Aims of the course
1 Understanding what law is, what lawyers do and what environmental law is composed of, and how law shapes debates about management of the environment. As part of that, discussing the challenges facing environmental law. Can it cope? Is new law or are new theories of law required?
What has happened is simple enough to understand. We have made a mistake. We found a way to get at the sun's stored energy to drive our society. It has allowed massive expansion of our global society and huge increases in personal well being. But it had a cost which we were at first dimly but are now certainly aware of. The cost has come up fast. The mitigation required requires unprecedented global action and co-operation, or if not unprecedented, at least on the scale of the efforts during world wars. The question is, can our current systems of law cope? They seem hopelessly outdated. Hopelessly naive. Is a new jurisprudence required, or will this one suffice? There is huge danger in something new. The possibility that we will throw out the useful as well as the unhelpful, unleash the worst in us, or overlook some further issue that awaits us just around the corner.
From the standpoint of governance, what is at stake is our ability to use the rule of law as an instrument of human redemption. After all has been said and so little done, the truth about the climate crisis — inconvenient as ever — must still be faced.
http://www.nytimes.com/2010/02/28/opinion/28gore.html?pagewanted=3
2 Understanding where professionals (scientists, policy analysts, experts) sit within the framework of environmental law and their duties and responsibilities
Example of a planner employed to assess a large government project who asked “is it true the government has power to do pretty much what it wants?”. This lack of understanding about how the legal system and environmental law works affects how that professional will act within the system, with important consequences. The may given an expert opinion that is qualified or affected by a mistaken view of their role.
It is interesting to note how recent some of the language is in this area.
How recent is the word “environment” in the sense of a reference to the natural world and its limits?http://www.etymonline.com/index.php?allowed_in_frame=0&search=environment&searchmode=none
How old is the word “scientist”?
http://www.etymonline.com/index.php?term=scientist
http://en.wikipedia.org/wiki/Scientist
Social roles that partly correspond with the modern scientist can be identified going back at least until 17th century natural philosophy, but the term scientist is much more recent. Until the late 19th or early 20th century, those who pursued science were called "natural philosophers" or "men of science".[3][4][5][6]
English philosopher and historian of science William Whewell coined the term scientist in 1833, and it was first published in Whewell's anonymous 1834 review of Mary Somerville's On the Connexion of the Physical Sciences published in the Quarterly Review. Whewell's suggestion of the term was partly satirical, a response to changing conceptions of science itself in which natural knowledge was increasingly seen as distinct from other forms of knowledge. Whewell wrote of "an increasing proclivity of separation and dismemberment" in the sciences; while highly specific terms proliferated—chemist, mathematician, naturalist—the broad term "philosopher" was no longer satisfactory to group together those who pursued science, without the caveats of "natural" or "experimental" philosopher. Members of theBritish Association for the Advancement of Science had been complaining about the lack of a good term at recent meetings, Whewell reported in his review; alluding to himself, he noted that "some ingenious gentleman proposed that, by analogy with artist, they might form [the word] scientist, and added that there could be no scruple in making free with this term since we already have such words as economist, and atheist—but this was not generally palatable".
For a great discussion of science in this period see: Holmes, Richard, The age of wonder : How the romantic generation discovered the beauty and terror of Science
http://en.wikipedia.org/wiki/The_Age_of_Wonder
This creation of names continues even today. Should philosophy be renamed ‘ontics’?
http://opinionator.blogs.nytimes.com/2012/03/04/philosophy-by-another-name/?ref=opinion
What is law?
Produced by an institution?
What about religious norms? Social norms?
Does it need to be enforceable to be law?
Definition of law: http://dictionary.reference.com/browse/law
Theories of law
- Positivism. “"In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits." http://en.wikipedia.org/wiki/Legal_positivism
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
- Natural law. 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?
And what about this:? http://www.theatlantic.com/technology/archive/2012/01/what-happened-before-the-big-bang-the-new-philosophy-of-cosmology/251608/
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.
Custom law. Eg Maori custom law. 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)
- Religious law. The Pope! Islam. Theocracies.
- Social Contract. The Mayflower - a classic social contract: http://americanhistory.about.com/od/colonialamerica/a/may_compact.htm
"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."
A good discussion of a social contract theory of law is contained in John Rawls “A Theory of Justice”:http://en.wikipedia.org/wiki/A_Theory_of_Justice
"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."
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?
(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:
http://www.legislation.govt.nz/act/public/1999/0142/latest/DLM51206.html#DLM51206
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
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?
Are we entitled to interfere with the sun - to save the earth? There is already a movie raising that ethical issue:http://en.wikipedia.org/wiki/Sunshine_(2007_film)
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