4 MARCH LECTURE
WHAT IS LAW?
Learning outcomes from this lecture and readings:
- Be able to briefly describe the different theories of law and how they can be applied to environmental issues.
- Be able to discuss in depth the natural law and social contract theories as they apply to the environment.
Notes
The study of the philosophy of law is known as jurisprudence
What makes something a law?
Produced by an institution?
What about religious norms? Social norms?
Does it need to be enforceable to be law?
THEORIES OF LAW
Religious law. The Pope. Islam. Theocracies.
Has its dangers. Victor Klemperer “I Shall
Bear Witness”. But does positivism always mean that “the validity of a law can never depend on its
morality”? Raz
FOR DISCUSSION - POSITIVISM AND LAWS THAT BADLY DAMAGE THE ENVIRONMENT?
What if the Fiji government passed a law that, by any measure, would do untold harm to the environment of that country. Say, cut down all trees on one of the larger islands as a bizarre kind of Easter Island imitation. Is it law?
1) Under the positivist theory has it been validly made? (hint - google Fiji and rule of law)
2) Does the positivist theory allow for any consideration of the moral content of the law? (start with wikipedia on legal positivism and this comment: "Raz has also argued, contrary to Hart, that the validity of a law can never depend on its morality."
http://en.wikipedia.org/wiki/Legal_positivism
"Having undertaken, for the Glory of God and advancement of the Christian Faith and Honour of our King and Country, a Voyage to plant the First Colony in the Northern Parts of Virginia, do by these present solemnly and mutually in the presence of God and one of another, Covenant and Combine ourselves together into a Civil Body Politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the general good of the Colony, unto which we promise all due submission and obedience."
"no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance."
Short paper setting out the key features of Rawls theory.
What if the parties dont know:
- when they will be born - now or in the future?
- whether they are human or some other species?
Would that extend the idea of the social contract in a useful way so as to consider environmental issues?
Indeed, without such extensions, does Rawl’s theory assist environmental law making in any way? In other words, could you argue that sound environmental law cannot come out of the Rawl’s model with the extensions suggested? In which case, is this also a way of saying that our current legal system cannot generate sound environmental law? It is too anthropocentric?
What about expanding the social contract so that it includes animals?
In Rawls theory of justice - and what the situation might be if people in the original position behind the veil of ignorance did not know what species they were.
In that light – consider this - Animal Welfare Act 1999 - section 85
(Interesting side debate here: how can law be anything other than anthropocentric? Take the phrase, “intrinsic values of ecosystems”. Is that non-anthropocentric or not? See Animal Welfare Act 1999 section 85 Restrictions on use of non-human hominids:
Natural
law.
Historical genesis:
"natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature,"
http://en.wikipedia.org/wiki/Natural_law
Aldo Leopold and his land ethic:
"A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise."
"The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land."
"A land ethic of course cannot prevent the alteration, management, and use of these ‘resources,’ but it does affirm their right to continued existence, and, at least in spots, their continued existence in a natural state. In short, a land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it. It implies respect for his fellow-members, and also respect for the community as such."
http://en.wikipedia.org/wiki/Aldo_Leopold
So this is a form of expanded social contract?
See also 'ecocide': http://en.wikipedia.org/wiki/Ecocide
Ecocide is not currently an international crime, although it is a domestic crime in at least ten countries. The legal definition of ecocide proposed to the
United Nations in 2010 by Polly Higgins was:
"
The extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished. "
[10]
It is an international crime to cause widespread, long-term and severe damage to the non-human environment during war time. Article 8(2)(b)(iv) of the
Rome Statute prohibits:
"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. "
However, there is no correlating crime during peace time. The existing law of war could be used in the interpretation of what constitutes ecocide. The 1977 United Nations
Environmental Modification Convention specifies the terms ‘widespread’, ‘long-lasting’ and ‘severe’ as:
- widespread: encompassing an area on the scale of several hundred square kilometers;
- long-lasting: lasting for a period of months, or approximately a season;
- severe: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.
See also 'wild law':
"human laws that are consistent with Earth jurisprudence.[1] A wild law is a law made by people to regulate human behaviour that privileges maintaining the integrity and functioning of the whole Earth community in the long term, over the interests of any species (including humans) at a particular time."
http://en.wikipedia.org/wiki/Wild_law
See also this reference to 'earth jurisprudence": http://en.wikipedia.org/wiki/Earth_jurisprudence
But how long term? Does it ultimately make any sense as a theory of law if you consider
for example our place in the universe, and random asteroids that could end life
on this planet at virtually any time?
Picture of all
asteroids that could hit us with large scale damage
http://www.nasa.gov/mission_pages/WISE/multimedia/gallery/neowise/pia15627.html
Example - the Russian meteorite of Feb 2013.
Consider a meteorite seeded
with microbes that will survive the impact but destroy everything currently living. Should it be stopped?
"I will make one comment about these kinds
of arguments which seems to me to somehow have eluded everyone. When people
make these probabilistic equations, like the Drake Equation, which you're
familiar with -- they introduce variables for the frequency of earth-like
planets, for the evolution of life on those planets, and so on. The question
remains as to how often, after life evolves, you'll have intelligent life
capable of making technology. What
people haven't seemed to notice is that on earth, of all the billions of
species that have evolved, only one has developed intelligence to the level of
producing technology. Which means that kind of intelligence is really not very
useful. It's not actually, in the general case, of much evolutionary value.
We tend to think, because we love to think of ourselves, human beings, as the
top of the evolutionary ladder, that the intelligence we have, that
makes us human beings, is the thing that all of evolution is striving toward.
But what we know is that that's not true. Obviously it doesn't matter that much
if you're a beetle, that you be really smart. If it were, evolution would have
produced much more intelligent beetles. We have no empirical data to suggest
that there's a high probability that evolution on another planet would lead to
technological intelligence. There is just too much we don't know."
Here is the last scene: http://www.youtube.com/watch?v=TBzVPXr8SNY
FOR DISCUSSION - WHAT IF WE TRIED TO DEVELOP A NEW VERSION OF NATURAL LAW?
What about a theory of law which we might call the “Holocene Ethic” - that is, taking all steps to preserve the basic conditions of the planet that generated and have sustained the human species for the past 10,000 years or so. Maintaining the ethic would include responsibilities like keeping the planet in the Holocene state in terms of stable atmosphere, managing pollution etc. Also diverting or destroying asteroids on a collision course. And possibly - at a much later date - eventually preventing the expansion of the Sun.
What sort of theory of law should we have in relation to other bodies in our solar system and elsewhere? Are we entitled to terra form other planets? There are serious discussions about terra forming Mars (eg http://quest.nasa.gov/mars/background/terra.html) Should we do that or treat it as a kind of Antarctica? What if we find extreme forms of life on Mars? How should we treat them?
Custom
law.
Eg Maori custom law.
Have a look at this amazing summary of Maori law by a Pakeha observer in the 1860s. Its has obvious biases, but amazing detail about the nature of Maori law and what a comprehensive system it was at the time.
Point to ponder. What is custom law versus any other type
of law? Isnt it all custom of one form or another? Or is the difference the
fact that it is “a right
enjoyed through long custom rather than positive law”?http://en.wikipedia.org/wiki/Custom_(law)
This interesting essay asks whether modern conservation laws which seek to preserve landscapes without humans living in them, might be simply furthering colonisation if they dont consider indigenous knowledge.
Law and Economics
This theory suggests that good law is economically efficient. It has been a big influence on the RMA. The idea is that environmental law should only regulate activities where there is a market failure ie there are externalities to the activity that society is being asked to bear. In that case regulation would make the polluter pay.
Note also the Coase theorem, which suggests that if rights are clearly assigned to parties to being with, and you reduce transaction costs ie allow a free market to operate easily, then you very efficiently get to the appropriate environmental outcome.
Richard Posner
Ronald Coase
Ecologics
