EU law in the age of the twin transition: risk, uncertainty, and legal form

It has been known since at least the golden age of Athens that the form of legal commands should depend in some degree on the quality and volume of the information which lawmakers hold at their disposal. In modern-day EU policy, this proposition is usually taken to mean that, holding all else constant, the Union should pass Directives when uncertainty is high and Regulations when uncertainty is low. Here, we trace the theoretical foundations of that model, and we then refine it by discriminating between two distinct vectors of uncertainty, the axiological and the epistemic. Thereafter, we apply our refined version of the model to several issues of “smart” technology and its regulation. We use these examples to show that, relative to its progenitor, our version of the model captures more of the practical problems that the EU faces, more of the tools of governance that are available to it, and more of the decisions that its officials may plausibly and soon be charged with making.