989) pp.727-
756
60
S. Plant, Lecture on a Situationist Idea of Subjectivity, London: the Institute of
Contemporary Art, 21 February 1999

18
cyberspace where the user can assume various identities (e.g., behind several e-mail
addresses) without worrying about the ontological status of who she is but
concentrating instead on a more practical, operable -and occasionally exigent!- status
of how to navigate. In short, postmodernity deconstructs science and replaces it with
technology61. This operable idea of projection is promulgated by the Precautionary
Principle, even at the perception of risk level.

This castrated projection makes the two stages of perception and comprehension of
risk within the Precautionary Principle to fold into each other: the decision-maker, by
applying the Precautionary Principle, projects a/the present into the future and
withdraws the projected present before she even perceives it. The decision-maker
‘suspects’ that the present that she has in her hands is neither ‘the’, nor exactly ‘a’
present,. It is neither known nor an alternative present that she can know. The present
of the Precautionary Principle is one of a short, jolted perception and an immediate
negation of comprehension: I project it, I do not understand it, therefore I do not
project it. Needless to say I must have already projected it in order to comprehend that
I cannot understand it! The paradox can be illuminated by the recursivity of reflexivity:
I observe myself, and the observed object becomes the observing subject. Likewise,
the risk, not being comprehended as effect of risk but as itself (risk), is not assumed.62

Thus, environmental law confronts risk through the Precautionary Principle, which
recognises the limits of science and deals with risk by imposing its own limits -of
legal prohibition of action or non-action- depending on the nature of the risk.
However, theoretically this can lead to either a total freeze on scientific progress -
which even theoretically is undesirable- or a redefinition of science: no longer the
science of the scientists, but the science of the affected people.63 In other words, it is
the inclusion of subjective causation with all its recursivity in the decision-making
process that can conceivably guarantee contextualisation. It is the resurgence of
Lyotard’s narrative knowledge which “legitimises itself in the pragmatics of its own
transmission, without having recourse to argumentation and proof”64 that have to be
included in the definition of science.

The latter is of enormous importance to the legitimation of science as a factor in

decision-making, for “the right to decide what is true is not independent of the right to
decide what is just” and a little later “knowledge and power are simply two sides of the
same question: who decides what knowledge is, and who knows what needs to be
decided?”65 The problem lies, not in what we do not know, but in what we expect to

61
a point taken up by Gare, supra, n.37, at 24
62
a simplification: it is acted upon by negating it.
63
or else, what has been called “civic science” (O’Riordan et al., supra, n.9, at 66),
“consensual science” (J. Lovelock, Taking Care, in O’Riordan et al., supra, n.9) p122, or
“greening science” (D. Shelton, The Impact of Scientific Uncertainty on Environmental
Law and Policy in the United States, in D. Freestone & E. Hey (eds.), The Precautionary
Principle and International Law: The Challenge of Implementation, (The Hague: Kluwer
Law International, 1996) p224
64
Supra, n.56, at 27
65
Ibid, at 8-9

19
know. Environmental risk-taking can be all about the causal link that the affected
people are attributing to this nuclear factory or that genetically modified food: the fact
that people choose to see the specific causalities, through their personal recursivities,
however influenced by the media or unscientific they may be, is what has to be taken
into account by a democratic science: the sailors must be given the opportunity to
decide according to their own causalities rather than be ushered into the waters of no-
choice, be it the island of the Sirens or the waxed ears.

In the meantime, however, Precautionary Principle is used by and within the legal
system to avert risks that cannot be comprehended. Not as good as a resemiologised
science, but potentially effective for the simple reason that it requires no major
structural opening: the law remains insulated from science by recognising that it
cannot comprehend science, and therefore institutes its own process of negation. And
indeed, this method is not novel: it seems that a usual way of dealing with the majority
of problems is through the institutions themselves, or else through the operations of
the system. The Precautionary Principle is an example of the space‘in-between’, of an
operational idealism, of a boat that floats by the Sirens unscathed and wiser. The
Precautionary Principle emerges from within the legal system, and evinces that a
system -be it science or law- is to function within its limits. For otherwise the system
risks being washed ashore an idealistic island of no-choice: deconstruct from the
outside disregarding the operable possibilities inside, dilute the system to the point of
becoming an omniana of the laic, aspire to the beauty while forgetting to navigate.

VI
The boat floats on its own reflection. The risk will come from inside the boat, a
looming fear of relentless desire to know and at the same time to abandon oneself.
The Sirens become the individual ambition, the idea of the universe embottled in one’s
perishable body. The crew perceives the threat of the song -the archetype of
intrasystemic risk- exactly because “the strain of holding the I together adheres to the
I in all stages; and the temptation to lose it has always been there with the blind
determination to maintain it”66. Odysseus, a typically disinvolved decision-maker,
chooses to disregard the attributions of his crew and at the same time expose himself
to the risk taking, but only impressionistically; in reality, he forms part of a very
intricate net of relations between himself and his crew facing the imminent risk,
namely that he cannot run the risk without the help of his crew, which has already been
forbidden from untying him.

For, just as the origin of risk lies within the system, the operations of dealing with risk
form part of the operations of the system in which the particular risk has been
allocated. The boat, a languid system of crew and captain, sails by the formidable risk
unscathed and victorious, but not in ignorance: the ears of the system were open to the
risk. The risk had been defeated through its very chosen bodies of appearance; the
boat, sealed against the risk, manages to accommodate the influx of knowledge: the

66
Supra, n.1, at 33

20
 system, in its secure closure, manages to accommodate uncertainty through its
openness. Closure and openness co-existing in the same system. Operationalism and
Idealism: the supreme binarism that needs to be abolished. Roland Barthes67 is
offering the escape to the real as a means of avoiding dualism. And this Hegira to the
in-between may come in the lines of the addad words in Arabic, the homophonic
antonym, where one word has two, opposing meanings. The ideal of encapsulation of
an antithetical dyad in one single linguistic movement liberates the mind from the
impermeable limitation of dualism and commands for ears sealed with wax and ears
open to the call of knowledge: for it is equally unrealistic to seal our ears to scientific
progress, as it is to keep on exposing ourselves to the Sirens. And this must have been
the third reading.

67
R. Barthes, Roland Barthes par Roland Barthes, (Paris: Editions du Seuil, 1975)

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