The Precautionary Principle in International
Law: Lessons from Fuller’s Internal Morality
Jaye Ellis and Alison FitzGerald*
In contrast to the assimilative capacity approach, the
precautionary principle in international law points to the
limitations of the scientific understanding of complex
phenomena. Under
this principle, possible uncertainty
about a cause-effect linkage between an activity and harm
must not be a reason to postpone taking measures to protect
the environment when risks of harm exist. The point at
which the risks become unacceptable and whether the
minimization of these risks is justified from an economic
and social standpoint become questions of policy.
The authors analyze
the precautionary principle
through the lens of Lon Fuller’s concept of the internal
morality of law and suggest
that even though some
decisions made under
the precautionary principle may
offend law’s internal morality, the principle cannot be said
to be in conflict with it. Nothing inherent in the principle,
or the decision-making processes under it, offends any of
Fuller’s eight precepts of internal morality-provided that
decision makers carefully balance relevant considerations.
By way of example, the article then demonstrates the
central role that the precautionary principle played in the
European Union’s decision to ban the imports of hormone-
treated beef.
The authors conclude that the benefits and pitfalls of
the precautionary principle can only be seen by analyzing
specific processes through which political choices are made
under the principle, rather than by looking at the principle
in the abstract.
r6v~le
les
le
Par opposition
le principe de pr6caution
l’approche dite de <
Sess., 79th Plen. Mtg., UN Doc. A/RES/46/215 (1991); UN GAOR, 50th Sess., 81st Plen. Mtg., UN
Doc. A/RES/50/25 (1995); UN GAOR, 51st Sess., 77th Plen. Mtg., UN Doc. A/RES/51/36 (1996);
UN GAOR, 52d Sess., 57th Plen. Mtg., UN Doc. A/RES/52/29 (1998); UN GAOR, 53d Sess., 69th
Plen. Mtg., UN Doc. A/RES/53/33 (1999)).
31 In a good decision-making process, the consequences of forcing actors to abandon a particular
activity would also have to be canvassed. For example, if disposal at sea of hazardous substances is
banned, does this mean that they will be incinerated, buried, or simply warehoused instead? In that
case, what risks might be created and how do they compare to those created by disposal at sea?
2004]
J. ELLIS & A. FITZGERALD – THE PRECAUTIONARY PRINCIPLE
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Fuller refers to the case of strict liability as a type of rule that might require the
impossible, that is, avoiding causing harm in circumstances in which one cannot
reasonably know that a given activity would lead to harm. Such cases are of great
relevance in the context of precaution, particularly in those cases where there is no
scientific evidence of a causal relationship between the activity and harm. In those
cases, it is impossible to rule out such a relationship, as it is impossible to prove the
absence of risk. Our concerns about the activity in question might come from certain
features-for example, those that are common to analogous situations in which a
causal link was found to exist. An example of such a situation is persistent organic
pollutants. Some commentators argue that a precautionary approach to substances that
persist in the environment for extended periods of time and that accumulate in the
fatty tissues of animals and humans would require their prohibition, irrespective of
evidence of toxicity.32
Fuller notes that despite the fact that circumstances will arise in which an actor
could not have known that he should have behaved differently to avoid harm, the
legislator may decide to impose strict liability to reapportion the costs that arise as a
result of the activity. If this imposition of liability has a punitive or deterrent purpose,
it is ineffective in fulfilling this purpose. If it is the result of political choices about
distribution of burdens of risk and costs, it seems much more reasonable. The
identification of situations in which it will be deemed appropriate to impose strict
liability will depend on an appreciation of a range of circumstances and, finally, on
the weighing of a range of consequences that would likely follow from various
possible courses of action. The application of the precautionary principle to support
the imposition of strict liability may, in certain instances, give rise to unfairness. The
question is not necessarily how to eliminate this unfairness, but rather to discover
whether it is less acceptable than the unfairness that would result from letting the loss
lie where it fell.
Another range of cases will involve the imposition of standards whose application
will give rise to high costs, in some cases making the targeted activity unviable.
Industries often complain that environmental regulation would put them out of
business. There are also, however, examples of firms that decide to innovate not only
in order to meet the standards but also in order to capitalize on a new demand for
pollution control technology or new, less polluting processes. Legislators may take
calculated risks by imposing high standards and assuming that firms are capable of
adjusting to and even profiting from them.
32 See e.g. International Persistent Organic Pollutant Elimination Network, “IPEN Bangkok
SAICM Statement” (7 January 2004), online: IPEN
792
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G Constancy of the Law Through Time
While laws must be responsive to changing circumstances or to the need to make
modifications as a result of their unintended consequences, if the law changes too
rapidly, it can give rise to many of the same problems experienced in the case of
retroactive legislation.33 This is another point of contention. The precautionary
principle calls for regular review and adjustment of rules and standards. The
obligations that actors must meet therefore do not remain constant but are subject to
ongoing modification. This could create practical difficulties as actors must adjust to
these new measures. In addition, their activities will be subject to uncertainty as they
cannot be sure that the conditions under which they make investments will remain in
a number of months or years. Regulations could be strengthened, or certain activities
or substances could be prohibited. Rapidly changing rules are also susceptible of
dramatically
to the rules, as
investments in pollution reduction equipment or processes are rendered valueless
through regulatory obsolescence.
increasing the transaction costs of conforming
One technique
that
is compatible with the precautionary principle
the
imposition of a rule that firms must use the best available technology and best
environmental practices. In this manner, it is not necessary to continue to change the
standard as new practices and technology become available; furthermore, firms are
encouraged to innovate. Where this technique is used, there must be some way of
accounting for the time that it takes for new technologies and practices to be diffused
and for existing facilities and processes to be retrofitted.
is
One major source of pressure on industry is not legislators or international
organizations changing their minds about what the rules should be, but rather
increased levels of risk aversion among members of the public. This risk aversion is
sometimes the result of lack of information, poor understanding, media hype, or doubt
about assurances given by public scientific agencies that a given product or process is
safe. Consumers may also have other valid reasons for not wanting to be exposed to a
certain product. For example, even if consumers believe
that
administering growth hormones to cattle poses no health risk to humans, they may
still object because they are concerned about farming practices, animal rights, or
preserving the viability of small-scale, family-run farms and the lifestyle that goes
with them. In short, providing such consumers with precise scientific information on
growth hormones and human health may simply fail to answer their moral objections
or concerns about the broader social and economic consequences of certain
production methods.
the assurances
33 See Fuller, Morality, supra note 11 at 79-80.
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J. ELLIS & A. FITZGERALD – THE PRECAUTIONARY PRINCIPLE
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H. Congruence Between Official Action and Declared Rules
Fuller notes that an absence of congruence between official actions and declared
rules can arise from a wide variety of circumstances. It may result from the deliberate
decisions of authorities to avoid or abuse the law; from carelessness and inadvertence;
or from an insufficient attachment to the project of law, to name a few.34 The
congruence principle gives rise to two kinds of problems from the point of view of the
precautionary principle. In the first place are cases in which the precautionary
principle, although formally applicable, leads to onerous or inappropriate results and
is therefore sidestepped. Here we must make a distinction between the precautionary
principle as a principle and a particular regulatory regime that seeks to incorporate the
principle. If we are talking about the principle, this problem is unlikely to arise. It
must be recalled that the principle is phrased in the negative and does not require any
regulatory action at all. If, however, there is a particular regulatory regime that seeks
to operationalize the principle, we may very well encounter the problem of standards
that are found after the fact to be too strict or burdensome. This is precisely why it is
important to avoid a one-size-fits-all approach to the principle and to take care when
designing precautionary regimes. It may also signal the need for some measures to
facilitate compliance, such as grants, subsidies, or loans to ease the cost of transition
to new technologies.
In the second place are cases in which the generality and vagueness of the
principle lead to vastly different interpretations in different circumstances. Regulated
actors might question the extent to which administrative agents are relying on the
regulation, or on some other list of criteria, in issuing their decisions. In response to
these concerns, we must recall that the vocation of a principle is not the same as that
of a rule. There might be good reasons to apply the principle differently in different
circumstances; therefore, congruence need not be regarded as a problem at all. In
these cases, we must be highly attentive to the justifications being put forth for
particular interpretations and applications of the precautionary principle; once again,
process is crucial.
III. Implications for Process
As must be apparent from the above discussion, issues of process are of
fundamental importance in translating the precautionary principle into individual rules
or other forms of legal outcomes. 5 The precautionary principle can offer guidance on
the design of decision-making processes and on the elements that decision-makers
should take into consideration, but ultimately, weighing the consequences of different
courses of action and making determinations about how to proceed
is, as the
European Commission so aptly indicates,36 a political matter. As such, reference must
4 Ibid. at 81.
35 See also Fisher, supra note 25 at 17.
3 6 EC, Communication on the Precautionary Principle, supra note 2.
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be made not only to the best available scientific data, but also to the preferences and
priorities of the population that will feel the impacts of the decision. Thus, members
of the public must be implicated in decision-making processes in one way or another.
taking place
for deliberations
The precautionary principle places a heavy burden on deliberative spheres. This is
a problem in international society, where, for practical as well as political and
structural reasons, only certain types of actors have ready access to the deliberative
fora that play an important role in international legal processes. It might, however, be
possible
in a number of fora–domestic and
international, formal and informal-to overlap and intersect. Habermas argues that as
long as parliamentary processes are not a closed system, but are instead embedded in
broader discursive processes taking place in the wider society, the processes of law
formation may be responsive to the interests and priorities of the broader public.37
This would mean, in the international context, that it would not be necessary to create
new formal processes to incorporate the opinion- and will-formation that goes on in
civil society into international legal processes. Of course, finding ways to ensure that
international legal processes are embedded in and responsive to wider processes of
discourse taking place in international and domestic societies is an extremely tall
order.
Assuming that we can rely on various intersecting discursive processes
in
international and domestic societies to inform legal processes about the priorities and
preferences of members of these various societies, and assuming also that sufficient
information about the activities, risks, and alternative rules is circulated to ensure that
these debates and discussions are informed, we must nevertheless acknowledge that
differences in preferences and priorities among (and within) different populations will
not be eliminated. This means that ways will have to be found to accommodate
different levels of risk aversion, different sets of preferences and priorities, and
uneven and inequitable distribution of the costs and benefits of measures taken. The
extent to which such accommodation is possible will depend on the ability of the
international (and domestic) legal system(s) to perform various functions. In an ideal
world, the legal system would ensure sufficient information flows and a sufficiently
robust and inclusive debate so that all would come to be convinced that a given rule
or outcome is appropriate.38 To accomplish this, it is not enough to have consensus on
overarching goals. Conclusions such as “trade is good” or “public health is good” are
easy enough to defend, but questions such as how much trade/health, where, when,
and at what cost are obviously more difficult.
demokratischen Rechtsstaats (Frankfurt am Main: Suhrkamp, 1998) at 426ff.
37 See Jirgen Habermas, Faktizitat und Geltung: Beitrage zur Diskurstheorie des Rechts und des
38 Boy captures this notion nicely in her discussion of the importance of public debate: “11 semble,
en effet, que le drbat doive nrcessairement s’inscrire dans la durre pour permettre de passer de la
notion de risque ‘acceptable’ A celle de risque ‘accept.'” (supra note 2 at 143).
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J. ELLIS & A. FITZGERALD – THE PRECAUTIONARY PRINCIPLE
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As a second best option, individuals or groups on whom costs are imposed would
believe that either the rule (or outcome) itself or the system that produced it is a good
one, and therefore worthy of support. A third-ranked option would involve making
side payments and compensating for the costs imposed. This may, but need not, be
instrumental and strategic. It may be that in some cases a reorientation of the
distribution of costs and benefits is called for not only to ensure support by various
parts of a population and to bolster the overall viability of a rule or regime, but also
out of considerations of equity and fairness. Strategies inspired by the principle of
common but differentiated obligations can be described in both strategic and
principled terms, and there is some truth in both sets of descriptions. At the bottom of
the list of ways to deal with those who must pay the costs of precautionary action is
simply the imposition of decisions-whether by taking advantage of different levels
of power and capacity or by the use of legal means of coercion. Legal systems that
seek to integrate precaution into their decision-making processes probably need to use
various combinations of all these approaches, but cannot rely on coercion alone.
Decision-making processes that facilitate the production and distribution of
information about alternative courses of action, consequences, risks, and the extent of
uncertainty will permit populations to be more well-informed, with the result that
preferences and priorities may change. These processes must also be designed to
maximize perceptions of legitimacy and reliability, which means that they must be
open and transparent, as well as responsive to the concerns and fears that are being
expressed among members of the public. However, at the end of the day, it is almost
inevitable that different levels of risk aversion will remain.
A decision taken in accordance with the precautionary principle will ultimately be
one that pays close attention to preferences and priorities. Different states will,
therefore, ultimately have to tolerate laws and policies that they do not agree with or
that differ from their own. This is not, however, to say that laws and policies need not
be explained or justified in other jurisdictions. On the contrary, they will be criticized
in informal ways and through diplomatic channels. In addition, in certain instances, a
process will exist through which the laws can formally be challenged-for example,
when the laws have impacts on international trade. Therefore, another requirement of
precautionary legal processes is that they be capable of providing well-reasoned
justifications, addressed to as broad an audience as possible, on outcomes and on the
preferences and priorities that underlie
them. Furthermore, precautionary legal
systems must be charged with the task of seeking solutions to the unintended
consequences, both foreseeable and unforeseeable, of their outcomes. This will
require that those legal systems be well-positioned to gather information on such
consequences, and particularly to maintain communication with affected populations,
most notably those that have to absorb costs of precautionary legal outcomes.
The issue of who bears the burden of uncertainty comes down to a question of
thresholds. The criteria for identifying the threshold cannot, we argue, be identified at
the global level but rather must be worked out in the context of specific regimes.
Nevertheless, it may be assumed that the threshold will be identified with reference to
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the amount of scientific evidence of a risk, the likelihood of the risk manifesting itself,
and the seriousness of the probable consequences. Where a given risk is deemed to be
over threshold, environmental measures may be justified; otherwise, they will not.
However, as suggested above, there will be cases in which a given society is more
risk averse than others and will therefore want to take measures in a given instance
even if the threshold criteria are not met. Must the risk-averse society simply tolerate
a risk it deems unacceptable until it is able to muster the necessary scientific
evidence? In such instances, a range of possible responses is likely to be available.
For example, a measure short of a prohibition may be in order-labelling may be
preferable to an import ban, for instance.39 The risk-averse society may be in a
position to invest in precautionary measures to reduce the risk while permitting an
activity to take place. Temporary measures may be justified. Or, as in the Beef
Hormones case, the risk-averse society may choose to maintain a prohibition (in this
case an import ban) and pay a penalty or make a side payment.
IV. Excursus: The Beef Hormones Case-Operationalization of
the Precautionary Principle
The precautionary principle has recently been put to a test of sorts-or rather two
tests. The first is a test of the capacity of an international trade regime, in this case the
World Trade Organization (“WTO”), to operationalize the principle by transforming it
into a rule contained within the Agreement on the Application of Sanitary and
Phytosanitary measures.’ The second is a test of the openness of that rule to a
precautionary measure.
(“EU”)
(then
In 1989,
the European Union
the European Economic
Communities) implemented its first directive banning imports of beef treated with
certain growth hormones.41 The ban was subsequently reaffirmed in a final directive
that maintained the moratorium on the administration of hormones for growth
purposes within the EU and, of particular importance for our discussion, on imports
of hormone-treated beef. The import ban became the subject of a WTO dispute in
1997 between the EU on the one hand and the United States and Canada on the
39 See Katy Eiseman, “Food Labeling: Free Trade, Consumer Choice, and Accountability” in Edith
Brown Weiss & John H. Jackson, eds., Reconciling Environment and Trade (Ardsley, N.Y:
Transnational Publishers, 2001) 373.
40 WTO, Agreement on the Application of Sanitary and Phytosanitary Measures, online: WTO
41 See EC, Council Directive 96/22 of 29 April 1996 concerning the prohibition on the use in
stockfarming of certain substances having a hormonal or thyrostatic action and of B-agonists, and
repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC, [1996] O.J. L. 125/3. The ban
followed a period of intense public concern in Europe over the negative human health effects
associated with one such hormone, diethylstilbestrol (or DES), which was found in baby food made
of veal: see Christopher Bisgaard, “Assessing the Standard of Review for Trade-Restrictive Measures
in the Sanitary and Phytosanitary Agreement” in Weiss & Jackson, supra note 39, 353 at 375.
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J. ELLIS & A. FITZGERALD – THE PRECAUTIONARY PRINCIPLE
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other.42 The dispute turned on the interpretation of several key provisions of the SPS
Agreement (“Agreement”).
The EU sought to justify its import ban on the basis of precaution. Specifically,
the EU argued that the higher, cautious level of protection it had chosen was
appropriate in circumstances where “health hazards … only became apparent long
after substances or products had been assumed to be safe. 4 3 In other words, the EU’s
concern was based not on knowledge of risk but on an appreciation of levels of
ignorance and uncertainty regarding the health effects of beef hormones. The EU
sought to accord “the benefit of doubt to the consumer … in cases where the potential
risks might affect very large parts of the population,” rather than to the producer as
the United States had done.44 The EU did not, however, invoke article 5.7 of the SPS
Agreement, which
to sanction some degree of
precautionary decision-making:
is generally acknowledged
In cases where relevant scientific evidence is insufficient, a Member may
provisionally adopt sanitary or phytosanitary measures on the basis of
available pertinent information … 5
It may be argued that this measure represents a reversal of the burden of proof,
something which we stated above the precautionary principle does not require. It
might further be argued that this reversal imposes an impossible burden on beef-
importing states, namely to prove absence of risk. Of course, as we suggested above,
it is open to the legislator to impose a difficult or impossible condition on the ground
that if the condition cannot somehow be met, the activity in question should simply
not proceed. The potential difficulty here is that different jurisdictions, representing
different societies and sets of preferences, must arrive at some agreement regarding
the consequences of such a measure.
The Appellate Body found that the EU had failed in its obligations under articles
3.3 and 5.1 of the Agreement by neglecting to perform a risk assessment as defined in
article 5 and Annex A, and therefore concluded that the EU’s import ban brought the
EU into contravention of its trade obligations. The Appellate Body concluded with the
caveat that its identification of precautionary provisions in the Agreement was not
exhaustive, thereby leaving the door open in future disputes to a potentially more
flexible interpretation of precaution within the WTO food safety regime.
42 EC Measures Concerning Meat and Meat Products (Hormones) (Complaint by the United States)
(1997), WTO Doc. WT/DS26/RIUSA
(Panel Report), online: WTO
WTO Doc. WT/DS26/AB/R (Appellate Body Report), online: WTO
[Beef Hormone Case (Appellate Body)].
43 Panel Report, ibid. at IV.2.(e)(vii)c.
44 Ibid. at IV.2.(e)(vii)a. See also Eiseman, supra note 39 at 377.
45 SPS Agreement, supra note 40 [emphasis added].
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It appears to be too early to conclude that the SPS Agreement is not open to
precautionary measures. The EU adduced into evidence a handful of reports
indicating the possible carcinogenicity of the hormones under scrutiny, but provided
no evidence of risks posed by the hormones as administered. None of the materials
supplied by the EU attested to or indicated that research had been conducted to
determine any specific risk to consumers posed by residues from growth hormones in
beef dedicated for human consumption. Effectively, the EU failed to meet a due
diligence standard in justifying its chosen level of protection—-“zero
level of
tolerance” 4 6–as necessary and proportional or rationally connected within the
science-based nexus required by the SPS Agreement of risk, policy objective, and
chosen measure.
It would have been open to the EU to impose a temporary ban and to gather
further evidence of a specific risk; this it decided not to do. One may, however,
question the appropriateness of this provision. As precaution is a policy response to
risk born of uncertainty, which in turn is a product of the limits of science at any given
time to definitively ascertain the panoply and magnitude of risks posed to human
health and the environment as a by-product of human behaviour, the temporal limit on
precautionary action in the Agreement appears counter-intuitive. One can no more
predict when the uncertainty will be resolved than how it will be resolved. This
requirement appears to entrench a policy fear in respect of constancy of law over
time. A more reasonable interpretation of the term “provisional”, consonant with
precautionary decision-making, might be the period of time over which uncertainty
persists,47 circumscribed by the procedural requirements parsed in subsequent dispute
proceedings, such as the obligation to continue seeking additional justification for the
measure in question and to engage periodic review of the measure in light of any new
information.48
On the one hand, putting a relatively high justificatory burden on parties seeking
to impose precautionary measures could be seen as an attempt to prepare the ground
for a consensus. Parties can disagree on the values at stake and can therefore disagree
with one another’s decision, but the framework provided by precautionary rules can
permit them to understand and, eventually, accept one another’s positions. The
precautionary principle can help a party to articulate its concerns over uncertainty,
giving weight to these concerns that they would not otherwise have.
On the other hand, there will be cases in which parties simply have different
approaches to the importance to be attributed to the various risks, uncertainties, and
46 Beef Honnone Case (Appellate Body), supra note 42 at para. 83.
47 See Regine Neugebauer, “Fine-Tuning WTO Jurisprudence and the SPS Agreement: Lessons
from the Beef Hormone Case” (2000) 31 Law & Pol’y Int’l Bus. 1255 at 345.
48 See Japan-Measures Affecting Agricultural Products (1999), WTO Doc. WT/DS76/AB/R
(Appellate Body Report), online: WTO
Importation of Salmon (1998), WTO Doc. WT/DS18/AB/R (Appellate Body Report), online: WTO
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J. ELLIS & A. FITZGERALD – THE PRECAUTIONARY PRINCIPLE
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values that fall to be considered. Precaution functions as a barometer for a society’s
risk aversion-the tolerance threshold of a group or society to risk-to a particular
product, process, or practice. The more risk averse a society is to a given product,
process, or practice, the less open that society is likely to be to its introduction or
continued presence in the society. Risk aversion is a social phenomenon with cultural,
economic, and political dimensions. The precautionary principle enables
the
incorporation of these dimensions-not without controversy-into policy debates on
the acceptable level of risk to a particular society as a whole. As such, it legitimates
these factors as an integral part of the public deliberative process on the management
of risks posed to human health and the environment. This would appear to be the case
here: citizens of EU countries may be described as having different levels of risk
aversion to those of North American countries. This higher risk aversion translates
into different policy preferences which cannot always be reconciled through the
application of rules and decision-making procedures.
The decision of the Appellate Body is, of course, not the end of the story. The EU
chose to stand by its import moratorium, despite the fact that this meant incurring
penalties as a result.49
Conclusion: Anatomy of a Precautionary Legal Process
is a difficult
Establishing preferences among known values
task. When
uncertainty about the nature of values is introduced, the difficulties multiply. Of
course, we should not exaggerate this point: one always makes choices in the face of
uncertainty about the consequences of making one decision as opposed to another. As
a result, choices always require the exercise of judgment. When these choices have
consequences for other actors, we also require reasons to explain the manner in which
our judgment was exercised.
The precautionary principle is about process-the processes through which
choices are made and justified in the face of scientific uncertainty. We have sought to
show that there is nothing inherent in the principle that brings it into conflict with
Fuller’s precepts of internal morality. On the other hand, there are myriad ways in
which attempts to apply it can, and often do, offend against internal morality. The
conclusion to be drawn from this is that the precautionary principle must always be
interpreted and applied with a close eye on the context and in light of the range of
other principles that are or may be pertinent in the circumstances. The concept of
internal morality provides an extremely useful guide to determining when a particular
method of operationalizing of the principle is problematic.
49 See WTO, European Communities-Measures Concerning Meat and Meat Products (Hormones)
(Recourse by the United States to Article 22.7 of the DSU) (1999), WTO Doc. WT/DS26/21, online:
Products (Hormones) (Recourse by Canada to Article 22.7 of the DSU) (1999), WTO Doc.
WT/DS48/19, online: WTO
800
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As an approach applying Fuller’s internal morality of law indicates, the problem
is not so much with the precautionary principle as with expectations of what the law
can and should do. If we regard the precautionary principle as a detailed checklist or
instruction manual, we will find it wanting. We will be frustrated by the fact that the
content of the principle leaves us with more questions than answers and does not
absolve us of the responsibility of making and justifying a decision. Furthermore, the
mere fact that the precautionary principle has been considered and applied, either in
the development of new rules or in decisions about courses of action, does not
eliminate the possibility of bad decisions and undesirable outcomes. As Fuller notes,
[t]he human element can of course fail, and it can fail not simply because of
corruption or sloth, but for lack of a sense of institutional role and a failure to
perceive the true nature of the problems
involved in constructing and
administering a legal system. But if the human element is a possible source of
failure, it is also an indispensable ingredient in any just and humane legal
system. … The complex undertaking we call “law” requires at every turn the
exercise of judgment, and that judgment must be exercised by human beings
for human beings.50
The precautionary principle can contribute to a common vocabulary, a set of shared
understandings, a guideline for the development of decision-making procedures, and
a template for evaluating decisions or decision-making processes and a range of other
goals. That which takes place within these decision-making processes and their
outcomes is our responsibility.
5 0Fuller, Anatomy, supra note 13 at 39-40.
