Experts, rights and precaution

In this article, we offer an account of the epistemological and moral principles that should govern decisions where judges and other official decision-makers are asked to authorize courses of action which would amount to a violation of someone's rights in the absence ofjustifying circumstances. Our argument is in four sections. In Section I, we outline the normative framework for our analysis. We draw on the theory of rights expounded by Alan Gewirth and developed by Beyleveld, Brownsword and Pattinson, but rather than relying on the reader's being fully convinced by Gewirth's argument for the ‘dialectical necessity' of such rights, we suggest an alternative, contractarian defence of Gewirth's ‘Principle of Generic Consistency' (PGC) as a basis for social co-operation that all reasonable citizens could accept. Section II explores the epistemological implications of the principle of public justification: specifically, how the knowledge-claims of experts are made cognitively accessible to, and open to evaluation by, ordinary citizens. Section III brings together the epistemological and moral arguments to set out a framework of ‘rights precautionism' by which non-consensual expert intervention in the lives of citizens can be regulated. Section IV illustrates the application of the principles developed in Sections II and III to two fictional examples drawn from mental health and capacity law