Our Place in the World: A New Relationship for Environmental Ethics and Law

Beginning of article

ABSTRACT

Forty years ago, at the birth of environmental law, both legal and philosophical luminaries assumed that the new field would be closely connected with environmental ethics. Instead, the two grew dramatically apart. This Article diagnoses that divorce and proposes a rapprochement. Environmental law has always grown through changes in public values; for this and other reasons, it cannot do so without ethics. Law and ethics are most relevant to each other when there are large open questions in environmental politics: lawmakers act only when some ethical clarity arises; but law can itself assist in that ethical development. This process is true now in a set of emerging issues: the law of food systems, animal rights, and climate change. This Article draws on philosophy, history, and psychology to develop an account of the ethical changes that might emerge from each of these issues, and proposes legal reforms to foster that ethical development.

TABLE OF CONTENTS
Introduction
  I. At the Opening of an Ecological Era
 II. The Divorce of Environmental Law and Ethics
     A. So Much for Metaphysics
        1. Intrinsic Versus Instrumental Value
        2. Holism and Individualism in Value Theory
     B. The Turn to Cost-Benefit Analysis
        1. The Appeal of Utilitarianism
        2. Welfarism's Questions
III. A New Relationship Between Law and Ethics
     A. The Importance of Change in Environmental Ethics
     B. A New Place for Law
     C. Ways of Understanding Change in Environmental
        Ethics
        1. Hippocrates's Restraint: On Not Harming Another
        2. Who We Are Together: The Ethics of Solidarity
        3. Being Who One Is: Personal Ethics
        4. Aesthetic Response and Ethics
        5. Acting, Being, and Seeing: Virtue Ethics
 IV. An Environmental Law of Ethical Change: Three
     Applications and the Case for Ethical Change, Revisited
     A. Food, Agriculture, and the Value of Work
     B. Animals and the Ethics of Encounters Across Species
     C. Climate Change, Rationality, and Vision
  V. Convergent Reasons for Law To Support Ethical
     Innovation
Conclusion

INTRODUCTION

Toward the end of his 1971 book A Theory of Justice, John Rawls turns briefly to the topic of "right conduct in regard to animals and the rest of nature." (1) His remarks are not part of the book's general argument about "fair terms of social cooperation," (2) which launched decades of philosophical debate about distributive justice and the basis of legitimacy for liberal government. Rather, the discussion of nature is an instance of important moral questions that fall, Rawls says, outside the scope of justice. (3) That is, these are questions that cannot find their answer in reflection on how a society of equals should arrange its institutions to respect the freedom and moral standing of each member. The question of nature is about something else.

What is that something else? Rawls asserted that "[a] correct conception of our relations to animals and to nature" would depend on "metaphysics," which he defined as "a theory of the natural order and our place in it." (4) A towering figure in political philosophy, Rawls had a gift for seeing the heart of an issue. Yet his claim that environmental ethics needs metaphysics may seem surprising. In the decades since Rawls wrote, public discussion of environmental issues has tended away from high philosophy toward "practicality": low-built ideas, with an emphasis on weighing costs and benefits and incrementally reforming familiar institutions like markets. The same has been true of the academic discussions most closely aligned with policymaking, notably in law schools. Professional philosophers have attempted some of the metaphysical investigations that Rawls recommended, but their arguments have had all the concrete impact of a tumbling butterfly's wing. (5)

So, was Rawls wrong? No, but the question is also more complicated than a simple right-or-wrong answer can capture. Much as philosophy may aim at timeless truth, it often succeeds best at distilling the unspoken premises of exactly its time and place. In his aside about the natural world, Rawls did just that. His assertion would have seemed plausible, if not self-evident, in Congress and on the opinion pages of major newspapers, and in both philosophy departments and law schools. It would also have resonated in the nascent environmental movement. In all these places, conversations about nature circa 1971 supposed that Americans were changing their ideas of the planet and their place on it. (6) It was ordinary to expect a new, "ecological" view of the human role in the world, with large, if unspecified, practical implications.

The decades following the publication of Rawls's Theory of Justice saw a parting of ways between ethics and more concrete fields such as politics and law. Environmental philosophers moved boldly into the questions that Rawls envisioned: what kind of value the natural world presents and how humans should approach it. At the same time, official decisionmaking pivoted more and more on cost-benefit calculations, which steadily try to avoid metaphysicians' vast and ultimate questions. Normative work in environmental law and policy followed, revolving increasingly around the use and limits of cost-benefit analysis (CBA). (7) After joining in early calls for an ambitious ethical agenda, (8) environmental lawyers, and others with their feet on the ground, largely ignored the questions that philosophers were pursuing.

Refocusing on normative questions might seem to suggest that Rawls was wrong about metaphysics, and even that environmental ethics is pretty much irrelevant to practical environmental decisions. But the lesson of these changes is not that environmental law has been without an ethical stance. CBA is not just a practical tool of policy but also a version of an ethical theory, welfarism, which is itself a version of one of the major schools of ethics, consequentialism. (9) The question is not how environmental law and policy got free of ethics, but how they got so heavily invested in one mode of ethics, to the exclusion of the rest.

Part of the answer is that, just as Rawls's call for high philosophy seemed obviously right in 1971, CBA seemed inescapable by the mid1980s. In both cases, the theoretical approach distilled the attitudes of the time. As new environmental legislation dried up and environmental law became embedded in administrative agencies, a new set of questions presented itself to decisionmakers. Unlike in the heady period of new legislation that ran from roughly 1970 through 1977, the pressing questions no longer involved choosing governing values, but instead required balancing established goals that sometimes competed with one another. (10) CBA is especially suited to this kind of decision, and soon both administrators and scholars were engaged in versions of it.

CBA also aspires to neutrality. The idea of getting the best bottom line of social benefit seems to sidestep clashing values. Of course, neutrality is not really possible because someone must decide what counts as a benefit and at what rate. CBA thus obscures conflict over basic values even as it tries to bring all parties to agreement on a common calculus. In the twentieth century, this common calculus has been a major source of its appeal. As mentioned a bit earlier, the late 1960s and early 1970s brought a peculiar cultural moment, when many people saw "environmental values" as both radical on the one hand and, on the other hand, self-evidently important, even objects of consensus. This moment of consensus soon gave way to renewed conflict over nature's value and our place in it, which marked the 1970s and 1980s. This conflict motivated the search for neutral standards in administering environmental law. Political conflict also blocked passage of new laws. Because legislation involves explicitly choosing values, and administration does not, the decline of Congressional lawmaking submerged basic values as much as the earlier spate of legislation had elevated them.

While environmental law and policy turned away from far-reaching ethical speculation, philosophers were producing "theor[ies] of the natural world and our place in it." (11) These inquiries proved dramatically unhelpful in addressing practical problems. They tended to generate philosophical dilemmas that, if taken seriously, would all but disable decisionmaking. (12) Because ethics, so formulated, was little help to decisionmakers, these developments invited the thought that law not only could get by without ethics, but had to, because it would not get usable guidance from philosophers. Ethics had ascended to a metaphysics that law could not use. (13)

Where does this parting of ways leave us? This Article argues that there is no necessary or essential disconnect between environmental law and environmental ethics. Rather, the relationship between the two has been deeply shaped by the changing context of events, and that change continues. Reviewing the history of environmental law and ethics from the 1970s forward shows that the relation between the fields is always partly a response to the constellation of the moment: it reflects what events have made obvious or unthinkable, urgent or trivial, up for grabs or closed to change. The near divorce of environmental law from ethics in the last few decades did not disclose a timeless truth but concentrated the movement from a time of political and cultural openness and dynamism to one of increasingly entrenched conflict across well-defined divisions. Part I sets out in greater detail how the events of the 1970s helped to inspire an ambitious vision of collaboration among legal scholars, lawmakers, and environmental philosophers. Part II then traces the decline of that ambition. Part II.A concentrates on the history of ideas, describing the directions that environmental philosophy took after the early 1970s and arguing that it failed to produce insights useful to lawmakers, in part because philosophers embraced an overly ambitious search for a general theory of environmental value. Part II.B focuses on the development of policy and legal scholarship, which turned increasingly from philosophical theories of value to CBA and theoretical issues surrounding it. This subpart argues that this change was partly responsive to a new political and institutional constellation: the questions presented to decisionmakers in a time of entrenched conflict and scant openness to new basic values were ones that played to CBA's strengths as a technical and ostensibly neutral method of tabulating established values.

Parts III and IV argue that, today, there is a chance for environmental law and ethics to develop a newly productive relationship. Parts III.A and III.B argue that changing values have played a central role throughout the long history of U.S. lawmaking with respect to the natural world. An approach to ethics that could engage this long-term and continuing dynamism would forgo the ambition to craft general theories of environmental value in favor of a more responsive, pragmatic, and bottom-up approach in which environmental philosophy would both take cues from the changing currents of politics and culture and offer new formulations back to those tracts of the larger culture. Part III.C offers tools for this approach to ethics. It sets out four issues, at once practical and philosophical, that have structured major episodes of environmental value shaping and still do so today: social ethics, the question of how to live among others and in political communities; personal ethics, the problem of one's own identity and basic commitments; aesthetics, the response to the world's beauty, sublimity, and uncanniness; and virtue ethics, the matter of shaping one's character through practice to live a good life--in this case, especially in regard to nature.

Part IV turns to the law side of the law-and-ethics relationship. It concentrates on a new set of practical issues that are gathering energy around them and have the potential to be crucibles of ethical development. These issues are agriculture and food systems, the ethical status of animals, and climate change. Law and policy will be able to address these problems only by reference to values that have still to be worked out. (14) Formulating these values and finding ways of committing ourselves to them will mean engaging "theor[ies] of nature and our place in it." (15) This Part examines the potential for ethical development contained in each issue area, using the tools presented in Part III to organize the discussion.

I. AT THE OPENING OF AN ECOLOGICAL ERA

A …