Practical causes of uncertainty

for the design of impact assessment law as a deliberative and participatory process (see chap-ter 7 on different modalities of participation).

unacceptable risk and help to instigate innovation to address specific problems. However, law and legal reforms can in themselves be regarded as innovation; these could be described as “le-gal innovations”.⁹⁵⁹ Like in the technological sphere, the consequences of these legal innovations can be predicted but not empirically tested in advance. This is therefore a good example where law does not regulate risk but law can be the cause of a risk (previously described as the “risk of regulation”). Consequently, one response would be to conduct impact assessments of regulatory or legislative initiatives, even though there might be a high level of temporarily irreducible un-certainty. Still, as will be seen below, impact assessment and risk law can play a role in dealing with this level of uncertainty: Different decision-rules can be applied even to this situation of genuine uncertainty, the precautionary principle may provide guidance, but most of all the pro-cedural aspect of impact assessment can have a legitimizing effect insofar as it can grant human rights protection through procedure.

5.4.2.2 Uncertainty and Information Asymmetries

Information asymmetries produce subjective uncertainty, i.e. information is generally available but public authorities do not have that information even though they need it for informed deci-sion-making. This concerns what could be called the de-centralization and outsourcing of knowledge. Often private companies or local authorities possess the relevant information and knowledge, or public authorities rely on independent experts who are consulted whenever their specific expertise is required. This type of subjective uncertainty is therefore different from in-novation-related genuine uncertainty: relevant information exists, but it is dispersed and almost literally needs to be “gathered”. Information asymmetries have become a central challenge in regulatory settings,⁹⁶⁰ both domestically and internationally. This type of uncertainty may be overcome through different organizational measures, including participatory impact assess-ments that allow different external experts and stakeholders to contribute to the decision-making process and provide the type of information and knowledge that is needed.⁹⁶¹

5.4.2.3 Uncertainty and Time

Learning processes require time. Therefore, time can be a factor that reduces uncertainty by stimulating experiential knowledge. Monitoring and evaluation are also instruments to improve (institutional) learning. However, to what extent a learning-cycle actually works is unclear. This is partly the case because time also includes an element of instability: over time, an often inesti-mable number of single and individual decisions are taken whose cumulative impacts are

959 Roberta Romano, ‘The States as a Laboratory: Legal Innovation and State Competition for Corporate Charters’, Yale Journal on Regulation, 23 (2006), pp. 209–247, p. 210; similarly calling for an open concept of innovation: Hoffmann-Riem and Fritzsche, ‘Innovationsverantwortung - zur Einleitung’ (above, n. 195), p. 12.

960 Hoffmann-Riem, ‘Regulierungswissen in der Regulierung’ (above, n. 262); Karsten Herzmann, Konsulta-tionen (Tübingen: Mohr Siebeck, 2010), p. 46; Hermann Pünder, ‘Administrative Procedure - Mere Facili-tator of Material Law versus Cooperative Realization of Common Welfare’, in: Hermann Pünder, Christian Calliess, and Pünder-Waldhoff (eds.), Debates in German Public Law, pp. 239–262, p. 245.

961 This is a central function of, for example, different instruments and procedures in development coop-eration law: Dann, The Law of Development Coopcoop-eration (above, n. 4), 363 et seq.

scure and increase instability.⁹⁶² In consequence, the value and relevance of experiential knowledge decrease. Especially the regulation of general policies, such as international trade, is aimed at a modification of market structures, which in turn creates new uncertainties.⁹⁶³ The same is true, maybe to a lesser extent, with regard to developmental projects: The financial, en-vironmental and social risks especially of mega-projects or major legislative reforms are gener-ally difficult to manage, even more so if the contexts in which projects are implemented vary:

Different and often evolving legal, political, social and cultural contexts confront project-developers with new uncertainties. Due to these factors the acquisition of experiential knowledge becomes much more difficult. It would require that decision-makers are willing to interrupt routine in order to not only reproduce but also review frequently made decisions.⁹⁶⁴ One consequence is that monitoring, evaluation and ex-post impact assessments become more relevant in order to identify and adapt to new circumstances. Regulation must respond to chang-ing and complex social structures, which permanently creates new uncertainties, so that copchang-ing with uncertainties and generating new regulation-specific knowledge remains an ongoing task.⁹⁶⁵ Legal provisions can either facilitate or obstruct these adaptive mechanisms, for example by using flexibility mechanisms in agreements and statutes⁹⁶⁶. Law can therefore play a decisive role in decision-making under time-related uncertainty.

The time-and-uncertainty aspect is also relevant for the institutional design of impact assess-ment law: If IAs are conducted too early, the contours of the planned project or policy are prob-ably too vague for a meaningful assessment. If it is too late, the problem of path-dependency and the emergence of vested interests – including the efforts already put into a planned project or policy – might be too high for IAs to have a persuasive effect. ⁹⁶⁷ While time might increase cer-tainty both about the scope and type of potential impacts, the chance that the findings of IAs are taken into account might significantly decrease.⁹⁶⁸

5.4.2.4 Communication and Uncertainty

While communication is essential to organize all areas of social life, communication can at the same time be a source of uncertainty. This relationship between communication and uncertainty is two-dimensional. First, the communication of uncertainty⁹⁶⁹ is a means of dealing with uncer-tainty. It is necessary for informed decision-making to know the unknowns. It is also essential to assign responsibilities: consent given without the knowledge of objectively known risks cannot

962 Hans-Heinrich Trute, ‘Regulierung - am Beispiel des Telekommunikationsrechts’, in: Carl-Eugen Eberle, Martin Ibler, and Dieter Lorenz (eds.), Der Wandel des Staates vor den Herausforderungen der Gegen-wart: Festschrift für Winfried Brohm zum 70. Geburtstag, pp. 169–189, pp. 171–172; Herzmann, Konsulta-tionen (above, n. 960), p. 47.

963 See, even though for a different regulatory area: Ibid.

964 Eifert, ‘Innovationsverantwortung in der Zeit’ (above, n. 957), p. 375.

965 Herzmann, Konsultationen (above, n. 960), p. 48.

966 See section 9.1.2.1.5.

967 Lau and Böschen, ‘Möglichkeiten und Grenzen der Wissenschaftsfolgenabschätzung’ (above, n. 261), p.

127.

968 Ibid.

969 Penny Kloprogge, van der Sluijs, Jeroen, and Arjan Wardekker, ‘Uncertainty communication: Issues and good practice’, Utrecht University.

be regarded as informed consent. However, communication can also cause or exacerbate uncer-tainty. Especially where complex structures of decision-making exist – be it a domestic bureau-cracy or an international financial institution – knowledge needs to be made explicit, i.e. con-scious and verbalized,⁹⁷⁰ in order to be processed. Implicit knowledge and its transmission through nonverbal communication (gesture, intonation, facial expression, etc.) can, as communi-cation studies suggest,⁹⁷¹ easily get „lost in transcription“. This might be relevant for the tran-scription of findings made during consultation, especially where consultation ideally involves different stakeholders and affected individuals and communities, many of whom often have a social and cultural background very different from those in charge of conducting HRIAs who are working for a public institution, like the European Commission.

Another aspect where communication can exacerbate uncertainty regards the discourse be-tween experts and laypersons. No matter whether science primarily uses numerical or verbal reasoning, quantitative or qualitative methods, at a certain point it has to use words of common language⁹⁷², at least if it is supposed to inform political decision-making and legal reasoning like in the case of institutionalized impact assessments. Whether or not textual ambiguity is avoida-ble⁹⁷³ in natural and/or formal language is not relevant here: ambiguities actually exist and therefore are a source of uncertainty. A study commissioned by the EU has found that there is a vast majority (in this case: 90 %) of the interviewed scientists who felt that there was a mis-match between what scientists want to be covered and what the media found to be newswor-thy.⁹⁷⁴ The reasons are manifold.⁹⁷⁵ One is that people tend to exaggerate how well they under-stood what the speaker said.⁹⁷⁶ This is a particular problem if scientific terms are used. And if scientists use colloquial terms, they often use them in a technical way, probably not realizing that laypersons would understand them differently. Due to different professional and cultural backgrounds, people may also be wrong about what is self-evident for their communication partners and would therefore not require further explanation.⁹⁷⁷ Another attribution error is that many people tend to assume that messages communicated with a high level of confidence are more likely to be correct.⁹⁷⁸

It is challenging for law to minimize uncertainty rooted in communication. In contract law, dif-ferent mechanisms exist to force participants to be clear and transparent about rights and obli-gations. For example, under German law, there is a principle that doubts regarding the

970 Scherzberg, ‘Wissen, Nichtwissen und Ungewißheit im Recht’ (above, n. 948), p. 118.

971 Paul Watzlawick, Janet Beavin, and Don Jackson, Menschliche Kommunikation (Bern, Göttingen, Toron-to, Seattle: Verlag Hans Huber, 2000), 10., unveränderte Auflage, 51 ff.

972 Faber, Manstetten and Proops, ‘Humankind and Environment: An Anatomy of Surprise and Ignorance’

(above, n. 835), p. 230.

973 Ludwig Wittgenstein, Philosophische Untersuchungen (Frankfurt am Main: suhrkamp, 1971), 1. Aufl., for example: para 155 et seq. on meaning and context.

974 Michel Claessens, ‘European Trends in Science Communication’, in: Donghong Cheng, Michel Claessens, Toss Gascoigne et al. (eds.), Communicating science in social contexts, 33 et seq.

975 For a good overview of the following: National Research Council, Intelligence analysis for tomorrow, p.

74.

976 Baruch Fischhoff, ‘Communicating About Analysis’, in: Baruch Fischhoff and Cherie Chauvin (eds.), Intelligence Analysis: Behavioral and Social Scientific Foundations, pp. 227–248, p. 245.

977 Norbert Schwarz, ‘Self-Report: How the Questions Shape the Answers’, American Psychologist, 54 (1999), pp. 93–105.

978 Hal Arkes and James Kajdasz, ‘Intuitive Theories of Behavior’, in: Baruch Fischhoff and Cherie Chauvin (eds.), Intelligence Analysis: Behavioral and Social Scientific Foundations, pp. 143–168, p. 147.

tation of unilaterally imposed general terms and conditions shall be at the expense of the person who imposed these terms.⁹⁷⁹ This means that, in case of textual ambiguities, the interperation that is more favorable to the other party shall prevail. Such an interpretive guideline could prob-ably not easily applied to areas beyond contract law. However, what public law can do is require that information provided to the public must be in a clear, accessible and transparent manner. In this sense, impact assessment law and guidelines often require that information is provided to the public in an accessible and comprehensible manner in order to reduce misunderstandings.

This does not, however, release the institution from the responsibility to particularly pay atten-tion when receiving input from laypersons and be sensitive to avoid communicaatten-tion-induced uncertainty.