Is There a General Definition of ‘Risk’?

Defining ‘risk’ is not a straightforward task. Indeed, the multi-faceted nature of the concept makes the quest for a general definition rather quixotic. This uncertainty is undoubtedly a consequence of the word’s wide usage and a lack of agreement about its

100 etymology. ‘Risk’ may originate from the seventeenth century French word ‘risque’, or the

Italian ‘risco’, which is itself of uncertain origin.4

Alternatively, it may have developed from the Arabic ‘risq’ (‘riches or good fortune’), Greek ‘rhiza’ (‘cliff’), or Latin ‘resegare’ (‘to cut off

short’).5

There is evidence to suggest that the word first appeared among Western explorers in the Age of Discovery to refer to the hazards attendant on sailing through uncharted waters.6 _{Others argue that it developed from gambling,}7 _{or that it first emerged as a}

principle of the laws of maritime insurance.8

In any event, the first recorded general definition of ‘risk’ (‘hazard, danger; exposure to mischance or peril’) dates from 1661.9 According to the Oxford English Dictionary, ‘risk’ became a feature of legal language by the eighteenth century, although it was not until the twentieth century that the word would apply to a person ‘who is considered a liability or danger’.10

During this time, words like ‘analysis’ and ‘assessment’ were first coupled with ‘risk’, giving rise to the lexicography with which we are familiar today.11

4

Oxford English Dictionary, 2nd edition, 1989.

5

I. Wilkinson, Risk, Vulnerability and Everyday Life, London: Routledge, 2010, at p17.

6

A. Giddens, ‘Risk Society: the Context of British Politics’ in J. Franklin (ed.), The Politics of Risk Society, Malden, Massachusetts: Polity Press, 1998, at p27.

7

M. Douglas, Risk and Blame: Essays in Cultural Theory, London: Routledge, 1992, at pp14-15.

8 Wilkinson, supra n.5, at p17. 9 OED, supra n.4. 10 Ibid. 11 Ibid.

101 In the modern era, the dictionary definition of ‘risk’ (‘exposure to the chance of injury or loss, a hazard or dangerous chance’)12

offers a reasonably fixed meaning, though it still fails to capture the enormous range of the word’s colloquial usage. Over time, the application of risk has changed to suit contemporary circumstances, conferring a degree of elasticity on the concept’s semantic scope. According to Alaszewski, the word ‘risk’ is now the ‘tip of an iceberg of related words or terms’, which include: ‘hazard’, ‘harm’, ‘safety’, ‘dangerousness’, ‘vulnerabilty’, and ‘blame’.13

It is true that these terms are synonymous with ‘risk’ today, although this does little to clarify what the word means in the abstract.14

Indeed, Aleszewski seems to suggest that it may make this task even harder. The ‘risk iceberg’ comprises ‘an interrelated set of words that are linked around issues of chance and outcome’. For that reason, there is some interchangeability between these words ‘and a degree of circularity in their definitions’.15

Colloquially, ‘risk’ is capable of applying in various parts of speech: as a noun (‘there is a risk of rain today’), verb (‘I risk losing the match’), adjective (‘a risky endeavour’) or adverb (‘he behaves too riskily’). It can also form idiomatic phases, for example, ‘she is running a risk’ or ‘I risked life and limb’. In this way, it seems that risk’s everyday usage applies to vague notions of chance, danger and uncertainty. According to Adams, modern human

12

Dictionary.com, ‘Risk’ in Dictionary.com Unabridged, Random House Inc. Available: http://dictionary.reference.com. Accessed: 7th December 2009.

13

A. Alaszewski, ‘Risk in Modern Society’ in A. Alaszewski et al (eds.) Risk, Health and Welfare: Policies, Strategies and Practice, Buckingham: Open University Press, 1998, at p10.

14

According to Thesaurus.com, ‘risk’ is synonymous with ‘accident’, ‘contingency’, ‘danger’, ‘exposedness’, ‘exposure’, ‘fortuity’, ‘fortune’, ‘gamble’, ‘hazard’, ‘jeopardy’, ‘liability’, ‘luck’, ‘opportunity’, ‘peril’, ‘possibility’, ‘prospect’, ‘shot in the dark’, ‘uncertainty’, ‘venture’, and ‘wager’. Available at: http://thesaurus.reference.com/. Accessed: 9th December 2009.

15

102 beings can be described as Homo aleatorius, or ‘risk-taking man’, because of their pre-

occupation with risk.16

Perhaps as a consequence of this, he explains that the English language is ‘littered with aphorisms extolling the virtues of risk’; for example, phrases like ‘nothing ventured, nothing gained’ and ‘no risk, no reward’ are common in spoken and written exchanges.17 _{The ubiquity of the term in conversational discourse reflects our}

tendency to interpret the world around us through the prism of risk.

‘Risk’ also has a more technical character. According to the Royal Society, risk can be expressed in mathematical terms, i.e., it is the quantitative chance of a defined hazard occurring.18

This encapsulates both a ‘probabilistic measure’ of the likelihood that the primary event will occur and a ‘measure of the consequences of that event’.19

When assessing risk, one must therefore ask (i) how likely is X to happen, and (ii) how serious will the consequences of X be if it does happen? As far as the second consideration is concerned, Saaty points out that this will involve a wider assessment of the character of the potential loss, its extent in terms of intensity and diffusion, and its timing.20

Yet decision- making geared towards hazard prevention is not the only technical usage of risk. In legal

16

J. Adams, Risk, London: UCL Press, 1995, at pp1, 16. See also, P. Slovic, ‘Perception of Risk’ (1987) 236 Science 280, who explains, at p280, that the key to human survival has been the ability to codify and learn from past experience.

17

Ibid, at p17.

18

F. Warner, et al, Risk: Analysis, Perception and Management: Report of a Royal Society Study Group, London: Royal Society, 1992, at p4. The Royal Society also defined ‘hazard’ (‘a situation that in particular circumstances could lead to harm’), ‘harm’ (‘loss to a human being consequent on damage’), and ‘damage’ (‘loss of inherent quality suffered by an entity’).

19

Ibid.

20

T.L. Saaty, ‘Risk – Its Priority and Probability: the Analytic Hierarchy Process’ (1987) 7(2) Risk Analysis 159, at p163.

103 theory, ‘risk’ can describe ‘circumstances [that] may (or, importantly, may not) turn out in a way that we do not wish for’.21

This construction is particularly relevant in the law of tort, where a defendant’s failure to exercise reasonable care to avoid risks amounts to a breach of duty in negligence.22

In still other uses, ‘risk’ may refer to attributes which ‘differentiate the mortality or morbidity experience between groups of individuals with or without the attribute’.23 _{For example, it is a well-known fact that smoking is a risk to health; therefore,}

those patients who smoke are deemed more likely to experience adverse health events than those who do not. It is clear that even when it is employed in technical contexts, there are many sides to the concept of risk.

As a consequence of this flexibility, it is difficult to know what the natural or ordinary meaning of ‘risk’ is; indeed, it is doubtful that it even has one. Douglas argues that the concept’s flexibility reflects the influence that socio-cultural factors have on it.24

In her view, the term’s enormous utility comes from ‘its universalising terminology, its abstractness, its power of condescension, its scientificity, its connection with objective analysis’.25

In other words, ‘risk’ so lacks definition that it is capable of meaning many things to different people. What begins to emerge is a portrait of a complex concept which can apply so broadly that it

21

J. Steele, Risks and Legal Theory, Oxford: Hart Publishing, 2004, at p6.

22

See, e.g., Glasgow Corporation v Muir [1943] AC 448, HL; Nettleship v Weston [1971] 3 All ER 581, CA.

23

M.V. Hayes, ‘On the Epistemology of Risk: Language, Logic and Social Science’ (1992) 35(4) Social Science and Medicine 401, at p403.

24 _{Douglas, supra n.}

7, at pp14-15. Interestingly, Douglas points out that while Japanese has words for ‘danger’, ‘damage’ and ‘harm’, there is no word that can translate directly into ‘risk’. She argues that this is attributable to socio-cultural differences between the West and Japan.

25

104 defies objective explication. This raises a key problem: if there is no agreement about the meaning of ‘risk’ in general terms, how can the concept apply with any certainty in more specific contexts? This is particularly pressing in mental health law: to what extent can such an ill-defined concept achieve compatibility with the demands of legal certainty?

For now, it is enough to recognise that ‘risk’ has two universal characteristics. First, it is essentially a negative thing. In the past, it was value-neutral; a dispassionate probabilistic device which decision-makers applied to overcome uncertainty.26

Since then, Douglas argues that the language of risk has become ‘a specialised lexical register for… talk about… undesirable outcomes’.27

In both colloquial and technical contexts, conversations about risk share a common theme of seeking to avoid adverse consequences. Secondly, ‘risk’ is a contingent thing. Implicit in any discussion of risk is the assumption that steps can be taken to avoid or reduce the likelihood of a given hazard.28

A situation of risk therefore arises in circumstances that are necessarily contingent on a decision-maker’s choice. While characterising risk as a negative and contingent thing falls short of a general definition, we can discern from this the themes that underpin its application in colloquial and technical contexts (and everything in between). Yet this tells us little about how decision-makers might understand substantive risks in mental health law. In light of the fact that risk is so

deeply embedded in the mechanics of the MHA, this is troubling.

26

See, e.g., Douglas, supra n.7, at p23; D. Denney, Risk and Society, London: SAGE, 2005, at p9; L.A. Jacobs, ‘An Analysis of the Concept of Risk’ (2000) 23(1) Cancer Nursing 12, at p12.

27

Douglas, supra n.7, at p24. See also, J. Gabe, ‘Health, Medicine and Risk: the Need for a Sociological Approach’ in J. Gabe (ed.), Medicine, Health and Risk, Oxford: Blackwell, 1995.

28

Luhmann, supra n.1, at p16. Luhmann said that in any definition of risk the key requirement is that the injury, loss or damage should be avoidable.

105